
    The People of the State of New York, Appellant, v. Leroy Louis and Henry Thomas, Respondents.
    Argued February 13, 1956;
    decided April 27, 1956.
    
      
      Daniel V. Sullivan, District Attorney (Walter E. Dillon of counsel), for appellant.
    I. The trial court’s refusal to charge, as requested, was proper. (People v. Deacons, 109 N. Y. 374; People v. Brasch, 193 N. Y. 46; People v. Lytton, 257 N. Y. 310; People v. Gold, 295 N. Y. 772; People v. Roach, 215 N. Y. 592.) II. It is not the function of the jury to pass upon the sufficiency of the additional evidence required by section 395 of the Code of Criminal Procedure. (State v. Webb, 239 Iowa 693; Commonwealth v. Stites, 190 Ky. 402; People v. Cuozzo, 292 N. Y. 85; People v. Conroy, 287 N. Y. 201; People v. Wagner, 29 Cal. App. 363; People v. Chan Chaun, 41 Cal. App. 2d 586; State v. Howard, 102 Ore. 431; Bennett v. State, 95 Tex. Cr. Rep. 422; Avon v. State, 95 Tex. Cr. Rep. 155.) III. Defendants conceded that the additional proof required by section 395 of the Code of Criminal Procedure had been established. (People v. Walker, 198 N. Y. 329; People v. Cannon, 139 N. Y. 645; People v. Blanck, 212 App. Div. 578; People ex rel. Cohen v. Murphy, 254 App. Div. 797.) IY. The statement in the trial court’s charge that certain facts were not disputed was proper. (People v. Flanigan, 174 N. Y. 356.)
    
      John F. Wilkinson, Samuel Morris and Harry Kraf for respondents.
    I. The order of the Appellate Division should be affirmed. (People v. Lewis, 271 App. Div. 1050; People v. Hassan, 196 App. Div. 89.) II. The statement in the trial court’s charge that certain facts were not disputed was improper.
   Fuld, J.

Alex Brustofsky, 71 years of age, was killed by two men in the course of a holdup committed in the hallway of the apartment house in which he lived. Defendants were charged with murder in the first degree, convicted and sentenced, upon the jury’s recommendation, to life imprisonment. The Appellate Division reversed the judgments of conviction solely on the law and ordered a new trial; in its view, the trial court had erred in not instructing the jury respecting the “ additional proof,” required by section 395 of the Code of Criminal Procedure, to support a confession.

Both defendants had admitted robbing Brustofsky. They stated, to the police and to the district attorney, that they had attacked the old man and that, while one of them grabbed and held him from behind and ‘ ‘ mugged ’ ’ him, by placing his arm about his throat and squeezing, the other struck him on the head and in the stomach. Their victim thus rendered quiescent, they removed $1.15 from his pockets and left him on the floor of the hallway where he was found dead some ten or fifteen minutes later. Evidence that Brustofsky had been killed, choked to death, came from the medical examiner who had performed the autopsy and such proof stood uncontradicted and undisputed. In fact, the defense itself, in summation as well as on the argument of motions to dismiss the indictment, explicitly conceded that the “body” bore “ marks of homicidal killing ” — counsel for one defendant declaring that “ Mr. Brustofsky was brutally killed. There is no question about it ”, counsel for the other asserting that he had been ‘ ‘ strangled by someone.”

The summations concluded, the judge charged the jury. In every prosecution for a homicide, he declared,1 ‘ the law requires proof of the death of the deceased ’ ’, adding that no one ‘1 can be convicted of murder unless the death * * * is established by direct proof and the fact of the killing by the defendant or defendants is established beyond a reasonable doubt.” Then, becoming more specific, he instructed that the People ‘1 must establish to your satisfaction beyond a reasonable doubt, first, that Mr. Brustofsky is dead; second, that he met his death as a result of some criminal agency, in other words, that he was killed;” “third,” that defendants, “acting together and in concert, were engaged in an attempt to commit the crime of robbery ” upon Brustofsky; and, “fourth,” that he “was killed by one of these defendants during the hold-up If, continued the court, the prosecution failed “ to establish any or all of these propositions ”, or if the jury entertained “ a reasonable doubt” as to any of them, the defendants “must be acquitted.” Then, finally, having in mind the defense concessions made but a short time before, the court added, ‘ ‘ I think it is safe to say that Mr. Brustofsky is dead, that he met his death as a result of some criminal agency, and it is not disputed that he was killed.”

After the judge had finished his instructions, defendants asked him to charge — and this was the very language suggested — “ Section 395 of the Code of Criminal Procedure, confession by a defendant when evidence and its effect” and that “in addition to a confession they need additional evidence or additional testimony ”, The judge declined these requests, and it is that refusal which moved the Appellate Division to reverse. While that court’s statement, that “ the jury must be given the opportunity of passing upon the sufficiency of the [additional] proof to warrant a conviction ’ ’, undoubtedly expresses the rule in the abstract, we perceive no basis for its application in a case such as the present.

Insofar as pertinent, section 395 of the Code provides that ‘ ‘ A confession of a defendant * * * is not sufficient to warrant his conviction, without additional proof that the crime charged has been committed.” The meaning of that provision 1 ‘ is that there must be some other evidence of the corpus delicti besides the confession, the purpose being to require some proof of the death, and the violence which caused it, outside of and beyond the mere confession of the prisoner. In a case where the body is not found, and there is no proof of violence or of death except by the confession of the accused, that confession will not suffice.” (People v. Deacons, 109 N. Y. 374, 378.) The object of the statutory requirement, this court has observed, is to avert “ The danger that a crime may be confessed when [in fact] no such crime # * * has been committed by any one ”. (People v. Lytton, 257 N. Y. 310, 314; see People v. Brasch, 193 N. Y. 46, 58 et seq.; People v. Deacons, supra, 109 N. Y. 374, 377-378.)

There is, of course, no such danger here. Defendants were charged with murder, not robbery and, accordingly, there was no need for evidence, separate and apart from the statements, of the underlying felony. (See People v. Gold, 295 N. Y. 772; People v. Cuozzo, 292 N. Y. 85, 92; People v. Lytton, supra, 257 N. Y. 310, 314; People v. Roach, 215 N. Y. 592, 600-601.) Since their “ confessions ” spoke only of the commission and perpetration of that felony, proof of the death and the murder had of necessity to come from a source outside of them, and the peril of a conviction based solely upon confessions was nonexistent. The statements served merely to identify defendants as robbers, the evidence that their victim was dead and that he had died from the application of criminal force having been established, beyond all possible doubt, “ by direct proof ” (Penal Law, § 1041).

If, however, the statements were to be read as confessions of murder, then the demands of section 395 were fully satisfied by the finding of Brustofsky’s body, bearing marks of murder, “ tokens of a fatal wound”. (People v. Lytton, supra, 257 N. Y. 310, 314.) In view of such proof, which came from the medical examiner, and of the concessions by the defense that Brustofsky had been brutally killed ”, strangled by someone ”, the trial court was thoroughly justified in refusing to charge defendants’ requests, cryptic and ambiguous as they were in any event. If the requests suggested the need for evidence, in addition to the confessions, of the underlying felony, they were based, as we have seen, on an erroneous view of the law and were for that reason properly refused. (See, e.g., People v. Gold, supra, 295 N. Y. 772; People v. Lytton, supra, 257 N. Y. 310, 314.) If, on the other hand, they suggested that there had to be “ additional proof ’ ’ that Brustofsky was dead, the victim of criminal violence, they were likewise properly refused as unnecessary, for, as already noted, defendants not only had accepted as indisputable his killing by criminal means, but had in so many words conceded both that fact and proof of it. By the same token, no fault may be found with the trial judge’s observation that ‘ ‘ I think it is safe to say that Mr. Brustofsky is dead * * * and it is not disputed that he was killed.” (See People v. Jackerson, 247 N. Y. 36, 38; People v. Walker, 198 N. Y. 329, 335; see, also, 9 Wigmore on Evidence [3d ed., 1940], §§ 2588, 2590.)

The Appellate Division, on a review of the record, found the evidence sufficient to justify the conviction of defendants, its order reciting that it “ considered the questions of fact and # * * determined that it would not grant a new trial upon those questions.” Since the reversal was on the law and since guilt was established beyond a reasonable doubt and no error of law committed, there must be a reversal of the decision below and a reinstatement of the judgments of conviction.

The order appealed from should be reversed and the judgments of conviction reinstated.

Dye, J.

(dissenting). I dissent. These defendants are each charged with the crime of murder in the first degree for having willfully and feloniously killed Alex Brustofsky (Penal Law, § 1044, subd. 2). At the trial the People adduced proof pointing circumstantially to these defendants including proof by a medical examiner to the effect that the victim met his death by strangulation which, in his opinion, had been caused by the application of pressure such as, for instance, by an arm encircling the dead man’s throat. In addition, the court received in evidence, over the defendants’ objection, statements in the nature of confessions voluntarily made by each defendant to police officers while they were being questioned as suspects. Their statements dealt primarily with the planning and consummation of an independent felony, that is, robbery, but were not broad enough to constitute a confession of the homicide. We thus have the situation in which the independent felony fixing the identity of the crime charged,> i.e., murder in the first degree, is admitted, but the crime as charged is denied.

At the close of the People’s case the defendants respectively moved to dismiss the indictments on various grounds including the lack of additional proof to sustain a conviction based on the so-called confession as required by section 395 of the Code of Criminal Procedure which motions the court denied. The defendants then rested. The case was sent to -the jury on a comprehensive though stereotyped general charge in which reference was made to that part of section 395 which deals with the admission of a confession and which, when voluntarily made, the court characterized as “ evidence of the most satisfactory character ”. In addition, the court in effect told the jury that the corpus delicti had been established as matter of law when he stated in his charge ‘ ‘ I think it is safe to say that Mr. Brustofsky is dead, that he met his death as the result of some criminal agency, and it is not disputed that he was killed ’ ’. At the close of the main charge, counsel for the respective defendants requested the court to charge that part of section 395 of the Code of Criminal Procedure providing that a confession “ is not sufficient to warrant a conviction, without additional proof that the crime charged had been committed ”. This request, in each instance, was refused except “ as already charged ”.

In this setting it seems all too clear that the consequence of the statement was to effectively withdraw from consideration by the jury an essential element necessary to establish the corpus delicti and that this, together with a refusal to charge, as requested, combined to prejudice these defendants in a right so fundamental as to require a new trial. I say this in full recognition that, in a trial for homicide perpetrated in the commission of another and independent felony, a confession is sufficient evidence to sustain a conviction whenever there is evidence corroborating the homicide such as, for instance, the dead body bearing marks of criminal violence, and that it is not necessary that the corroboration extend to the independent felony (People v. Lytton, 257 N. Y. 310; People v. Joyce, 233 N. Y. 61), but that is not to say as matter of law the weight of such evidence should be taken from the jury (cf. People v. Gold, 295 N. Y. 772). The statements and ruling of this Trial Judge had the effect of taking from the jury the question as to the weight of the evidence respecting the establishment of the corpus delicti. In capital cases such as this, I do not think it ‘6 safe ’ ’ as matter of law to tell the jury that the victim has been killed by criminal agency. While it may be said that everyone in the courtroom knew that the reason for the trial was the finding of Brustofsky’s dead body bearing marks of criminal agency, indicating that he had been killed, nonetheless that fact—however obvious — was primarily for the jury to determine and not a question for the Trial Judge to dispose of by an offhand remark such as here made, the import of which is emphasized by his subsequent refusal to charge section 395. The circumstance that counsel for the defendants during summation seemed also to take that fact for granted, does not operate to deprive the jury of their function, particularly since the homicide had not been admitted by these defendants, nor could counsel in summation admit it for them and, as I read the record, I do not think they did. We must keep in mind that the confession as to the independent felony was properly before the jury. From then on it was only a short step to a verdict of guilty of the crime charged which unquestionably was made even shorter by the comment foreclosing their duty respecting the corpus delicti. In such a situation the Trial Judge, as the Appellate Division has correctly pointed out, should have made some proper charge respecting the additional proof ”. I agree with this and accordingly vote to affirm the order appealed from and grant a new trial to each defendant.

Conway, Ch. J., Desmond, Van Voorhis and Burke, JJ., concur with Fuld, J.; Dye, J., dissents in an opinion in which Froessel, J., concurs.

Order of Appellate Division reversed and the judgments of the County Court reinstated.  