Defendant was indicted in the county of Monroe for the crime of murder in the first degree committed on January 7, 1920. The indictment charges that he and Pearl Odell caused the death of one Edward J. Kneip. On a trial he was found guilty on April 23, 1920.
Defendant, a young machinist and musician by trade, formed an affection for a girl, Pearl Beaver, and after keeping company with her proposed marriage late in 1919. He was then twenty-two years old; she was about seventeen years old. She did not want to marry him, so she told him, because she had been wronged by Kneip and was, therefore, unworthy of Odell. However, they lived together for two weeks on Adams street in Rochester, were married on December 15, 1919, and went to live with Mrs. Arnold, who was defendant's stepmother.
Shortly thereafter the girl went into details about the Kneip affair and told defendant that she had been doped with poisoned chocolates by Kneip and her resistance to the first sexual act thus overcome; that she had afterwards had connection with him under promise of marriage; that he had proposed "unnatural things" to her, struck her, told her she was not the first girl he had broken in; that their relations had been broken off in June. She was wrought up and was threatening to commit suicide. Kneip had met her and insisted that she go out with him threatening to tell Odell about their previous relations if she did not. This also came to the knowledge of defendant.
Defendant did not know Kneip. He took the matter up with the police judge of the city of Rochester and with a *Page 484 lawyer called Judge Bryan with the idea of having Kneip prosecuted for rape. They told him that without corroboration of his wife's story a conviction could not be had, but that Kneip's confession would be corroboration. Defendant then on January third purchased handcuffs. He had a revolver which he says was worthless, and also a gold badge. On January seventh he went in an automobile to Gleason's where Kneip worked, having previously sought him at Saucke's, and when he came in at six-twenty-five P.M., the night time clerk having identified him, put the handcuffs on him, handcuffed him to the robe rail of the car and took him to the Arnold house, where in the presence of Mr. Arnold he admitted that he had repeatedly had sexual intercourse with Pearl. Defendant then took Pearl and Kneip in the car and started away. Defendant says that, having obtained the confession, he started for police headquarters (but if so he went by a devious route); that the car stalled on Griffith street; that Kneip coarsely expressed a desire to urinate; that defendant took him out of the car to a convenient place and upbraided him for using such language before Pearl; that Kneip said she was a little whore anyway. Deceased did not at that time know that defendant was Pearl's husband. He had called himself Detective Arnold and Kneip seems to have thought that he was under arrest, for he offered no resistance yet seemed in no fear. Odell was slight and Kneip was the bigger and stronger. Defendant's theory here is that he was so enraged at Kneip by this comparatively trivial incident that he gave up the idea of going to police headquarters and decided to take the law into his own hands. Defendant then hired a taxicab. The three drove into the country, out the Scottsville road to the Mosquito Point road. At the corner they got out, paid the driver of the car and discharged him. Defendant had a file and Kneip had a small knife attached to a watch chain. They then walked westerly to a culvert of the old Genesee Valley canal, turned on to the *Page 485 towpath and went along several hundred feet to a tree. The facts thus far are undisputed.
On the morning of January eighth, Kneip's dead body, dressed only in a union suit and a blue shirt, was found near the culvert. The skull was crushed and macerated and there were cuts on the body. Death was due to the fractured skull. A large club rested on the shoulders and side of the head. Snow was on the ground; handcuffs, pieces of the revolver, the machinist's file, a knife and chain, a bundle containing Kneip's clothing and the heel of Pearl's shoe were found in the vicinity. Footprints and blood stains were also found, indicating that a struggle had occurred in two of three areas; the first around the base of the tree, the second about fifteen feet away, in a third area north of the second the snow was also trampled.
Mrs. Odell and the defendant were arrested and on the night of January eighth Odell made a statement to the coroner and the district attorney which was taken stenographically and read in evidence on the trial. After stating the facts in substance as previously narrated, he went on to say that when they left the taxicab he handcuffed Kneip to the tree and told Pearl "to do to him what he did to you;" to pay him back; that she started hitting him with a file; he went down; defendant hit him with the revolver; they took the handcuffs off; thought they had killed him, but went around to see if he were really gone. Kneip then jumped up and hit him. They had a fight in the second area; Kneip went down again; they took his clothes off and hid them; defendant did this for his wife; he undertook to hide the body; dragged it to the third area; defendant hit Kneip once with a chunk of wood; it was dark; couldn't say that he hit him on the head; also cut him with a knife. Kneip offered no resistance to being taken along handcuffed; Odell says he did not mean to kill him. No explanation is offered of Kneip's lack of resistance, when he discerned the purpose *Page 486 of the Odells, but he may have been intimidated by the unloaded old rusty revolver.
On the trial, defendant testified in his own behalf. Pearl also testified but stopped with the incident on Griffith street above mentioned. She also being under indictment, under advice of counsel, declined to give further evidence. Defendant said on the trial that he started out to take Kneip to police headquarters and decided to take him into the country to punish him for what he had done to Pearl after they left Griffith street; that they handcuffed him to the tree and hit him — Pearl with the file, he with the revolver, both of which came apart; they took off the handcuffs and Kneip went down to his knees, the blood coming down his face. They did not think Kneip was dead but released the handcuffs so he could get up and go, and they started home; went back to get a letter out of Kneip's pocket. As they bent over him, he jumped up and attacked defendant. Pearl got him off and he pursued her. Defendant in turn pursued Kneip who grappled with him again and was choking him to unconsciousness when Pearl came up behind Kneip. When defendant regained consciousness Kneip was on the ground, dead. Then they took off his clothes and carried the body to the culvert. Odell suggests that he might have struck the dead body, which would perhaps explain the fractured skull as he would desire us to understand it.
The case is free from exceptions to the admission or exclusion of evidence. Defendant's counsel made no requests to charge the jury and took no exceptions to the charge as made. No questions of law raised by exceptions are argued or arguable. It is now contended that the People failed to make out their case; that the evidence was insufficient to justify the jury in finding beyond a reasonable doubt a premeditated and deliberate intent on the part of defendant to kill Kneip; that the case was improperly submitted to the jury. *Page 487
Defendant made preparations to give Kneip a brutal punishment. His motive to avenge his wife's wrongs is clearly revealed. When he talked to the lawyer Bryan he said: "Such a man ought not to be allowed to live, he ought to be killed." Nothing could be more deliberate than the formation and execution of his plans to take Kneip to the scene of the killing. In his statement he says, "We thought we had killed him," and a reasonable inference is that they went back to make sure that he was dead and, if he was not, to finish the job. The condition of Kneip's skull indicates the deadly nature of the assault upon him.
While the jury might on the evidence have found defendant guilty of the crime charged in the indictment, or of a lesser crime, an acquittal would not have been justified unless defendant's testimony was sufficiently convincing to create a reasonable doubt as to whether the admittedly severe beating that he took part in inflicting on Kneip would have caused death and as to whether after that was all over and while defendant was in retreat and helpless, Pearl had killed Kneip in defense of her husband's life. Defendant made no claim on the trial that he killed Kneip in self-defense and the evidence contains no suggestion that he did. On the contrary, he testified that he did not kill Kneip; that he was unconscious when the killing occurred. The only reasonable inference from this statement alone is that his wife did the killing when he was unconscious. The jury found against the defendant on this point and the conviction must be sustained unless (Code Crim. Pro. § 528) it appears that he did not have a fair trial.
The instructions are subject to criticism not wholly technical in this regard. The court's charge is of supreme importance to the accused. It should be the safeguard of fairness and impartiality and the guarantee of judicial indifference to individuals. Defendant's case on its own facts was before the jury, not the case of the mere abstraction *Page 488 — "a person charged with crime," yet the charge is largely a statement of legal definitions of the degrees of felonious homicide, of reasonable doubt and the like, given abstractly and with little if any material reference to the evidence. The better practice for the court in a criminal case, emphatically in a capital case, even when uninvited by the defendant, is to present to the jury the case on trial in all the phases in which the jury ought to consider it. (People v. Fanning, 131 N.Y. 659, 663.) Much latitude must be allowed in the application of this precept, but to charge in such a case as this without adverting in any respect to the testimony might result in harmful prejudice. The trial judge should not as a rule limit himself to stating good set terms of law culled from the codes and the reports. Jurors need not legal definitions merely. They require proper instructions as to the method of applying such definitions after reaching their conclusions on the facts.
While the failure to comment on the details of the testimony is not in itself everywhere and always error, and a general charge is all that is required by Code of Criminal Procedure (§ 420), a more serious oversight appears in the omission of the trial justice in this case to present to the jury in any definite way one of the questions that defendant might have sought to have presented — did defendant cause the death of Kneip? This omission inadvertently made the charge less full and fair than it should have been for the reason that, in face of the rule that the court has no power to direct or even advise a verdict of guilty, the trial justice seems in several places to be instructing the jury to convict, although informing them that they are exclusive judges of the facts. In one place he says that he has stated "the law which must guide you in determining of which of thesecrimes and of which degree this defendant has been provenguilty here," and at the end of the charge, when explaining the rule as to conviction of a lower degree of crime than that charged *Page 489 in the indictment, he says: "If in your consideration of this case, gentlemen, you have a reasonable doubt as to whether or notthis man is guilty of murder in the first degree and you have no reasonable doubt as to whether he is guilty of murder in the second degree your verdict must be one of murder in the second degree. If you have a reasonable doubt with regard to these two degrees of murder but have no doubt as to whether or not he is guilty of manslaughter in the first degree, you must give him the benefit of these doubts and convict him of manslaughter in the first degree. I do not think the facts in this case warrant my submission to you of the question of manslaughter in the second degree. Take the case." It seems to have been tacitly assumed all around, although defendant swore that the last moment he saw Kneip alive Kneip was choking him into unconsciousness, that he had in fact caused Kneip's death. The jury had been correctly instructed, in the language of the Penal Law, that no person can be convicted of murder or manslaughter unless the fact of the killing by the defendant is established as an independent fact beyond a reasonable doubt, but the trial justice thereafter said that he did not mean to exclude from the consideration of the jury the evidence of the defendant that he at no time intended to kill the decedent and told them to give such evidence the weight to which it was entitled. This is practically the only reference to the evidence in this case contained in the charge. If the defendant's evidence did not establish beyond a reasonable doubt, motive, preparation and intent to commit a brutal assault and if death by violence as an immediate sequence did not indisputably appear, and if the trial justice had not stated generally in the language of the Code of Criminal Procedure that in case of a reasonable doubt as to whether his guilt is satisfactorily shown a defendant is entitled to an acquittal, it might be said that the omission, under the circumstances of this case, to discuss the evidence on which this defendant *Page 490 would be entitled to an acquittal was substantial error and that defendant had not had a fair trial. We think, however, that we should not reverse the judgment because of this omission. "It is inconceivable that the verdict of the jury would have been different had it been" supplied. (People v. Sarzano, 212 N.Y. 231. ) It is not suggested that the trial justice committed the error of influencing a conviction. His charge, so far as he went, was colorless and, as we have heretofore indicated, defendant's counsel was at fault in failing to request a proper instruction, but if its defects are allowed to pass unnoticed it may be accepted as an approved form, safely to be followed in other cases. To withhold such implied approval, it has been somewhat fully analysed.
On the merits, however, the conviction should be affirmed for the reason that the substantial rights of defendant were not affected and justice does not require a new trial.
The judgment of conviction should be affirmed.