People v. Ledwon , 72 N.Y. St. Rep. 11 ( 1895 )

TITUS, C. J.

My associate has written an opinion in this case in which he arrives at the conclusion that the conviction of both of these defendants should be reversed, principally for the reason that the testimony of the boy witness, Borowiec, was submitted to the jury for their consideration in determining the question of the defendants guilt. I cannot concur in the conclusions reached by him, that the verdict of the jury and the judgment of conviction should be reversed and set aside; and, as a failure to agree with him results in affirming the judgment of conviction, I desire to state briefly my reason for the conclusion reached by me.

The witness Wladeslaus Borowiec is the son of the. defendant Anna Ledwon and the deceased, George Borowiec, and at the time of his death was eight years old; apparently not very bright or intelligent; timid and reserved, to the extent that it was difficult to obtain answers from him; brought up in surroundings of drunkenness and"squalor; and, with no moral training, he is necessarily and naturally inclined to shield those to whom he is accustomed to look for protection and support. With such surroundings, and under such conditions, if he was inclined to tell anything but the truth, it would be to tell a story which might seem to him most favorable to his mother, who was on trial for her life. At the time of the death of Borowiec the defendant Anna Ledwon, through her assertion of the suicide theory, led the coroner to believe that no crime had been committed, and consequently no investigation by a jury into the cause of Borowiec’s death was made; and from that time up to the time of the trial this boy has constantly lived with or been surrounded by friends of the defendant, who insisted that Borowiec killed himself. According to his own statement, threats were made against him in case he should testify that the defendants killed Ms father. If it is not true, that these defendants assisted in Mlling Borowiec, I am at a loss to see the motive for the boy’s story. No reason is suggested, and none is apparent, why he should persist in telling a lie for the purpose of convicting his mother of this crime. It is easy to understand why a boy of his age, and immature as he is, should try to shield bis mother; but why he should want to convict her by telling a falsehood is past comprehension, and no reason is shown for it. But, on the other hand, there is abundant reason to explain why he should wish to screen his mother. The trial judge carefully presented the case to the jury, and cautioned them against placing too much reliance in this boy’s story. This evidence was characterized as “involved in a hopeless contradiction,” and in submitting it to the jury the court said: • > -

“You are to take this hoy as you saw him here,—his age, Ms appearance upon the stand, his inability to give this in a detailed statement; and you are first to determine, is he of that degree and order of intelligence that he is capable of determining in his own mind that be must tell the truth, and would be liable to be punished if he did not tell the truth, and, consequently, will you place any reliance upon his testimony, which the court submits to you under the peculiar circumstances of this case?”

After calling their attention to his contradictory statements, the court told the jury to examine the boy’s surroundings, to see if he was in position to have seen what he claimed he did, and, if they were not satisfied that his story was true beyond a reasonable doubt, then they should reject it, and give it no force at all.

Aside from the evidence of the boy, one is led to the conclusion that Borowiec was brutally murdered during their drunken debauch, stimulated thereto by excessive drink, prompted by a desire to rid the wife and her paramour of an insuperable obstacle, in the person of the husband, to their undisturbed cohabitation. The boy was present, and, while not knowing the motive of the act, as he lay in his bed, was powerfully impressed with the fact that his father was being killed by these defendants and Zawaczki; and while, undoubtedly, efforts have been made to impress upon his mind the thought that his father killed himself, yet his telling of the scuffle, and of their carrying him out, impresses me with the conviction that he told ■the truth in that respect. After the severe criticism of the boy’s testimony by the trial judge, and after being told of the importance of a careful scrutiny of his testimony, the jury concluded he was telling the truth; and I think, under the instructions from the court as to their duty in weighing his testimony, they had the right to receive it and act upon it, and their conclusion, I believe, is fully warranted. It may be truthfully said that this evidence is not of the most satisfactory character, but when crime is committed amid such surroundings, where all present are more or less responsible and interested in suppressing the truth, the best and most satisfactory evidence cannot be obtained, and the witnesses must, from the nature of the situation, lack those high social and moral qualities which appeal most strongly to us, but, nevertheless, when the people have produced the best evidence there is, and it is legally sufficient to warrant a verdict of guilty, if the jury are satisfied from it beyond a reasonable doubt, their finding should not be disturbed. Especially is this the case where 'the evidence, without the testimony of the boy, morally satisfies the mind of the guilt of the defendants. In this view of the case, 1 am inclined to think that the evidence was properly submitted to the jury, and that the judgment of conviction should be affirmed.

Judgment affirmed.