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murder in the first degree, as defined by section 183 of the Penal Code, and at common law, but it was strenuonsly urged that the twelfth, thirteenth, fourteenth and fifteenth counts did not charge murder in the first degree, and were not good counts to charge assault in the second degree. Section 183 of the Penal Code provides, that the killing of a human being, unless it is excusable or justifiable homicide, is murder in the first degree when committed without a design to effect death, by a person engaged in the commission of or in any attempt to commit a felony either upon or affecting the person killed or otherwise. Section 218 of such last mentioned Code, provides that a person who willfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon, or willfully and wrongfully assaults another by the use of a weapon or other instrument or thing likely to produce bodily harm, under circumstances not amounting to the crime specified in the last previous section, shall be guilty of assault in the second degree. Section 221 provides that assault in the second degree is punishable by imprisonment in a penitentiary or state prison for not less than two nor more than five years. Section defines a felony to be a crime which is or may be punishable by either death or imprisonment in a state prison. Assault in the second degree is thus made a felony.

The four last mentioned counts in the indictment charge that while the defendant was engaged in committing such an assault upon Murray he was killed.

In charging murder to have been committed, while the accused was engaged in the commission of a felony, the indictment must describe the felony and state substantially facts showing that the accused was engaged in the commission thereof, when he committed the murder charged. Dolan v. People, 64 N. Y. 485, 496.

The defendant's counsel insists that a felonious assault, resulting in death, is merged in the higher offense that the words “ without a design to effect death by a person engaged in the commission of or in an attempt to commit a felony either upon or affecting the person killed or otherwise," do not include cases in which the killing resulted from intentional violence to the person killed, and where although the intent was to commit

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a felonious assault, there was no intention to kill; or in other Trords, where the felony intended, although not the felony of homicide, was the very act of personal violence which caused the death.

The proposition was discussed in Buel v. People, 18 Hun, 487; S. C., on appeal, 78 N. Y. 492; and in Cox v. People, 19 Hun, 430; S. C., on appeal, 80 N. Y. 500; but its decision was not necessary to the decision of these cases, and the point, as far as I have been able to ascertain, had not been decided when the Penal Code was enacted.

The language of chapter 333 of the Session Laws of 1876, which made killing, when perpetrated by a person engaged in the commission of any felony, murder in the first degree, as compared with section 183 of the Penal Code, passed after discussion, but before decision of this question, indicates to my mind, that the legislature intended to remove any doubt as to the construction of the statute in such a case, and to make killing effected by a party engaged in the commission of a felony upon the person killed, murder in the first degree, notwithstanding that the act which produced death was without any intent to kill. It was urged upon the argument that if a literal construction is given to section 183, no force or effect can be given to the subsequent sections defining manslaughter. An examination of these sections will show that there is no force in the argument.

Section 188 provides, that “in a case other than one of those specified in sections 183, 184,” which are the sections defining murder in the first and second degrees, homicide, not being justifiable or excusable, is manslaughter; and the next section provides, that such homicide is manslaughter in the first degree when committed without a design to effect death, either by a person committing or attempting to commit a misdemeanor affecting the person or property either of the person killed or of another, or in the heat of passion, but in a cruel or unusual manner, or by means of a dangerous weapon.

By this examination it will be seen, that the acts which constitute manslaughter, are, by the sections defining that crime, other homicides than those mentioned in the previous sections defining murder. Reflection will also convince one that man

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slaughter may be committed by acts of a person who at the time had no intent to wound or inflict grievous bodily harm.

Willfully and wrongfully wounding or inflicting grievous bodily harm upon another, either with or without a weapon, and willfully wounding or assaulting another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm, even where there is no intent to kill, are offenses from which death is likely to result.

The punishment of the party guilty of such acts from which death results with the same severity awarded to killing with intent to produce death, was intended to restrain such acts and protect life.

The language of the statute is plain and unambiguous. It ought to receive the construction that such language fairly imports in furtherance of legislative intent.

I am, therefore, of opinion that the twelfth, thirteenth, fourteenth and fifteenth counts of the indictinent, properly and sufficiently charge murder in the first degree.

The demurrer is therefore disallowed, with liberty to the defendant to plead to the indictment, and in the event of his failing to do so, a plea of not guilty must be entered, as provided by section 330 of the Code of Criminal Procedure.

Supreme Court-General Term— Fourth Department.

January, 1884.




The assent of a child, even of tender years, is a defense to a charge of

indecent assault, Declarations of the injured child after the assault, in reference to it,

defendant not being present, and there being at the time no complaint of injury by the child, are incompetent.

Evidence that in consequence of these declarations of the assaulted child,

her grandmother detained her from going to defendant's house, are incompetent.

APPEAL by defendant, Austin Persons, from a judgment of affirmance of conviction of assanlt and battery, at a Court of Sessions of Ontario County, Hon. Wm. H. Smith, County Judge, presiding, April 11, 1883.

The alleged offense was committed on May 18, 1881, and the defendant was convicted by a police justice of Canandaigua, Angust 7, 1881.

The defendant, who was a man of seventy years of age, was arrested upon a charge that he unlawfully and maliciously assaulted and beat one Gertie C. Adams, a female under ten years of age, and unlawfully and maliciously took indecent liberties with her person, with intent to pollute and prostitute said child.

The evidence strongly tended to show that the acts complained of were done with the consent of the child.

E. W. Gardner, for defendant, appellant.--Of course it is not necessary that there should be that resistance required as in an older person, but in any case where it appears that this offense charged was done with the assent of the girl the defendant cannot be convicted even of an assault.

In the case of People ex rel. Engel v. Justices of Special Sessions, 18 Hun, 330, this principle is distinctly held. People v. Bransby, 32 N. Y. 525. Roscoe in his Criminal Evidence, 7th ed., p. 301, says: “But if the indictment is for an indecent assault' only, and it appears that the child consented, the defendant must be acquitted.” And he cites upon this question : R. v. Read, 2 C. & R. 957; R. v. Johnson, 61 E. C. L. R. 632, 34 L. J. M. C. 192.

To the same effect, 1 Barbour's Crim Law, 3d ed., bottom paging 413, note, citing: Reg. v. Cockburn, 3 Cox Crim. Cas. 543; Reg. v. Read, 2 Car. & K. 957, 61 Eng. Com. Law; Rex v. Wehegan, 7 Cox Crim. Cas. 145.

In the case of Regina v. Woodhurst, 12 Cox Crim. Cases, 443, also reported in 1 Crim. Law Reps. (Green), 313, by Lust,

Justice—“You cannot convict if there has been consent, as an assault excludes consent. Consent means consent of will,” &c.

0. C. Armstrong, district attorney, for the people.

HARDIN, J.-After Gertie Adams had detailed the acts and doings of the defendant, which were alleged as the evidence of the crime, she was asked by the people: “What did your grandmother say when you went home?” This was objected to, and an exception taken to the ruling allowing the question. The answer was: “She asked me what I had done when I went there;" I told her. “She asked me how long it had been going on." I told her.

“I can't tell all she said." Then the witness was asked, viz.: " Has she let you go there since ?” This was objected to and overruled, and an exception taken. The answer was,

“ She has not." 1. The first question quoted called for a conversation held in the absence of the defendant, and was inadmissible. It was immaterial what the grandmother said to the witness, after occurrences bad taken place, which were complained of. The child had not been injured by any violence, had suffered no bodily harm, of which she was complaining, at the time of the conversation, and in no sense was the conversation between her and her grandmother a part of the res gesta. It being incompetent evidence, should not have been received.

2. The question as to whether the girl Gertie had been restrained from visiting the house of Persons after the occurrences of May 18, called for an iminaterial fact. What had been the action of the grandmother in that regard did not tend to establish any of the ingredients of the alleged crime. It must have been introduced with the view of giving the court to understand what was the judgment of the grandmother in respect to the matters which she had learned by conversation with the girl Gertie. The grandmother had no personal knowledge of the crime; her conclusion and action upon the matters,

, as she had heard them told, was immaterial, yet her action in restraining the girl may have had some influence with the court in dealing with the evidence, and considering whether a conviction of the defendant should be had

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