T. Vincent Quinn, District Attorney (
Lawrence Peirez of counsel), for plaintiff.
Melvel W. Snitow for defendant.
of every essential element of the crime and, since a felonious intent is an essential element of the crime of murder, guilt of a defendant can never be established without proof of such intent. Thus, the guilt of a defendant charged with murder in the first degree may depend upon his capacity to form the felonious intent. Then the fact that a defendant is under the age of sixteen may carry legal consequences." In the case just cited, a child less than sixteen years of age was charged with a felony murder. The Court of Appeals held that such a child could not be convicted of a felony murder without proof of intent to kill (see, also,
People v. Porter, 54 N. Y. S. 2d 3). The facts here warrant the conclusion that the killing, if done by the defendant, was done in the heat of passion and without a design to effect death. This, of course, would constitute the crime of manslaughter, for which the defendant may not be prosecuted under our laws. (Penal Law, § 2186; cf.
People v. Murch, 263 N.Y. 285.) While the court fully recognizes that violence by members of so-called teen-age gangs cannot be countenanced, and that the killing of the deceased was a shocking and unconscionable act, nevertheless, it cannot, under the particular facts and circumstances of this case, permit the defendant to stand trial for the crime of murder which might terminate in a verdict of guilty, punishable by death or life imprisonment, where the act or omission if committed by an adult would constitute only manslaughter, which is not subject to such severe punishment. An adult on trial for the crime of murder would, at least, be entitled to have the court charge the jury on the crime of manslaughter (Penal Law, § 610; Code Crim. Pro., § 440). Under all the circumstances, the ends of justice, the interests of the State and the welfare of the defendant will be served by removing this action to the Children's Court with full confidence that the defendant, should he be held responsible for the death which he is alleged to have caused, will be dealt with to the fullest extent of the law as a juvenile delinquent. Order accordingly made herewith. Order signed.