People v. Dewey 18 A.D.2d 1125

Judgment unanimously reversed on the law and a new trial granted. Memorandum: This is an appeal from a judgment of conviction rendered upon a jury verdict finding the defendant guilty of murder in the first degree with a recommendation of leniency. The indictment was in the common-law form charging the defendant-appellant and one Marlowe with willfully, feloniously and with malice aforethought, shooting and killing one Harold Shaw. The proof indicated that the defendants were engaged in a burglary when they were interrupted by Police Officer Shaw. Several shots were fired by the defendant-appellant; he claimed in his testimony that he had stumbled and the shots had been fired accidentally. Shaw died as a result of a bullet wound. Upon the evidence, there was a serious question as to whether the felony of burglary had been abandoned and the shooting had taken place in the course of an attempt to escape from the scene of the burglary rather than in the course of the felony. Under these circumstances, it was error for the trial court to refuse to charge the lower degrees of homicide and it was error to instruct the jury that it must find the defendant guilty of murder in the first degree “ either by premeditation or in the commission of a felony ” or not guilty of any crime (People v. Mussenden, 308 N. Y. 558, 561-562; People v. Walsh, 262 Ñ. Y. 140, 149; People v. Moran, 246 N. Y. 100, 103). The judgment of conviction must therefore be reversed and a new trial granted. (Appeal from judgment of Monroe County Court convicting defendant of murder, first degree.) Present — Williams, P. J., Bastow, Goldman, Halpern and McClusky, JJ.