A New York Criminal Lawyer said PP, about a month old, was kidnapped on the rear patio of his home in Westbury, Nassau County shortly before 3:00 P. M. on 4 July 1956. The mother found a handwritten note, reading:
‘I’m sorry this had to happen, but I am in bad need of money, & couldn’t get it in any other way.
‘Don’t tell anyone or go to the Police about this, because I am watching you closely. I am scared stiff, & will kill the baby, at your first wrong move.
‘Just put $2000 00/xxx (Two thousand, in small bills in a brown envelope, & place it next to the sign Post at the corner of Albemarle Rd. & Park Ave. at Exactly 10 o’clock tomorrow (Thursday) morning. If everything goes smooth, I will bring the baby back & leave him on the same corner ‘Safe & Happy’ at exactly 12 noon.
‘No excuses, I can’t wait!
‘Your baby sitter.’
A New York Criminal Lawyer said as instructed, the infant’s parents deposited a package of ransom money at each of the two intersections of Albemarle Road and Park Avenue. When no one arrived to collect the ransom, the packages were retrieved by the police.
A Westchester County Criminal Lawyer said that on the morning of July 10th, the kidnapper telephoned to the Weinberger home and, in accordance with his instructions, ransom money was placed in a mail box at a designated location. The kidnapper made no attempt to take that money and it, too, was retrieved.
Thereafter, a Suffolk County Criminal Lawyer said the kidnapper made a second telephone call on the afternoon of the same day, instructing the parents to bring the ransom money to one ransom money was placed in a mail Parkway in Nassau County. These directions were also followed and the ransom was deposited in a blue bag found at the designated place. A second handwritten note which was inside of the bag read:
‘If everything goes smooth the baby will be left wrapped in a Army blanket & placed at the exit of the Parkway closest to your house in exactly 1 hour.
‘Your baby sitter.’
Again, the ransom money was once ignored. It was not taken by the kidnapper and was recovered.
A week elapsed and the identity of the kidnapper and the whereabouts of PPP were still unknown.
Meanwhile, the ransom notes were submitted by the FBI to handwriting experts, who, after examining a multitude of handwritings in widespread official places, on August 22d came upon the handwriting of defendant which matched the handwriting found in the ransom notes. Defendant’s arrest followed in the early hours of August 23d.
The defendant initially denied complicity in, or knowledge of the crime. But when he was confronted with the fact that his handwriting and the handwriting of the ransom notes were identical, he sought to cast the blame for the kidnapping upon another. He claims that in jest he had written several notes similar to the ransom notes for friends and that he had thrown them in a wastebasket. He claims that someone must have taken them for use in the kidnapping.
Thereafter, he altered his story several times. Finally, he signed a typewritten statement in which he admitted the kidnapping and stated that ‘the baby was left on 5 July 1956, still alive, in the bushes by exit 37 on Northern State Parkway about 11:40 A. M., 5 July 1956.’
He was taken to Exit 37 on Northern State Parkway, and, pointing to a path near the service road, he announced that ‘it was to the right where the baby had been left.’ The area was searched until about 8:30 P. M. when darkness supervened.
The F. B. I., having determined that it was without jurisdiction of crime because no State boundaries had been crossed by the kidnapper, surrendered defendant to the Nassau County police authorities. Defendant identified JP as his accomplice. But when JP was apprehended, he recanted, claiming that he had merely wished to get JP into difficulty. He then told detectives that his accomplice was one ‘Shorty’, but although they located one ‘Streety’, who established his innocence, they were unable to locate ‘Shorty.’ That was the last information police obtained from defendant concerning any accomplice.
On the morning of 24 August 1956, the police began a systematic search of the area to which defendant had brought them the night before. There, in a wooded section, the remains of the dead body of an infant were found, together with the remnants of materials bearing pins, labels and markings identified by Mrs. W as those on the clothes worn by her child at the time of the kidnapping.
PPP died as a result of asphyxia, starvation and exposure. Although the sex of the child was beyond determination, the age was about six weeks.
The defendant was charged with, first, having kidnapped the infant and second, with having killed the infant while engaged in the commission of the kidnapping. The defendant pleaded not guilty by reason of insanity. The jury returned a verdict of guilty on both counts and did not recommend that defendant be imprisoned for the term of his natural life. Defendant was thereupon sentenced to death for each of said crimes.
On appeal before the court, the defendant contends that he is entitled to a new trial upon grounds that the Trial Judge committed reversible error (a) in refusing to charge the jury that, if they found defendant legally insane on July 4th, they would have to find him not guilty on the first count; (b) in neglecting to answer a question propounded by the jury with respect to ‘part time’ insanity; (c) in permitting the cross-examination of the defense psychiatrist on his trial testimony in the unrelated case of one EB, six months before; and (d) in refusing to charge the lesser degrees of homicide. It is also claimed that for several reasons the felony murder count should have been dismissed by the Trial Judge.
Pursuant to Code Crim.Proc., § 280 and as held in People v Jackson, People v Krank, except where time is a material ingredient of the crime the prosecution is not confined in its evidence to the precise date laid in the indictment, but may prove that the offense was committed at any time prior to the commencement of the prosecution and such proof does not constitute a material variance. Since time is not an element of the crime, the People were not limited, as defendant maintains, to proving that the kidnapping charged in the first count took place on July 4th.
Moreover, the court finds that the indictment put the defendant upon notice that he was being charged in both counts with a continuing crime a kidnapping which began on or about 4 July 1956 and continued until on or about 24 August 1956. Thus, the first count of the indictment, which bears the date 29 August 1956, charges that defendant ‘on or about 4 July 1956, wilfully and feloniously did take, carry away and detain one PPP with intent to keep and conceal said PPP from his parents and to extort and obtain money and reward for the return and disposition of said PPP.’ It goes on to assert ‘said PPP has not been released and returned alive.’
The second count charges that defendant ‘between, on or about 4 July 1956, and on or about 24 August 1956, willfully and feloniously, whilst then and there engaged in the commission of a felony, to wit, the crime and felony of Kidnaping, upon and affecting the person of one PPP, did kill said PPP.’ The indictment contains a final paragraph which reads: ‘All of the acts and transactions alleged in each of the several counts of this indictment are connected together.’
The court notes that Kidnapping, which involves the detention of another, is, by its nature, a continuing crime.
The defendant’s own psychiatrist testified that at all times defendant ‘knew the nature and quality of the act, he knew he was taking the infant and the purpose of taking the infant’ but that he did not know the act was wrong. However, the doctor admitted that on the evening of July 4th defendant said his conscience began to bother him and that on July 5th when he went back for the ransom he knew he had committed an act that was wrong.
Even if the jury accepted the testimony most favorable to defendant that of his own psychiatrist it could properly have found that on July 5th, with knowledge of the nature and quality of his acts of taking and detaining the child and of the reason for taking the child, and with knowledge that the act of detaining the child for the purpose of extorting ransom was wrong, defendant did not return the child to its parents or to the public authorities, or place it where it was certain to be found alive but, rather, continued in the unlawful purpose of attempting to extort money from the parents for the safe return of their child and continued the ‘detention’ or kidnapping by depositing the child in a secluded wooded area where there was little, if any, chance that anyone would discover him and where death was virtually certain to overtake him.
It should be noted that ‘detain’ has several meanings, one being ‘withhold.’ In a very real sense the defendant could be said to have withheld PPP from the custody of his parents when he ‘dropped’ the child where he did.
A third question asked by the jurymen, read: ‘If one should believe that the defendant was insane part of the time, during the commission of the crime must we find in favor of the defendant.’ As defendant recognizes, this question was prompted by the testimony of the defense psychiatrist that defendant did not know the difference between right and wrong at the time he took the infant but that later on the 4th of July or at least by the 5th of July he did know the difference.
The Trial Judge did not answer the question. Instead, he told the jury:
Now I think you ought to go back and deliberate a little further before I answer the next piece of paper or the next question, because it may possibly be from what I have told you so far that you may be able to deliberate and come to a possible conclusion without the third question being answered. If you cannot, then ask it again.’
Defendant argues that this question should have been answered in the affirmative and that the failure to so answer it constituted reversible error. Clearly the question could only have been answered in the negative and the failure to answer it did not constitute reversible error.
The court held in People v Cook that it is not the law that any failure by a court categorically to answer any question propounded by a jury must be reversible error. In each case the court must decide whether there was serious prejudice to the defendant’s rights. In the case at bar, to reverse, the court must find that the failure by the Trial Judge to answer the third question was prejudicial to defendant. The court cannot find such.
People v Gonzalez and People v Gezzon are relied on by defendant in support of his proposition that the Trial Judge committed reversible error in neglecting to answer the third question, are factually distinguishable from the present case. The failure to answer the questions propounded in those cases was seriously prejudicial to the defendant’s rights. Not having received an answer to the questions asked, the juries in those cases may well have felt bound to presume premeditation from the fact that defendants had gone to the scenes of the homicides each armed with a revolver. If they did so conclude, the defendants were seriously prejudiced for no such presumption is known to the law. It is clear that no harmful inference could have been drawn here.
Defendant contends, further, that it was reversible error for the Trial Judge to permit the cross-examination of the defense psychiatrist on his testimony in the unrelated trial of one EB, six months before.
While it may be true that in cross-examining the defense psychiatrist the district attorney did not distinguish between the issue to be resolved in the criminal trial and the issue to be resolved in the habeas corpus proceeding, the defendant was not prejudiced thereby for on redirect examination defense counsel explained the difference in the two proceedings through the defense psychiatrist and in his summation repeated the explanation.
It shoul be noted that after EB’s release from Matteawan ally, the defense psychiatrist testified that when he examined EB two days prior to the trial he found him to be suffering from a mental condition classified as schizophrenia of a paranoid type and that at the time of the trial itself, two days later, he was a schizophrenic. Nevertheless, one month later, without having further examined the defendant, the defense psychiatrist testified in the habeas corpus proceeding that defendant was then ‘not psychotic, not suffering from any mental disorder.’
The court believes that there is a clear inconsistency in the testimony of the defense psychiatrist that EB was suffering from a mental condition on 15 May 1956, but that he was not suffering from any mental disorder on 19 June 1956. Undoubtedly in cross-examining the doctor as he did, the District Attorney intended to impeach his credibility as a witness by demonstrating that inconsistency to the jury, and the court thinks he was entitled to do so.
The court has not ruled that every defendant charged with felony murder is entitled to a charge on the lesser degrees of homicide. A defendant may not insist upon such a charge being given unless the evidence spells out some form of common-law homicide. Defendant’s claim that a jury could properly have found him guilty of a lesser degree of homicide, viz., manslaughter, is based upon the premise that the jury should have been permitted to find that by depositing the child in the shrubbery he abandoned the kidnapping or that the kidnapping was then complete and, upon such a finding, that the act of abandoning the child was a misdemeanor under section 483 of the Penal Law proscribing the endangering of a child’s health. We are unable to adopt such a line of reasoning.
It should be noted that the defendant could not terminate or abandon the kidnapping, thereby reduce the gravity of his offense, and assure himself of an escape from the death penalty by simply leaving the helpless infant of one month of age in a place where there was little, if any, likelihood that he would be found alive.
However, the court finds no justification in this record for defendant’s premise that he could have been found guilty of manslaughter only and, so, the Trial Judge properly refused to charge the lesser degrees of homicide. In any event, the defendant was also convicted of kidnapping, a capital crime under section 1250 of the Penal Law.
Finally, defendant urges that the murder count should have been dismissed because (1) kidnapping is not a felony properly included within the scope of subdivision 2 of section 1044 of the Penal Law, defining as felony murder, a ‘killing 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’; (2) the acts constituting kidnapping merged in the homicide, and (3) the acts causing death were not committed while the kidnapping was in progress but after the kidnapping had been terminated or abandoned by the defendant’s having left the child in the woods. What was said in the last preceding paragraph renders unnecessary any discussion of this latter claim and we shall limit our discussion to points (1) and (2).
The State, through the Legislature, has decreed that a homicide constitutes felony murder, punishable by death, if it be perpetrated ‘by a person engaged in the commission of, or in an attempt to commit a felony.
One necessary qualification has been engrafted onto our felony murder rule and that it that the underlying felony must be independent of the homicide for, otherwise, every homicide, not justifiable or excusable, would occur in the commission of a felony namely, the assault which ended in death with the result that premeditation, deliberation and intent to kill would never have to be established to convict an accused of murder in the first degree akin to People v. Huter, People v Wagner and People v Moran.
The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, as, e. g., robbery or larceny or burglary or rape as held in People v. Moran.
Buel v People held that a felony murder conviction may be based upon an attempt at rape, even though death was caused by the acts of violence which constituted the felonious attempt for, ‘While force and violence constitute an important element of the crime of rape, they do not constitute the entire body of that offense.’
The defendant argues that the seizure, detention and depositing of the infant in the wooded area were but a felonious assault, aggravated to be sure, but basically an assault and that, therefore, the kidnapping merged in the homicide.
The court disagrees.
While force and violence may constitute an important element of the crime of kidnapping a child under the age of sixteen years, as they constitute an important element of the crimes of rape and robbery, they do not constitute the entire body of that offense. A taking or detaining of the infant with intent to keep or conceal it from the person having the lawful care or control of it, or to extort or obtain money or reward for the return or disposition of the child is the essence of that crime.
Therefore, the doctrine of merger is not available to the defendant.
The guilt of the defendant having been established beyond a reasonable doubt, and no error justifying reversal having been committed in the course of the defendant’s trial, his conviction must be affirmed.
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