[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 125 I have been constrained to reach a different conclusion from that held by Judge O'BRIEN. I agree with him that as the guilt of the defendant was submitted to the jury on both claims of the People, first, that the deceased was killed with a deliberate and premeditated design to effect his death, and, second, that he was killed by the defendant while the latter was engaged in the perpetration of a felony or an attempt to commit one, if as to either claim the evidence *Page 127 was insufficient to justify the submission of the question to the jury the conviction must be reversed since it cannot be known on which ground the jury based its verdict. But I take issue with my associate on the proposition that there was any such inconsistency between the two claims as rendered it improper to submit both to the jury for determination. There was but a single crime charged in the indictment against the defendant, that of murder in the first degree, and the only issue to be determined by the jury was whether the defendant had been guilty of that crime. Under our statute (Sec. 183, Penal Code), so far as applicable to the case before us, proof either that the defendant killed the deceased with a deliberate and premeditated design to effect his death, or while the defendant was engaged in the commission of a felony or an attempt to commit a felony, though without any design to take life, established his guilt of the crime charged. "It is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence. If the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and part upon the other." (Murray v.N.Y. Life Ins. Co., 96 N.Y. 614.) So in this case it was not necessary that all the jurors should agree in the determination that there was a deliberate and premeditated design to take the life of the deceased, or in the conclusion that the defendant was at the time engaged in the commission of a felony, or an attempt to commit one; it was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as that offense is defined by the statute. Ever since the enactment of the Penal Code, and even before that time since the law of 1876, by which homicide in the commission of a felony was made murder in the first degree, it has been the practice, in prosecutions for that crime, to submit the case to the jury in both aspects, premeditated and deliberate design to take life and killing in the commission of a felony. (Buel v. *Page 128 People, 78 N.Y. 492; People v. Willett, 102 N.Y. 251;People v. Johnson, 110 N.Y. 134; People v. Meyer,162 N.Y. 357.) This is no new doctrine in the administration of the criminal law; on the contrary, the principle involved is very old. For far more than a century past it has been the practice, approved by all courts and text writers, to charge, by the use of several counts, the same offense as committed in different manners or by different means. "There is no objection to stating the same offense in different ways in as many different counts of the indictment as you think necessary." (Archibald Crim. Practice, 93.) "Every cautious pleader will assert as many counts as will be necessary to provide for every possible contingency in the evidence and this the law permits." (Wharton Crim. Law, sec. 424.) In this state the practice is directly authorized by statute. (Code Crim. Pro. sec. 279.) Where the several counts charge the same offense, the prosecution will not be compelled to elect on which count it will proceed. "It is every day's practice to charge a felony in different ways in several counts for the purpose of meeting the evidence as it may come out upon the trial; each of the counts on the face of the indictment purports to be for a distinct and separate offense, and the jury very frequently find a general verdict on all the counts, although only one offense is proved; but no one ever supposed that that formed a ground for arresting the judgment. If the different counts are inserted in good faith for the purpose of meeting a single charge the court will not even compel the prosecutor to elect." (Opinion of Chancellor, Kane v. People, 8 Wend. 203.) In People v. Rugg (98 N.Y. 537) the defendant was indicted for murder in the first degree as charged in separate counts, some alleging premeditation and deliberation, others killing in the commission of a felony. The defendant on the trial moved that the prosecution be required to elect on which count of the indictment it would proceed. The motion was denied and the jury rendered a general verdict of guilty. The judgment was affirmed by this court. It was held by the Supreme Court of the United *Page 129 States that a general verdict of guilty was good though one count of an indictment charged the offense to have been committed in a haven or bay, and another its commission upon the high seas. (U.S. v. Pirates, 5 Wheaton, 201.) The reasons for this practice are very clearly stated by Chief Justice SHAW inBemis's Webster Case (471). "To a person unskilled and unpracticed in legal proceedings it may seem strange that several modes of death, inconsistent with each other, should be stated in the same document; but it is often necessary, and the reason for it when explained will be obvious. The indictment is but the charge or accusation made by the Grand Jury, with as much certainty and precision as the evidence before them will warrant. They may be well satisfied that the homicide was committed, and yet the evidence before them leave it somewhat doubtful as to the mode of death; * * * take the instance of a murder at sea; the man is struck down, lies some time on the deck insensible, and in that condition is thrown overboard. The evidence proves the certainty of a homicide, by the blow or by the drowning, but leaves it uncertain by which. That would be a fit case for several counts, charging a death by a blow and a death by drowning, and perhaps a third, alleging a death by the joint results of both causes combined." In the case suggested by the learned judge it would certainly be unreasonable that the defendant should escape conviction because of difference of opinion among the jurors as to whether his victim was killed by the blow or by drowning, when all were convinced that the killing was effected by the felonious act of the defendant.
Nor is there the theoretical inconsistency between the two claims of the prosecution that has been assumed. It is not correct to say that if the offense was committed in one way it could not have been committed in the other. It is true that in the definition of the second manner in which the crime may be committed the statute reads: "Without a design to effect death." But this does not render absence of intent an essential ingredient of the offense, such as the killing or the commission of the felony, elements which the prosecution is bound to prove *Page 130 beyond a reasonable doubt. "Without a design to effect death" is to be interpreted as meaning regardless of whether there was a design to effect death or not. This rule applies in a certain measure to the definitions of the various grades of homicide so far as those definitions prescribe the absence of an element which, if present, would constitute a higher degree of crime. By section 184 of the Penal Code murder in the second degree is defined to be the killing of a human being with the design to effect the death of the person killed or another, but "without deliberation and premeditation." By sections 189 and 193 the offense is manslaughter when committed "without a design to effect death." It is not necessary, however, that the prosecution should prove beyond a reasonable doubt in the first case that there was no deliberation, or in the second that there was no design to effect death. On the contrary, the rule is that where there is reasonable doubt in which of several degrees of a crime the defendant is guilty he must be convicted of the lowest degree. (Code Crim. Pro. sec. 390.) So an acquittal on the merits on an indictment for manslaughter or for murder in the second degree will bar a subsequent prosecution for murder in the first degree (Wharton on Homicide, sec. 898; Penal Code, sec. 36), which would not be the law if a conviction under either of such indictments could not be sustained by proof establishing the higher offense.
The direct evidence, including that of the witness Harris, who, as has been said by my associate, was sufficiently corroborated, proved circumstances which clearly established that the deceased was shot by the defendant and his associates, without relying on their subsequent statements to that effect. At about half-past one in the morning of the homicide the deceased and the witness Warner were standing at the corner of Main and Grand streets in the village of Cobleskill when, as that witness testifies, they saw a party of four or six men, whom he could not identify, pass up Grand street. He then left the deceased, went to his room and was preparing for bed when he heard the sound of shooting, several shots. He went *Page 131 to the window and heard the barking of a dog. The noise appeared to come from the store of one Borst on Main street, a short distance from the place where he had been standing with the deceased. He immediately went to this store and found the body of the deceased there and several of the villagers present. Harris testified that the defendant and his associates turned off Main street and went towards the spot where the body of the deceased was found; that a few moments afterwards they returned, and that the defendant had a wound in his hand from which a bullet was proved to have been subsequently extracted, and that Hinch, another of the party, had a wound in the shoulder, from which, also, a bullet was afterwards taken. A hammer which one of the party had obtained from the tool chest which they had broken open was found at Borst's store a few feet from the place of the homicide and the chisels and other tools which they had taken were found in the vicinity. Quite a fusilade had occurred and bullets had entered the windows of neighboring stores. No other persons except the defendant and his associates were seen in the vicinity of the spot where the homicide occurred. After the shooting a party of several persons was observed by the witnesses running away from that place. From these facts the inference seems irresistible that the encounter in which the life of the deceased was taken occurred between him and the men who but a few moments before had gone towards the scene of the occurrence, the men whose tools were found at the spot or in its vicinity and two of whom bore evidence on their persons in the shape of bullet wounds that they had taken part in a recent affray. Indeed, it is not strenuously contended that the proof did not warrant the jury in finding that the deceased was shot by the defendant or his associates. The claim is that the evidence was insufficient to establish the premeditation and deliberation necessary to constitute murder in the first degree. It seems to me that the real question in this branch of the case is rather whether the jury was justified in finding that the killing of the deceased was criminal than the degree of the crime. Though the statement of the defendant *Page 132 or one of his associates to the witness Harris, "that they unexpectedly met a policeman and he fired at them and then they fired at him, and didn't know whether they hit him or not," was, as I have said, unnecessary to establish the connection of the defendant with the homicide, still, as it was put in evidence by the prosecution, the defendant was entitled to have it considered by the jury. The jury, however, was not required to believe it. The jurors could accept part and reject part; they could believe that the defendants shot at the policeman and disbelieve the statement that the policeman fired first. (People v. VanZile, 143 N.Y. 368.) Stated in the baldest way, but reciting its essential features, the case is this: A party of several persons start along the street to commit burglary on the post office; at the scene of their intended crime they meet the deceased, a police officer; an encounter takes place, shots are fired on both sides and the police officer is killed. There is no eye-witness to the occurrence except the defendants themselves, who state that the police officer fired first. Now, while the defendant and his associates were criminals, or, at least, contemplating crime, he is entitled to a fair measure of justice and the law is not to be strained against him however bad may be his character. But it is impossible to disregard the errand on which he was bond in determining what actually occurred at the time of the homicide and the inferences the jury might properly draw from the occurrence. The defendant and every one of the party at the time they left Albany were armed. If a man going out at night on a lawful errand should arm himself, and thereafter an encounter take place in which he takes the life of another person, a jury might well infer in the absence of proof of malice or of the details of the occurrence that he had either taken life in self protection or in the heat of passion arising in some altercation. But these defendants did not arm themselves to protect their persons or their property. There is no reasonable explanation of their going armed, other than that they intended to shoot any person who should obstruct the accomplishment of their crime or at least any one who might *Page 133 seek to apprehend them or prevent their escape. Starting out on such a mission and with such intent, they meet the police officer, shots are exchanged and the latter is killed. Which is the more reasonable inference from the occurrence, that the officer of the law seeing these persons who were strangers to him, while they were peacefully walking the street, having as yet given no evidence of any intent to commit an offense, sought without excuse or justification to shoot them, or that the defendant and his associates, fearing apprehension by the officer or being interrupted by him when they were in the attempt to commit a burglary, took his life in order that they might escape arrest? I think the jury was justified in adopting the latter view. If so, the deliberation and premeditation necessary to make out the crime of murder in the first degree could well be found to have commenced at Albany when the defendants started out on their predatory excursion; they had carried out the design then formed, to shoot any one who stood in their way.
I think the evidence was also sufficient to justify the jury in finding that the defendant and his associates were engaged in an attempt to commit a felony, to wit, a burglary, when they took the life of the deceased. "An act done with an intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime." As observed by Mr. Wharton (Crim. Law, § 2696), mere intent is not the subject of penal action and an overt act is essential to impart to the intent criminal responsibility. The question of what overt act is sufficient to constitute an attempt to commit a crime has been the subject of much discussion by both text writers and courts, and of some conflict in the decisions In the early English cases the view seems to have been adopted that to constitute an attempt the overt act must be the final one towards the completion of the offense and of such a character that, unless it had been interrupted, the offense itself would have been committed. The decisions in some of these cases seem to have been based on the phraseology of the particular statutes under which the indictments were *Page 134 framed. This extreme doctrine has not been accepted in this country, certainly not in this state. Thus it has been held that where a prisoner put his hand into the pocket of another intending to take its contents it was an attempt to commit larceny, although there may have been nothing in the pocket to steal. (People v. Moran, 123 N.Y. 254; Commonwealth v.McDonald, 5 Cushing, 365.) The question in this case, however, is not as to the subject of the intended burglary, but whether the defendant and his comrades had proceeded far enough in the execution of their design for a jury to find that they were engaged in an attempt to commit the crime, there having been discovered on the building no marks of force or violence. Mr. Wharton asserts the doctrine that mere preliminary preparations in character indifferent (here they were not indifferent in character) cannot be deemed sufficient to constitute an attempt to commit the crime (Sec. 181). This view does not seem to be fully accepted by Mr. Bishop and appears in conflict with the decision in People v. Bush (4 Hill, 133), where the defendant having solicited one K. to burn a barn and having given him a match for that purpose, was held properly convicted of an attempt to commit arson, although K. never intended to burn the barn. But assuming that mere preparation is not in all cases an attempt to commit the crime, it is well settled in this country that it is not necessary to constitute an attempt that the act done should be the last proximate one for the completion of the offense. "However attempt is viewed in England, the act need not, according to the American idea, be the next preceding the one which would render such substantative crime complete." (Bishop, sec. 762.) "The question whether an attempt to commit a crime has been made, is determinable solely by the condition of the actor's mind and his conduct in the attempted consummation of his design. So far as the thief is concerned, the felonious design and action are then as complete as though the crime could have been, or, in fact, had been committed, and punishment of such offender is just as essential to the protection of the public, as one whose designs have been successful." *Page 135 (People v. Moran, supra.) In People v. Lawton (56 Barb. 126) a conviction for an attempt to commit burglary was affirmed. The evidence showed that the defendant and an accomplice agreed to commit the burglary on a certain night; that in pursuance of such agreement they went to the store intended to be entered, carrying burglars' tools. When they arrived there they thought that the tools were not sufficient to effect an entrance and thereupon they started to go to a blacksmith shop to get a crow bar. Before entering into the blacksmith shop alarm was given and they were arrested. The case is cited with approval by Judge RUGER in People v. Moran (supra). I do not see how it is possible to distinguish that case from the one before us. I do not assert that in the present case merely procuring the tools with which to commit the burglary constituted an attempt to commit it, and it may be that merely starting on the road towards the building was also insufficient to constitute an attempt. But when the defendants reached the building a different question is presented. The going to the building with the purpose of breaking into it, having procured in furtherance of that design the necessary implements, seems to me to be a sufficient overt act. It may be asked at what point of their proceedings did the acts of the defendants constitute an attempt. It is difficult, if not impossible, to lay down any general rule by which it can be determined whether acts are too remote to constitute an attempt to commit the offense. While the defendants were at a distance from the building they might have changed their minds and abandoned the design. But if the jury believed that the defendant and his associates were at the post office reconnoitering or inspecting it with the intent to break it open, and that they would have done so had their design not been frustrated by the presence or interference of the deceased, the police officer, then I think it could properly find that they were engaged in an attempt to commit burglary. If one with intent to shoot another should procure a pistol for that purpose, that alone might not amount to an attempt to shoot him. It may be *Page 136 that if after procuring the pistol he took a conveyance to the residence of his intended victim, still that would not constitute an attempt. But if after this with his design unchanged he approaches the person he intends to shoot but is seized before he can draw the pistol, I think he is properly punished as having attempted to commit the crime. Whenever the acts of a person have gone to the extent of placing it in his power to commit the offense unless interrupted and nothing but such interruption prevents his present commission of the offense, at least then he is guilty of an attempt to commit the offense, whatever may be the rule as to his conduct before it reached that stage. This is clearly illustrated by Judge DANIELS in People v. O'Connell (60 Hun, 109), where the defendant was convicted of an attempt to commit assault in the first degree. There it was said: "Where the assault charged be made by means of a firearm or any other deadly weapon, it is necessary for the creation of the crime that the person intended to be assailed shall not be so far from the intended assailant as to be beyond all possibility of injury from him. But that is not an essential circumstance in the case of anattempt. For the assailant may load a firearm and then start towards the person to be assailed in order to attain reaching distance of him, or when the assault is intended to be made with an axe, which is the weapon mentioned in the indictment, the accused may obtain and raise it, intending to strike with it, when too far away from the person intended to be struck, and then approach towards that person and be intercepted before he can reach a position of danger to him, which would be an attempt to commit the crime charged. Each act would be an attempt to commit the crime charged. For a person who provides himself with an axe with which he intends to kill another, and afterwards approaches towards him to make that use of it, but is prevented from doing so by the flight of the other, or by being himself disarmed, or otherwise prevented from reaching his intended victim, commits acts tending to effect the commission of the crime within the language of this section of the Code." *Page 137
The objection to the sufficiency of the indictment is disposed of in the opinion of Judge O'BRIEN. There are no other questions raised on this appeal that require discussion. The case was submitted to the jury by the learned trial judge in a charge eminently fair, in which attention was called to every rule of law which safeguards the rights of a person on trial for his life or liberty. The jury has found the defendant guilty. I believe that verdict to be justified by the evidence, and that this court is not called upon to interfere with it.
The judgment should be affirmed.