People v. . Santoro , 229 N.Y. 277 ( 1920 )

The defendant was tried upon the indictment accusing him of the crime of manslaughter in the first degree in causing the death of Felix Wrzeszenski feloniously, "but without a design to effect the death of said" deceased, in an assault by means of a loaded pistol discharged at, "but without a design to effect the death of said Felix Wrzeszenski." The evidence proved that in an altercation between the defendant and Wrzeszenski the former, after being seriously wounded by, shot the latter, who died about ten days afterward. Whether or not the shooting was the cause of the death was in dispute at the trial. The jury rendered the verdict finding the defendant guilty of assault in the first degree and the consequent judgment (a certificate of reasonable doubt having been granted) was affirmed by the Appellate Division. We decide that the judgment of conviction was erroneous, because of errors connected with the charge of the trial judge to the jury. The main charge stated, in statutory language, the constituents of manslaughter in the two degrees defined by the Penal Law (sections 1050, 1052). It stated, in statutory language, further, the elements of each of the three various degrees of assault as defined by the Penal Law (sections 240, 242, 244), and, further: "If, however, you find as a fact that the defendant shot deceased and that the deceased did not die by reason of these wounds, that is if the wounds were not the proximate cause of death of decedent, you have the right to bring in a verdict of assault in any of the various degrees." The jury several hours after retiring reported that they were unable to agree and after admonition by the court asked for instructions as to punishment for assault in the first degree. In response the trial judge restated the elements constituting that offense and the measure of punishment. The defendant's counsel then requested the court to charge "that the defendant cannot be found guilty of assault in the first degree." The court refused the request and the defendant duly excepted. The refusal constituted the error.

It is an essential element of the crime of manslaughter in the first degree that the assault on the deceased was "committed without a design to effect death." The indictment of the defendant expressly, with repetition, alleged that the assault was "without a design to effect the death" of said deceased; the statute expressly makes that element essential to the existence of the crime. (Penal Law, section 1050.) It is an essential element of the crime of assault in the first degree that the assault be committed "with intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another." (Penal Law, section 240.) The entire section is: "A person who, with intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another: 1. Assaults another with a loaded firearm, or any other deadly weapon, or by any other means or force likely to produce death; or 2. Administers to or causes to be administered to or taken by another, poison, or any other destructive or noxious thing, so as to endanger the life of such other, is guilty of assault in the first degree." The commission of "a felony upon the person or property of the one assaulted, or of another" is not established by proof of an assault, with an intent to kill a human being, with a loaded firearm, or any other deadly weapon. The statute enacts that a specified assault with intent to kill is one combination of acts which constitutes the crime, and that a specified assault springing from or incidental to an intent to commit a felony upon the person or property of the one assaulted, or of another, is another combination of acts which constitutes the crime. In the first combination the assault for the purpose of killing is intended, in the other the commission of the acts constituting a felony is intended, the assault is not intended, is incidental and may or may not be for the purpose of killing. (Foster v. People, 50 N.Y. 598; Buel v. People,78 N.Y. 492; People v. Hüter, 184 N.Y. 237; People v.Spohr, 206 N.Y. 516.) Under the indictment, evidence and charge it is manifest that the defendant was convicted of assaulting Wrzeszenski with a loaded firearm, with an intent to kill him. It would seem equally manifest that to accuse by indictment a person of and try him for the crime of assault without a design to effect the death of the person assaulted and to convict him of the crime of assault with an intent to effect the death of that person was not only contrary to but destructive of fundamental rules of our law and principles of justice and fairness. The specifications "without a design to effect death" and "with an intent to kill a human being" are direct contradictions. (Cupps v. State, 120 Wis. 504.)

The People invoke in support of the conviction the statute (Code of Criminal Procedure, section 444): "Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime. Upon a trial for murder or manslaughter, if the act complained of is not proven to be the cause of death, the defendant may be convicted of assault in any degree constituted by said act, and warranted by the evidence. A conviction upon a charge of assault is not a bar to a subsequent prosecution for manslaughter or murder, if the person assaulted dies after the conviction, in case death results from the injury caused by the assault." It is always presumed, in regard to a statute, that no unjust or unreasonable effect was intended by the legislature. The statute, unless the language forbids, must be given an interpretation and application consonant with the presumption. (Matter of Meyer, 209 N.Y. 386.) To convict an accused person of a crime not included in the specifications of the accusation and not proven within the evidence produced at the trial is unjust and unreasonable. The indictment is the pleading on the part of the People. (Code of Crim. Proc. section 274.) It must contain a plain and concise statement of the act constituting the crime charged by the People (section 275), averred with specifications sufficient to inform the accused person of the nature of the accusation, enable him to prepare his defense and constitute the record of his trial a bar to a second prosecution for the same crime. (Sections 278, 279, 284.) In an accusation of manslaughter in the first degree, as we have stated, the absence of a design to effect death is an essential ingredient of the crime and the indictment in the case at bar properly averred its existence. Under the statute, as at common law, manslaughter is the unlawful killing of another without malice or intent. In an accusation of the crime of assault in the first degree the presence of an intent to kill a human being is an essential ingredient of the crime and must be averred in the indictment. The intent is the essence or gist of the offense, which is saved from that of murder by the fact that the assault did not cause death. To support a conviction the specific intent to kill a human being must be pleaded and proved by the People as pleaded, and found by the jury. Nothing should be assumed and nothing can be taken by intendment in a criminal charge of such a nature. (State v. Taylor, 70 Vt. 1; People v. Enoch, 13 Wend. 159; People v. Connors, 253 Ill. 266; People v. Pettit, 3 Johns. 511; Slatterly v. People, 58 N.Y. 354; People v.Sullivan, 4 N.Y. Crim. Rep. 193; Chrisman v. State,54 Ark. 283; State of Iowa v. Hoot, 120 Iowa 238.) When a particular or specified intent is essential to and is the gist of the offense it is necessary to allege the intent with distinctness and precision and to support the allegation by proof. In the present case the People not only did not allege the intent essential to and which is the gist of the crime of assault in the first degree, but they did allege acts constituting its direct contradiction and negation. The statute itself forbids the argument that the loaded pistol and the shooting constitute the allegation of the intent to kill. It enacts that the intent to kill must exist as a fact. The intent may not be the natural and necessary consequence of the act done, from which the law would infer that it was committed with that intent. The People, under elemental rules of evidence, had not the right and did not seek or attempt to prove or claim proof of the existence of the intent.

The act stated in the indictment and warranted and proven by the evidence did not constitute the crime of assault in the first degree; the crime of assault in the first degree, as a matter of law, is not included in or a lower degree of that of manslaughter in the first degree. We have had occasions to recognize the truth of such conclusion in our opinions. We said of an indictment alleging murder: "Manslaughter is a killing ``without a design to effect death.' The words in the statute, under which the indictment is framed, exclude the idea of manslaughter, for they describe an ``assault and battery by means of a deadly weapon, or by such other means or force as was likely to produce death with the intent to kill.'" (Pontius v. People, 82 N.Y. 339, 345.) The converse must be equally true. The words in the statute defining manslaughter exclude the idea of assault in the first degree for they describe an assault "without a design to effect death." In another case we said: "The intent to kill is the distinguishing element of the offense (of assault with intent to kill), while every degree of manslaughter and every description of that crime in the statute, except one, is based upon an absence of an intent to kill, and how this crime can be established by proving an assault under such circumstances, that, had the killing taken place, it would have been only one of the degrees of manslaughter, which is based upon the absence of an intent to kill, is manifestly incongruous." (Slatterly v. People,58 N.Y. 354, 357.) One crime is not constituted by the alleged acts which constitute another crime, or the one crime is not a lower degree of another crime, unless the latter crime necessarily includes the ingredients of the former crime. The crime of assault in the first degree is not constituted by the alleged acts constituting the crime of manslaughter in the first degree, because the act of manslaughter in that degree and the evidence proving the commission of the act do not necessarily, and in fact could not, prove the act of assault in the first degree. The principal element of the assault with intent to kill was no part of the manslaughter. The People cannot indict a citizen for a crime and have conviction for a different crime unless the ingredients of the latter are fully embraced in the former or necessarily averred in the indictment for the crime charged and proven upon the trial of the indictment. (Watson v. State,116 Ga. 607; Reynolds v. People, 83 Ill. 479; Carpenter v.People, 5 Ill. 197; Prindeville v. People, 42 Ill. 217;Moore v. State, 59 Miss. 25; Commonwealth v. Roby, 12 Pick. 496; Diaz v. United States, 223 U.S. 442;Commonwealth v. Dean, 109 Mass. 349.)

In the statute under consideration (Code Crim. Pro. section 444) there is the legislative recognition of and compliance with the principles we have stated. It enacts that the defendant, under the prescribed conditions, "may be convicted of assault in any degree constituted by said act, and warranted by the evidence." The words, "in any degree constituted by said act, and warranted by the evidence," are words of limitation. "Said act" is that charged or complained of in the indictment. A defendant may not, under the prescribed conditions, be convicted of assault in the degree having the measure of punishment which the jury would inflict. A defendant may be convicted only of an assault constituted by or necessarily included in the specifications of the indictment and proven by the evidence. The defendant at the bar, under the erroneous refusal of the trial judge to instruct the jury, was convicted of an assault which the specifications of the indictment averred he did not commit, and the commission of which was not at the trial an issue or susceptible of proof.

The judgment of conviction should be reversed and a new trial ordered.