source: Caselaw Access Project

author: Dwight, J.

license: Public Domain

text:
    Court of Appeals. June Term,
    1863.

      Hunt, Woodruff, Mason,

      Grover, Dwight, Miller, Bacon and Olerlce, Justices.
    Maurice Lanergan, Plaintiff in Error, v. The People, &c., Defendants in Error.
    A felony may be charged in an indictment in different ways in several counts, for the purpose of meeting the evidence as it appears on the trial, and if the different counts are inserted in good faith, for the purpose of making a single charge, the court will not compel the prosecution to elect.#
    Conversations between parties, in order to be admissible as evidence against an accused person, must have been not merely in his bodily presence, but in his hearing and understanding. A declaration made in the presence of one unconscious from sleep or stupor, cannot be given in evidence against him-
    The Court of General Sessions of the Peace, in and for the city and county of New York, is a “Court of Sessions” of the county of New York, within the meaning of the act of 1859 (Laws of 1859,- chap. 339, § 4), it being within the description of the words “ The Court of Sessions of any county of this State.”
    An intent to kill, formed on the instant of the killing, is within the meaning of the word “ premeditated,” under the act of 1862, amending the law of murder, as well as under the Revised Statutes.
    Drunkenness is no excuse for crime, and a person who is voluntarily in that condition, is resposible for the consequences of his acts.
    Evidence of intoxication is admissible on trials for murder, because it may tend to cast light upon the acts, observations or circumstances attending the killing; but intoxication must result in a fixed mental disease, of some continuance or duration, before it will have the effect to relieve from responsibility for crime.
    Concealment is evidence of malice, and tends to establish a premeditated design to commit the deed.
    The plaintiff in error was indicted in the Court of General Sessions of New York, at the April term, 1868, for murder, in taking the life of his wife Delia, on the 26th day of March, 1866. The indictment contained three counts, alleging severally a killing: first, with an axe; secondly, with a knife; and, thirdly, by beating and choking. He was tried at the June term, 1867, the Hon. John K. Hackett, recorder, presiding.
    The evidence, as given on the trial, tended to show that the prisoner and the deceased occupied two rooms on the second floor of a tenement house at No. 135 Washington street, in the First ward of the city of New York. That they were both of very intemperate habits, and frequently quarreled.
    The deceased commenced to drink freely of liquor on St. Patrick’s day, and continued more or less under its influence down to the time of her death. Upon the 26th of March the prisoner, in company with one George Cram, visitJd the premises of John Hickey, brother-in-law of deceased. They were both under the influence of liquor. While there, the prisoner spoke about his wife, and swore he would kill her. Later in the day Cram induced the prisoner to go home, and accompanied him to his' house in Washington street. Upon arriving there and going into the prisoner’s room, the deceased was found there considerably under the influence of liquor, and upon going in the prisoner made a rush at his wife to strike her, but was prevented by Cram, and the prisoner then fell over into a rocking chair and went to sleep. While in this condition, the deceased was informed by Cram that he must leave and go to his work, whereupon the deceased inquired of Cram whether he thought “ he would kill her,” and begged Cram not to leave, to which Cram replied: “No; what humbug! ” Afterwards Cram raised Lanergan, and after putting him to bed left the premises. At the time, Cram noticed no marks or bruises on the person of the deceased.
    About six o’clock in the evening, a little boy living on the third floor saw the pi is oner have the deceased down on the floor, and beating her with something, after which a man by the name of Carrón testified that he heard three heavy knocks on the wall of the room occupied by Lanergan. Carrón, occupying the adjoining room to the prisoner, heard no screams. Lanergan was afterwards seen to come out of his room, lock the door and leave.
    About nine o’clock in the evening, Michael Tully, who sometimes lodged with the prisoner, came to his rooms, found the door locked, and, having a key, opened the door,. and upon going in found the dead body of Mrs. Lanergan lying on the bed in a nude condition. The alarm was given, and the officers of the law summoned. Upon examination of the room occupied by the prisoner and his wife, a number of cuts were found on the wall by the side of the bed, as if made by an axe, on which was blood, and by the mantel-piece stood an axe, upon the blade and handle of which were stains of blood. Upon the examinar tion of the body of the deceased, a number of incised and lacerated wounds were found. The body was very much ecchymosed, and presented the appearance of having been badly beaten.
    Search was made for the prisoner after the discovery-of the body of his wife, and he was shortly afterwards arrested in the vicinity of the occurrence, in a- porter house. Upon his arrest a pocket knife was taken out of his -pocket, having the appearance of having been recently sharpened, and upon the blade of which were stains of blood. Upon being interrogated as to why he beat his wife, he replied: “ I did not beat her this week, but last week.”
    Upon the post mortem examination, it appeared, as testified to by the doctors, that she-died from concussion of the brain, the skull being fractured. Upon the part of the defence, it was contended that the concussion of the brain was produced in consequence of her having received a fall while under the influence of liquor; and they also proved the good character of the accused for peace and quietness, and the improbability of the deceased having died from the effect of violence at the hands of the prisoner; and as explanatory of his conduct as to the threats of taking his wife’s life, showed his drunkenness during the day of the alleged occurrence. After the testimony closed, counsel for the prisoner moved the court that the prosecution elect before going to the jury, upon which count of the indict-meet they would claim a conviction. The court refused to compel an election, to. which refusal counsel for the prisoner excepted, after which counsel for prisoner requested the court to charge the jury in the affirmative upon the following propositions of law:
    “ That in order to constitute murder in the first degree, the premeditation must have existed prior to the immediate occurrence, which resulted in death.
    “ That if upon a sudden quarrel or meeting between both parties, one Mils another designedly and with malice, there being no previous deliberation, it is the duty of the jury to treat such as a case of murder in the second degree.
    “ That the fact of the intoxication of the prisoner, if proved to the satisfaction of the jury, is a proper matter to be considered by the jury in determining the question as to whether his mind was in such a condition as to be able to form an intent to Mil, or a premeditated design to affect death.”

      The court refused so to charge, to which refusal counsel excepted. The jury rendered a verdict of guilty of murder in the first degree. A motion for a new trial was made, on the ground of the verdict being against the law and the evidence; but the court refused to entertain the same, on the ground that no such power was vested in the court, to which ruling an exception was taken on writ of error. The general term of the Supreme Court affirmed the judgment, and the case was then brought into this court.
    The following opinion was given in the Supreme Court,which is reported, because it decides several questions not noticed in the opinion in the Court of Appeals.
    The case was heard at the New York General Term, before Leonard, Olerhe and Sutherland, Justices, and decided November, 1867.
    Leonard, P. J. Maurice Lanergan was indicted, tried, and convicted in the Court of General Sessions of the city of New York of murder in the first degree, and sentenced to be executed. The case comes up before this court upon a writ of error.
    The indictment charges Lanergan on three counts, with killing Delia Lanergan: first, with a knife; second, with an axe; third, by beating and choking. The deceased was the wife of the accused. Both began to use intoxicating liquors excessively on St. Patrick’s day, and continued to do so, becoming more and more subjected to intoxication, till the evening of March 26, 1867, when the death of Delia occurred by violence.
    They occupied two rooms in a tenement house in Washington street, on the second floor; one of which they let for a lodging room to Tully and Cram, who were witnesses at the trial.
    John Sullivan (stated in the charge of the recorder, to be a lad of thirteen years), testified that he resided in the same house. That towards evening, about two hours and a half after the school, which he attended, had closed for the day, or about five and one-half o’clock, p. m., he was going down stairs, and saw Mrs. Lanergan on the floor, near the door of the rooms, which the accused, with his wife, occupied, and the accused then beating her with something he had in his hand. He could not see what the' accused had in his hand. When Lanergan saw the boy, he “drew the thing back,” and put his hand over the mouth of the deceased. Tully, one of the lodgers, came out of the door, and went down stairs, passing the witness. Lanergan closed the door. Nothing appears to have been spoken by any one at this time. He does not mention any noise. Thomas Carrón testified that he occupied a-room adjoining that of Lanergan. A little before night, half an hour or so, on the day of the occurrence, he heard three knocks, as it might be of an axe or sledge, in Lanergan’s room. In less than an hour he saw Lanergan- come out of the room, go down stairs, and out of the house. When Carrón left his own room, the door of Lanergan’s room was closed. Nothing was said by either of them. Later in the evening he heard Tully in Lanergan’s room hallooing and clapping his hands. He thinks it was about ten ' o’clock. He went into the room, and saw the deceased lying upon the bed, dead. He heard no scream when he heard the knocks. After this he went at once for the sister of the deceased, Mrs. Hickey, and met Lanergan on the way to his rooms. Lanergan was then returning from Mrs. Hickey’s residence, where he had been, and informed her that his wife was dead.
    Tully testified that Lanergan and his wife were in bed when he left the house to go to his business, on the morning of the 26th of March. He returned between six arid six and one-half o’clock, p. m., and saw Mrs. Lanergan then, in bed. Lanergan told the witness he had better get his supper. He left the house, got his supper, and appears to have met Lanergan at about eight o’clock, when the two, together with John Hickey, the brothér-in-law of Lanergan, took a drink at a public house. They played dominoes at another public house, near by, till after ten o’clock. Tully then went to his room at Lanergan’s house, having a night key, with which Lanergan had supplied him. He thought Lanergan under the influence of liquor when he loft him. Tully went to the rooms, went in, lit a light, saw Mrs. Lanergan in bed; called, got no' answer; went over, and listened to hear her breathe; laid his hand on her chest, and' found it cold. He then gave the alarm, and called the neighbors.
    The week previous, Tully saw Lanergan strike the deceased (who was under the influence of liquor, and in bed), with a broom handle upon her hip to keep her quiet. She was striving to get' up, and made a racket, and Lanergan struck her to keep her quiet.
    Tully testified that he left the house at seven and one-half that morning, and did not return until six and one-half p. m. Was not at the room at five and one-half p. m. Did not see Lanergan beat his wife, while she was on the floor. He. knows the boy Sullivan by sight. Did not pass him at the time of such an occurrence as the lad testified to.
    Cram, who occupied the room with Tully, as a lodger, testified that he took Lanergan home about one o’clock, on the day of the occurrence, from the residence of Hickey, where they had dinner. That Lanergan was very drunk and staggered against his wife when he went in, grabbed her, and “went to strike her,” but Cram calling to him, not to strike her for God’s sake, and the deceased repeating the words, he staggered into the rocking-chair. From his actions, Cram was satisfied that Lanergan was so drunk that he did not know anything. ' Cram then advised her to lie down. She inquired of Cram if he thought Lanergan would kill her. He replied, “no! what humbug!” Cram says, that Lanergan was then asleep in the rocking-chair.
    The prisoner’s counsel objected to this evidence. The court overruled the objection, and an exception was taken. The witness then further testified, “ I told her it was humbug, or something to that effect; Mrs. Lanergan asked me not to go out, but to put him to bed. I went and asked him, said I, 1 Maurice, get into bed.’ I then assisted him to get into the bed. I then left the house.”
    Lanergan took his dinner that day at Hickey’s and was then quite intoxicated. ' Referring to the drunken condition of his wife, he said with an oath, while at Hickey’s that he would kill her. Hickey did not think that he meant any harm by this threat. Mrs. Hickey said, “ Lanergan, you know you have a good wife.” Lanergan cried and praised the goodness of the deceased.
    On an examination of the room occupied by Lanergan, made the next morning, an axe was found there with blood on it.
    The post-mortem examination showed a contusion upon the side of the head, made with some blunt instrument. The dura-mater, or membraneous covering of the brain, was ruptured, immediately under the contusion, but the skull was not fractured. There was also a broken broom-handle in the room. A knife was taken from the pocket of the prisoner at the station house, and the policeman who made the arrest and was examined as a witness, testified that he thought the blade appeared to have been recently rubbed.
    It should be further observed, that the post-mortem examination disclosed only a local extravasation of blood at the place where the skull and dura-mater were bruised, but there was nothing showing that the brain was not otherwise in a healthy condition.
    The face, arms and legs of the deceased appeared to be black and blue, and exhibited signs of bruising.

      The witness also speaks of her face as swollen and discolored.before the fatal occurrence took place. It is also proven that she had fallen down a flight of stairs. Several witnesses testified to the general good character of Lanergan, as a quiet, peaceable and inoffensive person, not quarrelsome, but very peaceable in his disposition.
    After the evidence was closed, the prisoner’s counsel requested the recorder to charge the jury.-
    “That in order to constitute murder in the first degree, the premeditation must have existed prior to the immediate occurrence which resulted in death;” also, “that if upon a sudden quarrel or meeting between both parties, one kills another designedly and with malice, there being no previous deliberation, it is the duty of the jury to treat such as a case of murder in the second degree.”
    Also, “that the fact of the intoxication of the prisoner, if proved to the satisfaction of the jury, is a proper matter to be considered by the jury in determining the question as to whether his mind was in such a condition as to be able to form an intent to kill, or a premeditated design to effect death.
    There were other requests made to charge as to the law, but no question has been raised here in respect to any other.
    The recorder refused to compel the district attorney to elect upon which of the three counts in the indictment he would claim a conviction, and to his refusal there was an exception.
    The prisoner’s counsel moved for a new trial, on the ground that the verdict was against the law and the evidence. Argument was then had by the prisoner’s counsel and the district attorney, as to the power of the court to entertain the motion. The recorder said, that assuming that he had the power to hear the motion (but not passing upon that question), no argument would induce him to grant a new trial, either upon errors of law or of fact, and thereupon denied the motion.

      Upon being further requested to decide whether the prisoner had the right to move for a new trial in that court,' upon the merits, the recorder further said “I decide that this court has not that power.” The counsel for the prisoner then said: “We except to your Honor’s refusal to entertain the motion for a new trial.”
    ' The prisoner’s counsel also insists before this court, upon the present appeal, that the verdict is against the evidence. The recorder did not, in his charge, declare the law in conformity with the requests above stated, made by the coun sel for the prisoner.
    Previous to the act of 1860, the law was well settled that an intent to kill, formed on the instant of the killing, was proof of premeditation, and established the malicious •intent necessary to constitute the crime of murder.
    The use of numerous adjectives in the act of 1860, defining murder in the first degree, as “ willful, deliberate, and premeditated ” killing, and the enactment of a second degree of murder not punishable by death, induced the judges of the first district; or some of them at least, to hold, that an intent to kill, formed at the instant of killing, was not such premeditation as the new statute contemplated. This construction was further confirmed by the immediate conjunction of the adjectives cited above, with a reference to specific acts of murder in the first degree, by .poison and lying in wait, involving a premeditation of some considerable time, and embodying the idea of a preconceived plan. Certain other acts of killing while in the commission of specific crimes, were also declared to be murder in the first degree, without any reference to malice or premeditation. It is not necessary now to decide whether the construction given to the act of 1860 was correct or not. The act of 1862, while retaining the division of two degrees in the crime of murder, has provided three very distinct definitions of murder in the first degree. The first declares that the killing of a human being with' a premeditated design to effect death, shall be murder in the first degree. This definition is the same as the first definition of the crime in the statutes prior to 1860. The application of the term “premeditated ” to an intent, formed on the instant of the killing, so well established by the courts as proof of a malicious intent to commit murder, must be deemed to have been understood by the Legislature, and that it was intended that there should be no change in the meaning or application of that term, as applied to the killing of a human being..
    Premeditation proves a malicious intention, when applied to a homicide; and when the killing occurs with an intent to effect death, however instantaneously the intent is formed - prior to the commission of the deed, the crime is murder. Under the law, as it existed prior to 1860, the penalty of that crime was death. Since the act of 1862, such killing is murder in the first degree, and the penalty is the same. The word “premeditated” is used in the same connection in the old and in the present statute, and must have the same meaning and construction. The definition of murder in the second degree is exceedingly obscure under the act of 1862. A slight verbal alteration -will make it definite and certain, and not unreasonable, or, perhaps it is better to say, not without reason. As it reads literally, there is no affirmative definition of murder in the second degree. The second degree is such ‘murder as is not within the definition of murder in the first degree.
    The last sentence of section five, defining the crime of murder, as contained in the act of 1862, reads as follows: “ Such killing, unless it be murder in the first degree, or manslaughter, or excusable or justifiable homicide, as hereinafter provided, or when perpetrated without any design to effect death, by a person engaged in the commission of any felony, shall be murder in the second degree.”
    The inquiry occurs, why, except from the definition of murder in the second degree, the killing of a human being by a person engaged in the commission of a felony, although perpetrated without any design to effect death? Such killing was formerly murder, and the penalty death, when no division of the crime of murder into first and second degrees existed. Under the statute, as it existed prior to 1860, such killing was embraced in the third definition of murder in express language. The first and second definitions of murder in the first degree, as contained in the act of 1862, are the same, verbatim, as contained in the definition of murder by the statute before the division of that crime into two degrees. The third definition of murder in the first degree, by the act of 1862, includes killing only when perpetrated in committing arson in the first degree. The third definition of murder by the statute, in force prior to 1860, was in these words: “ When perpetrated without any design to effect death, by a person engaged in the commission of any felony.” The third definition of murder is the only part of the former law that has been modified. In other respects, the three definitions of murder in the first degree are the same now as those of murder, contained in the statute before 1860. A further reference to the statutes is in vain to find what crime is committed by the killing of a human being, “ when perpetrated without any design to effect death, by a person engaged in the commission of any felony.” As the statute now reads, such killing is not murder in the first degree, and it is excepted from the definition of murder in the second degree, nor is it found in any other portion of the statutes punishable as a crime. Clearly, it could not have been the intention of the Legislature to exempt such a class of crime from any punishment. I will not undertake to declare in this case that the statute, as now existing, can be amended by any judicial construction. It is not necessary so to do. I will barely suggest that an obliteration of the last “ or,” occurring in the sentence of section five in the act of 1862, defining murder in the second degree, will remove the obscurity now existing, and give an, express affirmative definition to murder in the second degree, in harmony with the modification of the third definition of murder, as contained in the statutes prior to 1860, into murder in the second degree, except in the single instance of killing when perpetrated in committing arson in the first degree. It will, perhaps, not be too much to say that, in my opinion, such an amendment, by judicial construction, will be in harmony with the intention of the Legislature. It will, I think, be impossible to conceive of any definition of murder, as embraced in the law prior to 1860, not now defined to be murder in the first degree, except killing, without premeditation or design, by a person in the commission of a felony other than arson in the first degree. The conclusion is entirely satisfactory to my mind that it was intended to embrace killing, under the circumstances last mentioned, within the definition of murder in the second degree, by the act of 1862. Unless this class of homicide be included, there is no crime embraced in the present definition of murder in the second degree.
    I expressed the same opinion substantially in the case of The People v. jSkeehan, recently decided by the general term in this district, without any elaboration or course of reasoning by which I had reached that conclusion. A reference to that opinion by the counsel for the prisoner has induced me to make this explanation. My reasons have now been given, as they ought to have been in the former case, that the conclusion there stated may stand only, for so much as it shall prove :to be judicially worth. No doubt it would be better that the amendment should be made by the Legislature, rather than left to the construction of the judiciary.
    It is evident from the previous observations, that the recorder committed no error in declining to charge in conformity with the first two requests of the prisoner’s counsel, relating to premeditation and deliberation, as applicable to murder in the first and second degrees. Both requests assume that an intent to kill, formed at the time of the commission of the act, will not be evidence of premeditation. The rule of law is otherwise, and the requests are not consistent with the rule.
    The remaining request is in reference to the mental condition of the prisoner, arising from intoxication, which the recorder.was requested to instruct the jury, they might take into consideration in determining whether he was able to .form an intent to kill, or a premeditated design to effect death.
    The evidence established that the prisoner had been drinking intoxicating liquors for some days; and that he was very much intoxicated at one o’clock, some four or five hours before the probable time when the killing occurred. Carrón, one of the witnesses, saw him go out of the house, ■ leaving his wife there dead, from violence which he had inflicted, and he required no assistance to walk; neither doing anything to call for a remark, so far as it appears from the evidence, nor making any observation, but knowing sufficient to conceal his crime for several hours, and until her death was discovered, and the alarm given at or about ten o’clock in the evening. After passing the evening at different public houses, from the time he left his own rooms, after the murder (between six and seven o’clock), until ten o’clock, when he went to the residence of the sister of his deceased wife, and informed her that his wife was dead. He then returned to his own rooms, and neither did or said anything tending to show any want of his usual intelligence or understanding, so far as appears from the evidence. - There are few instances of persons who have, in a state of intoxication, taken the life of another, who could refrain from saying or doing something which would tend to inculpation for nearly four hours after the- commission of the act.
    There is no evidence tending to establish the existence of any mental disorder or aberration at the time of the offense committed. There was no evidence to show that the will of the prisoner was not entirely the regulator of his conduct.
    The rule appears to be that drunkenness is no excuse for crime, and that .the person who is voluntarily in that condition, must take the consequences of his own acts. (People v. Rogers, 18 N. Y.)

    It appears, too, from the same case, that intoxication may be adverted to where “ you would not infer a malicious intent,” or where the accused has been aggravated by the conduct of the deceased, but not where the killing was caused by the use of a dangerous instrument.
    The evidence of intoxication is admissible in every trial for murder, because it may tend to cast light upon the acts, observations or circumstances attending the killing.
    Intoxication must result in a fixed mental disease, of some continuance or duration, before it will have the effect to relieve from responsibility for crime.
    There was no error in refusing to charge, as requested, upon the subject of intoxication. Nor was there any error in refusing to require the public prosecutor to elect between the three counts in the indictment.
    The prisoner was apprised of the charge, and. that proof would be produced to show that the crime was committed in one of the several ways in which it was charged.
    The conviction is for murder in the first degree, the crime charged in each count, and not of the facts which constitute the offense.
    In Oolt’s Oase, the indictment charged the killing with an instrument unknown in one count, and in another with a hatchet.
    The indictment was sustained upon appeal, and also the admission of evidence tending to show that the killing was committed by a ball from a pistol, a weapon not mentioned in the indictment, and the evidence was admissible only under the general count, of killing with an unknown instrument.
    In the present case, there was evidence tending to prove that the offense was committed with an axe.
    The prisoner also had a pocket knife, which the policeman thought had been recently rubbed, leaving a possible inference that an attempt had been made to remove the stain of blood.
    The evidence, or rather the probability, of the commission of the offense with a knife was very slight.
    From the evidence of the boy Sullivan, there was more probability that the offense was committed by beating or choking.
    I can perceive no inconsistency in the conviction had under these counts, and no injury to the defense or the fairness of the trial.
    The recorder denied the motion for a new trial upon the merits. He declared that he would not grant a new trial for any error of law or fact appearing in the case, assuming that he had the power to hear the motion. He was after, wards invited to declare whether he had the power to entertain the motion, and he gave his opinion that he had not the power.
    I think upon the authority of Lowenburg’s Case, in the Court of Appeals (27 JV. Y. Rep., 336), that the recorder was mistaken in his opinion, but if he had granted a new trial, his mistake would have been much greater; it would have been an error.
    There was no error in admitting the evidence of the conversation between the witness Cram and the deceased.
    Lanergan was present, and although very drunk, it appears that he was not wholly insensible, although Cram says he was satisfied that Lanergan was so drunk he did not know anything; for it appears that he immediately afterwards asked Lanergan to get into bed, and he complied, with the assistance of Cram.

      The conversation was wholly immaterial, as affecting the result. It showed that Cram did not not believe Lanergan would kill her, while she had so much apprehension as to ask the opinion of Cram about it.
    The evidence tended to prove an absence of malice, rather than the contrary.
    There was also some reason to doubt the exact truth of the evidence that the prisoner “ was so drunk that he did not know anything,” and that “ he was asleep,” and in that aspect it was admissible, and competent for the jury to pass upon its weight or sufficiency as evidence.
    Upon the merits, the judgment is, in my opinion, correct. I am unable to perceive that there is any error of law or fact, or that any injustice had been done by the conviction.
    There appears to be no evidence showing any motive to induce the commission of the crime.
    The evidence of the lad, Sullivan, proved that Lanergan attempted .to conceal the act which he was committing, and suppress any attempt his wife might make with her voice to give an alarm.
    It is true that the evidence of the lad was contradicted by Tully, but both were before the jury, and it was their province to decide upon the credibility of the two witnesses.
    The prisoner also concealed the killing for several hours. He has never admitted the killing by himself, and claimed that it was an accident, or for any cause excusable; at least there is no evidence of any such admission.
    ' Concealment, it is well settled, is evidence of malice—of a premeditated design to commit the deed.
    If he had not intentionally committed the killing, some human emotion would have induced him to betray his sorrow or his consciousness of his own overwhelming disaster.
    The evidence of the sounds heard in the room of Lanergan by Carrón; the axe found there with marks of blood on it; the contusion upon the- head of the deceased with a blunt instrument; the fact that the deceased and the accused were- left together in their rooms at oiie o’clock by Cram, when she was last seen alive; that he was seen to leave- the rooms shortly after the heavy sounds or knocks heard by Carrón; that Tully found the door locked when he returned at about ten o’clock, no one appearing to have been there after Carrón saw Lanergan leaving the place; that after passing the evening away from his room, from the time he left there when Carrón saw him, till about ten o’clock, when, without any one giving him the information, he was able to go to the residence of Hickey and inform Mrs. Hickey that his wife was dead, he having previously omitted to make any mention of the fact to Tully or to his brother-in-law, Hickey, with whom he had passed a considerable portion of the evening; all these facts, aside from the evidence of the lad, Sullivan, make a strong case of premeditated murder. Tully saw Mrs. Lanergan in bed, as he thought, at six or six and a half o’clock, p. m., and Lanergan advised him to get his supper elsewhere. It is probable, from the evidence of Sullivan and Carrón, as to the time when the former saw Lanergan striking his wife, and the lattér heard knocks as with an axe or sledge; that the murder had been then committed. Tully was mistaken in supposing that she was alive and lying down in her dress. If so, then the skill with which Lanergan induced Tully to go away was sufficient to rebut any idea of stupefaction from intoxication, and to establish premeditation or design in the commission of the killing.
    In my opinion the judgment should be affirmed.
    Clerke, J., concurred.
    Sutherland, J. I concur in the conclusion, but I would suggest that the presiding judge is certainly mistaken in his construction of the fifth section of the act of April 12th, 1862. The last “or” in that section should be read “ and.”
    Compare that section with section fourth.
    The killing, without premeditated design, m the commission of a felony, is not excepted in the last sentence of the fifth section, but is made murder in the second degree by it.
    The whole act, and especially section fifth, is crudely drawn, but I think its meaning is quite plain.
    Judgment affirmed. The case was then brought into this court for review.

      William F. Kintzing, for the plaintiff in error,
    cited Session Laws of 1859, chap. 339, § 4; Session Laws of 1859, chap. 208, § 1; Lowenburg v. The People, 27 N. Y. Rep., 336; Ferris v. The People, 35 N. Y. Rep., 124; People v. Powell, 14 Abbott Pr. Rep., 91; Wharton Am. Cr. Law, 1st ed., p. 424; Bemis' Webster Case, 471; State v. Melville, 10 Louisiana R., 456; Wharton on Homicide, 260, 291; 1 Wharton Am. Cr. Law, 1059; 1 Arch. Cr. Pr. and Pl., 883; 3 Durn. & East, 106; Donelly v. State, 2 Dutcher, 463, 601; State v. Abrahams. 6 Clark (Iowa), 117; State v. Fox, 1 Dutcher, 556; Mackally’s Case, 9 Coke, 69; 1 East P. C., 341; 2 Hawk. P. C., 616; Rex v. Walter, 7 Carr & Payne; People v. Sullivan, 1 Park. Cr. R., 347; People v. Clark, 7 N. Y. Rep., 385; State v. Turner, Wright’s Rep., 20; Clark v. State, 8 Humph., 651.

      A. Oakey Hall (District Attorney), for the defendant in error,
    cited Kane v. The People, 8 Wend., 211; People v. McKee, 36 N. Y., 116; People v. Kenny, 31 N. Y, 337; People v. Clark, 7 N. Y., 385; People v. Sullivan, 7 N. Y., 396.
   Dwight, J.

The plaintiff in error was convicted in the General Sessions of New York city, of the murder of his wife in that city, on the 26th day of March, 1867. The conviction was of murder in the first degree. The indictment contained three counts, alleging severally a killing with an axe, with a knife, and by beating and choking. After the evidence was in, the prisoner moved that the people be required to elect upon which of these counts, they would go to the jury, which was refused by the court, and the prisoner excepted. A witness for the people; George Cram, said that on the day- of the killing, at about one o’clock in the afternoon, he accompanied the prisoner hpme; that the latter was very much intoxicated; that, as he entered the. room .where his wife was, he staggered against her and “went to strike her;” that witness and the wife both remonstrated, and the prisoner staggered over into a rocking chair and went to sleep; that witness then advised the wife, who was not sober, to go into the adjoining room and lie down, and upon her doing so told her he must goto Ms work; that the woman thereupon'begged him not to go, and asked him, “ Do you think he will kill me?” to which witness replied, “No; what humbug;” that at the time of this conversation the prisoner was in the adjoining room (the connecting door being open) in the chair asleep, “sound and solid;” that he was asleep, as soon as he struck the chair, and that witness shortly after-wards shook Mm in the chair, and knew he was unconscious. The prisoner’s counsel objected to the evidence of the conversation between Cram and the deceased, under the circumstances above narrated. The objection was overruled and the prisoner excepted.

After verdict, the prisoner moved the court for a new trial, on the ground that the verdict was against the law and the evidence. The court refused to' entertain the motion, deciding that it had no'power’to grant a new trial, the recorder at- the same time remarking that he was “quite sure that no argument of counsel would induce Mm to grant a new trial, either upon error of law or of fact,” and the prisoner excepted to the refusal to entertain a motion for a new trial. One other alleged error was relied upon by the plaintiff in error, viz: ' The refusal of the court to charge “That in order to constitute murder in the first degree, the premeditation must have existed .prior to the immediate occurrence which resulted in death.” .But the whole question here involved, including the construction of the act of 1862, defining the degrees of murder, was disposed of in the case of Fitzgerald v. The People, decided at the March term of this court, and will not be reconsidered here. The evidence showed that the .prisoner had always been a quiet and peaceable man, and, so far as appears, had lived pleasantly with his wife, down to about the time of her death; that on St. Patrick’s day, nine clays before the event, the prisoner and his wife had both commenced to drink, and had both been constantly under the influence of liquor, down to the hour of the catastrophe. There is no evidence of any motive for the commission of the crime.

The first objection raised by the plaintiff in error, viz: to the refusal of the court to require the people to elect on which count of the indictment they would ask for a .conviction, is untenable; as was said by Chancellor Walworth, in Kane v. The People (8 Wend., 203), “ It is every day’s practice to charge a felony in different, ways in several counts for the purpose of reaching the evidence as it appears on the trial,” and “if the different counts are inserted in good faith for the purpose of making a single charge, the court will not compel the prosecution to elect.” I am not aware that the correctness of this practice has ever since that time been questioned.

The second objection, viz: that the court erred in admitting the testimony of the witness Cram to the conversation between himself and the prisoner’s wife, I think is well taken. That conversation cannot be evidence, only on the theory that it took place in the presence of the accused, and not merely in his bodily presence, but in his hearing and understanding. A declaration made in the presence of one unconscious from sleep or stupor, cannot be evidence against him, and that seems to have been the condition of the prisoner here. The learned judge below thought it was for the jury to say whether he was wholly unconscious or not, but the evidence on that point was uncontradicted, and to my mind seems positive. The witness says he was very much intoxicated; that immediately upon coming into the room he staggered over into a rocking-chair and went to'sleep; that he appeared to be asleep, “sound and solid;” that as soon as he struck the chair he was gone; that about the same time witness shook him in the chair and was satisfied he was unconscious. It is true the witness testifies that soon after the conversation he told the prisoner to go to bed, and that he got to bed with the assistance of the witness; but I have no doubt it was then that he shook him in his chair, and found such means necessary to rouse him sufficiently to be got to bed.

But aside from this condition of the prisoner, and whatever the degree of .his stupor, the conversation was not even in his bodily presence.. The fact, apparently overlooked by the learned judge below, is that the prisoner was in one room, and the interlocutors, the witness and the deceased, in an adjoining room. Cram had induced the deceased to go into his room, adjoining that in which the prisoner and his wife lived, and lie down; he had gone in with her, and it was when he was about to leave her there that the conversation took place. It is true he testifies that the door between the rooms- was open; but there is no evidence of the position of the several parties relative to the door, nor of their distance from it, nor whether the tone of voice was such as could have been heard from one room to the other. Since, therefore, this conversation was not in any sense in the presence of the accused, it was clearly inadmissible; and unless it appears that it cannot in any degree have operated to the prejudice of the prisoner, its admission is good ground for a new trial. Upon this point it seems to me that there can be no question. The evidence of the prisoner’s guilt was wholly circumstantial: both the fact of killing and the design to effect death were required to be inferred from the circumstances mainly of opportunity and of the conduct of the prisoner both before and after the event. Prominent among these were the facts of some threats uttered by the prisoner on the same day of the. killing, though not in the presence of the deceased; and the evidence of the conversation with Cram, certainly tended to show that the prisoner had previously made similar threats to the deceased herself, or had in some other way impressed her with fear of fatal violence at his hands. The language of Cram clearly indicates an apprehension in his mind that the prisoner entertained murderous purposes towards her, and it is not only impossible to say that this proof cannot have influenced the minds of the jury to the prejudice of the prisoner, but it is difficult, to see how it can have failed to do so. In my opinion, the admission of this testimony was an error fatal to the trial.

The remaining objection of the plaintiff in error which I shall consider is that the recorder erred in refusing to entertain a motion for a new trial. . In the opinion below it is said, “ The recorder denied this motion on its merits;” but surely it is not possible to decide such a motion on its merits without entertaining it, and in this case the recorder distinctly refused to entertain the motion on the ground that he had no power to grant it, although he added that if he had the power he would not exercise it. There can be no doubt that the recorder was wrong in his opinion on the question of the power to grant a new trial. The act of 1859 (Laws of 1859, chap. 339, § 4) provides: “The.Courts of Sessions of the several counties in this State shall have power to grant new trials upon the merits or for irregularities or on the ground of newly-discovered evidence in all cases tried before them.” It is difficult to see how this provision could ever have been understood not to include the “Court of General Sessions of the Peace, in and for the City and County of New York.” And this court in the case of Lowenburg v. The People (27 New York, 336), held that substantially the same language in another act did include that court. The question in that case arose under chapter 208 of the laws of the same year (Laws of 1859, chap. 208, § 1), which provides: “It shall be lawful for the Court of Sessions of any county of this State to continue its sittings at any term thereof, so long as it may be necessary,” etc., etc.', and the opinion in that case which upon this point seems to have been concurred in by the whole court, holds the following language: “The Court of General Sessions of the Peace, in and for the City and County of New York, is but a Court of Sessions of the County of New York, and- is designated in the act of 1859 by the words ‘ The Court of Sessions of any county of this State.’ ” There can be no question but thai the- designation in chapter 339 is equally inclusive with that in chapter 208, and consequently no question but that the Court of General Sessions of New York has the power to grant a new trial on the merits. Such being the case, I cannot avoid the conclusion that a substantial right was denied the prisoner in this case, viz: the right to have his motion for a new trial heard by the court which tried him. I cannot think this motion was decided upon its merits. The remark of the recorder about not being induced to grant the motion seems to have been a hasty declaration made without hearing counsel, and coupled in the same breath with the decisive announcement that he had no power to entertain the motion; nor am I prepared to say, as is said in the opinion below, that if the recorder had granted a new trial it would have been an error. I do not think an appellate court can decide what effect a review of the case might have had upon the judge who tried it, and who heard and saw all the witnesses.

If the prisoner had a right to move for a new trial, he had a right to have that motion heard and considered. That right was denied him, and in my opinion that denial was error..

If the views which I have expressed upon the second and third objections of the plaintiff in error, as enumerated above, are correct, it follows that the judgment of the General Term of the Supreme Court and that of the General Sessions should be reversed, and a new trial granted.

Judgment reversed and new trial ordered.


author: Marvin, J. Daniels, J. (dissenting).

text:
    ' Supreme Court. Erie General Term.
    May, 1867.

      DanielSi Marvin and Davis, Justices.
    Joel Lindsley, Plaintiff in Error, v. The People, Defendants in Error.
    Where a defendant on a trial for crime is entitled to a peremptory challenge, the right continues until the juror is sworn.
    On a trial for manslaughter, in which the defendant was entitled under the statute to five peremptory challenges, after eleven jurors had been drawn a person drawn ,as a juror was challenged by the defendant for principal cause and, after a trial of the challenge, it was overruled and the person declared competent to serve as a juror. The court then asked the prisoner's counsel if they challenged the juror peremptorily, and the counsel answered, “no.” The juror then took his seat in the box. After-wards, while the other jurors were being sworn, and before the juror in question was sworn, the counsel for defendant insisted upon the right of then peremptorily challenging the juror. Held, that the right of peremptory challenge still existed—that its exercise at that time was an absolute right and did not rest in the discretion of the court, and that it had not been waived by the previous answer of the defendant’s counsel, declining to challenge the juror—Mr. Justice Daniels dissenting.

      Error to the Oyer and Terminer of Orleans county.
    Joel Lindsley was tried at the Oyer and Terminer held in Orleans county in January, 1847, upon an indictment for manslaughter in the second degree; also in the third degree. He was convicted of manslaughter in the second degree. Humorous exceptions were taken during the trial. Those which are considered by the court are stated in the following opinion:
    S. E. Church, for the plaintiff in error.

      J. M. Thompson (District Attorney), for the defendant in error.
   Marvin, J.

It appears from the bill of exceptions that the jurors, as they were severally called, were challenged by each side, and each juror was sworn and examined as to his competency. If found competent, and not peremptorily challenged, he took his seat in the box. Eleven jurors were thus seated, when Asa Baldwin was called, sworn and examined as to his competency to sit as a juror. He stated that he had heard of the case; had read an account of it in the papers, and, if true, he had formed an opinion; that he read the account, believed it, and .then formed an opinion. Question by the court: .“Have you now any fixed opinion upon your mind as to the guilt or innocence of the prisoner?” Answer: “I have not.” The court decided that the juror was competent; to which decision the prisoner’s counsel excepted.

The court then asked the prisoner’s counsel if they challenged the juror peremptorily, to which the counsel replied, “ no.” The juror then, by the direction of the court, took his seat with the eleven jurors in the box. Afterwards, and before Baldwin was sworn or commenced to be sworn, and while the other jurors were being sworn, the prisoner’s counsel insisted upon peremptprily challenging the said juror, the prisoner’s peremptory challenges not being exhausted; but the court decided not to allow the said challenge to be made, on the ground that the counsel for the prisoner had waived the right by refusing to do so when asked by the court if they would so challenge him, before the juror was directed to take his seat in the jury box. To this decision the counsel for the prisoner excepted. The juror was sworn as one of the jurors.

The prisoner was “entitled peremptorily to challenge five of the persons drawn as jurors for such trial, and no more.” (Sess. Laws 1847, chap. 134, § 2.) It is claimed by the prisoner’s counsel that this right of challenge is absolute and continuous until the juror has been actually sworn, and that he cannot be prejudiced in this, right by anything said or done by him prior to such swearing. On the contrary, the position of the counsel for the people is that announced by the court at the trial, viz: that the right was waived by refusing to make the challenge when the counsel was asked by the court if they challenged the juror peremptorily. It was said upon the argument that no case in point, decided in this State, had been found. It seems that cases decided in other States are in conflict. I will hereafter notice them. Let us, for the present, consult the co'mmon law. By that there are many kinds of challenges which may be made by the party put upon his trial charged with crime", and the issue raised by the challenge is to be decided by the court, or by triers, depending upon the nature of the challenge. The cause or ground of the challenge is to be stated by the prisoner, and there is to be an inquiry to ascertain the truth of the alleged cause or grounds, and this is to be followed by a decision made by the court or the triers. But in addition, to. these challenges, and entirely independent of them, there is one very properly named peremptory challenge. When the prisoner has a right to make this challenge, the right is full and absolute. It does not depend upon any conditions or circumstances." The prisoner, in effect, says to the proposed juror, “ Stand aside'; I reject you as one of my triers.” By the common law this right only existed in capital cases, but those cases were very numerous in ancient times. The prisoner could challenge peremptorily thirty-five, one less than three full petit juries, and the reason assigned for this number was that the petit jury come instead of the ordeal, and the petit jury of twelve being after the manner of the canonical prerogative, in which the whole pares (the prisoner’s equals or peers) were not on the jury, but a select number chosen . by the criminal himself, as was usual among the canonists, and as four juries were as many as generally appeared to make the total pares of the county, a middle course was adopted, by giving the defendant the liberty to challenge peremptorily any number under three jiyies. (Bac. Ab., Juries, E. E., 9.)

This explains the language we often find, that the prisoner in capital cases is tried by a jury of his own selection. This is in effect so, being limited to • four juries less one . juror from whom to make the selection. The selection is made by rejecting all except those he selects or desires for his trial. English statutes and otir statutes have reduced the number of peremptory challenges; and our statute has also extended the right, limiting the number, to other than capital cases. And such is the statute of 1847, under which the trial in this case was had. But to ascertain the character of the right we must consult the common law.

The question in this case is, at what time and under what circumstances does this absolute right of peremptory challenge ceáse ? I should have said, were there no decisions to the .contrary, until the juror proposed by the people had become a juror in the case; and such he certainly is not until he is fully charged with the case, that is, sworn “well and truly to try, and true deliverance make” between the people and the prisoner whom he had in charge, etc. Suppose the proposed juror shall fall down in a fit just as he is about to be sworn, would not the court have the right to excuse him, and cause another to be called, though the prisoner should object ? I think no one will doubt this; and yet if he had been sworn and then become sick, or had died, the trial could not proceed.

In England, in capital cases, the clerk addresses the prisoner, in substance, thus (the jury being called and appearing): “ These good men called and appearing are to pass on your life and death, therefore if you will challenge any of them, you are to do- it before they are sworn.” (Bac. Ab. Jurist, F.) As to the right of peremptory challenge and the warrant for it, see 4 Black. Com., 353; and the-application of the right in Bow. Title, Juries, E; of Peremptory Ghallenges.

The counsel for Lindsley has quoted largely from Gol. John Morris’ case, tried for treason in 1649 (4 Howell’s State Trials, 1255). So far as it bears upon the precise question under consideration, it may be stated thus: The prisoner excepted against one Brooke. The court: • “ Sir, he is sworn, and you speak too late.” ' Morris: “My lord,I appeal to himself whether he be sworn or no.” Brooke: ‘f Sir, I am not to answer you but the court; my lord, I did not kiss the book.” Court: “ Sir, that is no matter; it is not necessary.” The clerk said: “ Sir, he is recorded sworn; there is no disputing against the record.” The plain inference from this is that the right continues until the juror is sworn. The court conceded the right, and put its refusal to recognize the challenge expressly upon the ground that the juror had been sworn. But it will be said that there was no prior waiver of the right in the case, and that is so. I confess that I cannot very well comprehend this idea of waiver in such a case. The right is absolute until the juror is sworn, and yet it is said that this right may be waived in a manner which will deprive the prisoner of the right to resume it, though the fact which bars the right has not yet happened. Upon what principle is he to be estopped ? For it comes to this: he is to be barred or estopped by reason of something he has said or done.

My judgment will not assent to this view. It seems to me a dangerous innovation of a clear and absolute right secured to the prisoner. In the case State v. Patten (18 Conn., 166), the court inquired of counsel whether any reason for a peremptory challenge then existed -that did not exist when they before declined to exercise the right, and the counsel answered in the negative; and the court then decided that it was too-late to challenge peremptorily. As we have seen, the right is absolute. Blackstone says: “Every one-must be sensible what sudden impressions and unwarrantable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner, when put to defend his life, should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceiyed a prejudice, even without being able to assign a reason for such dislike.” (4 Black. Com., 353.) Now if the court can, at any time, qualify this right by asking for a reason,

I suppose the court will have the right to take into consideration the reason assigned, and pass upon it. If the reason is not satisfactory to the court it will be rejected. Suppose the prisoner should say, I have conceived an unaccountable prejudice against the juror; I dislike him but I can assign no reason for the dislike. The court may say, this is frivolous, this is trifling. Again suppose, after the prisoner had declined to challenge the juror, and he had taken his seat in the box, the prisoner is informed . of some fact which renders the sitting of the juror in his cause absolutely dangerous, and yet the fact is of such a-nature as greatly to prejudice or endanger the prisoner’s case, if made public; ig the prisoner to be' compelled t© disclose it to the court? And if so, as I suppose, the court is still to pass upon the reason. In other words, and it comes simply to this, the prisoner may be deprived of the right of peremptory challenge, for a period shorter or longer, before the juror. is sworn. It may be hours, depending upon the practice as to the time of swearing the jury, whether each juror is sworn when he is called and accepted, as is the practice in capital cases, or not . sworn until the box is full.

The counsel for the people has been diligent in collecting the cases in this country. The State v. Patten (18 Conn., R. 166) is claimed to be in point.

The court in that case recognize the absolute character of the right, and that it must be fairly awarded to the prisoner, but that the time when that right is to be exercised is a matter of practice in empaneling the jury. The court refer to the practice in England of swearing each juror separately, as he is called, and that the peremptory challenge must, of course, be made before the juror is sworn. The practice in Connecticut is to call the juror, and if found competent and no peremptory challenge is made, he is directed to take his seat; and that course is pursued until a full jury is obtained, and then the oath is administered to them all at onpe. The court held that the effect of the practice in both cases is the same. -In the one case, the prisoner’s opportunity is closed when the juror is sworn; in the other case, when he is directed to take his seat. That by the Connecticut practice the prisoner had an additional advantage; that if anything new had occurred since the juror was directed to take his seat, the prisoner will not be absolutely precluded from taking the benefit of it, as he is in England, after the juror is sworn. I have thus stated the pqsition of the Connecticut court, and perhaps no very serious objections can be made to the practice thus established—and it is clearly a matter of practice—under their statute, giving the right to chailenge peremptorily twenty jurors' “ summoned and empanneled.” . The court remark upon this language of the statute, “ summoned and empanneled,” and claim that the court may establish the practice under it, as to the time when the right of challenge is to be exercised.

It will be noticed that the court held the common law to be, as administered in England, that the right continued up to the actual swearing of the juror. That is precisely what is claimed in this case by the prisoner's counsel. • The Connecticut court claims that it gives the common law full effect, and in a manner not prejudicial, to the' prisoner; that the delay to swear the juror cannot prejudice him. Now, how can we be sure of this? When the juror is actually sworn, the rights of the parties are usually fixed, and the prisoner has a right to insist upon his being one of Ms triers. But at any time prior to the actual swearing, I suppose the Connecticut court would exercise the power of excusing the juror on account of sickness, or if he should die the trial would not be arrested. .

If it were a question of practice, and that, too, influenced in some measure by the language of a statute, it may well be considered whether the Connecticut practice should be adopted in this State. Our statute gives the right “ peremptorily to challenge twenty persons drawn as jurors for such trial, and no more.” (2 R. S., 734, § 9.) By the act of 1847 (applicable to the present case),the number is “five of the persons drawn as jurors for such trial, and no more.” It is thus seen that the language of our statute and that of the Connecticut statute differ. Whether this difference should affect the question it is not necessary to say; but it is proper to notice that the Connecticut court, in speaking of their statute, say-that the jury form a jury when thus empaneled (that is, sworn, as the counsel claimed they should be to satisfy the statute) is true, but that they are not empaneled until sworn is not true; that a jury are said to be empaneled when the sheriff has entered their names into the panel—a little piece of parchment—citing Co. Litt., 158 b. The court then, in view of the statute giving the right to challenge jurors “ summoned and empaneled,” make it a question of practice as to the time when, during the forming of the jury, the right should be exercised. Our statutes use the language, “ persons drawn as jurors for such trial;” that is, persons whose names are drawn by the clerk from the jury box. There are certainly no words of limitation. The right of peremptory challenge, as to the time when it is to be exercised, is left as it was at common law when our statutes were enacted; and I certainly doubt the power of the court to restrict or abridge this right, because of a change in the manner of empanneling and swearing the jury. I am not in favor of introducing the Connecticut practice into this State. I think the general understanding of the courts and the bar in this State is, that the right of peremptory challenge is secured to the prisoner until the juror is sworn. This rule is certain and easy of application.

In Hendricks v. Commonwealth (5 Leigh, 707), the court, on the trial, refused, as in the present case, to permit the prisoner to retract his election of a certain juror, and to challenge him peremptorily. The appellate court were “ unanimously of the opinion that the right of a prisoner to challenge any juror peremptorily is absolute at any time before the juror is sworn, and that no circumstance can bring that right within the discretion of the court so long as it is confined to the number of peremptory challenges allowed bylaw.” This case is in point. Beauchamp v. State (5 Blackf., 308) is to the same effect, and so also is Manly v. State (7 Blackf., 593); and so Hooker v. The State (4 Ohio R., 348); and so also The People v. Kahle (4 Cal. R., 198). The counsel for the people cited, upon the argument, two or three other cases. Some of them I am not able to consult. The decision in the Oommonwealth v. Angus (7 Metc., 500) evidently depended upon a statute. If was decided at the trial that the right of peremptory challenge must be exercised, if at all, before the jurors are interrogated by the court concerning their bias and opinions. Clearly we have no such law or practice in this State. As I understand, the weight of authority, as evidenced by the decisions in the States, is decidedly in favor of the position that the right of peremptory challenge continues until the juror is sworn.

I think the court erred in not allowing the prisoner to challenge peremptorily the juror Baldwin, and that the judgment must be reversed and there must be a new trial.

There are several other exceptions in the iecord, but the same questions may not arise upon the new trial, and I do not think it necessary to express any opinion upon them.

.Davis, J., concurred.

Judgment reversed and new trial ordered

Daniels, J. (dissenting).

The plaintiff in error was tried before the Court of Oyer and Terminer, held in Orleans county, upon an indictment charging him with the offense of manslaughter. Various exceptions were taken upon the trial, and after the conviction of the plaintiff in error, a bill of exceptions was made and a writ of error issued, bringing them before this court for its consideration. Several of these exceptions arose upon the empanneling of the jury. The first was taken to the ruling of the court that Nehemiah Gates was a competent juror. Upon being sworn and interrogated, he answered as.follows: “I don’t know as I have formed an opinion. I have formed an opinion if what I heard was true. I believe that what I heard was true.” Upon being cross-examined, he said: “I formed an opinion if what I heard was true. I did not know whether it was true or not.” The opinion which this juror had was merely hypothetical, depending on whether the statements he had heard were true or not which he did not know. Another exception of the same general nature was taken to the ruling concerning the competency of Asa Baldwin. He testified as follows: “I have heard of this cause. I have not thought much about this case since I heard of it. I have read an account of it in the papers. If true, I did form an opinion. I read the account, believed it, and then formed an opinion.” Upon being asked whether he, at the time of the examination, had any fixed opinion upon his mind as to the guilt or innocence of the prisoner, he answered: “I have not.” The state of this juror’s mind was very much like that of Mr. Gates. Whether he had any opinion' depended upon the truth of the statements he had read. But he was able to say decidedly that he had no fixed opinion on the subject of the prisoner’s guilt or innocence. If he had no fixed opinion, it is difficult to understand how he could have any opinion whatever upon the subject, fin-an opinion is a fixed conclusion in the mind, a conviction of a more or less decided character concerning the subject it relates to. If it is not in any way fixed in the mind, it must be a mere conjecture or impression which would leave the mind impartial upon the subject to be investigated. It has accordingly been held that to constitute a ground of principal challenge for cause to a person called as a juror, for an opinion formed, that it must be a fixed or settled opinion. “And nothing short of such an opinion will sustain a challenge to a juror for principal cause.” (People v. Honeyman, 3 Denio, 121, 123.)

The decision of the Court of Appeals in Qancemi’s Oase is no way in conflict with this conclusion. The juror in that case stated that he had formed an opinion, and expressed it, and on cross-examination said that he had no fixed opinion—none which could not be removed by the evidence. It is plain that the juror in this case entertained a fixed opinion. The state of his mind was such that it required evidence to render it impartial. While his opinion would yield to evidence, without it the opinion would remain. He could not have tried the prisoner impartially until that opinion should be removed. He would enter upon the case, if his opinion was against the prisoner, with a conclusion against him, which the prisoner would have to remove before the juror would be prepared to pronounce him innocent. This was directly opposed to the theory of trial by jury, which requires that the jurors shall be entirely impartial upon the case they are required to hear and determine. This juror was held to be incompetent because “ his mind was preoccupied with an opinion upon the issues to be tried, which it would require evidence to remove; and that, upon principle, and by all the cases, incapacitated him for a juror. (16 N. Y., 502, 505.)

The juror in the case of the People v. Mather (4 Wend., 231), testified that he had no fixed opinion other than such impressions as were formed upon printed statements in papers and reports in conversations. But he did have a fixed opinion derived from those sources. That is assumed in his answer; and on that account he was determined to be incompetent. In delivering the opinion of the court in that case, Justice Marct said: “ There is, however, a distinction between positive and hypothetical opinions. It was recognized in the case of Durell v. Mosher (8 John., 445). The court in that case say that the juror had given no decided opinion on the merits; his declaration was hypothetical.” (Idem, 243.)

In the case of Freeman v. The People (4 Denio, 34), it was held that contingent or hypothetical opinions fall short of what is required to maintain a challenge for principal cause. And the same conclusion was declared in People v. Stout (4 Parker, 71, 109). In that case it was held that the opinion to disqualify a juror must be absolute, unconditional, definite and settled, in distinction from one which is hypothetical, conditional, indefinite and uncertain. The mind must be for the time being settled and at rest upon the question of the prisoner’s guilt. Under these authorities there was certainly no impropriety in the ruling that these two jurors were competent to serve as such in this case.

After six jurors had been selected and accepted from the regular panel in attendance npon the court, and twenty-four of the seventy-five drawn as talismen from the box of the town had appeared, the court ordered their names to be placed in the box, and the drawing of the jury to proceed from them. To this the prisoner’s counsel objected, because the entire seventy-five had not then been summoned and returned. The court overruled the objection, and the prisoner’s counsel excepted. There is nothing in the statute under which these jurors were drawn requiring the court to delay the organization of the jury until all those that are drawn shall be summoned and returned (4th R. S., 5th Ed., 648-9). And it is not pretended that the prisoner was in any manner prejudiced in his rights by the omission to do so. And in that case, the rule appears to be settled that any informality or mistake of an officer in drawing a jury, or any irregularity or misconduct in the jurors themselves, will not be a sufficient ground for setting aside a verdict, either in a criminal or civil case, where the court are satisfied that the party complaining has not or could not have sustained any injury from it. (The People v. Ransom, 7 Wend., 416, 424.) The object of drawing the additional jurors was to obtain a sufficient number to form a complete jury; and if that could be done without delaying the trial until all that were to be summoned had appeared, no injury whatever could result to the prisoner by taking that course.

When the juror, Asa Baldwin, was held to be competent to serve, the court asked the prisoner’s counsel if they challenged the said juror peremptorily; to which the counsel replied no. The prosecution declining to challenge the juror peremptorily, he was then directed to and did take Ms seat with the" other eleven jurors, who had previously been selected as jurors in the cause and were then in the box. Afterwards, and before the juror was sworn, or commenced to be sworn, and while the other jurors were being sworn, the prisoner’s counsel insisted upon peremptorily challenging the said juror, his peremptory challenges being then unexhausted. But the court decided not to allow the challenge to be made, on the ground that the counsel for the prisoner had waived his right by refusing to do so when asked by the court if they would so challenge Mm before he was directed to take his seat in the jury box. The prisoner’s counsel excepted to this ruling. It is now insisted, on the part of the prisoner, that the refusal to challenge the juror peremptorily when an opportunity to do so was expressly given him before the juror took his seat in the jury box, was no waiver of his right to do so afterwards, before he was sworn. The refusal to challenge the juror peremptorily was decided and explicit—not that he would not be challenged then, but that he would not be challenged peremptorily by the prisoner’s counsel. And no reason was suggested at the trial on the part of the prisoner, when the juror ,was about being sworn, rendering it proper that he should then be permitted to avail himself of the right he had so distinctly renounced before. In the absence of any different understanding at the trial, the right to make peremptory challenges will continue until the jurors are sworn. That is essential to the proper and perfect maintenance of the right itself. But when a different course is adopted by which the exercise of the right is to be made at a particular time, in no manner prejudicial to any other privilege secured to the prisoner, his right to make peremptory challenges is in no way impaired. If he desires to peremptorily challenge a particular juroi an ample opportunity for doing so is secured to him; and that, too, after his challenges for cause, or to the favor, may have been made, which is all that he reasonably or justly has any right to demand. His peremptory challenges are as completely and effectually preserved and secured in that manner as they would be by allowing them to be made at any time before the jurors are sworn. In the case of The People v. Damon (13 Wend., 351), Savage, Chief J., delivering the opinion of the court, stated that “ the regular practice is to challenge jurors as they come to the book to be sworn; but I apprehend this is matter of practice, and may be departed from in the discretion of the court.” In this case no objection was raised to that course, when the defendant was required to make the challenge if he proposed to do so; but, on the other hand, both himself and his counsel apparently acquiesced in the propriety of the practice adopted in this case.

There is nothing contained in the statute, conferring the right upon the prisoner to make peremptory challenges, requiring that the time for making them should be prolonged to the actual swearing of the juror. It provides that every person put on trial for any offense punishable with death, or imprisonment in a State prison ten years or any longer time, shall be entitled to peremptorily challenge twenty of the persons drawn as jurors for his trial; and every person put on trial for any offense not punishable with death, or imprisonment in State prison for ten years or a longer time, shall he entitled peremptorily -to challenge five of the persons drawn as jurors for the trial. (3 R. S., 5th ed., 1027, §§ 9, 10.) This provides no particular period at or during which the challenges may be made, except that it must be after the person challenged has been drawn as a juror. And the privilege or right thus secured to the prisoner.was as completely presented to and enjoyed by him as it could have been by continuing it until the juror wag sworn. The opportunity of challenging the juror peremptorily was clearly and distinctly given to him, and he as clearly and distinctly declined to avail himself of it.

Under the statute, this right is secured to the accused. He is not obliged to exercise it, or to avail himself of it Whether he will do so or not is exclusively within his own election. It is in no manner essential to the validity of the trial that he should make use df it; and if he omits to do so he has no right to complain of the omission. It .is obviously and necessarily, therefore, a right or privilege which he may waive, and it is solely for him to decide whether he will waive or assert it. In this respect he. is subject to the dictation or control of no person whatsoever. When the opportunity was extended to him for exercising this power, he not only decided not to make use of it, but announced that determination as clearly, and plainly as words could be made to express it.

This right of peremptory challenge is of an entirely different nature from those reserved to the criminal which it has been held he could not waive. Among these is the positive requirement that persons accused of crimes shall be tried by jury, and that the jury shall consist of the first twelve jurors who shall appear and be approved as indifferent, both of which were secured to the prisoner in this case. Under the great charter of England, a peer was required to be tried by peers of the realm. In these cases the charter in the one case and the constitution and statute relating to the others, are imperative, and no legal valid trial could be had without conforming to their requirements. (Cancemi v. The People, 18 N. Y., 128.) The party charged with the offense could legally be tried in no other manner than that specially declared and provided, and consequently consent on his part to a different mode of trial would be altogether nugatory. The end would be the same as though he persistently objected to the unauthorized proceeding. But there is no statute imperatively requiring that the prisoner shall peremptorily challenge one or more of the persons drawn as jurors to try him. The privilege is conferred upon him to use it or not, as he may deem proper. And his election upon that subject is not only conclusive upon him, but it is likewise so upon every other person. And being so, he may use or surrender it as to him may at the time seem proper. A party may always waive a benefit secured to him by law, whether constitutional or statutory, unless the observance of it is imperatively required. He may waive a constitutional provision, or an enactment of the Legislature intended for his benefit, subject to the restriction just mentioned. (Lee v. Tillotson, 24 Wend., 337; People v. Murray, 5 Hill, 468; Sedgwick on Const, and Stat. Law, 111, 421; Buel v. Trustees of Lockport, 3 Com., 197, 200.) He may also waive his right to an examination when arrested upon a criminal charge. (Champlain v. The People, 2 Comst., 82, 84.) And when arraigned upon an indictment he may even waive his right to a trial by pleading guilty, and that too without reference to the character or consequences of the offense he maybe charged with. On this general subject Cowen, Justice, in delivering. the opinion of the court in The People v. Rathbun (21 Wend., 542), said: “Quilibet potest renunciare juri pro se introducto, is a maxim of universal application. The prisoner may even waive his right to a trial at the hands of a jury on the merits by pleading guilty. Having the power, no one will pretend that he cannot consent to anything less. He may waive any matter of form or substance, excepting only what may relate to the jurisdiction of the court.” (See also Broom’s Legal Maxims, 444.) And having the power, no more unequivocal indication could be given of the intention to renounce the privilege conferred upon him than that which the evidence in this case presented. If the party arraigned upon an indictment should declare that he did not demand a trial, or, which is the same thing, pleaded guilty, he would have no right afterwards to' demand a trial or plead not guilty. His right would be gone with the announcement of his determination, and whatever change might follow a change in the prisoner’s purposes, would depend upon the discretion of the court. So it was in this case. When the prisoner’s counsel declared that they would not peremptorily challenge the juror, they disclosed their purpose to be to waive or surrender that privilege, and practically consent that the juror should take his seat. And no case can be found in the books, unless it may be that of Hendricks v. Commonwealth (5 Leigh, 707), in which a different conclusion is maintained. In the case of Beauchamp v. The State (6 Blackford, 308), four jurors were called; three yere accepted, and one was challenged by the prisoner, and another was called and accepted by him, and thereupon one of the first three was peremptorily challenged by the State, and the challenge was allowed, which was held not to be error. The cases of Manly v. The State (7 Blackford, 593), and Wyatt v. Noble (8 Id., 507), were decided on that authority. It does not appear what the question was, or how it was presented in either of the last two cases. The simple point decided is all that the reports contain, and that is that the right of the party to challenge a juror peremptorily continues until the jurors are sworn, which of course states the general rule of law on the subject, without the important element existing in this case showing its abridgment. In the case of Jackson v. Piford (8 Blackford, 194), the challenge was allowed after the party declared himself satisfied with the jury. There was no impropriety in that because its allowance rested in the discretion of the court, and its exercise for that reason could not be alleged as a ground of error. In the present case, if the same discretion had been used in the same way, the prosecution could not have complained of it. Being discretionary, the manner in which the power was used, whether to permit or exclude the challenge, would not be subject to the review of. an appellate tribunal. In the case of Jones v. Van Zandt (2 McLean’s Rep., 612), a peremptory challenge was allowed under very much the same circumstances, not as a matter of right, but because the court thought it not unreasonable to allow the challenge to be made. In the case of Hooker v. The State (4 Ohio, 348), the court required the peremptory challenges to be exhausted before challenges were made for cause. This was in conformity with the practice now well settled by the Supreme Court of Massachusetts. (Com. v. Rogers, 7 Met., 500; Com. v. Webster, 1 Cush., 295.) But the Supreme Court in Ohio refused to sanction that practice, and that is all that was really presented for decision or decided in that case. The question now before this court was in no way presented by it. The case of Schumaker v. State (5 Wisconsin, 324), has still less bearing upon it. The court at the trial held that the prisoner must challenge four jurors peremptorily at one time, or be considered as waiving four such challenges. And this was held to be error. In the case of The State v. Cameron (2 Chandler’s Rep., 172), the same court distinctly decided where the jurors had been accepted, but not sworn, that it was then too late to make a peremptory challenge; and that, too, when there had been no express refusal to rnakfe the challenge at any time. In the case of Patton v. Ash (2 Sergt. & Rawle, 123), the party expressly declined to make a peremptory challenge when his turn to do so was presented, and it was held that he had waived it, even though the jurors had not been sworn. Ttlgh-MiUsr, C. J., said: “ If the plaintiff waived the second challenge when it came to his turn to make it, he would not be permitted to resume it again. It would give him an unfair advantage.” In the case of The State v. Potter (18 Conn., 166), this precise question was presented, and the court held that the party could not make a peremptory challenge after he had declined to do so when the opportunity was directly presented to him for that purpose at the trial. These are all the authorities which have been found bearing upon the consideration of the present question, and they certainly appear to preponderate very decidedly in favor of the disposition made of it at the trial.' And in that respect they coincide with the good sense and reason of the law upon this subject, and at the same time secure to the accused the substantial enjoyment of the privilege designed to be conferred upon him. The time when the privilege may be exercised, if it be left free and unembarrassed, cannot be important. The paramount consideration of the law is that it shall be available to the accused as a final means of setting aside the juror, after exercising or waiving his challenges of a different description. Wharton says that “ it is clear that the right ceases when the panel .is complete and accepted.” Though it would otherwise continue until the jurors are sworn. (Wharton’s Crim. Law, §§ 2,972, 3,026.)

The juror, John Eawle, upon his examination stated that he had formed an opinion, and he was excused on that account. The defendant’s counsel then offered to prove that the opinion formed was adverse to the prisoner, which was ruled out and the counsel excepted. That the proof offered would not render the juror competent was expressly decided by this court in the case of The People v. Floyd, in which Justice Davis delivered the opinion. Nothing can be added to what was said by him on that occasion on this point.

Upon the trial of the cause the witness, N. B. Sherwood,, was asked the general question whether, in his opinion, the defendant had a sound mind at the time of the occurrence on which the indictment was predicated. This was objected to as incompetent by the witness, and the objection was sustained. This witness was an acquaintance of the prisoner, and had previously stated the impressions produced on his mind by his conduct and demeanor. He was not shown to be an expert in any sense of that term; ancl even if the question was right in point of form, it is well settled that such a witness is not competent to give a general opinion upon the question of sanity. While he may state the convictions created in his mind by the acts and conversations of the person whose mental condition may be in question, he cannot be permitted to answer the general question, whether his mind was sound or unsound. (Dewitt v. Bailey, 5 Seld., 371; 17 N. Y, 340, 347-8; Barb. Crim. Law, 399; The People v. Lake, 2 Kernan, 358; 1 Greenleaf on Evidence, § 440; The People v. Eastwood, 4 Kernan, 562.) Within the same authorities, there was no impropriety in permitting the witness, Henry Fenis, to answer whether the defendant talked intelligently. What was asked for was the impression or conviction produced on his mind by what he had observed, and not a general opinion upon an abstract question. The witness, Harrington, gave the same general description of evidence as the result of his observations of the defendant. It was only when it was proposed to go beyond that, and inquire generally as to the opinion of the witness concerning the prisoner’s mental condition, that tüe question was disallowed as improper.

The prisoner’s counsel asked the court to instruct the jury that there was no evidence from which they could find that the injuries were inflicted by him upon his child in the heat of passion. The court declined to charge in that manner, and the prisoner excepted. He also excepted to the charge that the jury were at liberty to disbelieve the- statement of the prisoner that he was not angry or in a passion at the time he punished the child; and determine from the appearance of the child, and the length of time the prisoner was punishing it, and such other circumstances as they found proved in the case, whether the injuries were inflicted in the heat of passion. The charge as given in this respect was within the very well settled rule of evidence relating to confessions proved upon the the trial, and is fully sanctioned by the decision of this court pronounced by Judge Bronson, in the case of Kelsey v. Bush (2 Hill, 440). The rule as he stated it to be is that, if that part of the confession which discharges the party is in itself highly improbable, or if there be evidence alliunde, though but slight, tending to discredit it, the jury may believe one part of the confession and reject the other. Greenleaf says: “ It is-not to be supposed that all the parts of a confession are entitled to equal credit.

■ The jury may believe that part which charges a prisoner and reject that which is in his favor, if they see sufficient grounds for so doing.” (1 Greenleaf on Evid., § 218.) The evidence was such that the jury were at liberty to conclude from it that the prisoner had beaten and talked to the child alternately for two hours and a half, the beating being with a piece of shingle near two inches in width, with so much violence that at the end of that time it expired. The condition of the body indicated the beating it had received to be the cause of its death; and if they believed that to be true, no violence would be done to the circumstances if they were made to support the conclusion that the injuries inflicted upon the body of the child were inflicted in the heat of passion. The question might well suggest itself whether a father could thus beat his child of three years and a half old without being in the heat of passion, and that question was solely one for the jury to answer. The evidence was certainly sufficient to justify them in the answer they gave to it.

The part of the charge relating to manslaughter in the third degree cannot be of the least importance, since the prisoner was not convicted under it, and it was in no manner connected with the offense of which he was found guilty.

The prisoner’s counsel requested the court to charge the jury that if the prisoner commenced the punishment properly and in a lawful manner, and had no reason to suppose, and did not suppose, he was endangering the life of the child, that he was entitled to an acquittal. The court declined to charge in that manner, and the prisoner’s counsel excepted. The court charged, in this connection, that even though the prisoner did not have reason to suppose that he endangered the life of the child, yet if the punishment was immoderate or excessive, and such excess was cruel and unusual, and produced the death of the child, and was inflicted in the heat of passion, the defendant would be guilty of manslaughter in the second degree. To this the prisoner’s counsel also excepted. Whether the punishment was commenced properly or in a lawful manner or not, was entirely immaterial under the statute. It is of no consequence whatever how it may have been commenced, or what the prisoner’s supposition might have been in relation to it, if the punishment was afterwards applied in a cruel or unusual manner, and in the heat of passion, and that produced the death of the child, the offense was committed within the very terms of the statute. The statute provides that “the killing of a human being, without a design to effect death, in a heat of passion, but in a cruel or unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, shall be deemed manslaughter in the second degree.” (3 R. S. 5th ed., 940, § 10.) The act could have been excusable homicide only in case the death of the child had been produced by accident and misfortune in its lawful correction (Id., 939, § 4), which could not be true where the punishment was excessive or immoderate. In order to constitute the offense of manslaughter in the second degree, in a case like the one under consideration, all that the statute requires is that the punishment should be of a cruel and unusual character, which it could not be unless it was immoderate'or excessive, that it should be applied in the heat of passion, and result in the death of the person receiving it. lío other elements whatever are included in the statutory definition of the crime, and it would therefore have been error for the court to have charged as requested. The. conviction of the defendant should be affirmed.

Judgment reversed and new trial ordered.


author: By the Court, Marvin, J.

text:
    Supreme Court. Erie General Term.
    May, 1865.

      Grover, Daniels and Marvin, Justices.
    The People v. John Fallon.
    In an indictment for larceny, a count charging that a certain number of written promises for the payment of money, called bank bills, of the value and denomination of five dollars each, were feloniously stolen and taken from the person of D. M., without alleging that the act was done in the “ night time,” and without alleging that the property was of the value of more than twenty-five dollars, is good, as a charge of grand larceny, under the act of 1862, chapter 374, section 2.
    On the-trial of an indictment for stealing a bank bill from D. M., it is not error in the court to refuse to charge that the fact that the bill had been paid to him for services and received by him in payment was no evidence that the bill was genuine or of the value of the sum which it purported to represent.
    The presumption in such case is in favor of the genuineness of the bill, and the onus of proving the contrary rests upon the defendant.
    Certiorari to the Oyer and Terminer of Erie county.

      C. C. Torrance (District Attorney), for the people.

      S. Lockwood, for the defendant.
   By the Court, Marvin, J.

A motion was made, after verdict, that the indictment be quashed for the insufficiency of the count in the indictment upon which the prisoner was convicted. It is charged in this count that Fallon, “Feb. 24, 1864, in,” &c., “four written promises for the payment of money, commonly called bank bills and notes, of the nature and denomination of five dollars each; one written promise for the payment of money, commonly called a bank bill and note, of the value and denomination of ten dollars, from the person of Daniel Main, of the money, goods, chattels and personal property of Daniel Main, then and there being found, then and there feloniously did steal, take and carry away, against the peace,” &c.

It is objected that the charge is altogether too uncertain. The uncertainty is not specified, but the objection relates, I suppose, to the stealing from the person of Main. Let us analyse the language. The felonious stealing is clearly charged, and it is averred to be from the person of Main, and the charge contains the averment that the property was the property of Main. It is not averred that the property was stolen from the person of Main in the “ night time,” nor is it alleged, except inferentially, that the property was of a value exceeding twenty-five dollars. The count is therefore not good under the Revised Statutes (vol. 2, p. 679, § 65). But thé act of 1862 (ch. 374, § 2), declares that “ whenever any larceny shall be committed by stealing, taking and carrying away from the person of another, the offender may be punished as for grand larceny, although the value of the property taken shall be less than twenty-five dollars.” All that is required by this provision is that the larceny should be committed by stealing from the person of another. There is no limitation as to the time of the stealing, or as to the value of the things stolen. The count in the indictment clearly charged the larceny from the person of Main, and it was a good count under the statute of 1862.

The refusals to charge as requested were not error. It would have been error to charge that the fact that the $20 had been paid to Main for services, and received by him in payment, was no evidence that the bill was genuine, and of the value of $10. The fact that it was paid out and received at $10 was some evidence of its value. Besides, the presumption was that it was a genuine bill, and of the value of $10, and the onus of showing the contrary was upon the prisoner. Again, other bills on banks in this State, about which the question was made, were stolen, and as I have shown that the crime was committed if property of any value was stolen from the person, it was immaterial whether the $10 bill was genuine and valuable or not. There is nothing in these exceptions.

The conviction must be affirmed.