
    FITZGERROLD against THE PEOPLE.
    
      Court of Appeals ;
    January, 1868.
    Conviction for Murder.—Indictment and Verdict.
    An indictment which alleges that the prisoner willfully, maliciously, and of malice aforethought," shot the deceased, inflicting a wound from which the deceased died, is sufficient, as respects the averment of intent, to amount to a charge of murder in the first degree.
    A general verdict of guilty, under such- an indictment, will sustain a sentence of death..
    History and construction of the statutes of New York defining the crime of murder.
    The case of People v. Enoch, 13 Wend., 159, approved and followed.
    Form of an indictment for murder by shooting.
    Writ of error to the supreme court of the second district.
    Thomas Eitzgerrold, the plaintiff in error, was tried in Westchester county, for the murder of Ellen Hicks.
    The Body of the indictment was in the following words:
    “ The jurors of the people of the State of Hew York, in and for the Body of the county of Westchester, upon their oath and affirmation, do present: That Thomas Eitzgerrold, Michael J. Canty, John Doran, Michael Martin, John C. Burke, and Charles Burke, late of the town of West Chester, in the county of Westchester aforesaid, on the second day of August, in the year of our Lord one thous- and eight hundred and sixty-six, with force and arms, at the town of West Chester aforesaid, at the county aforesaid, in and upon one Ellen Hicks, in the peace of God and of the said people then and there Being, feloniously, willfully, and of malice aforethought, did make an assault; and that the said Thomas Eitzgerrold, a certain gun (called a musket), of the value of ten dollars, then and there charged with gunpowder and a leaden bullet, which gun he, the said Thomas Fitzgerrold, in both his hands there had and held, at and against the said Ellen Hicks, then and there feloniously, willfully, and of his malice aforethought, did shoot off and discharge; and that the said Thomas Fitzgerrold, with the leaden bullet aforesaid, by means of shooting off and discharging the said gun, so loaded, to and against the said Ellen Hicks, aforesaid, did then and there feloniously, willfully, and of his malice aforethought, strike, penetrate, and wound the said Ellen Hicks in and upon the body of the said Ellen Hicks, near the navel, giving to her, the said Ellen Hicks, then and there, with the leaden bullet aforesaid, by means of shooting off and discharging the said gun so loaded to and against the said Ellen Hicks, and by such striking, penetrating and "wounding the said Ellen Hicks as aforesaid, one mortal wound in and through the body of her, the said Ellen Hicks; of which said mortal wound the said Ellen Hicks did then and there soon after die.
    “And the jurors aforesaid, on their oath and affirmation aforesaid, do further present that the said Michael J. Canty, John Doran, Michael Martin, John C. Burke, and Charles Burke, then and there, feloniously, willfully, and of malice aforethought, were present, aiding, helping, abetting, comforting, assisting, and maintaining the said Thomas Fitzgerrold in the felony and murder aforesaid, in manner and form aforesaid to do and commit
    “And the jurors aforesaid, upon their oath and affirmation aforesaid, do say that the said Thomas Fitzgerrold, her, the said Ellen Hicks, in the manner and by the means aforesaid, feloniously, and of his malice aforethought, did kill and murder ; and that the said Michael J. Canty, John Doran, Michael Martin, John C. Burke, and Charles Burke, then and there, feloniously, willfully and of malice aforethought, were present, aiding, helping, abetting, comforting, assisting and maintaining.the said Thomas Fitzgerrold in the felony and murder aforesaid, contrary to the form of the statute in such case made and provided, and against the peace of the people of the State of New York and their dignity.”
    The jury found a general verdict of' guilty j and the court pronounced sentence of death.
    The prisoner sued out a writ of error to the supreme court of the second district, "by which the conviction was affirmed. He now "brought error from this judgment of affirmation, to the court of appeals.
    
      Francis Larkin, for the plaintiff in error.
    
      John J. Bates, for the defendants in error.
   Hunt, Ch. J.

The prisoner alleges that the indictment charges only the crime of murder in the second degree. It does not allege that the killing was from a premeditated design to effect the death of any human being, nor that it was perpetrated by an act imminently dangerous to others, evincing a depraved mind regardless of human life, nor that it was perpetrated in committing the crime of arson in the first degree. The killing is charged to have been by “ willfully, maliciously and of. malice aforethought” shooting the said Ellen Hicks upon her body, and inflicting upon her a wound from which she speedily died. This, the prisoner insists, is a, charge of murder in the second degree only, and that the sentence and judgment, rendered upon a general verdict of guilty, are erroneous.

The killing of "any human being, without the authority of law, is declared by the Revised Statutes (omitting the distinctions in reference , to manslaughter and excusable or justifiable homicide), to be “murder” in the following cases:

1. When perpetrated from a. premeditated design to effect the' death of the person killed or of any human being;

2. When perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual; .

3. When perpetrated without any design to effect death, "by a person engaged in the commission of a felony (2 Rev. Stat, 657, § 5). '

The case of The People v. Enoch arose soon after the passage of these statutes (13 Wend., 159). Enoch was indicted for murder upon a charge that on, etc., he did with force and arms, “feloniously, willfully, and of his malice, aforethought,” shoot and kill his wife, Nancy Enoch. He was convicted and sentenced to "be hung. Upon a writ of error "brought, it was insisted "by his counsel that the verdict and sentence could not "be upheld, "because a common law indictment “with malice aforethought,” could "be sustained by proof of killing, without a design to effect death, if such death happened in the perpetration of a crime or misdemeanor not amounting to felony, whereas, by the revised statutes, -such an offense did not amount to murder (2 Rev. Stat, 657, § 6). The judgment was affirmed by the late supreme court, and, upon appeal to the court of errors, was affirmed by that court also. The supreme court say that the first subdivision was intended to define murder in the case of express malice, and the second and third subdivisions in cases of implied malice. Judge Nelson" (p. 165) uses' this language: “ Malice aforethought, in common parlance, and as originally used, conveyed only the idea of express malice. Its meaning had been enlarged, so as to include implied malice, by judicial construction; to define and limit which was the object, and-has been the only effect of the fifth section above referred to. It was said on the argument that under this indictment, the jury might have convicted the prisoner upon proof of implied malice, which, since the revised statutes, would only amount to manslaughter, but which evidence would sustain the terms of the indictment “ malice aforethought,” and justify a conviction of murder from implied malice at common law. So it might have been said before those statutes on a conviction of murder upon a similar indictment, that the jury might have convicted the prisoner upon proof, which did not amount to murder, but only to manslaughter, as evidence of the latter offense was admissible under it. * *

The answer to all this is, that it is the business and duty of the court to see that a proper direction be given to the jury in point of law upon the evidence, and if either court or jury err, the appropriate remedy must be sought.” He proceeds: “ The statute has not altered the common law. The. offense of murder, as defined in the revised statutes, was so before the statute, and is but the adoption or introduction into the act of the common law definition of the crime. Section 16 limits the offense to the cases mentioned in section 6, above cited, or in other words, abolishes the offense at common law except in those cases, and they are left as before existing in our criminal code. The cases of murder from implied malice have been limited by the second and third subdivisions of the fifth section, but those there defined existed before. The crime of murder might have been committed before the revised statutes, from implied malice, where the prisoner, while engaged in an unlawful act under the degree of felony, such as a riot or other misdemeanor, killed another against his intention. By the third subdivision, such unlawful act must now be of the degree of felony. This is the only modification of the law of murder. The rule that the indictment should bring the offense within the words of the statute declaring it, is applicable only in its strict terms to cases where the offense is created by statute, or where the punishment has been increased, and the pleader seeks-to bring the prisoner within the enhanced punishment.”

In the court of errors (at p. 173, et seq.) the chancellor reiterates these views at length, and concludes by°saying: “From this examination of the subject I have arrived at the conclusion that a common law indictment for murder is proper under the provisions of the revised statutes, and a defendant cannot be convicted on such an indictment of a felonious homicide with malice aforethought, unless the evidence is such as to bring the case within the statutory definition of murder” (p. 176). In People v. White (24 Wend., 520) the late court of errors held that when an indictment charged the killing to be felonously, willfully, of malice aforethought, and from a premeditated design to effect death, that the premeditated design or express malice must be proved, but affirm and approve the case of Enoch. In People v. Clark, decided in this court in 1852 (7 N. Y. [3 Seld. ], 385, 393), Johnson, J., uses this language : “ The words premeditated, aforethought, and prepense, possess etymologically the same meaning; they are, in truth, the Latin and Saxon synonyms expressing a single idea, and possess in law precisely the same force. The statute, so far. as this term is concerned, has not altered the law. Malice prepense, however, had attained a broader meaning than belongs to the term premeditated design. The intent to take life was not necessary to constitute malice prepense. Even express malice, or malice in fact, is defined to be a deliberate intention of doing any bodily harm to another, unauthorized bylaw (Hale's P. C., 451), and by no means necessarily involved an intent to take life. * * The degree of deliberation is not different-from. that required by the common law. * * It is enough that the intention precedes the act, although that follows instantly.”

In 1862 (Laws of 1862, 369, ch. 197), the law on the subject of murder was re-enacted, and was altered in its third subdivision. By the revised statutes, as already quoted, it was provided that the killing should be murder in the cases specified, of which the last was as follows: “3. When perpetrated without any design to effect death, by a person engaged in the commission of a felony.” By the statute as altered it was made to read as follows: “3. When perpetrated in committing the crime of arson in the first degree. Such killing, unless it be murder in the first degree or manslaughter, or excusable or justifiable homicide as hereinafter provided, or when perpetrated without any design to effect death, by a person engaged in the commission of any felony, shall be murder in the second degree.” By this amendment, a killing when perpetrated in committing the crime of arson in the first degree, still constitutes ' the offense of murder in the first degree. When, however, the killing was perpetrated without any design to effect death by a person engaged in the commission of a felony, other than that of arson in the first degree, it was murder in the second degree only. This was the entire effect of the amendment of 1862. This section is obscure, and has been generally read as if the words “or when perpetrated without any design to affect death by a person engaged in the commission of any felony,” formed an exception, like the words, “or manslaughter” or “justifiable homicide.” Upon this construction no crime of murder in the second degree is created. The very crime intended to be thereby created, is by this construction declared not to be such crime. A more reasonable construction should be put upon the language, and effect given to the evident intention of the legislature. The statute may be thus paraphrased: “ The killing of a human being shall be murder in the first degree": First, when perpetrated from a premeditated design to effect the death of the person killed or of any human being. Second, when perpetrated by an act imminently dangerous, etc. Third, when perpetrated in committing the crime of arson in the first degree.' Such killing unless it be murder, or manslaughter, or excusable or justifiable homicide as hereinafter provided, shall be murder in the second degree, when perpetrated without a design to effect death, by a. person engaged in the commission of any felony.” This was the evident intent of the framers of the statute, and in my judgment a justifiable construction of the language. Or again, it may be read thus : “ Such killing, when perpetrated without any design to effect death by a person engaged in the commission of any felony, shall be murder in the second degree, unless it be murder in the first degree (as above defined), or manslaughter, or justifiable or excusable homicide, as hereinafter provided.”

The punishment of murder in the second degree is fixed by section eight, at an imprisonment in a State prison for a period of not less than ten years.

The construction which I have given to this statute is confirmed "by the subsequent provisions of the statute, on the subject of manslaughter. This offense, in the first, second and third degree, is defined by the statutes, and the punishment is fixed at confinement in the State prison, for periods ranging from two to seven years. The nineteenth section of the statute provides that every other killing of a human being shall be deemed to be manslaughter in the fourth degree. The punishment of this offense is by imprisonment in a State prison for two years, or by imprisonment in a county jail not exceeding one year, or by fine not exceeding $1,000, or by both such fine and imprisonment.

It has been suggested that the killing of a human being, when perpetrated without a design to effect death, by a person engaged in the commission of a felony, might be punished within the terms of section nineteen, and that constitutes the offense of manslaughter in the fourth degree. This would be quite unwarrantable, when we consider the very slight degree of punishment inflicted by that section, compared with the magnitude of the offense, and the greater punishment inflicted for the commission of much lighter crimes, as defined by the three preceding degrees of manslaughter. I feel therefore quite justified in making the assertion, that unless the crime of murder in the second degree consists in what I have defined it to be,, it is entirely unprovided for in the statute. This is an absurdity not to be tolerated.

The prisoner’s argument in legal effect is this : that he is charged by the indictment with an offense which may be found by the jury to be either murder in the first degree or murder in the second degree; that the jury have found a general verdict only against him; that this may have been founded upon facts which would justify a conviction of the minor offense only, and that therefore a judgment based upon a verdict as for the greater offence is erroneous. This argument I do not consider sound. In People v. Enoch (supra), it was charged that the defendant killed his wife feloniously and of malice aforethought, the words “with premeditated' design” being omitted. The law had been so altered by the revised statutes, that a killing which occurred in commission of a misdemeanor simply, was not murder. It would be manslaughter merely. Malice aforethought embraced a class of offenses which did not then constitute the crime of murder. The prisoner, then, stood indicted for an offense which might be murder or might be an inferior offense, and yet upon a general verdict of guilty, and a judgment inflicting the punishment of death, the court of errors sustained the judgment. . The chancellor gave the answer which I have already cited, “that it is the duty of the court to see that a- proper direction be given to the jury in point of law upon the evidence, and if either court or jury err, the appropriate remedy must be sought. ” Ho obj ection is taken to the charge of the judge in the present case, and we are to assume that the judge explained to the jury the law of murder in its different degrees, and the law of manslaughter as defined by the statute, and that the jury rendered an intelligent verdict upon such understanding of the statutes. If this case had contained the charge of the judge in which it had been stated, that, to constitute murder in the first degree it must appear to them that the killing was from a premeditated design to effect the death of a human being, or that it was perpetrated by an act immiiiently dangerous to others, evincing a depraved mind,, regardless of human life, or when . committing the crime of arson in the first degreeand that if perpetrated when engaged in .the commission of any other felony, it would be murder in the second, degree only, the charge would have been correct, and a general verdict would have justified the sentence given. We are to presume that the law was thus explained to the jury, and that they fully appreciated the effect of their verdict. The absence of an objection admits it.

It has always been held- to be the law that upon an indictment charging the offense of murder and nothing else, the prisoner might be convicted of manslaughter. The same allegations in the indictment would maintain a conviction for murder, or would justify a verdict of manslaughter merely. The result depends upon the proof, the direction of the judge, and the opinion of the jury. As these elements require a conviction of the greater or minor offense, such will be the result. As the same elements require a conviction of murder in the first degree, or of murder in the second degree, such will be the result.

. The case of Enoch has stood as the law on this subject for more than thirty years. To overrule it would be a rash overthrow of a settled authority, under which many persons have suffered the extreme penalty of the law. The objection on which the prisoner’s argument is based, is purely technical; it is-not even suggested that the law was not accurately explained to the jury, or that his rights were not properly guarded.

The judgment should be affirmed.

Woodruff, J.

The plaintiff in error was indicted, tried, found guilty and sentenced to death, at the court of oyer and terminer, for the county of Westchester. By-writ of error the judgment was brought under review at the general term of the supreme court for the second district, and was there affirmed; and the court thereupon appointed a day for the execution of the sentence. A writ of error was thereupon sued out by plaintiff in error, and the proceedings were thereby removed to this court, and a stay of execution until the further order of this court, was obtained.

The indictment charged that the plaintiff in error, feloniously, willfully, and of malice aforethought, made an assault upon one Ellen Hicks, with a gun, charged with gunpowder and bullet, which he held in his hands, and at and against the said Ellen Hicks, did feloniously, willfully and of his malice aforethought, shoot off and discharge, and with such bullet, by means of the shooting off and discharging the said gun, the said Fitzgerrold did, then and there, feloniously, willfully and of his malice aforethought, strike, penetrate and wound the said Ellen Hicks, giving to her * * one mortal wound, * * of which said mortal wound, the said Ellen Hicks did, then and there, soon after die. * * * And the jurors aforesaid, * * say, that the said Fitzgerrold, her the said Ellen Hicks, in the manner and hy the means aforesaid, feloniously and of his malice aforethought, did kill and murder. * * *

It is insisted on behalf of the plaintiff in error, that the offense of murder in the first degree is not charged in the indictment, and that, therefore, a verdict of guilty does not warrant a judgment condemning the plaintiff for that offense.

In 1834, the court of errors in this State, in The People v. Enoch (13 Wend., 159), by an unanimous opinion affirmed the judgment of the supreme court, which held that an indictment charging the act to have been committed feloniously, willfully, and of his malice aforethought, was a sufficient charge of murder in the first degree, although the revised statutes then defined murder as killing in the following cases :

1. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being.

2. When perpetrated by an act imminently dangerous to others, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.

3. When perpetrated without any design to effect death, by a person engaged in the commission of a felony (2 Rev. Stat., 657, part 4, ch. 1, § 1).

The present statute (Laws of 1862, 369, ch. 197) defines murder in the first degree in the same terms, except that the third subdivision reads, “when perpetrated in committing the crime of arson in the first degree.”

Under the indictment above mentioned Enoch was convicted of murder, sentenced to be hung, and the conviction and judgment were therein sustained.

The ground was distinctly taken and ably and elaborately argued, that the charging the act to have been with malice aforethought, was not a sufficient description of a killing with a premeditated design, and that therefore the conviction should not he sustained. And the precise argument now urged upon us was there earnestly pressed, viz. : that “ had the accused on his arraignment pleaded guilty to the charge, the court would not have known what judgment to pronounce,” i. <?., whether the punishment of murder in the first degree, death, or of manslaughter, imprisonment in the State prison.

The court were of the opinion and held, that the statute had not changed the form of pleading or the requisites of an indictment. That the words “ with malice aforethought,” include express malice, which is all that is expressed or intended to be expressed by “premeditated design,” and are legal and appropriate language to express it. The opinion of the chancellor in' the court of errors was, that murder being a common law offense, and the law having adopted certain technical expressions to define the offense, the crime must he described in the'indictment, or the intention he expressed in those technical terms, and no other. And that therefore in an indictment for murder the terms “murder” and “of malice aforethought,” are to he considered absolutely necessary, and without them it would he deemed a case of manslaughter.

This case clearly and necessarily sustains the indictment now in question—it holds that the statute has introduced no new rule of pleading to describe a killing with premeditated design. That the court, on the trial, must instruct the jury as to. what should he proved to sustain such an indictment, and in the giving of such instructions the statute is a guide, and any error in such instructions is to he corrected on exception thereto.

The decision in People v. Enoch was affirmed by the supreme court in People v. White (22 Wend., 167). There the pleader, in order to avoid question, had added to the charge of killing “with malice aforethought,” the words of the statute, “and from premeditated design to effect his death,” etc. The supreme court held that these latter words were unnecessary and mere surplusage. That the other words, being in the form of a common law indictment, let in proof of any species of murder as defined by the section of the statute. Hence that the words “with premeditated design,” etc., might be rejected or disregarded.

The court of errors (24 Wend., 520) held that the pleader, by introducing the words “with premeditated design,” etc., had adopted them as descriptive of the specific act charged, viz. : the description in the first subdivision of that section of the statute which definds murder; and as matter of description he had made them •material. But the opinions of this court show that the words were not necessary to the validity of the indictment, and so far from retracting or reversing the decision of the same court in People v. Enoch, language of direct affirmance is used in the opinions. Thus (p. 580), “since the decision in the case of Enoch in this court, no doubt can be entertained that a common law indictment charging the of.fense to have been committed of malice aforethought, would be good for either of the offenses described in the first or second subdivisions of the section.” Had the indictment been so drawn, and without the words “with premeditated design, etc., no doubt can be entertained that the charge of the court to the jury would have been correct and the conviction good” (p. 571). It is true that, according to the reason of the thing as well as the decision of this court in People v. Enoch, a general count charging murder with malice aforethought, would be sufficient, and would be sustained by any sort of murder whatsoever within the statutory definitions.

These decisions involve no discussion of the extent to which the manner of the killing must be described, in order to avoid a variance and let in proof of the actual facts. Such a description will, in general, show to which subdivision of the statute the charge refers. But that it is necessary to use the words “with premeditated design, etc.,” in order to constitute a valid indictment, and that such design is sufficiently alleged in the charge with malice aforethought, is the clear doctrine of these cases.

In People v. Clark, in this court (7 N. Y., 385), no question arose on the form of the indictment. The inquiry was what degree of deliberation is essential to constitute premeditated design; but in the discussion, Mr. Justice Johnson says that the words “premeditated,” “aforethought,” and “prepense,” possess, etymologically, the same meaning, and are * * synonymous, expressing a single idea, and possess in law precisely the same force. But as “malice prepense ” had obtained a broader meaning than belongs to “premeditated” design, the statute required, in order to a conviction of murder under the first subdivision, the existence of the actual intention to kill. The existence of such intention must therefore be proved on the trial, to sustain such an indictment, under the first subdivision.

The result of these cases most clearly is, that the crime of murder is sufficiently charged, when alleged as in the present indictment “with malice aforethought.” But, in order to prove the crime, the proofs must establish a case within the requirement of the statute in one of its three subdivisions. And the party indicted is entitled to proper instructions to the jury as to what facts must be found to sustain the indictment. And a verdict of guilty as charged in the indictment, is a finding of guilty of murder in the first degree, and judgment thereon, and condemnation to the punishment awarded to that crime necessarily follows.

We find no reason for departing from these views of the law. If I doubted their, accuracy, I should hesitate in. disturbing the cases which have been the guide of public officers and the test of correct pleadings for more than thirty years, unless I saw that some wrong was done or some evil was created by continuing a form, of indictment so long approved, the meaning, force and effect of which was well understood, so that" no party indicted could possibly be. surprised or placed at disadvantage on the trial, if the law was rightly declared to the jury; and if in that respect there was error, that may be corrected.

I have, however, no doubt on the subject. I think the decision in People v. Enoch, founded in good sense and correct in law, and that it is decisive in the case before us.

In a case in which the questions raised involve the life of a human being, I was disposed to consider carefully what could be urged by the counsel for the plaintiff in error, although the case did not seem doubtful; but the result of such consideration is, that the judgment must be affirmed.

Judgment affirmed.  