232 Cal. App. 3d 1375; 284 Cal.Rptr. 117

THE PEOPLE, Plaintiff and Respondent,

v.

VINCENT WILLIAM ACOSTA, Defendant and Appellant.

Court of Appeals of California, Fourth District, Division Three.

No.G008518.

July 31, 1991.

NOTICE: NOT CITABLE - ORDERED NOT

PUBLISHED

SUBSEQUENT HISTORY: As Modified August 2, 14, and 28, 1991. Review Denied October 31, 1991.

PRIOR-HISTORY: Superior Court of Orange County, No. C-67678, Robert R. Fitzgerald, Judge.

COUNSEL: Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant.

John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Harley D. Mayfield, Assistant Attorney General, Janelle B. Davis and John T. Swan, Deputy Attorneys General, for Plaintiff and Respondent.

JUDGES: Moore, Acting P.J., concurring in part and dissenting. Crosby, J., concurring and dissenting.

OPINION BY: WALLIN

OPINION

WALLIN, J.

Vincent William Acosta appeals his conviction on three counts of second degree murder (Pen. Code, § 187) and one count of unlawfully driving another's vehicle without consent (Veh. Code, § 10851), contending: (1) there was insufficient evidence his conduct was the proximate cause of the deaths; (2) there was insufficient evidence of malice; (3) the jury was erroneously instructed on implied malice; (4) the trial court erred in admitting his postarrest statements; and (5) his sentence constituted cruel and unusual punishment. In the published portion of the opinion, I agree with his second contention and reverse the murder convictions. I discuss his fourth contention in the unpublished portion and conclude his fifth contention is moot.

At 10 p. m. on March 10, 1987, Officers Salceda and Francis of the Santa Ana Police Department's automobile theft detail saw Acosta in Elvira Salazar's stolen Nissan Pulsar parked on the street. The officers approached Acosta and identified themselves. Acosta inched the Pulsar forward, then accelerated rapidly. He lead Salceda, Francis and officers from other agencies on a 48-mile chase along numerous surface streets and freeways throughout Orange County. The chase ended near Acosta's residence in Anaheim.

During the chase, Acosta engaged in some of the most egregious driving tactics imaginable. He ran stop signs and red lights, and drove on the wrong side of streets, causing oncoming traffic to scatter or swerve to avoid colliding with him. Once, when all traffic lanes were blocked by vehicles stopped for a red light, he used a dirt shoulder to circumvent stationary vehicles and pass through the intersection. When leaving the freeway in Anaheim, he drove over a cement shoulder.

Throughout the pursuit, Acosta weaved in and out of traffic, cutting in front of other cars and causing them to brake suddenly. At one point on the freeway, he crossed three lanes of traffic, struck another car, jumped the divider between the freeway and a transition lane, and passed a tanker truck, forcing it to swerve suddenly to avoid a collision.

Acosta generally drove at speeds between 60 and 90 miles per hour, slowing only when necessary. During several turns, his wheels lost traction. When an officer was able to drive parallel to the Pulsar for a short distance, Acosta looked in his direction and smiled. Near the end of the chase, one of the Pulsar's front tires blew out, but Acosta continued to drive at 55 to 60 miles per hour, crossing freeway traffic lanes.

Police helicopters from Anaheim, Costa Mesa, Huntington Beach, and Newport Beach assisted in the chase by tracking Acosta. During the early part of the pursuit, the Costa Mesa and Newport Beach craft were used, pinpointing Acosta's location with their high beam spotlights. The Costa Mesa helicopter was leading the pursuit, in front of and below the Newport Beach helicopter. As they flew into Newport Beach, the pilots agreed the Newport Beach craft should take the lead. The normal procedure for such a maneuver is for the lead helicopter to move to the right and swing around clockwise behind the other craft while climbing to an altitude of 1,000 feet. At the same time, the trailing helicopter descends to 500 feet while maintaining a straight course.

At the direction of the Costa Mesa pilot, the Newport Beach helicopter moved forward and descended while the Costa Mesa helicopter banked to the right. Shortly after commencing this procedure, the Costa Mesa helicopter, having terminated radio communication, came up under the Newport Beach helicopter from the right rear and collided with it. Both helicopters fell to the ground. Three occupants in the Costa Mesa helicopter died as a result of the crash.

Menzies Turner, a retired Federal Aviation Administration (FAA) investigator, testified as an expert and concluded the accident occurred because the Costa Mesa helicopter, the faster of the two aircraft, made a 360-degree turn and closed too rapidly on the Newport Beach helicopter. He opined the Costa Mesa helicopter's pilot violated an FAA regulation prohibiting careless and reckless operation of an aircraft by failing to properly clear the area, not maintaining communication with the Newport Beach helicopter, failing to keep the other aircraft in view at all times, and not changing his altitude. He also testified the Costa Mesa pilot violated another FAA regulation prohibiting operation of one aircraft so close to another as to create a collision hazard.^[2]

Turner could not think of any reason for the Costa Mesa helicopter's erratic movement. The maneuver was not a difficult one, and was not affected by the ground activity at the time. He had never heard of a midair collision between two police helicopters involved in tracking a ground pursuit, and had never investigated a midair collision involving helicopters.^[3]

After his arrest Acosta told the police he knew the Pulsar was stolen and he fled the police to avoid arrest. He also saw two helicopters with spotlights, and turned off the Pulsar's lights to evade them. Acosta knew that his flight was dangerous "to the bone," but he tried to warn other cars by flashing the car lights and by otherwise being "as safe as possible."

I

Acosta claims there was insufficient evidence of two elements necessary to support the convictions for second degree murder: that he proximately caused the deaths of the victims, and that his state of mind constituted implied malice. (People v. Scola (1976) 56 Cal.App.3d 723, 726 [128 Cal.Rptr. 477] [proximate cause]; People v. Spring (1984) 153 Cal.App.3d 1199, 1204 [200 Cal.Rptr. 849] [malice].) He is correct on the latter claim.

As to the proximate cause issue, Acosta argues that although a collision between ground vehicles was a foreseeable result of his conduct, one between airborne helicopters was not, noting his expert had never heard of a similar incident. He also contends the Costa Mesa helicopter pilot's violation of FAA regulations was a superseding cause. Because the deaths here were unusual, to say the least, the issue deserves special scrutiny.

Proximate cause in criminal cases is determined by ordinary principles of causation. (People v. Armitage (1987) 194 Cal.App.3d 405, 420 [239 Cal.Rptr. 515].)^[4] It is initially a question of fact for the jury to decide. (People v. Harris (1975) 52 Cal.App.3d 419, 427 [125 Cal.Rptr. 40].) When the sufficiency of the evidence is challenged, the court is not required to ""ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." [Citation omitted.] Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.]" (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R 4th 1255].)

"In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court 'must . . . presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citations.] The court does not, however, limit its review to the evidence favorable to the respondent. . . . '[O]ur task . . . is twofold. First, we must resolve the issue in the light of the whole record i.e., the entire picture of the defendant put before the jury and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements . . . is substantial ; it is not enough for the respondent simply to point to "some" evidence supporting the finding, for "[n]ot every surface conflict of evidence remains substantial in the light of other facts." [Citation.]" (26 Cal.3d at pp. 576-577.)

To determine whether Acosta's conduct was not, as a matter of law, a proximate cause of death of the Costa Mesa helicopter's occupants, I enter a legal realm not routinely considered in published California cases. When a causation issue arises, it does so almost invariably in homicide cases (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Elements of Crime, § 126, p. 146), and often involves a discussion of the subject severely limited to an expedient disposition of the narrow question at hand. This leaves the possibility for misapprehension about the number of factors which actually should be (or implicitly were) considered in resolving the issue. ^[5] I approach the issue broadly because several theoretical concepts of proximate cause impinge on this case.

"Proximate cause" is the term historically used^[6] to separate those results for which an actor will be held responsible from those not carrying such responsibility. The term is, in a sense, artificial, serving matters of policy surrounding tort and criminal law and based partly on expediency and partly on concerns of fairness and justice. (Perkins & Boyce, supra , at p. 776.) Because such concerns are sometimes more a matter of "common sense" than pure logic, the line of demarcation is flexible, and attempts to lay down uniform tests which apply evenly in all situations have failed. (Id . at pp. 776-777.) That does not mean general guidelines and approaches to analysis cannot be constructed.

The threshold question in examining causation is whether the defendant's act was an "actual cause" of the victim's injury. It is a sine qua non test: But for the defendant's act would the injury have occurred? Unless an act is an actual cause of the injury, it will not be considered a proximate cause. (Perkins & Boyce, supra , at pp. 771-772, 774; see People v. Capetillo (1990) 220 Cal.App.3d 211, 220 [269 Cal.Rptr. 250] [defendant's joyriding not shown to be the cause of accident]; People v. Scola, supra , 56 Cal.App.3d at p. 726 [defendant's speeding was actual cause of accident].)^[7]

The next inquiry is whether the defendant's act was a "substantial factor" in the injury. This test excludes those actual causes which, although direct, play only an insignificant role in the ultimate injury.^[8] Although there is no strict definition, the Restatement Second of Torts, supra , section 433, lists considerations in determining whether a factor is "substantial": (1) the number and extent of other factors contributing to the harm; (2) whether the forces created by the actor are continuous in producing the harm or merely create a condition upon which independent forces act; and (3) any lapse of time between the act and the harm. (Rest.2d Torts, supra , § 433, at p. 433.)

In California, the substantial factor issue has arisen most often where multiple causes act concurrently, but independently,^[9] to produce the harm.^[10] The test is one of exclusion only. Unless a cause is a substantial factor in the harm it will not be considered a proximate cause, but some substantial factor causes may not be deemed proximate causes. (Perkins & Boyce, supra , at p. 780; see People v. Caldwell, supra , 36 Cal.3d at pp. 220-221 [citing Perkins & Boyce]; People v. Pike (1988) 197 Cal.App.3d 732, 746 [243 Cal.Rptr. 54].)^[11]

A related concept which may lead to a refusal to treat an actual cause as a proximate cause is where a force set in motion by the defendant has "come to rest in a position of apparent safety.'" (Perkins & Boyce, supra , at pp. 780-781; see People v. Caldwell, supra , 36 Cal.3d at pp. 219-220.) Perkins and Boyce give the example of the actor who dislodges a rock which comes to rest against a tree. If the tree bends or breaks six months later, releasing the rock, the original action is not considered the proximate cause of any resulting harm. (Perkins & Boyce, supra , at p. 780.)^[12]

To this point I have spoken only of direct causes, "[causes] which produce[] a result without the aid of any intervening cause . . . ." (Perkins & Boyce, supra , at p. 787.) Because it is tautological, the definition is of little value in identifying a cause in the absence of a working definition of an indirect cause. However, Perkins and Boyce list several examples of direct causation, headed by the observation that, "If sequences follow one another in such a customary order that no other cause would commonly be thought of as intervening, the causal connection is spoken of as direct for juridical purposes even though many intervening causes might be recognized by a physicist." (Id . at p. 788, italics added.)

The critical concept at this juncture is that a direct cause which is a substantial factor in the ensuing injury is almost always a proximate cause of it. (Id. at pp. 788-790; see People v. French (1978) 77 Cal.App.3d 511, 523-525 [143 Cal.Rptr. 782] [defendant's drunk driving was direct cause of bicyclist's death].) This is so even if the result is exacerbated by a latent condition in the victim or caused by a third party. (People v. Fugatt * (Cal.App.) [drunken defendant struck allegedly defective gas tank of victims' car]; People v. Stamp (1969) 2 Cal.App.3d 203, 210-211 [82 Cal.Rptr. 598] [defendant triggered heart attack in store clerk during armed robbery]; 1 Witkin & Epstein, supra , at pp. 147-148.)^[13] The only exception is where the result is "highly extraordinary" in view of its cause. (See Rest.2d Torts, supra , § 435, p. 449.)^[14]

However, the defendant is not always the direct cause of the harm. Sometimes forces arise between the act of the defendant and the harm, called "intervening causes." They are of two types, dependent and independent, and include acts of God. (1 Witkin & Epstein, supra , at pp. 148-150; Perkins & Boyce, supra , at p. 791.)

An intervening cause is dependent if it is a normal or involuntary response to, or result of, the defendant's act. (1 Witkin & Epstein, supra , at p. 148; see also Perkins & Boyce, supra , at p. 791 ["[a]n intervening cause . . . produced by the first cause."].) These include flight and other voluntary or involuntary responses of victims, as well as defense, rescue and medical treatment by third parties. Even where such responses constitute negligent conduct, they do not supersede the defendant's act; i.e., they are nevertheless considered proximate causes of the harm. (People v. Armitage, supra , 194 Cal.App.3d at p. 420 [victim foolishly chose to attempt to swim to shore after defendant capsized the boat]; Perkins & Boyce, supra , at pp. 792-809.)^[15]

Conversely, when the defendant's conduct merely places the eventual victim in a position which allows some other action to cause the harm, the other action is termed an independent intervening cause. It usually supersedes the defendant's act; i.e., precludes a finding of proximate cause. (Perkins & Boyce, supra , at pp. 791, 809 ["merely happen[s] to take effect upon a condition created by the first cause[;] [P] operates upon a condition produced by an antecedent [cause] but is in no sense a consequence thereof"]; 1 LaFave & Scott, supra , at pp. 406-407 [distinguishing matters of "response" from matters of "coincidence"]; see 1 Witkin & Epstein, supra , at pp. 149-150.) The issue usually arises when the victim has been subjected to the independent harm after being disabled by the defendant, or is somehow impacted by the defendant's flight. (See People v. Pike, supra , 197 Cal.App.3d at pp. 747-748 [one police officer killed when struck by another while pursuing defendant]; People v. Harris, supra , 52 Cal.App.3d at p. 426 [pursuing officer kills third party while pursuing defendant]; Perkins & Boyce, supra , at pp. 809-811 [falling stone hits man disabled by defendant; girl recovering from gunshot wound contracts scarlet fever from treating physician; bystander kicks to death victim knocked down by defendant; decedent may have inexplicably run into fire caused by defendant].)

An independent intervening variable will not be superseding in three instances: (1) where it is merely a contributing cause to the defendant's direct cause;^[16] (2) where the result was intended; or (3) where the resultant harm was reasonably foreseeable when the act was done. (Perkins & Boyce, supra , at pp. 809-810; see also 1 Witkin & Epstein, supra , at p. 150; 1 LaFave & Scott, supra , at pp. 413-415.) As to the third exception, "[t]he consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. . . . The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' [Citation.]" (People v. Harris, supra , 52 Cal.App.3d at p. 427.)

As Perkins and Boyce put it, "Foreseeability' is not a 'test' which can be applied without the use of common sense; it presents one of those problems in which 'we must rely on the common sense of the common man as to common things.' It is employed in the sense of 'appreciable probability.' It does not require such a degree of probability that the intervention was more likely to occur than not; and on the other hand it implies more than that someone might have imagined it as a theoretical possibility. It does not require that the defendant himself actually thought of it. For the purposes of proximate cause 'an appreciable probability is one which a reasonable man in ordering his conduct in view of his situation and his knowledge and means of knowledge, should, either consciously or unconsciously, take into account in connection with the other facts and probabilities then apparent.'" (Perkins & Boyce, supra , at pp. 817-818, fns. omitted.)^[17]

Prosser and Keeton, in an in-depth discussion of the dynamics of foresight, conclude that although it is desirable to exclude extremely remarkable and unusual results from the purview of proximate cause, it is virtually impossible to express a logical verbal formula which will produce uniform results. (Prosser & Keeton, supra , at p. 300.) I agree. The standard should be simply stated, exclude extraordinary results, and allow the trier of fact to determine the issue on the particular facts of the case using "the common sense of the common man as to common things.'" (Perkins & Boyce, supra , at p. 817.)^[18] As with other ultimate issues, appellate courts must review that determination, giving due deference to the trier of fact.

The "highly extraordinary result" standard serves that purpose. It is consistent with the definition of foreseeability used in California. (See People v. Harris, supra , 52 Cal.App.3d at p. 427.) It does not involve the defendant's state of mind, but focuses upon the objective conditions present when he acts.^[91] Like numerous other legal definitions, what it means in practice will be determined as case law develops. Limitations arising from the mental state of the actor can be left to concepts like malice, recklessness and negligence.

Because the highly extraordinary result standard is consistent with the limitation on direct causes, it simplifies the proximate cause inquiry. The analysis is: (1) was the defendant's conduct the actual cause of the harm (but for his actions would it have occurred as it did)? (2) was the result an intended consequence of the act? (3) was the defendant's action a substantial factor in the harm? and (4) was the result highly extraordinary in light of the circumstances?

If the first question is answered no, proximate cause is lacking. If answered yes, the next question must be examined. If the second question is answered yes, proximate cause is established. If answered no, the next question must be examined. If the third question is answered no, proximate cause is lacking. If answered yes, proximate cause is established unless the fourth question is answered yes, in which case it is lacking. The analysis does away with the need to consider the distinction between direct, concurrent, contributory, and dependent and independent intervening causes. It focuses, as it should, upon the role the defendant's act played in the harm, limiting culpability only where the conduct was de minimis or the result highly extraordinary. (See Perkins & Boyce, supra , at pp. 823-824 [using a similar approach].)

Here, but for Acosta's conduct of fleeing the police, the helicopters would never have been in position for the crash. However, there was no evidence he intended the harm, so I must examine questions three and four.

Although an extremely close question, Acosta's conduct was a substantial factor in causing the crash. He was fleeing when the accident occurred, and there was no lapse of time between his flight and the crash his action had not "come to rest." The only other factor operating at the time was the improper flight pattern of the Costa Mesa pilot. Although Acosta's horrendous driving did not cause the helicopter's improper maneuver, his flight undoubtedly infused excitement and tension into the situation, which can be considered to be a substantial factor. No similar case has held otherwise, although the third party collisions all have involved accidents on the ground. (See People v. Pike, supra , 197 Cal.App.3d 732; People v. Harris, supra , 52 Cal.App.3d 419; see also People v. Kemp (1957) 150 Cal.App.2d 654 [310 P.2d 680] [drag racer was proximate cause of accident involving the other racer].)

The result was not highly extraordinary.^[20] Although a two-helicopter collision was unknown to expert witness Turner and no reported cases describe one, it was "a possible consequence which reasonably might have been contemplated.'" (People v. Harris, supra , 52 Cal.App.3d at p. 427.) Given the emotional dynamics of any police pursuit, there is an "appreciable probability" that one of the pursuers, in the heat of the chase, may act negligently or recklessly to catch the quarry. (Perkins & Boyce, supra , at p. 817.)^[21] That no pursuits have ever before resulted in a helicopter crash or midair collision is more a comment on police flying skill and technology than upon the innate probabilities involved.^[22]

Justice Crosby's opinion parts company with this analysis, reasoning that "neither the intervening negligent conduct nor the risk of harm was foreseeable." (Separate opn. of Crosby, J., post , at p. 1407.) He justifies this conclusion by reference to the well-traveled opinion of Justice Cardozo in Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339 [162 N.E. 99, 100, 59 A.L.R. 1253]. Reliance on Palsgraf reveals the error in the analysis.^[23] Justice Cardozo approached the problem from the perspective of duty, concluding that the defendant owed no duty of care to an unforeseeable plaintiff. Although the interesting facts and novel analysis of Palsgraf^[24] have made it a favorite in law school texts, the four-to-three decision is not the gospel on proximate cause. (See generally Prosser & Keeton, supra , at pp. 273-274, 280-281, 284-289.) Because of its confusion between foreseeability as it relates to negligence and as it relates to causation, I have eliminated it from the proximate cause analysis.

Doing so avoids the undesirable risk of completely absolving a defendant of all liability on causation grounds when morally he should suffer some punishment for the consequences. When a defendant is the actual and substantial cause of the harm,^[25] the consequences of the act should depend upon the mens rea involved. (See Perkins & Boyce, supra , at p. 813; 1 LaFave & Scott, supra , at pp. 398-399.)

The undisputed facts of this case mandate the result. Contrary to Justice Moore's assertion (separate opn. of Moore, J., post , at p. 1400), I do not find the result extraordinary, but almost so. I presume he does not dispute that it was extremely unusual. In fact, he cites no similar instances of aircraft colliding during police pursuits.^[26] But neither does Justice Crosby cite any case to support his claim the result was highly extraordinary. ^[27]

Neither concurring opinion offers case law "on all fours," suggesting this case is unique and presents a close question. Partly because this is so, it is appropriate to rely on two compelling factors: the jury found proximate cause based on proper instructions,^[27] and the dearth of case law to support a rejection of that finding. Given these circumstances, a finding of proximate cause is appropriate.^[28]

II

Acosta also contends the evidence was insufficient as a matter of law to show he acted with malice, arguing it failed to establish he acted with a conscious disregard for a substantial risk of death. I agree.

Penal Code section 188 defines malice: "[It] may be express or implied. It is express when there is manifested a deliberate intention unlawfully to [kill]. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart."

No contention is made that Acosta intentionally killed the victims. I deal with implied malice, a concept not well defined by the statute. (People v. Dellinger (1989) 49 Cal.3d 1212, 1217 [264 Cal.Rptr. 841, 783 P.2d 200].) Over the years the cases expressed the concept two ways. As People v. Dellinger, supra , described it, "[In one line of cases] we construed . . . implied malice as that state of mind where 'the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.' [Citations.] [P] [In another line of cases], we phrased the definition in a different way, holding that malice is presumed when '"the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." [Citations.]" (Id . at p. 1218.)

The definitions contained two notable differences. The first mentions a wanton disregard for life, but the second uses a conscious disregard for life. And the first definition speaks of a high probability of death, while the second refers to consequences which are merely dangerous to life. Later cases remedied confusion arising from these disparities.

In People v. Watson (1981) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279], the Supreme Court held that "a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]" (Id . at pp. 296-297.) This conclusion comports with the analyses of the major commentators. (Perkins & Boyce, supra , at p. 858 ["heedless disregard of a harmful result, foreseen as a likely possibility"]; 2 LaFave & Scott, Substantive Criminal Law (1986) § 7.4, p. 205 ["to convict of murder . . . subjective realization should be required"].) People v. Dellinger, supra , 49 Cal.3d at page 1221 held that the term "conscious disregard for human life" best expresses the subjective appreciation standard.

Whether there must be a high probability of death arising from the defendant's conduct was considered by the Supreme Court in People v. Patterson (1989) 49 Cal.3d 615 [262 Cal.Rptr. 195, 778 P.2d 549], a second degree felony-murder case. A majority of the court found that a high probability of death was necessary for second degree felony murder because that is the standard required to show implied malice. In doing so it relied on substantial precedent. (Id . at pp. 626-627, 640-641; see also People v. Davenport (1985) 41 Cal.3d 247, 262 [221 Cal.Rptr. 794, 710 P.2d 861]; People v. Watson, supra , 30 Cal.3d at p. 300; People v. Poddar (1974) 10 Cal.3d 750, 757 [111 Cal.Rptr. 910, 518 P.2d 342]; People v. Spring, supra , 153 Cal.App.3d at p. 1205.)^[29] I can only conclude the requirement for implied malice is that there be a high probability that death will result from the defendant's act.^[30]

Thus, to sustain Acosta's conviction, I must conclude that a reasonable jury could find beyond a reasonable doubt (see People v. Johnson, supra , 26 Cal.3d at p. 576) that Acosta committed an act with a high probability it would result in death and a conscious disregard for the risk involved. (People v. Watson, supra , 30 Cal.3d at pp. 296-297, 300.)^[31] Our first task is to identify "the risk involved."

Relying on People v. Albright (1985) 173 Cal.App.3d 883, 886-887 [219 Cal.Rptr. 334], the Attorney General asserts the risk is that to human life in general. In Albright the court rejected the defendant's claim that the evidence must show he consciously disregarded the risk to the life of the ultimate victim. The court reasoned: "Nowhere in its opinion did the [court in People v. Watson, supra , 30 Cal.3d 290] suggest implied malice requires awareness of life-threatening risk to a particular person. Instead, implied malice may be found under Watson whenever, inter alia, the facts establish a defendant's awareness and conscious disregard that his conduct poses a high probability of death to some person. [Citation.] A contrary construction would lead to absurd results, and would conflict with numerous decisions by courts of this and other states. [Citations.]" (Id . at p. 887, fn. omitted.)

The result in Albright was correct. The suicidal defendant drove at speeds of 90 to 110 miles per hour while under the influence of alcohol, missing 3 cars but striking the last and killing the occupant. There was no requirement that he consciously disregard the safety of the actual victim to be guilty of murder. But if the Albright court meant to say he was liable for any death which ensued if he consciously disregarded the life of anyone , I respectfully disagree. I review the cases and authorities relied upon in Albright to discern the basis for the court's statement.

The first case cited was a decision by this court, People v. Spring, supra , 153 Cal.App.3d 1199. There, we said, "Malice aforethought neither presupposes nor requires any ill will or hatred of a particular victim." (Id . at p. 1204.) But the facts involved a direct physical assault by the defendant upon the victim. The emphasis was upon the absence of an ill will requirement, not the culpability of a defendant whose assault fells an unexpected victim.

Likewise, similar statements in People v. Poddar, supra , 10 Cal.3d at pages 759-760 and People v. Conley (1966) 64 Cal.2d 310, 321-322 [49 Cal.Rptr. 815, 411 P.2d 911] were general in nature and directed to diminished capacity issues. People v. Marcy (Colo. 1981) 628 P.2d 69, an out-of-state case, involved a man who shot his wife. The statement that ""extreme indifference to human life," by definition, does not address itself to the life of the victim, but to human life generally,'" was quoted as part of a discussion distinguishing Colorado's extreme indifference murder from an intentional killing. (Id . at p. 76.)

The only case cited in People v. Albright, supra , 173 Cal.App.3d 883 which dealt with a "nonspecific" victim was People v. Stein (1913) 23 Cal.App. 108 [137 P. 271]. (173 Cal.App.3d at p. 887.) There, the drunken defendant, apparently angered by noise emanating from an electric piano at the hotel where he was staying, ran into the room and fired five shots into the assembled crowd, killing a man.^[32] In affirming the judgment, the court opined, "The deliberate and unnecessary discharging of a gun into a multitude of people, with an utter disregard of the consequences of the act, whereby human life is destroyed, is murder, and malice will be implied, although the perpetrator of the act had no malice against any particular person of the multitude into which he so fired. [Citation.]" (23 Cal.App. at pp. 114-115, italics added.)

The statement of law is correct. If the defendant had "malice," in either the legal or informal sense, against the ultimate victim, the logical conclusion would be that the killing was intentional and done with "actual" malice. (Pen. Code, § 188.) But in both People v. Stein, supra , 23 Cal.App. 108 and People v. Albright, supra , 174 Cal.App.3d 883, the ultimate victim came from that group which his reckless act directly put at risk. In Stein it was the crowd in the piano room; in Albright it was motorists on the street. Factually, neither of these cases can stand for the proposition that if a defendant acts recklessly toward a discernable high risk group, he is strictly liable for a death which might occur outside the group.

Under the definition of implied malice, the defendant's conduct must carry a high probability of death. It is that risk which the defendant must consciously disregard and which must result in the death . Any other interpretation would allow a defendant to be held culpable for murder based upon a death which was barely foreseeable,^[33] and which had no conscious disregard associated with it.

Our Supreme Court has not countenanced such a result. In People v. Caldwell, supra , 36 Cal.3d 210, the defendant claimed that affirming his vicarious liability murder conviction^[34] would result in a "cleavage between culpability and criminal liability . . . ." (Id . at p. 223.) The court responded that "a common sense recognition of the idea that an act should be considered in the light of its natural and foreseeable results when they occur [citation] does not preclude inquiry into the felons' subjective knowledge of the likely result of their actions; rather, it informs the inquiry. The proper focus on the individual culpability of accomplices is retained by the requirement that one or more of them engage in conduct which it is highly probable (not merely foreseeable) will result in death, evincing a conscious disregard of human life. [Citations.]" (Ibid .)^[35]

The victim in Caldwell , an accomplice of the defendants as, along with the defendants, a felon who resisted capture by a display of arms, and within the group which faced a high probability of death. The victims here were not. The group of persons on the ground near Acosta faced a high probability of death. But he did not kill someone there and the risk created for the group in the air was minimal. Acosta's flight only caused the helicopter pilots to "be there." There is not a jot of evidence his frenetic style of driving affected the helicopter's pursuit in any way, let alone caused the negligent flying of the Costa Mesa pilot. As to the victims, his conduct did not create a high probability of death.^[36] No juror could have reasonably found to the contrary.

Furthermore, there is no evidence Acosta had a conscious disregard for any risk to the helicopters. Although he stated he knew his conduct was dangerous "to the bone," nothing connected the statement to the aerial surveillance. His knowledge that there were helicopters involved in the pursuit does not suffice. In the absence of more evidence, no reasonable juror could find a conscious disregard for a risk which is barely objectively cognizable.^[37]

III

Amicus curiae argues the prosecution's special instruction on the issue of proximate causation was erroneous. Taken together, however, the instructions adequately advised the jury.^[38]

The trial court gave four instructions on proximate cause. One was a modified combination of CALJIC No. 3.41 (5th ed. 1989 pocket pt.), and No. 8.56 (5th ed. 1988) and discussed concurrent casues and proximate cause in general.^[39] The other three dealt with the concept of intervening causes. The first two were submitted by Acosta and the third by the prosecution.^[40]

Jury instructions must be read together and their correctness determined from the entire charge given, not from parts of an instruction or one instruction alone. (People v. Burgener (1986) 41 Cal.3d 505, 538-539 [224 Cal.Rptr. 112, 714 P.2d 1251]; People v. Talamantez (1985) 169 Cal.App.3d 443, 454 [215 Cal.Rptr. 542].) The prosecution's special instruction cannot be considered in a vacuum. Through all of the instructions, the court properly explicated the concepts of proximate cause: actual cause, substantial factor, concurrent cause, intervening cause and extraordinary results. The court advised the jury to exonerate Acosta if it found the helicopter collision to be highly unusual or extraordinary. Amicus curiae does not contend the other proximate causation instructions were erroneous or deficient. At worst, the prosecution's instruction was superfluous.

The language of the prosecution's instruction was taken, almost verbatim, from four cases. (People v. Pike, supra , 197 Cal.App.3d at pp. 747, 749; People v. Armitage, supra , 194 Cal.App.3d at pp. 420-421; People v. Harris, supra , 52 Cal.App.3d at p. 427; People v. Hebert (1964) 228 Cal.App.2d 514, 521 [39 Cal.Rptr. 539].) Although the instructions were not stated in the simplified terms I have set forth, they were ample and cogent.

IV *

[Text omitted.]

The judgment is reversed on the murder counts and is affirmed in all other respects.^[43]

CONCUR BY: MOORE (In part) CROSBY (In part)

DISSENT BY: MOORE (In part) CROSBY (In part)

DISSENT

MOORE, Acting P. J., Concurring and Dissenting.

I dissent. Once again, the lead opinion of this court expresses its antipathy with the concept of implied malice by ignoring Supreme Court precedent. In People v. Dellinger (1989) 49 Cal.3d 1212 [264 Cal.Rptr. 841, 783 P.2d 200], the Supreme Court reversed this court, holding the "wanton disregard for human life" definition of implied malice, while not as comprehensible as the "conscious disregard for human life" standard, was equivalent to the latter test and adequately conveyed to a jury the requirement that the defendant subjectively realize his or her conduct presents a life-threatening risk to others. (Id . at pp. 1215, 1219-1221.) The court specifically approved the definition of implied malice contained in the most recent revisions of CALJIC Nos. 8.11 and 8.31 (5th ed. 1988 bound vol.). (49 Cal.3d at p. 1222.) Nonetheless, the lead opinion now wants to create a new definition of implied malice and then employ it to conclude the evidence does not support appellant's conviction for murder. Justice Crosby's concurrence and dissent finds no criminal liability at all because the victims were in aircraft, not ground units.^[1]

With respect to the other issues presented in this case, I concur in the result, though not the lead opinion's reasoning concerning the sufficiency of the evidence and instruction of the jury on proximate cause. I also agree appellant's postarrest statements were properly admitted at trial. Finally, I would conclude the lower court's sentence was proper. The judgment should be affirmed in its entirety.

I. Proximate Cause

I agree the evidence supports the jury's finding appellant proximately caused the victims' deaths. But I find the lead opinion's creation of a new test for proximate cause unnecessary and inappropriate. I also conclude the lower court's instructions on proximate cause were correct.

"The question whether defendant's acts or omissions criminally caused the victim's death is to be determined according to the ordinary principles governing proximate causation. [Citations.] Proximate cause of a death has traditionally been defined in criminal cases as 'a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.' [Citations.]" (People v. Armitage (1987) 194 Cal.App.3d 405, 420 [239 Cal.Rptr. 515].)

Negligence on the part of the victim or another will not necessarily break the chain of causation. (People v. Armitage, supra ,194 Cal.App.3d at p. 420; People v. Harris (1975) 52 Cal.App.3d 419, 426 [125 Cal.Rptr. 40].) "Although defendant's own unlawful act must be a proximate cause of the death, negligence on the part of the victim is not a defense to criminal liability. [Citations.] Moreover, defendant's conduct can be a proximate cause of a death even where death results from collision with a third vehicle. [Citations.] . . . [P] A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability. [Citation.] '(1) The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. (2) The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' [Citation.]" (People v. Harris, supra , at pp. 426-427.)

The present case is analogous to prior cases. In People v. Harris, supra , 52 Cal.App.3d 419, the Court of Appeal reversed the dismissal of a vehicular manslaughter prosecution where a police car pursuing defendant in a high speed chase collided with another vehicle killing one of its passengers. "It was reasonably foreseeable that the officers would continue to chase him as he speeded recklessly and circuitously over public thoroughfares and failed to stop at boulevard stops, thus setting in motion circumstances creating peril to others on the public streets and a high probability that collisions, injuries and deaths would occur in the course of the chase." (Id . at p. 427.)

In People v. Pike (1988) 197 Cal.App.3d 732 [243 Cal.Rptr. 54], the Court of Appeal affirmed a vehicular manslaughter conviction that arose when two police cars pursuing the defendant in a high-speed chase collided resulting in the death of one of the officers. The evidence reflected the deceased officer's negligence contributed to the collision. (Id . at pp. 748-750.) Citing Harris , the court stated: "Defendant's . . . acts consisted of his seeking to elude the pursuing law enforcement officers by charging through traffic at extremely high speeds. . . . The speeds, places, conditions and methods of driving were primarily dictated by defendant; he chose the route and speeds. Predictably, the officers chose to follow suit . . . . The probability that this might result in one or both of the officers losing control and/or colliding with another vehicle or some object is sufficient to establish that defendant's conduct was a cause that, in natural and continuous sequence, produced [the officer's] death and without which that death would not have occurred. [Citations.]" (Id . at pp. 749-750.)

I fail to see any significant difference between Pike, Harris and this case. Three persons died when two police vehicles collided during a nighttime, high-speed vehicle pursuit between contiguous cities located in a densely populated area. The pursuit arose when appellant chose to flee rather than submit to a detention by two police officers.

The mere fact the collision involved aircraft rather than ground vehicles is a distinction without a difference. The use of helicopters by the police is well known; their advantage in assisting ground units to locate and pursue a fleeing vehicle is obvious. Given the route chosen by appellant, it was foreseeable police helicopters from different cities would participate in the chase. Furthermore, appellant knew that more than one helicopter was involved in the chase. The possibility that during the nighttime chase one of the helicopter pilots might negligently operate his craft and thereby cause a midair collision was as foreseeable as the negligent operation of the police cars in Pike and Harris .

Both the lead opinion and Justice Crosby's opinion suggest the helicopter collision was an "extraordinary" event, noting research has not unearthed any prior case involving a similar incident. (Lead. opn., ante , at pp. 1380, fn. 3; 1389; 1391, fn. 27: separate opn. of Crosby, J., post , at p. 1408.) But this case does not present the first recorded collision between two aircraft while in flight. Over the past several years there have been several incidents of either midair collisions or "near misses" between aircraft. Furthermore, these incidents occurred in routine flight operations. Indeed, many experts have expressed a concern that the potential for midair collisions between aircraft is increasing. If such accidents occur between aircraft engaged in routine operations, it should come as no surprise that two police helicopters participating in the nighttime pursuit of a fleeing motorist might also collide with each other.

The mere fact a midair collision between two helicopters has never occurred before does not defeat the existence of proximate cause. In Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40 [123 Cal.Rptr. 468, 539 P.2d 36], defendant radio station conducted a contest where listeners could win prizes by being the first to locate a radio personality at specified locations in the Los Angeles area. During the contest, two participants in the contest were following the radio personality. While maneuvering for position, the two participants forced plaintiffs' decedent's car onto the center divider where it overturned. Plaintiffs successfully sued the participants and radio station for wrongful death. The station appealed. Claiming it owed no duty to the decedent because of its conduct, the station argued the accident was not foreseeable because there had been no similar prior injury.

The Supreme Court affirmed, rejecting the station's argument. "Such an argument confuses foreseeability with hindsight, and amounts to a contention that the injuries of the first victim are not compensable. 'The mere fact that a particular kind of an accident has not happened before does not . . . show that such accident is one which might not reasonably have been anticipated.' [Citation.] Thus, the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts." (Weirum v. RKO General, Inc., supra , 15 Cal.3d at p. 47.)

This case presents an analogous situation. While Weirum involved the question of a defendant's duty to exercise due care, the test of foreseeability is the same where the issue is proximate cause. (Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 1159 [221 Cal.Rptr. 675]; Bilyeu v. Standard Freight Lines (1960) 182 Cal.App.2d 536, 542 [6 Cal.Rptr. 65]. See also Maupin v. Widling (1987) 192 Cal.App.3d 568, 576 [237 Cal.Rptr. 521]; Premo v. Grigg (1965) 237 Cal.App.2d 192, 195 [46 Cal.Rptr. 683]; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 751, p. 90.)

The events leading up to the helicopter collision were set in motion by appellant's decision to flee from the police. It was predictable that, in response, the police would pursue appellant and use whatever means available to them to locate and capture him. The possibility that during the chase the pursuing police vehicles might be operated in a negligent manner thereby causing a collision was sufficiently foreseeable to establish appellant's conduct as the proximate cause of the accident. Therefore, I conclude the evidence is sufficient to support the jury's finding of proximate cause.

II. Implied Malice

The lead opinion holds implied malice requires proof the defendant committed an act with a high probability it would result in death. (Lead opn., ante , pp. 1391-1392, 1393-1394.) Furthermore, the lead opinion concludes the persons killed in the helicopter collision were not within the class of persons who faced a high probability of death from appellant's conduct. (Lead opn., ante , p. 1394.) This new standard is unsupported by any authority and contrary to recent decisions of the Supreme Court.

In People v. Watson (1981) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 279], the Supreme Court held a defendant who, while intoxicated, drove a car at excessive speeds through city streets nearly colliding with other vehicles before striking and killing one motorist, could be prosecuted for second degree murder based on implied malice. (Id . at pp. 299-301.) In explaining the concept of implied malice, the court referred to two definitions of the term. "We have said that second degree murder based on implied malice has been committed when a person does '"'an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life'" . . . .' [Citations.] Phrased in a different way , malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. [Citation.]" (Id . at p. 300, italics added.)

In People v. Patterson (1989) 49 Cal.3d 615 [262 Cal.Rptr. 195, 778 P.2d 549], the Supreme Court granted review in a case from this court to consider the question of whether a defendant could be prosecuted for second degree felony murder where the victim died after ingesting cocaine furnished to her by the defendant in violation of Health and Safety Code section 11352. The trial court concluded the statute could be violated in ways that would not constitute an inherently dangerous felony and dismissed the murder charge. On appeal, this court affirmed that ruling. (Id . at p. 619.)

In a badly divided decision, the Supreme Court reversed this court's decision and concluded that, while the elements of a crime must be viewed in the abstract to determine whether it is an inherently dangerous felony (49 Cal.3d at pp. 620-622), since section 11352 had no "primary element" a court should focus on the defendant's furnishing cocaine in deciding whether the offense was inherently dangerous. (Id . at pp. 622-625, 627-628.)

For guidance, the court then considered the meaning of the phrase "inherently dangerous to life." In this context, Justice Kennard's lead opinion stated: "Implied malice, for which the second degree felony-murder doctrine acts as a substitute, has both a physical and a mental component. The physical component is satisfied by the performance of 'an act, the natural consequences of which are dangerous to life.' [Citation.] The mental component is the requirement that the defendant 'knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.' [Citation.] [P] The second degree felony-murder rule eliminates the need for the prosecution to establish the mental component. The justification therefor is that, when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved. The physical requirement, however, remains the same; by committing a felony inherently dangerous to life, the defendant has committed 'an act, the natural consequences of which are dangerous to life' [citation], thus satisfying the physical component of implied malice. [P] The definition of 'inherently dangerous to life' in the context of the implied malice element of second degree murder is well established. An act is inherently dangerous to human life when there is 'a high probability that it will result in death.' [Citations.] [P] We therefore conclude by analogy to the established definition of the term 'dangerous to life' in the context of the implied malice element of second degree murder [citation] that, for purposes of the second degree felony-murder doctrine, an 'inherently dangerous felony' is an offense carrying 'a high probability' that death will result. . . ." (49 Cal.3d at pp. 626-627. Fns. omitted.)

Justices Mosk, Broussard and Panelli concurred in the definition of what constitutes an inherently dangerous felony. (49 Cal.3d at pp. 640-641.) No member of the court questioned or criticized Justice Kennard's definition of implied malice.

Three and one-half months later, the Supreme Court, by a six-to-one vote, again reversed a decision by this court in People v. Dellinger, supra , 49 Cal.3d 1212. The defendant was convicted of the second degree murder of his stepdaughter, a two-year-old infant, who died as a result of a blow to her head and the ingestion of cocaine. At trial, the lower court instructed the jury on implied malice using the 1983 version of CALJIC No. 8.11 (4th ed. pocket pt.) which contained both of the definitions stated in People v. Watson, supra , 30 Cal.3d at page 300, connected by the disjunctive word "or." Defendant challenged the use of the "wanton disregard for human life" definition and this court reversed, concluding that definition was confusing and failed to convey the requirement a defendant subjectively appreciate the life-threatening risk his conduct posed to the victim. (49 Cal.3d at p. 1217.)

The Supreme Court granted review and reversed the decision of this court. First, the court concluded the "wanton disregard for human life" definition adequately conveyed that the defendant must have a subjective appreciation of his conduct's life-threatening risk. (People v. Dellinger, supra , 49 Cal.3d at pp. 1217-1221.) In so ruling, the court noted "the two definitions of implied malice which [had] evolved . . . articulated one and the same standard." (Id . at p. 1219.)

Nonetheless, Dellinger concluded the "wanton disregard for human life" definition had become "superfluous," and "[t]he better practice in the future is to charge juries solely in the straight-forward language of the 'conscious disregard for human life' definition of implied malice." (People v. Dellinger, supra , 49 Cal.3d at p. 1221.) The court then considered the 1988 revision of CALJIC Nos. 8.11 and 8.31 (5th ed. 1988 bound vol.) which employs only the "conscious disregard for human life" test and stated: "We approve of this newly revised implied malice instruction, and agree with the CALJIC committee's conclusion that the 'conscious disregard for human life' definition, standing alone, is 'more comprehensible to the average juror.' [Citation.]" (Id . at p. 1222.) A few months later, the Supreme Court reaffirmed this holding in People v. Douglas (1990) 50 Cal.3d 468, 515-516 [268 Cal.Rptr. 126, 788 P.2d 640].

The foregoing cases contradict the attempt by the lead opinion to redefine implied malice. Its author derives the requirement that the prosecution must prove the defendant committed an act with a high probability it would result in death from People v. Patterson, supra , 49 Cal.3d 615. But that case involved the felony-murder doctrine. It is axiomatic that in a murder prosecution based upon a felony-murder theory, independent proof of malice is not required because it is not an element of the offense. (People v. Dillon (1983) 34 Cal.3d 441, 465, 474-476 [194 Cal.Rptr. 390, 668 P.2d 697].)

Adding a high probability of death requirement to the present "conscious disregard for life" definition of implied malice is absurd. Both Watson and Dellinger make patently clear the "wanton disregard for human life" and "conscious disregard for life" definitions are equivalent. Therefore, the present definition of implied malice found in CALJIC Nos. 8.11 and 8.31, which was read to the jury in this case, properly defined the concept. Adding the high probability of death requirement to the "conscious disregard for life" definition is merely redundancy.

The same issue was recently considered by Division One of this court in People v. Cleaves (1991) 229 Cal.App.3d 367 [280 Cal.Rptr. 146]. There, the defendant was convicted of second degree murder based on his assisting a person to commit suicide. On appeal, defendant argued the current versions of CALJIC Nos. 8.11 and 8.31 were erroneous because they referred to an act "The natural consequences [of which] are dangerous to human life," and not an act "involving a high degree of probability that it will result in death . . . ." Citing Watson and Dellinger , Division One stated: "Moreover, contrary to Cleaves's suggestion, Supreme Court precedent does not establish that the term 'high probability of death,' as opposed to the phrase 'dangerous to human life,' has been utilized as the pivotal terminology to define implied malice. Rather, the two phrases have been used as alternative definitions for the same concept. . . . [P] Cleaves has cited no authority which requires that implied malice be defined with the phrase high probability as opposed to dangerous to human life. The phrases can be viewed as synonymous i.e., an act for which the natural consequences are dangerous to human life by its nature involves a high probability of death. . . ." (229 Cal.App.3d at pp. 377-378.)

The lead opinion attempts to avoid the foregoing by concluding "the focus of the court in Dellinger was only upon the use of 'conscious disregard for human life' in place of 'wanton disregard for human life.' The Supreme Court did not consider the language in the instructions concerning the degree of probability that death will result from the defendant's act. 'It is axiomatic that cases are not authority for propositions not considered.' [Citations.]" (Lead opn., ante , p. 1393, fn. 30.)

However, Dellinger made clear the Supreme Court's position concerning the definitions of implied malice. "Although we hold that the 'wanton disregard for human life' definition of implied malice embodied in the 1983 revision of CALJIC No. 8.11 independently conveys the 'subjective awareness' requirement to the jury, we are nevertheless persuaded that, by contemporary standards, it is a superfluous charge. The better practice in the future is to instruct juries solely in the straightforward language of the second definition in that instruction that malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. [Citations.]" (People v. Dellinger, supra , 49 Cal.3d at p. 1215.)

Later in the opinion, the court repeats this conclusion and expressly approves the most recent revisions of CALJIC Nos. 8.11 and 8.31 which incorporate only the "conscious disregard for life" definition. (49 Cal.3d at pp. 1221-1222.) Subsequent appellate decisions have employed the revised definition of implied malice without finding it necessary to add the "high probability of death" requirement. (See People v. David (1991) 230 Cal.App.3d 1109, 1114 [281 Cal.Rptr. 656]; People v. Murray (1990) 225 Cal.App.3d 734, 745-746 [275 Cal.Rptr. 498]; People v. Butler * (Cal.App.)) In light of the Supreme Court's repeated approval of the current implied malice definition, the lead opinion's contrary reading of Dellinger is but another manifestation of its author's revulsion for implied malice.

I also reject the lead opinion's conclusion the victims were not within the zone of danger created by appellant's conduct. The opinion asserts "The group of persons on the ground near Acosta faced a high probability of death. But he did not kill someone there and the risk created for the group in the air was minimal. Acosta's flight only caused the helicopter pilots to 'be there.' There is not a jot of evidence his frenetic style of driving affected the helicopter's pursuit in any way, let alone caused the negligent flying of the Costa Mesa pilot. As to the victims, his conduct did not create a high probability of death. . . ." (Lead opn., ante , at p. 1396, fn. omitted.) This analysis merely employs the concept of proximate causation under the guise of implied malice.

In People v. Albright (1985) 173 Cal.App.3d 883, 886-887 [219 Cal.Rptr. 334], the court rejected a claim the evidence must show the defendant encountered a risk knowing it posed a high probability of danger to the life of the ultimate victim. "Nowhere in its opinion did the Watson court suggest implied malice requires awareness of life-threatening risk to a particular person. Instead, implied malice may be found under Watson , whenever, inter alia, the facts establish a defendant's awareness and conscious disregard that his conduct poses a high probability of death to some person. [Citation.] A contrary construction would lead to absurd results, and would conflict with numerous decisions by courts of this and other states. . . ." (Id . at p. 887. fn. omitted.)

The lead opinion questions the holding in Albright arguing it is erroneous to conclude a defendant would be "liable for any death which ensued if he consciously disregarded the life of anyone . . . ." (Lead opn., ante , at p. 1394.) But Albright was concerned with the element of malice, not proximate cause. The reasoning employed in that case assumed the defendant had proximately caused the victim's death. Here, as well, the jury was required to decide whether appellant proximately caused the victims' deaths and found that he did. Furthermore, the lower court fully and adequately instructed them on the subject and the lead opinion concedes the evidence supports the jury's finding on proximate causation.

I also conclude the evidence supports the jury's finding appellant acted with implied malice. After consuming alcohol, cocaine, and heroin, appellant took the police on a 50-mile chase through a highly urban county, exceeding the speed limit, driving the wrong way, driving with his lights off, ignoring traffic control devices, making illegal turning movements, colliding with one vehicle and nearly causing several other accidents. He admitted he knew police vehicles, including helicopters, were pursuing him, and that his conduct was dangerous at the time, but defiantly continued driving in the same fashion anyway.

Appellant frequently drove on the wrong side of roads during the chase, ignored traffic control devices, and even left the road where necessary to skirt other traffic. Appellant slowed his vehicle only where it was necessary to negotiate a turn or steep grade, or because of heavy traffic, not in deference to the health and safety of his fellow motorists. His attempts to warn other drivers by flashing the Pulsar's headlights was, at best, only a minimal effort to avoid collisions. Contrary to appellant's claim, he crossed and recrossed freeway traffic lanes on several occasions during the chase.

The judgment should be affirmed. ^[2]

CROSBY, J., Concurring and Dissenting.

Whether the defendant may be held criminally culpable for the tragic deaths in this case is the key issue before us. Justice Wallin says yes, but not for murder. Justice Moore says yes and for murder. I disagree with both because the law does not assign blame to an otherwise blameworthy actor when neither the intervening negligent conduct nor the risk of harm was foreseeable.^[1] (Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 210-211 [186 Cal.Rptr. 847]; People v. Hebert (1964) 228 Cal.App.2d 514, 520 [39 Cal.Rptr. 539].)

Or, as Justice Cardozo put it, "We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences.^[2] Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." (Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339 [162 N.E. 99, 100, 59 A.L.R. 1253].) The occupants of these helicopters were surely not "within the range of apprehension" of a fleeing criminal on the ground.^[3]

To be sure, defendant represented a threat to everyone traveling the same roads and would have been responsible for any injury directly or indirectly caused by his actions in those environs; but to extend that responsibility to persons in the air, whose role was merely to observe his movements, a simple enough task in far speedier helicopters, defies common sense.^[4] It was perfectly foreseeable that someone would be hurt on the ground via some sort of causal chain connecting to defendant's conduct; the opposite is true of the airborne observers. They were not in the zone of danger in this case by any stretch of the imagination, and the manner and circumstances of the collision could hardly have reasonably been foreseen. Indeed, the lead opinion admits no similar accident has ever occurred anywhere according to our own research, as well as the trial expert. Although less remote than a dispatcher suffering a coronary, perhaps, this was a "highly extraordinary result" (lead opn., ante , p. 1388) by any measure and, properly viewed, beyond the long arm of the criminal law.^[5]

I do not address the implied malice issue, except to concur in the result reached in the lead opinion and to note that its resolution there appears entirely inconsistent with the conclusion reached in the proximate cause discussion. For the reasons noted above, I would reverse with directions to dismiss the charges based on the helicopter collision.^[6]

[2] The pilot of the Newport Beach helicopter also testified that the correct procedure in changing the lead helicopter is for the helicopter relinquishing the lead to make a gradual climbing turn, stay in radio communication, and keep a safe distance away.

[3] Our research yielded no published civil or criminal case nationwide which involved a two-helicopter collision.

[4] But see Perkins and Boyce, Criminal Law (3d ed. 1982) pages 776-777, cautioning against use of tort law causation cases to determine the outcome in criminal cases where different factors and interests come into play. (See also 1 LaFave & Scott, Substantive Criminal Law (1986) § 3.12, pp. 397-398.)

[5] For example, in People v. Scola, supra , 56 Cal.App.3d 723, the court stated that the prosecution's burden of showing proximate cause is met "if the state produces evidence from which it may be reasonably inferred that appellant's act was a substantial factor in producing the accident. [Citations.]" (Id . at p. 726.) Under the facts of that case, the statement was correct because there was no intervening cause and the resulting harm was not extraordinary. But, as I shall discuss, it would be incorrect to infer that the prosection need never show more.

[6] The American Law Institute has urged the use of "legal cause" instead. (Perkins & Boyce, supra , at p. 775.) Although there is some merit to its arguments, I abide with the traditional term, "proximate cause."

[7] A tricky situation is presented where two independent actors each inflict wounds which would alone be fatal. Perkins and Boyce deal with the problem by reasoning that but for the individual act of each, the death would not have occurred as it did . (Perkins & Boyce, supra , at p. 773.) LaFave and Scott submit that a sine qua non analysis does not work, but actual cause may be found if the act was a substantial factor in the death. (1 LaFave & Scott, supra , at pp. 394-395.)

Although the approach of Perkins and Boyce is somewhat artificial, I prefer it over that of LaFave and Scott. It could be argued that a cause is not substantial if the victim would have died anyway. And, as I shall discuss, the substantial factor issue is best reserved for exclusion from culpability; i.e., "but for" causes are not sufficient unless they are a substantial factor in the harm.

Under both approaches the result is the same. An actor who delivers a deadly blow will suffer the consequences even though another independent deadly force is also applied, a result in keeping with the use of proximate cause analysis to assign appropriate culpability.

[8] I will consider cases where there is an intervening cause separately, as the commentators have. Arguably, an independent intervening cause could be explained by saying it rendered the defendant's act "insubstantial." However, the traditional approach has been to determine only whether the defendant's act is substantial in the abstract or in comparison with a contributory or concurrent cause. If it is not, the analysis goes no further. If it is, the question becomes whether there is an intervening cause which should relieve the defendant of responsibility. (Perkins & Boyce, supra , at pp. 790-823; 1 Witkin & Epstein, supra , at pp. 148-151; 1 LaFave & Scott, supra , at pp. 406-411, 413-414; see also Rest.2d Torts, § 435 et seq., pp. 449 et seq.)

[9] If the actors are acting in concert, both would be culpable using an aiding and abetting theory, even if only one directly caused the death. (See People v. Ross (1979) 92 Cal.App.3d 391, 400-401 [154 Cal.Rptr. 783] [defendant also culpable on aiding and abetting theory]; 1 LaFave & Scott, supra , at p. 396.)

[10] For example, in People v. Caldwell (1984) 36 Cal.3d 210 [203 Cal.Rptr. 433, 681 P.2d 274], the Supreme Court found the provocative conduct of two of the defendants in resisting apprehension was a substantial factor in comparison to the threatening behavior of a codefendant who was eventually killed by the police. Perkins and Boyce give as an example two actors who independently inflict knife wounds upon the victim, one of which severs the jugular while the other barely breaks the skin. Although technically a concurrent cause, the latter is insubstantial. (Perkins & Boyce, supra , at p. 779.) However, if a cause is "substantial," it will be treated as a proximate cause even if there is another concurrent or contributory cause. (People v. Ross, supra , 92 Cal.App.3d at pp. 400-401 [defendant brought victim to room and helped tie him before codefendant beat him and set him on fire]; People v. Vernon (1979) 89 Cal.App.3d 853, 864 [152 Cal.Rptr. 765] [defendant participated in beating victim to death]; see also 1 LaFave & Scott, supra , at pp. 394-396 [suggesting the substantial factor test is only appropriate in concurrent cause cases].)

Perkins and Boyce treat "contributory negligence" of the victim or a third party as a contributory cause. (Perkins & Boyce, supra , at pp. 782-787, but see p. 787 [discussing third party negligence as intervening].) "Contributory negligence" can manifest itself when victims are negligent in escape efforts or are involved in automobile accidents, or when third parties render defense or treatment. Although it is a rather fine distinction, the approach which analyzes such acts as intervening causes, which I discuss below, makes better sense, at least when they are done in response to an act of the defendant. (See People v. Armitage, supra , 194 Cal.App.3d at p. 420 [victim drowned in attempt to swim to shore after drunken defendant capsized the boat]; People v. Harris, supra , 52 Cal.App.3d at p. 426 [officer pursuing defendant at great speeds involved in accident killing victim]; Perkins & Boyce, supra , at p. 809 [discussing a contributory cause as intervening.)

[11] I have noted the potential mischief in the statement in People v. Scola, supra , 56 Cal.App.3d at page 726, that the prosecution meets its burden by producing "evidence from which it may be reasonably inferred that [the defendant's] act was a substantial factor in producing the accident." In cases with a question of intervening cause, the analysis does not stop at that point unless intervening cause issues are subsumed under the substantial factor test. (See fn. 7, ante .)

[12] Perkins and Boyce also give the example of a wife who is forced out into freezing weather by her husband, and opine that the action of the husband comes to a point of rest when the wife refuses an opportunity to take shelter at her father's residence. They eschew using the "contributory negligence' of the wife" as the explanation for the lack of proximate causation, reasoning that contributory negligence is not a defense to the prosecution. (Id . at p. 781, fn. 74.)

I part company with this analysis. The husband's act has not "come to rest in a position of apparent safety," albeit only due to the wife's affirmative decision not to go inside her father's house. And, although the principle that the victim's contributory negligence is not a defense is frequently quoted in California cases (see, e.g., People v. Pike, supra , 197 Cal.App.3d at pp. 747-748; People v. Armitage, supra , 194 Cal.App.3d at p. 420; People v. Harris, supra , 52 Cal.App.3d at p. 426; CALJIC No. 8.56), it is not applicable, as phrased, in a proximate cause analysis.

Contributory negligence involves the concept of determining civil responsibility based upon lack of care by the parties. (See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 809-811 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393].) Almost by definition it would not be a defense to a criminal action. Even so, it deals with a state of mind, not causation. As I shall discuss, its only relevance is in determining the foreseeability that an intervening act, independent of the defendant, will cause harm.

Thus, Perkins and Boyce's example is better explained by concluding the wife's refusal of shelter in freezing weather was the extraordinary end produce of the husband's action. If this example is excluded, the "comes to rest" concept can be categorized as a corollary of the substantial factor rule.

[13] Perkins and Boyce treat the activation of a latent condition as a dependent intervening cause. (Perkins & Boyce, supra , at p. 792.) Although their approach is plausible, I prefer to treat such situations as the exacerbated direct results of the defendant's acts. (See 1 Witkin & Epstein, supra , at pp. 147-148.)

[14] Criticizing the use of this term, Prosser and Keeton describe it as "the underlying idea of a limitation of liability short of the remarkable, the preposterous, the highly unlikely, . . . the cock-eyed and far-fetched . . . ." (Prosser & Keeton, Torts (5th ed. 1984) § 43, p. 299.) They point out that the limitation, coupled with the principle that the exact result of the actor's conduct need not have been foreseen or foreseeable (1 Witkin & Epstein, supra , at p. 150), produces confusion and varied results. (Prosser & Keeton, supra , at pp. 299-300.)

Nevertheless, there is a need for some flexibility and common sense in the determination of proximate cause. (Perkins & Boyce, supra , at pp. 776-777.) Where there is flexibility in any legal standard, it will invariably be applied with some inconsistency. But no court or commentator of which I am aware has argued for absolute liability for all directly caused results.

To see why, I need only hypothesize that the excitement of the Acosta pursuit triggered a fatal heart attack in a police dispatcher. Acosta's conduct would be a direct and substantial factor in it, but I doubt any court would hold the conduct to be the proximate cause of the death. The only analytical route to absolve Acosta would be to find the heart attack was too extraordinary a result to merit culpability. (Compare People v. Stamp, supra , 2 Cal.App.3d 203 [defendant directly threatened clerk with a gun].)

[15] The refusal to allow "contributory negligence" to be a bar to a proximate cause finding need not be the product of any mechanical policy rule. It can be grounded in the notion that it is not "abnormal" for people to react less "reasonably" under stress than if the stress were not present. For purposes of ascribing causal responsibility it may be said that a negligent or foolish response is "normal."

To the extent that a dependent intervening cause is thought to "directly" carry through the act of the defendant to a harmful result, this analysis comports well with the rule that a defendant's act is the proximate cause of any harm caused directly by his act unless the result is "highly extraordinary." It also allows the court to find that a negligent, but highly extraordinary response precludes a finding of proximate cause, while a reckless but predictable response does not. (See, e.g., People v. Armitage, supra , 194 Cal.App.3d at p. 421 [victim's reckless reaction was not "wholly abnormal"]; compare Mull v. Ford Motor Co. (2d Cir. 1966) 368 F.2d 713 [negligent driving by taxi driver superseded negligent design and manufacture of taxi]; Batts v. Faggart (1963) 260 N.C. 641 [133 S.E.2d 504] [negligence of second driver superseded accident caused by first driver].) The focus is properly on the objective conditions present at the time the defendant perpetrated the causal act and the predictable, albeit sometimes unreasonable, responses of human beings to them. (See Perkins & Boyce, supra , at p. 809; 1 LaFave & Scott, supra , at pp. 407-408.)

[16] Of course, this is a restatement of the principle that the defendant is culpable if his direct cause is a substantial factor in the harm, even if there is a concurrent cause.

[17] Although this statement is cogent, it is unfortunate the last sentence falls back into the concept of foresight from the perspective of a reasonable person. The focus should remain solely on the probability of the result under the circumstances.

[18] Ultimately, law involves the attempt to deal with life on paper. I adhere to the principle that until and unless humans can use language precisely to deal with every problem and situation, some amount of vagueness in legal standards is necessary and desirable. It allows triers of fact to use valid human instincts to reach the correct result, even when language cannot adequately describe the path. (See Christie, Vagueness and Legal Language (1964) 48 Minn.L.Rev. 885.)

[19] The Model Penal Code takes a similar approach, focusing on whether the result is "too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense." (Model Pen. Code, § 2.03(2)(b).) LaFave and Scott also appear to look to the extraordinary nature of the result in determining causal responsibility, although they discuss it in terms of foreseeability. (1 LaFave & Scott, supra , at pp. 390, 396-397, 400, 402-405, 407-415.)

[20] I reach this conclusion with due regard to LaFave and Scott's observation that proximate cause should not be found as readily in non-intentional crimes, i.e., those involving recklessness or negligence. (1 LaFave & Scott, supra , at pp. 398-399.)

[21] As I have mentioned (see fn. 15, ante), reckless conduct is not "highly extraordinary" per se. It depends upon the circumstances. (See People v. Armitage, supra , 194 Cal.App.3d at p. 420.) I need not deal with that problem here. The Costa Mesa pilot was negligent, but there was no evidence he was reckless. No statements show his state of mind. Turner opined he violated an FAA regulation prohibiting "reckless and careless " flying without specifying the precise standard of care the pilot failed to meet. Substantial evidence supports the inference he was merely negligent.

[22] In People v. Pike, supra , 197 Cal.App.3d at page 750, the court concluded, "The speeds, places, conditions and methods of driving were primarily dictated by defendant; he chose the route and speeds. Predictably, the officers chose to follow suit . . . . The probability that this might result in one or both of the officers losing control and/or colliding with another vehicle or some object is sufficient to establish that defendant's conduct was a cause that, in natural and continuous sequence, produced [the officer's] death and without which that death would not have occurred. [Citations.]" And in People v. Harris, supra , 52 Cal.App.3d at page 427, the court reasoned, "It was reasonably foreseeable that the officers would continue to chase him as he speeded recklessly and circuitously over public thoroughfares and failed to stop at boulevard stops, thus setting in motion circumstances creating peril to others on the public streets and a high probability that collisions, injuries and deaths would occur in the course of the chase."

Although the analyses in Pike and Harris are couched in terms of foreseeability, the reasoning is predicated upon the logical assumption that the flight of a suspect creates an appreciable probability that the police will chase, and in doing so sometimes be involved in accidents. Where helicopters are involved the probabilities are undoubtedly reduced, but remain appreciable.

[23] Despite Justice Crosby's assertion to the contrary (separate opn. of Crosby, J., post , at p. 1408, fn. 4), I specifically caution against using civil proximate cause analyses in a criminal case. (See fn. 4, ante .)

[24] The defendant's railway attendants accidentally knocked a package of fireworks from a passenger's arms while boarding a train, causing a concussive explosion which overturned scales on the platform which struck the plaintiff.

[25] Justice Crosby does not dispute that such is the case here.

[26] To use his terminology (separate opn. of Moore, J., post , at p. 1398, fn. 1), while it may become usual in the 21st century, it is unusual in the late 20th century. The automobile pursuit cases provide guidance in the analysis, but do not serve as binding precedent because the air crashes are qualitatively different, at least in terms of probability.

[27] His opinion does provide two hypothetical fact situations. (Separate opn. of Crosby, J., post , at p. 1408, fn. 4.) As to the first, more facts are necessary to determine whether the defendant was a substantial factor in the crash. The mere fact he was in an accident would probably be insufficient. As to the second, the same question arises. Further, the defendant would only be convicted if his conduct constituted at least gross negligence vis-a-vis the victim.

[28] See part III, post .

[29] Again, the commentators are in accord. (Perkins & Boyce, supra , at pp. 60, 859, 860 ["grave risk of death"; "strong likelihood"; "obvious likelihood"]; 2 LaFave & Scott, supra , at p. 200 ["very high degree' of risk"].)

[30] The Attorney General argues that the approval of CALJIC Nos. 8.11 and 8.31 in People v. Dellinger, supra , 49 Cal.3d at pages 1221-1222, mandates a contrary result because those instructions do not contain the "high probability" standard. But the focus of the court in Dellinger was only upon the use of "conscious disregard for human life" in place of "wanton disregard for human life." The Supreme Court did not consider the language in the instructions concerning the degree of probability that death will result from the defendant's act. "It is axiomatic that cases are not authority for propositions not considered." (People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7 [82 Cal.Rptr. 724, 462 P.2d 580].)

The string citation of People v. David (1991) 230 Cal.App.3d 1109, 1114 [281 Cal.Rptr.], People v. Murray (1990) 225 Cal.App.3d 734, 745-746 [275 Cal.Rptr. 498], and People v. Butler *(Cal.App.) in Justice Moore's opinion (separate opn. of Moore, J., post , at p. 1405) does not change this fact. None of those cases addressed the "high probability" issue. People v. Cleaves (1991) 229 Cal.App.3d 367 [280 Cal.Rptr. 146] did so, and concluded CALJIC Nos. 8.11 and 8.31 correctly stated the law because "an act for which the natural consequences are dangerous to human life by its nature involves a high probability of death." (Id . at p. 378.) That an act can be dangerous to human life without involving a high probability of death needs no explication. If the Cleaves court meant to say that the term "dangerous to human life" in the instruction presumes a high probability, it deals with an instructional issue not presented here because, as a matter of law, the officers in the helicopter were not exposed to a high probability of death. I hold this opinion not because of any "revulsion for implied malice" (separate opn. of Moore, J., post , at pp. 1405-1406), but because numerous references to a "high probability of death" by our Supreme Court mandate it. *Reporter's Note: Opinion D008448 deleted upon direction of Supreme Court by order dated January 30, 1991.

[31] People v. Dellinger, supra , 49 Cal.3d at pages 1217-1218 added the words "to human life" to the term "the risk involved." Although the words are proper because the risk at issue in a murder case is the risk to human life (see 1 LaFave & Scott, supra , at p. 336), they are superfluous to our analysis.

[32] I assume the "electric piano" was what I would call a player piano. Thus, I am led to believe the defendant did not shoot the piano player.

[33] Put in our terms for proximate cause, it would be a death which was "almost extraordinary."

[34] See Pizano v. Superior Court (1978) 21 Cal.3d 128, 136-138 [145 Cal.Rptr. 524, 577 P.2d 659].

[35] Perkins and Boyce apparently agree with this approach. In speaking of the rigorous standard for implied malice, they describe an act "done with 'knowledge of such circumstances that according to common experience there is a plain and strong likelihood that' a certain type of social harm will ensue." (Perkins & Boyce, supra , at p. 859, fn. omitted, italics added.) By this, I understand them to mean that the defendant must consciously disregard the type of harm which actually ensues. For example, they recognize that "[i]n a case in which it has no bearing upon the issue of proximate cause, foreseeability [of the ensuing harm] may be a determinant of the degree of guilt, or even of the fact of guilt." (Id . at p. 813, fns. omitted.)

[36] At oral argument amicus counsel described a situation which might have qualified. Had Acosta purposely maneuvered the helicopters into tall transmission towers, high wires, or a similar hazard with apparent conscious disregard for the well being of the occupants, malice could be inferred.

[37] Justice Crosby also claims that our resolution of the malice issue "appears entirely inconsistent with the conclusion reached in the proximate cause discussion." (Separate opn. of Crosby, J., post , at pp. 1408-1409.) Not so. A nonextraordinary result for proximate cause purposes does not require a "high risk" victim; implied malice does. Similarly, Justice Crosby's concern that the victim be in a zone of danger (Palsgraf v. Long Island R. Co., supra , 248 N.Y. 339 [162 N.E. 99, 100]) properly belongs in an analysis of gross negligence as it relates to involuntary manslaughter. Because Acosta was convicted of second degree murder, I have not considered that question.

[38] Acosta's argument that the court erred in instructing on malice is moot. However, by our foregoing analysis, the court should have informed the jury that a high probability of death was required. (People v. Watson, supra , 30 Cal.3d at p. 300.) This omission would provide an independent ground for reversal.

[39] This instruction read: "To constitute murder or involuntary manslaughter or vehicular manslaughter, there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death. [P] A proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred. [P] There may be more than one proximate cause of a death. When the conduct of two or more persons contributes concurrently as proximate causes of a death, the conduct of each of said persons is a proximate cause of the death if that conduct was a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of death and acted with another cause to produce the death. [P] If you find that the defendant's conduct was a proximate cause of a death to another person, then it is no defense that the conduct of some other person, even the deceased person, contributed to the death except in the event that you find that conduct to be unforeseeable."

[40] The first instruction read: "An intervening cause which breaks the chain of causation from the original act is itself regarded as the proximate cause of the death and relieves the original actor of criminal liability. [P] The test of whether an independent intervening act, which operated to produce the deaths, breaks the chain of causation is the foreseeability of that act. [P] An act is not foreseeable and thus is a superseding cause of the death if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen."

The second instruction advised: "If you find that the operation of either or both of the helicopters was so highly unusual or extraordinary as to be a superseding cause of death not reasonably foreseeable, then you must find defendant is not the proximate cause of the deaths and acquit him . . . ."

The prosecution's instruction stated: "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of the defendant's original act, the intervening act is dependent and not a superseding cause and will not relieve defendant of liability. The consequence need not have been a strong probability, a possible consequence which might reasonably have been contemplated is enough. The precise consequence need not have been foreseen. It is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act. An intervening act may be so disconnected and unforeseeable as to be a superseding cause, that in such a case the defendant's act will be a remote and not a proximate cause. It is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause."

[43] Of course, reversal of the murder counts for insufficient evidence precludes retrial on those charges. Acosta's claim of a cruel and unusual sentence is therefore rendered moot.

[1] While my colleague is willing to embrace the era of the automobile in the 20th century by citation to a 1928 opinion of Justice Cardozo, he is not ready to leave and enter the 21st century.

[2] To the extent my colleagues cannot agree, I am forced to agree that defendant may be retried.

[1] If despicable behavior alone were enough to affix criminal responsibility on a defendant for any remote consequence, no matter how unexpected, that would constitute the wholesale adoption of the concept of strict liability into the law of crimes. Many might view that as desirable, but that is not the law at present.

[2] (Conc. and dis. opn.) In 1928 Cardozo was not concerned with helicopter crashes or heart attacks visiting excited dispatchers. (See lead opn., ante , pp. 1385-1386, fn. 14.) But he did recognize that a wrongdoer's responsibility for an unintended injury has a limit, as the balance of the quotation reveals.

[3] Occasionally, screen protagonists, such as James Bond, do usually deliberately fell pursuing helicopters from the ground by various means. That is not the real world, thankfully; and this is not such a case in any event.

[4] A slippery concept at best, proximate cause is ultimately a judicial application of educated common sense to a given set of facts. Because the tort and criminal formulations of the term are interchangeable, if the lead opinion is correct, the driver who causes a freeway accident could be liable in tort for the crash of helicopters broadcasting traffic advisories at the scene. Such a motorist should have every reason to anticipate the arrival of aerial surveillance, but it is inconceivable that a court would find him liable for the negligence of a pilot under such circumstances. The lead opinion suggests there may be different factors involved in tort and criminal analyses of proximate cause. (Lead opn., ante , p. 1381, fn. 4.) Maybe so, but the law of crimes virtually always employs more conservative standards in fixing responsibility than does the civil law. Does the lead opinion mean to imply that this defendant is criminally, but not civilly, liable for this collision? If anything, I would think the opposite would be the case.

In some remote parts of our state, traffic laws are enforced from the air. Signs along the highway warn of this. Can an ordinary speeder be guilty of manslaughter when a police aircraft in the process of clocking him crashes because of the negligence of some third party? The theory of the lead opinion would seemingly support such a prosecution. 

[5] The lead opinion makes the tautological accusation that I cite no case for this conclusion. (Lead opn., ante , p. 1391.) That, of course, is the point. If a similar case did exist, however it was decided, it would tend to undermine, not support, my view that this was a highly extraordinary accident. But the reverse is also true. My colleagues both correctly note that the first defendant to cause harm in a particular way should not necessarily be free from prosecution; but to apply that particular rule to these unusual facts is to jettison the exception for highly extraordinary events while pretending it still exists.

[6] I join in the unpublished portions of the lead opinion.

Reversed and remitted.

Madeline Singas, Acting District Attorney, Mineola, N.Y. (Robert A. Schwartz and Sarah S. Rabinowitz of counsel), for appellant.

Matthew C. Hug, Troy, N.Y., for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.

Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Carter, J.), dated December 16, 2013, as granted those branches of the defendant's omnibus motion which were to dismiss counts one through seven of the indictment on the ground that the evidence presented to the grand jury was legally insufficient.

ORDERED that the order is reversed insofar as appealed from, on the law, and

[3 N.Y.S.3d 95]

those branches of the defendant's omnibus motion which were to dismiss counts one through seven of the indictment on the ground that the evidence presented to the grand jury was legally insufficient are denied, those counts of the indictment are reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings on the indictment.

According to the evidence presented to a grand jury, on October 18, 2012, before dawn, the defendant allegedly caused two collisions when he drove his car on the Long Island Expressway while he was under the influence of alcohol. In the immediate aftermath of those collisions, the defendant's stopped vehicle was in the eastbound High Occupancy Vehicle (hereinafter HOV) lane, facing perpendicular to the direction of traffic. Within a few minutes, a police officer responded to the scene. While the officer was standing near the defendant's stopped car, he was struck and killed when the driver of a sport utility vehicle traveling in the HOV lane did not see him or the defendant's stopped car in time to avoid hitting them.

A grand jury returned an indictment charging the defendant with numerous crimes. Several of those crimes contained as an element that the defendant caused the death of the victim (i.e., the officer). In his omnibus motion, the defendant moved to dismiss those counts of the indictment on the ground that the proof before the grand jury was legally insufficient to establish that he caused the officer's death. The defendant contended, in part, that the actions of the sport utility vehicle's driver, who failed to see the officer as well as the defendant's stopped vehicle, were a superseding cause of the officer's death.

The Supreme Court agreed. The court noted that 5 to 10 minutes had elapsed between the collisions that resulted in the stopping of the defendant's vehicle in the HOV lane and the collision that killed the police officer. In light of this gap, the court found that the death of the officer was not part of a continuing chain of events set in motion by the defendant, but was caused solely by the conduct of the driver of the sport utility vehicle ( People v. Ryan, 42 Misc.3d 643, 649650, 980 N.Y.S.2d 246 [Sup.Ct., Nassau County] ). The People appeal.

Courts assessing the sufficiency of the evidence before a grand jury must evaluate whether the evidence, viewed most favorably to the People, if unexplained and uncontradictedand deferring all questions as to the weight or quality of the evidencewould warrant conviction ( People v. Mills, 1 N.Y.3d 269, 274275, 772 N.Y.S.2d 228, 804 N.E.2d 392, quoting People v. Carroll, 93 N.Y.2d 564, 568, 693 N.Y.S.2d 498, 715 N.E.2d 500; see People v. Bello, 92 N.Y.2d 523, 525, 683 N.Y.S.2d 168, 705 N.E.2d 1209; People v. Jennings, 69 N.Y.2d 103, 114, 512 N.Y.S.2d 652, 504 N.E.2d 1079; People v. Warren, 98 A.D.3d 634, 635, 949 N.Y.S.2d 496; People v. Jessup, 90 A.D.3d 782, 783, 934 N.Y.S.2d 225). Legally sufficient evidence means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof (CPL 70.10[1] ).

In order to be held criminally liable for a person's death, a defendant must have engaged in conduct that actually contribute[d] to that person's death ( People v. DaCosta, 6 N.Y.3d 181, 184, 811 N.Y.S.2d 308, 844 N.E.2d 762), by setting in motion the events that resulted in the death ( see People v. Matos, 83 N.Y.2d 509, 511, 611 N.Y.S.2d 785, 634 N.E.2d 157). The defendant's actions need not be the sole cause of death and, indeed, the defendant need not have committed the fatal act to be liable ( see

[3 N.Y.S.3d 96]

id. at 511512, 611 N.Y.S.2d 785, 634 N.E.2d 157). The test is, instead, whether it may be reasonably foreseen that the defendant's actions would result in the victim's death; if so, the defendant's actions may, under the criminal law, constitute a sufficiently direct cause of the death to warrant criminal liability for it ( People v. Kibbe, 35 N.Y.2d 407, 412, 362 N.Y.S.2d 848, 321 N.E.2d 773; see People v. DaCosta, 6 N.Y.3d at 186, 811 N.Y.S.2d 308, 844 N.E.2d 762; People v. Matos, 83 N.Y.2d at 512, 611 N.Y.S.2d 785, 634 N.E.2d 157).

Here, viewing the evidence before the grand jury in the light most favorable to the prosecution ( see People v. Mills, 1 N.Y.3d at 274275, 772 N.Y.S.2d 228, 804 N.E.2d 392), we find that there was legally sufficient proof before the grand jury that the defendant's actions caused the officer's death. Specifically, it was reasonably foreseeable that the defendant's conduct would cause collisions and that the police would respond and be required to be in the roadway, where they would be exposed to the potentially lethal danger presented by fast-moving traffic ( see People v. DaCosta, 6 N.Y.3d at 186, 811 N.Y.S.2d 308, 844 N.E.2d 762; cf. People v. Ballenger, 106 A.D.3d 1375, 968 N.Y.S.2d 610).

Accordingly, the Supreme Court should have denied those branches of the defendant's omnibus motion which were to dismiss counts one through seven of the indictment on the ground that the evidence presented to the grand jury was legally insufficient.

Appeal from Circuit Court, Hamilton County; Will M. Sparks, Judge.

David C. Stephenson was convicted of murder in the second degree, and he appeals.

Judgment affirmed.

[634] John H. Kiplinger, of Rushville, Thomas Miller, of Muncie, Paul Newman, of Gary, Clarence E. Benadum, of Muncie, L. O. Hill, of Indianapolis, and Blankenbaker & Hall, of Terre Haute, for appellant.

Wm. H. Remy and Ralph Kane, both of Indianapolis, Chas. E. Cox, Dale F. Stansbury, and Edw. J. Lennon, Jr., Dep. Attys. Gen., [635] and Arthur L. Gilliom, Former Atty. Gen., for the State.

PER CURIAM.

Appellant, together with Earl Gentry and Earl Klinck, was charged with the crime of homicide by an indictment in four counts returned by the grand jury of Marion county, Ind., which indictment, omitting the formal parts, reads as follows:

"The Grand Jurors for the County of Marion and State of Indiana upon their oaths, present that David C. Stephenson, Earl Gentry and Earl Klinck, on or about the 16th day of April, A. D. 1925, at and in the County of Marion and State aforesaid, did then and there unlawfully, feloniously and with premeditated malice kill and murder Madge Oberholtzer in the manner and form and by the means following, towit: That said David C. Stephenson, Earl Gentry and Earl Klinck did then and there on the 16th day of March, 1925, wrongfully, unlawfully and feloniously by force of arms and by duress and by putting her the said Madge Oberholtzer in fear and against her will take possession of the body and person of her, the said Madge Oberholtzer, and did then and there wrongfully, unlawfully and feloniously by force of arms and by duress and by putting her, the said Madge Oberholtzer in fear and against her will place her in a drawing room of a certain pullman passenger car which was then and there a part of a railroad train, which train was then and there scheduled to and did shortly thereafter depart from the city of Indianapolis for a regular trip to the City of Chicago; and said defendants did then and there wrongfully, unlawfully and feloniously, by force of arms and by duress and by putting her, the said Madge Oberholtzer in fear and against her will restrain her of her liberty in the drawing room of said car on said train during the progress of said train to the city of Chicago until the city of Hammond, in the State of Indiana, was reached; and said defendants did unlawfully and feloniously while so holding possession of the body and person of said Madge Oberholtzer, as aforesaid, and so restraining her of her liberty in the drawing room of said car as aforesaid, upon the body and person of her, the said Madge Oberholtzer, commit an assault, and did her, the said Madge Oberholtzer, unlawfully and feloniously in a rude and insolent manner her the said Madge Oberholtzer strike, beat, bite and grievously wound with the unlawful and felonious intent her, the said Madge Oberholtzer, to ravish and carnally know forcibly and against her will; and said defendants when said train arrived at the City of Hammond at about 6 o'clock in the morning of the 17th day of March, 1925, still unlawfully and feloniously, while so holding possession of her the said Madge Oberholtzer and so restraining her of her liberty as aforesaid did cause her to depart from said car of said train and to enter the room of a hotel in said city of Hammond and to occupy a bed with said defendant Stephenson; that thereafter on the said 17th day of March, 1925, in said city of Hammond, the said Madge Oberholtzer, distracted with the pain and shame so inflicted upon her by said defendants as aforesaid, did procure and swallow into her stomach a large quantity of deadly poison, towit: Bichloride of mercury; that said defendants on said day with full knowledge that she the said Madge Oberholtzer had taken said poison as aforesaid and although requested by her so to do did unlawfully, feloniously and wilfully wholly fail and refuse to procure for or furnish to her the said Madge Oberholtzer any antidote for said poison or any attention or help from any physician or any one skilled in counteracting the effects of said poison although they and each of them were then and there fully able to procure such antidote and the help of such physician; that said defendants did, on the afternoon and night of said March 17th, still unlawfully and feloniously by force of arms and by duress and by putting her the said Madge Oberholtzer in fear holding possession of the body and person of her the said Madge Oberholtzer and restraining her of her liberty, place her in an automobile and by said vehicle did transport her back to the city of Indianapolis and did during said night and until near noon of the 18th day of March so hold possession of her body and person and restrain her of her liberty as aforesaid in a room in a garage of said defendant Stephenson, and did at all times during said return and at all times during the imprisonment of her the said Madge Oberholtzer in said garage unlawfully and feloniously wholly fail and refuse to furnish or provide for or administer to her any antidote for said poison and did unlawfully and feloniously wholly fail and refuse to procure for her or furnish to her any attention by or help from any physician or any one skilled in counteracting the effects of said poison although they said defendants and each of them were then and there fully able to procure such antidote and help from such physician; that thereafter she the said Madge Oberholtzer did at and in the County of Marion aforesaid languish and languishing did thereafter on April 14, 1925, in said County die from the effect of her wounds inflicted as aforesaid and said poison taken as aforesaid.

"And so the Grand Jurors aforesaid upon their oaths aforesaid do charge and present that said defendants did, by the manner and means aforesaid her the said Madge Oberholtzer unlawfully, feloniously and with premeditated malice kill and murder, contrary [636] to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.

"Count two. And the Grand Jurors aforesaid, upon their oaths aforesaid do further present and charge that David C. Stephenson, Earl Gentry and Earl Klinck on the 16th day of March, A. D. 1925, at and in the County of Marion and State aforesaid did then and there unlawfully, feloniously and purposely and with premeditated malice kill and murder one Madge Oberholtzer by then and there unlawfully and purposely causing to be administered to the said Madge Oberholtzer by her own hand a certain deadly poison, commonly called Bichloride of mercury which the said Madge Oberholtzer acting under fear and duress and the compulsion of said David C. Stephenson, Earl Gentry and Earl Klinck, then and there swallow into her stomach and body by which she then and there thereby died.

"And so the Grand Jurors aforesaid upon their oaths aforesaid do present and charge that David C. Stephenson, Earl Gentry and Earl Klinck did unlawfully, purposely, feloniously and with premeditated malice, in the manner and form and by the means aforesaid the said Madge Oberholtzer, kill and murder contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.

"Count three. And the Grand Jurors aforesaid upon their oaths do further present and charge that David C. Stephenson, Earl Gentry and Earl Klinck, on the 16th day of March, 1925, at and in the County of Marion and in the State of Indiana, did then and there unlawfully and feloniously make an assault upon the body and person of one Madge Oberholtzer, a woman of the age of twenty-eight years, and her the said Madge Oberholtzer did then and there unlawfully and feloniously touch, beat, strike, bite and wound the body and person of the said Madge Oberholtzer with the unlawful and felonious intent then and there and thereby forcibly and against her will her the said Madge Oberholtzer to ravish and carnally know, from which said assault and from which said touching, biting, striking and wounding and as a result thereof the said Madge Oberholtzer, did then and there sicken, languish and die.

"And so the Grand Jurors aforesaid upon their oaths aforesaid discharge and present that said David C. Stephenson, Earl Gentry and Earl Klinck did unlawfully and feloniously in the manner and form and by the means aforesaid the said Madge Oberholtzer kill and murder, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.

"Count four. The Grand Jurors aforesaid, upon their oaths aforesaid, further present that David C. Stephenson, Earl Gentry and Earl Klinck on or about the 16th day of April A. D. 1925, at and in the County and State aforesaid, did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder one, Madge Oberholtzer, in the manner following to wit: that they the said David C. Stephenson, Earl Gentry, Earl Klinck and each of them did then and there unlawfully, feloniously, wilfully and forcibly take possession of and assume and undertake the custody and control of the body and person of the said Madge Oberholtzer against her will, she the said Madge Oberholtzer being then and there in a weak, sick and helpless condition, and did then and there assault, beat, strike and bite and wound the said Madge Oberholtzer with the unlawful and felonious intent then and there to rape, ravish and carnally know her the said Madge Oberholtzer against her will, that by reason of said assault and wounds aforesaid, the said Madge Oberholtzer was then and there in great distress of mind and body and distracted with pain and grief and did then and there while in the throes of such bodily pain and mental grief and distraction procure and swallow a quantity of poison towit: bi-chloride of mercury, that thereupon said Madge Oberholtzer became violently ill and was then and there in need of medical treatment, attention and the services of a physician, such medical services and treatment being then and there necessary to the preservation and prolongation of the life of her, the said Madge Oberholtzer, all of which was then and there well known to the said David C. Stephenson, Earl Gentry and Earl Klinck and each of them, and they and each of them being then and there able to provide such medical attention, services and assistance and she, the said Madge Oberholtzer being then and there weak, helpless and dependent upon the said David C. Stephenson, Earl Gentry and Earl Klinck for such medical care, treatment and services; that they the said David C. Stephenson, Earl Gentry and Earl Klinck and each of them did then and there unlawfully, feloniously and forcibly imprison, restrain and prevent said Madge Oberholtzer from obtaining such medical assistance and services with the unlawful and felonious intent on the part of each of them to kill and murder the said Madge Oberholtzer; that due to said acts aforesaid, on the part of the defendants aforesaid, and each of them, in preventing her from obtaining such medical attention and preventing from obtaining the services of a physician she the said Madge Oberholtzer then and there languished and afterward towit: on the 14th day of April A. D. 1925, she the said Madge Oberholtzer then and there and thereby died from the effects of said poison aforesaid, and so the Grand Jurors aforesaid, upon their oaths aforesaid do say and charge that said David C. Stephenson, Earl Gentry and Earl Klinck [637] in manner and form aforesaid, did kill and murder said Madge Oberholtzer, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana." Gentry and Klinck were acquitted.

The trial court sustained a demurrer to appellant's plea in abatement, overruled his motion to strike out parts of count one and four, and to quash the indictment, to all of which rulings proper exceptions were reserved. Appellant entered a plea of not guilty, and filed his motion for a change of venue from the county, which motion was sustained by the court, and the cause was sent to Hamilton county for trial. Appellant there filed a motion to be let to bail, and to require the state to elect upon which count of the indictment it would go to trial. Each of said motions were overruled and exceptions saved. During the trial, appellant twice moved to have the court set aside the submission of said cause and discharge the jury, and, at the conclusion of the state's evidence, moved for an instructed verdict in his favor, which motions the court overruled.

The court instructed the jury in writing, giving fifty-seven instructions, twelve of which were tendered by appellant, and twenty-seven given by the court of his own motion, over the objections of appellant.

The jury returned a verdict finding appellant "guilty of murder in the second degree as charged in the first count of the indictment," and fixing his punishment at life imprisonment, on which verdict judgment was entered on November 16, 1925.

Appellant filed a motion to set aside and vacate the judgment; that he be held in the Hamilton county jail pending the preparation and filing of his motion for a new trial; motion in arrest of judgment; motion for a new trial; each of which was overruled by the court.

Appellant by his first, second, third, and fourth assignments of error presents the question of whether the Hamilton circuit court acquired jurisdiction over the person of the defendant, over the subject-matter of the action, to try said cause and pronounce judgment thereof. Appellant's only reason for this contention is because the transcript of the proceedings in the Marion circuit court was not signed by the clerk of the Marion circuit court. Appellant says that the omission of the signature of the clerk is fatal, and that there never was a legal transcript of the proceedings in the Marion circuit court filed with the clerk of the Hamilton circuit court, and cites in support thereof sections 2239, 2240, 11846, Burns' Ann. St. 1926, and Fawcett v. State (1880) 71 Ind. 590.

Section 2239, supra, provides that "When affidavits for a change of venue are founded upon excitement or prejudice in the county against the defendant, the court, in all cases *** punishable by death, shall grant a change of venue to the most convenient county. The clerk must thereupon immediately make a transcript of the proceedings and orders of the court, and, having sealed up the same with the original papers, shall deliver them to the sheriff, who must, without delay, deposit them in the clerk's office of the proper county, and make his return accordingly. ***" Section 2240, supra, provides that "The jurisdiction of the court to which the change of venue is granted shall be complete, and the cause must be docketed and stand for trial at the first term thereafter; and such court shall take cognizance of such cause and proceed thereon to trial, judgment and execution in all respects as if the indictment therein had been found and returned by a grand jury impaneled in such court. ***" The appellant, as stated above, does not contend that the procedure set out in the latter part of section 2239, supra, was not followed. It will be observed that neither section 2239 nor section 2240 expressly requires the transcript to be certified, but only requires the clerk to make a transcript, which means a copy. Webster defines the word transcript as "that which has been transcribed; a copy of any kind." Worcester says it is a "writing made from or after an original; a copy." Burill defines it as "a copy, particularly of a record." Bouv. Law Dict., Vol. 3, page 3308, as "a copy of an original writing or deed." Our own court defined the word transcript in the case of Mitchell et al. v. Beissenherz (1922) 192 Ind. 587, 135 N. E. 885, as follows: "A transcript is what the name implies, a copy." The Supreme Court of Nevada in State v. Board of Equalization, 7 Nev. 83, 95,said: "The word 'transcript' at once suggests the idea of an original writing. The word, not only in its popular but legal sense, means a copy of something already reduced to writing." Then was there, in fact, a transcript made by the clerk of Marion county, sealed up with the original papers, delivered to the sheriff, who in turn deposited them in the office of the clerk of the Hamilton circuit court? This is the only requirement of the two sections above. But appellant says that section 11846, supra, is applicable here, and calls our attention to Fawcett v. State, which holds that the certificate of the clerk, signed and sealed, is necessary to the legality of the transcript, and without it there is legally no transcript. Section 11846, supra, reads as follows: "In all cases where a complete record is dispensed with, the production of the papers and entries relating thereto, and all transcripts thereof, certified and attested with the seal of such court as complete copies of all the papers and entries of such cause, shall have the same force in evidence as a transcript of a complete record thereof." The Fawcett Case [638] holds that the last above quoted section of the statute is applicable in a change of venue case, and requires the transcript thereof to be signed by the clerk; to which reasoning we cannot agree. We are of the opinion that section 1846, supra, has no application to a case of this kind, and was never intended by the Legislature to require the clerk of the circuit court to certify to a transcript on change of venue. Therefore, in so far as the case of Fawcett v. State, 71 Ind. 590, conflicts with the views herein expressed, the same should be, and is hereby, overruled. We are further strengthened in our view of the above statutes, for we find that the Legislature, when they required a transcript to be certified, used appropriate language to that effect. Section 1946, Burn's Ann. St. 1926, governing appeals from the justice of the peace to the circuit court, expressly provides that the justice shall make out and certify a complete transcript, etc.; also section 716, Burns' Ann. St. 1926 which has to do with transcripts on appeal to this court, expressly provides that the transcript shall be certified and sealed by the clerk. We find no such provision in the statute governing the procedure in changes of venue cases. We do not desire to be understood by what we have said as discouraging the practice which has been very general in this state, of the clerk of the circuit court certifying to transcripts on change of venue, as we feel this is very good practice, but we cannot agree that the failure of the clerk to affix his signature to the certificate is essential to the legality of the transcript, where all the requirements of the statute have been satisfied.

Appellant's fifth assignment of error relates to the action of the court in sustaining appellee's demurrer to his plea in abatement. Appellant alleges in his plea in abatement that there was no legal evidence before the grand jury, on which it could return an indictment. This question was decided adversely to appellant's contention in the case of Pointer v. State (1883) 89 Ind. 255, in which case the following language was used: "The questions attempted to be presented by the first and second causes for a new trial could, therefore, only have been raised by pleading them in abatement, and by pleading in bar all matters in abatement were waived. *** It is, nevertheless, no ground for a plea in abatement, that the indictment was found without evidence, or without sufficient evidence, or that no vote was taken by the grand jury on the indictment." See 31 C. J. 586, § 50; Guy v. State (1906) 37 Ind. App. 691, 77 N. E. 855.

Appellant's sixth and seventh assignments of error relate to the overruling of his motion to strike out parts of count one of the indictment; particularly the latter part thereof which relates to the happenings subsequent to the taking of poison by Miss Oberholtzer, and which charged that appellant failed to provide medical aid. A motion to strike out parts of an indictment is not provided for by our Code of Criminal Procedure; yet this court has recognized such procedure for the purpose of removing from an indictment such allegations as serve only to prejudice the court or jury against the defendant, without aiding or contributing to the statement of the offense charged. In Torphy v. State (1918) 187 Ind. 73, 118 N. E. 355, 356, the defendant was charged with the crime of keeping and operating a place where intoxicating liquor was sold in violation of section 8351, Burns' Ann. St. 1914, Acts 1907, c. 293, p. 689. Following the statement of the charge, the indictment further alleges that appellant had previously been convicted of a similar offense, although the statute on which the prosecution was based made no provision concerning a second or subsequent conviction on the charge of keeping or operating a place where intoxicating liquor was sold in violation of law. The defendant filed a motion to strike out that part of the indictment that alleged a prior conviction, which motion was overruled by the court. On appeal this court said that "The fact of a prior conviction was not, under the issue in this proceeding, a circumstance which could properly be brought to the attention of the jury in any manner as a part of the state's case *** and all reference thereto should have been omitted from the indictment." The court held that it was reversible error for the lower court to overrule the motion to strike out, for the reason that it could serve no other purpose than to prejudice the jury against the defendant. Such is not the case here. The allegations or recitals sought to be stricken out of the first count were facts and circumstances which could have been and were properly brought, under the issues in this case, to the attention of the jury by evidence in support of the crime charged in the fourth count of the indictment. Had the court sustained appellants' motion, no evidence would have been withheld from the jury by reason thereof. Evidence of the facts concerning appellant's treatment of Miss Oberholtzer after she swallowed the poison was competent under the fourth count, and therefore the action of the trial court in overruling appellant's motion to strike out the latter part of count one could not have had the effect of prejudicing the jury against him, by permitting the state to bring certain facts to their attention that it could not have presented in any other way under the issues. In other words, the court should not permit an indictment to be used as a means of conveying facts to the jury that could not be properly presented in evidence from the witness stand. The rule as laid down in the case of Torphy v. State, supra, is not broad enough to cover the facts here, and we do not deem it advisable [639] to extend the rule as heretofore announced. The allegations in the latter part of count one, and set out in the second specification of appellant's motion to strike out, at the most could only be surplusage that in nowise could have injured appellant. Bechtelheimer v. State (1876) 54 Ind. 128; Musgrave v. State (1892) 133 Ind. 297, 32 N. E. 885.

Appellant's eighth and ninth assignments of errors questions the ruling of the court on his motion to quash the first count of the indictment. Appellant's motion to quash states the statutory grounds (a) that the facts stated in count one do not constitute a public offense; (b) that count one does not state the offense with sufficient certainty. Appellant states that the law requires the facts and circumstances constituting the offense to be stated in plain and concise language; also that it must be shown by proper allegations that the alleged act or acts of the accused was the proximate cause of the death as distinguished from the cause of a condition affording an opportunity for the compassing of death by some other unconnected agency. It is contended by appellant in his brief that the indictment is fatally defective, for he says the facts show that an independent supervening cause of death is given; it being alleged that deceased voluntarily procured and swallowed a large quantity of deadly poison, and this is given as one of the joint causes of death. Then appellant urges that it is the law that when wounds are inflicted by one person on another, which wounds are not within themselves fatal, and a supervening cause intervenes, such supervening cause not being at the direction, request, or connivance of the one inflicting the wounds, and that but for such supervening cause death would not have resulted, the inflicting of the wounds is not the proximate cause of death, but the supervening cause is the proximate cause, and the one responsible for the death. We readily agree with appellant's statement of the law, and that in case of Bush v. Commonwealth (1880) 78 Ky. 268; Rigsby v. State (1910) 174 Ind. 284, 91 N. E. 925; Kelley v. State (1876) 53 Ind. 311, and other cases cited by appellant, we think the above rules were correctly and properly applied. So if it be true, as appellant contends, that the indictment alleges that Madge Oberholtzer voluntarily committed suicide, that is, that she took her own life while in sound mind, such an act on her part would constitute an intervening responsible agent such as would break the causal connection between the acts of appellant and the death of Madge Oberholtzer. But we cannot agree with appellant in this construction of the first count of the indictment, for it is alleged in said count, in effect, that Madge Oberholtzer was, at the time she swallowed the poison, distracted with the pain and shame inflicted upon her by appellant. If the allegations be true, and we must so consider them on a motion to quash, then the act of Madge Oberholtzer in taking the poison was not the act of a responsible agent, and the chain of cause and effect between the acts of appellant and the death would not be broken, and appellant would be guilty of murder, provided the alleged irresponsible mental condition of Madge Oberholtzer could be said to be the natural and probable result of the alleged treatment by appellant. Whether or not the alleged treatment accorded Madge Oberholtzer by appellant would naturally and probably result in rendering her distracted and mentally irresponsible was a question of fact for the jury. We think the facts and circumstances alleged and set out in the indictment were sufficient if proven to justify a finding of guilty by the jury. Regina v. Pitts [1842] Car. & Mar. Rep. 284; Rex v. Beech [1912] 23 Cox Crim. L. Cases 181; Wilder v. Russell Library Co. (1927) 107 Conn. 56, 139 A. 644, 56 A. L. R. 455; Wharton on Homic. §§ 374, 375; Wharton Crim. Law (10th Ed.) § 167.

Appellant contends that said first count is defective, in that it nowhere charges the appellant with the purpose to kill Madge Oberholtzer. This allegation, we think, is not necessary where it is alleged that life is taken in the commission of a felony, such as attempted rape, as is charged in the first count of the indictment, section 2412, Burns' Ann. St. 1926; Moynihan v. State (1880) 70 Ind. 126, 36 Am. Rep. 178; Cole v. State (1922) 192 Ind. 29, 134 N. E. 867. The sufficiency or insufficiency of an indictment may be tested by the answer to the following question: "Can the facts properly alleged be true, and the defendant innocent of the offense charged against him?" If the answer must be in the affirmative, the indictment is bad; if in the negative, the indictment is good. State v. Hilgendorf (1899) 23 Ind. App. 207, 55 N. E. 102. An indictment which charges a public offense with reasonable certainty is good, although the offense may not be charged with strict formality, and there may be surplusage in the indictment. Hobbs v. State (1893) 133 Ind. 404, 32 N. E. 1019, 18 L. R. A. 774; State v. White (1891) 129 Ind. 153, 28 N. E. 425; Fisher v. State (1891) 2 Ind. App. 365, 28 N. E. 565; State v. McDonald (1886) 106 Ind. 233, 6 N. E. 607; Myers v. State (1885) 101 Ind. 379. Defects that do not affect the substantial rights of the defendant are not sufficient to require the quashing of an indictment or information. Billings v. State (1886) 107 Ind. 54, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77; Woodward v. State (1885) 103 Ind. 127, 2 N. E. 321. An indictment that fairly informs the accused of the offense charged against him and enables the court to pronounce judgment according to the right of the case is sufficient. Woodward v. State, supra; State v. Shaw (1892) 22 Or. 287, 29 P. 1028. Under the Code of Criminal Procedure in this [640] state, no more certainty is required in criminal than in civil pleading; all that is required is that the averments be certain to a common intent. Meiers v. State (1877) 56 Ind. 336, 342; McCool v. State (1864) 23 Ind. 127, 129; State v. Jenkins (1889) 120 Ind. 268, 269, 22 N. E. 133; State v. Hopper (1892) 133 Ind. 460, 464, 32 N. E. 878; Gillett's Criminal Law (2d Ed.) § 125. Testing the first count of the indictment in this case by the rules above stated, we are forced to the conclusion that the indictment is good.

Appellant next urges that the court below erred in not requiring the state to elect on which count it would go to trial. Where an indictment contains several counts each charging the murder of the same person, but in a different manner, the state cannot be compelled to elect between such count. Merrick v. State (1878) 63 Ind. 327.

In his motion in arrest of judgment, appellant urges the same reasons that he urged in his motion to quash, and we need say nothing further on this question.

Appellant contends that the trial court erred in not permitting him to remain in the Hamilton county jail pending the preparation and filing of his motion for a new trial. The statutes, sections 2358, 2359, Burns' Ann. St. 1926, provide that the clerk after the conviction and sentence must without delay certify a copy of the judgment to the sheriff, and the sheriff must within five days convey the convict to the prison. It is true that this court in Ex parte Huffman (1914) 181 Ind. 241, 104 N. E. 511, 512, held that under article 1, § 13, Const., section 65, Burns' Ann. St. 1926, the right of an accused "to be heard by himself" continues until the disposition of a motion for a new trial, and that "the trial court would not be warranted in ordering the sheriff to take the petitioner to the state prison, pending the determination of his motion for a new trial." But in the case at bar, the court on its own motion ordered the appellant returned to Hamilton county on December 12, when his motion for a new trial and other motions were filed and ruled upon. No showing is made that appellant's constitutional right to be heard was in anyway infringed, or that he or his counsel were prevented from preparing a proper and complete motion for a new trial. On the contrary, the motion appears to be longer and more involved than it needed to be. The procedure that was had in this case, in this regard may have been necessary in the opinion of the court, either for the protection of the prisoner or to secure the state from his possible escape. No reversible error appears from the record on this question.

Appellant objected to certain testimony of Dr. John K. Kingsbury. After stating his name, residence, age, etc., he stated that he was called by telephone about 11:30 a. m., March 17, and went immediately to the Oberholtzer home, and there found Madge Oberholtzer lying on a bed in a state of shock, pale, body cold, rapid pulse, that her clothing was disheveled, her dress open in front exposing bruises on her chest; that he made a superficial examination through her clothing to determine possible broken bones (having been informed that she had been in an automobile accident). He was then asked if, in the course of his examination, she said anything in reference to whether or not she expected to die, and what it was. He answered (over the objections of appellant) that "She said that she didn't expect to get well; didn't want to get well; that she wanted to die." He was then asked, "Now doctor, just detail any conversation which you may have had with her concerning her condition?" He then again related his superficial examination, and pressed her for an answer as to how it happened. At this point, appellant interposed an objection on the ground that it had not been shown that the deceased was in extremis, or that she thought that she was going to die soon, which objection was overruled. The doctor then proceeded to relate in answer to the question a narration, as told to him by Miss Oberholtzer, of all the events occurring from the time she left home until she returned. This narration was in substance the same as the written declaration of Miss Madge Oberholtzer, which will in substance hereinafter be set out. Mrs. Eunice Shultz, who was a roomer at the Oberholtzer home, had previously testified that the man who brought Madge home told her that "She was hurt in an automobile accident, *** he did not think any bones were broken." That she saw the bruises on various parts of Madge's body, which she described. That "her clothing was mussed up and she was very dirty ***, that she looked very white around the mouth and groaned" and that Madge said to her, "Oh, Mrs. Shultz, I am dying." The rule of law governing the admission in evidence of unsworn statements as dying declarations is very clearly and definitely settled in Indiana, and appellant has set it out very fully and concisely in his brief. See McKee v. State (1926) 198 Ind. 590, 154 N. E. 372; 21 Cyc. 976, 977; Watson v. State (1878) 63 Ind. 548; Morgan v. State (1869) 31 Ind. 193; Jones v. State (1880) 71 Ind. 66.

The trial court had not only the statements of Miss Oberholtzer that she was dying, and that she could not get well, but the conduct, manner, symptoms, and condition of Miss Oberholtzer, at the time she made the statements, were detailed to the court. It was said in the case of Williams v. State, 196 Ind. 84, 147 N. E. 153, 154, that, "The competency of this evidence [meaning dying declaration] was a question for the trial court to be determined by the proof relative to the declarant's [641] state of mind at the time he made the declarations. The proof preceding the admission of such declarations must convince the trial judge that they were uttered under a sense of impending death without hope of recovery, or that the declarant fully believed that death was so near that all motives to falsehood were superseded by the strongest motives to strict veracity. *** Proof of the fact thus to be settled by the judge is not limited to the declarant's statements alone, 'but it may be inferred from the general statements, conduct, manner, symptoms and condition of the declarant, which flow as the reasonable and natural results from the extent and character of his wound, or the state of his illness."' In the case of Hill v. State (1923) 194 Ind. 688, 141 N. E. 639, 641, the court said: "The admissibility of these statements was first for the trial court to determine, and that decision will not be disturbed unless it is manifest that the facts did not warrant such ruling." Gipe v. State (1905) 165 Ind. 433, 75 N. E. 881; 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238. We cannot say that the admission of Dr. Kingsbury's testimony was manifestly erroneous.

Appellant's points 9, 10, 11, 12, 13, 14, and 15 relate to admission of evidence over his objections. We have examined each of these objections, and find that they either relate to portions of what was admitted in evidence as a dying declaration, or evidence relating to the crime charged in count four of the indictment, on which appellant was acquitted. We find no reversible error in any of the court's rulings under these points. Appellant's points 17 to 43, inclusive, also relate to the court's rulings in the admission or rejection of certain evidence. Most of these objections are very technical, or relate to counts other than count one under which appellant was convicted. We find no reversible error in the action taken by the court, and we are of the opinion that appellant suffered no substantial injury thereby.

Appellant's sixteenth point is based upon his motion to withdraw the submission and discharge the jury on account of certain remarks made by the trial judge in ruling upon the admissibility in evidence, of a conversation had between the witness and his daughter (the deceased) out of the presence of appellant, which conversation was sought to be introduced as a dying declaration. The appellant interposed an objection to the question put by the state, "Now Mr. Oberholtzer, at that time, I wish you would tell the jury what she told you happened on this trip?" for the reason that it was not shown that Madge Oberholtzer at the time labored under the belief that there was to be immediate dissolution, nor that she believed that her end was near, etc., and also that dying declarations are not competent in case of suicide. The remarks of the court, objected to, were addressed to the last part of the objection, and was a statement of the law as the court understood it, when dying declarations were admissible, when the defendant made the contention that the deceased committed suicide, and the remarks of the court were meant to answer appellant's contention that Madge Oberholtzer committed suicide, and therefore the evidence was not admissible. We are persuaded that the jury fully understood that the court was ruling on the admissibility of evidence and not instructing them in the law, which they should apply when deliberating upon the guilt or innocence of appellant in the jury room after the case was finally submitted to them. We cannot say that we approve of the practice generally of either arguments by counsel on questions of the admissibility of evidence or of the court discussing the law relating thereto. We think it better practice that the court have the jury retire during the discussion and ruling.

Appellant in his motion to vacate and set aside the verdict raises the same question as he did in his motion to quash. We have heretofore set out our views on these questions, and we need not say anything further on this subject.

Appellant by his motion for a new trial challenges the sufficiency of the evidence to support the verdict, and this question necessitates a statement of the facts proven at the trial. In substance, they are as follows:

The victim of this homicide is Miss Madge Oberholtzer, who was a resident of the city of Indianapolis and lived with her father and mother at 5802 University avenue, Irvington. She was twenty-eight years of age; weighed about 140 pounds, and had always been in good health; was educated in the public primary and high school and Butler College. Just prior to the time of the commission of the alleged acts in the indictment of appellant upon her, she was employed by the state superintendent of public instruction as manager of the Young People's Reading Circle.

Miss Oberholtzer was introduced to appellant by her escort at a banquet in the city of Indianapolis, January 12, 1925. This introduction was their first meeting.

Appellant resided at - street, Irvington, city of Indianapolis, at the time of the beginning of the actions disclosed by the evidence. His home was but a short distance; some two or three city blocks from the home of the Oberholtzers. After the meeting of appellant and Miss Oberholtzer at the banquet, he invited her several times for a "date." She gave him no definite answer. She later consented to his insistent invitation to take dinner with him at a hotel in Indianapolis, and, upon the occasion, he came to her home for her with his automobile and they dined together. Thereafter, appellant [642] called her several times by telephone, and once again she had dinner with him at the same hotel, at which another person was a third member of the party. Subsequent to the second dinner, Miss Oberholtzer was at Stephenson's home at a party with several prominent people, where both ladies and gentlemen were guests. The two principal actors to this tragedy did not see each other again until late Sunday evening, March 15, 1925. The afternoon of that Sunday she had been away from home and returned between nine and ten o'clock in the evening. Upon her return, her mother, Mrs. Matilda Oberholtzer, informed her that a telephone message came for her, which the mother delivered to her daughter, which was a piece of paper upon which there was the telephone number, Irvington 0492. Miss Oberholtzer called the number and Stephenson answered the call. He asked her to come to his home for he wished to see her about something very important to herself, and that he was leaving for Chicago and it was necessary that he see her before he departed. In the telephone conversation, Stephenson said to Miss Oberholtzer that he could not leave, but that he would send some one for her. Very soon thereafter, a Mr. Gentry, whom Miss Oberholtzer had never seen, came for her and said he was from Stephensons. She walked with Gentry to Stephenson's home. When they arrived, they went inside the home and there saw Stephenson. He had been drinking. Stephenson's chauffeur, whom he called "Shorty," was there also. As soon as she got inside the house, she grew very much afraid when she learned that there was no other woman about and that Stephenson's housekeeper was away, or at least not to be seen. Immediately upon her arrival at Stephenson's home, he, with the other men, took her into the kitchen and some kind of drinks were produced. At this time another man by the name of Klinck came in by the back door. She said she did not want to drink, but Stephenson and the other men forced her to drink, and she submitted because she was afraid to refuse, and drank three small glasses of the liquor produced. The drinks made her very ill and dazed, and the effects of them caused her to vomit. Stephenson then said to her, "I want you to go to Chicago with me." She said she couldn't and would not; and that she was much terrified and did not know what to do, and said that she wanted to go home. Stephenson replied to her, "No, you cannot go home. Oh yes! you are going with me to Chicago. I love you more than any woman I have ever known." She then tried to call her home by telephone, but could get no answer. Later, when she again tried to get to the telephone, they prevented her from so doing.

The men then took her up to Stephenson's room, and Stephenson opened a dresser drawer which was filled with revolvers. He told each of the men to take one, and he selected a pearl handled revolver and had "Shorty" load it. Stephenson then said first to her that they were going to drive through to Chicago. She told him that she would not go. Then Gentry called a hotel in Indianapolis, at Stephenson's order, and secured reservations in a drawing-room for two persons. Then all of the men took her to the automobile at the rear of Stephenson's yard and they started the trip. She thought they were bound for Chicago, but did not know. She begged them to drive past home so that she might get her hat on a ruse that if she did get inside her home she would be safe from them. Before they left Stephenson's house, Stephenson said to Klinck, "You get in touch with," an officer, "right away and tell him we are going to Chicago on a business deal to make money for all of us." Then they started. Klinck was not one of the party in the automobile. Stephenson and Gentry sat in the car all of the time with her until they got to the train. On the trip from Stephenson's home to the railway station in Indianapolis, the automobile was stopped at the hotel, and there "Shorty" went into the hotel and came back. While at this stop, Stephenson and Gentry refused to let her out of the automobile. At this time she was in a dazed and terrified condition and feared that her life would be taken by Stephenson. He told her that he was the law in Indiana and said to Gentry, "I think I am pretty smart to have gotten her."

Stephenson, Gentry, and she boarded the train, where all three went at once into the compartment or drawing-room. She was in such condition that she could not remember all that happened after that, but she did remember that Gentry got into the top berth of the compartment. Stephenson then took hold of the bottom of her dress and pulled it over her head, against her wishes, and she tried to fight him away, but was weak and unsteady. Then Stephenson took hold of her two hands and held her, but she did not have strength to get away, because what she had drunk was affecting her. Then Stephenson took off all her clothes and pushed her into the lower berth. After the train started, Stephenson got into the berth with her and attacked her, and, in so doing, he held her so she couldn't move and did not know and did not remember all that happened. She did remember that he chewed her all over her body; bit her neck and face; chewed her tongue; chewed her breasts until they bled and chewed her back, her legs, and her ankles, and mutilated her all over her body. She remembered of hearing a buzz early in the morning, and the porter calling them to get up for Hammond. Then Gentry shook her and said it was time to get up and that they were to leave the train at Hammond, Ind. At this time, she became [643] more conscious, and, before they left the train, Stephenson was flourishing his revolver. Then she asked him to shoot her. He held the revolver against her side and she said to him again to kill her, but he put the gun away in his grip. During the night on the train, she heard no sound from Gentry. After the car porter called them, Stephenson and Gentry helped her to dress; then the two men dressed and took her off the train at Hammond. After leaving the train, she was able to walk with the two men to the Indiana hotel. During the night she begged Stephenson to send a telegram to her mother. At the Indiana hotel, Stephenson registered for himself and wife under the name of Mr. and Mrs. W. B. Morgan, address, Franklin, and were assigned to room No. 416. Gentry then registered under the name of Earl Gentry, address Indianapolis, Ind., and was assigned to room No. 417. The time they reached the hotel was about 6:30 o'clock in the morning. In the hotel lobby, when they entered, were two colored bell boys and two colored girls. The three, as guests of the hotel, were taken up the elevator and shown to their rooms. During this time Miss Oberholtzer continued begging Stephenson to send a telegram to her mother. Stephenson then made her write a telegram and told her what to say in it. After the telegram was written, Gentry took it and said he would send it immediately. Stephenson then laid down on the bed and slept, while Gentry put hot towels and witch hazel on her head and bathed her body to relieve her suffering.

Breakfast was served in their room. Stephenson ate grapefruit, coffee, sausage, and buttered toast. She drank some coffee, but ate nothing. At this time, "Shorty" came in the room. He said to Stephenson that he had been delayed getting them because he could not find the hotel where they were guests in Hammond. Then she asked Stephenson to give her some money, for she had none, so that she might purchase herself a hat. Stephenson told "Shorty" to give her money, and he gave her $15 and took her out in the automobile. "Shorty" waited for her while she went into a store and purchased a hat, for which she paid $13.50. When she returned to the car, she asked "Shorty" to drive her to a drug store so that she might purchase some rouge. He then drove the car to a drug store, where she purchased a box of bichloride of mercury tablets, put them in her coat pocket, and returned with "Shorty" in the automobile to the hotel. During the morning at the hotel, the men got more liquor at Stephenson's direction. Stephenson said they were all going to drive on to Chicago, and made her write the telegram to her mother saying that they were going to Chicago. This was the telegram that Gentry took.

After she and "Shorty" returned to the hotel, she said to Stephenson to let her go into room 417, which was the room assigned to Gentry, so that she might lie down and rest. Stephenson replied, "Oh no, you are not going there, you are going to lie right down here by me." She then waited awhile and until she thought Stephenson was asleep and then went into room 417 and Gentry remained in room 416 with Stephenson. There was no glass in room 417, so she procured a glass from room 416, laid out eighteen of the bichloride of mercury tablets and at once took six of them, which was about ten o'clock in the morning of Monday, March 16, 1925. She only took six of the tablets because they burnt her so. Earlier in the morning she had taken Stephenson's revolver and thought to kill herself in Stephenson's presence while he was asleep. It was then she decided to try and get poison and take it in order to save her mother from disgrace. She knew it would take longer for the mercury tablets to kill her. After she had taken the tablets, she lay down on the bed and became very ill. It was nearly four o'clock in the afternoon of Monday that "Shorty" came into the room and sat down to talk to her. He said to her that she looked ill and asked her what was wrong, and she replied, "Nothing." He asked her where she had pain and she replied that pain was all over her. He then said to her that she could not have pain without cause. When she asked him, "Can you keep a secret?" He answered, "Yes." She said, "I believe you can." Then she told him she had taken poison, but that he should not tell Stephenson. She had been vomiting blood all day. When she said to him that she had taken poison, "Shorty" turned pale and said that he wanted to take a walk. He left the room, and, in a few minutes, Stephenson, Gentry, and "Shorty" came into the room very much excited. Stephenson then said, "What have you done?" She answered, "I asked 'Shorty' not to tell." Stephenson then ordered a quart of milk and made her drink it, and then she said to him and to the others that she had taken six bichloride of mercury tablets, and said, "If you don't believe it, there is evidence on the floor and in the cuspidor." Stephenson then emptied the cuspidor, which was half full of clotted blood, into the bathtub and saw some of the tablets. She then asked Stephenson what he intended to do, to which he replied, "We will take you to a hospital and you can register as my wife. Your stomach will have to be pumped out." He said that she could tell them at the hospital that she had gotten mercury tablets through a mistake instead of aspirin. To Stephenson's suggestion, she refused to comply as his wife. Then it was that Stephenson said that they would take her home. She then said to Stephenson [644] that she would not go home, but would stay at the hotel, and asked them to leave her and go about their own business or to permit her to register at another hotel under her own name. Stephenson then said, "We will do nothing of the kind. We will take you home," and that the best way out of it was for them to go to Crown Point and there she marry him, to which suggestion Gentry said he agreed it was the thing to do. She refused. Stephenson then snapped his fingers and instructed "Shorty" to pack the grips. They then departed from the hotel. Stephenson assisted her down the stairs. Before leaving she asked "Shorty" to telephone to her mother. Stephenson said that he had already called her. She asked what her mother said, and Stephenson answered that she said it would be all right if her daughter did not come home that night.

"Shorty" checked out of the hotel for the three, and they then put her in the back seat of the automobile with Stephenson and the luggage and started for home. Her mind was in a daze and she was in terrible agony. After they had proceeded in the automobile a short distance, Stephenson ordered "Shorty" to take the auto license plates off the car, which "Shorty" did, and Stephenson then directed him to say, if questioned, that they had parked in the last town where the auto plates had been stolen. On the journey back to Indianapolis she screamed for a doctor, and said she wanted a hypodermic to relieve the pain, but the men refused to stop. She begged Stephenson to leave her along the road some place, that some one would stop and take care of her, and said to Stephenson, that he was even then more cruel to her than he had been the night before. He promised to stop at the next town, but did not. Just before reaching a town he would say to "Shorty," "Drive fast, but don't get pinched." She vomited in the car all over the back seat and the luggage. Stephenson did nothing to make her comfortable upon the trip. He said to Gentry, "This takes guts to do this Gentry. She is dying"; and that he said to Gentry he had been in a worse mess than this before and got out of it. Stephenson and Gentry drank liquor during the entire trip. Stephenson said also that he had power and that he had made a quarter of a million dollars, and that his word was law.

Upon reaching Indianapolis, they drove straight to Stephenson's house by way of Thirty-Eighth street and Emerson avenue in Indianapolis. When the car reached Stephenson's garage, Stephenson said, "There is someone at the front door of the house," and told "Shorty" to go and see who it was. "Shorty" returned and informed Stephenson that it was Miss Oberholtzer's mother. Then Stephenson said, "You will stay right here until you marry me." One of the three men then carried her upstairs into the loft above the garage. Stephenson did nothing to relieve her pain while they left her in the garage until she was carried to her home about noon Tuesday, March 17, 1925. A big man, as she says, Mr. Klinck by name, shook her and awakened her and said to her that she must go home. She asked him where Stephenson was, and he told her he did not know. She remembered here that Stephenson had told her to tell every one that she had been in an automobile accident and then said to her, "You must forget this, what is done has been done. I am the law and the power." He repeated to her several times that his word was law. On account of her agony and suffering, she begged Klinck to take her home in Stephenson's Cadillac car. He said he would order a taxi, but finally said he would take her in Stephenson's car. Klinck then dressed her and carried her downstairs from the loft and put her in the back seat of the automobile and drove to the home of her mother. She asked him to drive in the driveway, which he did, and then carried her into the house and upstairs and placed her on her bed.

At the time she was returned to her home by Klinck, her mother was away from home. There was in the house, at the time she returned, Mrs. Shultz, who roomed at the Oberholtzer home with her eldest son George. When Klinck carried Miss Oberholtzer into the house, Mrs. Shultz was preparing lunch in the kitchen for her son and heard a terrible groaning at the front door and then went to the dining room and saw Miss Oberholtzer being carried in. She then went to the stairway and saw her carried upstairs by a large man, whose name she did not know. When he came downstairs alone, she asked "Is Madge hurt?" He replied, "Yes," and said she was hurt in an automobile accident. Mrs. Shultz asked him how badly, and he replied he didn't think any bones were broken. Then, she said to him, "I will get a doctor quickly," and he said, "Yes." Then Mrs. Shultz asked him who he was and he replied, "My name is Johnson from Kokomo," and said, "I must hurry," and, hurrying on, kept his face toward the door. Mrs. Shultz got a good look at his face as he came down the stairway and recognized him and identified him in the courtroom at the trial of appellant. This man, who gave his name as Johnson, was Earl Klinck.

Upon Klinck's departure from the house, Mrs. Shultz went up to see Miss Oberholtzer, whom she called Madge. The door to her room was closed and Mrs. Shultz knocked and heard Madge moaning, so she opened the door and went in and saw Madge on the bed. When she went in, Madge was groaning and was pale and could hardly speak or answer. Mrs. Shultz noted the bruises on Madge. The one on her right cheek was a dented wound of [645] dark color; and on the left side of her chest were similar wounds, which were deeper and darker in color. The wound on her breast and the wound Mrs. Shultz noted were similar in shape and appearance. She noted that Madge had bruises across her stomach, on her limbs and ankles, which bruises were very dark in color in some places. The skin on her left breast was open. Her clothing, a black velvet dress and black shoes, was very mussed up and very dirty. Her coat had dropped off there in her room. She had on no hat. She looked very white around her mouth and groaned. "Oh!" and "Dear mother." She then said, "Oh, Mrs. Shultz, I am dying."

Miss Oberholtzer told Mrs. Shultz to call Doctor Kingsbury, which she did, and he arrived in less than an hour. Mrs. Oberholtzer, her mother, returned to her home about two o'clock in the afternoon. Upon Dr. Kingsbury's arrival at the home, he went immediately to see Madge and found her lying on her bed. He said she was in a state of shock. Her clothing was in a disheveled state; her face was pale; her body was cold and her pulse rapid. Her dress lay open in the front on her breast exposing bruised areas over her chest, with two or three lacerations, little cuts on the left chest; her right check had a bruised elevated area, dark in color, egg-shaped in formation. He had been informed that she had been injured in an automobile accident and made a superficial examination through her clothing to determine whether bones were broken. After such examination, he had a conversation with her in which she told him she did not expect to get well and that she wanted to die. He told her that he found that no bones were broken and asked her how she happened to be in this condition, to which she replied, "When I get better, I will tell you the whole story." Because of the state of shock and the condition, the doctor did not know how severely she was hurt or injured and pressed her for a reply. She then related to him the story, as related above, of the telephone call; her being escorted to Stephenson's home; of the drinking; of the ride to Hammond on the train; of her purchase of a hat and the poison and of her taking of the poison; and of the return trip to Indianapolis; of her pain and agony on the trip; how she begged Stephenson to procure a physician on the return and of his refusal to do so; of the arrival at Indianapolis about midnight and of her being taken to Stephenson's garage, where she was held a captive until 11:30 a. m. the following morning, and of her being taken home by Klinck, who told Mrs. Shultz that she had been injured in an automobile accident, and when site heard Klinck say this to Mrs. Shultz, she, Madge, raised upon her elbow and called, "He lies"; how that she had begged Stephenson, during the night in the garage after the return, to call a physician for her and that he did not grant her request.

After Dr. Kingsbury had heard her story, as thus related, he made a careful physical examination after a Miss Spratley, a nurse, had been called to care for her, and after Miss Spratley had removed the patient's clothes and cleaned her. As a result of this careful physical examination, Dr. Kingsbury found that Miss Oberholtzer had numerous bruised areas over her body, on her right cheek, over the chest, with lacerations on the left chest; a bruise as large as a dinner plate on the left hip and buttock; bruised and torn tissues down at the point of the vagina; a bruised discoloration, bruised areas down over her limbs and ankles; body very cold and pulse rapid. The doctor then had the patient catheterized and obtained some urine for examination, which he took with him to his office. He then washed her stomach and obtained mucus and blood therefrom. Upon examination, her urine showed a large collection of albumin, casts, and blood cells, which were all evidence of acute kidney inflammation; that in his opinion, examination of the bruises and lacerations, the ones on the left breast and right cheek were inflicted by teeth; but he could form no opinion of the cause of the wounds in the vagina. He attended the patient until her death, April 14, 1925, in Marion county, Ind., during which time he attended the patient by calls three to five times each day, and called in other medical assistance. The lacerations on the left breast became infected, but had healed at the time of her death, leaving scars. The nature of the infection was the ordinary pus producer, which, ordinarily, was responsible for a pus infection, and was such an infection as might result from a bite.

Dr. Kingsbury did not have any further conversation with her concerning any other matter than her progress or the type of medication, except on March 28th in the early evening, when he advised her of her condition and outlook and, when no one else was present, he told her that she had no chance of recovery and no chance to get well, and that she was going to die, and told her why, which was the result of the things that had happened to her, the shock, the loss of food, loss of rest, and the action of the poison on her system and her lack of early treatment, and that the blood test, made that afternoon or the day before, was very much worse; and that her progress was unfavorable and that he was thus forced to inform her that she had no chance of recovery. She replied, "That is all right doctor, I am ready to die. I understand you doctor. I believe you and I am ready to die."

The other physicians, who were called in the case by Dr. Kingsbury, were Dr. H. O. Mertz of Indianapolis, who was a recognized [646] authority on treatment of kidney disorders; Dr. John Warvel of Indianapolis, pathologist at the Methodist Hospital for some time; Dr. J. A. McDonald of Indianapolis, as a consulting physician; Dr. B. G. Jackson, of Indianapolis, specialist.

The statement of Dr. Kingsbury in evidence is that the chances, both for prolonging the victim's life and for her getting well would have been better had she had treatment earlier, or within four or five hours after taking the poison; the delay caused by the automobile ride from Hammond to Indianapolis and the subsequent detention certainly tended to lessen her chances for recovery, or to shorten her life.

An attorney, a friend of the Oberholtzer family, visited at the Oberholtzer home frequently from March 17th, the time of Miss Oberholtzer's return from Hammond, to April 14, 1925, the day on which she died. Miss Oberholtzer told the attorney the story of the incidents related, and informed him that she knew she had no chance for recovery and was ready to die. From the statements so made by her to him, he prepared and had transcribed by typewriter a dying statement, which was read to her and in which she made corrections, and which was afterwards again prepared and read to her and approved, and she signed the statement, saying therein that she had no hope of recovery; and that she believed and knew that she was about to die and that she took an oath before a notary public of the truth of the statements made in the dying declaration.

The testimony of the physicians, who were in attendance upon Miss Oberholtzer as their patient during portions of the time after her return from Hammond until her death, and the consulting physicians, by their testimony, showed that the minimum fatal dose of bichloride of mercury is two or three grains; but larger doses are not necessarily more apt to be fatal, but the danger rests upon the amount of poison absorbed and retained; the form in which taken, whether tablets or powder; the promptness of vomiting or purging, efficiency of treatment; the fullness or emptiness of the stomach at the time the poison is taken by way of the mouth. Medical history shows that recoveries have occurred when as much as 500 grains were swallowed; the per cent. of fatalities since A. D. 1910 is about 25 per cent. and as low as 6 per cent. in one hospital. The average time for the life of the patient after having taken the poison in a fatal dose is from five to twelve days. Medical history shows that some patients have died within a few hours after taking the poison, and the longest reported case in medical history is that the patient died the 25th day after taking the poison, and that all reported cases of patients who lived beyond 25 days after taking the poison had recovered; that in a severe case, where the patient survived 29 to 30 days, as did Miss Oberholtzer, after taking the poison, and died, the consensus of opinion was stated that some other factor played a part in causing the death. The action of this poison, if the patient lives more than a few days, expresses itself in the kidneys and causes an acute nephritis of the kidneys to such an extent that there is a failure to secrete urine by those organs. Nephritis, caused by the poison if the patient lives beyond the twelfth day, diminishes, and the kidneys begin a process of repair and resumption of their function, and that medical history shows that it requires five to twelve days for a human being to die if the kidneys are completely out of function.The report of the post mortem upon Miss Oberholtzer in evidence showed that the physician making such examination found an acute nephritis, the effect of bichloride of mercury on the kidney, degeneration of other organs in the liver and heart muscle, irritation of gastro-intestinal tract, abscess on one of her lungs, recently healed injuries on the surface of her body, four or five on the surface of her chest; one of which showed evidence of previous supporation, which was caused by the entrance of bacteria in that wound. Portions of the liver and kidneys were subjected to examination by Dr. Harger of Indiana University School of Medicine, the result of which, according to his evidence, showed that the injury to the kidney by the poison, which injury was termed nephritis, had almost healed, and that the kidney tissues were in a state of advanced repair; the abscess in the lung contained pus or pus-forming germs which are carried by the blood stream by which circulation these germs, coming from an infected wound, cause blood poisoning or pyemia; the symptoms of such pyemia are weakness, a rapid pulse, and fever. The post mortem examination showed that the lacerated and recently healed infection over one of her breasts was the only one found from which such pyemia could probably have resulted. The injury made on her breast could have been infected by human teeth, and wounds so made are apt to be infected by bacteria on the teeth and the mouth of the person biting, or such bacteria may be on the skin which are carried in beneath the skin by the injury. The opinion was that the infection in the lungs came from the infected area on the chest, and that the kidneys were also infected by the same bacteria, which, on account of the poisoning, would be less able to resist infection by the pus germs. The abscess in the lung, the infection in the blood stream, and the infection in the kidney all tended to prevent recovery, and that it was highly probable that such infection contributed to the death of Miss Oberholtzer; but that she would have recovered from the effects of the mercurial poisoning had she not been so infected by the pus germs coming from the [647] wound on her chest, because the kidneys had already accomplished a large amount of repair sufficient to carry on their function. The opinion was that the wounds made on her body could not have been caused in any manner by mercuric chloride.

The result of the post mortem showed no effects of influenza in her lungs. There was no condition in the esophagus, mouth, stomach, intestines, or liver due to mercuric chloride, which could of itself have resulted in death. It was stated that taking into consideration the facts given in evidence of the taking of possession of Miss Oberholtzer by appellant; her trip to Hammond; the taking of the poison; the return home, and the time intervening from then until her death, a delay of twenty-four to twenty-six hours in administering remedies for mercuric chloride poisoning, materially reduced her chances of recovery.

A hypothetical question was asked of some of the physicians who had attended Miss Oberholtzer, the statements of which were the facts which had been introduced in evidence, with the addition of the following, that bichloride of mercury tablets, which she purchased and had taken, were, "perhaps 7 1/2 or 7 3/8 grains each." The final sentence of the hypothetical question was: "Upon this hypothesis, Doctor, state what, in your opinion, was the cause of her death?" One doctor answered: "She died from an acute infection, superimposed upon an acute nephritis, in my opinion." And answering further as to what was the nature of the acute infection, his answer was "that she had Staphylococci (pus) infection in her kidney." And answered further, in reference to mercuric nephritis, that delay in medical treatment affected her chance of recovery, in that it would allow more absorption of the drug and result in greater damage to the kidney. One of the other physicians testified: "The cause of her death, in my opinion, was some secondary complication superimposed upon nephritis." And further, that but for this infection, superimposed upon the mercuric nephritis, "I believe she would have recovered," and further that the delay of twenty-four to twenty-six hours in giving medical and nursing attention greatly increased chances of fatality.

Appellant was arrested by a party of four officers at his room in a hotel in Indianapolis. One of the officers knocked at the door of appellant's room, and, upon appellant opening the door, one of the officers asked him, "If Mr. Stephenson was in." Appellant answered, "No, Mr. Stephenson is not in, but I am his secretary, Mr. Butler." Upon further questioning, the man who opened the door and who said he was Mr. Butler, admitted that he was Mr. Stephenson, the appellant. The hotel clerks, the maid, and the bell boys of the Indiana Hotel, Hammond, and the hotel clerk of the Washington Hotel, Indianapolis, where appellant had lodging, and where he was arrested, were witnesses, and whose testimony was corroborative of the facts in relation to what happened in the two hotels as narrated. The pullman conductor and pullman porter of the car, in which appellant and the others made the journey to Hammond, testified. The conductor identified Earl Klinck as the person from whom he took up three tickets in the Union Station in Indianapolis. He testified of the three, including appellant and Miss Oberholtzer, occupying the drawing-room in the pullman car; that he heard the woman vomiting in the toilet room which is connected with the drawing-room; that appellant ordered the other men to wet a towel in cold water to bathe her face; that, while in the room preparing the beds, appellant showed his revolver to the pullman porter, and identified the taller one of the two men in the courtroom, who occupied the drawing-room that trip, as Gentry, who was indicted with this appellant.

Appellant very earnestly argues that the evidence does not show appellant guilty of murder. He points out in his brief that, after they reached the hotel, Madge Oberholtzer left the hotel and purchased a hat and the poison, and voluntarily returned to his room, and at the time she took the poison she was in an adjoining room to him, and that she swallowed the poison without his knowledge, and at a time when he was not present. From these facts he contends that she took her life by committing suicide; that her own act in taking the poison was an intervening responsible agent which broke the causal connection between his acts and the death; that his acts were not the proximate cause of her death, but the taking of the poison was the proximate cause of death. In support of his contention, he citesState v. Preslar (1856) 48 N. C. 421; Reg. v. Donovan (1850) 4 Cox 399; Gipe v. State (1905) 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238; Treadwell v. State (1884) 16 Tex. App. 560; Bush v. Com. (1880) 78 Ky. 268; State v. Shelledy (1859) 8 Iowa, 477; Hendrickson v. Com. (1887) 85 Ky. 281, 3 S. W. 166, 7 Am. St. Rep. 596, and other cases from other jurisdictions. In the case of State v. Preslar supra, the defendant in the nighttime fought with his wife, and she left to go to the home of her father. When she reached a point about two hundred yards from her father's home, she, for some reason, did not want to go in the house till morning, laid down on a bed cover, which she had wrapped around her, till daylight. The weather was cold and the next morning she could not walk, but made herself known. She afterwards died. The court held that the wife without necessity exposed herself, and the defendant was not guilty. In the case of Reg. v. Donovan, supra, the defendant struck his wife, and she went to the window to call for help and fell out. [648] Defendant was charged with throwing his wife out of the window with intent to kill. The court held that the evidence must show that by his treatment he intended to make her jump out of the window. In the case of Gipe v. State, 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238, the defendant broke into a house with intent to rob. The deceased ran out of the house and jumped into a well and remained there, and died from exposure. The indictment charged death by violence, to wit, beating and striking. The court held that the evidence did not show the killing was by force and violence as charged, and did not follow the allegations in the indictment, and for that reason the cause was reversed. In Treadwell v. State, supra, the defendant shot the deceased, who lived from November till the following September. A few weeks before his death he had heart attack and convulsions. The court found that he died from heart attacks, and the wounds inflicted by defendant had nothing to do with the death. In the case of State v. Shelledy, supra, the defendant with others went in a body to the home of one W. armed with revolvers, and forcibly took possession of W. and bound his arms so as to render him helpless, and in the presence of W. avowed their purpose to kill W. and placed him in a hack and started to the timber with him, and when on the banks of the Iowa river he leaped from the wagon into the water, and they permitted him to drown, while standing by, and made no effort to rescue the said W., where by reasonable effort they might have done so. The court held that the defendant would be guilty of murder under these circumstances. In Bush v. Com., 78 Ky. 268, defendant wounded one V. who was taken to the hospital and treated by a physician who communicated to her scarlet fever from which disease she died. The court held in that case, that if the wound is not dangerous, and when in the natural course of events a new and intervening cause appears and causes the death, there is no guilt. If death was not connected with the wound in the regular chain of cause and consequence, there ought not to be any responsibility. If a new and wholly independent instrumentality interposed and produced death, the wound is not the proximate cause. The principle laid down in the last case is well supported by decided cases and text-book writers, and we agree that the reasoning is sound and that it was properly applied in those cases. It is quite clear that in the Bush Case there was no causal connection between the wound inflicted and the death. But we do not believe that the rule stated in the above case is controlling here.In the recent case of Wilder v. Russell Library Co. (1927) 107 Conn. 56, 139 A. 644, 646, 56 A. L. R. 455, the question of causal connection was discussed. In that case, the commissioner awarded compensation to the claimant as a dependent of the deceased. The deceased had been librarian at the library of respondent employer, and, as such, was under the supervision of its trustees, in full charge of the library. She was very conscientious in her work, temperamentally zealous for the good of the library, working many hours overtime at her home evenings. She also engaged in outside activities, which was occasioned by her position as librarian. The various works which she engaged in are set out in the opinion of the court, which we will not take the time or space to set out here. Finally her health broke, which was followed by a nervous breakdown, and, while mentally irresponsible, committed suicide. The court found that the worry, anxiety, and excessive nervous and mental activity in connection with the library work were all contributing factors in the ultimate mental breakdown. Her physical, mental, and nervous disorder were all attributable to that work and traceable to her employment. The court said: "Before he can make a valid award the trier must determine that there is a direct causal connection between the injury, whether it be the result of accident or disease, and the employment. *** Was the employment a proximate cause of the disablement? ***" the court held that it was, and affirmed the award. See Wharton on Homicide, § 374; Rex v. Beech (1912) 23 Cox Cr. Law Cas. 181; Wilder v. Russell Library Co. (1927) 107 Conn. 56, 139 A. 644, 56 A. L. R. 455. In the case of Rex v. Beech, supra, the prosecutrix was the village nurse and lived alone. At 11:45 p. m. on an evening in November, the appellant came to her house when she was in bed. He entered the house by breaking a window and went upstairs to the bedroom occupied by the prosecutrix. The door was locked, and the appellant threatened to break it open if the prosecutrix would not let him in. She refused, and the appellant then tried to burst open the door. The prosecutrix called out that if he got in he would not find her in the room, and, as the appellant continued his attack upon the door, the prosecutrix jumped out of the window sustaining injuries. The prosecutrix also testified that the appellant had attempted to interfere with her on a previous occasion when she had threatened to take poison if he touched her. The court approved the proposition as stated by the lower court as follows: "*** Whether the conduct of the prisoner amounted to a threat of causing injury to the young woman; was the act of jumping the natural consequence of the conduct of the prisoner and was the grievous bodily harm the result of the conduct of the prisoner." The court held that, if these questions were answered in the affirmative, he would be guilty. In Rex v. Valade (Que.) 22 Rev. de Jur. 524, 26 Can. Cr. Cas. 233, where the accused induced a young girl under the age of consent to go along with him to a secluded [649] apartment, and there had criminal sexual intercourse with her, following which she jumped from a window to the street to get away from him, and was killed by the fall. The accused was held guilty of murder. Bishop in his work on Criminal Law, vol. 2, (9th Ed.) page 484, says: "When suicide follows a wound inflicted by the defendant his act is homicidal, if deceased was rendered irresponsible by the wound and as a natural result of it." See, also, People v. Lewis (1889) 124 Cal. 551, 57 P. 470, 45 L. R. A. 783. We do not understand that by the rule laid down by Bishop, supra, that the wound which renders the deceased mentally irresponsible is necessarily limited to a physical wound. We should think the same rule would apply if a defendant engaged in the commission of a felony such as rape or attempted rape, and inflicts upon his victim both physical and mental injuries, the natural and probable result of which would render the deceased mentally irresponsible and suicide followed, we think he would be guilty of murder. In the case at bar, appellant is charged with having caused the death of Madge Oberholtzer while engaged in the crime of attempted rape. The evidence shows that appellant, together with Earl Gentry and the deceased, left their compartment on the train and went to a hotel about a block from the depot, and there appellant registered as husband and wife, and immediately went to the room assigned to them. This change from their room on the train to a room in the hotel is of no consequence, for appellant's control and dominion over the deceased was absolute and complete in both cases. The evidence further shows that the deceased asked for money with which to purchase a hat, and it was supplied her by "Shorty," at the direction of appellant, and that she did leave the room and was taken by Shorty to a shop and purchased a hat and then, at her request, to a drug store where she purchased the bichloride of mercury tablets, and then she was taken back to the room in the hotel, where about 10 o'clock a. m. she swallowed the poison. Appellant argues that the deceased was a free agent on this trip to purchase a hat, etc., and that she voluntarily returned to the room in the hotel. This was a question for the jury, and the evidence would justify them in reaching a contrary conclusion. Appellant's chauffeur accompanied her on this trip, and the deceased had, before she left appellant's home in Indianapolis, attempted to get away, and also made two unsuccessful attempts to use the telephone to call help. She was justified in concluding that any attempt she might make, while purchasing a hat or while in the drug store to escape or secure assistance, would be no more successful in Hammond than it was in Indianapolis. We think the evidence shows that the deceased was at all times from the time she was entrapped by the appellant at his home on the evening of March 15th till she returned to her home two days later, in the custody and absolute control of appellant. Neither do we think the fact that the deceased took the poison some four hours after they left the drawing-room on the train or after the crime of attempted rape had been committed necessarily prevents it from being a part of the attempted rape. Suppose they had not left the drawing-room on the train, and, instead of the deceased taking poison, she had secured possession of appellant's revolver and shot herself or thrown herself out of the window of the car and died from the fall. We can see no vital difference. At the very moment Madge Oberholtzer swallowed the poison she was subject to the passion, desire, and will of appellant. She knew not what moment she would be subjected to the same demands that she was while in the drawing-room on the train. What would have prevented appellant from compelling her to submit to him at any moment? The same forces, the same impulses, that would impel her to shoot herself during the actual attack or throw herself out of the car window after the attack had ceased, was pressing and overwhelming her at the time she swallowed the poison. The evidence shows that she was so weak that she staggered as she left the elevator to go to the room in the hotel, and was assisted by appellant and Gentry. That she was very ill, so much so that she could not eat, all of which was the direct and proximate result of the treatment accorded her by appellant. We think the situation no different here than we find in the Beech Case or the Valade Case, supra. To say that there is no causal connection between the acts of appellant and the death of Madge Oberholtzer, and that the treatment accorded her by appellant had no causal connection with the death of Madge Oberholtzer would be a travesty on justice. The whole criminal program was so closely connected that we think it should be treated as one transaction, and should be governed by the same principles of law as was applied in the case of Rex v. Beech and Rex v. Valade, supra. We therefore conclude that the evidence was sufficient and justified the jury in finding that appellant by his acts and conduct rendered the deceased distracted and mentally irresponsible, and that such was the natural and probable consequence of such unlawful and criminal treatment, and that the appellant was guilty of murder in the second degree as charged in the first count of the indictment.

Appellant complains of instruction No. 41, given by the court of its own motion. This instruction reads as follows: "The law presumes that one intends the natural and probable consequences of his acts, whether he actually intended or anticipated them or not. Of course such presumption cannot be indulged in and carried to the extent of making [650] one guilty of homicide on account of voluntary suicide of a sane person, where such suicide may have been induced or caused from remorse, grief, shame or humiliation growing out of some past action of himself or herself and another to which he or she had assented voluntarily. But if in such case, there be no voluntary assent on the part of such person taking his or her life, to such past action which caused such remorse, grief, shame and humiliation but that he or she was compelled to participate in such action causing such remorse, grief, shame or humiliation through force, threats, coercion and restraint of another. Then it is for the jury to determine whether or not the suicide in such a case, after considering all the evidence relating thereto, is the natural and probable consequence of the acts of such other person. If it is the natural and probable consequence of such act or acts, it is felonious homicide, otherwise it is not felonious homicide."

It may be questioned whether this instruction applies to count one or count two of the indictment, but even though it applies to count one we do not think it erroneous when read in the light of the allegations of count one and in the light of the evidence. The words "the suicide," as stated by appellant in his brief, were used in this instruction in their common and usually accepted meaning, and the jury must have so understood the court to mean when he said "the suicide," it meant the act of self-destruction, as shown by the evidence, and if they find that the suicide was the natural and probable result of the acts of appellant they necessarily had to find that the acts of appellant resulted, first, in rendering the deceased distracted and mentally irresponsible, for the willful and deliberate destruction of one's own life is not the natural and probable action of one who is in sound mind. While it may be true that a person while in sound mind may deliberately and willfully take his own life, yet we cannot say that such an act is either the natural or probable thing for him to do. While on the other hand, it is the natural or at least the probable act of a person who has been rendered distracted and mentally irresponsible by the unlawful and criminal acts and conduct of another. We do not think the court erred in giving said instruction.

Instruction No. 43, given by the court of his own motion, told the jury that one who inflicts an injury on another is deemed by the law to be guilty of homicide, if the injury contributes mediately or immediately to the death of such other. The fact that other causes contribute to the death does not relieve the actor from responsibility. While it is true that a person cannot be killed twice, yet it is equally true that two persons can contribute to cause the death of another, in which case each will be responsible for such death.

We think the evidence justified the court in submitting the question to the jury, as there was evidence that the deceased died from the joint effect of the injuries inflicted on her, which, through natural cause and effect, contributed mediately to the death. We think the proposition of law stated in this instruction is well supported by authority. "The general rule, both of law and reason, is, that whenever a man contributes to a particular result, brought about, either by sole volition of another, or by such volition added to his own, he is to be held responsible for the result, the same as if his own unaided hand had produced it. The contribution, however, must be of such magnitude and so near the result that sustaining to it the relation of cause and effect, the law takes it within its cognizance. Now, these propositions conduct us to the doctrine, that whenever a blow is inflicted under circumstances to render the party inflicting it criminally responsible, if death follows, he will be holden for murder or manslaughter, though the person beaten would have died from other causes, or would not have died from this one, had not others operated with it; provided, that the blow really contributed mediately or immediately to the death as it actually took place in a degree sufficient for the law's notice." Bishop on Criminal Law, § 653; 2 Whart. Am. Crim. Law, § 941; Michie, Homicide, Vol. 1, p. 11, § 5; Bishop on Criminal Law, Vol. 2, § 639 (2), p. 483; Brill Enc. Crim. Law, Vol. 2, § 606; Kee v. State (1873) 28 Ark. 155; Dumas v. State (1909) 159 Ala. 42, 49 So. 224, 133 Am. St. Rep. 17; Bishop v. State (1905) 73 Ark. 568, 84 S. W. 707; People v. Lewis (1899) 124 Cal. 551, 57 P. 470, 45 L. R. A. 783; People v. Williams (1915) 27 Cal. App. 297, 149 P. 768.

Appellant's requested instruction No. 26 was, in effect, a directed verdict in favor of appellant on count one. There was no error in refusing this instruction.

Instructions Nos. 58, 68, 84, 96, and 111, tendered by appellant and refused by the court, had to do with the question of reasonable doubt. The jury was sufficiently advised on this subject by instructions Nos. 16, 18, 19, and 20, given by the court, and for the court to read additional instructions on this question would have been only to repeat, in substance, what the court had already told the jury.

Instruction No. 78, requested by appellant and refused in substance, told the jury that each juror must be convinced beyond a reasonable doubt of appellant's guilt before they were entitled under the law to return a verdict of guilty. This proposition was fully covered by the court's own instruction No. 17.

[651] Appellant says the court erred in refusing his tendered instruction No. 83, which reads as follows: "The court instructs you that if you should find Madge Oberholtzer had been assaulted and raped or had been assaulted and beaten with intent to rape, by the defendants, or either of them, and that said act by the defendants had already been completed and ended, and if you find that no attempt was being made by the defendants, or either of them, to repeat said act or acts, and if you further find that said Madge Oberholtzer under such circumstances voluntarily swallowed a fatal dose of bichloride of mercury poison with intent to take her own life, because she felt aggrieved on account of said prior acts of the defendants, or either of them, and that said bichloride of mercury caused her death, then you would not be warranted in finding the defendants guilty, and you should find them not guilty."

This, in effect, is a peremptory instruction, and we think it entirely too narrow. All facts stated in this instruction if true would not entitle appellant to an acquittal. If this instruction be the law, there a person would go acquitted if he succeeded in completing his crime before the act of self-destruction was done, regardless as to what effect such acts might have upon the victim, or without regard to the question of natural or probable result of such criminal acts. We think this instruction was correctly refused.

Appellant's instructions Nos. 85, 99, 101, 116, 131, 132, 133, 145, 147, 148, 149 were covered by instructions given and no error resulted from such refusal.

There was no reversible error in refusing appellant's tendered instructions Nos. 129, 135, 137, 138, and 140, as they are directed to the crime alleged in count four, and appellant was convicted on count one, and in effect was found not guilty under count four.

We have examined all of appellant's alleged errors, and find none that would justify a reversal of this cause.

Judgment affirmed.

MARTIN, J. (dissenting in part, concurring in part, dissenting in the conclusion).

Charges contained in the several counts. Count 3 of the indictment charged that appellant did "unlawfully and feloniously touch, beat, strike, bite and wound the body and person of the said Madge Oberholtzer with the unlawful and felonious intent then and there and thereby forcibly and against her will the said Madge Oberholtzer to ravish and carnally know, from which said assault and from which touching, biting, striking and wounding and as a result thereof the said Madge Oberholtzer did then and there sicken, languish and die," and "did unlawfully and feloniously in the manner and form and by the means aforesaid the said Modge Oberholtzer, kill and murder. ***"

Count 2 of the indictment charged that the appellant "did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder one Madge Oberholtzer by then and there unlawfully and purposely causing to be administered to the said Madge Oberholtzer by her own hand a certain deadly poison commonly called bichloride of mercury which the said Madge Oberholtzer acting under fear and duress and the compulsion of said David C. Stephenson, Earl Gentry, and Earl Klinck, did then and there swallow into her stomach and body by which she then and there thereby died."

Count 4 of the indictment charged that appellant "did then and there unlawfully, feloniously, purposely and with premeditated malice kill and murder one Madge Oberholtzer", and "being then and there able to provide such medical attention, services and assistance *** did *** unlawfully, feloniously and forcibly imprison, restrain and prevent the said Madge Oberholtzer from such medical assistance services with the unlawful and felonious intent *** to kill and murder the said Madge Oberholtzer."

The verdict of the jury finding the appellant guilty only on the first count of the indictment amounted to a finding in his favor on the foregoing three counts.

Count one of the indictment narrated at length the facts which the state proposed to prove, following in the main the statements contained in decedent's dying declaration. (The first nine pages of the seventeen page statement of the facts proven at the trial set out in the prevailing opinion is identical with the written dying declaration of the deceased, Madge Oberholtzer, except that its relation of those facts are in the third person, while her narration of them is in the first person.) Count one charged "that thereafter she the said Madge Oberholtzer did *** die from the effects of her wounds inflicted as aforesaid and said poison taken aforesaid," and concluded that appellant "did, by the manner and means aforesaid, her, the said Madge Oberholtzer, unlawfully, feloniously and with premeditated malice, kill and murder." There is no charge in this court that the acts of appellant were purposely done; it being apparent, and the state conceding, that it is not a charge of willful murder under that portion of section 347, c. 169, Acts 1905, section 2412, Burns' Ann. St. 1926, which provides that "whoever, purposely and with premeditated malice *** kills any human being, is guilty of murder," but is a charge under that portion of the same section which provides that "whoever *** in the perpetration of, or attempt to perpetrate, a rape *** or by administering poison, or causing the same to [652] be administered, kills any human being, is guilty of murder."

The two theories relied upon to sustain the conviction. The state in its brief, and in the oral argument which was held on April 30, 1928, sought to uphold the verdict of second degree murder and the judgment of the lower court imposing life imprisonment on two separate theories: First, that a contributing cause of Miss Oberholtzer's death was an abscess in her lung resulting from an infection in a bite on her breast inflicted by appellant during the course of his assault upon her; and, second, that the death was caused by the poison, and that Stephenson was legally responsible for her having taken the poison. The prevailing "per curiam" opinion of the court apparently adopts the second theory; but on the ground that the deceased was mentally irresponsible when she took the poison and that the acts of appellant were the cause of such mental irresponsibility. The per curiam opinion does not discuss the first theory, notwithstanding the sharp conflict between the parties with reference thereto, and I assume that such theory is rejected by the court, in which action I concur. At the risk of extending this opinion beyond its proper limits I shall discuss both these theories, which are ably briefed by the parties, since the points decided in this novel case have a far-reaching effect on the criminal law as it relates to the crime of murder.^[1]

Verdict of guilty based on infliction of a bite during the perpetration of a rape could be sustained if the bite caused death (1) directly or (2) indirectly through development of infection, unaffected by intervening human action. The bite or wound on deceased's breast inflicted during the perpetration, or attempt to perpetrate, a rape, and if such wound caused the death directly, or if it caused the death indirectly, through a chain of natural effects and causes unchanged by human action, a verdict of guilty based thereon could be sustained. Hall v. State (1928) 199 Ind. 592, 159 N. E. 420; Kelley v. State (1876) 53 Ind. 311. In other words, if an infection developed from the bite, which infection unaffected by any intervening human action caused the decedent's death, then the bite can be considered, in law, the cause of death. In a note to Hall v. State, supra, a number of cases are collected in which this principle of law has been applied.

The state failed to prove that infection from the bite on deceased's breast was the cause of an abscess on her lung or infection in her kidneys. Even if infection from bite was the cause of such secondary infection, medical testimony that death was caused by infection "superimposed" upon poisoning must be considered in light of the fact the poisons was taken subsequent to the infliction of the bite.

The fact that deceased, by reason of the bite, may have been more susceptible to the fatal effects of the poison does not render the bite the proximate cause of death unless the taking of the poison was the natural result of the bite.

Dr. Kingsbury, one of the principal witnesses for the state, testified that the lacerations on deceased's left breast became infected. He was asked, "Were they infected at the time of her death?" and answered, "No they had healed, there were scars there." He was asked the nature of the infection, and replied, "oh, the ordinary pus producer, ordinarily staphylococci, sometimes-it is nearly always responsible for pus infection." The trained nurse who attended deceased testified that she sterilized the abrasions, and that they healed up. The evidence shows that the bite on deceased's breast was not a serious wound calculated to destroy or endanger life, nor was the infection resulting therefrom shown by the testimony of any witness to have been serious enough, of itself, to destroy life. It therefore cannot be contended that death resulted directly from the bite; but it is contended by the state that such bite and infection is a responsible cause of death, for the reason that deceased might have, or would have, recovered from the effects of the poison which she afterwards took, except for the existence of the infection from the bite. There is opinion evidence by physicians, called as expert witnesses for the state, that deceased might have, or would have, recovered from the mercurial poisoning had it not been for an infection which developed, and which may have resulted from the previously inflicted bite.

This opinion evidence must be considered in connection with the other medical evidence, not in conflict therewith, regarding the bite and the infection. The evidence of the state does not establish the fact that the abscess in the lung or the infection in the kidney discovered by a post mortem examination was the result of infection from the bite on the breast. Dr. Warvel, witness for the state, testified: "I would not say certain that because there was an abrasion on one of the breasts and an abscess in one of the lungs that it would necessarily follow that one communicated germs to the other unless I could prove there was no other avenue of infection." It was undisputed that the deceased had recently suffered from the flu (influenza), from which such an abscess might have resulted.

Physicians as expert witnesses for the state testified that an infection could be carried from a surface wound to the lung by the blood stream; that such a process was known [653] as septicemia, or infection of the blood (blood poisoning), and results in the development of pyemia or localization of the infection; and that such a condition would be accompanied by a marked rise in the temperature of the patient and could be definitely established by a microscopic examination of the patient's blood. The detailed record of deceased's temperature from March 17 to April 14, inclusive, as given by the nurse from her records, shows a gradual and not a marked rise of temperature, and although it clearly appears that the patient's blood was tested and examined, there was no testimony that the blood ever showed a condition of septicemia caused by the staphylococci infection on the breast. It thus appears that while the state proved that an abscess on the lung might or could result from an infection resulting from a bite on the breast, it did not establish as a fact that the infection of this decedent's lung was carried by her blood stream from an infected breast, nor did the state prove in the language of its own expert that "there was no other avenue of infection."

Drs. Moon, McDonald, and Mertz, as expert witnesses for the state, in answer to a hypothetical question approximately eight hundred words in length, propounded by the prosecuting attorney, testified that the cause of death in such a hypothetical case was "toxic nephritis due to mercuric chloride ingestion with a terminal *** superadded infection"-"an acute staphylococci infection superimposed upon an acute nephritis in the kidney," etc. Dr. Warvel, another of the state's experts, testified that in his opinion the cause of death in such hypothetical case was "some secondary complication" or infection, the nature of which he was unable to state, "superimposed upon nephritis." These expert witnesses on cross-examination stated that they had testified at a former hearing (on a petition by the defendant to be let to bail) that they then diagnosed the death of decedent to have been due to bichloride of mercury poisoning. Two of them there testified that the lacerations on the breast did not produce or were not the cause of death. One of them, in reporting to the coroner the result of the autopsy, stated that he found on the lung a "localized solitary superative pulmonary lesion, possibly tuberculous."

We have pointed out that the state did not prove that the staphylococci infection referred to resulted from the bite on deceased's breast. But even if the evidence of the state could be considered as establishing the fact that death resulted, not from the poison alone, but from the effect of an infection from the bite on the breast superimposed from the nephritis caused by the poison, then such proof would necessarily have to be considered in connection with a consideration of the facts regarding the time of the infliction of the bite and the time of the taking of the poison, in order to determine the proximate cause of deceased's death. From the viewpoint of these medical experts of the state, the infection may have been "superimposed" upon the nephritis; but from the viewpoint of a court in determining the guilt or innocence of one charged with murder by infliction of a bite (which was not in itself a dangerous wound), such bite and the infection resulting therefrom could not be "superimposed" upon the dangerous condition arising from poison which was afterwards taken, so as to make the bite and not the poison the proximate cause of the death.

The fact that deceased, by reason of the bite and its resulting infection, may have been more susceptible to the fatal effects of the poison than she otherwise would have been, does not render the poison any the less the proximate cause of the death, 2 Brill Cyc. Cr. L. 1017, and does not render the bite, which was not a serious wound, the proximate cause of the death, unless the taking of the poison was the natural result of the wound. See discussion infra.

If the state had proved that infection in the lung and kidneys resulted from the bite on the breast, and that appellant inflicted the bite after the deceased took the poison, and an infection which resulted naturally from the bite then supervened or was superimposed upon the nephritis, a different case would be presented for our consideration.

Where wound is not dangerous and death results from cause subsequently arising (not at the direction of the one inflicting the first wound) the supervening cause is the proximate cause of death. Where a wound is inflicted by one person on another, which is not in itself dangerous or necessarily fatal, and death results, not from such wound directly, nor from such wound indirectly "through a chain of natural effects and causes, unchanged by human action," but death results from some cause subsequently arising not at the direction or connivance of the one inflicting the first wound, and but for such subsequently arising cause death would not have resulted, the infliction of the first wound is not the proximate cause of death, but the supervening cause is the proximate cause and the one responsible for the death. Bush v. Com. (1880) 78 Ky. 268; Livingston v. Com. (1857) 14 Grat. (Va.) 592; People v. Elder (1894) 100 Mich. 515, 59 N. W. 237; Quinn v. State (1914) 106 Miss. 844, 64 So. 738; Treadwell v. State (1884) 16 Tex. App. 560; Walker v. State (1902) 116 Ga. 537, 42 S. E. 787, 67 L. R. A. 426; State v. Johnson (1893) 118 Mo. 491, 24 S. W. 229, 40 Am. St. Rep. 405; Notes, 16 Ann. Cas. 579; 8 A. L. R. 520.

"Contributing" cause of death must constitute a proximate contribution to sustain [654] criminal responsibility. The state cites numerous cases as supporting its proposition that "when a cause for which one is responsible contributed to death, he is not relieved from criminal responsibility by reason of the fact that another or other causes for which he is not responsible also contributed to such death," and in 29 C. J. 1079, it is said: "If an injury caused by defendant contributed to the death, defendant is responsible although a subsequent mortal wound inflicted independently by another also contributed thereto." The use of the words "contributes" and "contributed" in the foregoing statements is apt to prove confusing, unless a review is made of the cases upon which the statement is based, from which review it is seen that a proximate contribution is necessary to sustain criminal responsibility. In most of the cases cited, the first wound was a mortal wound, and in practically all of the cases the court held that the injury inflicted by the defendant, who was found guilty, was the proximate cause of the death. Of the six cases cited by Corpus Juris, five were cases where men were killed in fights as the result of joint acts of two assailants.^[2]

Unlawful act must be the proximate cause of death. "To render a person responsible for the death of another *** his unlawful act or omission must be the proximate cause of the death of the person killed." 2 Brill Cyc. Cr. L. 1013-1014. In Dunville v. State (1919) 188 Ind. 373, 123 N. E. 689, 690, in an appeal from a conviction for manslaughter, it was held that "it is always necessary that the evidence show that the unlawful act is the proximate cause of the death." The part of the manslaughter act (section 2416, Burns' Ann. St. 1926), under which that conviction was had, provides that "Whoever unlawfully kills any human being without malice, express or implied, *** involuntarily, but in the commission of some unlawful act, is guilty of manslaughter. ***" The part of the statute under which this prosecution is based, section 2412 Burns' Ann. St. 1926, has been quoted supra, and it is likewise necessary to sustain a conviction under it that the evidence show that the act of the defendant in the perpetration of, or attempt to perpetrate, the felony specified is the proximate cause of the death. In the case at bar the evidence is not sufficient to show that the bite or the infection resulting therefrom was the proximate cause responsible for decedent's death, but it appears that bichloride of mercury poisoning was the supervening, proximate, and responsible cause thereof.^[3]

Responsibility for deceased's having taken poison. While the state maintains that the wound inflicted during the attempted rape and the infection resulting therefrom was the cause of death and that appellant was guilty of murder by reason thereof, "even though the poison as a concurrent cause of death were taken by her without legal responsibility therefor by appellant"; yet it also contends that appellant is guilty of murder for the reason that he is legally responsible for deceased's having taken the poison.

It is unnecessary to consider here the much-mooted question as to whether suicide is a crime, or to consider the criminal liability of one who advises or aids another to commit suicide. See 37 Cyc. 521. Our statute, as already noted, provides that "Whoever *** by administering poison, or causing the same to be administered, kills any human being, is guilty of murder." See People v. Roberts (1920) 211 Mich. 187, 178 N. W. 690, 13 A. L. R. 1253. There was no evidence that appellant "administered" the poison or "caused the same to be administered" [655] to deceased, or that at the time the deceased took the poison she was under any restraint or compulsion by appellant, which would cause her act to be considered in law the act of the appellant.

Where, upon deliberation, one commits suicide because of shame, humiliation, or remorse, the one who caused such mental state, although he may be morally responsible for the death in the sight of God, is not guilty of murder under the law, unless he in some way procured, advised, compelled, assisted, or exercised control over the person performing the act. See 1 Hale, Pleas of Crown 429; 1 East P. C. c. 5, § 13; Com. v. Webster (1854) 5 Cush. (Mass.) 295, 52 Am. Dec. 711; Reg. v. Murton (1862) 3 F. & F. 492.

It is said that the rule of the early common law that a homicide to be criminal must have resulted from corporeal injury (see 29 C. J. 1080) has been gradually modified and greatly relaxed in modern times, and that fright, fear, nervous shock, or producing mental disturbances can now be made the basis of a prosecution for homicide. 13 R. C. L. 846. This may be true in a proper case, but I do not believe that such a case has been made out here, nor can I follow the reasoning (nor in view of Potter v. State (1904) 162 Ind. 213, 70 N. E. 129, 64 L. R. A. 942, 102 Am. St. Rep. 198, 1 Ann. Cas. 32, can we approve the holding) of the case usually cited to sustain the statement made in R. C. L., supra, viz., In re Heigho (1910) 18 Idaho, 566, 110 P. 1029, 32 L. R. A. (N. S.) 877, Ann. Cas. 1912A, 138(which case held that where a bystander observed an altercation between two men, one of whom was armed, and died as the result of fright, terror, and nervous shock, the man who was armed was guilty of manslaughter under an Idaho statute defining the crime).

There is no charge in count one of the indictment, under which the conviction was had (as there is in count two), that deceased took the poison "acting under fear and duress and the compulsion of said D. C. Stephenson," but the charge in count one is that deceased "distracted with pain and shame so inflicted upon her by said defendants did procure and swallow into her stomach a large quantity of deadly poison, to-wit, bichloride of mercury." We must presume from the fact that the jury made no finding of guilty under count two that it did not consider the evidence sufficient to show that deceased destroyed her life under a well-grounded apprehension of immediate violence or injury from appellant so as to make her act "the act of him who compelled the deceased to take the step." Regina v. Pitts (1842) 1 Carrington & Marshmans 284; Hendrickson v. Com. (1887) 85 Ky. 281, 3 S. W. 166, 7 Am. St. Rep. 596; State v. Shelledy (1859) 8 Iowa, 477, 506. See, also, Rex v. Valade (Que.) 22 Rev. de Jur. 524, 26 Can. Cr. Cas. 233; Norman v. State (1902) 20 App. D. C. 494, and other cases cited infra.

Taking of poison as a natural consequence of the rape, attempted rape or bite. Only one argument by which the state sought to sustain the verdict of guilty under the first count of the indictment remains for consideration, viz., that one who inflicts a wound is held to contemplate and be responsible for the natural consequence of his act, and that at the time appellant committed the rape, or the attempted rape, he was bound to anticipate deceased's act of taking bichloride of mercury. I do not find any evidence to justify a finding that the taking of poison by deceased was such an act as a reasonable person under similar circumstances would have committed,Henderson v. State (1914) 11 Ala. App. 37, 65 So. 721; State v. Preslar (1856) 48 N. C. 421; Reg. v. Donovan (1850) 4 Cox, 397; Gipe v. State (1905) 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238, or was a natural consequence of the rape (or attempted rape, or the bite made during the same) which the appellant was bound by law to contemplate. Quinn v. State, supra; Treadwell v. State, supra; Bush v. Com., supra; Livingston v. Com., supra; Note 8 A. L. R. 520. The facts in this case do not bring it within the rule laid down in the cases where the direct cause of death was an act of the deceased reasonably due to defendant's unlawful conduct, such as Rex v. Valade (Que.) 22 Rev. de Jur. 524, 26 Can. Cr. Cas. 233, where the accused induced a young girl under the age of consent to go alone with him to a secluded apartment and there had criminal sexual intercourse with her, following which she jumped from a window to the street to get away from him and was killed by the fall; Norman v. State (1902) 20 App. D. C. 494, where death was caused by falling into a canal while attempting to escape from violent assault; Hendrickson v. Com., supra, where accused used such force and violence as to cause his wife from fear of death or great bodily harm to leave the house on a cold night, whereby she died of exposure. See, also, Thornton v. State (1899) 107 Ga. 683, 33 S. E. 673; Adams v. People (1886) 109 Ill. 444, 50 Am. Rep. 617; State v. Preslar, supra.

After a consideration of all the foregoing propositions by the court, the per curiam opinion was adopted, which holds that the allegation in the indictment that Miss Oberholtzer was "distracted with pain and shame" when she took bichloride of mercury was sufficient to charge that she was mentally irresponsible when she took the poison; and that the evidence was sufficient to show the infliction of physical and mental injuries which rendered the deceased mentally irresponsible at the time of her "suicide." I do not believe the adjective clause of the indictment "distracted with pain and shame" is equivalent to a charge that the deceased was of unsound mind or was mentally unbalanced. Charges in an indictment must be clear and [656] plain, and if the grand jury had intended to make a charge that the appellant had by his acts caused Madge Oberholtzer to become mentally unbalanced and of unsound mind they would have done so by a definite and certain charge to that effect.

The trial was not had on any such theory, and there is no evidence to indicate that at any time the mind of the deceased was not clear and sound. We cannot assume otherwise without proof. An assumption that every person who commits suicide is insane as well as an unqualified holding that one who mistreats another so as to cause insanity is responsible for the criminal acts thereafter committed by such person, would lead to most dangerous legal consequences. There was no expert testimony to the effect that Miss Oberholtzer was at any time mentally irresponsible, and her own very carefully prepared "dying declaration" does not state nor does it indicate any unsoundness of mind at the time she took the poison. On the contrary, such declaration minutely describes her mental processes, and narrates and describes the events with great particularity; even to detailing the menu of Stephenson's breakast. It appears very clearly from her statement that she committed suicide because of "shame, humiliation or remorse." She expressly stated that she decided to take her life "in order to save my mother from disgrace," and that she wanted to kill herself "in Stephenson's presence." The evidence shows she was not accompanied by Stephenson, Klinck, or "Shorty," the chauffeur, or under their control when she was in the store where she purchased the hat or in the drug store where she purchased the poison, and that she returned without any compulsion to their rooms at the hotel where she took the poison.

I do not believe that the evidence is sufficient to sustain a finding of guilty under the first count of the indictment, and for that reason, as well as other reasons hereinafter stated, believe that the judgment should be reversed, with directions to grant appellant a new trial.

Conferring of jurisdiction upon change of venue. I agree with the conclusion reached by the per curiam opinion on the question as to whether the Hamilton circuit court had jurisdiction of the cause, the person, and the subject-matter in this prosecution. Appellant's contention is that jurisdiction over the cause and over his person could only be gained by the Hamilton circuit court by the depositing in that court of a transcript of the proceedings had in the criminal court of Marion county, duly authenticated by the signature of the clerk and by the seal of said criminal court; that the signature of the clerk to the certificate of the transcript was omitted and does not appear in the transcript, and that therefore there was in fact no transcript at all, and that the Hamilton circuit court did not acquire any jurisdiction. Appellant does not contend that the criminal court of Marion county did not grant the change of venue and order the case sent to Hamilton county for trial, nor does he contend that the transcript of the record transferred to the Hamilton circuit court was incorrect in any particular. The transcript was complete and in proper form, except for the signature of the clerk to the certificate.

Jurisdiction over a defendant is not conferred upon the court to which a change of venue is taken by the signature on the certificate to the transcript of the clerk of the court in which the case was pending before the change, but it is conferred by the order of the court which grants the change and directs where the cause is sent for trial. The change of venue and of jurisdiction is not completed until the requirements of the statute are met, with respect to the depositing of the transcript in the office of the clerk of the court to which the change is granted (sections 2239, 2240, Burns' Ann. St. 1926), but where a transcript, regular in form and sealed with the seal of the court, is deposited in the court to which the cause is sent, the jurisdiction of that court attaches, and the lack of the signature of the clerk of the other court, in the absence of any attack on the authenticity of the transcript, will be deemed a technical informality which might have been amended in the trial court, and which renders the transcript defective, but not void. A proper certification and attestation for a transcript is the signature of the clerk and the affixing of the seal of the court; but the absence of such signature of the clerk to the certificate could have been easily cured, and it does not appear that such defect in any way prejudiced any of the appellant's rights.

The appellant did not raise any jurisdictional question in the Hamilton circuit court, but acquiesced in the jurisdiction exercised by it and proceeded to trial therein. Appellant points out that no acts on the part of the defendant in a criminal case involving the deprivation of life or liberty can serve to waive that which the law makes essential, or that which the statute prescribes as necessary in order that the court may acquire jurisdiction; but it is also well settled that a party, by asking for a change of venue and appearing to the action in the court to which it is removed, waives his right to complain of any mere irregularity in the matter of the change. The Hamilton circuit court properly exercised jurisdiction in this case.

This appellant, in an application to the Laporte circuit court for a writ of habeas corpus for release from the Indiana state prison, presented the same question in this regard that is here decided. That court denied his application, and upon appeal to this court its[657] judgment was affirmed. Stephenson v. Daly (1927) 200 Ind. 196, at page 202 (see syllabus points 10, 11, and 12), 158 N. E. 289.

Admissibility of dying declarations. The principal questions in this case upon the admissibility of evidence arose upon the admission of the written dying declaration of deceased, and the testimony of a doctor to whom deceased made oral statements to the same effect as those contained in the written dying declaration. The law concerning the admission in evidence of dying declarations has been discussed in this appeal as exhaustively perhaps as in any case that has ever been before it. I therefore deem it important to state somewhat more fully than has been done in the per curiam opinion the questions involved and the law relating thereto. I concur in the decision reached by the court as to the admissibility of the written dying declaration, but believe that the testimony of the doctor was admitted without the necessary foundation being laid therefor.

Deceased's written dying declaration. The written dying declaration of the deceased consisted of more than three thousand words. It was signed by her on March 28, ten days after her trip to Hammond and seventeen days before her death. It appears from the evidence that just before it was read to and signed by her, her physician for the first time advised her that she was going to die. He told her that she had no chance for recovery; that she was going to die, and told her why; that the blood test that afternoon showed a worse condition and that her condition was unfavorable, and that he wanted her to understand it. He gave as reasons to her that she could not recover that her kidneys were broken down and destroyed from the poison, and that poison had made such a spread in her system that she could not recover. She said, "Doctor *** I understand you, I believe you and I am ready to die." This, together with other evidence which is in the record of her statements, and of her physical condition as a result of the poison, meets the two essential requirements for an admissible dying declaration hereinbefore stated, viz., that the declarant shall be in extremis and shall have abandoned hope of recovery and be under a firm conviction that death is inevitable and near at hand.

The dying declaration was prepared for the deceased's signature by Mr. Asa J. Smith, an attorney and friend of the Oberholtzer family, and others who were assisting him. Mr. Smith went to the Oberholtzer home and saw deceased on the afternoon of the day she returned home. At the request of deceased's mother he had helped to search for her on the previous night, March 16 (after her departure from home on the night of March 15 and the receipt by her mother of a telegram from her dated at Hammond), and had gone with the mother to appellant's home during the search. He was employed by the deceased's father to bring a civil suit against appellant, or "do whatever was necessary in the matter." Mr. Smith visited deceased practically every day from March 17, to March 28. Three or four days before March 28 he began the preparation of the dying declaration. He made notes from memory of what deceased at different times had told him of the events which occurred on her trip to Hammond and reduced the same to writing in his law office. Miss Ermina Moore, an intimate friend of deceased, on March 26 took to Mr. Smith's office notes which she had made, and they also were incorporated by him into the written statement. He selected the words and built up the phrases to make what he thought was the substance of what deceased had told him. This he read over and corrected, and then in the presence of Miss Moore and Mr. Griffith D. Dean, his law office associate, he dictated to a stenographer, from what he had written, the entire statement. Two days later (March 28) Mr. Smith and Miss Moore went through this draft of the statement and again corrected it. Then Mr. Smith again rewrote a part of it in longhand, then redictated to the stenographer the entire statement, except the pages he had rewritten. About 6 p. m. the same day at deceased's bedside, with Mr. Dean, Miss Moore, and Dr. Kingsbury also present, Mr. Smith read the statement to deceased very slowly and distinctly. He stopped in the course of the reading after each sentence for her affirmance or denial, and made some corrections which she desired. As he proceeded with his reading, he asked deceased if she understood it and if it was correct, and she said "I do understand it *** it is correct," except at certain times she said things were not correct and Mr. Smith made, in ink, the changes she desired. He showed her the place to sign and told her if it was true she could sign it and she said, "I will sign it," and did so.

The exception to the rule against hearsay evidence which permits the introduction and consideration in felonious homicide cases of dying declarations was introduced into the law less than two hundred years ago as matter of the fullest necessity or public policy to detect and punish those guilty of crime, since by their crime, usually committed in secret, offenders may still the tongues of the only persons in the world who could affirm their guilt. The reasons against admitting such evidence (that they do not [usually] bear the sanction of an oath, are not subject to the test of cross-examination, eliminate the right of the accused to confront the witness, are subject to misconstruction by auditors or amanuensis who are ignorant, inattentive, or criminally motivated, that they may permit a conviction on the statement of one whose [658] body is weakened and whose mind may be disordered by the panic of momentary death, and who may harbor malice and vindictiveness) were only put aside on the theory that the immediate approach of death, under the sanction of a moral sense of certain and just retribution, silences every motive to falsehood, and by the most powerful considerations induces the mind to speak the truth, creates a situation so solemn and awful as to exclude the supposition that the party making them could have been influenced by malice, revenge, or any conceivable motive to misrepresent, and amounts to an obligation equal to that imposed by a solemn oath in a court of justice. See cases collected in Note, 56 L. R. A. 353.

It was not shown, nor was it necessary to show, that deceased was under a firm conviction of impending death at the time she held the conversations with the attorney from which he constructed the statement, for it does appear that at the time she adopted and signed the statement as her dying declaration she had abandoned hope of recovery and had a firm conviction of impending death. 30 C. J. 257. The fact that the declaration was prepared by a lawyer who was interested in a civil action against appellant should render such a declaration subject to the closest scrutiny; but we cannot say that the declaration was rendered inadmissible by the fact that he prepared it. In the absence of any evidence of improper conduct on the part of the attorney such objection to the dying declaration would not go to its admissibility, but to its weight, which is solely a question for the jury. 1 R. C. L. 547. In Harper v. State (1902) 79 Miss. 575, 31 So. 195, 56 L. R. A. 372, a dying declaration was held to have been erroneously admitted; the court (after doubting the authenticity of the declaration) holding that there was not sufficient evidence of a solemn sense of impending dissolution when the deceased signed the statement. The statement had been prepared by deceased's attorney, who feared a fatal result might ensue, to be signed by the patient whenever he came to think he would die. The court said: "Moreover, we think a declaration prepared by a person in full possession of his mental faculties, and in confident hope of recovery, to be signed in the possible event of subsequent conviction of a fatal termination, is too much tainted to be admissible in evidence." This dicta is not applicable to the facts here, nor do we approve it unqualifiedly as a correct statement of law.

Appellant's objection to the admission of State's Exhibit No. 1 (the dying declaration) was addressed "separately and severally as to each word, phrase, sentence, paragraph, part, conclusion and opinion" and stated at length his objection to the declaration as a whole (that the corpus delicti had not been established independently of the declaration, that the declaration is one of suicide, that it shows that death was not the proximate result of defendant's acts, that it was made nineteen days before death and when deceased was not in extremis and when she had not abandoned hope and was not under a sense of impending dissolution, that no causal connection was shown between the defendant's act and her death, that it is a recital of past events and the conclusions and opinions of the declarant and is not limited to declarations to identify defendant with the circumstances producing and attending death). The objection was sufficient to raise the general questions concerning the declaration as a whole which we have already discussed, but it was not sufficient as an objection to specific parts of the declaration. An objection generally to "every word, phrase, sentence," etc., does not point out to the court with sufficient certainty the part or parts of the statement which the party deems objectionable.

The court properly struck out of the statement sentences telling of deceased being "impressed with Stephenson's power and influence"; of her being "attracted by his apparent influence and power with the state officials and his general political influence"; of what he said to her at dances, and what he said when he drove her to her home "while the legislature was in session"; because it is not permissible to show by a dying declaration matters occurring anterior to, and not immediately connected with, the homicide, nor to show the conduct of the parties at another time nor to show the opinions and mental conclusions of the deceased. Montgomery v. State (1881) 80 Ind. 338, 41 Am. Rep. 815; Binns v. State (1874) 46 Ind. 311; Jones v. State (1880) 71 Ind. 66. For the same reason the court, if proper objections had been made, should have struck out of the statement those sentences stating that deceased "first met David C. Stephenson at the banquet given for the Governor at the Athletic Club early in January 1925," telling of her various dinner engagements with appellant at a hotel, and of a party at his home "with several prominent people."

Appellant points out specifically in his brief numerous statements in the dying declaration which he says are merely "conclusions, opinions and recitals of mental operations of deceased." A mere conclusion or expression of opinion or belief by a dying person is not admissible as a dying declaration, Boyle v. State (1886) 105 Ind. 469, 5 N. E. 203, 55 Am. Rep. 218; Montgomery v. State, supra; Binns v. State, supra, but where a dying declaration contains unimportant expressions of opinion or conclusions such as a number of those statements here objected to are, and which taken in connection with the entire declaration are not prejudicial, their admission is not error. Cleveland v. Com. (1907) 101 S. W. 931, 31 Ky. Law Rep. 115.

[659] Dying declarations are limited to a recital of facts connected with the res gestæ of the alleged crime. Under the several counts of the indictment under which appellant was tried, the alleged criminal act was murder in the perpetration of, or attempt to perpetrate, a rape, in the administering of poison, and by restraining and preventing medical assistance and services; hence the rather wide scope of the dying declaration here was not improper.

Deceased's oral statements to physician. The doctor, John F. Kingsbury, after stating his residence, age, and professional training, testified that he was called by telephone at 11:30 a. m. March 17, and went immediately to the Oberholtzer home; that he found Miss Madge Oberholtzer lying on a bed in a state of shock, pale and cold, and with a rapid pulse; that she was dressed in clothing in a disheveled state, her dress being open in the front exposing bruises on her chest, and that he made a superficial examination through her clothing to determine possible broken bones (having been informed that she had been injured in an automobile accident). He was then asked if, in the course of his examination, she said anything in reference to whether or not she expected to die, and what it was. He replied (over objection) that "she said she didn't expect to get well, didn't want to get well, that she wanted to die." He was then asked: "Now doctor, just detail any conversation which you may have had with her concerning her condition?" He replied: "I asked her how badly she was hurt; she said she didn't know. I then made a hasty examination of her, found no bones broken and told her I found none, and I asked her how it happened. She said: 'When I get better I will tell you the whole story.' Because of her state of shock, and being thrown in on to that condition without preparation, I didn't know how severely she was hurt or injured and pressed her for a reply to my question, she then said. ***" At this point, appellant again interposed an objection including the ground that it had not been shown that deceased was in extremis, or that she thought she was going to die soon, which objection was overruled. The doctor then proceeded to relate in an answer that occupies 145 lines of the typewritten record a narration, as told him by Miss Oberholtzer, of all the events occurring from before the time she left home until she returned.

The only other evidence which had been adduced, up to the time Dr. Kingsbury testified, that would bear on the admissibility of deceased's statement to the doctor as a dying declaration was that given by Mrs. Eunice Shultz, who was a roomer at the Oberholtzer home. She testified that the man who brought Madge home told her that "She was hurt in an automobile accident *** he said he did not think any bones were broken"; that she saw the bruises on various parts of Madge's body which she described. In reply to the following question by the state, "Now Mrs. Shultz what, if anything, did Madge say to you when you came in the room?" Mrs. Shultz testified, "She said 'Oh I am dying Mrs. Shultz. ***"' The witness further testified that Madge "groaned 'Oh' and 'Dear Mother,"' and told her to call a physician.

The conditions essential for the admission in evidence, as an exception to the hearsay rule, of unsworn statements of a dying person regarding the circumstances of the homicide in the trial of one accused thereof are (1) that the person making the dying declaration must be in extremis, i. e., beyond hope of recovery; and (2) that such person must have abandoned all hope of recovery from the injury alleged to have been inflicted by the accused, and be under a firm conviction that his death is inevitable and is near at hand. McKee v. State (1926) 198 Ind. 590, 154 N. E. 372; Morgan v. State (1869) 31 Ind. 193; Watson v. State (1878) 63 Ind. 548; Jones v. State (1880) 71 Ind. 66; Archibald v. State (1890) 122 Ind. 122, 23 N. E. 758; Gipe v. State (1905) 165 Ind. 433, 75 N. E. 881, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238; Williams v. State (1907) 168 Ind. 87, 79 N. E. 1079. These conditions were not proven to have existed at the time the deceased made the statements to the physician which were here admitted in evidence. There was no testimony that at that time there was no hope of deceased's recovery or that she was near death. Deceased stated that she didn't know how badly she was hurt, and the doctor testified that at that time he did not know how severely she was hurt or injured. Regarding deceased's mental attitude toward her condition, she told the doctor that she didn't expect to get well and didn't want to get well, and said to Mrs. Shultz "I am dying," yet she had Mrs. Shultz send for the doctor and said to the doctor "When I get better I'll tell you the whole story."

Contradictory statements as to expectation of impending death have been held to prevent the admission of a statement as a dying declaration, 30 C. J. 266, citing Bilton v. Terr., 1 Okl. Cr. 566, 99 P. 163.

The appellee contends that the words last above quoted "could not have been meant literally"; that deceased spoke the words to avoid further questioning by the doctor; and that regardless of such words the deceased at that time was under a firm conviction of impending death. It is possible that even where a declarant expressed an opinion that he would recover, the circumstances may show that such was not his real belief. 30 C. J. 266. Also the fact that a declarant said he would not recover or would die does not show that he was without hope and expected a speedy dissolution; his statements in this regard also may be overcome by the surrounding [660] circumstances. 30 C. J. 265, 266; Morgan v. State, supra.

Prior to the introduction in evidence of the testimony of Dr. Kingsbury regarding what deceased told him, there had been no evidence received showing wounds or injuries so serious or illness so critical that an inference would necessarily arise that the declarant was under a pending sense of dissolution. See Gipe v. State, supra; McKee v. State, supra. The only witnesses who had testified were the mother of deceased and Mrs. Shultz, and no circumstances had been detailed in evidence which would serve to meet the conditions stated above under which the statements of deceased to Dr. Kingsbury would be admissible as dying declarations of Madge Oberholtzer.

It may be noted further that at the time Dr. Kingsbury testified concerning what deceased told him, no proof had been offered by the state to show that Madge Oberholtzer died, or the date when she died. The only thing in evidence, at that time, in which her death was referred to, even indirectly, was a question to Matilda Oberholtzer, "What relation did you sustain to Madge Oberholtzer during her lifetime?" which was answered "I am her mother." The death did not occur until about a month later than the conversation detailed by Dr. Kingsbury. While the admissibility of such evidence does not depend upon the length of the interval between the declaration and the death, Jones v. State (1880) 71 Ind. 66, 73, 74; Wigmore, Evidence (2d Ed.) § 1441, yet such length of time is a proper element to be considered in determining whether the declarations were made under a sense of impending death. State v. Colvin (1910) 226 Mo. 446, 126 S. W. 448; State v. Schmidt (1887) 73 Iowa, 469, 35 N. W. 590.

Statement made by the court to the jury. I cannot concur in the holding of the per curiam opinion regarding the remarks of the trial judge in ruling on the admissibility of evidence (Appellant's sixteenth point). This court disapproves the practice of such discussion by the trial court in the presence of the jury, but by affirming the judgment holds that such remarks were not reversible error.

The state in examining, as a witness, the father of the deceased asked him to relate what deceased told him had happened on her trip to Hammond. An objection was made by appellant on several grounds stated; the principal one being that a proper foundation for its introduction as a dying declaration had not been laid. Thereupon, in the presence of the jury and over the objection of the appellant, the court made the following statement: "On the question of dying declarations, gentlemen, this is the court's view: I think I can explain that. The dying declaration may be based on conditions rather than statements; I mean, not rather than statements but as well as statements. She may make a statement to the effect that she does not think she is going to get well, she is sure she is going to die; that would form the basis of a dying declaration. It has also been held that if her condition is such that she must know that she can't get well, then that is sufficient upon which to base a dying declaration, even though she might not utter a word about that condition. The counsel stated, perhaps unthoughtedly, because he did state she more than once said to him that she did not think she would get well, she made it the first time and at the time he tried to encourage her, this language was, 'Daddy, I can't get well'; she made that several times. Now the question is not provable only in murder cases that is true, but the theory is that, while it is not sufficient in a case of suicide, but this comes perhaps a little nearer by the line, along this line. In England there are crimes for persons to commit suicide, but here is the situation: it is not a question we are trying of suicide, but the complaint proceeds that murder has been committed indirectly, by causing the suicide, now the question is, whether that can be done, and I am letting this go to the jury for the purpose because I think it can. Here is the situation, suppose it is suicide, this is for the jury, I am not deciding the question but that is the reason I am ruling on the evidence. Suppose-and I am not saying anything about what kind of a lady Miss Oberholtzer was, but suppose she was a virtuous woman, suppose anybody, I don't take her case, suppose any woman was a virtuous woman and she was attacked for the purpose of committing rape, if that be true, assuming that, not as being true, but just for the purpose of the argument. She might be confronted with this condition, I have either got a chance to lose my virtue or life, suppose her virtue was dearer to her than her life, suppose that was true, would the law say to her, no, you can't take your life, you must submit your virtue. The question is, must these men anticipate this suicide as a reasonable result of their acts. Suppose I attack a virtuous woman, what must I presume? Will the law allow me to presume she does not attach greater value to her virtue than her life; will the law say that I am not presumed to indulge this presumption that she would take her life because she regards her virtue more than her life; will the law say that? I think that is the thing for the jury. The question is, am I presumed she would stake her virtue or take her life, if that is the only theory, if it is reasonable to be presumed she will take her life if a virtuous woman. That is for the jury to determine; if they determine that is a reasonable thing for her to do, then I have committed murder, if it is unreasonable, I have not; if the law says to the man who has attacked a virtuous woman,-I am not saying that is the condition here, but I am saying it [661] on a supposed case, but in passing on the evidence and giving a reason, and I do this once for all. If the law charges me under such condition, I attack a real virtuous woman I am presumed to intend the natural consequences of my acts; now what are the natural consequences? I might place a virtuous woman where she would have to say, I stand every chance of losing my virtue or losing my life; must I presume that woman-am I allowed to presume that woman regards her life dearer than her virtue; on the other hand, must I anticipate that she regards her virtue dearer than her life? If that is the fact, that is a fact for the jury to determine; then I must anticipate this woman is liable to kill herself, and if that is the natural consequence of the act that I have done, then it is for the jury to determine, and if it considered it a natural consequence, then this evidence is admissible."

Appellant's objection to the statement made by the court in the presence of the jury was overruled, as was his motion to set aside the submission and discharge the jury on account of the making of such statement. Appellant's counsel then asked leave to discuss with the court the law on the questions involved, which the court declined to hear, and then made the following further statement: "I would not want the attorneys to think the court had not carefully considered, and I would not want them to say I have not; I don't say I am right but that is my opinion; I would not shoot off that way unless I had given it thought, and I don't suppose the counsel means to intimate, but we will take that up, gentlemen, and discuss it later."

The question to be decided by the trial court was whether it should sustain or overrule the objections made by defendant's counsel. The ruling of the court could easily have been announced in two words; yet the court used 700 words. Stating aloud to the jury the long series of mental processes by which the court reached its conclusion could serve no useful purpose. Instructions to juries at the proper time and in an orderly manner are provided for by law, and it is highly improper for a court to make a long discourse in the presence of the jury on the law or the theory of the case, which can be, and doubtless was in this case, accepted by the jury as an instruction. If the judge desired to expound to counsel his view of the law involved, he should have done it out of the presence of the jury. It would have been proper for him, in the absence of the jury, to have listened to argument by counsel on the question involved. In its remarks, the court assumed certain situations of fact to exist which were not alleged in the indictment nor shown to exist by evidence in the case; it made uncertain and incomplete statements regarding certain theories and rules of law which were of doubtful application to the case at bar, and I believe that such remarks were prejudicial to appellant's rights.

Scope of cross-examination of interested witness. The attorney who prepared the deceased's written dying declaration testified that he had gone with deceased's mother to appellant's house hunting for her on the night the party returned from Hammond, and that he had gone to deceased's home practically every day from March 17 to 28, during which time he wrote, corrected, and rewrote the dying declaration. On cross-examination, he testified that he had been employed by deceased's father to collect money from appellant, or to do whatever was necessary; but the state's objections were sustained to questions asking him whether he had prepared a complaint in the case and whether he had gone to see appellant at his office about a settlement of the case. A defendant has the right to fully cross-examine the witnesses against him and to test thereby their credibility or show their interest, bias, or prejudice against him. Bedgood v. State (1889) 115 Ind. 275, 281, 17 N. E. 621; Hyland v. Milner (1885) 99 Ind. 308, 311; Kinsman v. State (1881) 77 Ind. 132, 137. I believe it would have been proper to have permitted the questions asked to be answered; but by the evidence adduced in response to questions which the court did not permit to be answered, the nature of the attorney's employment and his interest appeared, and we cannot say that the trial court abused its discretion in limiting as it did the scope of the cross-examination. Foust v. State (1928) 200 Ind. 76, 161 N. E. 371.

Inapplicable instructions. Instruction No. 45, given by the court of its own motion, read as follows: "The law declares that one who inflicts an injury on another and thereby accelerates his death shall be held criminally responsible therefor, although the death would not have resulted from the injury, but for the diseased and wounded condition of the person so injured, already existing at the time of such act of acceleration."

This instruction is selected as one of several which are not applicable to the evidence. The giving of such inapplicable instructions could only tend to mislead and confuse the jury. I cannot agree that the court was justified in giving instruction 45 upon the theory that under counts 2 and 4 appellant is charged with willful murder by poison, and that the act of acceleration referred to in the instruction was the poison.

I am in accord with all the statements made in the separate opinion of TREANOR, J., which do not conflict with the views expressed herein.

TREANOR, J. (dissenting in part, concurring in part, dissenting from the conclusion).

I agree with the per curiam opinion that there was no error in overruling the motion [662] to quash the first count, and reach this conclusion by construing the first part of the first count down to and including the allegations respecting the taking of poison as charging a killing in an attempted rape. The first count contains three more or less distinct sets of allegations, each setting out a species of wrongful conduct. One set centers around the actual rape, or attempted rape; the second includes the facts of the procuring and taking of the poison; and the third relates to the withholding of aid after the poison had been taken. But since the first count closes with the allegation that Madge Oberholtzer died "from the effects of her wounds inflicted as aforesaid and said poison taken as aforesaid" it may be construed to charge that the defendants caused the death of Madge Oberholtzer by reason of wounds inflicted during the perpetration of the attempted rape and by reason of poison taken as a result of the attempted rape. I also agree with the per curiam opinion in construing "distracted with the pain and shame so inflicted upon her" to be equivalent to saying that the victim of the assault was in a state of mental irresponsibility when she procured and took the poison. As I shall later point out, I do not think that the trial was conducted on the theory that these words imported the fact of mental irresponsibility; but as against a motion to quash they should be so construed. See 18 C. J. 1289; Webster's New International Dictionary under "distraction." See, also, sections 3424 and 900, cl. 3, Burns' Ann. Ind. St. 1926, and in connection therewith, Goodwin v. State, 96 Ind. 550, especially on Petition for Rehearing; Sage v. State, 91 Ind. 141, 145. But this construction of count 1, which enables us to say that there was no error in overruling the motion to quash, eliminates from the charge of murder in an attempt to rape all of those allegations respecting the withholding of aid, and forces the conclusions that the trial court erred in overruling the motion to strike out that portion of count 1 which contained these allegations of failure to furnish aid during the return trip to, and after arrival in, Indianapolis. For despite the state's insistence that "the whole trip from Indianapolis to Hammond and return forms a part of the res gestæ relating to attempted rape," we cannot ignore the plain fact that there was no attempt to commit a rape after the parties registered at the hotel at Hammond. The allegations respecting the taking of poison are properly included in the first count charging murder in an attempted rape on the assumption that the count charges that the actual attempt to rape caused the taking of the poison; but since the alleged acts of failure to provide aid were not a part of the attempted rape, or causally connected therewith, their inclusion in the first count cannot be justified by calling them "a part of the res gestæ of attempted rape."

We understand the per curiam opinion to hold that these allegations should have been stricken out as surplusage, but that the refusal to strike out was harmless error. The case of Torphy v. State, 187 Ind. 73, 118 N. E. 355, is authority for the rule that a motion to strike out is the correct procedure to remove improper matter from an indictment when the presence of the improper matter does not constitute one of the statutory grounds for a motion to quash; and in that case this court held that the trial court committed reversible error in overruling a motion to strike out of the indictment certain prejudicial allegations. We agree with the analysis of Torphy v. State, supra, contained in the per curiam opinion, but do not accept the reasoning by which the opinion reaches the conclusion that the force and authority of that case is limited to the error in overruling a motion to strike out allegations from an indictment only when these allegations serve the purpose of "conveying facts to the jury that could not be properly presented in evidence from the witness stand." Per curiam opinion, supra, 179 N. E. page 638.

That particular danger did not exist in the instant case since, as the majority opinion points out, the objectionable allegations in the first count were all included in the fourth count, and any evidence which might have been admitted to support the allegations in the first count was clearly admissible under the fourth count. In fact most, if not all, of the facts alleged in the first count relating to failure to furnish aid were competent evidence under the res gestæ rule of evidence. But the defendant's interests were seriously prejudiced because the retention of the allegations in question must have confused and misled members of the jury as to the scope of count 1, and as to the proper application of that part of the evidence which supported the allegations. Indeed, when we consider instructions 46 to 50, it seems inevitable that the jury understood that the objectionable allegations in themselves constituted and charged a separate and distinct offense of felonious homicide under count 1. The substance of these instructions, as applied to the evidence in the case, is fully and clearly indicated by instruction No. 48, which is as follows: "If you are convinced by the evidence beyond a reasonable doubt that these defendants or any of them voluntarily took Madge Oberholtzer into their custody while she was in a weak, sick or helpless condition from any cause whatsoever, and continued to exercise control and custody over her, and that while they were so exercising such control and custody over her, she became violently ill from any cause whatsoever, [663] then I instruct you that it was their duty under the law to care for her without wicked negligence, to supply her with care and medical attention if necessary within their means and to render her whatever assistance the evidence in this case shows beyond a reasonable doubt to have been necessary to the preservation or the prolongation of her life and if you believe from all the evidence in this case that they did so take her into custody, and that she did become violently ill for any reason whatsoever, and if you further find that they failed and refused to render her such medical attention and assistance within their means, and if you further find that she afterward died as a result of such failure to render her such medical assistance, or her life was shortened by the failure on the part of these defendants or any of them so to act, then I instruct you that they are guilty of manslaughter if you find said omission to act was mere negligence, but if you find that such omission or failure to act was done willfully, with a reckless disregard of the consequences, then I instruct you that they would be guilty of murder."

The state insists that instructions 46, 47, and 48 were "clearly confined to count 4, which was the only one on the theory of willful murder by reason of failure of appellant to perform the legal duty of affording care and medical relief after the poison was taken"; although "the State agrees with appellant that Instruction No. 47 given by the Court is not applicable to Count 1 under which alone the appellant was found guilty." Appellee's brief, p. 153. If these instructions were "clearly confined" to count 4, it must be presumed that the jury so understood, and consequently any intrinsic defects in the instructions were rendered harmless by the failure of the jury to convict on count 4. But it appears to the writer that these instructions clearly were not confined to count 4. In none of the instructions 46 to 50, inclusive, is there any statement expressly limiting the instruction to count 4; and the phraseology and content suggest equally the objectionable allegations in count 1 and the allegations in count 4; and when we consider instructions 49 to 50 it is clear that the trial court intended that the jury should apply these instructions to count 1. To get the full force of these two instructions, it is necessary to consider that the evidence did not clearly show to what extent Klinck, one of the defendants, participated in the criminal transaction, and especially that part of the affair which involved the trip to Hammond and the criminal assault. In instruction 49, the court correctly charged the jury respecting Klinck's responsibility for acts of his codefendants committed outside his presence, and in instruction 50 makes the following statement: "*** Unless you are convinced beyond a reasonable doubt that said Klinck was a party to, or participated in a plan of said other two defendants or either of them to entrap and to make a criminal assault upon the person of Madge Oberholtzer, as alleged in the indictment, with knowledge of the purpose of said plan, he could not be liable for the acts of said other two defendants or either of them, outside his presence, and during said trip to Hammond, if you find such trip was made; *** and although he might not have been a party to such a plan, as alleged, and hence not liable for the acts of said other defendants, while on said trip, if such trip was made, yet if you are convinced by the evidence beyond a reasonable doubt that subsequently said Madge Oberholtzer was returned to the garage of the defendant Stephenson, in a weakened and helpless condition, in which condition she was placed into the custody and control of said Klinck in said garage which he assumed and undertook to perform, then I instruct you that at that time there was a legal duty resting upon him to use all reasonable means within his power to care for her, and if he failed to do so, either by an act of commission or an act of omission, by reason of which her life was shortened he would be guilty of felonious homicide under the first or fourth count of the indictment." (Our italics.)

In the foregoing, the trial court told the jury that Klinck might be convicted of felonious homicide under the first count, even though the jury should find that he was not responsible for any of the acts of his codefendants prior to the trip back to Indianapolis, provided only the jury should find that he was criminally responsible for withholding aid, and that such withholding of aid shortened the life of Madge Oberholtzer; and we must necessarily conclude that the trial court and the jury understood that the allegations in the first count covering the failure of defendants to supply aid constituted either a charge of felonious homicide as a substantive offense, separate from and independent of the charge of murder in the attempted rape, or an essential element in the offense of murder in the attempted rape, to the same purpose and effect as the wounding and the taking of the poison. If the former was the jury's understanding, then the appellant Stephenson was in fact, no matter what this court's theory of the scope and construction of count 1 may be, tried and convicted on a count charging two distinct and separate substantive offenses, on one of which he could be convicted of murder without any allegation or proof of purpose to kill, and on the other of which the degree of homicide might range from involuntary manslaughter to first degree murder. If the latter was the jury's understanding, the appellant was convicted under a count which permitted the jury to find [664] him guilty of murder in the attempted perpetration of a rape, in case the jury should find that he was guilty of an attempted rape and also found that he accelerated or caused the death of his victim by negligently failing or refusing to supply aid; and he could be convicted thus, without the necessity of the jury's finding that the appellant was legally responsible for the taking of the poison, or to what extent, if any, the wounds contributed to the death of the victim. The injury to the appellant is obvious. The evidence showed only three possible causes of death, the wound on the breast, the poison, and the withholding of aid. The evidence connecting the wound with the death is, at the best, strikingly weak and unsatisfactory. The jury reasonably might have found that it was not a factor. Both the per curiam and the individual opinions agree that, in order for the appellant to be legally responsible for the taking of the poison by his victim, it was necessary that the jury find that the natural and probable consequence of appellant's mistreatment of Madge Oberholtzer was to render her mentally irresponsible, and also find that while thus mentally irresponsible, and as a result thereof, she procured and swallowed the poison. Under the foregoing test, the jury reasonably could have concluded that Stephenson was not legally responsible for Madge Oberholtzer's act of taking the poison. Further, both the per curiam and the individual opinions agree that the alleged acts of Stephenson in refusing or withholding aid cannot be considered a part of the offense of murder in attempted rape. In view of the foregoing, it is clear that the defendant was entitled to have the jury understand that he could not be convicted on the charge of murder in an attempted rape unless the jury should find (1) that the wound, with the resulting infection, caused death; or (2) that the defendant was legally responsible for the taking of the poison, and that death was caused by the poison; or (3) that the defendant was legally responsible for the taking of the poison, and that the death resulted from the concurring effects of the wound and the poison. The defendant was entitled also to have the jury understand that the allegations respecting withholding of aid, in so far as they charged a public offense, charged the offense of homicide in the commission of an unlawful act, and that the defendant might be convicted on this charge only under count 4, and could be convicted of murder on this charge only in case the jury should find that the unlawful act (i. e., failing or refusing to afford aid) was committed for the purpose of causing the death of Madge Oberholtzer. Further, it was of vital importance to the defendant's legitimate defense that the jury clearly understand that the unlawful act of refusing aid could not be substituted as a cause of death, for either the wounding or taking of poison, in order to make out the offense of murder in attempted rape, as charged in the first count. I do not mean to say that evidence of the failure to supply aid could not be introduced to show the efficacy of either the poison or the infection from the wound in causing death. But I do mean to say that if the jury concluded that the infection from the wound on the breast was not an appreciable factor in causing death, and if the jury also concluded that the defendant was not legally responsible for the taking of the poison, both of which conclusions would not have been unreasonable, then the jury could not have found the defendant guilty of murder in an attempted rape, even though we assume that the jury was convinced beyond a reasonable doubt that the defendant was under a legal duty to furnish care and medical aid to Madge Oberholtzer, and that by reason of his failure or refusal to do so accelerated or caused her death. Under the last assumption, the defendant was undoubtedly guilty of felonious homicide under count 4, but the degree of homicide had to depend upon the mental state of the defendant in fact, and could not be supplied by, or presumed from, the fact of the attempted rape.

I am convinced that the retention in the first count of the objectionable allegations and the effect given them, as indicated by instructions 46 to 50, misled the jury as to the scope of the first count, as construed and limited by both the per curiam and individual opinions, and consequently substantially prejudiced the interests of the defendant.

I think the trial court committed further reversible error in the giving of instruction No. 41. This instruction is as follows: "The law presumes that one intends the natural and probable consequences of his acts, whether he actually intended or anticipated them or not. Of course such presumption can not be indulged in and carried to the extent of making one guilty of homicide on account of voluntary suicide of a sane person where such suicide may have been induced or caused from remorse, grief, shame or humiliation growing out of some past action of himself or herself and another to which he or she has assented voluntarily. But if in such case, there be no voluntary assent on the part of such person taking his or her life, to such past action which caused such remorse, grief, shame and humiliation but that he or she was compelled to participate in such action causing such remorse, grief, shame or humiliation through force, threats, coercion and restraint of another. Then it is for the jury to determine whether or not the suicide in such a case, after considering all the evidence relating thereto, is the natural and probable consequence of the acts of such person. If it is the natural and probable consequence of such act or acts, it is felonious homicide, otherwise it is not felonious homicide."

[665] Instruction 41 undoubtedly referred to, and was understood by the jury to refer to, that particular part of count 1 which alleged the facts respecting the taking of poison by Madge Oberholtzer, since that part alone involves the question of suicide.

This instruction must be considered in the light of the holding of both the per curiam and individual opinions that the defendant was not legally responsible for Madge Oberholtzer's act of procuring and swallowing the poison unless the poison was procured and swallowed by her while in a state of mental irresponsibility induced by the wrongful acts of the defendant, and the natural and probable result thereof. See per curiam, supra, 179 N. E. 649. And I believe that instruction 41 violates the foregoing by omitting the element of mental irresponsibility and by making the responsibility of the defendant for the act of self-destruction depend on the simple test of whether, according to the standard of the jury, her act was the natural and probable consequence of the misconduct of the defendant. I appreciate that the per curiam opinion, while recognizing the necessity of the element of mental irresponsibility, construes the instruction to mean that if the jury found "that the suicide was the natural and probable result of the acts of appellant they necessarily had to find that the acts of appellant resulted first in rendering the deceased distracted and mentally irresponsible; for the willful and deliberate destruction of one's own life is not the natural and probable action of one who is in sound mind." But as I construe instruction 41, it told the jury that it could find "that the suicide in such a case" was the "natural and probable consequence of the acts of such person," even if the one committing suicide was of sound mind. I agree with the per curiam statement that a deliberate and willful taking of one's own life is not a natural and probable act of one of sound mind; and consequently it follows that a wrongdoer is not required by law to anticipate such an act, by one of sound mind, as a legal consequence of the acts of the wrongdoer. But we cannot assume that one of sound mind will not commit suicide, and then, by a process of reasoning backward, conclude that one who commits suicide is not of sound mind. The fatal defect in instruction 41, as I interpret it, is that the jury could find the appellant legally responsible for the deceased's act of procuring and taking poison without definitely determining (1) whether the victim was in fact rendered mentally irresponsible by the acts of the appellant; (2) whether this condition was the natural and probable consequence of appellant's acts; and (3) whether the act of self-destruction was the natural and probable consequence of the mental derangement. The last-mentioned element has a special significance in this case, since it would seem necessary that there be some reasonable relation between the act of the mentally irresponsible person and the particular type of mental irresponsibility.

In instruction 6, tendered by appellant, the court defines suicide thus: "Suicide is taking one's own life while possessed of sound mind." (Our italics.)

Instruction 41 first carefully stated that a person cannot be held to anticipate, as a consequence of his acts, a "voluntary suicide of a sane person where such suicide may have been induced or caused from remorse, grief, shame, or humiliation growing out of some past action of himself or herself and another to which he or she has assented voluntarily." (Our italics.) The court then states the conditions under which it is "for the jury to determine whether or not the suicide in such a case, after considering all the circumstances relating thereto, is the natural and probable consequence of the acts of such other person." It is clear from this statement of conditions that the criminal responsibility is made to depend upon the question whether the victim of self-destruction was a willing or unwilling participant in the "past action causing such remorse, grief," etc. There is no suggestion that the mental irresponsibility of the victim is a factor "in such a case," and we think it impossible to construe the instruction to require the jury to find that the defendant should have anticipated, as the natural and probable result of his conduct, that Madge Oberholtzer would be rendered mentally irresponsible; and to further find that she was rendered mentally irresponsible, and as a consequence of her mental irresponsibility committed suicide. The fact of forced participation would, of course, be important evidence in gauging the mental and emotional reaction of the victim for the purpose of determining whether she was in fact rendered mentally irresponsible; but such fact should not be made the basis of a rule of law which creates a class of cases in which criminal responsibility is determined by the varying and undefined standards of juries as to when a "suicide of a sane person" is the natural and probable consequence of the acts of another.

Instruction 42 sets out in detail the facts to be considered by the jury in determining whether the deceased was a "willing or unwilling participant on the trip in question, ***" and obviously the instruction was given to supplement instruction 41 and to help the jury to determine the specific question of whether there was "voluntary assent *** to such past action which caused such remorse, grief," etc. When we consider instructions 41 and 42 together, we are the more firmly convinced that the plain and natural meaning is that the jury should first determine whether the deceased was a voluntary participant in the acts which caused the shame and humiliation; and if it was found [666] that she was not a voluntary participant, then it was for the jury simply to determine, on the basis of its own standard, "whether or not the suicide in such a case, after considering all the evidence relating thereto, is the natural and probable consequence of the acts of such other person."

That the trial court did not consider mental irresponsibility a necessary factor in determining the responsibility of the defendant for the procuring and taking of the poison is indicated by the remarks of the judge, before the jury, when overruling an objection to the introduction of an alleged dying declaration. These remarks are set out in full in the opinion of MARTIN, J., in connection with his discussion of their prejudicial effect upon the jury, and I shall not repeat them here. Since I agree with MARTIN, J., that their prejudicial character was in itself sufficient to constitute reversible error, I shall call attention merely to their significance in connection with instruction 41. Nowhere in the trial court's comments is there any suggestion of the necessity of the element of mental irresponsibility in order to transform the "suicide" into homicide. The tenor of the remarks is indicated by the following: "The question is, must these men anticipate this suicide (our italics) as a reasonable result of their acts?" or by "*** then I must anticipate this woman is liable to kill herself, and if that is the natural consequence of the act that I have done, then it is for the jury to determine, and if it considered it a natural consequence, then this evidence is admissible."

The trial court's refusal to give instruction 116 tendered by appellant is understandable only on the assumption that soundness or unsoundness of mind was not the determining factor in fixing the responsibility of the appellant for the act of self-destruction of Madge Oberholtzer. The tendered instruction is as follows: "The law presumes that one intends the natural consequences of his acts, I instruct you, however, that such presumption cannot be indulged in and carried to the extent of making an accused guilty of homicide, an account of the voluntary suicide of a sane person, even where such suicide may have been induced or caused from remorse, grief, shame or humiliation growing out of some past action of the accused on or against the deceased."

We think the above instruction was clearly proper and should have been given under the theory, which is accepted by both the per curiam and individual opinions, that the appellant was not legally responsible for the deceased's act of procuring and taking poison if at the time of such act she was of sound mind.

We, of course, recognize that if one is not free to refrain even from an act of self-destruction by reason of present physical or mental coercion by another, or by reason of a state of mental irresponsibility induced by present or past acts of another, that an act of self-destruction may be, in fact and in law, the act of the one exercising the physical or mental coercion or causing the state of mental irresponsibility. But it is equally true that one cannot be criminally responsible for the voluntary self-determined act of another, who at the time of doing the act is in a position to act or refuse to act. The law does not give the victim of criminal misconduct the power to transform, by his own deliberate act, this criminal misconduct into a more serious criminal offense. So in this case, no matter how reprehensible the conduct of the defendant was prior to the moment the deceased took the poison, he was not a murderer, and the unfortunate victim of his misconduct could not by deliberately choosing to destroy her own life make him a murderer.

Evidence of Mental Irresponsibility.

I think there was some evidence to support a finding that Madge Oberholtzer was mentally irresponsible when she procured and swallowed the poison. There were facts and statements which, standing alone, would indicate a clear-minded and reasoned act of self-destruction, attended by a complete comprehension of the moral and physical consequences of her act and a sufficient mental power and control to make a choice. But we cannot ignore the terrific array of facts relating to the bestial mistreatment of the deceased; nor can we safely estimate the precise effect on the mind of the victim of her terrible experience. The irresistible impulse test of insanity, as recognized in Indiana, increases, I think, the danger of saying there was no evidence to support a finding of mental irresponsibility amounting to insanity; and if that question had been presented to the jury under proper instructions I could agree with the per curiam opinion in holding that such finding was supported by the evidence.

The Wound on the Breast as a Cause of Death.

There is sufficient evidence to establish that the appellant caused a laceration of the deceased's breast while engaged in the attempt to commit the rape; and the evidence also establishes that this wound became infected. The post mortem examination discloses an abscess in one lung, and at least one expert testified that in his opinion "the infection found in the lungs came from the infected area, recently healed, in the skin on the chest." Dr. Warvel, expert witness for the state, testified as follows: "I would not say for certain that because there was an abrasion on one of the breasts and an abscess in one of the lungs that it would necessarily follow that one communicated germs to the other unless I could prove there was no other avenue of infection." The evidence showed conclusively[667] that Madge Oberholtzer had suffered an attack of flu a short time before her death, and the evidence of experts established that one of the common after-effects of flu is an abscessed condition of the lungs. In view of all of the evidence on this point, I feel that the conclusion that the abscessed condition of the lung was caused by the infected abrasion on the skin must be as nearly a purely speculative inference as any conclusion can be, and yet be entitled to the name of expert opinion. But granting that it was admissible, and it evidently was, I do not feel free to say there was no evidence to show that the abscess in the lung was the result of the infected abrasion on the breast. But there still remains the problem of deciding whether the infection in the lung can be held to have been a proximate cause of the death, or whether, at the most, it merely created a condition which might or might not have added to the efficacy of the poison. I agree with the conclusion of MARTIN, J., that "from the viewpoint of a court in determining the guilt or innocence of one charged with murder by infliction of a bite (which was not in itself a dangerous wound), such bite and the infection resulting therefrom could not be 'superimposed' upon the dangerous condition arising from poison which was afterwards taken, so as to make the bite and not the poison the proximate cause of the death." See opinion of Martin, J., 179 N. E. page 653, and preceding discussion.

Jurisdiction of the Hamilton Circuit Court.

I concur with the per curiam opinion in holding that the Hamilton circuit court acquired jurisdiction of the subject-matter of this cause despite the fact that, upon change of venue from the criminal court of Marion county to the Hamilton circuit court, the copy of the orders and proceedings had in the cause while pending in the criminal court of Marion county was not authenticated by the signature of the clerk of that court.

Admissibility of Dying Declarations.

As respects the admissibility of the two dying declarations, one written and the other oral, I think both the per curiam opinion and the opinion of MARTIN, J., conclusively show that the written declaration was properly admitted. There is some room for doubt about the admissibility of the oral declaration, the content of which was testified to by Dr. Kingsbury. At the time the statements which constitute this declaration were made to Dr. Kingsbury, the deceased also made some remarks which indicated she was not anticipating immediate death; and death did not ensue for some time after the declaration was made. But inasmuch as the evidence shows that poison had been taken by the declarant for the purpose of causing her death, and since various remarks by her indicated that she firmly believed that she would eventually die as a result of her condition, and since she did in fact die as a result of such condition, I think that the requirement that such declarations be made with a definite and firm conviction of impending death was satisfied. It is true that at the time the declaration was offered in evidence the proper foundation had not been laid for its introduction; but since all the proof necessary for such foundation was later offered and admitted, I feel that the technical error in admitting the dying declaration without this proof first having been offered was harmless, and especially so, in view of the fact that the substance of the oral declaration was included in the written declaration which was admitted after the proper foundation had been laid.

The reasons which I have given in support of my conclusion that the trial court committed prejudicial error in overruling the motion to strike out and in giving instruction 41 are not intended to imply that the trial judge was either confused or inconsistent in his rulings. His construction of count 1 and his rulings and instructions based thereon were consistent. Yet it is evident that the trial court's construction of count 1, as understood by the writer, would, if accepted by this court, make count 1 bad as against a motion to quash on the ground of uncertainty. But the vital consideration is that the trial court's theory of the first count, and not this court's theory, was actually applied during the trial, and determined the character of his rulings and instructions; and if the writer is correct in his interpretation of the trial court's theory, and has properly estimated the effect of such theory on the conduct of the trial, it is clear that the appellant was deprived of substantial rights to which he was entitled under both the per curiam and individual opinions.

Since I believe the defendant's legitimate interests were prejudiced by the trial court's theory of count 1, and the rulings and instructions based thereon, I conclude that the judgment should be reversed, and a new trial granted.

[1] Some aspects of this case not treated in the opinion appear in Cornelius, Cross-Examination of Witnesses (Bobbs-Merrill 1929) which devotes chapter 27, pages 509 to 622 to the case.

[2] Many of the cases cited by the state to sustain its contention last stated have no direct application to questions arising in the case at bar. Hamblin v. State (1908) 81 Neb. 148, 115 N. W. 850, 16 Ann. Cas. 569; People v. Kane (1915) 213 N. Y. 260, 107 N. E. 655, L. R. A. 1915F, 607, Ann. Cas. 1916C, 685; Hopkins v. U. S. (1894) 4 App. D. C. 430; State v. Hambright (1892) 111 N. C. 707, 16 S. E. 411, and Odeneal v. State (1913) 128 Tenn. 60, 157 S. W. 419, involve questions of the effect of unskillful or improper medical treatment; of deceased's neglect to obtain medical treatment or to take proper care of himself; of a surgical operation made necessary by a wound and performed with reasonable skill. These questions are not involved in the case at bar, nor are the rules announced therein so directly applicable as to require discussion. See Hall v. State, supra, where at page 607 of 199 Ind., 159 N. E. 420, the well-known passage from Hale, Pleas of Crown, page 428, is quoted, and the rules applicable where death results from a disease caused by a wound or injury, or from the treatment thereof, are discussed, State v. Smith (1887) 73 Iowa, 32, 34 N. W. 597; Com. v. Fox (1856) 7 Gray (Mass.) 586 and Harvey v. State (1916) 15 Ala. App. 311, 73 So. 200, cited by the state, were cases where ill and enfeebled wives died from assaults committed by their husbands; while Fisher v. State (1882) 78 Tenn. (10 Lea) 151; Duque v. State (1909) 56 Tex. Cr. R. 214, 119 S. W. 687; and People v. Ah Fat (1874) 48 Cal. 61, cited by appellee (like the list of five cases cited in Corpus Juris) involved deaths resulting from more than one injury sustained in fights participated in by several persons.

The five cases cited in C. J. and referred to above are: Tidwell v. State, 70 Ala. 33; Henderson v. State, 11 Ala. App. 37, 65 So. 721; People v. Carter, 96 Mich. 583, 56 N. W. 79; U. S. v. Abiog, 37 Philippine Rep. 137; Wilson v. State (Tex. Cr. App.) 24 S. W. 409.

[3] The foregoing statement is made, based only on a consideration of that evidence properly admissible to support count one of the indictment on which the conviction was had, and disregarding the evidence introduced to support count four on which there was no finding of guilty. The doctors testifying for the state said that in their opinion the delay in securing medical attention for deceased greatly increased the chances of fatality and tended to shorten the life of deceased. On a retrial (which I believe should be ordered) the question might arise as to whether the mercurial poisoning or the delay in furnishing medical attention constitutes the proximate cause of the death; but such question is not before us on this appeal. The granting of a new trial would return this cause to the lower court for a trial de novo on all counts of the indictment the same "as if no trial had been had," section 2324, Burns' Ann. St. 1926; Veatch v. State (1878) 60 Ind. 291, 295; State v. Balsley (1902) 159 Ind. 395, 65 N. E. 185; Ex Parte Bradley (1874) 48 Ind. 548.

246 N.Y. 334, 158 N.E. 888, 55 A.L.R. 711

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

CHARLES Rlzzo, Appellant, Impleaded with Others.

Court of Appeals of New York.

Argued October 17, 1927.

Decided November 22, 1927.

Crimes -- attempt to commit robbery -- construction of section 2 of Penal Law defining attempt to commit crime defendants who planned intended robbery and started to look for victim but never reached him improperly convicted of attempt to commit robbery.

1. In construing section 2 of the Penal Law, providing that an act done with intent to commit a. crime, and tending but failing to effect its commission, is an attempt to commit that crime, the law has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference.

2. Defendants, therefore, who had planned and started in an automobile to commit a robbery but were arrested before they had found or reached the presence of the person they intended to rob, were not guilty of the crime of attempt to commit robbery in the first degree, and their conviction for that crime was improper. It cannot be said that their acts came so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference.

People v. Rizzo, 221 App. Div. 353, reversed.

(Argued October 17, 1927; decided November 22, 1927.)

APPEAL, by permission, from a, judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which affirmed a judgment of the Bronx County Court entered upon a verdict convicting the defendant of the crime of attempted robbery in the first degree.

James F. Donnelly, Mark Eisner and Merwin Lewis for appellant. The evidence failed to establish the crime. John E. McGeehan, District Attorney (George B. De Luca, I. J. P. Adlerman and Herman J. Fleiderblum of counsel), for respondent. The evidence was sufficient to establish an attempted robbery. (People v. Gardner, 144 N. Y. 119; People v. Spolasco, 33 Misc. Rep.22; People v. Moran, 123 N. Y. 254; People v. Sullivan, 173 N. Y. 122; Commonwealth v. Peaslee, 177 Mass. 267; State v. Hurley, 64 Atl. Rep. 78; People v. Stiles, 75 Cal. 570; U. S. v. Stephens, 12 Fed. Rep. 52; People V. Bush, 4 Hill, 133; McDermott v. People, 5 Park. Cr. Rep. 102; People v. Lawton, 56 Barb. 126; People v. O’C0nnell, 60 Hun, 109.)

CRANE, J.

The police of the city of New York did excellent work in this case by preventing the commission of a serious crime. It is a great satisfaction to realize that we have such wide­-awake guardians of our peace. Whether or not the steps which the defendant had taken up to the time of his arrest amounted to the commission of at crime, as defined by our law, is, however, another matter. He has been convicted of an attempt to commit the crime of robbery in the first degree and sentenced to State’s prison. There is no. doubt that he had the intention to commit robbery if he got the chance. An examination, however, of the facts is necessary to determine whether his acts were in preparation to commit the crime if the opportunity offered, or constituted a crime in itself, known to our law as an attempt to commit robbery in the first degree. Charles Rizzo, the defendant, appellant, with three others, Anthony Dorio, Thomas Milo and John Thomasello, on January 14th planned to rob one Charles Rao of a, payroll valued at about $31,200 which he was to carry from the bank for the United Lathing Company. These defendants, two of whom had firearms, started out in an automobile, looking for Rao or the had the payroll on that day. Rizzo claimed to be able to identify the man and was to point him out to the others who were to do the actual holding up. . The four rode about in their car looking for Rao. They went to the bank from which he was supposed to get the money and to various buildings being constructed by the United Lathing Company. At last they came to One Hundred and Eightieth street and Morris Park avenue. By this time they were watched and followed by two police officers. As Rizzo jumped out of the car and ran into the building all- four were arrested. The defendant was taken out from the building in which he was hiding. Neither Rao nor a man named Previti, who was also supposed to carry a payroll, were at the place at the time of the arrest. The defendants had not found or seen the man they intended to rob; no person with a payroll was at any of the places where they had stopped no one had been pointed out or identified by Rizzo. The four `men intended to rob the payroll man, whoever he was; they were looking for him, but they had not seen or discovered him up to the time they were arrested.

Does this constitute the crime of an attempt to commit robbery in the first degree? The Penal Law, section 2, prescribes, An act, done with intent to commit a crime, and tending but failing to effect its commission, is "an attempt to commit that crime". The word tending is very indefinite. It is perfectly evident that there will arise differences of opinion as to whether an act in a, given case is one tending. to commit a crime. Tending means to exert activity in a particular direction. Any act in preparation to commit a crime may be said to have a tendency towards its accomplishment. The procuring of the automobile, searching the streets looking for the desired victim, were in reality acts tending toward the commission of the proposed crime. The law, however, has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law must be practical, and, therefore, considers those acts only as tending to the commission of the crime which are so near to its accomplishment that in all reasonable probability the crime itself would, have been committed but for timely interference." The cases which have been before the courts express this idea in different language, but the idea remains the same. The act or acts must come or advance very near to the accomplishment of the intended crime. In People Mills (178 N. Y. 274,284) it was said: “Felonious intent alone is not enough, but there must be an overt: act shown in order to establish even an attempt. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause.” In Hyde V. U. S. (225 U. S. 347) it was stated that the act amounts to an attempt when it is so near to the result that the danger, of success is very great. There must be dangerous proximity to success.” Halsbury in his Laws of England” (Vol. IX, p. 259) says: “An act, in order to be a criminal attempt, must be immediately, and not remotely, connected with and directly tending to the commission of an offence.” Commonwealth V. Peaslee (177 Mass. 267) refers to the acts constituting an attempt as coming very near to the accomplishment of the crime.

The method of committing or attempting crime varies in each case so that the difficulty, if any, is not with this rule of law regarding an attempt, which is well understood, but with its application to the facts. As I have said before, minds differ over proximity and the nearness of the approach. (People V. Collins, 234 N. Y. 355; People V. Sobieskoda, 235 N. Y. 411; People V. Werblow, 241 N.Y. 55.)

How shall we apply this rule of immediate nearness to this case? The defendants were looking fort the payroll man to rob him of his money. This is the charge -in the indictment. Robbery is defined in section 2120 of the Penal Law as the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person; and it is made robbery in the first degree by section 2124 when committed by a person aided by accomplices actually present. To constitute the crime of- robbery the money must have been taken from Rao by means of force or violence, or through fear. The crime of attempt to commit robbery was committed if these defendants did any act tending to the commission of this robbery. Did the acts above describe come dangerously near to the taking of Rao’s property? Did the acts come so near the commission of robbery that there was reasonable likelihood of its accomplishment but for the interference? Rao was not found the defendants were still looking for him; no attempt to rob him could be made, at least until he came in sight; he was not in the building at One Hundred and Eightieth street and Morris Park avenue. There was no man there with the payroll for the United Lathing Company whom these defendants could rob. Apparently no money had been drawn from the bank for the payroll by anybody at the time of the arrest. In a word, these defendants had planned to commit a crime and were looking around the city for an opportunity to commit it, but the opportunity fortunately never came. Men would not be guilty of an attempt at burglary if they had planned to break into a building and were arrested while they were hunting about the streets for the building not knowing where it was. Neither would a man be guilty of an attempt to commit murder if he armed himself and started out to find the person whom he had planned to kill but could not him. So here these defendants were not guilty of an attempt to commit robbery in the first degree when they had not found or reached the presence of the person they intended to rob. (People v. Sullivan, 173 N. Y. 122, 135.)

For these reasons, the judgment of conviction of this defendant, appellant, must be reversed and a new trial granted.
A very strange situation has arisen in this case.. I called attention to the four defendants who were convicted of this crime of an attempt to commit robbery in the first degree. They were all tried together upon the same, evidence, and jointly convicted, and all sentenced to State’s prison for varying terms. Rizzo was the only` one of the four to appeal to the Appellate Division and to this court. His conviction was affirmed by the Appellate Division by a divided court, two of the justices dissenting, and we have now he1d that he was not guilty of the crime charged. If he were not guilty, neither were the other three. As the others, however, did not appeal, there is no remedy for them through the court; their judgments stand, and they must serve their sentences. This of course is a situation which must in all fairness be met in some way. Two of these men were guilty of the crime of carrying weapons, pistols, contrary to law, for which they could be convicted. Two of them, John Thomasello and Thomas Milo, had also been previously convicted, which may have had something to do with their neglect to appeal. However, the law would fail in its function and its purpose if it permitted these three men whoever or whatever they are to serve a sentence for a crime which the courts subsequently found and declared had not been committed. We, therefore, suggest to the district attorney of Bronx county that he bring the cases of these three men to the attention of the Governor to be dealt with as to him seems proper in the light of this opinion.

The judgment of the Appellate Division and that of the County Court should be reversed and a new trial ordered.

KELLOGG and O’BR1EN, JJ., concur.

Judgment accordingly.

319 Mo 1222
6 S.W. (2d) 609

THE STATE
v.
CARL B DAVIS, Appellant

Court en Banc
May 18, 1928.

[1226] The jury returned a verdict fixing his punishment at imprisonment in the penitentiary for a term of eight years, which the trial court reduced to five years, sentencing him to that term. Defendant duly appealed from the judgment entered accordingly.

On the hearing before us defendant accepted the facts as outlined by the Attorney-General in his brief, as a true recital of the evidence adduced. The evidence submitted on the part of the State warrants the finding that defendant and Alberdina Lourie resided in Kansas City. They were seemingly infatuated with each other, planning and arranging to have Edmon Lourie, the husband of AIberdina, killed, so that they could obtain the insurance on his life; aggregating sixty thousand dollars, as well as cohabit. Edmon Lourie was absent from home the greater part of the time, returning at intervals of two or: three weeks In furtherance of their plan defendant, acting for himself and Alberdina, arranged to have one Earl Leverton obtain for them the services of an ex-convict to murder Edmon Lourie for hire. Leverton, instead of procuring the services of an ex-convict for that purpose, disclosed the plot to Joel L. Dill, a member of the Kansas City police force, who agreed to pose as an ex-convict to that end. Several meetings were had between defendant, Leverton and Dill, defendant stating that he and Alberdina were in love and desired Edmon Lourie killed. He agreed to pay for the execution of the plot. Defendant outlined, his plan, offering Dill the sum of six hundred dollars, with the further agreement that AIberdina, who was to be with her husband at the time of the contemplated, assault; would wear diamonds of the value of three thousand dollars. He further arranged for Alberdina and Dill to see each other, that each might recognize the other on sight. Defendant, Dill and Leverton during January and the early part of February, 1926, held prearranged conferences, on the subject. Prior to February 11, 1926, defendant arranged for Dill to go to Chicago to kill Edmon Lourie there, defendant making and giving Dill a map or drawing showing where Lourie, could be found, as well as two photographs of him. The arrangements contemplated that if Dill was unable to locate Lourie, Alberdina would go to Chicago to aid him. The trip to Chicago was to be made about February twelfth. However, Edmon Lourie telegraphed Alberdina  that he would return to Kansas City on February 13, 1926, defendant thereupon notifying Leverton, who in turn communicated the fact to Dill. Defendant paid Dill six hundred dollars, advising him that Alberdina would persuade Edmon to accompany her to a place of amusement and that she planned to leave their home at eight o'clock P. M. on February 13, 1926. It was further planned that Alberdina was to carry the diamonds on her person, and that Dill was to shoot Lourie either as they left their home or as they returned, and that Alber[1227] dina was to be mussed up and the diamonds taken from her so that it might appear the result of a robbery. Alberdina was to appear to faint, giving Dill time to bake his escape. However, on the night of February 13, 1926, Dill, accompanied by three other police officers, proceeded about eight o 'clock P. M. to the home of Edmon Lourie as arranged. Edmon and Alberdina Lourie were there found dressed and ready to leave, with the diamonds on her person.  As Dill and the officers entered the room; she turned her face to the wall as planned.  Two officers took charge of Edmon and Alberdina,  Dill and the other officer going to the home of defendant, where they arrested him. The defendant had previously informed Dill that he would remain at home in order to have an alibi.

Upon his arrest defendant made and signed a confession in which he stated that he and Alberdina planned to have Edmon Lourie killed. In pursuance to the plan he met Dill, to whom he assumed to be an ex-convict and the subject of hire for the purpose intended. The day before the contemplated murder he gave Dill two hundred dollars, and four hundred dollars the day the murder was to be consummated, together with a picture of Edmon Lourie.  It was arranged that Dill was to go to Chicago to kill Lourie. Lourie, however, unexepectedly arranged to go home, notifying Alberdina of his intention by telegram. Thereupon Alberdina informed defendant of the fact, whereupon he notified Dill, resulting that the scene of the contemplated murder was changed to Lourie's home in Kansas City. The arrangements contemplated that Alberdina was to accompany Lourie that night to a picture show, and Dill was to stage a hold-up and kill Lourie. Alberdina agreed to remove the diamond rings from her fingers, giving them to Dill, and he was to retain them as part payment for the murder of Lourie. Lourie masqueraded under different names, among them Lourie, Frank, Payne, and Edmonds, Alberdina telling defendant that she thought  he was a master mind among criminals. The confession was made o the night of February 13, 1926. The evidence establishes that all of the acts complained of occurred in Kansas City, Jackson County, Missouri, during January and February, 1923.

The evidence on the part of defendant tends to establish that defendant was urged to agree to the arrangement by Dill and Leverton, but that after paying the money he abandoned the crime before ' an overt act was committed. There was also testimony that Alberdina, the co-conspirator, abandoned the plot, which abandonment was communicated to Dill and defendant. Defendant was addicted to; drink and had been an inmate of a sanatorium. It was asserted that all these facts were known to Dill and Leverton, who purchased and gave him liquor while persuading him to continue the plot. Such other facts as we find pertinent, if any, will later be noted.

[1228] Section 3683, Revised Statutes 1919, upon; which the indictment and prosecution are based, reads: "Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented, or intercepted in executing the same, upon conviction thereof, shall, in cases where no, provision is made by law for the punishment of such attempt, be punished as follows." The remaining portion of the section sets forth the punishment prescribed, which it is unnecessary to recite.

The sufficiency of the evidence to sustain the conviction is raised. The defining of an attempt to commit a crime and the ascertaining of its essential elements is necessary in the consideration of its essential elements is necessary in the consideration of the question. 16 Corpus Juris, page 112, in defining an attempt, says: “An attempt to commit a crime 'may be defined as an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and possessing, except for failure to  consummate, all the elements of the substantive crime, so that, if not prevented, it would have resulted in the full consummation of the intended crime.” The elements of an attempt are stated in 16 Corpus Juris, page 113, thus: “An attempt to commit a crime consists of three elements: (1) The intention to commit, the crime; (2) performance of some  act  toward  the commission  of the crime; and (3) the failure to consummate its commission."

The proof adduced advises us that the only debatable question is the presence of sufficient facts to demonstrate the second element. The record develops the presence of the intent to commit  the crime and the failure to consummate its commission. We therefore dismiss the first and third elements of an attempt from further consideration. However, as there must be coincidence as to every element of the offense, the lack of one essential element demonstrates a failure to commit the crime of attempted murder. Our sole inquiry then relates to the performance of some act upon the part of defendant toward the commission of the crime.

The physical overt act, which, with intent and failure to consummate, brings the crime of attempt into existence, is distinguishable from solicitation and preparation. An attempt to commit a crime involves an act on the part of the defendant moving directly toward the commission of the offense. With these concepts in mind we proceed to review the solicitations and preparations by defendant to murder Lourie as constituting an overt act.

In State v. Hayes, 78 Mo. 307, this court through PHILIPS, C., said: “It is the recognized law of this country that the solicitation of another to commit a crime is an act toward the commission." How [1229] ever, the proof in the above case developed in addition to solicitations an act on the part of the accused extending beyond solicitation or preparation, that of saturating  a portion of  the floor with coal oil as well as, the furnishing of plans and an oil can. Conceding that the court reached the proper result in, that case, concerning which it is unnecessary to express an opinion, the basic facts there shown extend far beyond the facts here developed. While a few of the courts have treated solicitation to commit a crime as an attempt, the great weight of authority warrants the assertion that mere solicitation, unaccompanied by, an act moving directly toward the commission  of the intended crime, is not an overt act constituting an element of the crime of attempt. Solicitation of itself is a distinct offense when declared so by law. [16 C. J. 118; 8 R. C. L. 277.] Therefore, in conformity with the weight of authority, we hold that, merely soliciting one to commit a crime does not constitute an attempt.

The State contends that the arrangement of a plan for the accomplishment of the murder of Lourie and the selecting and hiring of the means or instrumentality by which the murder was to be consummated were demonstrated. We take it that the State means by the foregoing declarations that overt acts were shown. To that we do not agree. The evidence goes no further than developing a verbal arrangement with Dill, the selection of Dill as the one to kill Lourie, the delivery of a certain drawing and two photographs of Lourie to Dill and the payment of a portion of the agreed consideration. These things were mere acts of preparation failing to lead directly or proximately to the consummation of the intended crime. In this regard we have found no authority which holds that preparations constitute an overt act.

The distinguishment between the overt act and preparation is stated by FIELDs, C. J., in People v. Murray, 14 Cal. 159, reading "Between preparation for, the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.”

In Reg. v. Taylor, 1 Fost. &. F. 512, the court say: "The act to constitute a criminal attempt must be one immediately and directly tending to the execution of the principal crime, and committed by the prisoner in such, circumstances that he has the power of carrying ,his intent  into execution.”

The plans or arrangements amounted to nothing more than mere preparation. The contract of hiring entered into between defendant and Dill also fails to extend beyond mere preparation. In regard to the hiring the trial court instructed the jury that the payment of [1230] money by defendant to Dill to commit the intended crime did not constitute such an overt act as was tantamount to an attempt. The ruling of the court we think was right, for the payment of money was not an act moving directly toward the consummation of the intended crime. The only case we have found involving the actual payment of money to another as the consideration for the proposed crime is Reg. v Williams 1 Car. & K. 589, 1 Den. C. C. 39. In that case the facts develop the actual delivery of money to the agent who straight-way went with the poison given him for that purpose to the home of the intended victims. However, on his arrival he disclosed to them the plan to kill, handing over the poison. The fifteen judges who considered the case on appeal held the conviction erroneous.

The employment of Dill as agent to murder Lourie was not tantamount to an attempt. Dill not only had no intention of carrying out the expressed purpose of defendant, but was guilty of no act directly or indirectly moving toward the consummation of the intended crime. He did nothing more than listen to the plans and solicitations of defendant without intending to act upon them. It was not shown that Dill committed an act that could be construed as an attempt. The arrest of Lourie, his wife and defendant as detailed in the evidence could not be said to be an act involving the consummation of the crime. [Ex: parte Floyd, 95 Pac. 175; Hicks v. Commonwealth, 86 Va. 223, 9 S.E. 1024, 19 Am. St. 891, Stabler v. Commonwealth, 95 Pa. St. 318, 40 Am. Rep. 653; State v. Rider,  90 Mo. 54; State v. Baller, 26 W. Va. 90; People v. Youngs, 122 Mich. 292; McDade v. People, 29 Mich. 50; State v. Fraker, 148 Mo. 143, 49 S.W. 1017; State v. Harney, 101 Mo. 470, 14 S. W. 657.]

Whether it is necessary to make an actual assault before the crime of attempt can be said to come into existence, we need not decide, for the solicitations and preparations upon the part of defendant were not equivalent to an overt act which must take place before the crime of attempt comes into existence. In addition to the case of State v. Hayes, 78 Mo. 307, we have considered the case of State v. Mitchell, 170 Mo. 633; 71 S. W. 175, but do not think it is apposite to the facts here developed, for in that case the intended victim was absent from the bed where he usually slept when defendant, with intent to harm him, fired through the window into the pillow of the bed. In that case the proof shows an overt act which develops the crime.

Our statute, Section 3683, Revised Statutes 1919, in proscribing an attempt to commit an offense prohibited by law, is to be interpreted as providing that the doing of any act toward the commission of such offense shall constitute an attempt.  The statute we think follows and coincides with common law in that respect. There must be an overt act before an attempt exists and the overt act, must move direct [1231] ly in consummation of the crime, in other words, toward the commission of the offense. People v. Youngs, 122 Mich. 292, supports this ruling.

It follows from what we have said that the judgment must be reversed and the defendant discharged. It is so ordered. Higbee and Henwood, CC., concur.

PER CURIUM:—This cause coming into Court en Banc, the foregoing opinion of DAVIS, C., in Division Two, is adopted as the decision of court en Banc. Graves, Atwood and Ragland, JJ., concur; White, J., concurs in a separate opinion, in which Blair and Gantt, J.J., concur; Walker, C. J. dissents in separate opinion.

WHITE, J., (concurring).— I concur the conclusion reached in  the opinion, of DAVIS,C., and in the reasoning by which he reaches it. However, a principle of law, not referred to in the argument or the briefs, I think is the decisive of the case.

Defendant was charged with an attempt to commit murder as accessory before the fact, under Section 3687, Revised Statues 1919.He did not attempt to commit the crime himself, but hired Dill to do it. He might have been charged directly, but the proof would have been the same.

I. 

The principle of the law is this: Where one hires or incites another person to do a criminal act, he is responsible only for what the other person does. The principle thus applicable is thus stated in 16 Corpus Juris, at page 134:

“There are several things that must concur in order to justify the conviction of one as an accessory before the fact: (1) That he advised and agreed, or urged the parties or in some way aided them, to commit the offense; (2) that he was not present when the offense was committed (3) that the principle committed the crime."

And again (pp. 134-5):  

"To constitute one an accessory before the fact, it is of course essential that the felony shall have been in fact committed by the person whom the accused is alleged to have incited or counseled, etc., and under such circumstances as to render him guilty. In other words, although the offense of the accessory is distinct from that of the principal, yet it is in judgment of law connected with it and cannot subsist without someone being guilty as principal. This principle, which is embodied in the maxim, Accessorius sequitur naturam sui principalis, appears at every point in the common-law rules regulating the indictment and trial of accessories."

A few cases illustrative of that doctrine would show the extent to which it is applied. Ray v. State, 102 Ark. 594, is where the defendant [1232] was charged as accessory before the fact in commission of murder. The court said, at page 596:

“The accessory cannot be guilty if the principal is not guilty; and he can be guilty of no other or higher grade of crime than that of which the principal is also guilty. . . .

"The guilt of the accessory before the fact is based and dependent upon the guilt of the principal; and if the principal has committed no crime, then the accessory is free from guilt. To charge an offense against the accessory, it is necessary to also charge an offense against the principal" (citing Wharton on Criminal Law, and other authorities).

In Harper v. State of Mississippi, 83 Miss. 402, defendant was charged with aiding and abetting a crime of murder. An instruction authorized the finding of defendant guilty if he was present at the time of the aiding and abetting the principal in killing the deceased. The court said:

"The error in this instruction is glaring and manifest.  . . . It omits all mention of the intention, malice or premeditation of McCormick [the principal] in killing deceased.”

The court goes on to reason that the person who actually did the killing might have acted in self-defense or killed by accident, or been guilty of manslaughter; that although the defendant, accomplice, aided and abetted the act, he could not be guilty unless the principal was guilty to the same extent.

In the case of Stoops v. Commonwealth, 10 Am. Dec. (Pa.) 482, the plaintiffs in error were indicted as accessories before the fact for the crime of burglary. The court said, at page 483:

"The offense of the accessory, though different from that of the principal, though different from that of the principal, is yet, in judgment of law, connected with it, and cannot subsist without it.”

In Gene Hall v. State, 52 Tex. Crim. 250, defendant was charged as being an accomplice in the crime of burglary. The court said (l. c. 253):

"It is not a violation of the law with reference to the conviction of an accomplice in that he simply furnished the means, advised or aided; there would be no offense  unless  the offense in contemplation was subsequently committed.”

In Brooks v. State, 103 Ga. 50, one was charged as accessory before the fact with murder. The court said: (l. c. 52):

“It is therefore necessary, before one can be found guilty as accessory before the fact, that someone must not only be charged with having perpetrated the crime, but the guilt of that person must be established.”

In State v. Hickam, 95 Mo. 322, four defendants were jointly charged with an attempt to kill, and were convicted, Hickam as [1233] principal, and the other three as aiders and abettors. The judgment was reversed. The court said (l. c. 332):

"Neither of these defendants (other than Hickam), however, could properly be convicted of the offense charged in the indictment, unless the jury found, either that there was a common purpose in the minds of Sam Hickam and such defendant to kill Davenport, and the shooting was done in the attempted accomplishment of such common purpose, or that such shooting was done by Sam Hickam in the attempted accomplishment of a purpose in his mind to kill Davenport of which such defendant had knowledge, and that she did some act in furtherance of the attempted accomplishment of such purpose, and a proper instruction on this branch of the case ought to have been given.”

The part I put in italics states the principle applicable. One cannot be convicted as aider and abettor without a guilty principal. In State v. Baker, 297 Mo. 249, the defendant was charged with secretly burying a child to conceal the birth thereof, contrary to statute. The court said (l. c. 252):

“If appellant be punished under the facts in this case, it must be because her offense is within the scope of Section 3687, Revised Statutes 1919, as accessory before the fact. . . . To convict one as an accessory, you must have a principal; conversely, without principal there is no accessory.

That was concurred in by all of the judges of Division Two.

The case of State v. Hayes, 105 Mo. 76, is where the defendant proposed to one Hill the burglary of a store house. Hill consented, but notified the authorities. The two went together to the building, defendant raised the window and assisted Hill in getting into the building. Hill handed out a piece of bacon. This court said (l. c. 80):

“The trial court told the jury in this instruction that defendant was guilty of burglary; if he, with a felonious intent, assisted and aided Hill to enter the building, notwithstanding Hill himself may have had no such intent. In this we think the court erred. One cannot read this record without being convinced beyond a reasonable doubt that Hill did not enter the warehouse with intent to steal.”

And at page 81:

“The act of Hill, however, was by the instruction of the court imputed to defendant. This act, according to the theory of the instructions, so far as Hill was concerned, was not a criminal act, but when it was imputed to defendant it became criminal, because of the latter’s felonious intent. This would probably be true if Hill had acted under the control and compulsion of defendant, and as his passive and submissive agent.  But he was not a passive agent in this transaction. He was an active one.  He acted of his own volition.  He [319 Mo. Sup.78] [1234] did not raise the window and enter the building with intent to commit crime, but simply to entrap defendant in the commission of crime, and have him captured.

Quoting from a Kansas case, the court added:

“’The act of a detective may, perhaps, be not imputable to the defendant, as there is want of community of motive. The one has a criminal intent, while the other is seeking the discovery and punishment of crime.’”

The court then cites authorities and reasons at length upon the principle, too long to quote here.

The effect of the above authorities is that, in order to convict one  as accessory before the fact of any crime, the criminal intent must be in the minds of both the accessory and the principal, and followed' by the overt act in the commission or attempted commission of the crime.

II.

But it is argued that the acts done by the defendant Davis, in this case, were of themselves an attempt to commit murder, independent of any act or intent on the part of Dill, his supposed agent.

Counsel for the State in his argument suggests that it is an indictable offense at common law to counsel and solicit another to commit a felony, and that, under the statute, becomes an attempt to commit the felony. True enough that is an, offense, at common law. [16 C. J. 117.] It is also an offense at common law to attempt to commit a crime. [16 C. J. 111-113.] Likewise it is an offense at common law to become accessory before the fact to the commission of a crime. [16 C. J. 119.] The common law recognizes these three distinct offenses.  The Attorney-General cites the case of Commonwealth v. Randolph, 146 Pa. St. 83, in support of his position. The defendant in that case was convicted of soliciting another to commit a crime at all.  That was charged as a distinct offense in itself. The court cites numerous cases in support of the position that soliciting another to commit a crime at all. The opinion cites, among others, the case of Stabler v. Commonwealth, 95 Pa. St. 318, reported in 40 Am. Rep. 653. The indictment there was in six counts, on two of which defendant was tried, the first and the sixth. The first charged a felonious attempt to poison one Waring with intent to commit the crime of murder.  The sixth charged that the defendant wickedly solicited one Neyer to administer the poison to Waring. The evidence shows that the defendant solicited Neyer to put poison in Waring's spring, so that the latter and his family would be poisoned, and offered him a reward for so doing.  He handed Neyer the poison and directed him how to place it. Neyer, however, refused to carry out the scheme.  The defendant was convicted on [1235] both counts. On appeal it was held that he was not guilty on the first count of attempt to murder, but he was rightly convicted on the sixth count for soliciting another to commit the murder. The court says, in speaking of the statute on the subject (l. c. 654):

“The act recognized and distinguished between intent and attempt. The former indicates the purpose existing in the mind, and the latter an act to be committed.”

And further:

“In the present case it 'is contended that putting the poison into the pocket of the witness was an act sufficient to constitute the attempt, if Stabler expected and believed it would be used as he had requested.”

And further commenting on the facts, the court said (l. c. 655):

"If, however, it was actually delivered with that intent, we do not think it constituted an attempt to murder under the eighty-second section of the Act of March 31, 1860.”

That section, similar to ours, defined an attempt to commit a crime. The court then cites cases showing the distinction between an attempt to commit a crime and soliciting another to do it. Thus, the Pennsylvania courts, upon which the State relies, destroy the State’s position.

Hicks v. Commonwealth, 86 Va. 223, 19 Am. St. 891, is where the accused, charged with attempt to murder, purchased poison and solicited one L to put it in the “Old Man’s coffee," the old man being the intended victim. L had no intention to administer the poison.  It was held that it was not an attempt to murder; that mere preparation did not constitute an attempt. The court said (1. c. 896):

"'Merely soliciting someone to do an act is an attempt to do that act’ (citing an old case).

“‘In that case the agent was actually given money for his services, and immediately proceeded with the poison to the house of the intended victim; but upon his arrival there, he gave up the poison to them, and told them all about it. The prisoners were convicted but at the ensuing term the case was considered by the fifteen judges who held the conviction wrong.’” 

And further.

“Here, undoubtedly, there was an intent to commit murder, but the acts done do not amount to anything more than the mere arrangement of the proposed measures for its commission."

That case and this are as like as two peas.

In the case of Hall v. State, 52 Tex. Crim. l. c. 253, the appellant was charged as an accomplice in a burglary, and the court said:

“It is not a violation of the law with reference to the conviction of an accomplice that he simply furnish the means, advised and aided; it would be no offense unless the offense in contemplation was subsequently committed."

[1236] Not a case has been cited, nor can one be found, I think, which would support the conviction in this case.

State v. Mitchell, 170 Mo. 633, is cited as one in point. There the defendant actually fired the shot with intent to kill, at the spot where he thought the victim lay. That was an overt act in pursuance of the attempt by the defendant himself.

In the argument we were directed to the heinous nature of the crime, where one, who is too cowardly to commit the act himself, employs someone else to do it. That is a serious offense, and no doubt many a crime is committed by a hired agent, but the master minds in the criminal world from whom that danger comes never make mistakes such as Davis made. They know their men and they employ real killers. Davis was not only a coward, but a fool. The entire plan and preparation showed the want of judgment and discretion. He has no criminal record, and he is not a dangerous criminal. If every person who, at some time in his or her life, entertained a criminal impulse, was put in jail, a small minority of us would be at large.

It is said further that the defendant in this case did all he could do in furtherance of the plan to have this murder committed. This is incorrect. He failed of many things he might have done—things, absolutely necessary for the commission of the crime or its attempt. He might have used the weapon himself. He might have used sense enough to solicit a real criminal to commit the deed. He might have taken precaution to find out who the man was that he employed for the purpose. But blindly he picked up the! first man who offered his services.

The upshot of the matter is this: The defendant had no intention to kill; that is, to commit the murder himself. Dill had no intention to kill. There can be no crime without a criminal intent, and neither the defendant nor his agent entertained an intent to do the deed. The defendant intended that Dill should do it, but that intent cannot be connected with an act of another which was neither done nor contemplated by the other. The intent to commit the crime must be in the mind of the man who is to commit the crime.

Of course, the defendant was guilty of soliciting another to commit the murder; a serious crime, but he was not charged with that nor convicted of that offense. We must determine eases upon the law, as it is written, and as it has been adjudged for generations.

The judgment is properly reversed.

WALKER, C. J., (dissenting).—The charge against the defendant was based upon the following statute,  so far as the same is definitory of the offense: “Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any [1237] act toward the commission of such offense, but shall fail in the perpetration thereof, or shall be prevented or intercepted in executing the same, upon conviction thereof, shall in cases where no provision is made by law for the punishment of such  attempt, be punished as follows:” (this is followed by the punishment prescribed, part of Section 3683, Revised Statutes 1919).

"An attempt,” as this court said in construing this statute, "is a deliberate crime which is begun, but through circumstances independent of the will the action is left unfinished. It is such an intentional, preliminary guilty act as will apparently result, in the usual course of natural events, if hot hindered by causes outside of the actor's will, in a deliberate crime. If the means are adapted to the end and there is an apparent physical ability to complete the attempt on the part of the attempter,  then the case may be fairly made out." [State v. Bobbitt, 228 Mo. l. c. 264; State v. Mitchell, 170 Mo. 633; State v. Montgomery, 63 Mo. l. c. 298.] The presence of the essentials necessary to constitute the crime are, threefold: (1) the intent; (2) the doing of acts toward the commission of the crime; and (3) the failure of their consummation. [State v. Fraker, 148 Mo. l. c. 162.] An intent may be inferred from all of the facts and circumstances in a given case. This rule finds its genesis in the fact that intent involves the purpose with which an act is done and requires an exercise of the will. [State v. Santino, 186 S. W. (Mo.) 976.] Intent, therefore, may be inferred from all of the facts and circumstances in evidence; and a sane man may be held to intend the usual and necessary consequences of his acts; and when he acts in a mariner so as to produce a result prohibited by law, his thus acting may be regarded as proof of his unlawful intent in the absence of evidence to the contrary. Thus the first essential may be said to be established.

In determining whether there is proof of the crime we are authorized in considering the defendant's conduct throughout, from his first proven effort to the moment of his failure—due to no cause of his.

Proof of preparations alone to commit the crime will not, of course, constitute a violation of our statute. Its language renders the distinction clear between mere preparations and acts in attempts to commit crime. The first are out introductory and do not form a part of the offense; the second are constitutive and when shown to have been committed render the accused amenable to the statute. The language of the latter, after prohibiting attempts to commit a crime generally, adds: “or to do any act toward the commission of an offense prohibited by law but shall fail in the perpetration thereof, and shall be prevented in the execution of the same upon conviction, shall be punished,: etc.

[1238] Without limitation it may be said that the defendant did everything within the contemplation of malicious human ingenuity to enable the putative murderer to commit the crime, short of actual participation therein.  He solicited the detective, Dill, to do the killing. In so doing he was guilty of a constitutive act within the terms of the statute. Thus defined the act became overt. [People v. Mills, 178 N.Y. 274, 67, L. R. A. 131.] Despite the contrariety of rulings elsewhere it is the recognized law in this State that the solicitation of another to commit a felony is an act toward its commission, without any other act being done, to warrant a conviction. [State v. Hayes, 78 Mo. l. c. 316.] The evil intent in the mind of the defendant—the existence of which is shown by all of his acts, imparts to the solicitations their criminality. Incidentally it may be said in this connection, that the party solicited may not have acquiesced or intended to share in the crime will not exonerate the defendant. [State v. Hayes, supra.]

I find that our statute was copied from that of New York, where it was held in People v. Bush, 4 Hill, 133, where an accused solicited another to commit the crime of arson and gave him some material for the purpose, that this was sufficient to sustain a conviction, although the person solicited did not intend to commit the offense. A like ruling was made by the Supreme Court of Georgia, whose statute was also modeled upon that of New York, in the case of Griffin v. State, 26 Ga. 493, in which it was said, citing with approval the New York case of People v. Bush, supra, that the fact that the person hired had no. intention to commit the crime made no difference with the criminality of the accused. The intent of the hired could not lessen the crime of the hirer.

In Commonwealth v. Jacobs, 9 Allen (Mass.), 274, Judge GRAY said: "Whenever the law makes one step toward the accomplishment of an unlawful object, with the intent or purpose of accomplishing it, criminal, a person taking the step, with that intent or purpose, and himself capable of doing every act on his part to accomplish that object, cannot protect himself from responsibility by showing that, by reason of some act unknown to him at the time of his criminal attempt, it could not be fully carried into effect in the particular instance.”  In the Jacobs case the defendant was charged with soliciting another to leave the state and enlist elsewhere in military service when the person solicited was not fit to become a soldier.

Recurring to rulings in this jurisdiction construing this statute (Sec. 3683), we find in State v. Sullivan, 110, Mo. App. l. c. 87, a very terse discussion by ELLISON, J., of the construction to be given to solicitations in a case as at bar.  It there said:

“It has been at times suggested that to merely: solicit the unlawful offense was not doing an act, and that the law could not notice a mere [1239] desire unaccompanied by an act. But, manifestly, soliciting is an act. It is a step in the direction of an offense. [State v. Hayes, 78 Mo. l. c. 316; King v. Higgins, 2 East. 5; State v. Avery, 7 Conn. 267; 1 Bishop's Crim. Law, sec. 767.] And so it may, also be said that some of the foregoing cases are for attempts to commit an offense and that they therefore do not apply to a case where there has only been a solicitation; it being contended that a solicitation, is not an attempt to have the offense committed. But it is. For the act of soliciting is an attempt to have the offense committed. Indeed, the case of King v. Higgins, supra, and several others, were cases of solicitation.

“Text-writers have laid down the law that to solicit the commission of an offense was indictable, without noticing any distinction whether the offense solicited was a felony or misdemeanor.  [Bishop on Crim. Law, supra; Wharton on Crim. Law, secs. 179, 1857, 1858; 1 Russell on Crim. Law, 193, 194.] These writers look only to the character of the offense in its evil tendency and not to its technical designation. And so in a case from the Supreme Court of Illinois, much like the present, . . . it was held that, though there was no statute on the subject in that State, yet it was an indictable misdemeanor for an officer to propose to receive a bribe. The court said: ‘According to the well-established principles of the common law, the proposal, to receive the bribe was an act which tended to the prejudice of the community; greatly outraged public decency; was in the highest degree injurious to the public morals; was a gross breach of official duty, and must therefore be regarded as a misdemeanor, for which the party is liable to indictment. It is an offense more serious and corrupting in its tendencies than an ineffectual attempt to bribe. In the one case, the officer spurns the temptation, and maintains his purity and integrity; in the other, he manifests a depravity and dishonesty existing in himself, which, when developed by the proposal take a bribe, if done with a corrupt intent, should be punished; and it would be a slander upon the law to suppose that such conduct cannot be checked by appropriate punishment. [Walsh v. The People, 65 Ill. 58]’”

The proof of defendant’s guilt in the instant case is not limited to solicitations. He and his paramour, the wife of the intended, victim planned and directed with particularity, the time, manner and place of the proposed taking off of her husband. A trip to Chicago was even in contemplation to effect that end when the husband returned home unexpectedly and the scene of the proposed tragedy was shifted to Kansas City. When it was to occur, the defendant had it understood that he was to remain at his home so as to afford a basis for a plea of alibi. There he waited expectantly for, news of the murder. His paramour—but she is not on trial and the vocabulary of scorn and contempt need not be wasted on her connection with the contemplated murder of her husband.

[1240] The chain of proven facts and properly deducible circumstances cannot be otherwise construed than as conclusive of the defendant's guilt. Of what more avail would it have been as proof of his intent or purpose, to have shown that he furnished the detective with the weapon he was to use or the poison or other instrumentality he might employ in committing the murder. The limits of human fancy know no  horizon; but it is difficult to conceive what more the defendant could have done, than he did do, towards the attempt to commit the proposed murder without actually  participating in its commission.

Ample proof of the presence of those essentials required by our rulings, having been adduced to sustain a conviction, the judgment of the trial court should be affirmed.

29 M.J. 679

UNITED STATES

v.

Senior Airman William M. CHURCH, FR United States Air Force.

ACM 27324.

U.S. Air Force Court of Military Review.

Sentence Adjudged 16 Sept. 1988.

Decided 26 Oct. 1989.

Accused, a senior airman in the United States Air Force, Was convicted by general court-martial convened at Grand Forks Air Force Base, North Dakota, Stephen R. Bloss, J., of attempted premeditated murder of his wife, and he appealed. The United States Air Force Court of Military Review, Blommers, J., held that evidence supported conviction, although person whom accused attempted to hire to kill wife was undercover agent and accused argued that his conduct never passed threshold from mere preparation or solicitation to attempt to commit offense because there was no dangerous proximity to success of planned murder.

Affirmed.

1. Military Justice

There can be no conspiracy when supposed participant merely feigns acquiescence in criminal venture to secure another’s detection and apprehension by proper authorities.

2. Military Justice

Evidence supported accused’s conviction for attempted premeditated murder of his Wife, although person he attempted to hire to kill Wife was undercover agent and it was claimed accused’s conduct never passed threshold from mere preparation or solicitation to attempt to commit offense because there was no dangerous proximity to success of planned murder; accused obtained services of purported hit man to murder his wife, participated in detailed planning of intended crime, and paid agreed-upon consideration before crime and after he was apprised that crime had occurred. UCMJ, Art. 80, 10 U.S.C.A. § 880; MCM 1984, Pt. IV, H4, subd. c.

3. Military Justice

Variances between attempted murder specification, which alleged that crime occurred at particular Air Force base and alleged dates on or about 25-26 April, and proof of meeting between accused and undercover agent posing as hit man 78 miles from where -base was located and on 22 April, were not fatal variances; companion attempted conspiracy charge that was dismissed alleged offense occurring between 19-22 April at both air base and town in which meeting took place, so accused was not misled so as to affect his ability to adequately prepare for trial and would be fully protected against another prosecution for the same offense.

Appellate Counsel for the Appellant: Colonel Richard F. O'Hair and Major Lynne H. Wetzell.

Appellate Counsel for the United States: Colonel Joe R. Lamport, Lieutenant Colonel Robert E. Giovagnoni and Captain Morris D. Davis.

Before LEWIS, BLOMMERS and KASTL, Appellate Military Judges.

Decision

BLOMMERS, Judge:

[1] Before a general court-martial with members, the appellant, contrary to his pleas, was found guilty of the attempted premeditated murder of his wife in violation of Article 80, UCMJ, 10 U.S.C. 880.^[1] His sentence, as adjudged and approved, extends to a dishonorable discharge, confinement for ten years, forfeiture of all pay and allowances; and reduction to airman basic (E-1). The principal issue raised before us is framed by appellate counsel as follows:

WHETHER THE MILITARY JUDGE ERRED IN DENYING TRIAL DEFENSE COUNSEL’S MOTION FOR A FINDING OF NOT GUILTY OF THE CHARGE AND SPECIFICATION OF ATTEMPTED PREMEDITATED MURDER, AS THE EVIDENCE FAILED TO SHOW ANY ACTS ON THE PART OF THE APPELLANT BEYOND MERE PREPARATION, NOR THAT ANY ACT OF THE APPELLANT TENDED TO EFFECT THE COMMISSION OF THE INTENDED OFFENSE.

Simply stated, it is asserted that the evidence is not sufficient to support findings of guilty of attempted murder. We disagree and affirm. Article 66(c), UCMJ, 10 U.S.C. 866(c); United States v. Turner, 25 M.J. 324 (C.M.A.1987).

This case involves contracting out for the commission of a crime. As appellate counsel note, the facts of this case present an issue of first impression for the military appellate courts in applying principles of law relating to “attempt" crimes. The specification in question alleges that the appellant “did, at Grand Forks Air Force Base, North Dakota, from on or about 25 April 1988 to on or about 26 April 1988, attempt to, with premeditation, murder [his wife] by procuring, assisting, and counseling Nicholas J. Karnezis to commit, for payment in United States currency, the premeditated murder of the said [wife]." In order to be found guilty of an attempt, the evidence must establish “a specific intent to commit the offense accompanied by an overt act which directly tends to accomplish the unlawful purpose.” MCM, Part IV, para. 4c(1) (1984). The act in question must amount to more than mere preparation to commit the offense.^[2] A solicitation to commit an offense in violation of Article 134, UCMJ, 10 U.S.C. 934, on the other hand, is committed if one counsels or advises another to commit an offense with the specific intent that the offense solicited be committed. No overt act directly tending to accomplish the unlawful purpose is required. During oral argument, appellate defense counsel conceded that the appellant is guilty of soliciting another to commit murder, but argued forcefully that he was not guilty of attempted murder because no act beyond mere preparation was proven.^[3] To resolve this matter, it will be necessary to review the evidence of record in some detail.

Facts

The appellant and his wife were married in 1985, and a son was born of this union about a year later. In 1987, they experienced marital difficulties which eventually led to their separation. By an order dated 5 October 1987, the local district court awarded custody of the child to the appellant’s wife, and shortly thereafter she returned with the child to her home in Michigan. The appellant loved his son and desired to regain custody of him, but began to realize it was unlikely he would be able to do so through the courts.

Sometime between Thanksgiving and Christmas of 1987, the appellant, a security policeman, asked Senior Airman Mohon, a former co-worker, if he knew anyone the appellant could hire to kill his wife. Mohon did not take the appellant seriously. Sometime January 1988, Senior Airman Kowalkowski, a co-worker, and the appellant were talking about the appellants, marital difficulties, and the appellant commented that he would be better off if was dead. Shortly thereafter, during another conversation, the appellant asked Kowalkowski if he had any friends from a big city. Kowalkowski did not take the appellant seriously either.

On about 31 March 1988, Airman Meyer, another co-worker, was talking with the appellant in the hallway of their dormitory. The appellant said that since. Meyer was from a big city, he wondered if Meyer knew anybody who could do a job for him. Knowing the appellant’s family situation, Meyer believed the appellant was talking about getting someone to kill his wife so he could regain custody of his son. Meyer replied that he would check around and make some calls, but really did not take the appellant seriously. A couple of days later, he made one call to a friend back in New York in the appellant’s presence. He asked his friend, “Do you know anybody that you could find to eliminate this guy’s wife so he can get custody of his kid?” The appellant gave no indication he had just been kidding around or joking when Meyer asked this question. On another occasion when Meyer was present, the appellant made a rough drawing of the residence where his wife was living and explained how easily someone could gain access to it. On about 6 April, Meyer went with the appellant to the city of Grand Forks to pick up tax returns. During the trip, the appellant said he was expecting an $800.00 refund and implied it could be used to pay for his wife’s killing.

On 7 April 1988, Sergeant Skyberg, a co-worker and friend, received a message that the appellant wanted to talk to him. Skyberg phoned the appellant and asked him what he wanted to talk about. The appellant indicated that the matter was too private to discuss over the phone, and Skyberg arranged to meet the appellant at his dormitory room. After Skyberg arrived, the appellant asked him if he knew anyone “who could . . . [the appellant gestured with his hand, his fingers arranged as if to simulate a gun] his wife.” The appellant indicated that he felt that was the only way he could get custody of his son. He said he was getting out of the service in about a month, and wanted “it” done before he left so he would have a good alibi as to where he was at the time. Skyberg believed the appellant was serious. A few other airmen, including Airman Meyer, entered the room and they changed the subject of conversation. After all had left except Skyberg and Meyer, the conversation about the appellant’s wife was resumed. The appellant talked in more detail about the location of his wife’s home in Michigan, and a hotel close by where someone doing the job could stay. He indicated her house was up for sale, so someone could easily get inside by posing as a prospective buyer. He said he could provide a detailed map of the area, and would be able to raise “a few grand” for the job. The appellant said this was not a spur of the moment thing, but some» thing he had been thinking about for the last few months. Meyer indicated that he had tried to contact someone on the appellant’s behalf. After leaving the appellant’s room, Skyberg and Meyer discussed the matter further and decided to contact the Office of Special Investigations (OSI).

After talking with Skyberg and Meyer the following day, OSI decided to open up an investigation and attempt to place an undercover agent in the role of a hit man. Meyer agreed to assist them by introducing the appellant to the undercover agent. On 15 April 1988, Meyer was instructed to contact the appellant and tell him that his [Meyer’s] friend in New York had found someone to do the job if the appellant was still interested. The appellant indicated he was, and Meyer told him an individual by the name of “Nick” (in reality, Special Agent Nicholas J. Karnezis) would call him on the evening of 19 April. The appellant subsequently borrowed $400.00 from Meyer (money provided by OSI) to help pay the hit man.

Nick called the appellant as planned, and indicated they had some business to discuss. Nick related that he would need a picture of the appellant’s wife, a sketch of the house, and maps of the local area in Michigan. The appellant said he already had the picture and a detailed diagram of the residence, and that he could get the maps. Nick indicated he would need $500.00 up front for expenses. It Was agreed they would meet at the Holiday Inn in Fargo, North Dakota on 22 April 1988 and that the appellant would wear an Ohio State football jacket and carry a Time magazine so Nick could recognize him.

The meeting occurred as planned. After some discussion about his family situation the appellant indicated he wanted his Wife killed. The appellant said he had brought the things Nick had asked for and had $1,100.00 with him, $500.00 for the job, plus $600.00 for air fare. After discussing the location of the appellant’s residence, Nick simulated a phone call to an airline ticket agent, booking a flight to Marquette, Michigan. The appellant provided Nick„With pictures of his Wife and son; a spiral notebook containing a list of people who lived in the house and hours they were away from home, two detailed diagrams of the house and surrounding area, and directions on how to get to the house from the Marquette airport; a Rand-McNally road atlas with two different routes from the airport to the house highlighted; and, a local Marquette area phone book, which included the phone number at his Wife’s home. They discussed the schedules of the residents, the vehicles they drove, Where the dogs were located, closets in the house where guns were kept, and other details of the planned murder. They settled on a total price of $2,100.00 if the job went as easily as the appellant indicated it should. The appellant gave Nick the $1,100.00 he had brought with him. Nick asked for ideas on how the killing should be done, and the appellant said it seemed to him the easiest way was to make it look like a robbery and that his wife got in the way. As to the weapon, he indicated a knife or gun could be used. Nick showed the appellant a .22 caliber semi-automatic pistol, equipped with a silencer, that he had in his brief case. Nick asked the appellant if he had any “special requests” as to how he wanted it done. The appellant replied “one in her head and one in her (using a slang term for a private part of the female anatomy). Nick expressed concern about the appellant’s wife’s grandfather, who also lived in the house and did not work. The appellant indicated there should be no witnesses, and that if the grandfather got in the way Nick should take care of him too. The appellant indicated he wanted the job done while he was at work S0 he would be very visible. He provided Nick with his work and dormitory phone numbers, and Nick said he would be in touch, and for the appellant to expect a call around 8:00 to 8:30

Nick called the appellant from K.I. Sawyer Air Force Base, Michigan (a base located close to Marquette) on 24 April. He told the appellant that his wife had moved, and that the job would cost more, another $500.00, since he would have to locate where she was living. The appellant agreed to pay the additional amount. That evening the appellant asked Airman Meyer to call directory assistance in Michigan for him to find out his wife’s new phone number. Meyer did, and gave the new number to the appellant. (A fair inference is that the appellant obtained the number so he could provide it to Nick if Nick was unable to locate the appellant’s wife on his own.) Nick called again the following day, indicating he had located the appellant’s wife and that the job would be done between then and the following morning. The appellant said that was fine. He indicated he had the other $1,000.00, but that it would take a little longer to come up with the additional $500.00.

On the morning of 26 April, the appellant was notified of his wife’s death by his unit commander. According to Airman Meyer, the appellant told him that everyone was sympathetic and that the appellant put on “a Class A act,” including crying and laying down on the first sergeant’s couch. Later that day, the appellant received a message to meet Nick down in Fargo. He proceeded to the Holiday Inn in Fargo. He told Nick he had received notification of his wife’s death. Nick said: “You mean you got the word already!” And the appellant replied: “You do good work.” Nick showed the appellant a picture of his wife laying on the floor with what appeared to be two bullet wounds, one in her head and another in her neck. The appellant confirmed that it was his Wife. After some further discussion, he gave Nick $1,000.00. At that point Nick identified himself as a government agent and apprehended the appellant. The two meetings between- the appellant and Nick at the Holiday Inn were both video and audio tape recorded (the tapes were admitted in evidence at trial). 

An Attempt or Only a Solicitation?

[2] On the appellant’s behalf, it is forcefully argued that his conduct never passed the threshold from mere preparation (i.e., a solicitation) to an attempt to commit the offense because there was no “dangerous proximity” to success of the planned murder. See Hyde v. United States, 225 U.S. 347, 388, 32 S.Ct. 793, 810, 56 L.Ed. 1114, 1134 (1911) (Justice Holmes dissenting); Perkins, Criminal Law 572 (2d Ed.1969). Since there is little military authority on point, appellate counsel rely principally on state court approaches to this dilemma.^[4] See, e.g., State v. Otto, 102 Idaho 250, 629 P.2d 646 (1981); Hobbs v. State, 548 S.W.2d 884 (Tex.Ct.App.1977); Johnson v. Sheriff Clark County, 91 Nev. 161, 532 P.2d 1037 (1975); Hutchinson v. State, 315 So.2d 546 (Fla.App.1975); People v. Adami, 36 Cal. App.3d 452, 111 Cal.Rptr. 544 (1973); Smith v. State, 279 So.2d 652 (Miss.1973); State v. Miller, 252 A.2d 321 (Me.1969); State v. Laurie, 12 S.W.2d 43 (Mo.1928); State v. Davis, 319 Mo. 1222, 6 S.W.2d 609 (1928). In various factual situations involving “contracting out” for crimes, these courts held that the evidence only established mere acts of preparation not leading directly or proximately to consummation of the intended crime.^[5] For example, in Adami the Court concluded that “the contemplated murder would not have resulted in the usual course of natural events since neither the ‘agent’ nor the solicitor [defendant] did any unequivocal overt act which can be said to be a commencement of the commission of the intended crime.” People v. Adami, 111 Ca1.Rptr. at 548.

Typical, and perhaps closest factually to the present appellant’s case, are the companion cases of Davis and Lourie. They involved a plan hatched by two lovers to murder the woman’s husband (Edmon Lourie) so that they could get his life insurance amounting to $66,000.00. The parties resided in Kansas City, Missouri. In furtherance of their plan, Davis engaged a man named Leverton to find an ex­convict who would commit the murder for hire. However, Leverton disclosed the plot to the police. Thereafter, several meetings were held between Davis, Leverton and an undercover police officer, Dill. It was agreed that Dill would kill Mr. Lourie for $600.00 and diamonds valued at about $3,000.00 owned by the Lourie’s. Also, arrangements were made for Dill to meet Mrs. Lourie so they would be able to recognize each other. It was decided that the contemplated assault would occur in Chicago, where Mr. Lourie had gone on business. Davis provided Dill a map showing where Mr. Lourie could be located and two photos of him. If Dill could not locate him, Mrs. Lourie would also travel to Chicago to assist. However, this part of the plan was interrupted when Mr. Lourie returned early from his trip. It was then decided that Mrs. Lourie would persuade her husband to go out for a night on the town, and that they would leave their home at 8:00 p.m. on a certain date. Mrs. Lourie was to have the diamonds on her person so it would appear that robbery was the motive for the crime. She would be “mussed up”, and then faint, permitting Dill time to escape~ On the evening in question, Dill, accompanied by three other police officers, proceeded to the Lourie residence as planned. The Lourie’s were dressed and ready to leave; Mrs. Lourie had the diamonds on her person. Davis, also as planned, was at home in another part of the city in order to have an alibi. Two of the officers entered the residence and took charge of the Lourie S, while Dill and the other officer proceeded to Davis’ residence and arrested him. The Supreme Court of Missouri concluded:

The employment of Dill as agent to murder Lourie was not tantamount to an attempt. Dill not only had no intention of carrying out the expressed purpose of defendant, but was guilty of no act directly or indirectly moving toward the consummation of the intended crime.  He did nothing more than listen to the plans and solicitations of defendant without intending to act upon them. It was not shown that Dill committed an act that could be construed as an attempt. The arrest of Lourie, his wife, and defendant as detailed in the evidence could not be said to be an act involving the consummation of the crime. (Citations omitted.)

State v. Davis, 6 S.W.2d at 612. The Court adopted the same rationale in its decision in State.v Laurie. The Court acknowledged that the defendants were guilty of soliciting another to commit murder, a crime not charged. (Apparently under Missouri law that offense is not a lesser included offense to murder or attempted murder.)

Not all authority favors the defense position. A few state courts have upheld attempt convictions in cases involving crimes for hire. See, e.g., Braham v. State, 571 P.2d 631 (Alaska 1977), cert. denied 436 U.S. 910, 98 S.Ct. 2246, 56 L.Ed.2d 410 (1978); State v. Gay, 4 Wash.App. 834, 486 P.2d 341 (1971); State v. Mandel, 78 Ariz. 226, 278 P.2d 413 (1954); Stokes v. State, 92 Miss. 415, 46 So. 627 (1908). These cases stand for the proposition that once the intent that a crime be committed is clearly proved, “slight acts” on the part of the solicitor will Support an attempt conviction. For example in Gay, payment by the solicitor was considered a sufficient overt act directed toward commission of the intended crime.

Appellate defense counsel urge that it would be inappropriate to adopt this minority view under military law. Doing so, it is argued, would violate “the very essence of the requirement that a sufficient actus reus be proven before criminal liability will attach.” Perhaps so, because our law requires “a direct movement toward the commission of the offense," and provides that “[s]oliciting another to commit an offense does not constitute an attempt” (though solicitation can be a lesser included offense). MCM, Part IV, para. 4c (1984).^[6]

We are not convinced, however, that military law should extend so far as to hold that a factual situation such as that present in the Davis and Laurie cases will not constitute an attempt to commit a crime. In this regard, we find solace in the reasoning of some of the dissenters in the foregoing cases. In Davis, Chief Justice Walker wrote: “Without limitation it may be said that the defendant did everything within the contemplation of malicious human ingenuity to enable the putative murderer to commit the crime, short of actual participation therein.” State v. Davis, 6 S.W.2d at 616. In State v. Otto (defendant soliciting undercover agent to commit murder, paying him $250.00 up front with promise of larger sum after crime was committed, not sufficient to support conviction of attempted murder), Chief Justice Bakes observed:

[T]he acts here went far beyond an offer of “employment” [a solicitation]. . .. [T]he type of weapon to be utilized and the manner in which the hit was to be made were discussed, an agreement was reached, payment was made, and the defendant completed all necessary steps preliminary to the “hit” being made.

The real question is whether acts of preparation when coupled with intent have reached a point at which they pose a danger to the public so as to be worthy of law’s notice.

Whether a person takes on for himself the task of trying to kill another person, or tries to bring about that killing through hiring another to perform the deed, is in actuality nothing but a matter of personal choice. While the principal is guilty of murder when the contract is performed, an attempt has been made when the bargain is struck…If criminals are going to contract out their services, and if there are persons who will retain those services, there is no reason why the criminal courts should decline to respect those contracts.

State v. Otto, P.2d at 653-654.

To a great extent, resolution of the issue we face is dependent upon the facts of the case. United States v. Stallworth, 543 F.2d 1038, 1039 (2d Cir.1976); 40 Am.Jur.2d 830. We hold that under the circumstances present in the case now before us, the appellant’s conviction of attempted murder can be sustained. We have found no military or federal precedent which we believe would require us to reach the opposite conclusion.

As this Court has recently stated, “a criminal attempt attaches culpability to a state of mind consisting of an accused’s criminal intent and the belief that he is acting in such a manner as to achieve that intent.” United States v. Guevara, 26 M.J. 779, 781 (A.F.C.M.R.1988). In United States v. Byrd, 24 M.J. 286, 290 (C.M.A. 1987), the United States Court of Military Appeals relied upon a test adopted by the United States Court of Appeals for the Second Circuit:

[T]o be guilty of an attempt, a ‘defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime’ and that substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent. United States v. Jackson, 560 F.2d 112, 116 (2d Cir.), cert. denied, 434 U.S. 941, 98 S.Ct. 434, 54 L.Ed.2d 301 (1977); see also United States v. Mandujano, 499 F.2d 370, 376 (5th Cir.1974), cert. denied 419 U.S. 1114, 95 S.Ct. 792, 42 L.Ed.2d 812 (1975); ALI Model Penal Code, Sec. 5.01 (1962).

See also United States v. Stallworth, 543 F.2d 1038 (2d Cir.1976); United States v. Thomas, 13 U.S.C.M.A. 278, 32 C.M.R. 278, 285-286 (1962). The Court of Military Appeals most recently affirmed reliance upon this test in United States v. Hyska, 29 MJ. 122 (C.M.A.1989)~but the Court did not apply the test to the facts of the case as it was decided on other grounds. See also United States v. Presto, 24 M.J. 350 (C.M.A.1987).

In Mandujano, an informant introduced an undercover narcotics agent to the defendant. After some general conversation, the subject turned to drugs. The agent said he was from out of town, and was looking for an ounce sample of heroin to determine the quality of the material in the local area. Mandujano replied that he could get good brown Mexican heroin for $650.00 an ounce. He indicated he had a good contact, but would need the money up front. The agent gave Mandujano $650.00, and he departed. He returned about an hour later, explained that he was unable to locate his contact, and gave the money back to the agent. The Court found that the request for and receipt of the $650.00 from the agent constituted a substantial step toward distribution of heroin.” United States v. Mandujano, 499 F.2d at 379. Thus, the jury’s verdict of guilty of an attempt to distribute heroin in violation of 21 U.S.C. § 846 was upheld. The Court, noting that the statute did not define an “attempt" assessed the case law and concluded that in order to constitute a criminal attempt, the defendant must have (1) acted “with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting,” and, (2) “engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant’s criminal intent.” at 376~377. This test was derived in large part from the Model Penal Code standard.^[7]

United States v. Jackson, supra, involved an attempted bank robbery. The Court examined various approaches taken in an effort to distinguish preparation from attempt, and then affirmed the trial court’s use of the Mandujano test. The Court noted that once criminal intent is established, the key question remaining is “the substantiality of the steps taken and how strongly this corroborates the firmness of [the] obvious criminal intent.” 560 F.2d at 120. This determination is a matter of degree, and a mixed question of law and fact.

As noted above, the Court of Military Appeals applied the Mandujano/Jackson test in United States v. Byrd, supra. Byrd met SP4 Calloway (who was a drug suppression team member, though Byrd did not know this at the time) at the Community Center on Fort Gordon, Georgia. After some general conversation, Byrd mentioned Something about marijuana. Calloway asked Byrd if he could get some marijuana for him. Byrd said he knew someone who could get him a five dollar bag for ten dollars. Byrd attempted to contact a certain taxi cab driver for this purpose, but found out he was not working that day. He told Calloway to meet him at the Community Center the following day. When they met, Calloway was accompanied by an undercover military police investigator who was posing as an individual interested in obtaining drugs. Byrd took them to another location on post and introduced them to the cab driver Byrd knew. The Cab driver told them he could get marijuana for them for ten dollars. The investigator then gave Byrd ten dollars. It was agreed that Byrd would meet the investigator at the Community Center in half an hour with the marijuana. The cab driver then took Byrd to an off­post liquor store where marijuana was sold. The stipulation of fact in this guilty plea case provided: “The accused purchased a bottle of liquor with the money . . . [the investigator] gave him because he was afraid he’d be caught lf he tried bringing marijuana back on post.” During the providence inquiry, Bryd explained that on the way to the liquor store he decided not to purchase any marijuana. He did not want to get a reputation as a drug peddler.

Based upon these facts, the Court of Military Appeals found that Byrd’s guilty plea to attempted distribution of marijuana was improvident. Receipt of $10.00 from the undercover agent and traveling to a liquor store where marijuana could be purchased did not constitute conduct going beyond preparation. The Court concluded:

Riding to the liquor store with the other occupants` of the taxi-cab was not ‘strongly corroborative of the firmness of’ Byrd’s intent to distribute marijuana. The act is simply too ambiguous; and too many other steps remained before the distribution could be consummated.

United States v. Byrd, 24 MJ. at 290. We believe that Byrd’s renunciation of his criminal purpose was an important factor to the outcome in his case. Chief Judge Everett, writing for the Court, discussed the principle of renunciation and the defense of Voluntary abandonment in some detail. Id. at 290-293.

In United States v. Presto, supra, the accused, pursuant to his pleas, was found guilty of the attempted sale of three kilograms of marijuana. He had previously sold over 500 grams of marijuana to two acquaintances, one a confidential source, the other an undercover agent. They asked if he could get them an additional ten kilograms. He agreed to try to do so, but told them he doubted he could get more than two or three kilograms. He contacted the people he had dealt with, indicated they would try to get the ten kilograms. A couple days later he contacted them again, but they did not have it yet. Later that day he was arrested. The Court stated: “Although placing a call to a potential source in order to determine the availability of drugs tends to corroborate appellant’s criminal intent, we are unconvinced that the statutory requirement of ‘more than mere preparation’ has been met.” United States v. Presto, 24 M.J. at 352. The Court relied upon the test adopted in Byrd in reaching this conclusion. In the case now before us, the appellant’s acts far exceed those of the accused in Byrd and Presto.

Conclusion

Applying the test adopted in Byrd and the principles set forth in the Manual (MCM, Part IV, para. 4 (1984)), we are convinced that the trial court’s findings of guilty of the offense of attempted murder should be upheld. See also Article 66(c), UCMJ. The appellant’s conduct in obtaining the services of Nicholas Karnezis to murder his wife, his detailed participation in planning the intended crime, up to advising the agent exactly how he wanted his wife shot, and his payment of the agreed upon consideration, both before the crime was to occur and after he was apprised that it had, constitutes “a substantial step toward commission of the crime,” and establishes the requisite overt act amounting to more than mere preparation. We can envision nothing else the appellant could possibly have done to effect what he believed would be his wife's murder, short of committing the act himself (which is precisely what he did not want to do). As characterized by appellate government counsel during oral argument, the appellant armed a missile (Nick) and fired it off, fully believing it was aimed directly at his intended victim. See United States v. Keenan, 18 U.S.C.M.A. 108, 39 C.M.R. 108, 113 (1969). Or, using an example contained in the Manual: “if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger, A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire.” MCM, Part IV, para. 4c(3) (1984). If we were to accept the reasoning of appellate defense counsel neither appellant nor SA Karnezis ever took any steps or perpetration in dangerous proximity to the commission of the offense planned” because the agent never intended to commit the offense»-no contract for hire criminal scheme could ever be prosecuted as an attempt if the person hired turned out to be a government agent or informant. Cf. United States v. Johnson, 7 U.S.C.M.A. 488, 22 C.M.R. 278, 283 (1957). To place our criminal justice system in this posture defies logic. It is the accused’s criminal intent we are concerned with, not that of the person hired to commit the crime. United States v. Guevara, supra.

Turning to that intent, we find the record replete with evidence establishing “conduct strongly corroborative of the firmness of the defendant’s criminal intent.” The appellant retained whom he believed to be a big city hit man for the purpose of murdering his wife; he paid an agreed upon amount of money up front; he provided photographs, documents and diagrams to facilitate commission of the crime; he helped plan precisely how it would be committed; he indicated the need for an alibi for himself; after being advised that his wife had moved, he agreed to an increase in the contract price and obtained her new telephone number; when notified of her murder through unit channels, he “put on a Class A act;” upon being shown a staged picture of his wife with gun shot wounds, he commended Nick for his “good work,” and paid a further installment on the contract price. The firmness of his intent is clearly established.^[8]

We are convinced beyond a reasonable doubt that the appellant is guilty of attempted murder. We further find the sentence to be appropriate for commission of this crime. Our attention has also been invited to issues raised at trial which centered around the composition of the court panel. We find them to be without merit.  Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); United States v. Smith, 27 M.J. 242, 250 (C.M.A.1988); United States v. Cunningham, 21 M.J. 585 (A.C.M.R.1985), pet. denied, 22 M.J. 275 (C.M.A.1986); United States v. Townsend, 12 M.J. 861 (A.F.C.M.R.1981); Article 25, UCMJ, 10 U.S.C. 825; R.C.M. 502(a)(1), 503(a)(v.

[3] One other matter warrants brief comment. As noted early on in this opinion, the attempted murder specification alleged that the crime occurred “at Grand Forks Air Force Base,” yet the evidence established that the two meetings between the appellant and Nick took place in a motel room in Fargo, North Dakota, a distance of some 78 miles from Grand Forks, North Dakota, where the base is located. Additionally, the dates alleged in the specification were on or about 25-26 April 1988, but the key meeting between Nick and the appellant where plans for this crime were made occurred on 22 April. We do not find these to be fatal variances between pleadings and proof. The companion attempted conspiracy charge dismissed by the military Judge alleged that the offense occurred between 19-22 April 1988 at both Grand Forks Air Force Base and Fargo. Clearly, the appellant was in no Way misled so as to affect his ability to adequately prepare for trial, and he will be fully protected against another prosecution for the same offense. Therefore, there is no prejudice. United States v. Lee, 1 M.J. 15 (C.M.A.1975); United States v. Rath, 27 M.J. 600 (A.C.M. R.1988); United States v. Mendoza, 18 M.J. 576 (A.F.C.M.R.1984).

The findings and sentence are correct in law and fact, and no error prejudicial to the substantial rights of the appellant was committed. Accordingly, the findings of guilty and the sentence are

AFFIRMED.

Senior Judges LEWIS and KASTL concur.

Senior Judge LEWIS took final action on this case prior to his retirement.

[1] He was also charged with attempted conspiracy to commit premeditated murder, but the military judge granted a defense motion to dismiss that offense as being multiplicious with the offense of attempted premeditated murder. We also note that there can be no conspiracy when a supposed participant merely feigns acquiescence in the criminal venture to secure another's detection and apprehension by proper authorities. United States v. LaBossiere, 13 MA. 337, 32 C.M.R. 337 (1962).

[2] Other parts of paragraph 4c, Part IV of the Manual provide the following guidance:

(2) More than preparation. Preparation consists of devising or arranging the means or measures necessary for the commission of the offense. The overt act required goes beyond preparatory steps and is a direct movement toward the commission of the offense. For example, a purchase of matches with the intent to burn a haystack is not an attempt to commit arson, but it is an attempt to commit arson lo applying [sic] a burning match to a haystack, even if no fire results. The overt act need not be the last act essential to the consummation of the offense. For example, an accused could commit an overt act, and then voluntarily decide not to go through with the intended offense. An attempt would nevertheless have been committed, for the Combination of a specific intent to commit an offense, plus the commission of an overt act directly tending to accomplish it, constitutes the offense of attempt. Failure to complete the offense, whatever the cause, is not a defense.

(3) Factual impossibility. A person who purposely engages in conduct which would constitute the offense if the attendant circumstances were as that person believed them to be is guilty of an attempt. For example, if A, without justification or excuse and with intent to kill B, points a gun at B and pulls the trigger. A is guilty of attempt to murder, even though, unknown to A, the gun is defective and will not fire. Similarly, a person who reaches into the pocket of another with the intent to steal that person's billfold is guilty of an attempt to commit larceny, even though the pocket is empty.

(4) Solicitation. Soliciting another to commit an offense does not constitute an attempt

The Analysis to the 1984 Manual indicates that these provisions are based on paragraph 159 of the 1969 Manual. MCM, App. 21, para. 4 at (1984). Paragraph 159 provided in part:

An accused may be guilty of an attempt even though the commission of the intended offense was impossible because of unexpected intervening circumstances or even though the consummation of the intended offense was prevented by a mistake on the part of the accused. The physical impossibility of committing the intended crime does not constitute a defense.

MCM. 1969 (Rev.), para. 159 at 28-7.

[3] Among other punishments, confinement for 20 years is authorized for attempted murder, whereas the period of confinement authorized for soliciting another to commit murder is 5 years. At trial, the parties agreed that solicitation to commit murder was a lesser included offense to the attempt as charged, and the court members were appropriately so instructed.

[4] Our research has revealed only two reported military cases involving a factual situation (contract murder) similar to the one present in this case. United States v. Vanderlip, 28 MJ. 1070 (N.M.C.M.R.l989); United States v. Jones, 14 M.J. 740 (A.F.C.M.R.l982). In both those cases the accused was charged with soliciting another to commit murder, not attempted murder. They are not dispositive of the issue we face. See also United States v. Thomas, 13 U.S.C.M.A. 278. 32 C.M.R. 278 (1962) for an excellent and extensive discussion of the various principles developed by courts and legal scholars in an effort to deal with attempt crimes where impossibility of completion of the substantive crime is involved.

[5] It should be recognized that many of these decisions rest, at least in part, upon interpretation of state statutes.

[6] See Annotation, What Constitutes Attempted Murder. 54 ALR 3d 612 (1974) for an extensive discussion of this subject.

[7] Section 5.01 of the ALI Model Penal Code addresses criminal attempt. It provides in part:

(3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another t0 commit a crime which would establish his complicity under Section 2.06 if the crime were committed by such other person is guilty of an attempt to commit the crime, although the crime is not Committed or attempted by such other person.

Section 2.06 deals with liability for conduit of another.

[8] The defense theory at trial was that Senior Airman Church was a peaceful, happy-go-lucky individual, hurting from a difficult divorce, who fell victim to an OSI machine. His counsel forcefully argued this position on his behalf. “This machine was used lo scare, intimidate, and overwhelm Airman Church lo go along with the plan that was designed and created by the OSI. The situation was induced. They create an offense where there never was one." The military judge provided the members instructions on the defense of entrapment.  By their findings, the jury determined this defense did not exist. We agree.

Jacob W. Heller and Eli Feit for appellant.

Robert M. Morgenthau, District Attorney (Robert M. Pitler and David H. Steiner of counsel), for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, FUCHSBERG and MEYER concur.

[642] GABRIELLI, J.

The present appeal arises out of nonjury trial of a dentist who stands convicted of sexually abusing two female patients while they were under the effects of sedation at defendant's office. A camera, which had been secreted in defendant's treatment room pursuant to a warrant, recorded one of the alleged incidents of sexual abuse. Several issues are raised on appeal, including the propriety of admitting into evidence a video tape of defendant's activities. In affirming defendant's conviction, we hold today that a warrant may issue to authorize the video taping of evidence to be admitted at a subsequent trial, provided certain procedures are followed and certain safeguards are observed.

The defendant, a dentist practicing in Manhattan, was convicted of two counts of sexual abuse in the first degree (Penal Law, § 130.65, subd 2) for allegedly subjecting two female patients to sexual contact while they were "incapable of consent by reason of being physically helpless". [643] The indictment upon which defendant was tried contained three counts of sexual abuse predicated upon the complaints of three of defendant's patients: Susan Hyman, Randi Carson and Dorothy Beineix. Each of the complainants alleged that they were subjected to physical contact of a sexual nature as they were recovering from the effects of sedation administered by defendant.

Susan Hyman first went to defendant's office to have a wisdom tooth extracted. After she expressed her fear that novocaine would not sufficiently deaden her pain, Dr. Teicher offered to use another method. Then, presumably to determine if she would suffer any adverse effects from the administration of a general sedative, he performed several tests on his patient and thereafter injected a fluid into her arm causing her to lose consciousness.

At trial Hyman testified that she awoke from her state of unconsciousness when she heard someone calling her name and felt something was touching her face. She opened her eyes and saw an exposed penis directly in front of her. Closing her eyes again, she reopened them to see a pair of trousers being zipped shut. Defendant then slapped her face, touched her blouse and lifted her from the dental chair. Hyman was still groggy and could not control her arms and legs. Defendant told her to "ventilate" her arms and he then drew her close to him and kissed her. While the patient was still unable to stand, defendant, while supporting her body, moved his hands over her breasts and thighs.

Several days following this encounter Ms. Hyman reported the incident to the police. The police equipped her with a hidden microphone before her next visit to the dentist, but when she questioned defendant about his prior activities he refused to admit that he had sexually assaulted her. He did, however, ask Ms. Hyman to join him at his hotel room. She refused his invitation, agreeing instead to meet with him at a nearby bar. On this next rendezvous Hyman was once more equipped with a recording device, but once again defendant made no admission of illegal conduct.

The police also received a complaint from Randi Carson, who had initially gone to defendant's office for an examination [644] and X rays and later returned for further treatment. As in Ms. Hyman's case, the defendant gave Ms. Carson a drug, which caused her to lose consciousness immediately. When she awakend she was assisted into a recovery room and, while she was resting there and still overcoming the effect of the drug which had been injected, defendant entered the room and closed the door behind him. No one else was present. Defendant at first tried to lift Carson to a standing position, but his efforts were unsuccessful. He then lifted her hand and placed it on his pants directly over his penis. Although she was still weak, Carson testified she was able to pull her hand away. Carson also testified that defendant kissed her during this encounter and made a remark which she understood as a request to perform an act of oral sex. In addition, according to Carson, he repeatedly asked her to meet with him at his hotel room. Later, upon arriving home, Carson noticed that her underwear was wet and that there was a soreness on the left side of her vagina which she had not felt before her visit to the doctor. That evening Carson brought her complaints to the police.

Carson later returned to defendant's office wearing a hidden microphone supplied by the police, but no further acts of sexual abuse were recorded or observed by the patient. After this visit defendant telephoned Carson several times at her home to ask her if he could visit with her. Finally, Ms. Carson again returned to defendant's office with a microphone. In response to her attempts to elicit admissions of sexual abuse from the dentist, however, defendant told her only that the drug he had injected had caused her to imagine the incident of which she later testified.

As a result of these complaints by Hyman and Carson and the unsuccessful efforts of the police to obtain additional incriminating evidence against the dentist, the District Attorney's office obtained a warrant authorizing the police to install a camera in defendant's office to monitor his treatment of patients who had consented to the taping. Pursuant to a prearranged plan, Police Officer Dorothy Beineix then went to defendant's office and made an appointment to [645] have a wisdom tooth extracted at a later date. On the morning of Officer Beineix' appointment, the police entered defendant's office and installed the camera in a ceiling ventilator in one of defendant's examining rooms. The camera, which was focused on the dentist's chair, was connected to a video recorder and was monitored by police officers who were waiting in the basement of the building.

Later that morning, Ms. Beineix returned to defendant's office to keep her appointment. Defendant first checked her pulse and blood pressure and then lifted her blouse to examine her chest with his stethescope. During this preliminary examination he instructed her that if she began to have difficulty breathing she should stand, lift her arms and breathe deeply. Following the examination, defendant administered a drug which caused Beineix to lose consciousness. While Beineix was unconscious defendant extracted her tooth and, at one point during this procedure, lifted her blouse and again examined her bare chest with his stethescope. During this entire period, defendant and Ms. Beineix were alone in the treatment room. As Ms. Beineix began to regain consciousness, defendant asked her to stand and put her arms around him. Since she had no control over her body at this time, Beineix told the doctor that she was unable to stand. Defendant then lifted her out of the dental chair and pulled her towards him. While sitting on a stool in front of the dental chair with Ms. Beineix between his legs, defendant lifted her blouse and began moving his hands across the upper part of her back and around toward her breasts. He then slid both hands down across her back and grabbed her buttocks. While massaging her buttocks in a circular motion he drew her body toward his. All of these actions were recorded on the video tape which was later admitted into evidence.

At this point the officers who were monitoring the video tape in the basement signaled other officers to arrest defendant. Detective Brech and Investigator Dadona were the first to enter the treatment room. Dadona testified at trial that when he first opened the door he observed that defendant's hands were on Ms. Beineix' sides, and that his thumbs were massaging the nipples of her breasts.

[646] At his subsequent trial defendant was convicted of two counts of sexual abuse in the first degree for the acts committed upon complainants Carson and Beineix. The count involving the complaint of Susan Hyman was dismissed, however, because the court found that defendant's guilt had not been established beyond a reasonable doubt. A divided Appellate Division affirmed defendant's conviction on both counts, and leave to appeal to this court was thereafter granted. Defendant now attacks the judgment of conviction on several grounds.

Defendant first contests his conviction on the count concerning the Carson incident on the ground that the evidence at trial was insufficient, as a matter of law, to establish his guilt. The statute under which defendant was convicted provides that a person is guilty of sexual abuse in the first degree when he subjects another person to sexual contact "[w]hen the other person is incapable of consent by reason of being physically helpless" (Penal Law, § 130.65, subd 2). Sexual contact is defined in the Penal Law as "any touching of the sexual or other intimate parts of a person not married to the actor for the purpose of gratifying the sexual desire of either party" (Penal Law, § 130.00, subd 3). Defendant claims that the evidence at trial was insufficient to establish that Ms. Carson was incapable of consenting to the touching and that there was no evidence to establish that this touching was for sexual gratification. Neither of these claims is supported by the record.

Carson was heavily sedated at the time the initial touching occurred and, as a consequence, she was in an extremely weakened condition. Thus, although she had enough control over her body to pull her hand away after defendant had placed it against his penis, the trier of fact was entitled to infer that she lacked capacity to consent to the original touching because of her generally weakened condition. Furthermore, we find defendant's contention that the touching was too fleeting to establish the element of sexual gratification to be frivolous. The statute does not require that actual gratification occur, but only that the touching be for that purpose. Defendant's act of placing his patient's hand [647] against his covered penis was more than sufficient to permit a trier of fact to find that the purpose of this act was sexual gratification.

Defendant also argues that even if the element of sexual gratification and the victim's incapacity were established, his act of placing Carson's hand against his genital area could not possibly constitute the crime of sexual abuse, since the statute proscribes only the act of a defendant who touches the intimate parts of his victim and not the act of a person who places his victim's hand against his own intimate parts. As we have held, this argument must be rejected because it requires an overly restrictive and improper reading of the statutory language (see People v Ditta, 52 N.Y.2d 657 [decided herewith]). The common-law policy that a penal provision should be strictly construed has been expressly abolished by the Legislature; instead penal statutes are to be interpreted "according to the fair import of their terms to promote justice and effect the objects of the law" (Penal Law, § 5.00) and are not to be given hypertechnical or strained interpretations (People v Ditta, supra, citing People v Sansanese, 17 N.Y.2d 302, 306; People v Wood, 8 N.Y.2d 48, 51).

Addressing the other count upon which defendant was convicted, that involving the sexual abuse of Dorothy Beineix, defendant once more challenges the sufficiency of the evidence, and also asserts that, for various reasons, the introduction into evidence of a video tape of his actions relating to the Beineix incident was improper. For reasons which follow we also uphold defendant's conviction under this count of the indictment.

The evidence upon which the People's case was built consisted primarily of the video tape of defendant's actions, the testimony of Inspector Dadona and Dorothy Beineix and, finally, the testimony of an expert witness who attempted to refute defendant's claim that his actions were medically necessary. The camera which recorded defendant's activities was positioned in such a way as to give a view overlooking the dental chair and a portion of the room. The relevant portion of the video tape revealed that after defendant had completed the extraction of Beineix' tooth, [648] he lifted his patient from the dental chair and placed her between his legs. At this moment defendant was sitting atop a stool and supporting Beineix in a standing position. It could readily be inferred from a viewing of the tape that the patient had no control over her body at this point. Defendant then lifted Beineix' blouse and moved his hands across her back. Although, because of the camera angle, it cannot be determined from the tape whether defendant actually placed his hands upon Ms. Beineix' breasts, the tape does reveal that he massaged her buttocks with both hands and pulled her toward his pelvic region. In addition to the video tape, the People also produced Inspector Dadona, who entered the treatment room at the signal of the officers monitoring the video tape and was therefore able to give eyewitness testimony of what transpired. He testified that when he first entered the office he observed defendant holding Beineix by her sides and massaging the nipples of her breasts with his thumbs. Although Beineix testified at trial that she could not recall if defendant had massaged her breasts, she was able to recall that he moved his hands across her body and down to her buttocks, causing her to become very frightened.

Defendant first contends that there was no proof that Beineix was incapable of consent by reason of being physically helpless. Noting that when he first told her to stand she responded that she was unable to do so, defendant argues that the crime of sexual abuse was not made out because there was no proof that Beineix could not communicate her unwillingness to submit to the subsequent touching. She did, however, testify that she had no control over her body, although she was mentally aware. As the People assert, simply because Beineix was unable to respond to defendant's direct command to stand does not prove, as a matter of law, that she was able to protest every subtle movement of his hand across her flaccid body. The People's medical expert testified at trial that when a patient is raised to a standing position, as in this case, there may be a decrease in the cerebral blood flow which could result in dizziness or even unconsciousness. In addition, the doctor testified that this effect is merely compounded by the application [649] of chest compression. The state of the victim's physical helplessness at any given moment is largely a question of fact which, in view of this and other testimony, we may not question upon this record. Furthermore, we reject the notion that the victim's status as a police decoy resulted in implicit consent to the physical touching because, as defendant claims, she voluntarily placed herself in a position to incur this abuse. Her consent to acting as a police decoy is not equivalent to a consent to a touching of her intimate parts, which she was physically incapable of giving at the time of the illegal activity.

Defendant also asserts that there was insufficient proof that any improper touching occurred because the tape was inconclusive on this point and, further, because the testimony of Inspector Dadona was not worthy of belief. The visual material on the tape, however, did not serve to disprove, on the contrary was consistent with, the conclusion that an unlawful touching occurred, even though the camera angle precluded an unobstructed view of all of defendant's activities. And, inasmuch as Inspector Dadona's testimony was not, as a matter of law, incredible, the trier of fact was entitled to consider his testimony as direct evidence that the described touching actually occurred.

Finally, defendant attacks the sufficiency of this evidence by asserting that the People have failed to prove, beyond a reasonable doubt, that the touching of Beineix was not performed pursuant to a valid medical procedure. Indeed, throughout the course of this litigation defendant's position has been that the actions which he took were part of a necessary medical treatment to bring Beineix out of a state of respiratory distress through the application of pressure on her ribcage. In support of these assertions defendant produced two experts at trial who indicated that the actions depicted on the tape could be a form of resuscitory technique. Interestingly, they also indicated, however, that this technique was neither taught nor recommended, that it was unknown to them and, in fact, would probably be employed only by a minimally trained practitioner. Moreover, the People produced an expert witness who testified in substance that the tape reveals that Beineix was not in need [650] of respiratory assistance and that, even if she were, the method of resuscitation employed by defendant would in fact be detrimental to his patient rather than helpful. In light of this evidence the trier of fact had more than ample basis for rejecting defendant's contention that his actions were dictated by any claimed medical necessity.

Defendant's next assertions go not to the sufficiency of the evidence at trial, but to the propriety of permitting the video tape of his activities involving Ms. Beineix to be introduced into evidence. This matter presents questions of first impression before this court.

Defendant's initial contention is that Supreme Court had no power to issue a warrant authorizing the type of surveillance which took place in this case. There is, of course, no doubt that the Supreme Court had the power to authorize the aural recording of the events in defendant's office. The authority of a court to permit aural electronic surveillance is derived from CPL article 700. This article deals with the use of eavesdropping warrants, and defines eavesdropping as wiretapping or mechanical overhearing of a conversation (CPL 700.05, subd 1). Defendant, however, argues that article 700, by its express terms, may not be read as conferring on the courts the power to authorize video electronic surveillance.

Initially, we note our agreement with defendant's contention that CPL article 700 does not apply to video surveillance.^[1] This article applies only to eavesdropping, which is defined as wiretapping or mechanical overhearing of a [651] conversation (CPL 700.05, subd 1). The statutory language is directed toward the aural acquisition of information, and does not mention the acquisition of visual images.

Nevertheless, we believe that the warrant which permitted video surveillance in this case was valid, since it was authorized by the provisions of CPL article 690. CPL 690.10 (subd 4) provides that "[p]ersonal property is subject to seizure pursuant to a search warrant if there is reasonable cause to believe that it * * * [c]onstitutes evidence or tends to demonstrate that an offense was committed or that a particular person participated in the commission of an offense". Defendant maintains that this statute authorizes only the seizure of tangible property and does not permit the seizure of an intangible visual image secured by a video recording. We reject this interpretation.

In People v Abruzzi (52 AD2d 499, affd on opn below 42 N.Y.2d 813, cert den 434 US 921), the court reversed the conviction of a doctor who had been convicted for certain acts of sexual misconduct largely upon the testimony of a police officer who had observed defendant's actions while perched on a ladder outside the doctor's window. The Abruzzi court held that the defendant's motion to suppress this evidence should have been granted because it was procured without the authorization of a warrant. Implicit in this holding is the premise that a proper warrant may issue to permit the seizure that results from obtaining visual observations of a crime in progress in a private place. Similarly, in United States v New York Tel. Co. (434 US 159), the Supreme Court had occasion to determine if rule 41 of the Federal Rules of Criminal Procedure, which closely parallels the language of CPL 690.10 (subd 4), authorizes the issuance of a warrant to seize intangible evidence. One of the issues in that case was whether a Federal District Court could issue a warrant authorizing the use of a pen register.^[2] The court determined that rule 41 is sufficiently [652] broad to include seizures of intangible items such as dial impulses recorded by these devices, and also noted that in Katz v United States (389 US 347) the court had held that rule 41 was sufficiently flexible to include the power to authorize the seizure of conversations. We believe that the similarity in the wording of rule 41 and CPL article 690 is sufficient to permit analogy. Accordingly, we conclude that the court in the instant case was authorized under CPL article 690 to issue a warrant for the seizure of intangible visual images in defendant's office.

Defendant also contends that even if such a warrant is authorized under the CPL, the warrant in this case must nevertheless fall because it did not comply with the provision of title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968 (US Code, tit 18, §§ 2510-2520). This is based upon the assumptions that title III applies to the area of visual electronic surveillance and that this provision pre-empts State law. Although we have previously held that title III does indeed pre-empt State law in the area of electronic surveillance (People v Shapiro, 50 N.Y.2d 747), this fact is unavailing in the present case, since title III does not apply to the field of video electronic surveillance and indeed, does not prohibit the type of surveillance here employed.^[3]

Title III, also often referred to as the Federal wiretapping statute, prescribes the procedure for securing judicial authority to intercept wire or oral communications in the investigation of specified serious offenses. Similar to the [653] provision of CPL article 700, which was drafted to conform to the provisions of the Federal act (see Denzer, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL art 700, p 243), title III deals only in the aural acquisition of the contents of any wire or oral communication. As the language and legislative history of that statute makes clear, it was never intended to address the use of video surveillance equipment (see Carr, Electronic Surveillance, § 3.08, p 124; Senate Report No. 1097, 90th Cong, 2d Sess, US Code Cong & Admin News, 1968, p 2178).^[4]

Defendant makes one final argument concerning the video tape evidence which deserves attention. He maintains that the use of visual surveillance is so intrusive that any act of this nature should be deemed unreasonable per se under the Fourth Amendment. While we agree with defendant's concern over the high degree of intrusiveness that is inherent in this form of surveillance, we cannot agree that such activities are per se unreasonable and must be prohibited under all circumstances. Certainly the Orwellian overtones involved in this activity demand that close scrutiny be given to any application for a warrant permitting video electronic surveillance. Nevertheless, the Fourth Amendment does not mandate an absolute ban on video surveillance any more than it mandates a total proscription on electronic eavesdropping. Indeed, there may be situations such as the present one where the intrusion resulting from such surveillance is warranted because of the State's high interest in gathering evidence of criminality and its inability to achieve this goal through less intrusive means.

Although there are at present no significant statutory limitations in the field of video electronic surveillance, we are not completely without guidance in this area. In Berger v New York (388 US 41) and Katz v United States (389 US 347, supra), both of which predated the advent of title III in the area of electronic eavesdropping, the Supreme [654] Court set forth the minimum constitutional standards governing the use of aural electronic surveillance. Because of the substantial similarities between this form of surveillance and the video electronic surveillance which took place in this case, we believe that the standards announced in Berger and Katz are applicable with equal force to the present situation. And, contrary to defendant's assertions, we believe that these constitutional standards were here satisfied.

The first requirement for a warrant authorizing video electronic surveillance, as with any warrant, is that there be a showing of probable cause. In situations involving this form of search, there must be probable cause to believe that a particularly described person is committing, has committed, or is about to commit a crime, probable cause to believe that the place where the activity is to be intercepted is being used or is about to be used in connection with the commission of the crime by that described person, and also probable cause to believe that a particular activity related to that crime will be observed through the use of video electronic surveillance (see Berger v New York, supra; cf. CPL 700.15, subds 2, 3, 5). Such probable cause was clearly established by the affidavit offered by the District Attorney in support of his application for a warrant, which fully set forth the facts leading up to the Beineix incident.

The Constitution also requires particularization in the warrant. Specifically, the Fourth Amendment commands that the warrant must particularly describe "the place to be searched, and the * * * things to be seized". In the area of video electronic surveillance, as in the area of electronic eavesdropping, the particularization requirement includes specification of the crime under investigation, specification of the type of activity sought to be captured by the camera and also specification of the person expected to be seen performing the activity. The obvious purpose of this requirement is to limit the discretion of the officers in executing the search. Here, all of these requirements were satisfied. Although the warrant did not specify the particular room in which the camera was to be placed, the affidavit, which was incorporated in the warrant, did specify that the camera [655] was to be placed in defendant's dental office and was to focus upon the dental chair in which consenting patients would be seated. While defendant apparently had two treatment rooms, we nevertheless conclude that the limitation upon the place to be searched was sufficiently specific to obviate the danger of a general rummaging for evidence or a search of impermissibly broad scope (see Coolidge v New Hampshire, 403 US 443).

Minimization is also necessary for a warrant authorizing video electronic surveillance. In Berger, the court expressed concern that conversations of persons coming into an area covered by an eavesdropping device might be unnecessarily and indiscriminately seized without regard to their connection with the crime under investigation. This concern is equally compelling when visual surveillance is employed. The warrant in this case explicitly provided, however, that the surveillance be conducted in such a way as "to minimize the recording of activities not related to the [specified] crimes". Moreover, the incorporated affidavit expressly limited the view of the camera to the dental chair in defendant's office and specified that the device would be turned on only when consenting females were in the treatment room. These limitations were sufficient to ensure that the surveillance would be confined to the observation of the activities for which the warrant was issued.

Finally, before a warrant authorizing unconsented video electronic surveillance may issue, it must be established that there are no less intrusive means for obtaining the needed evidence. Since electronic surveillance of any kind is necessarily surreptitious and constitutes an extensive invasion of the individual's privacy, it may only be permitted where normal investigative procedures had been tried and had failed or are demonstrably unlikely to succeed. Defendant contends that such a showing could not be made in this case, but the facts do not bear out his contention. Before applying for the warrant the police had questioned defendant about one of the complaints of sexual abuse, had equipped two of the female complainants with hidden recorders and transmitters in an attempt to elicit admissions from defendant, and had tapped the telephone of a complainant who [656] had received repeated calls from defendant. Furthermore, the use of a police decoy without the protection of visual surveillance would not have produced the needed evidence in this case, since the decoy, of necessity, would have been heavily sedated and might not have been able to relate what transpired. Under these circumstances it cannot be said, despite defendant's protestations to the contrary, that the police failed to make a sufficient showing of necessity before obtaining the warrant.

As we have stressed, the constitutional requirements outlined for eavesdropping in Berger v New York (388 US 41, supra), and Katz v United States (389 US 347, supra) are equally applicable to the area of video electronic surveillance. While we have discussed several of these requirements in the instant case, our opinion should not be construed as an inventory of each of the necessary elements for such a warrant. The degree of intrusiveness inherent in video electronic surveillance demands unswerving adherence to each of the limitations placed upon the use of this device. Moreover, because the use of this investigative technique poses a threat to the privacy of citizens, legislative scrutiny of the field and the enactment of specific guidelines would appear to be in order.

We have considered defendant's remaining contentions and conclude that they are without merit.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

[1] The police obtained the aural portions of the video tape by planting a microphone in Beineix' purse, which she carried into the treatment room. In general, if one of the parties to an intercepted conversation consents to the recording or mechanical overhearing of that conversation, the provisions of CPL article 700 do not apply (see CPL 700.05, subd 1; Penal Law, § 250.00; see, also, United States v White, 401 US 745). Although the fact that Beineix was unconscious during her dental treatment might have some bearing on an analysis under United States v White, we have no need to consider the question since defendant does not separately contest the aural portion of the tape, perhaps because it contains little of an inculpatory nature. Additionally, we note, without deciding, that if a consenting party carries a camera on her person, the seizure which occurs might not be subject to the warrant requirement (cf. United States v White, supra). This issue is not before us, however, because the camera used in this case was planted in defendant's office pursuant to a court-authorized entry of the building.

[2] The Supreme Court described a pen register as "a mechanical device that records the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released. It does not overhear oral communications and does not indicate whether calls are actually completed" (United States v New York Tel. Co., 434 US 159, 161, n 1, supra).

[3] Title III specifies that an eavesdropping warrant may issue only for certain specified crimes, namely "murder, kidnapping, gambling, robbery, bribery, extortion, or dealing in narcotic drugs, marihuana or other dangerous drugs, or other crimes dangerous to life, limb, or property, and punishable by imprisonment for more than one year, designated in any applicable State statute authorizing * * * interception, or any conspiracy to commit any of the foregoing offenses." (US Code, tit 18, § 2516, subd [2]). In People v Shapiro (supra) we held that allegations of prostitution and sexual abuse predicated upon the inability of the victim to consent by reason of age did not fall within this list of enumerated crimes. On the basis of our holding in Shapiro, defendant argues that the Federal act also precludes electronic surveillance in cases involving only the crime of sexual abuse committed against a victim who is incapable of consent by reason of physical helplessness.

[4] Specifically, the Senate report provides as follows: "Paragraph (4) defines `intercept' to include the aural acquisition of the contents of any wire or oral communication by any electronic, mechanical, or other device. Other forms of surveillance are not within the proposed legislation".

Lawrence, J. P., Spatt and Balletta, JJ., concur.

Ordered that the appeal from so much of the order as is in favor of William Green is dismissed, as it appears that that defendant has died (see, People v Feliciano, 68 N.Y.2d 790); and it is further,

Ordered that the order is otherwise affirmed.

[938] The motions by the defendants Grafton Headley, Roxroy Haughton and Anthony Morris (hereinafter the respondents) for a trial order of dismissal setting aside the verdict as against them were properly granted for the reasons set forth in the memorandum decision of Justice Chetta.

Further, as noted by our dissenting colleague, we unanimously find that the statutory presumption set forth in Penal Law § 220.25 (2) does not apply to the facts at bar since the seized drugs were not in open view (cf., People v Hylton, 125 AD2d 409, lv denied 69 N.Y.2d 881), nor would the presumption apply to the weapons found on the premises (cf., People v Chandler, 121 AD2d 644, lv denied 68 N.Y.2d 913).

However, unlike the situation in People v Gina (137 AD2d 555, lv denied 71 N.Y.2d 1027) relied upon by our dissenting colleague, we find that this case is more analogous to the circumstances in People v Dawkins (136 AD2d 726). In Dawkins, the record indicates that in executing a search warrant, the police claimed that they had to use a battering ram to enter the subject apartment. In the kitchen, the police found the defendant, with a bag containing 17 vials of cocaine under her feet. A search of the premises revealed, in pertinent part, 41 bags of marihuana in the living room. This court held that the defendant could be found to be in constructive possession of the cocaine. However, in light of the fact that the People offered no evidence that "the defendant resided in the apartment, frequented it on a regular basis or otherwise exercised dominion or control over the area where the marihuana was found", this court found that "the defendant's mere presence in the apartment where the marihuana was found was not sufficient, in and of itself, to establish that she exercised the necessary dominion or control to warrant a finding of constructive possession of the marihuana" (People v Dawkins, supra, at 727).

Similarly, in this case, the People offered no proof that the respondents had any connection with the apartment, except their presence in the living room on the day in question, or as to how long the respondents had been in the apartment before the arrival of the police. Neither the failure of the respondents to open the apartment door nor their failure to carry identification documents warrants an inference of criminal [939] intent. With regard to the claim that the rightful owner of the premises would not be so careless as to leave the drugs, weapons and money in the hands of innocent bystanders, we note that the People did not present any evidence that only the respondents were in the apartment at the time the police arrived. Indeed, there was some indication that an individual had escaped out of one of the kitchen windows. Further, the weapons, drugs and money found in the living room were all totally concealed in a metal box on an end table.

Accordingly, since there was no evidence presented by the People establishing that the respondents had actual or constructive possession of the drugs and weapons, the trial court properly issued a trial order of dismissal in their favor.

Weinstein, J., concurs in the dismissal of the appeal from the portion of the order which is in favor of William Green, but otherwise dissents and votes to reverse the order insofar as appealed from by the defendants Headley, Haughton and Morris, to deny the motions of those defendants, and to reinstate the verdict as against them: Criminal Term erred in overturning a jury verdict and granting the defendants' motion for a trial order of dismissal on the ground that the People, on their direct case, had failed to establish the defendants' constructive possession of drugs and weapons discovered by the police during their execution of a search warrant. Viewing the circumstantial evidence in the light most favorable to the People and affording the benefit of every reasonable inference to be drawn therefrom, I find that the evidence adduced was legally sufficient to establish the defendants' constructive possession of the drugs and weapons beyond a reasonable doubt (see, People v Giuliano, 65 N.Y.2d 766, 768; People v Lewis, 64 N.Y.2d 1111, 1112; People v Contes, 60 N.Y.2d 620, 621). The facts from which the inference of guilt is drawn, are, when perceived as a whole, inconsistent with innocence and exclude to a moral certainty every other reasonable hypothesis (People v Lewis, supra; People v Way, 59 N.Y.2d 361, 365).

At approximately 5:30 P.M. on February 5, 1985, a team of five police officers from the Queens Narcotics Squad forcibly entered an apartment at 1256 Central Avenue in Far Rockaway to search for drugs pursuant to a duly executed warrant. The entry team first announced themselves as police officers and demanded that the occupants of the apartment open the door. Although they received no verbal response, the police distinctly heard several sets of footsteps scurrying about inside [940] the apartment. The apartment was secured by a metal door which had normal locks in addition to timber reinforcements fastened between the doorframe and the intersection of the floor and interior walls. The police ultimately gained entry by utilizing a piece of pipe filled with concrete as a battering ram. It took approximately 24 strikes over a period of at least a minute before the door could be knocked from its hinges.

Upon entering the apartment, the police observed five individuals positioned in the living room against the far wall which leads to the kitchen. A sixth individual, who was later identified as the defendant Headley, was found hanging from a bedroom window with his arm sticking back inside the apartment. The police hauled Headley back into the apartment and placed him in the living room with the others. None of the defendants was the tenant of record. A preliminary frisk for weapons was conducted of each prisoner. Each prisoner was then taken into the bedroom individually and searched thoroughly. None of the male prisoners had any weapons, contraband, money or even identification on his person. A search of the female prisoner, who is not a defendant herein, revealed a small glassine envelope containing a white powder believed to be cocaine. After checking closets and the fire escape to insure that no other individuals had secreted themselves there, the police conducted a systematic search of the apartment.

On the floor of the bedroom, in plain view, and in close proximity to the window from which the defendant Headley had been dangling, the police found a loaded .38 caliber revolver. A further search of the bedroom revealed an open pocketbook containing $2,549 and 18 $5 bills and 110 $1 bills scattered on the floor nearby, a .380 automatic revolver with a magazine containing seven live rounds between the mattress and boxspring, a Bearcat scanner which was turned on and certain drug paraphernalia, including three scales, a grinder, a sifter and a package of pyramid paper. From the bedroom closet, the door of which was partially ajar, the police extracted a maroon leather tote bag with various pockets and zippers. The bag contained 2 large plastic bags of cocaine, 8 smaller plastic bags, a large plastic bag containing a quantity of marihuana, 3 handguns, 2 of which were loaded, 2 holsters, a pouch containing 22 .38 caliber rounds and a box of .22 caliber rounds. Another loaded .38 caliber revolver was discovered beneath the kitchen sink. The kitchen window was broken and the police observed footsteps in the snow on the garage roof. Inside a small box found in the living room were [941] more packets of a white powdery substance, another handgun and a quantity of currency.

The aggregate weight of the white powdery substance recovered from the apartment was 1 pound, 15½ ounces and 35 grains. Chemical analysis of the substance revealed it to be cocaine of 62.4% purity. The aggregate weight of the vegetable matter analyzed, which was subsequently determined to be marihuana, was 10¼ ounces. A police ballistics expert testified that all of the weapons found in the apartment, as well as the ammunition which was test fired, were operable.

Significantly, the furnishings throughout the apartment were extremely sparse. The living room contained a sofa, a rolled up map, a large box radio, a small table stand, and a rug rolled up behind the sofa. The sole appliance in the kitchen was a small refrigerator. There were no customary household items other than a few knives and forks and 8 or 10 cups. The cupboards were barren of any foodstuffs with the exception of some oatmeal and a few large yams. There were no towels or laundry in the bathroom nor was the plumbing working. The medicine cabinet was completely empty. The bedroom contained a small dresser atop which various paraphernalia associated with drugs was found, a mattress and box spring without any coverings or pillows, and a few articles of clothing which could have been worn by either a male or a female. Although there was a working telephone in the apartment, there was no listing for it.

The jury returned a verdict finding the defendants guilty as charged. By order dated July 3, 1986, Justice Chetta granted the defendants' motions for a trial order of dismissal, set aside the verdict, and ordered the defendants' release on the ground that the evidence adduced at this lengthy trial was legally insufficient to establish their dominion or control over the contraband or the apartment.

With respect to a trial order of dismissal, CPL 290.10 (1) provides as follows: "At the conclusion of the people's case or at the conclusion of all the evidence, the court may, except as provided in subdivision two, upon motion of the defendant, (a) issue a `trial order of dismissal,' dismissing any count of an indictment upon the ground that the trial evidence is not legally sufficient to establish the offense charged therein or any lesser included offense, or (b) reserve decision on the motion until after the verdict has been rendered and accepted by the court. Where a court has reserved decision and the jury thereafter renders a verdict of guilty, the court shall proceed to determine the motion upon such evidence as it would have [942] been authorized to consider upon the motion had the court not reserved decision. If the court determines that such motion should have been granted upon the ground specified in paragraph (a) herein, it shall enter an order both setting aside the verdict and dismissing any count of the indictment upon such ground".

In the instant case, I concur with the People's contention that the trial court failed to assess the evidence in the light most favorable to the People. While the "drug factory" presumption of Penal Law § 220.25 (2) does not apply in the instant case inasmuch as it cannot reasonably be contended that the narcotics found were in open view (cf., People v Frazier, 138 AD2d 401; People v Hylton, 125 AD2d 409; People v Chandler, 121 AD2d 644), I find the evidence patently sufficient to establish that the defendants possessed the drugs and weapons constructively by exercising dominion and control over them (Penal Law § 10.00 [8]).

The condition of the subject apartment, in particular, the formidable metal door reinforced by wooden beams securely attached to interior walls, the operable handguns scattered throughout the rooms and the large quantity of live ammunition, was ideally suited for a specific illegal purpose, i.e., guarding an extremely valuable illicit drug. Significantly, the barren and Spartan-like nature of the apartment negated any suggestion of conventional residency or the possibility that the defendants had gathered for any purely social function. That the defendants were not new entrants who were totally ignorant of the sinister purpose to which this particular apartment had been put to use, can be inferred from their act of hurriedly scurrying about at the approach of the police and from the fact that with the exception of the defendant Headley who was found hanging outside the bedroom window, their clothes were dry on a wet and snowy evening. Furthermore, the defendants' uniform shedding of all identification under this bizarre confluence of conditions was entirely consonant with a criminal, as opposed to an innocent, purpose.

The fact that the apartment was not owned or leased by any of these defendants does not militate against an inference of guilt under a theory of constructive possession (see, People v Schriber, 34 AD2d 852, 853, affd 29 N.Y.2d 780). "The key is control of the premises and at the outset it is noted that control is not necessarily limited to the tenant of rented premises because control can be delegated or shared" (People v Robertson, 61 AD2d 600, 607-608, affd 48 N.Y.2d 993).

Control in the instant case consisted of the occupant's power [943] to keep out all would-be entrants to the subject apartment. The defendants here affirmatively asserted their dominion and control by failing to open the barricaded door and thereby impeding the entry of the police. Moreover, it defies logic to contend that the rightful owner of the premises would be so careless as to leave such valuable property in the hands of innocent bystanders who could, in the owner's absence, either help themselves to it or alert the police of its existence. To maintain on these facts that the People failed to establish that the defendants constructively possessed the drugs and weapons found by the police by exercising dominion and control over them belies the reality of the situation. The instant case bears certain similarities to the case of People v Gina (137 AD2d 555, lv denied 71 N.Y.2d 1027) in which the defendant was hiding in the ceiling rafters of a burglarized jewelry store when the police discovered him. In rejecting the defendant's contention that he was therefore unable to exercise dominion and control over the bag of stolen jewelry lying on the floor of the burglarized premises, the court concluded that there was ample evidence for the jury to conclude that the arrival of the police had merely interrupted the defendant's wrongful possession of the subject property. I am of the view that the aforesaid reasoning should be applied to these facts as well.

Inasmuch as the People offered legally sufficient evidence to establish the defendants' guilt of the crimes charged, the trial court improperly set aside the verdict in this case. Accordingly, I vote to reverse the order granting the defendants' motion for a trial order of dismissal and to reinstate the verdict against the defendants Headley, Haughton and Morris. I concur with the majority solely to the extent of not reinstating the verdict against the defendant Green who was the victim of a homicide at some point subsequent to the trial.

C. Vernon Mason, New York City, and Valerie A. Hawkins for appellant in the first above-entitled action.

Slotnick & Baker, New York City (Mark M. Baker, Barry I. Slotnick and Lori E. Mann of counsel), for appellant in the second above-entitled action.

Richard E. Haftel, New York City, for appellant in the third above-entitled action.

Charles J. Hynes, District Attorney of Kings County, Brooklyn (Anthea H. Bruffee, Jay M. Cohen and Roseann B. MacKechnie of counsel), for respondent in the first, second and third above-entitled actions.

Richard A. Brown, District Attorney of Queens County, Kew Gardens (Barbara D. Underwood and Tammy J. Smiley of counsel), pro se, and Robert T. Johnson for New York State District Attorneys Association, amici curiae in the first, second and third above-entitled actions.

Bermingham, Cook & Mahoney, P. C., Buffalo (Mark J. Mahoney of counsel), for New York State Association of Criminal Defense Lawyers, amicus curiae in the first, second and third above-entitled actions.

Lynn Hecht Schafran, New York City, Danielle Ben-Jehuda and Deborah Ellis for NOW Legal Defense and Education Fund and others, amici curiae in the second above-entitled action.

Chief Judge KAYE and Judges TITONE, HANCOCK, JR., and SMITH concur with Judge SIMONS; Judge BELLACOSA dissents and votes to reverse in a separate opinion.

[309] SIMONS, J.

Defendants have been convicted of multiple counts of rape and sodomy in the first degree. The charges arose after a New Jersey woman alleged defendants forced her into a car outside a Manhattan dance club, took her to a Brooklyn apartment and there raped and sodomized her. At trial, defendants sought to introduce evidence purportedly showing that the woman had previously engaged in group sex. They contend that the trial court improperly applied the State's "rape shield law" (CPL 60.42) to deny their application, thereby depriving them of their Federal constitutional rights to present evidence and confront the witnesses against them. They also assign error to the trial court's refusal to instruct the jury expressly that acquittal was required if defendants held a mistaken belief that the complainant had consented to sexual relations. The Appellate Division affirmed the judgments and we now affirm its order in each case.

I.

The complainant, 17 years old, first encountered the three teenage defendants on a street in Manhattan shortly after midnight on August 17, 1989. She and defendant Williams [310] testified at trial and gave dramatically different accounts of what happened thereafter.

Complainant testified that she had come to New York City with a group of friends to go to a dance club and that around midnight, after she began to feel sick, she decided to wait for her companions in the car. A short time later, defendants struck up a conversation with her as she ran an errand to a nearby store and then asked her to accompany them to another club. She refused, but defendants continued to walk alongside her until they passed near defendant Richardson's car. There, defendants surrounded her and, according to her trial testimony, she felt she had no choice but to go with them. She testified that Williams told her, "If you listen, you won't get hurt." Later, in the car, Williams intimated that his two companions were armed.

With Richardson driving and Williams seated next to the complainant in the back seat, defendants took her on a ride through Manhattan and Brooklyn, ultimately arriving at Williams's Brooklyn apartment in the basement of his family's home. The complainant concedes that the conversation in the car was friendly — an attempt, she testified, to "get on their good side". The complainant testified that during the drive she repeatedly asked to be let out, but defendants refused. Once inside Williams's apartment, she attempted to flee but found the door locked. She was then forced to engage in acts of sexual intercourse and sodomy by Williams and the others. Afterwards, they all left together, and in the car Williams forced her to perform oral sex on him. She was finally allowed to leave the vehicle near a mass transit station, where she immediately reported the incident to a police officer.

Williams was the only defendant to take the stand. He testified that all the incidents of sexual contact were consensual. According to his testimony, the complainant voluntarily accompanied them to Brooklyn, was affectionate toward him in the car, was never held against her will and had several opportunities to leave the car. He stated that she freely consented to sex with him in a bedroom at the apartment and then agreed to have sex with each of his friends. Later, when defendants let her out of the car near the transit station, he believed she intended to catch a train back to Manhattan to meet her friends. There was testimony from other witnesses which was not conclusive of the ultimate facts but tended to support some of the details in Williams's account.

[311] The jury credited the testimony of the complainant and convicted defendants of multiple counts of rape in the first degree (Penal Law § 130.35) and sodomy in the first degree (Penal Law § 130.50).

II.

Defendants challenge the trial court's application of the "rape shield law" (CPL 60.42) on both statutory and constitutional grounds. At trial, Fearon's defense counsel asked the court to admit evidence showing that the complainant, who is white, had previously engaged in consensual group sex with black males. He asserted that the evidence would be relevant "with regard to her [complainant's] motivation in terms of testifying" against defendants, who are black, and offered to submit the details of evidence to the court ex parte. After a colloquy with the defense and the prosecution, the court ruled the evidence was inadmissible without hearing it.

CPL 60.42 bars evidence of a complainant's past sexual conduct unless one of five statutory exceptions applies. The first four allow evidence of a complainant's prior sexual conduct in narrowly defined factual circumstances. The fifth, the only subdivision under consideration here, is a broader "interest of justice" provision vesting discretion in the trial court. Defendants' principal argument on this appeal concerns not the substance of the court's ruling but the procedure it followed prior to ruling that the evidence was not admissible under subdivision (5).

The subdivision allows evidence of prior sexual conduct to be admitted when such evidence

"is determined by the court after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice" (CPL 60.42 [5]).

Defendants do not assert that a formal hearing must be held in every instance where the accused seeks to invoke the "interest of justice" clause, nor does the statute impose such a rigid requirement. Instead, defendants maintain that the procedure adopted here by the trial court denied them even the minimal statutory right to make "an offer of proof". They allege further the proceedings were so limited that they violated due process and arbitrarily deprived them of their [312] Federal constitutional rights to present evidence and cross-examine witnesses in their own defense. Neither argument is persuasive.

New York's rape shield law, like similar statutes in 47 other States,^[1] was passed in response to concerns that testimony about the sexual past of the victims of sex crimes often serves solely to harass the victim and confuse the jurors (see, Mem of Assemblyman Fink, 1975 NY Legis Ann, at 47-48). The statutes put to rest the now-discredited rationale that a victim's past "unchastity" is probative of present consent and recognized that such evidence is typically of little or no relevance and may seriously prejudice the prosecution of sex crimes (see, Ordover, Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity, 63 Cornell L Rev 90). At the same time, by providing exceptions to the general evidentiary prohibition of section 60.42, our Legislature acknowledged that there are instances where evidence of a complainant's sexual history might be relevant and admissible.

The exceptions also recognize that any law circumscribing the ability of the accused to defend against criminal charges remains subject to limitation by constitutional guarantees of due process and the right to confront the prosecution's witnesses (US Const 5th, 6th Amends; Pointer v Texas, 380 US 400; Washington v Texas, 388 US 14; see also, Tanford and Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U Pa L Rev 544). The Supreme Court, in affirming that a defendant's "right to present his own witnesses to establish a defense * * * is a fundamental element of due process of law" (Washington v Texas, supra, at 19), has held in a variety of circumstances that certain State rules restricting evidence were unconstitutional either on their face or as applied. For example, in Washington v Texas (id.), a State law prohibiting a coparticipant in crime from testifying for the defense was declared unconstitutional; in Davis v Alaska (415 US 308), the Court found that the defendant's rights were violated by a State law that prevented his attorney from impeaching a prosecution witness with the witness's juvenile record (see also, Olden v Kentucky, 488 US 227; Alford v United States, 282 US 687); in Rock v Arkansas (483 US 44), a [313] rule that per se barred a defendant's hypnotically refreshed testimony was declared unconstitutional. Similarly, in Chambers v Mississippi (410 US 284, 302) the Supreme Court found that a trial court's "mechanistic" application of the hearsay rule to keep out testimony helpful to the accused violated the Constitution.

These decisions notwithstanding, it is settled that an accused's right to cross-examine witnesses and present a defense is not absolute (id., at 295). Nor can the Sixth Amendment be read to "confer the right to present testimony free from the legitimate demands of the adversarial system" (United States v Nobles, 422 US 225, 241; accord, Michigan v Lucas, 500 US 145, ___, 111 S Ct 1743, 1747-1748). Evidentiary restrictions are to be voided only if they are "arbitrary or disproportionate to the purposes they are designed to serve" (Rock v Arkansas, supra, at 56; Michigan v Lucas, 500 US, at ___, 111 S Ct, at 1747, supra). A restriction is most likely to be found arbitrary when it is a per se rule, as in Rock, or when it is applied by a court without due consideration of the individualized circumstances and interests present in the matter before it, as in Chambers.^[2] Insofar as rape shield laws are concerned, the Supreme Court has recognized that they express the States' legitimate interest in giving rape victims "heightened protection against surprise, harassment, and unnecessary invasions of privacy" (see, Michigan v Lucas, 500 US, at ___, 111 S Ct, at 1746, supra).

Considering defendants' statutory claim first, CPL 60.42 (5) requires only that the trial court hear an "offer of proof" and provide "a statement * * * of its findings of fact essential to its determination". Though the statute by its terms requires an offer of proof only when a court decides to grant a defense motion and admit the evidence, it does not follow that the statute was intended solely for the benefit of victims. The section is designed to protect the rights and interests of defendants as well as the interests of victims. The requirement of a factual statement is properly viewed as ensuring both due consideration of defense motions and an adequate record for appeal while at the same time assuring that the victim's interests are properly considered. Its procedural dictates [314] therefore play a critical role whether an offer of proof is being denied or accepted.

Both procedural requirements of the statute were met by the trial court here. "Offer of proof" is not a term of art but its generally accepted meaning, one also found in an unrelated section of the Criminal Procedure Law, is to summarize the substance or content of the evidence (see, CPL 290.10). Here, defense counsel was allowed to describe the proposed evidence and to state to the court why he believed it relevant — specifically, that evidence of prior group sex with blacks would be probative of the complainant's motivation for testifying. In the People's response to the request, an additional theory was suggested: a pattern of similar sexual behavior might be probative of consent. Defense counsel did not endorse the People's theory but took the opportunity to explain his proffer further. After doing so, he asked the court to rule. The court rejected the offer of proof and gave an explanation for its ruling.

We are satisfied that the court met its obligation to hear the "offer of proof". Defense counsel was twice given an opportunity to summarize the evidence and explain its relevance without restriction by the court. Indeed, after a brief recitation of the substance of the offer, counsel concluded his remarks and, on his own initiative, requested a ruling. The court's statement of its findings, though brief and general, was also adequate. The court might better have commented on the specific proffer and explained why the "interest of justice" exception was inapplicable under the circumstances of the case, but its statement adequately put defendants on notice of its reasoning and created a record for appeal. Any deficiencies in the procedure did not rise to the level of reversible error.

Nor is reversal required on constitutional grounds. A viable claim of arbitrariness could be made out in several ways — for instance, if the court refused to hear the offer of proof or if the court declined to give a fuller hearing to the evidence once a colorable claim of relevance had been made. But the burden for making a threshold showing of relevance rested on the defense as the moving party (People v Westfall, 95 AD2d 581, 583; People v Mandel, 61 AD2d 563, revd on other grounds 48 N.Y.2d 952, appeal dismissed 446 US 949; see, People v Hackett, 421 Mich 338, 349-350, 365 NW2d 120). There is nothing arbitrary about a trial court requiring a sensible proffer as part of a motion under CPL 60.42 and [315] refusing to proceed to a more elaborate airing of the evidence in the absence of one. To require that the accused make a threshold showing of relevance when CPL 60.42 is implicated is a minimal "`legitimate demand[] of the adversarial system'" (see, Michigan v Lucas, 500 US 145, ___, 111 S Ct 1743, 1748, supra).

Defense counsel here proposed that the evidence of the victim's prior group sex with black males would show her motivation for testifying against defendants. Though given a full opportunity to do so, counsel made no effort to explain how prior sexual conduct with other males would be probative of the complainant's motive to testify — a connection neither apparent nor logical on its face. Nor did counsel suggest that the evidence might be relevant to the question of consent, even after the prosecutor expressly raised that as a possible theory during the colloquy. In short, counsel gave no explanation of why the evidence was probative, and the Constitution does not compel a court to proceed to a fuller consideration of the evidence until the proponent demonstrates some basis for its admission. The constitutional standard is one of arbitrariness. Here, the court acted reasonably.

On this appeal defendants offer another theory of relevance: that the prohibited evidence was needed to counter a possible inference by the jury that no woman would voluntarily have sexual relations with three men she had met just hours before on the street. Though that theory was not expressly raised during the colloquy on the offer of proof or at any other time during trial, defendants point out that the prosecutor asked the jurors during summation to consider whether defendants' account of the night's events was "a little peculiar". Defendants claim that at that point the court should have reconsidered its earlier ruling.

They rely on People v Mandel (61 AD2d 563, 568, revd on other grounds 48 N.Y.2d 952, supra). In Mandel the Second Department held that a trial court, having initially barred evidence of prior sexual conduct should have reversed itself once the need for admission was apparent during cross-examination. The circumstances at the trial here were substantially different. Defendants do not allege, let alone demonstrate, that their alternate theory of relevance became apparent during either their case or the People's. They cite only a single remark from the People's summation, a remark which passed without objection or request for relief by them. In [316] Mandel, the excluded evidence was directly linked to a specific and unique fact expressly raised and relied upon by the defense. Here the new theory of admissibility remains unclear, even with the advantage of hindsight unavailable to the Trial Judge. Certainly the trial court did not act arbitrarily when, in the absence of an objection, it failed to discern a nascent due process or Sixth Amendment violation in a rhetorical question contained in the People's summation. Nor can Mandel be read as dispensing with established rules of preservation. While the trial court may have a duty in certain circumstances to reverse a CPL 60.42 determination, this was not such an instance.

III.

As an alternate basis for reversal, defendants contend the trial court erred in refusing to instruct the jury specifically on the mistake of fact defense and on intent as an element of first degree rape and sodomy. They assert that the jury could reasonably have found from the evidence adduced at trial that although the complainant had not consented to sexual relations, defendants mistakenly believed that she had.^[3] Under those circumstances, they say, their mistaken belief negated the intent necessary for a finding of guilt on the various counts.

The Penal Law provides that a defendant is guilty of rape, first degree, or sodomy, first degree, when he or she engages in sexual intercourse or deviate sexual intercourse by forcible compulsion (Penal Law §§ 130.35, 130.50). The People must also establish the victim's lack of consent (Penal Law § 130.05 [1]), but lack of consent results from forcible compulsion (Penal Law § 130.05 [2] [a]). Though the statutes are silent on the subject, intent is implicitly an element of these crimes (Penal Law § 15.15 [2]). The intent required is the intent to [317] perform the prohibited act — i.e., the intent to forcibly compel another to engage in intercourse or sodomy.

The question is whether the court's charge, when viewed in its entirety, adequately conveyed to the jury that the defendants acted with the necessary culpable mens rea.^[4] The court's instructions on forcible compulsion were as follows:

"the third and final element [the People must prove] is that the lack of [complainant's] consent resulted from the use of forcible compulsion * * *

"Forcible compulsion means to compel by either use of physical force, or a threat, express or implied, which places a person in fear of immediate death or physical injury to herself."

Manifestly, it is unnecessary to forcibly compel another to engage in sexual acts unless that person is an unwilling participant. Thus, the jury, by finding that defendants used forcible compulsion to coerce the victim to engage in sodomy and intercourse, necessarily found that defendants believed the victim did not consent to the sexual activity. The instructions given covered the defense theory and the court did not commit reversible error in declining to give additional instructions on mens rea or mistake of fact.

IV.

We have reviewed defendants' remaining contentions and find them without merit.

Accordingly, in each case, the order of the Appellate Division should be affirmed.

BELLACOSA, J. (dissenting).

In each case, I respectfully dissent and vote to reverse and order a new trial.

The sole basis upon which I would grant a new trial is that the trial court erred by refusing to instruct the jury on the essential culpable mental state element of criminal intent. The fair inferences from this record favor the People's position that the trial court accorded at least minimal safeguards with respect to two other important and close legal issues, i.e., satisfaction of the rape shield law requirements (CPL 60.42) and refusal to instruct on mistake of fact. On that basis and [318] in those respects, I agree with the Court's reasoning and analysis.

This Court is unanimous that general intent is the culpable mental state of the crimes for which the three defendants were charged and convicted (see, Penal Law § 15.05; Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 15, at 32-34; Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law art 130, at 568-570). That being so, we appear to be also unanimous that the trial court's articulation and understanding of this principle was erroneous. In the preinstruction conference and colloquy, the trial court stated:

"There is no element of intent. * * * [T]he elements of rape and sodomy do not require any intent to do anything. It's a crime of action as opposed to a crime of intent. It's not a mens rea crime. * * * You don't have to get into the intent of anybody here. Intent is not an element of the crime of rape. * * * [Intent is] not an element of the crime of forcible compulsion. * * * [I]t's a crime of conduct, not a mens rea, state of mind" (emphasis added).

Based on that erroneous statement of the concededly applicable principle of law on the pertinent culpable mental state, which the majority characterizes merely as "misstatements to counsel," the trial court rejected the defendants' request to instruct on intent. Thus, my legitimate concern relates not to elaboration of what the trial court stated to the jury, but to what the trial court failed to tell the jury and its reasons for that ruling (majority opn, at 317, n 4).

This Court summarily exonerates the trial court from its erroneous refusal to instruct the jury, as requested, on the element of intent. This disposition both ignores and contradicts elementary instructional theorems. Jury instructions must include "the material legal principles applicable to the particular case" (CPL 300.10 [2]). Thus, every element of a charged crime must be included in the roadmap given to the jury for its deliberations (see, People v Flynn, 79 N.Y.2d 879, 881; People v Lewis, 64 N.Y.2d 1031, 1032; LaFave and Israel, Criminal Procedure, at 888 [1985]).

The prejudicial impact on the defendants from this error in relation to the other intensely disputed legal issues cannot be underestimated. It is not good enough in a case such as this, [319] and on an issue so elemental, to fall back on the instructions-as-a-whole legitimization, as the Court does here. Moreover, a serious analytical and dispositional flaw is evident in the assumption that despite the absence of any instructional guidance, the jury somehow on its own bridges the missing mental step to arrive at the element of intent and know that it was an indispensable ingredient in order to return a verdict of guilty.

Part of the very reason for jury instructions is to prevent personal leaps of logic or speculation on key legal points (see, Lanzano v City of New York, 71 N.Y.2d 208, 211-212, rearg denied 71 N.Y.2d 890 ["Juries should not be allowed to (base their verdicts) on misconceptions of the law when simple and straightforward instructions * * * are readily available to help them in the truth-finding process"]). I respectfully submit that the Court's approval of this elliptical methodology represents an unwarranted departure from sound and long-standing jury instructional theory and practices. The fairer and better practice is to lead the jury to the water by complete jury instructions, not allow it to speculate on and search for interstices as it strives to fulfill its unique obligation to apply all relevant legal principles to factual evidence before finding defendants guilty beyond a reasonable doubt on all elements of crimes charged. Courts should not countenance or promulgate rules regarding jury instruction that are based on the mere wish or hope that the right ingredients may drop into the pot during the jury's solitary deliberations. Jury instructions are freighted with commands and imperatives to assure reasonably and scrupulously that the jury will know all they need to know about the law from the sole law source, the trial court. That did not happen in this case and the Court should not excuse this critical lapse.

The Court offers no authoritative sources — and I am aware of none — for its dispensation from an instruction on the essential culpable mental state element on the novel theory that the jury, in effect, would have applied natural reasoning to stumble into the right legal result. One is left to ponder what other instructions may be bypassed in the future on this rationale.

The Court's analysis, I respectfully submit, also loses its way among crucial words and concepts which have historically governed the imposition of criminal responsibility. To compel by "forcible coercion" is essentially a facet of the traditional [320] actus reus — the criminal act; intent is the quintessential mens rea — the culpable mental state (see, LaFave and Scott, Criminal Law, at 177-178, 196 [1972] [defining and distinguishing actus reus and mens rea]; Penal Law § 15.05). Blending and blurring the two concepts, and allowing one to be logically subsumed within or inferred from the other for instructional purposes, should not be justified as a sound legal proposition and proper method of analysis. In particular, the Penal Law provides a very precise definition of "forcible compulsion," which does not contemplate or embrace the analysis and circumstances here (Penal Law § 130.00 [8]). Moreover, the jury's total ignorance of its obligations, had it encountered reasonable doubt concerns on the intent element during its deliberations, is extremely disquieting. I cannot be confident that the jury understood or appreciated the particular legal consequences flowing from the absence of legal intent, a classic term of art and an indispensable element of the crime charged (contrast, People v Yanik, 43 N.Y.2d 97, 100-101). Frankly, if the jury thought of the matter at all in this case, which is at least in some doubt, it would very likely have experienced confusion or uncertainty concerning the legal concept and how to apply the crucial principle in relation to the other intersecting, though legally discrete, nuances of this case.

Notably, the trial court gave an acting-in-concert instruction, including specific reference to the intent, required on such a theory. That highlights the prejudicial impact of the failure to instruct on the general culpable intent required for the direct commission of the crimes at issue. If reviewing courts are to assume that juries faithfully follow explicit instructions, then they should likewise accept the likelihood of a jury's literal docility when faced with a total absence of instruction on the mental core of the direct commission of the crimes, a concededly indispensable element. A reasonably intelligent jury would more naturally conclude it was forbidden from considering intent in the constellation of issues of this case, reasoning that after being so explicitly instructed on the acting-in-concert theory, silence meant intent was not applicable on the direct commission aspect.

In sum, both precedentially and for the adverse implications to appellants, I do not believe the Court should absolve or tolerate the acknowledged gap in the essential jury instructions on a legal issue that emerged as a significant, practical nucleus of the case. This case, based on a reading of the whole [321] record, is threaded with an elusive yet worrisome potential risk of miscarriages of justice. That risk is heightened beyond acceptable limits of appellate review by rationalizing away a reversible instructional error.

In each case: Order affirmed.

[1] (See generally, Tuerkheimer, A Reassessment and Redefinition of Rape Shield Laws, 50 Ohio St LJ 1245; State v Budis, 243 NJ Super 498, 506, n 1, 580 A2d 283, 287-288, n 1.)

[2] Because defendants challenge only the procedural aspects of the statute and the statute's application to their case, the other branch of the constitutional standard — whether the evidentiary restriction is disproportionate to its purposes — is not relevant here (cf., Davis v Alaska, 415 US 308, 320).

[3] The Penal Law recognizes three situations in which a person may be relieved of criminal liability when acting under a mistaken belief of fact: (1) when the factual mistake negates a culpable mental state required as part of the offense, (2) when the statutes defining the offense expressly allow the defense or (3) when the mistake supports a defense of justification (Penal Law § 15.20 [1] [a], [b], [c]). The statute authorizing a mistake of fact defense to sexual offenses does not apply under the facts of this case (see, Penal Law § 130.10) nor does the defense of justification. Defendants rely on section 15.20 (1) (a), a factual mistake negates a culpable mental state, contending that their mistaken belief that complainant consented to intercourse negated the requirement of intent implicit in the element of forcible compulsion.

[4] As a court of law examining the instructions, we must evaluate what the court stated to the jury during the charge, not its misstatements to counsel during colloquy (see, dissenting opn, at 318).

Maurice Edelbaum for appellant.

Edward S. Silver, District Attorney (William I. Siegel and David Diamond of counsel), for respondent.

Chief Judge DESMOND and Judges DYE, FULD and BURKE concur with Judge BERGAN; Judges VAN VOORHIS and SCILEPPI dissent and vote to affirm.

[44] BERGAN, J.

The factual circumstances of the crime for which appellant Monaco was convicted of murder, second degree, are developed in the opinion of Judge FROESSEL on the prior appeal in this case in 1962 (People v. Fasano and Monaco, 11 N Y 2d 436).

On that appeal, however, Monaco was respondent and the People appellant, from an order of the Appellate Division (14 A D 2d 581), which had reversed the judgment against Monaco and directed a new trial for a purported error in the instructions to the jury. The refusal of the Trial Judge to charge, upon which the Appellate Division had reversed Monaco's conviction, was, as Judge FROESSEL noted, "The narrow question presented by the People's appeal" (p. 442).

That order for a new trial was in turn reversed in this court on the ground the charge was without substantial error (pp. 442-444), and the case was remitted to the Appellate Division in pursuance of section 543-b of the Code of Criminal Procedure to pass upon questions of fact (p. 445). Upon this remission the Appellate Division affirmed the judgment of conviction (18 A D 2d 1137).

The present appeal by Monaco is the first time, therefore, that the sufficiency of the record as a matter of law to sustain [45] a conviction against him of murder in the second degree has been definitively presented to this court. The sufficiency of the record as to Fasano was passed upon and the judgment affirmed as to him; but Fasano and Monaco are shown by the record to be in quite different legal relationships to the crime.

The range of appellant's argument is quite limited in scope. He suggests that the record does not sustain the conviction for murder in the second degree, "but at most supported a charge and conviction of manslaughter in the first degree". The essential element of murder in the second degree is, without premeditation, a "design to effect the death of the person killed" (Penal Law, § 1046).

No doubt Fasano, who actually fired the shot, could have formed that design when he took out the gun and pointed it at the deceased, and the final judgment against him is necessarily based on such a finding. But the proof that Monaco, in the enterprise in which he participated with Fasano, formed such a "design" to kill is lacking in this record.

Accepting, as we must, a view of the facts most favorable to the People's case, the record shows a purpose by both defendants to get into a fight with a rival teen-age gang. Fasano was armed with a loaded gun, and the record would sustain a finding that Monaco knew the gun was carried and was loaded.

To set forth with an armed companion into a street fight may sometimes spell out a willful homicide, a "design" to kill, by the unarmed person. But a spontaneous and not concerted or planned use of the weapon to kill is not, without more, attributable to the companion whose guilt in a joint design to effect death must be established beyond a reasonable doubt. An agreement to murder must be shown to exclude other fair inferences.

What Monaco did before the gun was pulled out by Fasano and fired, what defendants said to each other in entering the enterprise, all fall short of a design or intention by them to kill anyone. No agreement to kill, no purpose to kill, no expressed intent to kill, even if they found themselves in danger, can be gathered from the evidence. The entire record is consistent with a spontaneously formed decision by Fasano to shoot, in which decision Monaco took no purposeful part.

[46] The record is all in this direction. The testimony of the police officer, Babicke, as to what Monaco said is typical. Fasano had told the officer he "went down there for the purpose of grabbing a Ditmas Duke, showing him the gun, and giving him a beating". Monaco went "for the same purpose, to show them the gun, give them a beating, to one of the Ditmas Dukes". The gun was brought there "to scare these people". The stenographic transcript of Monaco's statement taken by an Assistant District Attorney shows him to have said "We intended to go down there and see if we could find one of them and scare him and hit him".

It is essential that the intent by Monaco to kill be fairly deducible from the proof and that the proof exclude any other purpose by Monaco in going to the scene with Fasano (People v. Weiss, 290 N.Y. 160). (See, also, People v. Dinser, 192 N.Y. 80; People v. May, 290 N.Y. 369; People v. Paige, 283 N.Y. 479.)

The problem was considered in a rather similar case of street killing in which a knife rather than a gun was used in People v. May (9 A D 2d 508). It was there held that the use of a knife by one of three youths in a fight in which another was killed was not attributable as murder, second degree, to the appellant who was also armed with a knife, absent proof of a willful intent in advance to kill, or participation after he knew the knife was being used by his companion to kill.

In the absence of some statutory synthesis of intention which makes out any homicide to be murder, intended or not (such as Penal Law, § 1044, subd. 2, in respect of a person engaged in felony), whether a homicide is committed "with a design to effect" death depends on adequate proof of such a design by each person charged.

This may well be established against co-conspirators who are shown together to have intended to kill; but where the purpose established is less in degree than such an intention, and where the record shows merely a spontaneous act of homicide by one, the other is not, without a greater showing of a personal design to kill, guilty of murder. The record before us does not sustain a conviction for murder, second degree, as to appellant.

[47] But it would sustain a conviction for manslaughter, first degree (under Penal Law, § 1050, subd. 1), for it could be found as a matter of law that Monaco, with Fasano, was engaged in a plan to assault the deceased and that homicide without design by Monaco to effect death resulted (People v. Green, 9 N Y 2d 988).

The judgment should be modified in pursuance of subdivision 2 of section 543 of the Code of Criminal Procedure by reducing the degree of crime for which defendant is convicted from murder, second degree, to manslaughter, first degree, and remitted to the Supreme Court, Kings County, for the imposition of sentence accordingly.

Judgment modified, etc.

Walsh & Cleary, P. C. (Thomas Cleary of counsel), for appellant.

Patricia K. Fogerty for respondent.

HANCOCK, JR., J. P., CALLAHAN, DENMAN and BOOMER, JJ., concur.

[644] MOULE, J.

Early on the morning of February 25, 1983, in a trailer on North Shore Road in the Town of Cuba which she shared with Marshall Allison, defendant shot him in the head while he was sleeping.

She immediately called Chief Sweet of the Town of Cuba police to report the shooting. Officer Mackney of the Cuba police arrived a short time later and determined that Allison was dead. After executing a written waiver of her rights, defendant told Mackney that the decedent was the father of her two children, ages 2 and 1½. She also told Mackney that the decedent had been physically abusing her and, in fear that the abuse would continue, she killed him.

Defendant was subsequently indicted under subdivision 2 of section 125.20 of the Penal Law, which provides that a person is guilty of first degree manslaughter when: "With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision".

[645] At trial, the prosecution based its case principally on the testimony of Chief Sweet, State Police Investigator Emerson, Donya Abrams, a worker at a domestic violence hotline center, and Richard Meyers, a friend of both the decedent and defendant. Defendant did not dispute the prosecutor's claim that she had shot and killed Allison; rather, based upon the pattern of physical abuse she had been subjected to by the decedent in the past and her alleged belief that he was going to kill her when he awoke, she raised the defense of justification. The defense presented three principal witnesses: Dr. Taylor from Cuba, defendant and Dr. Rice, a psychiatrist.

Chief Sweet testified that he arrived at the scene of the shooting shortly after Officer Mackney and heard defendant tell Mackney that the decedent had been physically abusing her for the past year and a half and that, on the evening before the shooting, he told her that he wanted her to commit suicide or he would kill her. Sweet stated that his department had never received any complaints from defendant regarding domestic violence but that, at approximately 11:30 P.M. on the night before the shooting, he had been informed by Richard Meyers that defendant was being physically abused by the decedent. Meyers told Sweet that defendant had told him earlier that same evening of the abuse she was receiving. Meyers then said that he had reported the situation to the decedent's father, the Olean police and a domestic violence hotline service in Salamanca. Sweet offered to visit the couple's trailer, but Meyers told him not to because he had promised the defendant that he would not tell anyone. Meyers told Sweet that everything was fine at the trailer when he left earlier at about 6:30 P.M. and that the decedent's father had mentioned that he was going to speak with his son about the matter.

Investigator Emerson testified that he interviewed defendant at the trailer shortly after the shooting. Defendant told him that she killed the decedent because she could not stand the abuse any longer and felt that it was the only thing she could do to end the violence. After making sure that arrangements had been made for the children, Emerson felt that it would be better to continue their conversation [646] at the Wellsville State Police Barracks. After arriving there, defendant gave a five-page statement describing the couple's relationship, particularly during the days just prior to the shooting.

Defendant told Emerson that she and the decedent had been living together since 1978. She stated that from 1978 until July or August of 1981, her life with the decedent had been fairly normal. Shortly after the birth of their second child, however, the decedent began to frequently physically abuse her and accuse her of having sexual relations with other men. Beginning in September of 1981 the decedent became especially violent; this pattern of violence escalated dramatically after Christmas, 1982 and continued until the shooting.

Emerson further testified that defendant told him that Richard Meyers, on the afternoon prior to the shooting, had stopped in to see her and that she told Meyers of the abuse the decedent had recently been inflicting upon her. Meyers stayed at the trailer after the decedent arrived home from work at 3:30 P.M. and remained there until about 7:00 P.M., when he left to visit the decedent's father. Defendant and the decedent spent the remainder of the evening watching television without incident. At about midnight, Meyers returned to talk to the decedent about his abuse of defendant. From 12:30 A.M. to 3:00 A.M., the three sat and discussed the couple's problems. Thereafter, Meyers fell asleep in the living room and the couple proceeded to the bedroom, where decedent told defendant that "this is the last straw" and that she should kill herself. He then asked her how she intended to do so and she mentioned pills. He replied that pills were "not good enough". He repeatedly asked her if she had ever had sex with Meyers, which she denied. He then accused her of having sex with other men, grabbed her by the throat and choked her for a while. They argued further and eventually fell asleep.

At 4:20 A.M., an alarm clock went off and Meyers stuck his head into the bedroom. The defendant motioned to him trying to indicate that she wanted him to return to the living room without waking decedent. Meyers apparently misinterpreted the signal and left the residence. The defendant noticed his car lights from the bedroom window as [647] he left. Defendant then got out of bed to "walk about the house" and assess her situation. She feared that the decedent was going to abuse her even worse or possibly kill her when he awoke and decided that the only way out for her was to kill him.

Investigator Emerson was certain that the defendant had related no instances of physical abuse in the 24-hour period immediately preceding the shooting, other than the choking incident which occurred just before the couple fell asleep. Emerson testified that he did not believe that the choking incident was serious nor did he get the impression that the defendant considered it so. Emerson stated that he had asked defendant if she had ever sought official or familial help for her problems, but she indicated that she had not.

Donya Abrams testified that she was an employee of Cattaraugus Community Action, a nonprofit organization that sponsors various community programs. She was the director of the domestic violence program which, among other services, provided a 24-hour crisis "hotline".^[1] Abrams stated that she had never had any contact with defendant. On the evening of February 24, one of the volunteers staffing the hotline told her that she was having difficulty handling a call from Richard Meyers. Abrams subsequently telephoned Meyers and had two conversations with him lasting a total of 2¼ hours. Meyers described the defendant as a friend who was the victim of abuse and asked for assistance. Abrams described the call as "odd" in that Meyers seemed to be in fear for the defendant's safety and yet he would not accept any of the options offered by Abrams. Abrams offered medical attention and help with police protection as well as help with removing the defendant from the home to a shelter. Meyers responded that, if defendant left, the decedent would find her and that he did not want any police contact because, if they visited the home, the decedent would kill defendant after they left. Abrams then testified as follows:

[648] "Q. During any of those conversations, did he [Meyers] describe any violence that was threatened for that evening or the next day?

"A. He said that the only option that he could see that Leslie had was that she was going to have to kill her assailant, and it was the only possible way she could save herself. Shelter was not feasible, pressing charges was not feasible. Her only option was that she kill him.

"Q. He told you that?

"A. Yes, and he said that he wanted to know if she killed him in self defense, if she could come into the shelter after that. Obviously, no.

"Q. So you told him no?

"A. Yes.

"Q. Did this particular issue come up more than once?

"A. Over and over and over again with every option I gave, that was his pretty standard reply.

"Q. With every option you gave, he told you that Leslie would have to kill him?

"A. Yes."

Defendant repeatedly objected to Abrams' testimony as being inadmissible hearsay.

On cross-examination, Abrams stated that Meyers did not indicate that he had been requested to call the hotline by either the defendant or the decedent. Meyers had, in fact, stated that the situation at the trailer would become worse if it was learned that he told anyone. Abrams stated that on the evening of February 24, 1983, defendant called the hotline and spoke to a volunteer staff person for about one minute.

Richard Meyers testified that the decedent was his former brother-in-law^[2] and that he had known him for some 10 years. Meyers usually visited the couple at the trailer once or twice a month. In January and February, 1983 he visited a total of four or five times.

Prior to 1983, Meyers became aware through a phone conversation with the defendant that the couple was experiencing domestic problems. On New Year's Eve, Meyers [649] learned that the decedent was going out and he decided to visit the defendant to give her a pamphlet on abused wives. The pamphlet contained the hotline number for Cattaraugus Community Action. When Meyers went to the trailer, defendant told him she could not let him in because the decedent had "glued the door shut" so he could determine whether someone had entered. She told Meyers to hide the pamphlet in some boxes on the porch and that she would get it later. She also asked Meyers to leave quickly.

Meyers testified that he went to the trailer the day before the shooting to check on defendant and the children. At that time he noticed a burn mark on her face and various bruises on her legs. Meyers offered defendant some money to enable her to move out of the trailer, but she declined because she feared the decedent would find her. Defendant asked Meyers if she could live with him until she could find an apartment and he told her that she could. Meyers offered to take the defendant away from the trailer in his vehicle numerous times that day, but she repeatedly declined. Meyers told her that, if she pressed charges, she could move into a shelter for at least 30 days, but she responded that she was frightened the decedent would find out. When the decedent returned home from work, he talked with Meyers and stated that he wished he could find a way to get rid of his wife. Meyers then persuaded the decedent to go into town with him for some groceries, hoping that in the interim defendant would call the hotline. After returning to the trailer and watching television, Meyers left to go to the Olean police.

Meyers stopped first at the decedent's father's house and explained the situation. He suggested to the father that on Monday they go to the trailer while the decedent was at work and "get her out of there". He then went to the police and eventually called the hotline. Later that evening Meyers went to the Cuba police to ask them if they would go to the trailer and occupy the decedent so that he could remove defendant. The police told him they would go to speak with the defendant the following day while the decedent was at work. Meyers called the hotline again and mentioned that he felt the defendant was suicidal. Contrary to Abrams' testimony, Meyers stated that he never indicated that he felt the decedent's life was in danger.

[650] Meyers returned to the trailer later in the evening. He spoke privately in the bathroom with decedent and told him that he had seen the marks on defendant's face. Meyers also expressed his belief that defendant was suicidal and should get medical or psychological attention. The decedent stated that the couple was going to see a therapist in the future. The decedent then spoke privately with defendant in the bathroom. When they came out, defendant stated that she had told the decedent "everything". The decedent seemed confused and began to mumble. Meyers then announced that he was going to call a therapist but instead he called the hotline again. He put defendant on the phone and she talked for about 15 minutes. Meyers heard her setting up an appointment with a therapist. After the phone call, Meyers told defendant privately that he wanted to leave. She asked him to stay because she was afraid the decedent would kill her if he left. Meyers told the decedent that his mother's house, where he was living, would be locked at that time of the morning and asked if he could stay at the trailer. The decedent allowed him to stay in the living room. At about 2:00 A.M. the couple retired to their bedroom; Meyers fell asleep and awoke at about 4:00 to 4:30 A.M. He decided to leave because he was confused and depressed. He knocked on the couple's bedroom door to announce his departure as an alarm clock in the bedroom sounded. Defendant motioned to him to be quiet and he subsequently left.

On cross-examination, Meyers stated that defendant had told him that the decedent would often glue the door of the trailer shut when he would go out in order to tell if defendant left the trailer. He also testified that she had told him of being physically abused by the decedent with various instrumentalities. Meyers stated that the decedent never admitted abusing defendant.

The decedent's parents, Frances and Jack Allison, both testified that they had offered to remove defendant from the domestic situation at the trailer on numerous occasions in the months preceding the shooting. Additionally, Nanette Nowak, the decedent's sister, testified that defendant had at least two relatives living nearby in Olean.

[651] For the defense, Dr. Taylor testified that he had conducted a physical examination of defendant following the shooting and had discovered multiple wounds covering her body which were in various stages of healing. She had abrasions over her left eye, on the right side of her face and on her neck. The abrasions on her neck were transverse and appeared both on the front and back of her neck and, according to Dr. Taylor, could have been caused by rope burns. Defendant had several puncture wounds, welts and bruises on her arms and torso, a contusion and an abrasion inside her vagina, and superficial burns, abrasions and contusions on her legs and feet. Dr. Taylor estimated that the injuries were anywhere from a few days to three weeks old and might have been the result of abuse or battering.

Defendant testified in detail concerning physical abuse she suffered from the time she moved in with decedent in 1978. Through Christmas of 1981 the severity of the abuse increased; on one occasion the decedent took her outside and beat her head against a tree and on another he stabbed her in the foot with a pencil, which resulted in a visit to the hospital to remove part of the pencil. Defendant indicated that the abuse was almost always related to the decedent's accusations that she was "sleeping around". She admitted that she had had sexual relations with another man in the fall of 1979 but insisted that she had otherwise been faithful to the decedent. Defendant testified that she eventually told the decedent of the incident because she was suffering from guilt.

In the fall of 1982 the abuse took on an even more sinister tone. The decedent discovered a bull whip in a utility building on the property and began using it to beat defendant while she was hog-tied. He told her that he was teaching her a lesson about lying as to her fidelity. Around Thanksgiving the decedent forced defendant to get a piece of wood from the woodpile and used it to beat her about the body, striking numerous blows to the head and, in addition, breaking one of her toes. Defendant testified that decedent also abused her with various devices, including ropes, belts, a wooden dildo, a lighter, a vacuum cleaner attachment, gloves, needle-nosed pliers and a hunting knife. On New Year's Day, 1983 defendant spoke to a third [652] party about the abuse for the first time, telling the decedent's mother that she had been whipped.

Defendant acknowledged that she continued to have sexual relations with the decedent despite the abuse because she felt that she was his slave; at times the decedent insisted that she call him master.

The week of the shooting, defendant stated that violence escalated to an even higher level. On Monday, February 21, 1983, the decedent roughed up defendant prior to leaving for work in the morning and verbally abused her upon his return in the afternoon. On Tuesday, the 22nd, the decedent told defendant he intended to prevent her from having sex with other men and proceeded to place an electric immersion coil into her vagina. When defendant removed the hot coil, the decedent took it from her and applied it to various parts of her body. That same day the decedent attempted to hang defendant in the shed. Defendant testified that the decedent struck her with a mallet when she tried to position herself to keep from choking. The decedent eventually hit defendant in the head, causing her to black out, and later forced her to put her hands on a table so that he could beat them with the mallet.

On the day before the shooting, the decedent punched defendant and beat her head against the cupboards because of the manner in which she had awakened him for work. Defendant stated that, when Meyers came to the trailer on the night before the shooting to talk with the decedent, she had wanted to prevent their discussion. When the decedent brought her into the bathroom after talking to Meyers, defendant testified that he told her: "You know, I had a talk with God, and God says I have to kill you, and he said that I have to kill the kids, too." The decedent also indicated that he was going to take his own life in order to escape punishment. All of this was going to occur after Meyers left. Defendant subsequently told Meyers privately that she wanted him to stay.

When decedent and defendant returned to the living room, the subject of abuse was discussed and the decedent told Meyers that defendant was a liar. When the couple retired to the bedroom, the decedent told the defendant that she had "really blown it" and that tomorrow she would [653] die. He gave her the choice of being killed or killing herself. He concluded that he would have to kill her, the children and himself after Meyers left. Defendant felt that he was serious because of his tone of voice and the look on his face. When Meyers later appeared at the bedroom door to announce his departure, defendant motioned for him to stay; she did not call out for fear of waking the decedent. Defendant stated that she could not drive and that decedent's truck outside the trailer was of no use to her. In any event, the truck keys were in decedent's pocket. As defendant contemplated her situation, she noticed the guns in the living room and decided that shooting decedent was her only way out. She then took a .22 caliber rifle and shot decedent in the head five times from short range while he was sleeping in the couple's bed.

Defendant stated that she never considered going to her parents about her suffering because they did not approve of her choice of living arrangements and running back to them would have been an admission of failure. She testified the decedent would use anything he could come up with as a basis for abusing her. He told her on numerous occasions that he would find her and kill her if she ever left him. Instead of seeking help, defendant stated that she tried to be the best wife and mother that she could be so as to make the decedent happy. Defendant testified that, while she told Meyers of some of the abuse she had been suffering, she swore him to secrecy about it. She never read the pamphlet on abuse he gave her for fear that the decedent would find out.

On cross-examination, defendant stated that while she saw a gynecologist during her pregnancies, she never mentioned the abuse she had been receiving. She did not seek help because she did not know where to go and because she hoped that decedent was merely going through a phase and the problem would resolve itself. Defendant acknowledged that she had been receiving public assistance but she never broached the subject of abuse with the social services authorities. Defendant also acknowledged that the decedent's mother had offered to help remove her from the situation at the trailer but that, by the time she realized that she should leave, the decedent had already begun to make his threats.

[654] Defendant said that, while there were opportunities for her to have read the pamphlet on abuse in private, at such times she had forgotten about it. She acknowledged that on the day prior to the shooting, Meyers had told her that he could help remove her from the trailer and find a safe place for her to stay. She also stated that the written statement prepared by the police after the shooting did not contain all of the information which she had provided including decedent's reference to God's directives prior to the shooting. Defendant admitted that she did not mention this statement by the decedent during her Grand Jury testimony. The incident on the morning before the shooting, where the decedent had attacked the defendant upon awakening, had also not been mentioned in either the written statement or at the Grand Jury.

Dr. Matilda Rice, a certified psychoanalyst, testified concerning the battered wife syndrome. Dr. Rice described the battered wife syndrome as a multistage form of familial "disease". In stage one there is verbal abuse and possibly minor physical abuse. Stage two involves an escalation of physical abuse in degree and quantity and stage three occurs when the abuse "gets totally out of control". Having examined defendant only a few months after the shooting, Dr. Rice opined that defendant displayed the classic signs of the battered wife syndrome and that her situation was at "the worst end of stage three".

Dr. Rice stated that the abused wife undergoes a personality change as the abuse increases. She becomes frightened and unable to project her thinking into the future. She lives her life from one beating to the next and her thoughts relate solely to her efforts to avoid the next beating. The wife is usually hopeful that, if she pleases the husband, the abuse will stop. For his part, the husband usually expresses remorse after a beating and attempts to reconcile with gifts and/or promises to refrain from abuse in the future. The wife then sees the husband in a different light and is filled with false hope. Another aspect of the syndrome is that the wife eventually feels that she cannot escape her tormentor and that she will be tracked down if she attempts to flee the situation. Her self-esteem vanishes and her confidence is shattered. She feels that no one [655] would believe her if she told them about the abuse and, thus, she keeps it to herself.

Dr. Rice stated that a battered wife does not consider retaliation and, in her opinion, defendant was not planning to retaliate when she awoke on the fateful morning. She also opined that the decedent had given "signals" to the defendant, such as the hanging, that he was close to actually killing her. According to Dr. Rice, defendant was terrified on the morning of the shooting and she saw killing the decedent as a means of escape. Dr. Rice had "no doubt" that, when the defendant pulled the trigger, she was reasonably in fear for her life and the lives of her children. Dr. Rice opined that defendant was neither psychotic nor emotionally disturbed at the time of the shooting.

On cross-examination, she acknowledged that the battered wife syndrome had not been completely accepted in psychiatric circles. She said that a woman in stages one and two of the syndrome still generally has the capability of reaching out for help.

On rebuttal for the People, Investigator Emerson testified that defendant had never mentioned that the decedent had claimed to have spoken with God.

In his closing statement, defense counsel told the jury that the sole issue in this case was whether defendant justifiably had acted in self-defense. He went on to emphasize Dr. Rice's opinion that defendant was not emotionally disturbed at the time of the shooting. Defense counsel subsequently requested that the court delete any reference to extreme emotional disturbance in its charge to the jury. The stated basis of this request was defense counsel's concern that the jury would dwell on the concept of emotional distress and neglect to give defendant's justification defense the consideration it deserved. The court denied this request and made the following references to extreme emotional distress in its charge:

"THE COURT: As you will note, the law of this State is explicit in stating that the fact that homicide was committed under the influence of extreme emotional disturbance need not be proved in any prosecution for the crime of [656] manslaughter in the first degree. Therefore, in your deliberation, you need not consider whether or not the defendant acted under the influence of extreme emotional disturbance * * *

"Again, I want to caution you that because the charge of manslaughter in the first degree, under subdivision 2 of Section 125.20 of the Penal Law, presupposes the existence of extreme emotional disturbance, it is not necessary for the People or the Defense to prove the existence or nonexistence of extreme emotional disturbance on the part of the defendant."

Defense counsel also specifically requested that the court delete any reference in its charge on justification to the concept of retreat. The prosecution conceded that defendant was under no legal obligation to retreat since the incident occurred in defendant's dwelling and even went so far as to request the court to distinguish between the availability of alternatives to defendant prior to the shooting and the concept of retreat. Despite both these requests, the court charged the jury on justification as follows: "THE COURT: If the defendant, Leslie A. Emick, was confronted by the appearance of danger on February 25, 1983, which aroused in her mind an honest and reasonable conviction and fear that she was about to suffer death or serious physical injury, she would be justified in using deadly physical force in her self-defense. Even so, a person is not justified in the use of deadly physical force if she knows that she can retreat without the use of such deadly physical force with complete safety to herself and other persons. However, she does not have to retreat if she is in her own dwelling, and she is not the initiator of the agression [sic]. If a person is not the initiator of the aggression, she is not required to leave her home to avoid the threat of physical danger even if the party making the threat is a member of the same household."

The jury thereafter returned from its deliberations three times to request clarification of the court's charge on justification. The jury's third request was for the court to clarify the concept of retreat and the requirement that defendant must have "exhaust[ed] all possible means of retreat". In each case the court merely reread the relevant [657] portion of its original charge. Approximately one-half hour after its third request, the jury returned a guilty verdict. Defendant was thereafter sentenced to an indeterminate term of imprisonment of 2 to 6 years.

Four issues are presented on this appeal: (1) whether the indictment made extreme emotional distress an element of the crime of manslaughter in the first degree; (2) whether the trial court erred in permitting testimony regarding the availability of alternatives to defendant prior to the shooting; (3) whether the court erred in allowing the introduction of Donya Abrams' testimony concerning her conversation with Richard Meyers the night before the shooting; and (4) whether the court's charge on extreme emotional disturbance, as set forth in subdivision 2 of section 125.20 of the Penal Law, and the concept of retreat was erroneous as a matter of law.

The first issue to be considered is whether the indictment made extreme emotional distress an element of the crime of manslaughter in the first degree. This issue stems from the last sentence of subdivision 2 of section 125.20 of the Penal Law, the section under which defendant was indicted, which provides: "The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision". Defendant's argument that this sentence makes extreme emotional disturbance an element of the crime charged is refuted by the statute's characterization of that concept as a "mitigating circumstance" which need not be proven. The rejection of extreme emotional disturbance as an element of first degree manslaughter is further supported by the staff notes of the Temporary Commission on Revision of the Penal Law and Criminal Code which provide, in relevant part, that the last sentence of subdivision 2 of section 125.20 of the Penal Law was intended to "assure that [extreme emotional disturbance] is neither an element of first degree manslaughter nor a defense thereto and need not be alleged by the People or proved by either party in a prosecution therefor" (Fourth Interim Report of NY Temporary Comm on Revision of Penal Law and Criminal Code, p 30).

[658] The second issue presented is whether the court erred in permitting testimony regarding the availability of alternatives to a defendant prior to the shooting. Defendant argues that the following evidence was highly prejudicial in view of the fact that she was under no obligation to retreat and, thus, should not have been admitted at trial: decedent's parents' testimony that they had made numerous offers to remove defendant from the trailer in the months preceding the shooting; decedent's sister's testimony that defendant had two relatives living nearby in Olean at the time of the shooting; and Donya Abrams' testimony about the various avenues of relief available to defendant through the community domestic violence program.

Generally, "all relevant evidence is admissible * * * unless to admit the evidence would violate some exclusionary rule" (Richardson, Evidence [Prince, 10th ed], §§ 5, 146-147; see Ando v Woodberry, 8 N.Y.2d 165; People v Murray, 90 AD2d 640; People v Ahearn, 88 AD2d 691). Here, the People correctly assert that the evidence in question is extremely relevant and probative as to defendant's state of mind at the time of the shooting. This evidence was critically important since it was up to the jury to determine, from a subjective standpoint, whether defendant reasonably believed that she was in imminent danger of having deadly physical force inflicted upon her and whether the nature and extent of the force used to meet that danger was reasonable under the circumstances. Since defendant's alleged fear of being immediately killed when the decedent awoke was premised, to a large extent, on the escalating pattern of abuse she had been subjected to over the preceding months, it was proper for the People to show how defendant apparently ignored offers of help during this time and, instead, elected to remain at the trailer with the decedent.^[3] The evidence of alternatives was admissible since it was relevant to the reasonableness of defendant's perceptions and not to the question of whether defendant was obligated to retreat.

[659] The third issue is whether the court erred in admitting Donya Abrams' testimony concerning her conversation with Richard Meyers the night before the shooting. Defendant argues that Abrams' testimony was inadmissible hearsay, and that its introduction was extremely prejudicial to her defense of justification.

The hearsay rule "forbids the use of an assertion made out of court as testimony to the truth of the fact asserted (Richardson, Evidence [10th ed — Prince], § 201; People v Settles, 46 N.Y.2d 154, 166)" (People v Edwards, 47 N.Y.2d 493, 496). The People argue that Abrams' testimony concerning her conversation with Meyers was not hearsay since it was not offered for its truthfulness, but, rather, to show the climate of the evening preceding the shooting. This argument is without merit. The People do not explain, nor can we conceive of, how the jury could have possibly been enlightened as to the climate of the evening by Meyers' statements without necessarily accepting them as true. At best, these statements were offered to show Meyers' state of mind on the night before the shooting. Even if this were the case, however, the statements were not properly admissible "to show the state of mind of the witness, since [Meyers'] state of mind was in no way relevant in this matter" (People v Allen, 74 AD2d 640, 642).

Given the fact that defendant's defense of justification was based upon her claim that she feared for her life on the morning of the shooting, principally because of the death threat issued only a few hours earlier by the decedent, permitting the jury to hear that Meyers believed that on the night before the shooting, prior to the decedent's alleged death threat, she would have to resort to killing the decedent was extremely prejudicial to defendant's case. While Meyers indicated only that it was his belief that defendant would have to resort to killing the decedent, his belief may well have been impermissibly imputed to defendant by the jury because of the frequent contact between Meyers and defendant on the day before and the morning of the shooting. Imputing this belief to defendant would have fatally undermined defendant's claim that she did not formulate the intent to kill the decedent until the morning of the shooting by injecting premeditation into the case.^[4]

[660] Since defendant's justification defense was not overwhelmingly disproved beyond a reasonable doubt, the court's error in allowing Abrams to testify concerning her conversation with Meyers requires reversal of defendant's conviction and the granting of a new trial (People v Crimmins, 36 N.Y.2d 230).

While resolution of this appeal does not require reaching the final issue, whether the court's charge on extreme emotional disturbance and retreat was erroneous, since these questions may recur upon retrial, they merit discussion.

The first aspect of defendant's attack on the court's charge with respect to extreme emotional disturbance is that it impermissibly shifted the burden of proof on intent to defendant. While it is true that the court instructed the jury to presuppose the existence of extreme emotional disturbance, the jury was clearly instructed on the nature of the element of intent and that the People had the burden of establishing that element. Defendant's argument incorrectly equates extreme emotional disturbance with intent. As the Court of Appeals stated in People v Patterson (39 N.Y.2d 288, 302, affd 432 US 197): "In New York, the prosecution is at all times required to prove, beyond a reasonable doubt, the facts bearing the defendant's intent. That the defendant acted because of an extreme emotional disturbance does not negate intent. The influence of an extreme emotional disturbance explains the defendant's intentional action, but does not make the action any less intentional."

Defendant also argues that the court's direction to the jury to presuppose the existence of extreme emotional disturbance confused the jury with respect to defendant's justification defense. The basis of this argument is the claim that, without clarifying instructions, there is a logical conflict between saying a person is emotionally disturbed and yet capable of thinking and acting reasonably. [661] While the two concepts are not mutually exclusive, given that the reasonable belief standard set forth in the justification statute (Penal Law, § 35.15) refers to the subjective belief of the defendant (People v Miller, 39 N.Y.2d 543, 548; People v Wagman, 99 AD2d 519, 520), the failure of the court to properly explain to the jury the concept of extreme emotional disturbance and emphasize that the statutory presumption should not influence and should not prevent consideration of defendant's justification defense was error.

Finally, since defendant was in her own dwelling and, pursuant to her theory of justification, was not the initial aggressor (Penal Law, § 35.15, subd 2), the court should not have mentioned retreat in its charge. The prosecution even agreed that it was improper for the court to charge retreat. The effect of this charge, particularly as evidenced by the jury's third request for clarification on the concept of retreat,^[5] was to needlessly confuse the jury and divert it from the central question in this case, whether defendant reasonably believed she was about to suffer death or serious physical injury at the hands of the decedent on the morning of the shooting.

The judgment of conviction should be reversed and defendant granted a new trial.

Judgment unanimously reversed, on the law and facts, and a new trial granted.

[1] While the hotline is located in neighboring Cattaraugus County, there are no precise boundaries for the organization's services.

[2] Meyers had been divorced from the decedent's sister since the shooting.

[3] It would seem that the principal reason the defense put Dr. Rice on the stand to testify concerning the "battered wife syndrome" was to rebut the common perception that defendant could have left the decedent and their turbulent domestic setting. It would have been improper for the court to allow this testimony, explaining why defendant did not leave the decedent, and not allow the People the opportunity to show that she was given various alternatives to remaining alone with the decedent.

[4] Worthy of note is the extremely prejudicial form of the first question put to Abrams concerning her conversation with Meyers: "During any of those conversations, did [Meyers] describe any violence that was threatened for that evening or the next day?" It is unclear whether the question was referring to violence threatened by the decedent or by defendant. Abrams' response, that Meyers said defendant was going to have to kill the decedent in order to save herself, could have been taken by the jury to mean the only imminent threat of violence known to Meyers came from defendant.

[5] That the jury was obviously confused and preoccupied with the concept of retreat is evident from the reference in their third request to that part of the court's charge dealing with "exhausting all possible means of retreat". This language was never used by the court.