Yates v. . the People

32 N.Y. 509

Opinions

The plaintiff in error was convicted at a Court of Oyer and Terminer (Mr. Justice BARNARD presiding), held for the county of Kings, at the city hall of the city of Brooklyn, on the 24th day of January, 1865, of the crime of murder in the first degree, in killing one Charles Curran. The judgment was removed into the Supreme Court by writ of error, where it was affirmed at the General Term of the second district. From this judgment the prisoner brought a writ of error to this court.

On the evening of the 1st of October, 1864, the prisoner was assisting Mary Ann Butler to remove her furniture from one house to another. On their way, and about 9 o'clock in the evening, they stopped where a large number of persons were assembled at a political meeting, on the corner of Hudson avenue and Plymouth streets, Brooklyn. A quarrel ensued between the prisoner and a portion of the crowd, some one offering to bet that McClellan would be elected, and the prisoner offering to bet that Lincoln would be elected, in which, as his witnesses say, he was attacked and beaten, knocked down, and his clothes torn and his face covered with blood. At this time he fired a revolver, which took effect by a slight wound upon the head of one McKenna, a bystander. The prisoner then ran away, pursued by a multitude of persons crying out, "stop the murderer and kill him." The deceased police officer, Curran, joined in the pursuit, being about two yards in advance of the others, and at the distance of five blocks from the place where the affray commenced, seized the prisoner, who immediately exclaimed, "let go, or I'll shoot you." Curran had his head pressed against the prisoner's breast, and called for some one to catch the pistol. At this time Curran raised his head, when the prisoner fired the pistol and the former fell, fatally wounded. He was then in the uniform of the police force, having upon his person the usual cap and shield of the metropolitan force. The prisoner then fled, followed by the crowd. Several other shots were fired, but by whom does not distinctly appear, except from the prisoner's own declaration at the time. He continued his flight, and entered the store of a Mr. Markey, when he said, under apparent excitement, "look out, I have shot two men." Leaving Markey's store, he ran, still pursued by the crowd, into a place called Tammany Hall, where he was arrested by a body of policemen. At the time of the struggle the night was dark and raining. There was some contradiction and difference of statement between the witnesses, but the facts are substantially as I have given them. It was also proved upon the trial, that the prisoner was near sighted, the materiality of which will appear presently. One of the witnesses for the people, Daniel Cannen, says Curran was shot about four yards from the lamp post; and John Larkin, another witness for the people, testified that Curran and Yates, at the time, were within half a block of a lamp, but there was no light shining upon them; while John Maloy, another of the People's witnesses, testified that he lighted the lamp referred to at 6 o'clock that evening; which he qualified upon his cross-examination by saying he had no recollection of lighting that particular lamp that evening. There was no communication made to the prisoner at the time, that Curran was a police officer, nor was there any demand made upon him to surrender his person to the custody of an officer, nor was there any proof that the deceased was personally known to the prisoner.

In the progress of the trial it soon became a material inquiry whether the prisoner was aware of the character of his pursuer. There was no proof of actual knowledge, and then occurred the inquiry whether the jury might not be warranted to infer his knowledge from the attending circumstances. Hence the proof of the officer's uniform, and the prisoner's defective vision, the street lamp and the vicinity thereto of the prisoner at the time of the killing. All these circumstances became of vital consequence, for if there was nothing from which the prisoner's knowledge of the official character of the deceased might be inferred, the measure of the offense charged would descend from murder into one of the degrees of manslaughter. There was positive proof given by the prisoner that the lamp shed no light on the deceased and the prisoner at the time of the fatal rencounter. To rebut and take away the force of this evidence, the prosecution were allowed to prove, against the prisoner's objection and exception, by Sergeant Crowe, that on Sunday evening, three days before he was examined, and nearly four months after the occurrence, he went down to the lamp spoken of, to see by actual examination and experiment what effect the light of the lamp had, and how far its rays extended. He found it to be an ordinary street lamp — old fashioned square block lamp; and that the rays of light from it extended fifteen feet, and gave such light that he could read the headings of the articles in the newspaper Eagle; the night was cloudy. I submit that this was not evidence for any purpose. If it was material to the issue before the jury that the light was such at the time as must have apprized the prisoner of the character of his pursuer and the object of the pursuit (which all must admit), proof of the condition of the lamp and its power to diffuse light on the 21st of January was no evidence of its condition and power on the 1st of October preceding. The power of a street lamp to emit rays of light and diffuse them to any considerable distance, depends upon a variety of conditions — the purity and transparency of the medium through which the rays are projected; the material from which the light is generated, and the manner of its generation and diffusion; and, quite as much as anything else, the state of the atmosphere at the time. A flame proceeding from the best qualities of inflammable gas, and a light proceeding from the oils and fluids of domestic use, in their power of diffusing light at a given distance, hardly admit of a sensible comparison. Nor does the opaqueness or transparency of two different atmospheres to admit or resist the diffusion of such light. And the jury were allowed to convict the prisoner of a capital offense upon the assumed theory that the light at and around this street lamp was not different on the 21st of January last from what it was on the 1st of October preceding. There was no proof that the structure of the lamp was the same at the one time as at the other. Nor was there any evidence whether the combustible material used at either time was the ordinary inflammable gas, or some of the spirits and oils in domestic use; or what it was. The condition of the lamp and the extent of the diffusion of its rays of light at the time of the killing was legitimate evidence upon the principal question involved in the trial. But its condition and the distance to which the lamp which the witness, Sergeant Crowe, saw at the same place three or four months afterwards, shed its light at that time, was an element irrelevant and foreign to the issue, and could not fail to prejudice the prisoner in the minds of the jury, and lead them to a conclusion which they might not have adopted had the evidence been excluded. For these reasons, and not without hesitation, I think the judgment should be reversed. I am the more inclined to this conclusion because the jury were mistaken in the nature of the crime of which the prisoner was guilty. Carrying concealed upon his person a deadly weapon, was a great aggravation of his guilt. It was his misfortune to use it, with fatal effect, when pursued by a multitude of exasperated men, in a moment of great excitement and fear, upon the person of an inoffensive officer in the plain imperative discharge of a public duty. The deadly and destructive weapon, and the innocent character of the deceased policeman, account, perhaps, for the severe verdict rendered by the jury. Still it was not justified by the evidence. The premeditated design of the statute — the malice aforethought of the common law — was wanting. Nor was the act "imminently dangerous to others, evincing a depraved mind regardless of human life," within the meaning of the second subdivision of section five of the statute. Without one of these elements the crime was not murder in the first degree. Whatever we may think of the claim that the act was committed by the prisoner in the exercise of the right of self defense, it cannot be denied or doubted that his principal, if not sole effort, seemed to be to make good his escape from his pursuers.

The judgment should be reversed and a new trial ordered, at the Oyer and Terminer.