Supreme Court-General Term-First Department.

June, 1884.

PEOPLE v. CONROY.

MURDER IN THE FIRST DEGREE.-PREMEDITATION.

Upon the trial of an indictment framed under the first subdivision of section 183 of the Penal Code, where the evidence shows a killing with a design to effect death, but not deliberation and premeditation, the verdict cannot be anything more than murder in the second degree. The crime of murder in the first degree under such an indictment can only be shown by proof of some amount or kind of deliberation and premeditation antecedent to the act which intentionally effects the death, and of which the intent alone is not sufficient evidence. Voluntary intoxication may be considered upon the question of premeditation.

APPEAL from a judgment of the Court of General Sessions of the City and County of New York, of December 6, 1883, convicting defendant, William Conroy, of murder in the first degree.

The facts appear in the opinions.

Wm. F. Howe, for defendant, appellant.

Peter B. Olney (John Vincent, assistant), for the people, respondent.

BARRETT, J.-Conroy was convicted of murder in the first degree, upon an indictment charging him with the killing of one Keenan. The indictment is under the first subdivision of section 183 of the Penal Code; and it avers that the killing was from a deliberate and premeditated design to effect the death of Keenan.

We have gone over the evidence with care, and we are of opinion that the element of deliberation is entirely wanting. The learned judge should, as requested, have withdrawn the question of murder in the first degree from the consideration

of the jury. His instructions upon the law of the two degrees of murder were entirely accurate. But he failed to apply the facts to his definitions, and consequently the jury fell into the quite natural error of treating the many brutal and atrocious features of this homicide as the equivalant of legal evidence of deliberation. We find enough to warrant the submission to the jury of the question of murder in the second degree; that is, of killing with the design to effect the death of Keenan or of some other person, but without deliberation and premeditation. Enough, too, if the indictment had been framed under the second subdivision of section 183, and had charged the killing by an act imminently dangerous to others, and evincing a depraved mind regardless of human life, although without premeditation, to have justified the submission of murder in the first degree. But for the evidence of deliberation, we have sought in vain. Upon the contrary, the strongest testimony against Conroy points no farther than to sudden impulse. Between the impulse and the act there was no reflection, however slight or brief. There were, in fact, none of the indicia of deliberate purpose; no hesitation, no doubt overcome, no choice made as the result of thought. Indeed, the gravest question was, whether the shot was fired with any distinct and specific intent, or merely with a reckless and wanton disregard of human life.

Conroy's acts throughout were those of a ferocious ruffian inflamed by drink; but the law expressly declares that voluntary intoxication, though furnishing no excuse for a criminal act, may be considered by the jury upon the questions of intent and of the degree of crime (Penal Code, § 22). If voluntary intoxication may be considered upon the question of intent, a fortiori upon that of deliberation. The defense of insanity in our judgment entirely failed and was properly overruled by the jury. Undoubtedly Conroy was responsible for his acts in every legal sense. But the evidence upon that head, while failing to establish irresponsibility, indicated an abnormal sensitiveness to liquor, resulting from sunstroke, a fall from a loft and other incidents, fully accounting for the extraordinary mental disturbance caused by two glasses of bar-room sherry. An exhibition of violence followed each dram, and followed it almost instantly. Nothing of the kind preceded the drinking. Cer

tainly Conroy had no homicidal intent when he entered Cody's saloon. That event was purely casual. He happened to be passing, and he was invited in to drink. He then seemed to be sober. The people within were either his friends, ordinary acquaintances, or persons with whom he was entirely unacquainted. At all events, he found no enemy there. After taking a glass of what was called sherry wine, he became quarrelsome, accused a man named Cantwell of having previously betrayed his improper presence in a drinking saloon while on duty, and upon Contwell's retorting, offered to fight. In a few moments, he seemed to get entirely over this combative spirit, became, as one of the witnesses described it "happy," and invited all present to drink at his expense. Again he took a glass of the so-called sherry wine, again he became quarrelsome. At first he questioned the price of the drinks. Then Cody, to pacify him, reduced the charge from one dollar to seventy cents. Still he seemed dissatisfied, inquiring of several about him if they had drunk. He then asked a man named McGuinness what he had taken, and upon McGuinness replying "mixed ale," Conroy called him a liar. McGuinness retorted, "You are another," and thereupon Conroy struck him with his fist, knocking him down; and while McGuinness was down kicked him about the hips. This raised a tumult. The crowd "hallooed" at Conroy to let McGuinness up, and began to close in around him. Conroy then drew his club, and the crowd retreated to a card-room in the rear. As they retreated Conroy also drew his revolver, holding the club in one hand, the revolver in the other. Some one then put his head out of the card-room door and Conroy threw his club at him, missing the man's head, but smashing a pane of glass in the door. Almost immediately another pane of glass was broken from the inside of the cardroom. This evidently startled Conroy and precipitated the firing, for instantly he "wheeled to his left" with his face still towards the card-room door, and as a friend (Keating), who undoubtedly perceived that danger was imminent, grasped him by the shoulder, the revolver, to use the language of the witness Buckley, "at that instant went off."

This description is slightly varied by one of the witnesses, who says that Conroy, after breaking the pane of glass, stepped

back two or three paces, placed his club in his belt, threw open his coat, and with some difficulty, got at and drew his revolver; that, as he did so, Keating exclaimed, "For God's sake, Billy, don't fire; those are friends of mine;" and that, notwithstanding this warning, Conrey, according to the witness Cantwell, "turned round and let go that way quick as lightning."

In all this there was surely not the slightest indication of a deliberate purpose. Conroy had had no quarrel of any kind with the unfortunate man who received the bullet. In fact, he scarcely knew this man. Even the dispute with Cantwell had been composed.

McGuinness had fled and was not in the saloon. Conroy was then his own worst and only enemy.

It is palpable either that he fired without mental concentration upon any individual object, but recklessly and in utter disregard of human life (for which offense as we have seen he has not been indicted), or that fearing an attack he acted upon a sudden impulse to strike terror into the crowd by firing at the first person who stood before or about him. The extreme rapidity of Conroy's movements, the absence of threats, pre-existing ill-will or motive; the presence of self-aroused passion and sudden violence; the inappreciable space of time between the act and the earliest previous moment when it is possible to assume the flash of design; the unreasoning, senseless and frenzied condition of his mind; all tend absolutely to exclude the idea of deliberation, even within the most extreme construction which, in the interests of society, has been or can be given to this word in its present statutory relation.

The law must not be nullified, strained or perverted to meet an exceptional case nor to make an example of a particular offender.

In all the cases to which we have been referred, there was undoubted evidence of a deliberate purpose. They differ in every essential particular from the present.

In Hovey's case (29 Hun, 382; 1 N. Y. Crim. Rep. 180), the evidence of deliberation consisted of the purchase and loading of the pistol, followed directly by its use in the commission of the deed.

In Sindram's case (SS N. Y. 196), it consisted of previous

bad blood and threats, followed by preparation, the prisoner's seeking the deceased, and the deliberate firing of a second shot after the failure of the first.

In Majone's case (91 N. Y. 211; 1 N. Y. Crim. Rep. 94), it consisted in the exhaustion of any possible impulse upon the previous killing of his wife, and his proceeding with the same. weapon from the room where his first victim lay, directly to the deceased.

In Cornetti's case (92 N. Y. 85; 1 N. Y. Crim. Rep. 303), it consisted in the prisoner's taking advantage of an opportunity to secure the knife with which the crime was perpetrated, and, in shortly afterwards, without a word, approaching the deceased and stabbing him to death.

In Leighton's case (10 Abb. N. C. 261), it consisted of previons threats to injure the deceased, Mary Dean; of the prisoner seeking her out, with the razor in his pocket; and of an all-potent motive-jealousy, and her abandonment of him for another man.

The distinction between these cases and the present is marked and obvious. It is the distinction between premeditation andimpulse-between the cold-blooded or deliberate assassin and the brutal or reckless bar-room brawler.

The Legislature has chosen to make this distinction. It has enacted that the one offender shall suffer death, the other imprisonment for life. Courts and juries must not be wiser than the law. It is sufficient that it is the law, and it should be enforced loyally and with submission to the legislative wik.

We have not been unmindful of what transpired after the homicide-the prisoner's wanton shooting in the street, his stupid lying to his brother officers, his outrageous behavior to the deceased, and his declaration to Sergeant Cassidy that he "tried hard enough to shoot Keenan."

All this, however, has a more important bearing upon Conroy's mental condition as affected by the two glasses of sherry than upon the question of deliberation. In truth it is almost. inconceivable that a man capable of a deliberate murder and conscious of having committed it, should have closed the door to all hope by clubbing his dying victim, shooting at other innocent people and avoiding anything like plausibility in the