The case for the People was that the defendant was engaged with six other persons in the concerted commission of a robbery when one of his confederates shot and fatally wounded a police officer. On that theory of the trial (as the judge told the jury), the defendant could be found guilty only of murder in the first degree though there was no design to kill. (Penal Law, § 1044, subd. 2.) Accordingly the defendant's request for submission of the degrees of homicide was refused. The verdict was: "We find the defendant guilty of murder in the first degree."
In finding a person guilty of such a felony murder, the jury "may, as part of its verdict, recommend that the defendant be imprisoned for the term of his natural life." (Penal Law, § 1045-a.) Respecting this power of the jury, the trial judge charged as follows: "There is no fixed law as to that recommendation. All I can say is that the law no doubt presupposes that the jury will be guided by a sense of duty, by a sense of fairness, by a sense of the rights of all parties, inmaking up their minds whether or not there are extenuatingcircumstances of such weight as could justify a recommendation. * * * You will determine all the features of the case, the behavior of the defendant at the place of the attempted robbery, his age, the circumstances under which he acted, and determinethe rights of the community and the rights of police officers toprotection in their lives while they are acting in the course oftheir duty; and make up your minds as fair judges, as you would if you were going to impose sentence yourself, as to whether there should be such a recommendation." (The emphasis is mine.) These admonitions, as I read them, limited too strongly against the defendant the power given to the jury by section 1045-a.
"Extenuating circumstances" must be rare in a case of guilt of felony murder. The constructive nature of the offense — murder from implied malice — negatives the idea of palliation. (SeePeople v. Giro, 197 N.Y. 152, 157, 158.) Where there is an issue in respect of the intoxication of the accused or of duress practiced upon him, the *Page 525 degrees of homicide must be submitted to the jury (People v.Cummings, 274 N.Y. 336), and in that case a verdict of guilty of murder in the first degree signifies that no mental limitation excused the defendant. It follows, I think, that there was no valid reason why the jury should have been told (as in effect they were told) that section 1045-a contemplates only cases of felony murder committed in "extenuating circumstances."
The evidence disclosed nothing at all that could extenuate the killing of the police officer. Consequently the pronouncement of the court — that the jury should "determine the rights of the community and the rights of police officers to protection in their lives while they are acting in the course of their duty" — must have meant that a verdict of guilty ought not to include a recommendation of life imprisonment of the defendant. Such a direction cannot be reconciled with the unqualified letter of section 1045-a that "as part of its verdict" a jury "may" recommend life imprisonment for felony murder.
I cannot escape the conclusion that the charge of the trial court may have substantially lessened the right of the defendant to have the jury say whether he should be relieved of the death penalty. It is my judgment also that it is a mistake to justify this departure from the principle that the force of a plain and simple statute should not be weakened with the jury by qualifying words. (Cf. People v. Fitzgerald, 156 N.Y. 253, 266.)
I vote to reverse the judgment of conviction and to grant a new trial.
LEHMAN, Ch. J., FINCH and RIPPEY, JJ., concur with CONWAY, J.; LOUGHRAN, J., dissents in opinion, in which SEARS, J., concurs; LEWIS, J., taking no part.
Judgment of conviction affirmed. *Page 526