vicinity of the premises and lay in wait until the son left the apartment and then the defendant rushed in to kill the deceased. The Court is of the opinion that substantial evidence to support this hypothesis is lacking, and that there is no basis for such an inference. It is based entirely on speculation, suspicion and conjecture. It is, therefore, necessary to discard in its entirety the theory that the defendant lay in wait.
There appears to be no evidence supporting a finding of premeditation and deliberation other than the fact that the defendant entered the premises carrying a pistol in his overcoat pocket. This is not a case in which such a deduction is supported by evidence of prior threats or by some indication of a hostile attitude toward the deceased. On the contrary two days before the homicide the defendant wrote to the deceased what might be called popularly a love letter, in which he said in passing that he had no desire to hurt the deceased in any way.
What then is the evidence contradicting the inference of premeditation and deliberation? At the trial the defendant took the witness stand and testified that he entered the apartment of the deceased, unlocking the door with his key, and then he said on the stand: 'And I actually cannot truthfully say that I remember shooting Florence. There wasn't any cause, and yet I can almost vividly recall my arm jumping like you would shoot a pistol, but I never heard no shots.'
The Government introduced in evidence as part of its case a written statement made by the defendant to the police. That statement was quite different from his testimony on the stand and much more damaging to the defendant. The pertinent part of the statement reads as follows:
'This morning I got up early and went over there to talk to her. I had a key to the apartment and used to go in. She jumped up. 'I know you come over to hurt me. You got a gun or something.' She started screaming and then she started hollering. 'Go on and do it', or something. I saw red and I pulled the gun out of my right overcoat pocket and shot her, four times, I think. Then I tried to shoot myself, but the gun jammed.'
Afterward the defendant left the premises, drove away in his cab, telephoned the police and surrendered. The Government naturally relies upon the defendant's confession to the police rather than his testimony on the witness stand, as the Government has a right to do.
The confession of the defendant to the police in effect admits the homicide but denies premeditation and deliberation as well as an intent to kill. It is an elementary principle that the jury is not bound to accept the entire confession. It may accept a part and reject the balance. It may believe the damaging admissions and discredit the exculpatory assertions. Assuming, however, that the jury rejects the exculpatory portions it may not draw an inference contrary to them unless there is affirmative evidence contradicting such assertions, be that evidence direct or circumstantial, from which the opposite deduction can be drawn. The jury had a right to discard the disclaimer of intention to kill and of premeditation and deliberation, but it might not draw an inference to the contrary, unless there is evidence to support it. In this case there is none except the fact that the defendant was armed. There were no eye witnesses to the murder. There is no circumstantial evidence other than the fact that the defendant was armed to support the theory that the murder was premeditated.
The Court has given a great deal of thought to this case since the time that the jury returned its verdict, because the responsibility resting on the Court is a heavy one. Manifestly, it cannot be avoided. After a great deal of reflection the Court has reached the conclusion that the verdict of guilty of murder in the first degree is contrary to the weight of the evidence as concerns the necessarily implied finding that there was premeditation and deliberation on the part of the defendant before he committed the homicide. He stated before, a verdict of murder in the second degree would have been fully warranted.
Under the circumstances, the Court has no alternative but to grant the motion for a new trial and this will be the order of the Court.
Motion for a new trial granted.
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