
    The People of the State of New York, Resp’ts, v. Oscar F. Beckwith, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    1. Murder—Evidence—Legal proof of the corpus delicti—Direct proof—Permissibility of confessions—Code Grim. Pro., § 395— Penal Code, § 181.
    On the trial of defendant for the murder of one Yandercook the evidence to establish the identity of the dead man was as follows: Yandercook, on the morning of the day named in the indictment, was seen in the neighborhood of the defendant’s cabin and was then going towards it, and he was never seen alive afterward. In the evening of that day a neighbor going to Beckwith’s (the defendant) cabin and before reaching it “smelt something burning,” and on entering found Beckwith tending a large fire in his stove, already red hot, and from which came, he said, “a sizzling noise.” Beckwith explained that he was “burning pork rinds” and was preparing “to bake." At some time between that evening and the day but one after, he disappeared, and on that day neighbors, under the direction of an officer, burst open the door of his cabin and searched the interior. Pieces of human bones, part of the skull and fingers and of the hands and feet were found among the ashes in the stove, and in another part of the cabin the remaining fragments of a man's body, cut to the length of stove-wood. An axe was found, bloody and bearing upon it hair of the color of Yandercook’s. His clothing, with blood on it, was found. .The fragments of the body when put together resembled in size and appearance Yandercook’s, but the head, feet and left hand were gone. The lung had neen punctured with a knife or other sharp instrument entering near the shoulder and thrust from behind. The defendant also stated that Yandercook came into his house and “got hurt,” and that he came in and “got killed,” etc. Meld, that the confession of. Beckwith was admissible in evidence under Code Criminal Procedure, section 395, and with the other testimony there was “direct proof” within the meaning of Penal Code, section 181, of the death of the person alleged to have been killed.
    2. Same—When .proved.
    It was shown that the killing was preceded by threats disclosing that intention, which were repeated up to within a short time before the homicide. Meld, that the evidence was sufficient to warrant the jury in finding that Yandercook was murdered by the defendant.
    3. Same—Penal Code, § 181, when applicable—Section 2 does not relate TO OR INCLUDE EVIDENCE, ETC., GIVEN ON TRIAL, ETC.
    Penal Code, section 181, enacts a rule of evidence applicable upon the trial of all cases within its terms, and is not dependent upon the time of the commission of the offense. It was properly invoked by the defendant where the crime charged in the indictment was committed prior to December 1,1882. Section 2 of said Code does not relate to nor include the evidence which may be given or the degree of proof required upon the inquiry or during the prosecution to secure a conviction and punishment.
    4. Penal Code, § 2—Meaning of “inquiry” and “prosecution” in SAID SECTION.
    The “inquiry” referred to in Penal Code, § 2, relates to a proceeding before indictment found or trial had; “prosecution relates to the warrant, the arrest, the indictment and other proceedings following the inquiry and before punishment.
    
      5. Jury—Difficulty m obtaining does not prove persons chosen to BE PREJUDICED.
    Difficulty in procuring persons qualified to sit is no evidence that the jurors actually chosen and thus pronounced free from “ all legal objections,” etc., were either actuated by improper motives, or that the verdict rendered did not express the truth of the matter as disclosed to them in evidence.
    The defendant was accused by the grand jury of Columbia county of the crime of murder in the first degree in killing one Vandercook willfully and with deliberate and premeditated design. He was tried and convicted of the offense. The conviction was affirmed by the supreme court, general term, third department, and from its judgment he appeals to this court.
    
      Mr. Longley, for app’lt; Mr. Gardenier, for resp’t
    
      
      Affirming 10 N. Y. State Rep., 97
    
   Danforth, J.

A reversal of the conviction and a new trial is asked for upon the grounds:

1. That there is no legal proof of the corpus delicti.

2. That the verdict is against the weight of evidence and against the law.

3. That the verdict was the result of prejudice and passion on the part of the jury.

4. That evidence offered by the defendant was improperly excluded.

5. That the officers charged to keep the jury while deliberating upon their verdict, were not properly sworn.

t There is nothing in the record to sustain this last proposition. The oath actually administered is not given, nor is there anything before us to show that the regulation of law in regard to it (Code of Crim. Pro., § 421), was not observed.

The fourth point seems also without merit. The evidence offered and rejected is sufficiently stated by the general term, (10 N. Y. S. Rep., 97) and was properly dealt with. It had no relation to any question at issue. Nor did it affect the credibility of the witness whose expressions in conversation were sought to be proven. Testimony as to matters which are neither relevant nor material is incompetent, because it tends neither to establish nor disprove anything. The third point has no foundation. The only fact' concerning it to which our attention is directed by the appellant, is that one hundred and fifty-six jurors were called before a trial panel could be obtained. Difficulty in procuring persons qualified to sit is no evidence that the jurors actually chosen, and thus pronounced free from “ all legal objections,” and to be “men of approved integrity and sound judgment” (2 R. S., 411, § 13, subd. 5), were either actuated by improper motives or that the verdict rendered did not express the truth of the matter as disclosed to them in evidence.

The remaining propositions of the appellant are of a more serious character. The first (supra) is founded upon the general rule that the fact that an offense has been committed, must be fully established before any one can be held to answer for it. “I would never,” says Lord Hale, (2 Hale’s P. 0., 290), convict any person of murder or manslaughter, unless the fact was proved to be done, or at least the body was found dead.” The proposition is elsewhere somewhat differently stated as by Starkie (1 Stark, on Ev., 575), that upon charges of homicide the accused shall not be convicted unless the death be first distinctly proved, either by direct evidence of the fact or by inspection of the body;” by G-reenleaf (G-reenlf. on Ev., vol. 3, § 30), that even in cases of homicide, though ordinarily there ought to be the testimony of persons who have seen and identified the body, yet this is not indispensably necessary in cases where the proof of the death is so strong and intense as to produce the full assurance of moral certainty. In Ruloff v. People (18 N. Y., 179), that in order to warrant a conviction of murder there must be direct proof either of the death, as by the finding and identification of the corpse or of criminal violence adequate to produce death, and exerted in such a manner as to account for the disappearance of the body.

It is, also, said that the corpus delicti in murder has two components; death as the result, and the criminal agency of another as the means. It is only where there is direct proof of one that the other can be established by circumstantial evidence. And by the Penal Code the degree of proof in such cases is clearly stated by the provision (section 181), that, “Ho person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed, and the fact of killing by the defendant as alleged, are each established as independent facts, the former by direct proof and the latter beyond a reasonable doubt.” This statute regulates the practice of the courts as to matters of evidence, signifying what weight is to be given to the testimony admitted, and the appellant claims that its prohibition applies to the time of the trial, without regard to the time when the offense was committed, whether before or after the passage of the law. It does unless restricted by the act itself. The court below were of opinion that it was so limited and that the provisions of section 181, as they now read, do not apply. The homicide was committed January 10, • 1882. The Penal Code took effect December 1, 18ti2 (section 727), and it was provided (section 2), that, “Ho act or omission begun after the beginning of the day on which this Code takes effect as a law, shall be deemed criminal or punishable except as prescribed or authorized by this Code, or by some statute of this state not repealed by it. Any act or omission begun prior to that day may be inquired of, prosecuted and punished in the same manner as if this Code had not been passed.” Does the latter clause include the provision of section 181 % An “act” criminal in its nature, _“ may be inquired of,” by various courts upon whom jurisdiction is conferred, “to inquire,” through the intervention of a grand jury, concerning it, or such inquiry may be made in certain cases through an examination before a. magistrate, but in either case the “ inquiry ” relates to a proceeding before indictment found or trial had; prosecution relates to the warrant, the arrest, the indictment and other proceedings following the “inquiry ” and before punishment, and the manner of so doing is regulated by the Code of Criminal Procedure (Penal Code, § 8).

Neither relates to, or within their common meaning includes the evidence which may be given, or the degree of proof required upon the inquiry or during the prosecution, to secure a conviction and punishment. The section (181), enacts a rule of evidence applicable, we think, upon the trial to all cases within its terms and is not dependent upon the time of the commission of the offense. It, therefore, is properly invoked by the appellant.

But even under its provisions the plaintiff’s accusation was well-established. Evidence is the medium of proof, proof- is the effect of evidence. Here the evidence of circumstances identifying the body of the dead man was.of a conclusive nature and tendency. Vandercook on the morning of the day named in the indictment (January tenth), was seen in the neighborhood of the defendant’s cabin and was then going' towards it. In the evening of that day a neighbor going to Beckwith’s cabin and before reaching it, “smelt something burning,” and on entering found Beck-with tending a large fire in his stove already red-hot, and from which came, he says, “a sizzling noise.” Beckwith explained that he was “burning pork rinds,” and was preparing “to bake.” At sometime between that evening and the twelfth of January, he disappeared, and on that day neighbors under the direction of an officer burst open the door of his cabin and searched the interior. Pieces of human bones, part of the skull and fingers, and of the hands and feet were found among ■ the ashes in the stove, and in another part of the cabin the remaining fragments of a man’s body cut to the length of stove-wood. An axe was found bloody and bearing upon it • hair of the color of Vandercook’s. There was found clothing (with blood on it), also proven to be his. “coat and vest, an arctic, a boot and a pair of pants.” The fragments of the body, when put together, outlined, so far as they went, a man of Vandercook’s size and appearance. The head was missing, the left hand and both feet gone; one of the lungs had been punctured with a a knife, or other sharp instrument; entering near the shoulder, it penetrated through into the lungs, with a downward and forward thrust from behind.” Witness says: “I traced the wound through the coat and vest and shirt directly; it corresponded with the same wound that I traced through the body ipto the lung.”

There was also in evidence the statements of the defendant, made voluntarily to persons who visited him in jail, to one, that Vandercook came into his house and “got hurt,” and to another, that he came in and “ got killed.”

After Vandercook was seen on the morning of the 10th. of January going towards the cabin of Beckwith, he did not return to his home, nor, so far as the evidence discloses, was he afterward seen alive, save by Beckwith. The confession of Beckwith was admissible in evidence: (Code of Crim. Pro., § 395; People v. Jaehne, 103 N. Y., 199; 3 N. Y. State Rep., 11), and with the testimony already in, there was “ direct proof ” within the meaning of the statute-of the death of the person alleged to.have been killed. We are also of the opinion that the evidence fully warranted the finding of the jury that Vandercook was lolled by the defendant, and that the killing was premeditated and deliberate. It was preceded by threats disclosing that intention, and which were repeated up to within a short time before the homicide. They do not, it is true, establish the guilt of the defendant, but they show that the act committed by him and otherwise proven was thought of before hand, and so premeditated. There was the intent to kill and there was malice.

The evidence shows also that the action of the defendant concurred with his intent. The wound through the back was not,, so the surgeon says, the fatal blow, although directed against a mortal part, and the condition of the axe, infected with the blood and hair, shows that another instrument was resorted to for the purpose, as may be inferred, of completing the work, in the doing of which the knife had failed. The character and course of that wound disclosed an attack from behind, made, it may be, from some place of concealment as at the door, and suddenly, on the entrance of Vandercook, at any rate there was the concurrence of a conscious purpose as indicated by threats, the opportunity foi their fulfillment, the choice of situation and the use of different weapons until the intent was accomplished. Then followed immediate, but well considered mutilation of the body into convenient parts for burning, and its attempted destruction, but especially and first such parts of it as contain peculiar marks, as the head, the hand, the foot. On the same day falsehood by Beckwith as to the thing burning in the stove and the going away of Yandercook, and his flight, taking with him all articles of value or of use in the pockets of the dead man. These are among the circumstances which might well lead the jury to the conclusion that there was on the part of the defendant, malice and intention to kill, and that the killing by him of Yandercook was in pursuance of .premeditation and deliberation, rather than the effects of sudden anger and without design. They were left to the j ury after a charge to which no exception was taken and by which they were directed to solve every doubt in favor of the defendant. They have also been dwelt upon by the general term, and after discussion by the learned and experienced judges of that court a conclusion was reached that the trial judge did not err in leaving the question to the jury as one presented upon evidence sufficient in some proper view to justify a conviction. We agree in that conclusion and think it unnecessary tó add more to, or repeat, the reasons expressed by the majority of that court (10 N. Y. State Rep., 97), affirming the conviction. The case is now a second time before us. The record on the first occasion (103 N. Y., 361; 3 N. Y. State Rep., 104), contained testimony given by the defendant. Its omission makes no room for a change in the conclusion then reached, for the essential circumstances in evidence, as they bear upon the proposition presented by'the-issue, remain the same. They have also been examined by us with an inclination in favorem vitae,, in view of the authority conferred (Laws of 1887, chap. 493, amending section ‘527, of the Code of Crim. Pro.) since the former decisions were réndered, but we are not satisfied that the verdict was against the weight of evidence, or against law, or that justice requires a new trial. We are therefore, constrained to say the appeal fails, that a new trial should be denied and the conviction and judgment affirmed.

All concur.  