Opinion
September 14, 1964
Thomas J. O'Connor for Richard M. La Belle, defendant.
Pierce H. Russell, District Attorney, for plaintiff.
This is a motion by the defendant, Richard M. La Belle, for an order dismissing the indictment upon the ground that it fails to allege the commission of a felony by the defendant, Richard M. La Belle.
The second count of the indictment alleges the murder of Rose Mary Snay was committed as follows: "The said defendants (Edward F. La Belle and Richard M. La Belle), in the County of Rensselaer, at the time and place mentioned in the first count of this indictment, did feloniously, wilfully and intentionally, while engaged in the commission of a felony, to wit:- the crime of rape in the second degree, against the person of one Rose Mary Snay, strike and kill Rose Mary Snay".
The defendants contend that omission of allegations that the defendant was over the age of 21 years and the victim under the age of 18 years renders the indictment insufficient and void.
Section 1044 of the Penal Law provides that murder in the first degree is the killing of a human being, "without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed".
In this case the People allege that the felony involved, which the defendant was committing when the defendant killed Rose Mary Snay, was rape in the second degree. That complies with the statute and is sufficient.
It is not necessary that the indictment contain all the facts necessary to constitute the felony which the defendant is charged with committing at the time of the murder. It would be otherwise if the defendant was indicted for the crime of rape in the second degree. But he is not and a jury under this indictment could not convict the defendant of rape in any degree.
Rape in the second degree or any other felony is merely a necessary ingredient of a felony murder.
On the trial of a felony murder indictment the prosecution may prove facts necessary to constitute the felony which a defendant is charged with committing at the time the killing of a human being was committed. Motion denied.