James E. Gavagan, Hoosick Falls, for defendant-appellant.
Russell G. Hunt, Dist. Atty., Albany, for the People, respondent (George N. Meyl, Albany, of counsel).
Before FOSTER, P. J., and BERGAN, HALPERN, IMRIE and ZELLER, JJ.
The defendant was indicted for the crime of attempted murder in the first degree and he was convicted of that charge.
The tragic events which led to the charge all took place in Albany, New York, during the afternoon and evening of July 22, 1953. The defendant was a young man twenty-three years of
age. He had had little schooling and, after his discharge from military service in Korea, he found employment as a laborer. On the day in question, at about 2 p. m., he had [143 N.Y.S.2d 310] a quarrel with his wife and left the house in anger. Instead of going to work, he stopped for a few glasses of beer. He then went to a moving picture theater from which he emerged at about 3:30 p. m. From that time to about 9 o'clock in the evening, he drank beer more or less continuously at a large number of taverns. While he testified that he thought that he knew what he was doing all evening, he said that he felt 'gay' and there can be little doubt that he was intoxicated.
About 10:30 p. m., while the defendant was walking around trying to sober up, he came upon a young girl who was wheeling a baby carriage in front of her home and the defendant 'grabbed [her] arm and tried to get [her] into the house'. She called for help and her father, a minister, came to her rescue. The defendant thereupon struck him in the face and kicked him in the groin and knocked him against a parked car. A man sleeping in the parked car jumped out and the defendant then struck him. When the minister's wife attempted to stop the fight, the defendant attacked her. Several others joined the fight and the defendant took off his belt and swung the belt around him, hitting one man in the mouth with the belt buckle and knocking out a tooth. Shortly thereafter, the police arrived and the defendant was placed in the police car and taken to the police station.
The defendant was charged with disorderly conduct and subsequently additional charges were placed against him for assault upon the minister and his wife.
The defendant was booked at the police station at 11:05 p. m. He was locked in one of the cells of a cell block in the station house. The defendant was in a state of wild excitement and persisted in creating a disturbance. He demanded that he be allowed out of the cell to telephone his wife. He cursed and yelled loudly and shook the bars of the gate of his cell repeatedly to attract attention and kicked the gate in an effort to make more noise. He also repeatedly struck his head against the steel plates forming the wall of the cell.
There is a dispute as to what took place thereafter. The proof by the People's witnesses, was as follows: The sergeant on duty in the police station directed a patrolman to see what the trouble was. The patrolman reported that the defendant was hitting his head against the steel sides of the cell and was swinging his shoes about his head and shouting threats: 'Get
out of here you * * * or I'll kill one of you * * * policemen'. He reported to the desk sergeant that he was unable to quiet the defendant and the sergeant then asked Sergeant Dunney to talk to him to try to quiet him down. Sergeant Dunney talked to the defendant through the bars of the gate but was unable to quiet him. He concluded that the defendant was mentally disturbed and that he ought to be taken to a hospital equipped to deal with such persons. At the Sergeant's request, a patrolman got a key to the cell block and pulled the lever which controlled the gate of the cell in which the defendant was confined. Sergeant [143 N.Y.S.2d 311] Dunney then pushed the gate open and entered the cell. As he did so, the defendant shouted 'Get out of here or I'll get you' and threw his shoes at the Sergeant. The Sergeant dodged the shoes and the defendant then made a flying dive, catching the Sergeant about the waist. The Sergeant got a headlock on the defendant and they wrestled about in the cell. In the course of the struggle, the Sergeant's belt, carrying his holster and revolver, swung around so that the revolver came within the defendant's reach. The defendant thereupon pulled the revolver from the holster and shot the Sergeant three times. (The safety clip of the Sergeant's holster had been broken two or three years earlier and the Sergeant had not had it repaired.)
When the other officers entered the cell, they found the Sergeant on top of the defendant holding him down but the defendant still had the gun in his left hand. One of the officers, pursuant to the Sergeant's direction, took the gun and struck the defendant on the head with the butt of the gun and rendered him unconscious.
The defendant's version of the occurrence was a very different one. He testified that Sergeant Dunney had told him before he entered the cell that, if he, the defendant, did not quiet down, he would give him something to yell about and that the defendant had replied that 'he wasn't big enough'. Thereupon, Sergeant Dunney had the cell gate unlocked and entered the cell and, as he did so, the defendant threw his shoes at him. The defendant claims that the Sergeant then drew his revolver and held it by the barrel and advanced toward the defendant. The defendant thereupon dove at the Sergeant, grabbed him about the waist and they went down to the floor, struggling. According to defendant, the Sergeant was holding the gun by the barrel and the defendant had 'ahold of the handle' and the Sergeant was trying to get the gun free so that he could use it as a club. While they were struggling, the revolver went off three times.
It thus appears that it was the defendant's contention that he had initially engaged in the struggle in self-defense and that, in the course of the struggle, the revolver had gone off accidentally. The People, on the other hand, contended that there never had been any occasion for self-defense and that the defendant had been the aggressor in the attack. This issue was resolved by the jury in favor of the People and, since that portion of the jury's findings is supported by the evidence, no further consideration need be given to the claim of self-defense.
The jury found the defendant guilty of attempted murder in the first degree as charged in the indictment and the defendant was sentenced to a term of 9 to 20 years.
The defendant's claim of self-defense having been rejected by the jury, the jury would unquestionably have been justified in finding the defendant guilty of some kind or grade of crime, but the crucial question in this [143 N.Y.S.2d 312] case is whether the jury was justified in finding the defendant guilty of an attempt to commit the most serious crime under the law, the crime of murder in the first degree. The trial court had also submitted to the jury the crime of assault in its various degrees. If the defendant had been convicted of assault in the first degree, the maximum sentence would have been 5 to 10 years and if he had been convicted of assault in the second degree it would have been 2 1/2 to 5 years.
The heavy sentence imposed upon the defendant thus rests upon the jury's finding that the defendant was guilty of the crime of attempted murder in the first degree which requires proof that the attempt was committed 'From a deliberate and premeditated design to effect the death of the person killed'. § 1044, subd. 1, Penal Law.
As I analyze the case, there are two principal questions upon this appeal: (1) whether the finding of deliberation and premeditation by the jury was supported by the evidence; (2) whether the court's charge on the subject of intoxication as it related to deliberation and premeditation was an adequate and correct one.
Upon the People's own version of the occurrence, which we must assume was the one which was accepted by the jury, it seems clear to me that the evidence did not warrant a finding by the jury that premeditation ...