
    The People of the State of New York, Resp’ts, v. Edward A. Deacons, App’lt.
    
      (Court of Appeals,
    
    
      Filed May 4, 1888.)
    
    1. Criminal law—Murder—Sufficiency of evidence of deliberation.
    It appeared from the confession of the defendant that he struck the deceased with his club and then choked her so that he thought she was dead. He then put a cloth under his victim’s head to prevent blood stains on the floor, and opened the trap-door leading into cellar to hide the body. He then lifted Mrs. Stone in a manner which he said he knew how to do without getting blood stains upon himself, carried her down the stairs when she slipped from his hands, and at that moment revived. She fought desperately, but the defendant then strangled her with a cloth tied about her neck. Held, that the jury was warranted in believing that if his own account was true he strangled the deceased for the deliberate purpose of escape and concealment.
    2 Same—What sufficient to pbove a felony undeb Laws 1885, chap. 490.
    The defendant who was a tramp entered the house of Mrs. Stone without permission or invitation, and as soon as discovered was ordered out. He barred the way out of the house and prevented Mrs. Stone, who was alone in the house, from going for help, and laid his hands upon her shoulder or seized her by the arm, Held, that the prisoner was engaged in the commission of felony within Laws of 1885, chap. 490, § 4. That there was in the conduct of the prisoner, not only the threat of an assault, but the fact of an assault by grasping her person. There may be a threatening gesture as well as a threatening word.
    3. Same—Who a tbamp within said law.
    One who was a tramp, in fact, when he reached the age of sixteen, would be a tramp within said law and would not come within the exception of section 6 thereof, if he committed an act therein prohibited at the age of sixteen years and one month.
    4. Same—Evidence—What sufficient additional evidence to waebant CONVICTION ON CONFESSION—CODE CBM. PbO., § 395.
    The finding of the dead body of Mrs. Stone, with the unmistakable marks of a murder committed, was sufficient additional proof that the crime of murder, charged in the indictment, had been committed, to warrant a conviction upon the confession of the prisoner. Code Grim. Pro., § 395.
    5. Evidence—Who competent.
    That a spot or stain is blood, may be proved by any person who has observed it and is able, from such observation, to state the fact.
    6. Evidence—Weight of—Whom juby may disbelieve.
    The jury were not bound to believe the explanation of a man who, cooly and under oath, acknowledged himself to be an unmitigated liar.
    Appeal from a judgment of the Monroe oyer and terminer, entered in Monroé county clerk’s office Feb. 10, 1888. Wm. H. Davis, for app’lt; Geo. A. Benton, for resp’ts.
   Finch, J.

—The conviction of the prisoner is sought to be reversed upon two principal grounds; one that his confessions of the murder should have been excluded; and the other that his offense was less in degree than that established by the verdict of the jury.

There was no error in admitting those confessions. They were made to the officers having him in charge, to the public prosecutor, to the reporters of the newspapers, and in some singular verses, which he seem to have composed of his own volition, and without suggestion from any quarter.

The Code of Criminal Procedure provides (§ 395), that the-confession of the. defendant may be given in evidence, “unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district-attorney that he shall not be prosecuted therefor.” Not only does the testimony of those to whom the confession was made show that no threats at any time were used to extort a confession, but the prisoner, himself, when upon the stand as a witness and wholly denying his crime, made no such complaint and stated no fact, even remotely, tending to establish a threat. He says that one of the officers charged him with the murder; that they impressed upon his mind the idea that they had evidence enough to convict; and hinted that if he confessed, he might possibly escape, with a conviction of manslaughter or even obtain a reward. He thus swears to his own conclusions or inferences, but does not repeat or specify a single remark or expression used by any one which involved a threat.

The officers on the other hand state fully the whole conversation in each instance and show conclusively that no threats were made. The district-attorney explicitly refused to make any promises whatever, and it is quite apparent that neither threats nor promises induced the confession.

It is claimed, however, that the verdict rested mainly upon it, and should not have done so for another reason. The Code of Criminal Procedure, in the last clause of the section above referred to, further provides that the confession shall not be sufficient to warrant a conviction “ without additional proof that the crime charged has been committed;” and it is claimed that the finding of the body was not such additional proof. That is a mistaken construction. The crime charged was the murder of Mrs. Stone. That fact was conclusively proved by the finding of her dead body with the unmistakable marks of a murder committed. The meaning of the Code 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. There must be some other evidence of the existence of the criminal fact to which the confessidn relates. The Code but repeats the pre-existing rule that “there must be proof aliunde of the corpus delicti, although such proof need not be conclusive.” People v. Badgley, 16 Wend., 53.

Upon that confession, and the other facts proven in the case, the verdict of murder, in the first degree, must be sustained. While the prisoner admitted himself to be utterly regardless of the truth, denouncing his own statements by the score as unmitigated lies, yet if we take his version of the murder as in all respects true, the necessary deliberation was manifest and fully established.

Admitting then, for the present, that he struck Mrs. Stone with his club, and then choked her so that he broke both branches of the hyoid bone in her throat, until he thought she was dead, and did this under a sudden passionate impulse, because she used harsh words, and struck him in the face, that does not explain what followed. Deliberation marked every subsequent step, and a deliberation utterly inconsistent with any remaining passionate impulse. If there had been rage, it was satisfied by the revenge accomplished, and was supplanted by the cool and deliberate effort to avoid the consequences and escape detection. He puts a cloth under the victim’s head to prevent blood stains on the floor; he observes the trap door leading into the cellar, and opens it to hide the body; he lifts Mrs. Stone in a manner which he says he knew how to do without getting bloodstains upon himself; he carries her down the stairs, where she slips from his hands; at that moment she revives, for he admits a struggle at that point; he sees she is not dead; and he then strangles her with a cloth tied about her neck.

He says she fought like a tiger. This is quite probable. The blood spot at the foot of the stairs indicates the struggle. The unfortunate woman was fighting for her life and the prisoner for her death, as the means of his own safety. It was no longer a passionate impulse or sudden burst of rage. That had run its course, there had been abundant time for the passion to cool, and ample opportunity to deliberate. What that deliberation was we see in every step he took, and there is no reasonable or adequate explanation of his conduct except that he strangled his victim for the deliberate purpose of screening himself by her death from the detection which threatened him when she revived. When Mrs. Stone was apparently dead after the combined blow and choking, the prisoner says in words chosen by himself, “I stood gazing at her with terror and with dread.” That is so natural that it may easily be believed, and it marks the appearance of new emotions consequent upon the subsidence of momentary passion, and growing out of the silent contemplation of the seeming death, and the imminent danger which that passion had occasioned. The jury were warranted in believing that if his own account was true he strangled the deceased for the deliberate purpose of escape and concealment, and when she was not dead and her life might have been preserved.

But the jury were not bound to believe the explanation of a man who cooly and under oath acknowledged himself to be an unmitigated liar. The evidence pointed to another explanation. _ A woman does not ordinarily, when alone in her house, strike a stranger and a tramp in the face, unless some insulting purpose manifested on the occasion makes anger overcome fear. The accused did bar her effort to leave the house, and did seize her by the arm or put his hand upon her shoulder before she struck him at all, for so much he admits. It is claimed by the prosecution that the murder was committed while the prisoner was engaged in an attempt at rape. It is not fitting that we repeat the repulsive details which bear upon this inquiry, but the jury, which listened to them, and to his own written account of his plot to seize and assault one Annie Kelly, and reflected upon the facts, would be quite justified in believing that lust rather than passion was the motive for the assault, and that the murder was accomplished while he was engaged in the commission of a felony.

The court, however, submitted another question to the jury bearing upon the degree of crime, and of which the prisoner’s counsel complains. The act of 1885 (chapter 490) describes and defines who shall be deemed tramps. They are “ persons who rove about from place to place begging, and all vagrants living without visible means of support, who stroll over the country without lawful occasion. Section 2. The prisoner fully came within that description. His own account of himself, and all that we know of him from other witnesses, points unmistakably in that direction, and there is not a word or a fact in the case to the contrary. The trial judge did not err in saying he was a tramp, for there was no dispute about it. By section 4 of the act, it is provided that ‘ ‘ any tramp who shall enter any building against the will of any owner or occupant thereof, under such circumstances as shall not amount to burglary * * * or shall threaten to do any injury to any person, or to the real or personal property of another, when such offense is not now punishable by imprisonment in the state prison, shall be deemed guilty of felony.” Upon this statute, the trial judge submitted to the consideration of the jury the question whether the murder was not effected while the accused was engaged in the commission of a felony.

That he entered the house occupied by Mrs. Stone against her will is quite manifest. He came in without permission or invitation, and as soon as discovered was ordered out. He was there not only without her consent, but against her consent, and persisted in his intrusion after being notified to depart. Beyond that was the question whether before the killing he threatened a personal injury. The jury inquired if threatening words were necessary, and the court answered, in substance, that conduct or actions might menace the safety of the occupant, as well as words. The prisoner’s counsel maintains that the learned judge gave as the test of what was threatening conduct the inquiry whether Mrs. Stone believed he was threatening her. That is a misconstruction of the charge. What was said was that if the conduct was such as to give Mrs, Stone reasonable cause to believe that a personal injury was intended, that was enough.

The test was not what she in fact believed, but what from the intruder’s action and conduct she had reasonable ground to believe, and to make the meaning plainer, the judge illustrated it by the case of one who points a pistol at another or draws his fist as if to strike. In other words, the court declared that there might be a threatening gesture as well as a threatening word. The charge in this respect was, therefore, not erroneous, and the jury, who remembered that the prisoner barred the way out of the house and prevented Mrs. Stone from going for help, and laid his hands'upon her shoulder, or seized her by the arm, had before them facts which warranted a finding of a threatened personal injury. There was not only in the conduct of the prisoner the threat of an assault, but the fact of an assault by grasping her person, before the deceased struck him in the face and before the purpose to kill was formed and the effort to kill began.

Reference was made to the age of the prisoner as affecting section 6 of the statute, which excepts from the application of the enactment persons under sixteen years. At the date of the murder he was at least a month older than that according to his testimony, and his own declaration and appearance warranted a conclusion that he was some years older. The argument that he could not become a tramp within a month after reaching sixteen has no force, especially as to one who was a tramp in fact when he reached the age which brought him within the operation of the law.

The objections to evidence were somewhat numerous, and have all been examined without discovering any error prejudicial to the prisoner. Those relating to the evidence of Raines and Atwood, which identified certain spots of blood which they saw as being blood, were pressed upon our attention and should be considered.

Mr. Raines testified that within three days after the homicide he discovered a spot on the surface of the trap door, and cut it out and gave it to Mr. Atwood, and that he examined the spots on the cellar bottom. He was asked whether these last were blood. His answer was that he examined them under the microscope and compared them with blood from his own finger, and the appearances were similar. He thus stated simply facts, giving no opinion, and expressly admitted that he could not détermine whether the spots were human blood.

Mr. Atwood described himself as engaged in the business of fire insurance, but as having done a little in chemistry and something more in microscopy. He examined the splinter under the microscope and swears that he ascertained the stain upon it to be blood. He swears to this not as an opinion but a fact directly founded upon his own observation.

In each instance the evidence was objected to as incompetent, and the objection is defended here upon the ground that the witnesses were not experts. It was not needed that they should be.

That a spot or stain is blood may be proved by any person who has observed it and is able, from such observation, to state the fact. People v. Gonzalez, 35 N. Y., 61; Greenfield v. People, 85 id., 82.

The first of these cases discusses the question fully and establishes the rule. That the observation of the witnesses was aided by a microscope only strengthened the minuteness and care of their observation. If the effort had been to distinguish between human blood and that of some animal the question would have been one of science and have required the application of very great skill and knowledge. No such effort was made. ■

Upon the whole case we are satisfied that justice has been done. The prisoner’s confessions manifest a knowledge so accurate and detailed of the house occupied by Mrs. Stone, and the furniture and utensils in it and the situation of and marks upon the dead body, as to be explainable only upon the theory that he was the author of the crime. His pretense that he gathered the facts from a newspaper is very strongly disproved.

The judgment should be affirmed.

All concur.  