People v. Greenwall (115 N.Y. 520, 1889)

Earl, J.

This is the same case which was here upon a prior appeal. (108 N. Y. 296.) The new trial has again resulted in the defendant’s conviction. A careful scrutiny of the record satisfies us that there was ample evidence to justify the verdict of the jury. There was no dispute that Mr. Weeks-was murdered by some person while engaged in a burglary in the night-time at his house, and upon the trial the only disputed question of fact was as to the identity of the criminal. The confessions of the defendant to one of his criminal associates, and the other evidence, were ampielo identify him beyond a reasonable doubt as the author of the crime.

The indictment contains two counts. In the first count the defendant is charged with killing Mr. Weeks from a deliberate and premeditated design to effect Ms death; and in the second count he is charged with killing him while engaged in . the commission of - a felony, to wit, the crime of burglary. The evidence was sufficient to warrant a verdict' of guilty under either count, and the jury were instructed that they might, as they should view the evidence, convict under either count. It appears, however, from the charge of the trial judge, that the prosecution mainly relied upon the. second ' count, and the jury found the defendant guilty of murder in the first degree under that count. Fo objection was made upon the trial, or upon the motion subsequently made for a new trial, to the indictment. But upon the argument of this-appeal the objection was for the first time made that the second count in the indictment does not charge the crime of murder in the first degree.

It is provided by subdivision 3 of section 183 of the Penal Code that the killing of a human being “ without a design to effect death, by a person engaged in the commission of or in an attempt to commit a felony, either upon or affecting the person killed or otherwise,” is murder in the first degree. The defendant’s counsel contends that the words “ or otherwise” mean “or another,” and that, therefore, the second count does not charge murder in the first degree, because it does not allege that the defendant killed Hr. Weeks while engaged in the commission of or attempt to commit a felony either upon or affecting him or some other person.

We think it is entirely clear that it was intended to make the killing of any human being, while engaged in the commission of any felony, murder in the first degree, whether the felony was committed upon or affected any person or concerned property only. Mo intelligent draftsman of an act would use the inappropriate word “ otherwise ” in the sense of “ another.” Such an absurd use of language cannot be supposed. In the Eevised Statutes (2 E. S. 657, § 5, subd. 3) it was provided that such killing, “ when perpetrated without any design to effect death, by a person engaged in the commission of any felony,” was murder. By the act chapter 410 of the Laws of 1860, the crime of murder was divided into the first and second degrees, and the degrees were defined as follows: “'All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or the attempt to perpetrate any arson, rape, robbery or burglary, or in any attempt to escape from imprisonment, shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder in 'the second degree.” Under this act the particular crimes in which the criminal may be engaged at the time of the killing, in order to constitute murder in the first degree, are specified; and if the killing was perpetrated while the criminal was engaged in the commission of a crime not specified, it was murder in the second degree. The act of 1860 -was repealed by the act chapter 197 of the Laws of 1862, and by that act section 5 of the Eevised Statutes above quoted, was re-enacted down to subdivision 3 thereof, and that was amended so as to read as follows: “Third. When perpetrated while committing the crime of arson in the third degree.” Under that act it was only when the killing was perpetrated in committing the -crime of arson in the first degree that the crime was made murder in the first degree, and the killing of a human being while engaged in any other felony was murder only in the ■second degree. By the act chapter 644 of the Laws of 1873 the act of 1862 was amended so that subdivision 3 of section 5 of the Bevised Statutes again took its original form. By the act chapter 333 of the Laws of 1876 the act of 1873 was •amended so as to make subdivision 3 of section 5 of the Bevised Statutes read as follows : “ Third. When perpetrated by a person engaged in the commission of any felony.” The words “ without any design to effect death,” before in the section, were omitted.

While the section was in this form a question was raised whether it was murder in the first degree to kill a human being while engaged in an assault upon the person killed, but without any premeditated design to effect the death of such ■person. (Buel v. People, 18 Hun, 487; 73 N. Y. 492.) Section 183 of the Penal Code was drafted before that question was put at rest by the decision cited, and hence the phraseology of subdivison 3 was again changed, as we may infer, to make it certain that the killing should be murder in the first degree, whether the felony was committed upon or affected the person killed, or was any other kind of felony. But, in the Code, a further subdivision is added as follows: “ When perpetrated in committing the crime of arson in the first degree.” It is claimed that this language must be read in connection with the prior subdivision, and that it qualifies it, and shows that the felony there referred to means only one upon or affecting the person killed, or some other person, and that the only other felony intended is arson in the first degree. Why subdivision 4 was added cannot certainly be perceived. Its grammatical structure is such as to lead us tó suppose that it was added by some one after the prior portions of the section had been drafted and completed by another. The draftsman of subdivision 4 clearly did not have a clear comprehension of the force and effect of the prior subdivision. It may have been intended to make the crime murder in the first degree in case a human being was burned to death in consequence of the crime of arson in the first degree. Under the construction contended for the killing of a human being without deliberate and premeditated design to effect death while in the commission of any felony not upon or affecting the person of some human being, except the crime of arson in the first degree, would not be murder in any degree, and such has never been the law in this state, and it was not the common law. In People v. Johnson (110 N. Y. 134), the killing took place while the defendant was attempting to escape from jail under such circumstances as to make his attempt a felony, and the conviction was affirmed. The point, however, which we have been considering was not taken in that case, and yet, if the point is well taken, the defendant there ought not to have been convicted. "We are satisfied that it is not well taken.

The defendant was a witness upon his own behalf, and during his cross-examination the district attorney said in the presence and hearing of the jury : “ I convicted the defendant before and I will do it again.” The defendant’s counsel immediately arose and addressing the court said: