Kennedy v. . the People , 5 Abb. Pr. 147 ( 1868 )

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] 1. In Fitzgerald v. The People (37 N.Y. 413), this court, at the March Term last past, decided, that an indictment charging the prisoner in terms nearly identical with those employed in the present case, is a good and sufficient charge of murder in the first degree. That the statute defining murder in the first degree, murder in the second degree, and manslaughter, has not changed the form of pleading so that an indictment for murder, good at the common law, is no longer sufficient. That under such an indictment there may be a conviction of murder in the first degree, or in the second degree, or of manslaughter, according to the description of the act given and proved; and that the statute is not a rule of pleading, but a guide to the conduct of the trial and to the instructions to be given to the jury; and, therefore, that a general verdict of guilty, as charged, is a conviction of murder in the first degree, and warrants a sentence of death, its legal penalty. (Conkey et al. v. The People, 5 Park. Cr. 31; Whart. Cr. Law, § 3048; Harmon v. Commonwealth, 12 Serg. Rawle, 191.)

2. It was objected on the trial, in the present case, that the indictment is bad, because it charges the prisoner with the killing of Thomas Hand, alias Thomas Jackson. There is nothing in the suggestion, that this created any duplicity; the charge in no sense of the word "alias" imported the killing of two persons. To give it such an effect, would be to construe it as meaning Thomas Hand and Thomas Jackson, which neither its proper Latin signification nor its English use would allow. A more plausible suggestion would have been, that it was bad, for uncertainty, because it left it doubtful whether the killing of Thomas Hand, or the killing of Thomas Jackson was charged. But, in order to create this doubt, it is necessary to read the word as meaning "or," after the word "either," and so make the indictment charge the killing of one of two persons, that is to say, with the killing of either Thomas Hand or Thomas Jackson. But this, again, is not according to its well-understood meaning as a term in the law long used to avoid a variance or misnomer in pleadings. It does not indicate that different persons are intended, but, in pleading, both in civil and criminal actions, that the names mentioned are different descriptions of the same person. Counsel for the plaintiff in error is right in claiming that it was formerly employed in pleading in connection with "dictus," and in that connection the charge would import a killing of Thomas Hand, otherwise called Thomas Jackson. And the argument is, in substance, a concession, that, had the pleader used the full expression, "alias dictus," or "otherwise called," the supposed defect would not exist.

I apprehend that the use of the single word "alias," to express the whole meaning, has so long obtained, that it is not uncertain what is the true meaning of the charge; and, if not, then, there is no just ground for the exception. Unless there is such uncertainty, the objection, even if technically sound, is not of substance, but of mere form, and could in nowise prejudice the prisoner, and, therefore, neither renders the indictment invalid nor affects the proceedings. (2 R.S. 728 [52].) The term has become familiar as equivalent to "otherwise called," or "otherwise known as," and may properly be treated as having in use in pleadings in English acquired that import, as a technical term constantly employed in that sense without its former Latin companion.

On the argument of the case in this court, the counsel for the plaintiff in error has enlarged the objection taken below, and now, after verdict, insists that even if "alias" may be held to import the full meaning "otherwise called," still the conviction should be reversed because the alias should follow the true name. And that the indictment here should have charged the killing of Thomas Jackson, alias Thomas Hand, and not the killing of Thomas Hand, alias Thomas Jackson.

No such point appears to have been taken below, and no point so purely technical, so void of intrinsic merit, should be permitted to be first raised here, when no possible prejudice could happen to the prisoner by reason of the error, if it were an error.

It is by no means clear, that, if the facts assumed were true, the objection would have any force. When one had executed an instrument by a wrong surname, it was long since held, that he might be sued by such wrong name, alias dictus his true name. (3 Salk. 238.) And this was in the days of very rigid adherence to technicality, when it was held, in respect to Christian names, that the rule was otherwise, both in civil and criminal proceedings. (3 Salk. 238; 1 Ld. Raym. 562.) On the other hand, Reid v. Lord (4 Johns. 118) is to the effect that the true name is that which precedes the alias dictus, and does not notice the distinction above stated.

But there is another sufficient answer to the objection: It is not found that the true name of the deceased was not Thomas Hand. On the contrary, the verdict finds the prisoner guilty as charged, and if the pleading on its face imports, — as the prisoner's counsel now claims it does, — that Thomas Hand was the true name of the deceased, and Thomas Jackson a name by reputation only, then the jury have found the prisoner guilty of the murder of Thomas Hand, who by reputation had the name of Thomas Jackson.

If we are called upon to look at the evidence, and say whether such a verdict should be sustained, we cannot say, that it should be set aside as against evidence, or that the testimony shows conclusively that Thomas Hand was a fictitious name. During his residence in this country, he was known, and only known, as Thomas Hand. He appears to have been in this country twenty-two years.

His nephew, who came to this country the summer previous to the murder, testified: "I am a nephew of Thomas Hand, deceased; I wasnot much acquainted with him in England; I recollect him, that was all; his name there was Thomas Jackson."

No other evidence was given to show that the deceased bore the name of Thomas Jackson. The name of his father or mother, brother or sister, or other relative (save the nephew's name), was not proved. All lies in the recollection of one who was not much acquainted with him, whose memory is tasked to go back twenty-two years, and who barely remembers him. On this evidence, we cannot say whether the name by which he was thus faintly recollected may not have been assumed. Doubtless, if the nephew's recollection is correct, the name by which he was known in the land of his birth would seem most likely to be the true name; but we could not disturb a verdict upon such a ground and upon such evidence.

Besides, the question does not arise, as it did in the cases above cited. Those were cases in which the defendant was himself declared against or indicted with an alias. Even there, appearance and plea to the merits waived the error, if any, and, after verdict, the objection would not avail. Here, if the true name of the deceased were Thomas Jackson, and the name by reputation Thomas Hand, a description of the deceased as Thomas Hand, alias Thomas Jackson, would not be such a misdescription as to be fatal after verdict.

If, therefore, no error was committed in receiving or rejecting testimony, there is no ground for reversing the judgment.

3. It was not erroneous to reject testimony to the declaration of the deceased, that he had no money.

The question, whether the deceased had or had not money in his possession at the time of his death, was, no doubt, a material one, as will presently be considered, and it may have been material to show that the prisoner was aware that the deceased had money; but the declaration of the deceased, some weeks before the murder, was not competent evidence, that he had no money, it was no more evidence as against the people, or for the prisoner, than his declaration upon any other subject would have been. I know of no rule which makes the declarations of the deceased, forming no part of the res gestæ, competent evidence, either for or against either party. It is in no analogy to dying declarations, which are received, when made in view of approaching death, as having a sanction equivalent to testimony given under the solemnity of an oath before the court and jury.

4. Nor was it erroneous, to allow proof of sales of produce mode by the deceased in the previous fall, or that his nephew had paid to him sovereigns in the previous July.

Proof, tending to show that the deceased had money, suggests a motive for committing a robbery, and so a motive to take the life of the deceased, if that would facilitate the theft, or contribute to its concealment. Such a fact formed a prominent circumstance, tending to the conviction of the prisoner, inGordon v. The People (33 N.Y. 501), and was not suggested as of doubtful admissibility in that case. And this court, inHendrickson v. The People (10 N.Y. 13), went much further in sustaining the admission of evidence, tending as was claimed, to show a motive for the commission of the crime charged, by receiving testimony, which, at most, only showed, that the prisoner had a diminished interest in the continuance of his wife's life. It is always a just argument, on behalf of one accused, that there is no apparent motive to the perpetration of the crime. Men do not act wholly without motive. On the other hand, proof of motive tends, in some degree, to render the act so far probable as to weaken presumptions of innocence, and corroborate evidence of guilt.

Whether the time of the possession of money by the deceased be or be not too remote to render the evidence proper, must depend very much upon the circumstances of each case. The prosecutor, here, had given some evidence, that, about six weeks before the murder, the deceased had gold, which he desired to sell. The evidence, on this point, which was objected to, was, that, in the previous July, his nephew had paid him gold; this testimony rendered it probable, that it was the gold then received, which he had retained and proposed to sell; it did not appear, that he, in fact, sold it, but if it had, it would have left some presumption, that he had in his possession the proceeds; and proof of his sales of produce had a similar tendency. All this evidence was slight in its bearing on the guilt of the prisoner, but, in its nature, it was competent, and it was for the jury to consider and determine its weight. Had the deceased been engaged in traffic, buying, selling and dealing with others frequently, it might not be proper to go back six months for proof that he received money, unless it was followed by other evidence showing its retention. But here, the deceased led a solitary life, mingled very little with his fellow men, if the testimony did not amount to proof of a miserly habit, it certainly indicated a habit of living so free from expense, that the jury might well infer, that any considerable money in his possession during the fall, or held by him six weeks before his death, was, for the most part, in his possession when he was killed.

In connection with the other testimony, that the prisoner proposed, at about the time of the murder, to purchase land in the neighborhood, such proof was, in its nature, competent, and might properly be submitted to the jury as evidence, though slight, that the prisoner, having the opportunity, had also a motive to the crime. It must be conceded that such evidence should be weighed with extreme caution. It is entirely consistent with the perfect innocence of the accused. Of itself, it could by no means warrant a conviction. The prisoner, it appeared, alleged that he had money in Canada with which to make the purchase he talked of; and that may be entirely true. The temptation furnished by the proof in this case, would seem wholly inadequate to the commission of the crime; but that, to the upright mind, is true of any pecuniary or other motive of mere gain that can be suggested. Unfortunately, in the history of mankind, such motives to crime are sometimes influential, and proof of their existence must be left to the jury to be weighed, whether apparently greater or less in connection with the other circumstances disclosed by the testimony, and in view of the condition, circumstances, habits and character of the party on whom such motives are alleged to operate.

5. The admission of the testimony of the coroner, who was a physician, to his opinion respecting the position of the deceased, when the blows were given which caused the fatal wounds, is far more questionable. He had described the wounds; he had given their position upon the head, their direction, their length, width and depth. He had been permitted to give, as far as he was able, the shape of the instrument with which the blows were inflicted, and to state that "striking the scalp from above and backward would make such a gash, in a vertical or slanting direction, a blow from a blunt instrument." If any other fact was wanting which could guide the judgment in determining the manner of the killing, and which medical or surgical skill could supply, it was competent to inquire further of the witness. Indeed, one of the questions which became the subject of exception here insisted upon, was, I think, clearly competent in that view, viz., as to the amount of force requisite to break the skull. He had not only the skill and knowledge resulting from his professional familiarity with anatomy, and the structure, thickness and strength of the human skull generally, but he had the particular knowledge acquired by the examination of the skull of the deceased. That he was competent to speak as an expert, of the power of resistance of the skull, and so of the force requisite to break it, as it was in this case broken, seems to me quite clear. But here, I think, was an end of the inquiries permissible to draw from him mere opinions. Having stated all this, he was no more competent to give an opinion as to the position of the body, when struck, than any other person. One blow was received by the deceased on the left side of the back of the head. How is it possible that a surgeon can tell better than one who is not a surgeon, how the head must be placed so that such a blow can be given? It is entirely obvious that it must be in such a position that it is accessible. In one position it would be easy to reach it; in another it would be difficult, and in yet another, it might be impossible. I am not aware that surgeons are experts in the manner of giving blows of this description, or in determining how the head must be placed so as most conveniently to receive them.

The form, nature, extent, depth, length, width and direction of the wound being given, and its precise location on the head, with a general statement of the amount of force requisite, and the probable shape of the instrument, the jury can judge as well as any one in what position the head or the body probably was when the blow was given. At best, it seems to me there can be nothing more than a conjecture among several suppositions; but surgical skill has little to do with the inquiry.

Still less was the position of the body, when the blow was given which caused the wound on the top of the head, the proper subject for an opinion by the surgeon. Obviously, blow may be given on the top of the head, whenever the top of the head is within reach of such a blow from the assailant; it may be when sitting; it may be when lying down. A short man, standing, might receive such a blow from one who is very tall. When all the facts are stated, it must necessarily be nothing but conjecture. And the answer of the witness in this case shows that he could only venture to state that the deceased was probably lying down. He was no more competent to infer such probability than the jury were. It is only where the matter inquired of lies within the range of the peculiar skill and experience of the witness, and is one of which the ordinary knowledge and experience of mankind does not enable them to see what inferences should be drawn from the facts, that the witness may supply opinions as their guide. But on what ground it can be said that it requires the peculiar science or professional skill which physicians and surgeons possess, to determine the position in which a man may be struck on the top of his head, I am not able to perceive.

I think, therefore, that the ruling which permitted the answer to those two questions was erroneous. If the position of the body, when the blows were struck, was material, it should have been left to the jury to infer that position, from the facts which tended to show it. (The People v. Rector, 19 Wend. 569;The People v. Bodine, 1 Denio, 231; Wilson v. The People, 4 Park. Cr. 619; Jefferson Ins. Co. v. Cotheal, 7 Wend. 78.)

But, under the circumstances of this case, this error is of no importance, and furnishes no ground for reversing the judgment.

The only possible bearing of the questions and answers, lastly alluded to, was on the inquiry, whether a murder had been committed.

Whether the position of the body, when these blows were given, was erect, reclining or prostrate, might, in some very slight degree, bear on the question, whether the deceased was injured by an accidental fall, or died by violence inflicted by his own hand; but when once it is assumed, that he died by murder, these inquiries become wholly unimportant and immaterial. They have not the slightest bearing on the question, who committed the crime. Standing, sitting or lying down, the deceased was murdered, and, in whichever position, it is alike wholly uncertain, who struck the fatal blows.

Other circumstances might point to the prisoner, but these no more pointed to him than to any other human being of strength sufficient to give the blows.

It is, therefore, conclusive, on the immateriality of the errors referred to, that it appears by the case, that the fact of a willful and deliberate murder was not a subject of contest before the jury.

In the beginning of the trial, the counsel for the people gave the evidence referred to. He was then, in the opening of the case, establishing the primary fact, that a murder had been committed.

At the close of the testimony, as we are informed by the judge in his charge to the jury, no embarrassing distinctions in reference to the nature of the crime were to be considered, and he says, "the murder that has been committed here is willful and deliberate, as is conceded on all hands. The defendant's counsel concedes, that the murder, by whoever committed, is willful and deliberate, such is the charge in the indictment. * * This disposes of many questions which are often found important and difficult questions for jurors to pass upon, and this leaves you with only the duty to say, whether the defendant who has been indicted is the guilty person who has committed willful and deliberate murder. * * * The simple question for you to consider is, whether or not this defendant is the man who committed this murder."

To all this, there was no exception. It is entirely manifest (as was indeed expressly stated by the judge), that the fact of willful and deliberate murder was conceded. How, then, could the opinions of the coroner, that the fatal blows were received by the deceased in one position rather than another, affect the prisoner. He wished no question submitted to the jury on which those opinions could have any possible bearing.

If I could see, that such opinions could, in the slightest degree, or by any possibility, have had any influence on the question, who struck the blows, the prisoner (plaintiff in error) should not be suffered to bear that influence or its consequences. I am not able to perceive, that it could have any such bearing, or to find any ground for saying, that the error is not wholly unimportant.

For these reasons, I think the judgment below should be affirmed, and the record remitted, that the judgment may be carried into due execution.