People v. Petmecky

2 N.Y. Crim. 450

Opinions

Smith, P. J.

The defendant was convicted of tne murder of Pauline Froitzheim. The deceased was the wife of Andrew Froitzheim, a resident of the city of Auburn. The homicide occurred in the afternoon of June 1, 1883, at the house in which deceased lived with her husband.

The defendant, who was examined at the trial as a witness in his own behalf, admitted in his testimony that at the time and place referred to, he had a conflict with the deceased, in which he struck her several blows upon the head with a revolver and a hatchet, and as the uncontradicted testimony showed beyond a doubt that the blows caused the death of the deceased, there was no question, but that the defendant was the author of the homicide. He claimed that he acted in self-defense, and it is now urged by his counsel that the verdict finding him guilty of murder is against the weight of evidence.

The argument of the defendant’s counsel also rests upon several exceptions which it is claimed point to error.

As we may order a new trial independent of the exceptions, if we are satisfied that the verdict is against the evidence or against law, or that justice requires a new trial (Code of Cr. Pro. § 527, as amended L. 1882, ch. 360, pi 499), we will examime the evidence before taking up the exceptions. The responsibility thus thrown upon us compels a careful and somewhat minute review of the testimony.

On the part of the prosecution the testimony tended to establish the following facts and circumstances : The husband of the deceased, who was employed in a neighboring factory, had left his wife, soon after noon on the day of the homicide, engaged in her usual household dxxties, and on his return home about five hours later, he found the house closed and locked, except the blinds of one window, which he opened and through it climbed into the kitchen. On the kitchen floor were spots of blood and bloody tracks leading from the bed-room. On going into the bed-room he noticed three drawers of a bureaxx open and their contents stirred up. Under the bed was a hatchet, which Froitzheim had left in the woodshed that morning. It was covered with blood. In the adjoining sitting-room was the dead body of his wife, lying in a pool of blood. There were l'agged wounds upon the head, which a subsequent examination by physicians decided to be at least twenty in number, some appealing to have been made by the corner of a blunt instrument, and one by a hammer smashing down the flesh. Underneath many of the wounds the skull was fractured, and in one instance there was a complete depression of the bones on to the brain itself. The throat was discolored, showing finger prints over the carotid arteries. In the. opinion of one of the physicians there were six or eight of the wounds either of which was sufficient to produce death. Hear the body was a bowl containing bloody water, standing on a chair; a revolver loaded, except one chamber; a cartridge from the same and a piece broken off from the butt of the revolver. On the pistol were blood and several hairs, the color of the hair of the deceased. There were also,, near the body, or on the floor, a ring not belonging to any of the household, a couple of buttons and a clasp from a neck-chain worn by the deceased. On further search, it was discovered that the keys to the outer doors were gone, and a bank-book on the Auburn Savings Bank, belonging to Martin Froitzheimer, a son of the deceased, a small sum of money, two watches and chains, the neck-chain spoken of, a woolen wrapper, an overcoat and two or three letters were missing. Blood was found in the sitting-room, on the door, the ceiling and the wall-paper; in the bed-room, on papers in a bureau drawer; and above stairs on the garret door, just above the bolt, and on the tray of a trunk in a bed-room in the chamber.

There were neighbors living near, but none of them heard any noise in the house. The letters taken were from Petmecky, the defendant, who had formerly lived in Froitzheim’s family.

Between 7 and 8 o’clock the next morning, Petmecky appeared at a bank in Albany, with the bank-book of Martin Froitzheim, saying that he came from Auburn and was going to Philadelphia, and that he wanted to get money on it, for which purpose he then signed a draft with the name of Martin Froitzheim.

Shortly after leaving the bank, he was arrested by a detective, and on being charged with the murder of a woman at Auburn, he told the detective he had not been in Auburn, and that a man in New York gave him the bank-book and told him to go to Albany and get the money on it. On being asked his name, he said it was Nathan Heymann. He had on the missing overcoat and wrapper or undershirt. On removing his overcoat, his coat and shirt showed blood-stains. •

On his way to the police office, he attempted to escape from the detective. At the police office, he was searched, and several of the other missing articles were found upon him.

He was brought to Auburn and lodged in jail. While there he proposed to a fellow prisoner a plan to overpower the sheriff, when he came to the cell, and make their escape, and at a late day, a letter was intercepted, written by him to a person outside asking to be furnished with instruments by which he could break jail and escape before his trial should come on.

It appeared in evidence that the defendant come to Auburn from the city of Hew York on the day preceding the homicide. The day before leaving Hew York he changed his boarding-place to one about a mile and a half distant, and from the latter place he started for Auburn. The evidence tended to show that he avoided his old acquaintances in Auburn, and that, before going to Froitzheim’s house, he made inquiries, for the apparent purpose of learning at what time he would be likely to find Mrs. Froitzheim there alone.

The testimony of the defendant tended to show that he was born in Germany in 1861, and first come to this country in 1880. Being distantly connected with Froitzheim he went to his house and lived in his family several months. He testified that the first morning he was there the deceased told him she loved him and that she wanted to leave her husband and have the defendant go and live with her in the west; that he continued there about five months, she daily renewing her protestations of love for him, and that he, not liking to hear them, left Froitzheim’s house and boarded elsewhere in Auburn, about a year, when he went to Cleveland, and from there to Manitoba. Thence he went back to Germany, and from there returned to Hew York City in February, 1883. In May, he married, in Madison county, a Swiss girl, whom he meet on his last voyage to Hew York, and after a few days he absconded, leaving his wife in Syracuse without providing her any means of support, and returned to Hew York, where he remained until he came to Auburn, the day before the homicide. He testified that previous to his returning to Germany he received from Mrs. Froitzheim as many as twenty-five letters, all of which he destroyed when he left for Germany; and that about eight days before he left Hew York, he received a letter from her asking him to come to Auburn and enjoining upon him not to make his visit known, and that he came accordingly; that he went to her house in the forenoon and spent an hour or two there; that she urged him to elope with her, and he refused ; that he went to a neighboring brewery, while the husband was at home to dinner; that he returned to the house and found Mrs. F. dressed ready to go; that she again urged him, and he finally told her he was married; that' she then flew into a passion and assaulted him-; that he struck her with his revolver to free himself; that she again attacked him and in the struggle some of the buttons of his coat were torn off and the revolver fell to the floor; that she snatched it and saying that she did not care what became of her, she threatened to shoot him first and then herself; that he, being in great fear, and as he thought in imminent danger, struck her with a hatchet which was lying near the stove to which she had forced him back, and that he finally went from the house leaving her sitting in a chair, holding the revolver in her hand.

The defendant admitted that he carried away the overcoat, and he testified on his direct examination that in the train from Auburn to Syracuse he found in the overcoat pocket, a bankbook, the two watches and a cigar-holder. On his cross-examination'he stated that he took the bank-book out of the bureau drawer, and that he took one of the watches as it was hanging up in the room and did not know where he got the other watch.

On his direct examination he said that when he found the bank-book in the pocket he thought how he could get it back to Auburn, and he concluded he had best take a ticket to Albany and send it back.

He also said that at Albany he went into a saloon kept by a German and told him he had a bank-book he wanted to send back to Auburn. On his cross-examination he testified that his object in taking the bank-book from the drawer was to get money to return to New York with and to. enable him to stay there. Berger, the German whose saloon the defendant visited in Albany, testified that the defendant told him he was short of money and had a bank-book with him on a bank in Auburn, and would like to know if he could raise some money on it, and the defendant, on cross-examination, admitted that he recollected telling Berger so.

The defendant also testified to having met Mrs. F. at Syracuse in April, 1882, at her invitation, and having occupied the same room with her, at a hotel, two or three days and nights, in respect to which he was corroborated by the landlord and another witness, to the extent that they recollected the fact of a young man and a woman older than the man, who were strangers to them being there on that occasion, and they recognized the defendant as the man, and they thought a photograph of Mrs. F., shown them at the trial, was a likeness of the woman.

The defendant also testified that Mrs. F. sent him ten dollars by mail to Cleveland, to defray his expenses to Syracuse on the occasion above referred to, and that on another occasion she sent him twenty-five dollars. The husband of the deceased testified that those moneys were sent to the defendant in reply to his letters asking for a loan of money ; that the money sent was furnished by the witness; and that the letters asking for it were in witness’ house shortly before the homicide, and were among those which he missed as above stated.

There was much other testimony given, but enough has been stated, to show that the credit of the defendant, as a witness, was seriously impaired by his self-contradictions, and that if the jury disbelieved his version of what occurred at Froitzheim’s house on the day of the homicide, so far as it was uncorroborated (as they properly might), the evidence fully warranted their verdict. Giving to the defendant the benefit of every reasonable doubt, they were authorized to find either that the deliberate and premeditated purpose of the defendant was to take the life of his victim, or that it was to plunder the house, in which latter case, as the value of the property taken by him was shown to exceed twenty-five dollars, the homicide, if committed by him while engaged in the felonious taking, was murder in the first degree, although perpetrated without a design to affect death. Penal. Code, § 183. The case was submitted to the jury by the learned judge in both of these aspects, and we are constrained to say that we see no cause for disturbing the verdict as being against the weight of evidence.

The point is made by the appellant’s counsel that in the examination of one Treat, called as a juror and challenged by the defendant for principal cause, the court interfered with the free expression of the juror’s opinion by charging him as to the law in criminal cases generally, and inferentially in the particular case about to be tried. The juror, having answered the defendant’s counsel that he had read and talked about the case and formed an opinion respecting it, which he thought would require evidence to remove, also said that he thought he could try the case unbiased by that opinion. He was then asked, “ If the evidence was pretty nearly balanced, would your opinion influence your verdict ?” He answered, “ I don’t think it would.” The court then said, “You reflected, I suppose, that you do not find a verdict in a criminal case upon the balance of the evidence, but that the evidence must be such as to remove every reasonable doubt of guilt?” The juror answered, “Yes.” No exception was taken to the remark of the judge, and we discover nothing in it improper or that could prejudice the defendant. Besides, the juror did not sit, he having been challenged peremptorily by the defendant.

It does not appear that the defendant’s peremptory challenges were exhausted. The juror not having been of the panel, the question whether there was error in his examination is not brought up by this appeal. The appeal is to be heard upon the judgment-roll (Code of Cr. Pr. § 517), and that is to contain no copy of the minutes of a challenge, except such as may have been interposed to the panel of the trial jury, or to a juror who participated in the verdict (Id. § 485, sub. 3). A like limitation is put by the Code of Criminal Procedure upon the right to except to a ruling made upon the trial of a challenge (§ 455).

The examination of the wife of the defendant as a witness against her husband was not error. She was not compelled to disclose any confidential communication passing between herself and her husband during their marriage, and within that limitation she was a competent witness. Penal Code, § 715. The case of People v. Hovey, 29 Hun, 332 ; 1 N. Y. Crim. Rep. 180, cited by the appellant’s counsel, arosd before the Penal Code took effect.

The evidence of the defendant’s proposal to his fellow prisoner, O’Brien, of a plan to overcome the sheriff and escape from the jail, was competent. It. was of the same nature as proof of an attempt of a person charged with crime to flee before arrest, or to escape immediately after arrest. The circumstance that the plan involved the commission of a criminal offense other than that with which the defendant was charged in the indictment, did not render the evidence any less competent. It was equally competent with proof that the defendant when arrested in Albany attempted to escape from the officer, and with the letter written and sent by the defendant, subsequently to his conversation with O’Brien, asking that instruments be sent him to enable him to break jail and escape, both of which were received without objection. The court instructed the jury as to the legitimate effect of the evidence.

Certain letters written by the defendant to his wife, and which his wife testified she had delivered to the district attorney, at his request, without making any objection, supposing that she was obliged to deliver them, although, as she testified, she did not wish to, were offered in evidence by the prosecution and excluded. Afterwards the letters were shown to the defendant on his examination as a witness, and his attention was called to their date and to the signature, which appeared to have been “ Franz Joseph von Petmecky, Railingbnrg.” He was asked why he wrote “ von ” and “ Railingburg,” and the question being allowed against the objection of his counsel, he answered that he didn’t know. Ho communication contained in the letters was proven. But if the entire letters had been read we are of the opinion no rule of evidence would have been violated. Being written by the defendant they were admissible against him. The reading of them in evidence would not have been within the prohibition of section 715 of the Penal Code, which is aimed only at a compulsory disclosure by husband or wife. Putting the letters in evidence would have involved no disclosure by the wife of the defendant, as a witness. If she had lost them, and the person finding them had put them in the hands of the district attorney, would they not have been admissible against the defendant % Even if they had been unlawfully obtained, would that have been an objection to their admissibility, they being pertinent to the issue ? 1 Greenl. Ev. % 254 a. If the entire letters were admissible there certainly was no error in permitting the defendant to be examined as to the dates and signatures alone.

The evidence of Andrew Froitzheim as to the genuineness of the defendant’s signature was competent. He had seen the defendant write on one or more occasions. It is insisted by the defendant’s counsel that the. fact that he and the defendant were on opposite sides of the table at the time of the writing rendered him incompetent. How far apart they were does not appear; the fact that the witness saw the defendant write is enough to carry his testimony as to the genuineness of the signature to the jury, they to give it such weight as they think it entitled to. Besides, the witness had corresponded with the defendant and received letters from him. But if the admission of the evidence was erroneous it did no harm, since the genuineness of the same signature was proved by Andrew Froitzheim, Jr., whose competency was abundantly shown.

It it contended by the appellant’s counsel that the judge by defining the degrees of murder in the inverse order of their enumeration in the statute, referring finally to the first degree of the crime, and then by discussing the evidence which tended to show that the killing was done while the defendant was engaged in the commission of a felony, left * it to be inferred irresistibly that in his opinion a verdict of guilty of murder in the first degree might be sustained on that ground. The learned judge carefully refrained from expressing his opinion upon any question of fact in the case. He doubtless arranged the several topics dealt with in his charge in such order as in his opinion would enable him to present them most clearly. The mere order of arrangement was a matter wholly within his discretion and is not the subject of review. We are not to presume, for the purpose of overturning the verdict, that the jury so far departed from their duty, as to draw the inference suggested and allow it to influence their verdict. These remarks .are applicable also to the comment made by the appellant’s counsel upon the part of the charge relating to the means of defraying the expenses of an elopement.

The point is made by the appellant’s counsel that the court erred in charging that the testimony of the defendant was of no value except as corroborated by other evidence in the case. Such was not the charge. It was, in substance, that if the jury should find that the defendant had knowingly testified falsely in respect to a fact material to the case, then his testimony is entitled to credit only so far as the jury shall find it to be consistent with the established facts of the case, or corroborated by the testimony of other witnesses. In connection with this instruction, the judge adverted to the contradictory statements of the defendant as to the manner in which he became possessed of the bank-book, and as to his purpose in taking it. The authorities in this state seem to support the proposition that while the question of the credibility of a witness in general belongs to the jury, yet when they find that he has sworn corruptly false in one material thing, in the case on trial, his uncorroborated testimony is to be disregarded, and it is not error so to instruct them. Dunlop v. Patterson, 5 Cow. 243 ; People v. Evans, 40 N. Y. 1; Deering v. Metcalf, 74 N. Y. 501. When, however the witness, in testifying falsely, is not found to have done so knowingly, the question of his credibility is for the jury. Dunn v. People, 29 N. Y. 523; Pease v. Smith, 61 N. Y. 477; Wilkins v. Earle, 44 N. Y. 172; Deering v. Metcalf, supra. In the present case there was no escape from the conclusion that in one or the other of the several contradictory statements of the witness, he had testified falsely, knowingly and corruptly. There was no error in that part of the charge.

It is objected that the judge assumed that the evidence was uncontradicted that the defendant had locked the doors of the house after the homicide, whereas the defendant denied that he did so. The learned judge, in commenting upon the testimony of the defendant that he was unconscious of much that occurred at the time of the homicide, adverted to several things, which the defendant testified he did and saw on that occasion, as proper to be considered by the jury in determining whether his testimony that he was unconscious during any part of the time was credible. In that connection the judge said “ he was unconscious, according to his testimony, of that series of acts by which he locked all the doors of the house.” Although the testimony on the part of the prosecution was to the effect that all the doors of the house were found locked, the defendant, on his direct examination, said nothing as to whether he locked them or not. On his cross-examination, on being asked why he locked up the house, he replied : “ I did not lock any house;” and immediately afterwards, having testified that he went out at the kitchen door, on being asked if he locked it after him, he replied that he did not know. In this manner he denied having locked all the doors of the house, and the remark of the judge was therefore too broad in its assumption, but no exception was taken to it, and as it is to be presumed from the verdict that the jury found that the defendant had testified falsely and corruptly, his denial in regard to locking the doors was not entitled to credit, and the remark of the judge worked no injustice, requiring us to grant a new trial.

The judge charged, “ If the prisoner at the bar is to be found guilty of murder in the second degree, or of any less offense, it is because you find that there is a reasonable doubt that he committed this act from a deliberate and premeditated design, and also that there is a reasonable doubt that he committed it while engaged in the commission of the crime of grand larceny in the second degree.” The appellant’s counsel contends that this threw the onus of raising the doubt upon the defendant. We think the contention is unfounded. The charge gave the defendant the benefit of any reasonable doubt as to the grade of the crime arising upon the entire evidence. The judge had previously charged that in order to find the defendant guilty of murder in the first degree, they must “ be satisfied beyond a reasonable doubt that he committed the act of taking this life with a deliberate and premeditated design, or that he committed it while engaged in the act or the attempt of committing the felony or taking this property from the house.”

The case of People v. Stokes, 53 N. Y. 164, cited by the appellant’s counsel, does not sustain his position. The charge there held erroneous was that the legal implication from the fact of the killing, in the absence of proof of the circumstances of its perpetration, was that the act was murder, and cast upon the prisoner the burden of showing that it was not.

Our examination of the case has satisfied us that no error was committed at the trial affecting the rights of the defendant, that the verdict is according to the evidence and the law, and that justice does not require a new trial.

The judgment and conviction should be affirmed, and the Court of Oyer and Terminer of the county of Cayuga directed to fix another day for the execution of the sentence.

Haight and Bbadley, JJ., concur.