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Show DUnGIAR:THOELLG;IC.;v ESCAPE "NOT k LiDRDEREli NEW YORK. March" 14.--"Ia & burglar, bur-glar, who attempt to escape when discovered dis-covered in an attempt to break into a house and kills when opposed by force at some distance from the. scene of the attempted burglary, guilty of murder?' This Question waa raised today by Judge William J. Gaynor of the Supreme Su-preme court in Brooklyn, in an opinion which ha handed down with a differ- i enoe to the effect that Union Young, j convicted of having killed George Eber-hard Eber-hard in this city several years ago, was entitled to a certificate of reasonable doubt and a new trial. Toung was tried before Judge Foster last November, Novem-ber, convicted of murder In the second degree .and sentenced-to twenty years in prison. . Judge Foster charged the Jury to return re-turn a verdict of murder of the acquittal. acquit-tal. He refused to charge, with request re-quest of Young's lawyer, that the Jury might find' the defendant guilty : of manslaughter. "When the way defendant was being hunted, as already described, is considered," con-sidered," says Judge Gaynor, "and that he was being fired at, from the yard below, while the deceased was striking at him with a stick from above, and he may have been in peril of telng knocked off the fire-escape and shot, it is difficult to see how the trial Judge has the right to decide as a matter of law that he may not have bad Intent to kill: and such intent was & necessary element of murder unless the defendant defend-ant was within subdivision of the section sec-tion of the penal code which describes murder in the first degree 'engaged in the commission, or an attempt to commit com-mit felony.'" Judge Foster charged that Young was so engaged if the identification by the witnesses was sound and he was attempting to enter the house for the purpose of robbery when discovered. "But he was not at the time of the homicide so engaged." Judge Gaynor says. "On the contrary, be had desisted desist-ed and was a considerable . distance away,' vis.: at ' the other end of the block, trying to escape. If he can be said to have been still engaged In burglary, bur-glary, how far would he have had to be away before he would not have been engaged In the burglary?" |