author: By the Court, Sutherland, J.

text:
    Supreme Court. New-York General Term,
    February, 1858.

      Davies, Clerke and Sutherland, Justices.
    James Rogers, plaintiff in error, v. The People, defendants in error.
    The act of 1855 gives to the Supreme Court the power, on writ of error, to grant a new trial where the verdict is against the weight of evidence.
    On a trial for murder, where the intention of the prisoner is sought to be ■ ascertained for the purpose of determining whether the offence is murder or manslaughter, the jury are authorized to take into consideration the intoxication of the prisoner, as hearing upon the question of intent.
    And where, on such a trial, the prisoner’s counsel requested the court to charge “ that if it appeared by the evidence that the condition of the prisoner from intoxication was such as to show that there was no intent or motive to commit the crime of murder, that the jury should find a verdict of manslaughter,” and the court refused so to charge, a new trial was granted.
    Though, it is true, that if a man voluntarily make himself drunk, his drunkenness is no excuse for any crime he may commit while so intoxicated, yet, in homicides of different degrees according to intent, and in larcenies, forgeries and other crimes depending on intent or knowledge, the intoxication of the prisoner is, in many cases, a material circumstance for the consideration of the jury.
    This case came up on writ of error to the Court of General Sessions of the city and county of New-York.

      The plaintiff in error had been indicted in that court for the murder of John Swanston, and pleaded not guilty. The issue was tried before the city judge in November, 1857, when the following evidence was given:

      Eben Hassel, M. D., was called and sworn as a witness for the prosecution, who testified as follows : I am a physician, residing at No. 71 West Thirty-seventh-street; I made the post mortem examination on the body of the deceased, John Swanston, at his late residence ; I found the wound to be an incised wound, inflicted with a sharp instrument; the wound was not less than three inches in depth; the wound was situated on the junction of the fifth rib with the breast bone, and the artery of the heart was penetrated; I should judge that the wound was inflicted with a large dirk knife, and was the cause of death.
    On being cross-examined he further testified : I am certain the depth of the wound was not less than three inches; there were no other wounds on the body; the deceased was a medium sized man, about five feet eight or nine inches high; the wound was upward and inward tending toward the left; it is very probable that the blow was struck from the right side; it was my opinion from the character of the wound, that it was inflicted with a dirk knife.

      Margaret Swanston was next called and sworn as a witness for the prosecution, and testified as follows: I am the wife of deceased; on Saturday night, the 18th of October, 1857, was out with my husband; had been to market and was returning; my husband and myself were coming down Twenty-first-street, the upper side toward Tenth-avenue; I was leaning against my husband’s left side; he had a lantern not lighted in his right hand; I was on his left side ; before we turned the corner we heard words of loud talking, like persons quarreling; it was not a great way from the corner; I was on the inside on Twenty-first-street, and as we turned the corner, I was toward the boys; we were going home to Twenty-seventh-street, between Tenth and Eleventh avenues; we were going straight ahead to cross the avenue, when the young men shouldered me; they came ¿against me and pushed me against' my husband ; the young man who afterwards struck the blow, asked my husband what he was saying ; my husband answered, “ what is that to youone of the men that was with him said, “ they are not talking to you they had then passed us; my husband turned his head toward them, and they turned to come back, and we turned, and they faced us, and the yound man who struck the blow was held by the other two ; he broke away from them, sprang straight up, and struck at my husband, and aimed the blow at his breast, and then ran straight on up the avenue; it was on the cross-walk of the avenue where the blow was struck, about a yard from the curb; as we turn.ed they were close upon us; my husband, as soon as he was struck, cried, “I am murdered,” and ran as far as the curb; I never saw them before.
    On being cross-examined, by the prisoner’s counsel, the witness further testified: The killing was on the Tenth-avenue, on Saturday evening; could not say the day of the month; we came down Twenty-first-street, from Ninth-avenue, toward the Tenth-avenue; we turned to go up Tenth-avenue, homewards; we went up the east side of the Tenth-avenue ; I could not say where we were exactly; when we heard the noise, were approaching Tenth-avenue; when we got to the corner, the boys came right upon us; they shouldered me in passing; it was intentional, their pushing against me; could not say how hard they hit us; they were three abreast walking down, and speaking loud as if excited, angry and quarreling; my husband spoke to them when I was hit; the other two said, “ he is talking to his wife, and not to you;” cant say how far they got when they turned back ; my husband spoke to them ; we might have been a yard or two in the street, at the time they came up ; I was on the inside coming down Twenty-first-street; dontknow whether I would be on the north side; I was on my husband’s right on the Tenth-avenue; they did not come up to me ; •approached my husband first; my husband partially turned round; the three were together; one struck my husband, and made off; the whole three were close upon us, when my husband was struck; it was a dark night; I think it rained ; it was cloudy; I could see the three; dont know that I could pick out any of the three; did not see his features; did not know the accused; never saw him before.

      By the Prosecution. Can describe the color of the coat of the one who struck the blow; he had on a dirty drab; it was close on ten o’clock, P. M.; I could not say my husband was dead when I went up to him; he fell oh his face.

      Robert Rae was then called and sworn for the prosecution, who testified: He is a physician; lives second door in Tenth-avenue, from the corner of Twenty-first-street; on the Saturday night in question I was in my room, the front one, when I heard the cry of murder; I raised my window, saw three young men; two of them were together; they were running down the Tenth-avenue; the third one I saw best; he was eight or ten steps behind the other two ; he was the largest of the three; he had on a drab coat, dark pantaloons; I saw the deceased lying on the street; he had fallen before I saw him; as soon as I heard the cry I raised the window; I saw the deceased ; he was quite dead when I went across to where he lay; it was about five minutes after I heard the cry; the three young men ran; the last one with drab coat ran very fast.
    On cross-examination, witness says: I was not acquainted with deceased; the coat the third boy had on when running was a drab coat like a fireman’s coat; he also had on a cap; all three had on caps.

      Daniel Cunningham was sworn as a witness for the prosecution, who testified as follows; I live on the Tenth-avenue, between Sixteenth and Seventeenth streets; know the prisaner; knew him about two weeks before the murder; on this Saturday night I met him and McGHvney coming up Seventeenth-street near Eighth-avenue, from the Ninth-avenue; Rogers had on a light coat, drab, like a fireman’s; also a cap; he is the largest of the three; this was about eight o’clock; he asked me to have a drink; we first went down Seventeenth-street, between Eighth and Ninth avenues, and took some beer; we stayed there five minutes, and then went up Eighth-avenue, and stopped at Twenty-fourth-street five or ten minutes; then to Twenty-fifth-street, and took some more beer; then to Tenth-avenue and Twenty-sixth-street ; Rogers wanted to gó down Twenty-sixth-street, but McGHvney would not go ; we turned down then to Twenty-second-street and met a boy; Rogers asked him for a piece of an apple; the boy said he had but one, and fired the apple • at him, and Rogers run after him; we then went across the street and down the avenue as fat as Twenty-firststreefc, on the side towards Ninth-avenue; we were walking along; Rogers was drunk, and we were trying to get him home; the man and woman were coming down, and Rogers staggered up against him; he knocked against the woman, and the man turned round and made some remark; McGHvney told the man not to mind Rogers, he was drunk.; the man made a crack at Rogers; the blow went .over his head; they got in a fight, and we took Rogers away; he was stronger than we, and got away from us; Rogers hit the man as well as he could; he struck him about the body; this was in the street; Rogers ran away first; did not see Rogers have anything in his hand ; I saw Rogers leave the man; the man screamed murder right away; I did not see Rogers have a weapon that night, "or a knife; he went up town ; we down; did not see him after until I saw him in the Tombs. . .
    On being cross-examined, witness further testified: I was arrested the Tuesday morning after; the policeman who arrested me, told me I would not b6 prosecuted if I testified here; and that I must tell the truth; I did not know a man was killed till the next day, and went out as usual; Rogers hit against the woman, and Swanston ask§d what he did that for, and then the fight commenced; we drank about two times that night; don’t know how many times Rogers drank.

      Clark S. Dunning was then called as a witness, and sworn for the prosecution, who testified: I reside at 169 Tenth-avenue, west side, second door from Twenty-first-street;" I heard the cry of murder; was m front room; had raised the window to adjust the blinds, to let the lamp-light in; my attention was called by the cry of murder; I saw a man, woman and three boys or young men; the man or woman had a basket and lantern not lighted; the boys passed down the Tenth-avenue, east side; one was larger than the others, and had on a dirty drab coat and red shirt; he was the largest; when I saw the boys, he was seven or eight steps from them; these were all the persons in the street at the time; I saw the tallest boy near the man; the man fell almost immediately, before he could have gone twenty-five feet; the two in black then passed down the avenue, and the tallest boy made a circuit up and across the street, and I lost sight of him behind some wagons; before the cry of murder I noticed the boys; there were no other persons in the street; as soon as the cry of murder the large boy appeared to have been in contact with the man; largest was nearest the man; the small boy said, “Don’t meddle with the man;” I saw the large boy’s hand come from breast of deceased, as if he had struck a blow;. the two smaller boys passed down Tenth-avenue, and I lost sight of them; the largest boy was a few steps behind; saw the deceased fall after he went a few steps; I went out immediately; the boys ran fast; it would have been impossible for me to catch them; they did not appear to be intoxicated; the largest boy passed off the sidewalk and made a circuit round a wagon, and I lost sight of him.

      On being cross-examined, he said: I am almost opposite the street lamp; it is on the east side, fifty-five or sixty feet from the corner, north; my house is also north of the corner; the deceased was very near the corner; the three boys were together on the sidewalk near the corner; they appeared to be passing down the avenue; the man and woman were near the corner; did not see them more than a minute before the cry; I saw a motion of the tallest boy’s hand as if he were striking; saw no blows struck; the motion was like a swing of the hand; did not watch their motions all the time; I thought he had stabbed him; I saw the motion made as if he had stabbed him before the cry of murder, and I cried murder before deceased hallooed out.

      David Scott was then called and sworn as a witness for the prosecution, who said: I heard the cry of murder that night; saw the boys; saw them ten minutes before the cry of murder; Rogers was the largest boy; he had on a drab and coat, black pants and cap and red shirt; when the tallest boy asked me for a piece of an apple, he tried to get something out of his pocket; I saw the handle of a knife about seven or eight minutes, before the cry of murder, as he (Rogers) tried to get it out of his pocket; Rogers took his hand out of his pocket, and ran after me; I am the boy he asked for the apple.
    The prisoner’s counsel objected to the evidence of this witness as immaterial and irrelevant; the court overruled the objection, and the counsel excepted.
    On being cross-examined, he said: This was on the corner of Twenty-second-street and Tenth-avenue; I was standing in the door; he asked me for the apple and struck me, and I threw the apple at him; he dared me to come out; the boys took him away; he broke away from them; he was taking his hand out of his pocket; did not see the blade; it looked like a gray handled jack-knife; did not see them before; Rogers talked as if he were a little drunk.

      Stephen McGivney was then called and sworn for the prosecution, who said: I am nineteen years old; have known Bogers for about eleven months; met him that night about half-past six o’clock, on Tenth-avenue, near Sixteenth-street; we afterwards went up to the corner of Tenth-avenue and Twenty-second-street; we met'a boy, and Bogers asked him for a piece of apple; the boy said it was the only one he had, and Bogers made a kick at him, and then we went down toward Twenty-first-street; we met a man and woman coming down Twenty-first-street; Bogers bumped against the woman; they were stepping across the curb; the man turned around and asked him what he did it for; I told the man to excuse Bogers as he was drunk, and we took hold of him, but he (Bogers) said he wanted to fight, he would not be excused; we then let go of him, and he then went up to the man, and they both got scolding; I was about ten feet off; I saw the man make a crack at Bogers, which did not hit him, but went over his head, and Bogers made a crack back and hit him; then the man struck Bogers, and Bogers hit the man again, and in a second I heard the cry by the man of murder, he putting his hand to his breast; we stood still, and the man ran after Bogers; did not see Bogers after that until Sunday night; met him at his house in Twelfth-street ; it was about eight in the evening; saw him about fifteen minutes; he was in the bed-room, sitting on the bed; I did not see him have anything in his hand on the night of the murder; Bogers on that night had on a drab coat, red shirt, dark pantaloons; I had a lilac shirt on, and was dressed as I am now.
    On being cross-examined, he said: We drank twice that night; Bogers was drunk, and we were helping him home; he staggered a little; he said to me, “Here comes some bad womanhe was on the end as we walked; we were making a noise, and he was hallooing; when the blows were struck I was about ten feet off.

      Inspector Lefferts was called and sworn by the prosecution, and testified: I am attached to the detective force-; I arrested Rogers in New Brunswick, New Jersey, the Friday after the murder; I asked him if he was willing to go back to New-York without a requisition from the governor; he said he would; I asked him how he could commit such a crime, and he so young.
    Prisoner’s counsel objected to the reception of this testimony as improper, and as to any admissions made to the witness.
    Witness said on interlocutory cross-examination, that he held no process against him; that he took him from the constable at New Brunswick jail; the prisoner came voluntarily.
    Witness further stated that he made no threats or promises, and that his admissions were voluntary.
    Prisoner’s counsel then objected, not that any inducements had been used to extort a confession, but on the general grounds that confession made by a party when under arrest could not be used against him; but the court overruled the objection and admitted the testimony, to which the prisoner’s counsel excepted.
    He answered, he was drunk ; I asked him what the blow was struck with.
    Same objection, ruling and exception.
    He said it was done with a common pocket knife; that one of the other boys told him the man was dead, and that he had better leave the city, and upon starting he threw away the knife in Twelfth-street; he said he was not in the habit of getting drunk; that the other boys induced, him to drink that night.
    The prosecution here rested, and the counsel for the prisoner, after stating his case to the court and jury, called as a witness

      Catharine Rogers, who, being sworn, testified: I am prisoner’s sister; my brother had been at work at Wood-bridge, New Jersey, for Mr. Hoovert, who is now sick abed at home.

      Bridget .Rogers, sworn for defence, testified.: I am prisoner’s mother; about six weeks before this happened he came home from Mr. Hoovert’s, where he had been at work, sick with the dumb ague; on this Saturday night, he came home about ten o’clock; he was very bad; he fell helpless on the floor; he was so drunk that my daughter and myself had to put him to bed and undress him ; he had always been quiet and peaceable before this, staying home mostly; he remained in the house till Sunday night, and after McGivney came to see him, he went away; he never carried a pistol of dirk knife, to my knowledge; only a small pocket knife.

      Bridget Rogers called, and sworn for the defence. I am prisoner’s sister; don’t recollect when he returned from Woodbridge; saw him about two weeks before the murder; he was home every night; he was working in a tin shop ; he came home that night near ten o’clock; was so drunk he could not walk; mother and I put him to bed; he left Monday morning; did not see him; did not see him carry anything but a pocket knife; had two small blades; he never was drunk before that night; McGivney was to see him once; the other was not.

      Mary Branigan called, and sworn for defence. Don’t know prisoner, nor McGivney; know Cunnigham; saw Cunningham that night about ten o’clock ; saw him first on Twenty-sixth-street and Tenth-avenue; there were a number with him; he was standing still; he stopped my husband and put his foot before him, and would not let him go; they followed us down street; there were three together then; Cunningham walked up to my husband, put his hand in his pocket and took a shilling out, and when I said he had done so, Cunningham struck me, and I was sick for ten days; he took from his pocket a knife, or revolver; it looked like a wide blade of a knife; each of the three then ran across the avenue; have known Cunningham about four years; he has a bad character; have known him to lick his mother for four years; never heard him to be honest.
    On being cross-examined, she said: The other boys said it was a shame for him, Cunningham, to strike a woman; I was excited at the time; I shouted murder at the time; I don’t know the prisoner.
    After other witnesses had been sworn and testified for the defence, the case was summed up to the jury.
    The judge charged the jury that the killing of a human being, without the authority of law, unless it be manslaughter, or excusable or justifiable homicide, is murder when perpetrated from a premeditated design to effect death, and if the intent was formed a minute before the blow was struck, it is willful, deliberate and premeditated killing, as well as if intended for an hour or day.
    That manslaughter in the first degree is the killing of a human being, without a design to effect death by the act, procurement or culpable negligence of another, .while the prisoner was engaged in the perpetration of any crime or misdemeanor not amounting to felony, or in an attempt to perpetrate such crime or misdemeanor, in such cases where such killing would be murder at the common law.
    That manslaughter in the third degree is the killing of another in the heat of passion, without a design to effect death, by a dangerous weapon.
    That when the killing is the effect of malice or general depravity, it is murder; and when without malice, express or implied, or without any justification or excuse, it is manslaughter, or when without malice, but caused by sudden passion and heat of blood, it is also manslaughter.
    That the first question to be determined by the jury was: Had a murder been committed, if so, by whom; and if from the evidence in the case they should find that the mortal blow was struck by the prisoner; then the next question for them to determine was: Whether it was murder, or manslaughter in the first or third degree.
    That if, from the evidence, they were satisfied that the prisoner had time to think, and did intend to kill, if he conceived the intent, but on the instant the blow is struck, it is murder. If, on the other hand, the evidence satisfied them that the killing was done without a design to effect death by the act, procurement or culpable negligence of the prisoner, it would be manslaughter in the first degree, while the prisoner was engaged in the perpetration of any crime or misdemeanor not amounting to felony, or in an attempt to perpetrate such crime or misdemeanor, in such cases where such killing would be murder at the common law.
    And if they were satisfied that the mortal blow was struck in the heat of passion, without a design to effect death, by a dangerous weapon, then it would be manslaughter in the third degree.
    And that they were to apply the rules of law laid down by the court to the evidence in the case, and find their verdict accordingly.
    To which charge the prisoner’s counsel duly excepted.
    The counsel for the prisoner requested the court to charge that if it appeared by the evidence that the condition of the prisoner from intoxication was such as to show that there was no intention or motive to commit the crime of murder, that the jury should find a verdict of manslaughter ; but the court refused to instruct the jury in the words of the proposition, but charged that, under the old law, intoxication was an aggravation of crime; but that intoxication never excused crime, unless it was of the degree to deprive the offender of his reasoning faculties.
    To which refusal and charge, the prisoner’s counsel excepted.
    The jury then retired, and after deliberation, found a verdict of guilty against the prisoner.

      After sentence was pronounced a writ of error was sued out in behalf of the prisoner, and proceedings upon the judgment were stayed by the direction of one of the justices of this court.

      E. W. Andrews and George D. Kellogg, for the plaintiff in error.
    The evidence shows, first, that the prisoner never carried or used any knife except an ordinary pocket knife; second, that at the time of the alleged murder the prisoner was intoxicated to such an extent as to be deprived of his reason and faculties; third, that this intoxication was induced by his companions.
    I. The court erred in admitting the testimony of David Scott, because it was immaterial, irrelevant and insufficient, the prosecution endeavoring thereby to connect the prisoner with a knife a short time before the killing; and remote evidence of such a nature, or the proof of collateral matters, should not be allowed to form a link in the chain of testimony. (1 Greenl. on Ev., § 52; Am. Cr. L., § 647; People v. Wilson, 2 Port., 511; 2 Russ. on Cr., 772; 2 Cush., 590; The State v. Stone, 4 Humph., 27.)
    II. The court erred in admitting as evidence the communications of the prisoner to the witness Lefferts because, first, the prisoner was under arrest and in custody at the time, second, the manner of the officer and the form of his questions were improper, and of themselves constituted a threat or intimidation, and would necessarily operate on the fears of the prisoner; third, the admissions are not voluntary within the meaning of the rule, for it is the duty of the officer, and the right of the prisoner, to be informed that his statements might be used in evidence, and only after such caution are admissions voluntary to that extent that they maybe used as evidence. (1 Greenl. Ev., §§ 219, 220; Comb v. Taylor, 5 Cush., 602; Am. Cr. L., § 6S5; The State v.
      Long, Hayw., 455; The State v. Deathridge, 1 Smeed, 75; Rex v. Mills, 6 Carr. & Payne, 146 ; Rex v. Jones, Russ. & Ry., 151, 152; Rosc. Cr. Ev., 36; Drew's case, 8 Carr. & Payne, 140; Regina v. Fleming, 1 Armstrong, M. and O. R., 330 ; Palmer's case, 16 Johns., 143.)
    III. The court erred in the charge because: First. If the prisoner in temperately used an instrument not in its nature a deadly weapon, while intoxicated, such intoxication might induce the jury to less strongly infer a malicious intent. (Rex v. Makin, 7 Carr. & Payne, 297; 2 Park. Cr. R., 235); Second. When the question of intent or premeditation is concerned, evidence of drunkenness is material in determining the precise degree of guilt (Pennsylvania v. McFall, Addis., 957; Am. Cr. L., §§ 41, 44; Regina v. Crane, 8 Carr. & Payne, 541; Regina v. Thomas, 7 Id., 817; The State v. Pigman, 14 Ohio, 555 ; Hall v. The State, 11 Humph., 154; The United States v. Rondenbush, 1 Bald., 514; Swan v. The State, 4 Humph., 136; The State v. Bullock, 13 Alabama, 413); Third. The intoxication is always to be taken into account, when provocation has been given, as a first blow struck, because a drunken man is more easily excited to passion than a sober one (Rex v. Thomas, 7 Carr. & Payne, 817; McFall's case, Addis., 257; McCant's case, 1 Speers, 384; Cornell's case, Martin & Y., 147; Swan's case, 4 Humph., 136; 3 Am. Jur., 1-20; 3 Greenl. Ev., §§ 6, 148); Fourth. The intoxication of Rogers was of the degree of “inculpable,” justly attributable to others.; or, as Hale (p.632) expresses, “ the contrivance of evil minded persons.” (3 Greenl. Ev., § 6; 2 id., 359, note); Fifth. The whole conduct of Rogers, on the night in question, was that of a boy maddened by liquor, to which he was unused, not voluntarily, but “inculpable,” and his conduct that of a madman without purpose or motive; Sixth. The common law characteristics of murder are preserved, except when altered by statute. Our statutes have substituted “ premeditated design to effect death ” for “ malice aforethought,” but as to the person and status, the language of the elder style prevails, as when a man of sound sense, &c. (Coke’s definition, “ Murder;” Rex v. Hough, 1 Leach, 368; The People v. Mann, MSS. case, by the Court of Appeals, Brown, J.); Seventh. The court erred in limiting the intoxication to a total deprivation of reason by reason of it; whereas, if it clouds the reason, and a party assailed uses a weapon and kills his adversary, his oifence is only manslaughter (2 Bishop Cr. L., § C32 ; Ray’s Med. Jur., § 445; 8 Carr. & Payne, 541).
    IV. The verdict is against the evidence, because it appears that the death of Swanston was caused in mutual combat; that the mortal blow was struck in'the heat of passion, and without any premeditated design to kill. (Am. Cr. L., 988; 1 East P. C., 243, 244; 1 Carr. & Payne, 437; Commonwealth v. Daly, 4 Penn. L. Jour.; The People v. Clark, 3 Seld., 385; The People v. Sullivan, id., 396 ; The People v. Johnson, 1 Park. Cr. R., 154, 298; The People v. Curtis, id., 154; 1 Russ. on Cr., 707; Horton on Homicide, 197; The State v. Ferguson, 2 Hill; South Carolina, 619; The State v. Law, 4 Indiana, 113; Stewart v. The State, 1 Ohio, 66; 3 Greenl. on Ev., § 121.)

      P. B. Sweeny (District Attorney), for the people.
    I. The verdict of the jury was not against the weight of evidence.
    II. The verdict against the prisoner was not against law. This point involves the consideration, first, of the objections to testimony on the part of the prisoner; second, of the judge’s charge to the jury and the exceptions thereto.
    First. As to the objections to testimony.
    1. The testimony of David Scott, the boy from whom the prisoner asked the apple, and upon whom he threatened or attempted to draw the knife, was competent. It showed three important facts: first, that the prisoner had a knife; second, that he was not helplessly drunk, for he ran after this boy, and, third, the disorderly character of the conduct of the prisoner a few moments before the affray in question, and that he was not waiting for provocation, but that he was making or courting it, relying upon his knife. 2. The testimony of Inspector Lefferts as to the confessions of the prisoner at the time of his arrest, was properly received. It was proved, and even admitted by the prisoner’s counsel, that they had not been extorted from the prisoner. The mere fact of his being under arrest did not render the confessions improper. (The People v. McMahon, 2 Park. Cr. R., 663; The People v. Hendrickson, 1 id., 406, 416.)
    Second. As to the judge’s charge to the jury, and the exceptions thereto. The charge distinctly put it to the jury that, without an intent to kill, the prisoner could not be convicted of murder. This was done in two different instances. In rendering their verdict the jury have found that the prisoner had such an intent at the time of the commission of the act. The charge is consistent with the law established by the Court of Appeals. (The People v. Clark, 3 Seld., 385; The People v. Sullivan, id., 396.) The charge is even more favorable to the prisoner upon the point of murder than the law required. It tells the jury that if the prisoner had time to think and then conceived the intent to kill, his act is murder. Without time to think, with the bare intention to kill, by the law as it now stands in this state, his act would be murder.
    III. The court did not err in the direction it gave the proposition of the prisoner’s counsel in relation to the effect of intoxication upon the prisoner’s act. 1. The proposition was inartificially put. It speaks of an intention to commit the crime of murder. The prisoner might have an intention to kill, and his act might thus amount to murder, but he could hardly be said to have the intention to commit murder. Murder- is the technical term applied in law to the act embodying such an intent. 2. By convicting of murder, and so finding that the prisoner had the intent to kill, the jury found- that the prisoner was in a mental mood admitting of such an intent. He could not have the intent, unless he was in a condition to form or conceive it. 3. Drunkenness or intoxication is only a defence where it argues or proves that the mind, of a party, from his physical condition, was incapable of conceiving or entertaining an intent to- kill; as where a party is so besotted by drink as to be physically and mentally insensible. (The People v. Hammill, 2 Park. Cr. R., 223; The People v. Robinson, id., 235; United States v. Drew, 1 Benn. & Hurd’s Lead. Cr. Cas., 113 ; Freeman v. The People, 4 Denio, 9.) 4. The court charged correctly upon the point, in instructing the jury that the drunkenness or intoxication necessary to make out an excuse or defence, must deprive the offender of his reasoning faculties.
    IV. Even if there was an error (which clearly is not the fact) in the charge of the court, upon or as to this proposition of the prisoner’s counsel, it would not entitle the prisoner to a new trial. There was no testimony in the case to show that at the time the prisoner inflicted the fatal stab, he was in the state suggested in or intimated by thé proposition. ' He may have been desperate, but he was not unconscious or insensible from drink. Excited by liquor, and emboldened by or relying upon his knife, he may have been reckless of consequences, but he was still in a condition to be both susceptible of motive and capable of intention. His conduct not only exhibits consciousness, but the most marked cunning and deliberation. Whether it was because the liquor- he had drank had not fully enslaved him at the time he committed his crime, and worked upon him -more fully afterwards, or, whether, intermediate the deadly scene and his return home, he had indulged in additional drink, the fatal occurrence points to him as one ■ who was perfectly aware of all he was doing. It is well' settled in this state, that an erroneous instruction to the jury, upon an abstract legal proposition, is no ground for interfering with the verdict. It is only of directions, which are applicable or edri be applied to the facts, that error is predicable. The practice of involving the court, on the trial, in legal abstractions, is not to be countenanced or tolerated. (Shorter v. The People 2 Comst., 193; S. C., 4 Barb. S. C. R., 460; The People v. Robinson, 2 Park. Cr. R., 235.) If the prisoner went into a fight with an unarmed man, relying upon his knife, an English judge would have instructed the jury, if a homicide was the result, that the act was murder. (Regina v. Smith, 8 Carr. & P. 160.)
   By the Court, Sutherland, J.

Although the statute under which this case has been brought here by writ of error, gives this court the power to grant a new trial, if the court were satisfied that the verdict against the prisoner was against the weight of evidence (Laws of 1855, p. 613, § 3), yet we cannot say in this case, that the verdict was against the weight of evidence.

According to the testimony of Margaret Swanston, the wife of the deceased, there was no mutual combat, and the fatal blow was struck by Rogers without a blow from her husband. Her testimony is partially confirmed by the witness, Clark S. Dunning.

I cannot say that their testimony did not have and ought not to have had more weight with the juiy, than the testimony of the prisoner’s two companions, Cunningham and McGtivney, although introduced and sworn on the part of the people, who testified that blows passed between the prisoner and the deceased, on the deceased asking the prisoner why he run against his wife.

The juiy had the witnesses before them, and could judge better than we can what weight to give their respective testimony.

Nor do I think there was error in admitting the testimony of David Scott, the boy from whom the prisoner asked the apple, a few minutes before his murderous attack upon the deceased; or in admitting the testimony of Inspector Lefferts as to the confessions of the prisoner at the time he was arrested; as to the testimony of the former, it was certainly important to show that the prisoner had a knife, and what kind of a knife, and the disorderly conduct and reckless spirit of the prisoner but a few minutes before he struck the deceased with some deadly instrument; and as to the testimony of Lefferts, there is nothing but the mere circumstance that the prisoner was under arrest when he made the confession, from which we can infer that they were not voluntary, or made under the influence of a threat, or from intimidation.

But the exceptions of the prisoner to the charge of the court below, and to the refusal of the court to charge as requested by him, deserve consideration.

All the witnesses who speak on the subject agree in saying that the prisoner was excited by drink; his companions, Cunningham and McGrivney, say he was drunk; his mother and sister say that he was very drunk. The degree of intoxication is not important in looking at the exceptions of the prisoner.

The counsel for the prisoner requested the court to charge “ that if it appeared by the evidence that the condition of the prisoner from intoxication was such as to show that there was no intention or motive to commit the crime of murder, that the jury should find a verdict of manslaughter.” The court refused to charge as requested, but charged “ that under the old law, intoxication was an aggravation of crime, but that intoxication never excused crime unless it was of the degree to deprive the oifender of his reasoning faculties.”

The prisoner was indicted and tried for murder, and, under an indictment for murder, he could be convicted of either murder or manslaughter.

The deceased was killed by the blow which the prisoner struck with some deadly instrument; deadly, because it produced death. The prisoner said it was a common pocket knife; from the evidence of Dr. Hassel, who made the post mortem, examination, it is probable it was a large knife, or a dirk knife.

The- meeting between the prisoner and the deceased, on the occasion when the prisoner stabbed the deceased, was not premeditated; there was no evidence, nor even a pretence that the prisoner knew the deceased, or had ever seen him before; there was nothing other than what took place on the occasion, to show that the prisoner, when he struck the fatal blow, intended to kill the deceased. The attack was sudden, and if the prisoner intended to kill the deceased, that intention was formed on the spot; either when he struck the fatal blow which produced death, or .a few moments before.

If the prisoner did intend to kill the deceased when he struck the fatal blow, he was guilty of murder, though his intention or design to kill preceded the blow but an instant. (The People v. Clark, 3 Seld., 385; The People v. Sullivan, id., 396; 2 R. S., 657, § 5.)

If the prisoner struck the fatal blow in the heat of pas- ■ sion, without the intention or design to kill, he was guilty of one of the-degrees of manslaughter only. (2 R. S., 661, §§ 10, 12.)

The whole question was one of intent, to be inferred by -the jury from the material circumstances of the case; and every circumstance in the case was material, which the jury was authorized to take into consideration on the question of intent.

Was the intoxication of the prisoner on that occasion a circumstance which the jury were authorized to consider in determining whether the fatal blow was struck with the intention to kill ?

We think it was.

The affair was sudden; there was evidence of a mutual combat. The two companions of the prisoner, sworn on the part of the people, testifying that blows passed between the prisoner and the deceased, the deceased striking first. All the witnesses, including Mrs. Swanston, agree in saying that, as the prisoner and his companions, in their nocturnal excursion of city rowdyism, accidentally met the deceased and his wife, and rudely came in contact with the person of Mrs. Swanston, the deceased turned around and spoke to them. The prisoner, stopping, says: “What is that you say ?” The deceased answers, “ What is that to you ?” According to Mrs. Swanston’s account, the prisoner then broke away from his companions and struck at her husband, aiming the blow at his breast, and then ran up the avenue. According to the account of the prisoner’s two companions, blows passed before the fatal blow, as before stated. Mrs. Swanston says, that as the prisoner and his companions were coming down the avenue, approaching her and her husband, “ they were three abreast, walking down and speaking loud, as if excited, angry and quarreling.”

Now we do not say what weight the intoxication of the prisoner and his companions ought to have had with the jury on the question of intent, had that circumstance been submitted to them, with the other circumstances in the case, for their consideration. Nor will we by any means say that had that circumstance been so submitted, we should have felt bound to disturb the verdict, as against the weight of evidence, had they found the prisoner guilty of murder.

But the violent homicide for which the prisoner was tried had different degrees, depending on the intent to kill, or the absence of such intent. The statutory definition of two of the degrees of manslaughter implies not only that a homicide committed in the heat of passion may have been committed without the intention to kill, but also that such heat of passion is likely to prevent the reasoning, calculation, reflection or design implied by a particular intent.

Can any one say that intoxicating drinks taken into the body do not tend to intoxicate the mind, and to inflame the passions ? that they do not tend to make anger and other revengeful passions more excitable ? Can any one say that intoxication does not tend to produce a confusion of mind of material consideration on the question of a specific intent, where, from all the other circumstances in the case, it is evident the intent originated on the spot, but an instant before the blow, or cotemporaneously with the will to strike the blow ?

All human experience proves the contrary.

No doubt great caution is necessary in the application of this doctrine.

We do not say that it should be applied in any case where there is evidence of premeditation, aliunde the circumstances of the affray, or occasion on which the homicide was committed ; for we know that it is not unusual for criminals to fortify themselves for crime with liquor. But in homicides of different degrees according to the intent, and in larcenies, forgeries and other»crimes, depending on intent or knowledge, in many cases the intoxication of the prisoner is a material circumstance for the jury. Surely, it would not be legal or right to convict a man of passing a counterfeit bill, knowing it to be counterfeit, when he was so intoxicated as not to know a counterfeit bill from a genuine one, without proof to show that previous to his intoxication he knew it was counterfeit.

In this case, we think the court below erred in withdrawing the attention of the jury from the circumstance of intoxication in the manner the case shows.

The counsel for the prisoner substantially requested the Court to charge the jury that they had a right to take the intoxication of the prisoner into consideration, with the other circumstances of the case, in determining the intent, and that if they found that there was no intention to commit the crime of murder, the jury should find a verdict of manslaughter.

The Court by refusing to so charge, and thereupon changing that intoxication was an aggravation of crime, that it “ never excused crime unless it was of a degree to deprive the offender of his facultiesnot only erred in refusing to submit the circumstance of intoxication to the jury, for their consideration as to whether they should find the prisoner guilty of murder or manslaughter, but may have led the jury to suppose that his intoxication was absolutely to be weighed against him in settling their verdict as between murder and manslaughter. And, certainly, had the prisoner been on trial for manslaughter only, his intoxication would have tended to make out, and perhaps to aggravate the crime; because it would have tended to show, that the prisoner did the act in the heat of passion.

The error of the court below, does-not consist in charging the law wrong as far as the court positively charged ; but in giving to the jury good law, on a point where it was applicable, as a reason for refusing to charge other good law as requested, as to the point of intention «where it was applicable.

It is true, and the law in England and in this country is, that if a man voluntarily makes himself drunk, it is no excuse for any crime he may commit while he is so. (1 Hale, 7; 4 Bl. Com., 26 ; People v. Pine, 2 Barb., 566.)

But it does not follow, because drunkenness is no excuse for crime, that it is not in some cases, where the question of guilt or innocence is one of intent, or where the degree of the crime on the same facts depends on the specific intent, a material circumstance in determining whether any crime had been committed, or the degree of the crime which had been committed. *

We think that in this case, the right of the prisoner to have the circumstance of his intoxication fairly submitted to the jury on the question of intent, or whether he was guilty of manslaughter or murder, as clear and as well established by law, as the principle that voluntary drunkenness is no excuse for crime. The principles are consistent with each other. (Am. Cr. L., §§ 41-44, and cases there cited.)

The prisoner stands confessedly guilty of a great crime, and one which from the bold, rowdy recklessness of human life which it and its attending circumstances displayed, calls for a firm condemnation of the law, according to the most stringent, but just rules of its interpretation and its principles, whatever weight his intoxication might have with a jury as to the degree of his crime.

The prisoner has his legal rights, and it is the duty of the court, uninfluenced by the repulsive features of his admitted crime, or the condemnatory comments of an excited public press, to see that those rights are protected, and that he is condemned according to the rules of law.

We think, for the reasons above stated, he may have been prejudiced by not having had the circumstance of his intoxication submitted to the jury with the other circumstances of the case, especially considering the positive charge of the court, and that he is therefore entitled to a new trial.

Judgment reversed and new trial ordered.


source: Caselaw Access Project

author: By the Court, Rosekrans, J.

license: Public Domain

text:
    Supreme Court. Clinton General Term,
    May, 1858.

      C. L. Allen, James, Rosekrans and Potter, Justices.
    The People v. Joel W. Holcomb and others.
    At common law, all warrants in criminal proceedings are required to he under the hand and seal of the magistrate who issued them. Certain statutory-exceptions stated by Rosekrahs, J.
    A search warrant, not under seal, is void, and affords no protection to an officer attempting to execute it.
    Nor can a search warrant be sustained as valid when directed to “ any constable ” of the county in which the search is directed to be made, the statute requiring all search warrants to be directed “to the sheriff of the county, or to any constable or marshal of the town or city ” in which the stolen property is alleged to be secreted.
    The place to be searched must be particularly designated in the search warrant. Where a part of the complaint .was recited in the warrant, in which it was stated that the complainant suspected the stolen property was concealed in the stable of O. P., on the east side of the canal, in the village of Whitehall, in said county, known as the “ red barn,” and then the warrant gave direction to search the places where said property was suspected to be concealed, it was held insufficient, for the reason that though the place mentioned in the complaint was sufficiently designated, the direction given in the warrant was too general, and authorized the search of any suspected place, instead of confining the search to the place so suspected by the complainant.
    Whether a search warrant can be executed, or afford protection to an officer, where it shows upon its face that the party who has the property alleged to be stolen is charged with the larceny of it, and no warrant for his arrest accompanies, or is incorporated in the search warrant, quere?

    Form of an indictment for an assault and battery committed on an officer while engaged in the execution of his office, with a count for riotously and routously resisting the execution of process, and a count for resisting the execution of a search warrant under the Act of 1845 ( ch. 69, § 17.)
    Certiorari to the Court of Sessions of Washington county.
    The indictment contained four counts, and was as follows:

      Washington County, ss:

    The jurors of the people of the State of Hew-York, of the body of the county of Washington, to wit, Ebenezer McMurray, &c., good and lawful men of the body aforesaid, then and there sworn and charged to inquire for the people of the said body, upon their oath present: That Joel W. Holcomb, James Woodard, Henry Loomis and Charles Pardo, late of Whitehall, in said county of Washington, on the twenty-ninth day of May, in the year of our Lord one thousand eight hundred and fifty-five, at the said town of Whitehall and county of Washington, in and upon one Henry H. Knight, then being one of the constables of said county, in the peace of Q-od and of the said people, then and there being, and in the due execution of his said office, then and there also being, did make an assault, and him, the said Henry H. Knight, then and there did beat, wound and ill treat, and the due execution of his said office, did then and there, with force and arms, resist, hinder and prevent, contrary to the statute in that case made and provided, and against the peace of the people of the State of New-York, and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present: That Floras D. Meacham, Esquire, was a justice of the peace, in and for the county of Washington, at the town of Whitehall, on the said twenty-ninth day of May, in the year of our Lord, one thousand eight hundred and fifty-five, that on the said twenty-ninth day of May, in the year of our Lord, one thousand eight hundred and fifty-five, at said town and county, the said Meacham, as a j ustice of the peace aforesaid, duly issued a certain process called a search warrant, subscribed with his name, directed to any constable of said county, and commanding them in the name of the people of the State of New-York, to search a certain barn in said town of Whitehall, which was in said warrant particularly described, in the day-time, for certain personal property, in said warrant particularly set forth and described, belonging to one Alwyn Martin and one Moses T. Clough, which property had been stolen and feloniously taken, and was then concealed in said barn, and said stolen property to bring before said justice of the peace, all of which will, by ' said warrant, more fully and at large appear, that one Henry H. Knight, then and there, was a constable in and for said county, at Whitehall in said county, that said process was duly delivered to him for execution at the time and place aforesaid, that said constable then and there proceeded to the due execution thereof, and was at and about the searching said barn, in the day-time, for said stolen property, to take the same before said justice, as by said warrant he was commanded; and that on the day and at the place last aforesaid, Joel W. Holcomb, James Woodard, Henry Loomis and Charles Pardo, in and upon the said Henry H. Knight, then and there being in the due execution of said process, did make an assault, and the execution of said process did then and there, with force and arms, maliciously and willfully resist, and him, the said Henry H. Knight, did then and there, from the execution of said process, hinder and prevent, and the said stolen property did then and there, with force and arms, violently and unlawfully, from the custody and possession of him, the said Henry H. Knight, receive and take away, contrary to the statute in that case made and provided, and against the peace of the people of the State of New-York and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present: That Joel W. Holcomb, James Woodard, Henry Loomis and Charles Pardo, late of Whitehall in said county, on the twenty-ninth day of May, in the year of our Lord, one thousand eight hundred and fifty-five, at the said town of Whitehall and county of Washington, with force and arms, did unlawfully, riotously and routously assemble together to disturb the peace, and being so assembled together, in and upon one Henry H. Knight, then and there being one of the constables of the said county of Washington, in the due and lawful discharge of the duties of his office as constable of said county being, in the service of a lawful process, to any constable of said county directed, and by him then and there had and held for execution as such constable, commanding him to search certain premises in said town and county, for certain stolen property, and the same to bring before the magistrate issuing said process; which place and property was, .in said process, particularly described and set forth, said process having been issued by one F. D. Meacham, a justice of the peace in and for said county, at said town of Whitehall, and having due authority and power to issue the same, did make an assault, and riotously and routously him, the said Henry H. Knight, did. resist, hinder and obstruct in the discharge of the duties of his oEce of constable, and the execution of said process, and the place which by said process said Knight was commanded to search, did, with force and arms, unlawfully hinder and prevent from searching, and the said stolen property did prevent and hinder from being taken before the magistrate issuing said process, as by the command thereof said constable was directed.
    And the jurors aforesaid, upon their oath aforesaid, do further present: That Joel W. Holcomb, James Woodard, Henry Loomis and Charles Pardo, late of Whitehall, in said county of Washington, on the twenty-ninth day of May, in the year of our Lord, one thousand eight hundred and fifty-five,' with force and arms, at said town of Whitehall and county of Washington, the execution of a certain process called a search warrant, in due form of law issued by an oEcer having full authority and jurisdiction to issue the same and then and there had and held, by one Henry H. Knight, then and there being a constable iñ and for said county, for execution, did resist, and the execution thereof did then and there prevent, hinder and obstruct, contrary to the statute in that case made and provided, and against the peace of the people of the State of New-York, and their dignity.
    Joseph Pottee,

      District Attorney.

      The defendants pleaded “not guiltyand the issue came on to be tried in the Court of Sessions of Washington county, in February, 1856, before the county judge and the justices of the Sessions, With a jury; and the people, to maintain the issue on the part of the prosecution, gave in evidence a certain paper or instrument, purporting to be a warrant, and signed by one F. D. Meacham, a justice of the peace, which instrument is in the words and figures following:

      Washington Cowrity, ss:

    To any constable*of said county, greeting:
    Whereas, Alwyn Martin has made complaint on oath before me, F. D. Meacham, one of the justices of the peace of the said county, that, on the twenty-seventh day of May, one thousand eight hundred and fifty-five, certain persona] property of the said Alwyn Martin and Moses T. Clough, to wit, one chestnut colored stallion horse, of the value of two thousand dollars or upwards, was stolen and feloniously taken from the possession of the said Martin and Clough, in the town of Whitehall, in the said county; and that he suspects that Henry Loomis did steal and take the same, as aforesaid, and that the said property is now concealed in the stable of Charles Pardo, on the east side of the canal, in the village of Whitehall, in said county, known as the Eed Grocery Barn:
    Therefore, the people of the State of New-York command you to search the place Where the said property is suspected to be concealed, in the day-time, and that you bring the same before me.
    Witness my hand, this twenty-ninth day of May, one thousand eight hundred and fifty-five.
    F. D. Meacham,

      Justice of the Peace.

    The defendants objected to the same being given in evidence, because it was directed to any constable of the county of Washington, and. not to the sheriff of the said county, nor to any constable or marshal of the town of Whitehall, where the process was issued, and the supposed Stolen property was concealed, as required by the statute; and because it commanded the officer to search the place where the said property is suspected to be concealed, and did not require him to search in any particular place, but, on the contrary, was a general warrant, authorizing a search in any place where it might be suspected the property might be; and because the warrant on its face was unauthorized and void. All of which objections were overruled by the court, and the warrant admitted in evidence, and the defendants excepted to each and every of the decisions of the court, overruling each and every of said objections.
    Evidence was then given of an attempt by Henry H. Knight, a constable, to execute the warrant, and of forcible resistance by the defendants. The court charged that the warrant was valid ; to which the defendants excepted; and the jury found the defendants guilty.
    A bill of exceptions having been made and proceedings stayed, a certiorari was issued and return made.

      Clough & Sheldon, for the defendants.
    I. The warrant was void: first, it was directed to “ any constable of said county.” There is no such officer; and the statute is plain that it must be directed to the sheriff of the county, or to the constable of the town, or marshal of the city, &c. (2 R. S., 746, § 26 ; id., 831, § 30, 3d ed.; Russell v. Hubbard, 6 Barb., 654, and cases there cited.) Second. The warrant did not particularly describe the place to be searched. This is required by the bill of rights, by the constitution, and by the statute. (1 R. S., 93, § 11; id., 94, § 11, 3d ed.; Const. U. S., 4th amend.; 2 R. S., 746, § 26 ; id., 831, § 30, 3d ed.) By no grammatical construction can the barn be deemed the place where “ the property is suspected to be concealed.” The suspicion applies to Loomis. It is, in fact, a command to search any place where any one suspects the property may be concealed, a general warrant, commanding the officer to search any place, and therefore void.
    II. The process being invalid, the defendants were justified in resisting this outrage upon the person and property of Holcomb. This protection extends to third persons. (1 Chit. Cr. L., 60, 61; 1 Russ. on Cr., 618.)

      A. L. McDougall (District Attorney), for the people.
    I. The first objection is trivial. The direction is a compliance with the statute. It is to be directed to the sheriff or to any constable, &c. (2 R. S., 929, 4th ed.) The latter was the direction in this case. The object of the direction is to inform the person to be arrested who or what class of officers are authorized to arrest him. That object is satisfied by this direction. (1 Chit. Cr. L., 38; Mag. Cr. L., 458, 459.)
    II. The second objection is not less frivolous. 1. The statute requires the place properly to be designated in the' warrant. In this case, both were particularly described. The magistrate in the first place described where the property is suspected to be concealed. It then commands the officer to search the place where said property is suspected of being concealed, &c. It is the same as if he had said search “ said place,” which is the form laid down in Magistrate's Criminal law (p. 565). The one expression is as certain as the other. There is no room to doubt the place to be searched. 2. The language of the warrant is a precise transcript of the statute in this respect. (2 R. S., 929, 4th ed.) That was the most certain language the revisors could employ. 3. The warrant is a substantial compliance with the statute, and is not therefore void, and will therefore protect the officer, especially against contemners of the law, its process and officers. (Rosc. Cr. Ev., 620; 1 Hale, 457, 459, 460; 1 East, 310.)
   By the Court, Rosekrans, J.

The defendants were indicted for resisting a constable in executing a search war rant, issued by a justice of the peace, in these words:

[The search warrant was here set forth in the same words as in the statement of this case.]

The acts of the defendants, which were proved, were sufficient to convict them of the offence if the warrant was a legal justification of the constable in making the search, and taking the property. Upon the trial the defendants insisted that the warrant was void : First. Because it was directed “to any constable of the county of Washington,” instead of the “ sheriff of the county, or a constable of the town of Whitehall;” Second. Because it commanded the officer to search the place where the property was suspected to be concealed, without describing the place; and, Third. That the warrant was unauthorized. These objections were overruled, and the defendants excepted. The court charged the jury that the warrant was valid, and the defendants excepted to this part of the charge.

The warrant, although it recites a complaint on oath, that a larceny had been committed and that the complainant suspected that Henry Loomis had stolen the property and had secreted it in the stable of Charles Pardo at Whitehall, does not direct the arrest of Loomis but only that the officer should search for the stolen property and bring it before the justice. Had it directed the arrest of the person charged with the offence, it might have been directed to the sheriff of the county or any constable of any town in the county and need not have been under seal. (2 R. S., 890, § 3, 4th ed.) But search warrants are by statute required to be directed “ to the sheriff of the county or to any constable or marshal of the town or city ” (2 R. S., 929, § 33), and by the common law, warrants, in criminal proceedings, are required to be under the hand and seal of the magistrate who issues them. (4 Bl. Com., 291; 2 Hawk., 85, 136 ; 4 Burns’ Justice, 393, 394.) In Beekman v. Traver (20 Wend., 68) the court say that the word “ warrant ” implies that the process is under the hand and seal of the magistrate, and that it would not be a warrant in the sense of the law unless it was sealed. The same doctrine is held in North Carolina, (Welch v. Scott, 5 Ire., 72.; State v. Woolsey, 11 ib., 242), in Maine, (State v. Drake, 36 Maine, [1 Heath] 366; State v. Coyle, 33 Maine., [3 Red.] 427; State v. McNally, 34 id., 210). The search warrant in Bell v. Clapp (10 J. R., 263) was under the hand and seal of the justice. Our statutes have dispensed with seals to process in various cases. Warrants issued by justices of the peace in civil cases “ may be under or without seal.” (2 R. S., 453, § 153.) Warrants issued for the arrest and examination of offenders may be with or without seal. (2 R. S., 890, § 3.) Also warrants under the statute entitled “ Of proceedings to prevent the commission of crimes.” (2 R. S., 888, § 3.) Warrants issued upon judgments of Courts of Special Sessions may be only “under the hands of the magistrates who held the court.” (2 R. S., 901, § 36.) Also warrants issued by trustees of school districts annexed to tax or rate bills may be under the hands of the trustees, and it is expressly provided that they need not affix their seals. (1 R. S., 902, § 144.) But the statutes directing the issuing of a warrant against the putative father of a bastard child (2 R. S., 57, § 6) and the statute entitled “Of betting and gaming’’? (1 R. S., 75, §24) and the statute authorizing the issuing of search warrants for stolen property (2 R. S., 929, § 32), merely direct or authorise the issuing of warrants, without specifying whether they shall be with or without seal. As the common law required a warrant to be under seal, and the legislature in reference to warrants authorized to be issued in various cases, both civil and criminal, have expressly provided that they may be issued without the seal of the magistrate or officer, the rule of expressio unius est exclusio alterius requires that, in those cases in which warrants are not expressly authorized to be issued without seal, they should be issued under seal. (Bouv. L. Dic., title Search Warrant”) If this position is correct, the warrant under which the officer was acting when he was assaulted and resisted by the defendants was void upon its face and afforded him no protection; the resistance of the defendants was lawful and the ruling of the Court of Sessions that the warrant was valid and that such resistance was unlawful, was erroneous. ( Sanford v. Nichols, 13 Mass., 288.

We think, too, that the objection that the warrant did not conform to the statute in its direction was well taken, and that it was for that reason void upon its face. The statute declares that “ such warrant shall be directed to the sheriff of the county, or any constable or marshal of the town or city.” The warrant issued to the constable who was resisted was directed “to any constable of said county” (Washington). It is clear that a warrant can only be executed by the officer to whom it is directed; and in the hands of any other person or officer than one of those to whom its execution is by law intrusted it is of no validity. There is no such officer as a “ constable of the county.” Constables are town officers. But perhaps the reasonable construction of the direction of the warrant is, “ to any constable of any town in the county of Washington.” If so, it is unauthorized. The statute contemplates that a search warrant should only be executed by the sheriff of the county, or a constable or marshal of the town or city in which the stolen property is alleged to be secreted. To direct it to any other officer is a violation of the statute. The direction of a warrant is a material part of it. (Russel v. Hubbard, 6 Barb., 656, and authorities there cited; 1 Chit. Cr. L., 48.) In King v. Weir (1 Barn. & Cress., 288), Barley, J., says: “It is of great consequence that magistrates should be careful to direct their warrants in such manner that the parties to be affected by them may know that the persons bearing them are authorized to execute them;” and Allen, J., says, in Russell v. Hubbard (supra), “a delivery to a proper officer is not the direction required by law.” Hawkins says : “ If a warrant is generally directed to all constables, no one can execute it out of his own precinct.” Courts should construe statutes in relation to search warrants strictly, and see that the specific directions of those statutes are rigidly followed. A search for and seizure of property, not made in the cases and according to the exact mode prescribed by statute, is an unreasonable search and seizure, the right to be secure against which should not be violated. (Bill of Rights, 2 R. S., 302, § 11; Const. U. S., amend, art 4.)

We think, too, that the warrant is void upon its face, in not designating particularly the place to be searched. It stated, in the part reciting the complaint, that the complainant “ suspects that the stolen property is concealed in the stable of Charles Pardo, on the east side of the canal, in the village of Whitehall in said county, known as the red barn.” This designation of the place would be sufficiently specific if the direction to search was confined to that place, either expressly, by repeating it, as was done in the warrant in Bell v. Clapp (10 John., 263), or by reference, as in the case of Commonwealth v. Dana (2 Metc., 831, note) and in Sanford v. Nichols (13 Mass., 386). But the direction is not to search the said place, which would limit the search to Pardo’s barn before described. The constable is directed “ to search the place where the said property is suspected to be concealed." This direction, if constitutional and legal, would authorize search in any other place where the officer or any other person might suspect the property to be concealed, It is a general warrant for a search of suspected places. The words, “ the said property,” are a sufficient designation, by reference, of the property to be searched for, but the place where the search is directed to be made is not designated with sufficient particularity to comply with the requirements of the constitution and statute, It is no answer to this objection that the officer may have construed the warrant as only authorizing a search at Pardo’s barn, nor that the search which he made and which the defendants resisted was made at that place. The question is not, what construction did or might the officer put upon the warrant, nor whether his acts were such as would have been legal and justifiable under a warrant which would have been authorized by the complaint, but it is simply whether the warrant, according to the legal construction of its language, confines the search to the particular place designated in its reciting part as the place of suspected concealment of the property. We think it does not, and that nothing should be be left to inference or intendment in that particular. The place of search mentioned in the reciting of the warrant should either have been repeated in its mandatory part or have been designated by reference to it, as “the said place where the said property is, as before mentioned, suspected to be concealed.”

It is also questionable whether a search warrant can be executed, or afford protection to an officer, where it shows upon its face that the party who has the property alleged to be stolen is charged with the larceny of it, and no warrant for his arrest accompanies or is incorporated in the search warrant. The complaint recited in the warrant disclosed that a criminal offence had been committed by Loomis as clearly as it did the place of concealment of the stolen property. Both were founded merely upon suspicion, and without a disclosure of the facts upon which the suspicion was based, the justice should not have been satisfied of the existence of either. The reasonable grounds of suspicion should have been set forth. This, however, did not affect the officer’s right to execute the process. But if the larceny was satisfactorily made out, it was the duty of the justice to issue a warrant for the arrest of Loomis. (2 R. S., 890 § 3), and when the property alleged to be stolen was taken by the constable, he was required to keep it subject to the order of the magistrate who issued the warrant, and who should take the examination of the defendants, and such magistrate, upon satisfactory proof of the title of the owner, is authorized to order the property delivered up to such owner (2 R. S., 930, §§ 37, 38); and if stolen property shall come into the hands of a justice of the peace, upon like proof he may order it delivered to the owner (id., § 39); but it was never contemplated that a search warrant should be issued to obtain possession of property alleged to have been stolen, and when brought to the justice that he should order it to be delivered over to the person claiming to be the owner, upon ex parte proof of his title. No freeman can be thus dispossessed of property. He is entitled to a day in court, and a hearing in some tribunal, civil or criminal, before his possession is disturbed. An ample civil remedy is provided for the delivery of property held under circumstances such as were disclosed by the complaint in the case. His proceedings under his complaint and warrant were anomalous and unprecedented. They seem to have been designed by him to peform the office of the old writ of replevin, or the proceedings under the Code of Procedure for the claim and delivery of personal property, without subjecting him to the inconvenience of giving security for the return of the property, if return thereof should be adjudged, and without giving the defendant Loomis, who was charged with the larceny, an opportunity to establish his title or right to the possession of the property, or to defend his reputation against the serious charge preferred against him. No warrant was issued for his arrest, nor was he arrested for the alleged larceny, although he was present at Pardo’s stable and resisted the officer in his attempts to take the property. No notice was given him, or cóüld be legally given him, under the process, of the time when or the place where the proof of the complainant’s title to the property was to be furnished to the magistrate. It was probably not intended that he should have had such notice. This novel disseizin might not have worked as it was designed had the notice been given. At common law it was necessary that a search warrant should command that the goods found, together with the party in whose custody they should be taken, should be brought before the magistrate, to the end that upon examination of the facts, the goods and the prisoner might be disposed of according to law. (2 Hale, 150; 15 Petersd. Abr., 361, margin and note.) The revisors make this citation from Hale in their notes to the section of the statute authorizing a search warrant; and also 3 Dickinson's Justice, 505 (3 R. S., 838, 2d ed.); also, to the same effect, Bouvier’s Law Dictionary, title “ search warrant,” and authorities cited. (1 Chit. Cr. L., 64.)

For these reasons the judgment of the Sessions should be reversed and the defendants discharged.


author:
      By the Court.
     Goss, J.

text:
    Monroe Oyer and Terminer.
    April, 1858.
    Before Welles, justice of the Supreme Court, George G. Munger, county judge, and Ephraim Goss and James Swayne, justices of the Sessions.
    The People v. Ira Stout.
    At common law, the information obtained by physicians in their professional intercourse with patients was not privileged from disclosure.
    The provisions of the Revised Statutes on that subject (2 R. 8., 406, § 73), are intended to establish, between physician and patient, the same rule as that existing between attorney and client.
    The “ information,” of which the statute forbids the disclosure, is not confined to communications made by the patient, but extends to all facts which necessarily come to the knowledge of the physician in a professional case.
    The statute is for the protection of the patient and not the physician, and being of a remedial nature, it should be construed liberally and with reference to the evil it was designed to remedy.
    To bring a case within the protection of the statute it is not necessary that the technical relation of physician and patient should exist; but the statute is applicable where a physician has attended upon a person under circumstances calculated to induce the opinion that his visit was of a professional nature, and the visit was so regarded and acted upon by the person so attended.
    Where a person had been arrested' and confined in jail, on a charge of murder, and was in a disabled and shattered bodily condition, and two physicians were sent by the coroner to the jail to examine the injuries of such prisoner, who informed him of the object of their visit, and whom he knew to be physicians, and the prisoner consented and submitted to such examination, and answered all. the questions asked him, and requested one of the physicians, as he was leaving, to call again the next day, it was held, on the trial of the prisoner for the murder charged, that, the case was within the statute, and that such physicians, who were called as witnesses, could not be permitted to disclose any information they acquired on such visit to the prisoner.
    The prisoner had been indicted for the murder of Charles W. Littles. At the trial, a question of evidence arose which was considered and decided in the following opinion. The circumstances under which the question arose are fully stated in the opinion of the majority of the court.

      C. Huson, Jr. (District Attorney), for the people.

      J. N. Pomeroy, for the prisoner.
   By the Court.

In order to arrive at a correct determination of the question before the court, a brief review of the facts upon which it arises will be necessary.

Early on the morning of the twentieth of December last, the body of Charles W. Littles was found in the Genesee river, just below the high falls. The examination of the spot, which was soon thereafter made, induced the opinion that Mr. Littles had been killed during the preceding night, on the summit of the high bank above, and that his body had been thrown over the precipice and dragged to the river. There were some circumstances also indicating that the perpetrators of the crime had themselves been precipitated over the bank, either in the struggle or in their efforts to remove the dead body.

The prisoner was arrested during the forenoon of the same day, and taken to the police office, on suspicion of being one of the persons connected with the homicide. His arm was in a sling, and scratches and contusions were discernible on his face. He was committed to the county jail. The following morning his condition was such as to require medical aid, and accordingly Dr. Langworthy, the physician to the jail, was called in. The doctor visited him between ten and eleven o’clock. It does not appear that the prisoner knew Dr. Langworthy or his official character. The doctor thinks that he understood, however, that he was a physician. There was no prescription made at the time, but the doctor says he told him what he was going to prescribe, and thinks there was something said about his being his physician in future.

Shortly after this visit, and before noon, two gentlemen, whom the prisoner had seen the day before at the police office engaged in the post mortem examination of Littles’ body, viz., Drs. Montgomery and Avery, appeared at the prisoner’s cell and stated that they had been requested by the coroner to examine him and see what injuries there were about his person. Dr. Avery says he presumes they informed him that they were physicians. The prisoner was at the time lying on a cot in his cell, and either suffering considerable pain or much depressed. They felt of his pulse, counted its pulsations by the watch, looked at his tongue, asked him questions, pressed on his chest and shoulder, and, in short, as they say, conducted themselves, as to their manner, precisely as if they had been examining one of their own patients with a view of ascertaining his injuries and making the necessary prescription or surgical operations. The prisoner consented to the examination, granted every request, and answered all questions. As the physicians were leaving, and before Dr. Montgomery was out of the cell, the prisoner asked him if he would call again, or to-morrow, or something to that effect. There was no prescription made, and no conversation about any being made. Dr. Montgomery, in response to a question, “ whether, from their manner, the prisoner had reason to think they were physicians, and were examining him with a view to treatment, and whether, in his opinion, he did so regard them ? ” answers affirmatively, and gives as his reason the particulars of their manner, as above stated, and the “ entire submission, and willingness, and readiness of the prisoner to do what was asked of him,” together with the prisoner’s closing inquiry, above given.

Upon this state of facts, Dr. Avery, the witness on the stand, is asked to describe the condition of the prisoner, as ascertained at that interview.

The counsel for the prisoner objects to the reception of any testimony under this question, on two grounds:

First. That this examination was involuntary and compulsory on the part of the prisoner; and,

Second. That the admission of the evidence would be a violation of the statutory prohibition against a disclosure by physicians of information derived in the course of professional treatment of patients.

It cannot be necessary to discuss the question suggested by the counsel for the prisoner under the first branch of the objection, viz., that facts obtained compulsorily from a party charged with crime, cannot, any more than confessions thus obtained, be given in evidence, for we are of opinion that the mental state of the prisoner was one of assent to the examination. The very foundation of the counsel’s argument therefore fails. The mere fact of being in custody cannot be urged against satisfactory evidence of positive assent.

The other branch of the objection deserves more consideration.

At common law the information derived by physicians in their professional relations with patients was not privileged from disclosure. The only privileged communications in this respect were those between attorney and client, and the general rule was adopted, that those communications passing between • them during the professional relation were protected from disclosure. The reason of this doctrine of the courts was the necessity on the part of the public of intrusting business to the legal profession, and the insecurity of so doing if the information thereby imparted were liable to divulgement.

The restriction of this doctrine to the legal profession was, at an early day, regretted. In Wilson v. Rastall (4 Term R., 756), Mr. Justice Buller said “there were cases in which it was much to be lamented that the law of privilege was not extended to those in which medical persons were obliged to disclose the information which they acquired by attending in their professional character.”

Upon the revision of the Statutes of this state in 1828, the revisors noticed this omission in the common law, and introduced a section amendatory of the defect, which is as follows:

“ No person duly authorized to practice physic and surgery shall be allowed to disclose any information which he may have acquired in attending any patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.” (2 R. S., 327, § 93, 2d ed.)

The revisors’ note to this section indicates clearly, in accordance with the manifest meaning of the provision, that the design was to create a privilege in the case of this medical profession analogous and commensurate with that which had always existed in the case of the legal profession. The note is as follows: “The ground on which communications to. counsel are privileged is, the supposed necessity of a full knowledge of the facts to advise correctly, and to prepare for the proper defence or prosecution of a suit; but surely the necessity of consulting a medical adviser, when life itself may be in jeopardy, is still stronger, and unless such consultations are privileged, men will be incidentally punished by being obliged to suffer the consequences of injuries without relief from the medical art, and without conviction of any offence. Besides, in such cases, during the struggle between legal duty on the one hand and professional honor on the other, the latter, aided by a strong sense of the injustice and inhumanity of the rule, will in most cases furnish a temptation to the perversion or concealment of truth too strong for human resistance. In every view that can be taken of the policy, justice or humanity of the rule as it exists, its relaxation seems highly expedient. It is believed that the proposition in the section is so guarded that it cannot be abused by applying it to cases not intended to be privileged.” (3 R. S., 737, 2d ed.)

We are called upon for the first time, so far as we are aware, to give a construction to this statute upon the point involved in this case. In the absence of authority, which we exceedingly regret, we must be guided by the obvious spirit of the statute, and by a reference to the analogous privilege as to counsel, of which privilege this statute, as it is apprehended it will be readily conceded, is merely declaratory as applied to physicians.

In the first place, it is plain to us that the “information” mentioned in the statute is not confined to communications made by the patient: it extends to all facts which necessarily come to the knowledge of the physician in a given professional case. Such a range must manifestly be given in the use of the term in order to effectuate the design of the statute, and is in accordance with the well settled rule in the case of an attorney. (11 Paige, 377.)

The next question is as to the persons between whom the relation must exist, It would seem to' be absolutely necessary that the party on one side should be a duly qualified physician. That, under the statute, is in the nature of a condition precedent, so to speak. This qualification, also, has always been annexed to the privilege in the case of attorneys.

The remaining question, so far as this case is concerned, is, what must be the nature of the relation between the parties.

A literal construction of the statute would require the technical relation of physician and patient to exist. But is that indispensable? In the case of a visit from a physician, may there not be a state of circumstances which falls short of constituting this technical relation, but which presents a very proper case for the application of the statute?

This is, in our judgment, the real question before us, and it consequently deserves full consideration.

The thought naturally first suggested is, that the statute is for the protection of the patient and not for that of the physician. This very point has been ruled under the statute (14 Wend., 637; Johnson v. Johnson, 2 Cow. & Hill’s Notes, 1574), and it is in consonance with the well settled doctrine in the analogous case of attorney and client.

The statute is, moreover, of a remedial nature, and must be construed liberally. In the case of such a statute, it is peculiarly the duty of the court to look for its spirit, and be guided thereby in its application.

The spirit of this statute we apprehend to be that, whenever the confidential relation of physician and patient has once existed, and the patient has, in consequence thereof, yielded to examinations and made communications which he would not otherwise have made, the seal of secrecy shall be set on the transaction. It follows that it is the duty of the court to give full effect to this wise and humane provision. Such effect cannot, however, be given unless the party be protected in all cases of confidential disclosures whenever the patient had reason to suppose that the relation existed, and did, in fact and truth, so-suppose. The injury to him is as great, in the case of divulgement of information thus obtained, as it would be if the relation had technically existed; for it is plain that the opportunities for gaining the information would not have been voluntarily afforded had it not been for an entire confidence in the fact of such relation existing. We are of opinion, therefore, that in a case in which a physician has attended upon a person, under circumstances calculated to induce the opinion that his visit was of a professional nature, and the visit has been so regarded and acted upon by the person, that the relation of physician and patient contemplated by the statute may fairly be said to exist. The spirit of the statute is thereby respected, and no great violence done to its literal terms.

A reference to the corresponding privilege in the case of attorney and client, will, it is apprehended, confirm this view.

The rule in general statement is laid down quite as strictly as in the statute .before us, that the professional relation must exist; yet it'is well settled that no regular retainer as counsel is necessary, nor any particular form of application or engagement, nor the payment of fees, or the expectation of payment, or receipt of fees. (12 Pick., 89; 3 Sandf. Ch. R., 35.)

Again, the doctrine is laid down in general terms equally strictly, that the information, in order to be protected, must have been necessarily obtained in the bourse of the professional relation, and that no collateral matters will be privileged. But it has been held that the privilege extended to any communication made by a client under a mistaken belief of its being necessary to his case. (8 Eng. L. and Eq R., 554.)

And lastly, it has been held that the general rule that the professional relation must exist is not inflexible, and that there may be cases in which the. communications will be privileged, although the relation did not, in point of fact, exist at all. (Smith v. Fell, 2 Curt., 667 ; 1 Greenl. on Ev., 307, note 2; Sargent v. Hampden, 38 Maine, 58.) In the former of these cases a professional person had been requested to act as solicitor, and the communication was made under the supposition that he had accepted. A brief extract from the opinion of Howard, J., in the latter case, will not be without value. After stating the common law rule and the rationale of it, he proceeded:

“ The reasons upon which this time honored rule of law is founded may apply with equal force where one makes application to counsel for professional services, although the relation of client and attorney do not, in fact, subsist, as where the latter may not conclude whether to withhold or render his professional aid until the appliant has disclosed the merits of his case. Then if he should decline to act professionally in the matter, on account of prior engagements and prior ohligations to others, or from necessity or choice, the disclosures and communications then made should be privileged. As they were committed to him in his professional character, the spirit of the rule would require that they should not be divulged without the assent of the party by whom they were made.”

Support may also be derived from analogous cases. One only will be suggested:

The Revised Statutes justify a homicide if committed by a person in self-defence, when there shall be a reasonable ground to apprehend a design to commit some great bodily injury on him, and there shall be imminent danger of such design being 'accomplished. Under a literal construction of this statute the imminent danger must be one of reality and fact, but a just regard for the spirit-of the statute requires the extension of its provisions to other cases, and such liberality of construction has been shown by our courts. In Shorter v. The People (2 Comst., 193), the Court of Appeals held that a case in which a person was attacked under such circumstances as to furnish reasonable ground for apprehending a design to take away his life, or to do him some great bodily injury, and there was reasonable ground for believing the danger imminent that such design would be accomplished, was a proper case for the application of the statute, although there was, in fact, neither design to do serious injury, nor danger that it would be done.

It remains to make an application of the fact before us to the proposed construction of the statute. Th& only point requiring consideration is whether the prisoner had reasonable grounds for the supposition that Drs. Montgomery and Avery came to him for the purpose of examination and treatment, and did so suppose. ' ,

In the first place, it is clear that he had reason to expect medical aid from the public authorities. He was in a disabled and shattered condition, evidently having either been engaged in a terrible struggle, or having fallen over the river bank, or both. He was a captive in the hands of the public authorities. It was their duty, under such circumstances, to furnish him all reasonable medical aid and attendance. This he had a right to expect, and probably did expect.

We are also of opinion that the prisoner had reasonable ground of apprehension that Drs.■ Avery and Montgomery called to render him aid. Their language to him which introduced this interview, though to our minds and at this distance from the occasion conveying a different meaning from that in which the prisoner manifestly received it, did not necessarily exclude the idea of their visit being one of a professional'nature. By a person reduced by pain and very much in need of treatment the language would not be closely scanned, and it might well be understood by him as a message from the coroner to examine into his injuries. Their manner to him was, moreover, purely professional, and as we now look at the description of it, aside from the other-matters, we naturally adopt the conclusion that it was by professional men for professional purposes, rather than by government witnesses to obtain testimony for the prosecution. It may be said that Dr. Langworthy had been to the prisoner previous to this, and that, therefore, he could not have'regarded the gentlemen in question as coming in a professional capacity. We think, however, that this circumstance rather adds strength to our view, than otherwise. The prisoner might well conclude from Dr. Langworthy’s visit that the public authorities were moving in his behalf. Upon others calling, it would have been far from illogical for him to infer that Dr. Langworthy had reported him to be in a serious condition, and that therefore others had been called in to advise in connection with Dr. Langworthy.

And, lastly, we are of opinion that the prisoner regarded the visit in that light. His manner throughout, and particularly his closing question or remark about their calling again the next day, are, to our minds, almost conclusive evidence on this point.

It is no valid objection to an application of this statute, that the prisoner did not probably know of its existence, and had no opinion whether or not the particulars of that interview would be privileged from disclosure. It is a sufficient answer that the salutary rule of law stands upon the statute book, and is to be dispensed alike to those familiar with or ignorant of its existence and applicability.

If the prisoner’s mind had been carefully disabused at the outset of any notion of the examination being solely for his benefit, and he had been carefully advised that its sole object was to procure evidences of his guilt of the terrible crime of which he was suspected, there would be no ground or pretence for the position of his counsel. But so many things combining to satisfy us that he regarded the visit very differently, and had occasion for so doing, we feel bound, in a case like this, involving so deeply the dearest earthly rights of a man, to show all reasonable indulgence, both as to the law and fact.

We are of opinion that the objection to the testimony offered by the people should be sustained.

Goss, J.

(Dissenting.)—The object of the statute was to make communications, made by a patient to his physician, confidential and privileged, and also to prohibit such physician from disclosing any fact or thing which he might learn in the treatment of the case. This was a wise and salutary provision, intended to protect the rights and feelings of patients, but, in order to be thus privileged, there must exist between the parties the relation of physician and patient. The patient must engage or employ his physician, and be liable (by an express or implied understanding) for the payment of his services. In this case, the physician'called upon the prisoner, not as a physician at his request, but as the agent of public authorities of the county, to perform an official and not a professional duty, the same as a sheriff, constable or any other public officer might have been directed to perform. The prisoner was expressly informed by the physician that he called upon him by the order and under the direction of the coroner; he was not therefore misled as to the nature and character of the doctor’s visit, and made no objection to such examination. Had the prisoner objected it could not have been properly made. As there was no deception, and the information as it appears fairly obtained, it can be regarded in the nature of a voluntary admission, and as such may be received in evidence. It seems clear to inc that this case does not come within the prohibition of the statute cited by the prisoner’s counsel, and with all due respect to the opinion of the majority of the court, I dissent therefrom, and think that the objection to this evidence should be overruled.

In accordance with the opinion of the majority, the evidence offered was excluded.