author: Wright, J.

text:
    Supreme Court. Albany General Term,
    September, 1859.
    Wright, Gould and Hogeboom, Justices.
    John Wilson, plaintiff in error, v. The People, defendants in error.
    To constitute the offence of murder under the first subdivision of the fifth section of the statute, entitled “ Of crimes punishable with death ” (2 R. S., 651), an actual intention to kill mnst in all cases be proved. Without such an inten-1 tion, the act can be no more than manslaughter.
    Sncli intention may be inferred from the circumstances under which the violence was inflicted, and sometimes from the act itself; but the onus of establishing it rests upon the prosecution.
    The “heat of passion ” mentioned in the statutory definition of manslaughter, affords the intended protection to the accused, whether it was produced by acts or words, if the provocation was such as was naturally calculated to produce it.
    On a trial for murder by violence, it is not competent for physicians, who made the post-mortem examination, after having described the appearance of the wound to the jury, to give their opinions in evidence as to the kind of instrument by which the wound was caused.
    On a motion before the Court of Oyer and Terminer, in behalf of the prisoner, for a new trial, on the ground of irregularity, affidavits of counsel, as to information they have received from jurors concerning what took place in the jury room, cannot be received as any evidence of the alleged irregularity.
    It is no reason for setting aside a conviction for murder, on motion for a new trial, that during a recess of the trial, one of the jurors took up and examined a piece of the skull of the person alleged to have been murdered, which was lying on the District Attorney’s table, the circumstances of the case being such as to show that the juror could not have been misled thereby, and the fact of the juror having examined the said skull being known to the prisoner’s counsel before they entered upon the defence.
    Affidavits of jurors cannot be received to show that, at the request of one of their number, a constable handed him a paper, on which were marked the several punishments fixed by law for the different degrees of manslaughter.
    And when such fact was shown by the affidavit of the constable, the court refused to set aside the verdict, it appearing affirmatively that the jury could not have been misled thereby.
    Sentence of the prisoner on a conviction for murder.
    This was a writ of error to the Court of Oyer and Terminer of Albany county. The prisoner had been indicted for the murder of Patrick McCarty, and pleaded not guilty. He was tried before Mr. Justice Could and the justices of the Sessions, at a term of the Oyer and Terminer, commencing on the 15th of February, 1859.
    The District Attorney upon the trial called as a witness, on the part of the People, Dexter Potter, who testified: I reside at Ticonderoga; in October, 1858, I was engaged in boating, from Port Henry along the Northern canal; was captain of the boat “ P. M. Bakerknew Patrick McCarty; he was a hand on my boat on 20th of October last; on the morning of ♦October 20th, 1858, my boat lay about her length below the railroad bridge at West Troy, in the town of Watervliet, in the county of Albany; the Armenia of Crown Point, another boat, was there also; one boat lay with her stern under the railroad bridge; I can’t call the name; a western boat came down and was snubbed to that boat; of this boat I heard the name, but do not recollect it; I had known prisoner; I believe he was a hand on one of these two last boats; on the morning of October 20th, 1858,1 saw Patrick McCarty on my boat alive, at West Troy; the next that I saw him was, as near as I can judge, about three hours after that; we fished him out of the canal; he was pronounced dead; I there saw a cut on the back side of his head; I heard the cry of “a man overboard;” I saw Wilson, standing on the dock; think prisoner is the man, Wilson, I then saw there; at the time I saw McCarty on the bow of my boat, I stepped on to the dock off my boat to go and clear up the tow line of my boat from the deck of the western boat; I was then some eighty or ninety feet from my boat; I went no further off; I heard some words pass between a man on the western boat and Captain Belden; I did not see the man; I remained five or ten minutes under the railroad bridge, when I heard the cry of “ man overboard;” I ran back to my boat; saw a hat in the water floating with current near the stern of my boat; a black hat; I thought a Kossuth hat; I saw no body arise from the water; have seen this hatchet before. (Hatchet was here shown to witness.) It was on my boat before this occurrence for a month; might have been longer.

      The evidence in regard to the hatchet was objected to, as irrelevant and immaterial. The objection was overruled by the court, and defendant’s counsel excepted.
    While I was near the railroad bridge, I heard a conversation between McCarty and a man on the western boat; it was a moonlight night, with a little fog in the morning; it was between two and three o’clock in the morning, McCarty had been seven or eight days on my boat.
    The same witness, upon cross-examination, testified: I have, known McCarty about twelve years; he was from 35 to 38 years old; he had worked on the canal and at grocery tending ; did so for Mr. Quinn; he kept assortment; sold liquors; the last I saw of McCarty he was standing on the bow of my boat; bow was to the north; current runs south; the western boat was north of mine; the hat was floating between my boat and the dock; there was twelve or thirteen feet space between the two; found no one on my boat when I got on it; as I got on to my boat, I passed a man standing on the dock; I took him to be Wilson; I recollect seeing but one man there • others came from the bridge right behind me; I saw no one there; might or might not have seen any one else, if there.

      Oliver Ormsby testified: I reside at Ticonderoga; 1 was at West Troy, October 20th, 1858; was a boatman; was then just below railroad bridge; I was a hand on the boat Armenia; knew Patrick McCarty; saw him on the bow of Potter’s boat, the “P. M. Baker,” at West Troy, in the town of Watervliet; I was on the dock, thirteen or fourteen feet from McCarty; after that I saw him after he was taken out of the water; there were four boats there, two northern; I did not before that know Wilson; can’t say as to my seeing him that morning; after seeing McCarty on the bow of the boat, I went forward with Potter to clear the line; went eighty or ninety feet forward; while there, heard conversation between McCarty and some one on the western boat that came down and snubbed alongside of boat that lay ahead of us; there were two western boats, one going north and one going south; the conversation came from the latter (the one coming from the west); I don’t know which boat Wilson was a hand aboard; I heard some one on that boat call McCarty “ a whisky head,” and McCarty returned the compliment; I heard them dare each other ashore, or say they would like to have each other ashore; I heard someone on the western boat speak to Captain Belden; he was captain of the Armenia; nearly ten minutes, five or ten minutes after that I heard the cry of “ man overboard;” I ran back to stern of Armenia; I saw a man' there; I can’t say who he was; I think I saw that man the next morning down at a grocery north of the weigh lock; they called him Wilson; this (prisoner) is the man; I saw McCarty after he was taken out of the water; observed a wound on him near the top of his head, along by his back; it was a moonlight night.
    The same witness, upon cross-examination, testified: Can’t say that I heard all that passed between the man of the western boat and McCarty; I think it did not last till the cry of “ man overboard;” can’t tell who the man on the western boat, jawing with McCarty, was; threats of fighting passed between them three or four times; the man I passed on the dock I did not then know; I saw him distinctly enough to know him if I saw him again; I was within two or three feet of him ; I next saw that man at the grocery, and that man was the prisoner ; I went to assist in looking for McCarty; others came up behind me; this was at two or three o’clock, A. M.; moonlight ; a very little foggy; can't say whether a full moon; it was clear, except the fog; could distinguish a man’s features nearly fifteen feet; it was three hours,before the body was found; it was a half or three-quarters of an hour after the body was found that I saw prisoner at the grocery; think they had arrested him; had not seen him till then, after I saw him, as I thought, on the dock; can’t say whether the man I saw on the dock went with us to search for the man overboard; I don’t remember his going; the cry of “ man overboard ” came from the stern of" our boat; saw no one there but the man on the dock.

      Theodore Belden testified: I was at West Troy, October 20th, 1858; was boating; was captain of the Armenia; I knew McCarty; saw him that morning above the weigh lock, this side of the railroad bridge; he was on the dock the first time I saw him; the next time I saw him he was on the bow of the P. M. Baker; last saw him when taken out of the water; I did not then know Wilson; I saw him that afternoon after he was arrested; I heard a conversation between McCarty and some one on a western boat that came down from the west and snubbed; think it was Louis’ boat; the conversation was a quarrelling one; the man on the western boat called McCarty “a whisky head;” next thing I heard was the cry of “man overboard ;” this was five or ten minutes after conversation; the conversation had ceased before I heard the cry of “ man overboard ;” when I heard this cry I was on the bow of my boat; I ran back to the stern; when I got there, three or four were there ahead of me; we went to looking for Mr. McCarty, as he was not there; Potter, Ormsby, I and a man off the western boat searched; the last man got there after I did; we found nothing of McCarty; we called him by name; neither found him nor heard anything of him; about seven, or between six and seven o’clock, a. M., we found McCarty near where the boats lay at the time we commenced looking for him; I discovered a wound on his head.
    The same witness, upon cross-examination, testified: When I heard the quarrel I was on the bow of my boat; can’t say how far from Ormsby; fifteen feet, I should think; twenty or thirty feet from the man on the western boat, and forty or fifty from McCarty; can’t say whether Ormsby took his coat off to fight or not; I was engaged, and did not pay much attention to what was said during the quarrel; as soón as I heard the cry of a “ man overboard,” I went to work to help find the man; there was a man on shore attending on the stem line; a man from the western boat came down after I did, and assisted in searching; I saw but one man on the western boat, and one ashore with the line; the man that was tending the stem line of the western boat, was one that came down behind me; the •man that came down behind me from towards the western boat, to search for the body, was not the prisoner; the alarm was given from the stern of my boat, or the dock by it; I had some words with a man on the western boat.

      Spencer Bitgood testified: I am a boatman; was in October, 1855; was at West Troy on October 20, 1858; had charge of the “H. Pease,” of Borne; was going west; was there between two and three o’clock, A. it.; was there when the other western boat came down; she got there between two and three o’clock, and snubbed on the middle cleet of my boat; this boat was named “John Van Antwerp;” .the morning was moonlight; I could read the Van Antwerp’s name on her; she snubbed at three o’clock, A. M.; when I came on deck there was a man on my deck holding fast the stern line of the Van Antwerp, I went up to him and commenced conversation with. him; I had seen him before; his name was Galligan; some quarrelling was going on; I saw a line taken from the bow of Van Antwerp, across one of the northern boats (or the way they lay across both), and passed to some one on shore; can’t tell who it was took the line across; heard quarrelling below; I went to stern of my boat, and saw two men stand on the dock opposite the stern of the northern boat that lay next to the dock; then I saw two men near the stern of' my boat trying to clear some lines, and then in a minute or two, or may be five, I heard some halloo “man overboard;” Grilligan jumped off; I jumped off behind; the man of northern boat ran ahead of us; when I got down there a man stood on the dock, and said, “ we were a damned smart lot of captains to let a man fall overboard and drown ;” I saw the man who said this the next morning where the corpse was; he was the prisoner; I saw McCarty when found; saw the wound.
    The same witness, upon cross-examination, testified: My boat lay next to dock, heading west or north; the “Van Antwerp ” lay outside of me, heading the other way; the man on the bow of the northern boat outside was trying to get his boat into dock; I saw two men on dock; I saw three men then, one on bow of northern boat; the jawing stopped five or ten minutes; there was no jawing when I heard the cry of “man overboard;” when I heard this cry, I was not looking that way; I supposed the fuss was over; Gilligan and I and two captains then searched for ihe missing man; think I did not notice Wilson there after the remark he made; I did not stay during all the search; I was six or eight feet from letters on “Van Antwerp;” could have read them, and great deal further; it was very light; had been foggy; fog cleared off.

      John Gilligan testified: On October 20th, 1858, was a hand on “ J. Van Antwerp;” had come from Buffalo; we got to West Troy; Martin Kiley, John Wilson, the prisoner, and I and Conradt Vettick and a boy, were on that boat; Vettick acted as captain of the “Van Antwerpshe got there about three o’clock, A. m. ; she snubbed along side of the “ H. Pease;” we had both lines out on her, then Kiley and Wilson got the bow line ashore; then they had words with captains and hands of the northern boats; I heard Wilson call McCarty “ a whisky head;” I knew McCarty; saw McCarty taken from the water.
    The same witness, upon cross-examination, testified: Kiley and Wilson put the bow line across the bow of the boat next the dock—the Armenia; not the one where McCarty was; heard McCarty say he wanted to lick some monkey that was on board that boat “ Van Antwerp;” I heard no reply to that; don’t know whom McCarty meant; I went ashore to see about lines ; Kiley and Wilson let the line go; I met McCarty on the Armenia ; spoke to him; he went back to his own boat, and I went to “H. Pease” to take care of my line; don’t know where Wilson then was; Kiley was by the snubbing post; I stayed on “H. Pease” a very few minutes; I heard Wilson halloo “there is a man overboard;” I jumped off and went down; I don’t know where Wilson was when he halloed; I did not see Wilson down there when I first went down; I saw Potter and Ormsby in half a minute after I got there; I saw Wilson with a pole in his hand looking for McCarty; I remained there fifteen or twenty minutes; Wilson stayed there as long as I did; Potter had the pole; Wilson and I went down to side cut together; were there fifteen or twenty minutes and then went back to the boat; Wilson was arrested about nine A. M.; he had remained about there until he was arrested; don’t know where Wilson was at the time the body was found; Wilson had been on duty all night.

      Gonradt Vettich testified: In October, 1858,1 was boating on the boat “John Van Antwerphands were John Wilson, the prisoner, Martin Kiley, John Gilligan; I was captain sometimes; boat came there from Buffalo; arrived at West Troy at three o’clock, A. M., October 20th, 1858; I stood on the dock when the boat was snubbed; John Wilson halloed; he wanted to come in close to the dock; then McCarty said he wanted to go out; Wilson said: “Shut up your damned whisky head;” I did not hear McCarty say a word; then John Wilson jumped off our boat and jumped on to the northern boat, and from that boat on the next; then he jumped on the heel-path of the canal (dock); then he walked a couple of steps back again, up and down heel-path; then he went on the northern boat again; he picked something up; I can’t tell whether it was an ax or a hatchet, and he struck McCarty on the back part of his head, so (explaining manner), with the ax or hatchet; McCarty stood with his back to him (Wilson); he struck him with great force; as he struck, McCarty fell overboard into the canal and water; then Wilson took a pole and put it into the water, and seemed to have liked to have got him out; when he could not get him out he halloed, “here’s your man fell overboard;” Wilson stood still"there as long as I saw him; McCarty was about 25 or 26 years old, I should think; I stood on the heel-path when I saw Wilson do this; I was fifteen or twenty feet from Wilson when he struck; I could hear the blow; think McCarty did not see Wilson come on the boat, nor behind him, and had no words or altercation with Wilson, the prisoner.
    The same witness, upon cross-examination, testified: I was then about five feet from the edge of the canal, and fifteen or twenty feet from the place where Wilson struck McCarty; as Wilson came on to the heel-path, he could have seen my face and I his; he and McCarty had no words at that time, as I heard; I was afraid if I went there I would be knocked in too; I went away with driver, with team; I then said to Kiley, “ Wilson knocked him off, and he’d be drowned, it was too bad,” one of them said, “ Say nothing about it, he’ll be hanged if you doI am sure the weapon was an ax or hatchet; I think it was about three feet long, two or three inches wide; Wilson picked it up on the boat; I heard Wilson step on the boat, going up to McCarty; he stepped quick, walked as fast as he could; when he had struck, he dropped the weapon on the boat and took the pole; I remained there till men got there; I went away right off, before they had begun to search; McCarty stood on the boat next to the dock, at the stern; boat lay along the dock; McCarty fell between the two boats; saw his hat float.

      Re-examined by People: I am a Dutchman, or German; I am twenty-five years old; seven years in this country.

      John P. Witlech testified; I am a physician and surgeon; reside at West Troy, town of Watervliet, Albany county, and am one of the coroners of this county; I saw the body of Patrick McCarty on the morning of October 20th, 1858, in the water of the canal, just above the weigh lock at West Troy; he was dead; tied to the dock; I had him taken out of the water; I found a cut on one side of the back part of the head (the right side), externally bruised and tom; the skull, about one and half inches in length, and three-quarters of an inch in width, was driven in just the thickness of the bone, so that the bone was pressed in; the bone was not detached ; only one blow was given; such a blow would cause a man to become insensible; would produce concussion of the brain; he was thereby, in my opinion, rendered insensible, so that he could not help himself, and he drowned in the water in the canal; the effect of such a blow itself might be death, not instantly.
    The District Attorney here put to the witness the following question:
    From your examination of the wound you have described, what kind of an instrument was it caused by, in your opinion?
    Question objected to by prisoner’s counsel, as not being the subject matter of an opinion. Objection overruled by the court, and prisoner’s counsel excepted.

      A. That wound, in my opinion, was caused by a blow from some blunt instrument.
    The same witness, upon cross-examination, testified: Such an injury could be produced by a fall from a great distance, on just such an instrument as would produce it by a blow; I know nothing from which to come.to the conclusion in this case, that the. wound was produced by a fall; in a majority of cases of such wounds on the skull as this, by good medical treatment the patients do recover.

      Le Roy McLean testified: I am a physician and surgeon at West Troy; I assisted at the post-mortem examination of McCarty; examined his head;, heard Dr. Witbeck’s testimony • I found .an incision wound upon the head one and a half or two inches in length; a portion of the skull was driven in; I suppose he was rendered senseless by the blow, and then drowned.

      Q. From your examination of the wound which you have described, what, in your opinion, was the wound caused by ?
    Objected to as above; overruled; exception taken.

      A. I think it was caused by some blunt instrument, like the head of an ax or hammer.
    The same witness, upon cross-examination, testified: The membrane inside was not ruptured; the blow would not produce death immediately; under proper treatment, a fracture of the kind might present a fair case to recover; persons do frequently recover from such a wound.

      William Edgerly, testified: I live in Moriah, Essex county; I know prisoner; saw him in jail in November last; can’t tell exact time; had a little conversation with him.
    The prisoner’s counsel here desired to know what the District Attorney intended to prove by this witness.
    The District Attorney here offered to show that the prisoner stated to the witness at that time, in substance or effect, that all he could do was to get the Dutchman out of the way; that the Dutchman had not given bail for his appearance.
    Objected to by prisoner’s counsel as irrelevant, immaterial and improper. Objection overruled, and excepted to by prisoner’s counsel.

      The witness then testified: I told him I was sorry to see him locked np, and I should like to help him if I could; he said he did not know as I could help him any; he said all I could do was to get the Dutchman out of the way; he said the Dutchman had not given bail for his appearance at court; I was subpenaed to come here.
    The prisoner’s counsel here moved to strike out the testimony objected to, on same grounds as he objected. Motion refused, and prisoner excepted to refusal.

      Duniel McCormick testified: I live at Ticonderoga; I am not aquainted with the prisoner; saw him in jail in November, at the time spoken of by the last witness; went with Bdgerly; heard the conversation; it was as given by him (Bdgerly).
    The same objection here taken as with last witness, by the prisoner’s counsel. Overruled, and exception taken.

      Marietta, Dotty testified: I was on board the boat of Captain Potter last fall; I recollect the time of the occurrence; I was on the boat the day before; this hatchet was then on board.
    The same witness, upon cross-examination, testified: The boat was named “P. M. Baker;” about 6 A. M. Armenia was ahead, and Baker at the dock; this hatchet was sometimes lying on top of the boat, sometimes in the cabin; that, night this was by the water barrel near the cabin door, at the stern of the boat; it lay there all the day before; McCarty used it to work with in the afternoon of the day before; next morning I saw it on the deck load of the boatfraght hand side, four feet from the cabin door.
    The prosecution here rested.
    After some evidence had been given on the part of the defence, and counsel on both sides had addressed the jury, the judge charged the jury.
    The presiding judge, among other things, stated to the jury, that it was not claimed by the prisoner’s counsel that the defendant could be convicted of either manslaughter in the first or second degrees, but that if he was guilty of any crime, it was either murder, or manslaughter in the third degree; and after such statement, explained to the jury the meaning of the statutory provisions of murder and of manslaughter in the different degrees, and among other things charged the jury, that should a man stand on the edge of a dock, and another push him into the river, the pusher is not entitled to say to the other, you must swim; if he be drowned, such act is murder, unless explained away by evidence on the circumstances attending the transaction, for the law presumes that a man intends the consequences of his acts, unless otherwise explained. To which charging the prisoner’s counsel excepted.
    The judge further charged the jury, that if the natural consequences of the blow is to precipitate the man into the water, and he drown, such act is murder, unless explained away by evidence or circumstances attending the transaction. To which the prisoner’s counsel excepted.
    Said judge further charged, that if two men stood at the top of a high tower or monument, and one pushed the other off, and he is killed by the fall, it is murder, unless explained as before stated. To which the prisoner’s counsel also excepted.
    And the judge further charged the jury (as to manslaughter in the third degree), that the heat of passion means a quarrel, an altercation, in which the party killed is immediately concerned ; that is, that the heat of passion must not be all one side; there must be sufficient cause for it. To which the” prisoner’s counsel also excepted.
    On the 17th'day of February, 1859, at 11 A. m., the jury came into court and asked whether they could find a verdict in any other form than guilty or not guilty, and the presiding judge answered such inquiries.
    And further charged the jury, among other things, in these words: “It is questionable whether words even of the most aggravated character, would be allowed in law to produce the 1 heat of passion,’ meant by the statute, which would reduce the grade of the offence.” To which the prisoner’s counsel excepted.
    The jury found the prisoner guilty of murder.

      A motion for a new trial, on the ground of alleged irregularities, was then made on affidavits, and argued by

      J. M. Kimball and Henry Smith, for the prisoner, and

      S. G. Courtney (District Attorney), for the People.
    After consideration, the following opinion was delivered by
    Gould, J. The affidavits of Mr. Smith and Mr. Kimball, as to information from jurors concerning what took place in the jury room, are utterly inadmissible. They are far worse in principle than the affidavits of jurors themselves to impeach their verdict, inasmuch as the jurors, without oath, have given information which is not admissible on their own statement under oath.

    The affidavits of Mr. Smith and Mr. Kimball, with that of Mr. Holstein, are then pertinent only on the point that, during the trial, a juror took up and examined the piece of the skull of the murdered man, which was on the District Attorney’s table. This was (even if the juror be wrong as to the time) after the testimony for the People was rested, and at the time the adjournment was had at the request of the prisoner’s counsel, and before going into the defence. Even had it not been known to the prisoner’s counsel, it was, in the state of the proof, of no manner of consequence; for the uncontradicted evidence (and evidence which was not thereafter even called in question), was that the death was caused by this blow rendering the deceased insensible, so that in the water he was incapable of helping himself, and was drowned ; and that the wound was made by a blow with some blunt instrument. And no extent of a juror’s examination could have helped him to a different conclusion. Another complete answer to the point, is that, as the fact of the juror’s taking up that bone was well known to the prisoner’s counsel before they entered on the defence, they had full opportunity for producing, and (in the act) notice to produce on that point—-proof as to the nature and consequences of the wound—any evidence they saw fit, as well as full opportunity to comment in argument on the juror’s act, and ask the court to make suitable comment thereon. In no view of it is this ground for a new trial.
    As to the presence of the constables in the jury room, I acquiesce in the opinion given by Judge Harris in the Hartung case. At the same time, I should hope that jury rooms will be so arranged that the constables may have a convenient and suitable place for remaining in by themselves, when in charge of a jury in any case, civil or criminal.
    The remaining ground on which a new trial is asked, is that a constable, at the request of a juror, handed to that juror a paper on which were marked the punishments fixed by law for the different degrees of manslaughter. The affidavits of the jurors as to this point, I was at first disposed to admit to this extent only: That such a paper was handed to a juror before the verdict was agreed upon. The comments and deliberations of the jury, whether referring to that or any point in the case, come clearly within the rule that jurors are not allowed to make affidavits to impeach their own verdicts. And I know of no sounder rule of the law. Any other rule would permit a juror, whose conscience, bound by his oath, would not allow him to refuse his assent to a verdict, to commit or procure an irregularity that would, on his own affidavit thereof, avoid the verdict. It would open the door for such mischiefs as could not be endured. I have said I was at first disposed to admit parts of these jurors’ affidavits. But, upon reflection, I am satisfied that they should be entirely excluded, as they go to show an act done at the request of a juror, and so to set up the act of their own body, to impeach their verdict, and so are open to the full force of my last position.
    The affidavit of Simpson, the constable, is that this paper was handed to the juror before the jury came into court for further instructions. And the position of the case would seem conclusive, that the constable must be correct as to the. time, though he differs as to that from the two jurors. The further instructions had been so entirely clear and explicit, that it was not even claimed by the prisoner, that if convicted of the homicide at all, the conviction could be anything but murder, or manslaughter in the third degree; that there was no pretence that the offence was either the first or second degree of manslaughter. And, after so explicit a direction, acquiesced in by the prisoner’s counsel, it can hardly be that any jury would ask information as to the punishment for the first and second degrees.
    Taking this to be so, how is it probable or even possible that the prisoner was prejudiced by information that the statutes fixed imprisonment in the State Prison from two to four years as the punishment for manslaughter in the third degree, and that information given prior to their coming into court for instructions, where they might have asked any and all questions they saw fit, on any point pertaining to the case. I confess that the only construction I am able to give their act, in asking for the information, is that it was an attempt to evade the duty that they felt bearing upon their consciences— the duty of saying that they felt satisfied that the killing was done by the prisoner, and that he had not shown any circumstances to reduce that killing below the grade of murder.
    The act was, unquestionably, an irregularity. It was an attempt to do what a jury has no legal right to do—to render a verdict based on the punishment, not on the truth. But the attempt could have been only in favor of the prisoner. I cannot see how it is possible that the verdict rendered was in any way produced by the information. I am, however, unwilling to lose this opportunity of saying, that if jurors cannot learn that they are under oath to “ render a true verdict, according to the evidence,” and that they are absolutely bound to take the law from the court, and leave to the law the consequences of a true verdict, the sooner we are rid of the privilege of trial by jury, tho better for the community.
    A new trial cannot be granted.
    At the conclusion of the reading of the opinion, District Attorney Courtney moved for sentence.

      Mr. Kimball inquired of Judge Gould whether there could be an appeal from this decision.
    Judge Gould replied that he did not understand that there could be.
    Mr. Kimball then remarked that the prisoner’s counsel had prepared a bill of exceptions, which had not been served, as yet.
    Judge Gould responded, that the sentence being pronounced would not prejudice the interests of the prisoner in .that respect, and proceeded to pronounce the following sentence:

      Judge Gould,—“Wilson, have you anything to say why the sentence of the law should not be pronounced against you?”
    Wilson—“All I have to say is, that I have been convicted by perjured witnesses. I am a stranger in this city, and have no friends to help me. I am sure I am innocent of the charge. This is all I have to say.”

      Judge Gould—“ I am sorry to say the statement you make is hardly reconcilable with the proof in this case. According to the evidence, the court is perfectly satisfied that the case was one in which the jury could not help rendering the verdict they did. Certain circumstances, proved by all the witnesses, show that you were found in a position where you must have been the only person that could inflict the injury. That he was killed by some one, there is not a reasonable shadow of doubt. That you were the only person in the position to have committed the deed, there is no doubt. Immediately after the act had been committed, you stated that the man had fallen overboard and drowned. You stated what was not true. This fact, and the evidence in the case, together with the finding of the dead body, will lead any intelligent mind to the irresistible conclusion that you did the deed. The testimony of the witness who saw you strike the blow is unimpeached. You knew all about him, and had the opportunity to have impeached his evidence, if you could have done so. That witness swears positively that he saw you strike the blow, and I cannot see how the jury could have come to a different conclusion. The verdict fully satisfies the court. Your statement is altogether' incomprehensible. Witnesses stood by you during the commission of the terrible act. A hundred of these acts are repeatedly happening all around us in this community; and during the session' of this very court, another most terrible crime has been perpetrated in this county. As long as pardons shall be granted, to prevent the due execution of the penalty of crime, we shall be subjected to such events. The only way to make community safe, and to preserve human life, is to have it understood that the penalty of the law will be enforced.
    “Your motive we do not know. That is between you and your own conscience. The law is not obliged to find a motive when there is a fact established.
    “ It becomes you, in your awful position, to consider that your fate is sealed. Your death is determined. I can see no reason to suppose there should be any sort of interposition in your behalf, and that should be the light in which you should view it. You should understand that the period of your life is fixed, and allow no hopes to keep you from preparing for the life to come. You gave no opportunity to your victim to prepare for death. To you the law is more merciful. Your future destiny rests between you and your God, and it now remains with you to make your peace with him.
    “ The sentence of the court is, that you be remanded to jail, and there confined until the 27th of April next, and on that day, between the hours of 10 o’clock in the morning and 2 o’clock in the afternoon, you be hung by the neck until you be dead! And may God in his infinite wisdom, grant to your soul the blessings he only can give.”
    A writ of error having been afterwards allowed by Mr. Justice Harris with a stay of proceedings, the cause was removed into this court by writ of error.

      Henry Smith, for the prisoner.
    I. The judge erred in each of the first three propositions in the charge, to which exceptions were taken.

      1. The language employed entirely ignores the true criterion of the crime of murder, the intent to hill. The effect of the language is, that if one push another from the dock, no matter whether unintentionally or with the most innocent and harmless purpose, and he is drowned, it is murder, unless the defendant can prove that he did not intend to take life.
    2. No such inference could arise against the prisoner, unless the drowning was such a natural consequence of the pushing as would warrant the conclusion that the prisoner knew what would be the result of his act. (The People v. Hammill, 2 Park. Cr. R., 227; The People v. Rector, 19 Wend., 591.)
    3. The charge proceeds upon the idea that the homicide is per se criminal, that if the destruction of McCarty’s life resulted from the act of the prisoner, it is murder, unless explained, &c. This ruling shifted the burden of proof, and relieved the prosecution from the necessity of convincing the jury, beyond a reasonable doubt, of the intent to take life, the existence of which was just as necessary for the prosecution to establish, and which is as much of the essence of the crime as the killing. (The People v. McCann, 16 N. Y. R., 66; Com. v. Hawkins, 3 Gray, 463.)
    4. The purport of the whole charge was that the jury need only determine, in order to find the verdict they did, that the prisoner pushed McCarty into the canal, and that he drowned, which cannot be correct, unless it is true that every hilling, not explained by the defendant, is per se murder.
    II. The judge erred in charging, as to manslaughter, that the “heat of passion” means a quarrel, an altercation, in which the party hilled is immediately concerned.

    If there actually exists that “ heat of passion ” contemplated by the statute, it is absurd to say that it does not palliate the offence, if the accused should, while thus excited, kill some other than the one engaged in the altercation with him. (3 Jacob, L. D., 329, and cases cited; Whar. Am. Cr. Law, 36, 37.)
    III. The court also erred in charging, upon the same subject, “that the heat of passion must not all be on one side.”

      The test the statute makes, is as to the “ heat of passion ” of the accused. Since he may be as severely injured, and his passions as much excited by the acts of one who is entirely cool and deliberate, there can be no reason for a rule that deprives the accused of the right of urging that he is only guilty of manslaughter, merely because his adversary was not in a heat of passion. (Whar. Am. Cr. L., 370.)
    IV. The judge erred in charging, “ It is questionable whether words even of the most aggravated character would be allowed in law to produce the ‘heat of passion’ meant by the statute, which would reduce the grade of the offence.”
    This rule would entirely ignore the statute as to manslaughter, for if the accused must show a combat under sufficient provocation, then he makes out a case of excusable homicide.
    V. The court erred in allowing the witnesses Witbeck and McLean to be asked what instrument, in their opinion, the wound was caused by.
    1. The question assumed that the wound was caused by an instrument.

    2. As it is manifest that .a great variety of weapons would produce such an injury as was found on deceased’s head, the question did not call for the opinion of the witness as an expert, but merely to make a guess.

      S G. Courtney (District Attorney), for the People.
    I. The court properly admitted the evidence of Doctor Wit-beck and McLean. The indictment contains various counts, in which the killing is respectively charged to have been done with an ax, hatchet or bar of iron, and by such striking and casting the deceased into the water, the deceased was drowned.
    It was proper to show by scientific men (especially, as in this case, by those who made the post-mortem, examination), the instrument in their opinion used, because,
    1st. The kind of instrument used was a material element in showing malice aforethought.

      2d. And because it was part of tbe defence that the deceased received the injury in falling against the boat, as he was precipitated into the water.
    This kind of evidence is always admitted. (State v. Smith, 32 Maine R., 369; Lush v. McDaniel, 14 Ired., 500; Com. v. Rogers, 7 Met., 485; Jones v. White, 11 Humph., 268; Burnett's Com. L., 458; People v. Sullivan, 3 Seld., 398; Lake v. People, 1 Park. Cr. R.; People v. Clark, 3 Seld., 391; Phil, on Ev., last ed. by Edw., vol. 2, p. 778, &c.)

    3d. Even were the rulings of the court unsustained by precedents, this kind of evidence, under the circumstances attending the trial, was properly admitted for the information of the jury-
    The prosecution offered in evidence the skull of the deceased on which the wound inflicted, so that the jury might inspect it, which offer was objected to by the prisoner’s counsel, on the ground that it was immaterial, and might tend to prejudice the defendant. The court sustained the objection, and after-wards admitted evidence of experts—the surgeons and physicians who made the post-mortem examination.
    II- The only exceptions remaining are those taken to the charge of the presiding judge.
    The parts excepted to were given in illustrating the distinction between the different degrees of homicide. In the illustrations given there was no error; but they were made in conformity with the defined and well settled principles on the subject. ■ The court had expressly defined to the jury the legal meaning of murder, and in connection therewith stated the illustrations.
    The essence of the crime of murder is the intent to kill. Can there be any doubt but that the supposed case could be one of murder, unless the circumstances or evidence explained away the intent to kill—i. e., the crime of murder.

      “ The rule of law is, that a man shall be taken to intend that which he does, or which is the immediate or necessary consequences of his act.” (1 Russ, on Cr., 483; Com. v. York, 9 Met., 93, and cases there cited; Com. v. Rogers, 7 Met., 500.)

      III. No words or gestures, however false or malicious, provoking or insulting, aggravated with the most provoking circumstances, will free the party killing from the guilt of murder. (1 Hawk. P. C., 98, § 33; Beauchamp v. State, 6 Black. [Ia.], 299; State v. Barfield, 8 Ired., 344; State v. Scott, 4 Ired., 409; Lord Morley's case, J. Kel., 53, 55, 65; State v. Merrill, 2 Deveraux, 269; Com. v. York, 9 Met., 93; 1 Russ, on Cr., 514, and cases there cited; U. S. v. Willberger, 3 Wash. C. C., 515; State v. Hill, 4 Dev. & Dat., 491, 497.)
    IV. Malice in murder, is malice aforethought. There is no particular time during which it is necessary the prisoner should have contemplated the homicide. If the intent to kill, or to do other great bodily harm, is executed the instant it springs in the mind, the offence is as truly murder as if it had dwelt there for a longer period. People v. Clark, 3 Seld., 385; Meecham v. State, 11 Geo., 615; Green v. State, 13 Mo., 382; U. S. v. Cornell, 2 Mason, 60, 91; 1 Russ, on Cr., 483, &c.)

    V. Whenever a blow is inflicted under circumstances to render the party inflicting it criminally responsible if death follows, he will be holden for murder or manslaughter, though the person beaten would have died from other causes, or would not have died from this one, had not others operated with it, provided the blow contributed mediately or immediately to the death, as it actually took place in a degree sufficient for the law’s notice. (Bishop Cr. L., vol. 2, §§ 653, 595; Greenl. Ho., vol. 3.)
    VI. The heat of passion, as explained by the presiding judge, was correctly stated, and the general rule is this: Words added to an assault upon the prisoner, may perhaps suffice, when the assault would not alone, and that if thq parties become excited by words, and one of them, acting under the excitement provoked by words, attempt to chastise the other with a weapon not deadly, he may be held for manslaughter, though unfortunately death not intended is inflicted. (Greenl. Ho., § 124; Reg. v. Sherwood, 1 Car. & K., 536; Bishop Cr. L., vol. 2, § 636.)

      "VH. The intentional killing of a human being, without provocation, and not in a sudden combat, is murder, although done in the heat of passion. (People v. Sullivan, 3 Seld., 396.)
    VIII. In the case at bar there is nothing showing legal provocation, mutual combat or heat of passion. All these elements tending to reduce the grade of the offence are wanting, and the facts in the case all warrant the verdict.
    IX. The jury having found that the intention to take life existed at the time the prisoner struck the blow, the only question before the court is, did that intention, existing at the instant of striking the blow, form such a premeditated design as contemplated within the meaning of the statute. (People v. Clark, 3 Seld., 385.)
    X. A verdict will not be set aside on a bill of exceptions, although there was error in the trial, if the error was such that it could do no legal injury, and the rule in this respect is the same in criminal as in civil cases. And the rule is applied in a capital case, where there was an error in the charge to the jury respecting the law of homicide, when the facts of the case do not call for a charge on the point. (Shorter v. The People, 2 Comst., 193.)
   Wright, J.

The death of McCarty was caused by drowning. It was the indirect result of the act of the prisoner Wilson. The blow inflicted would not have produced death, but it caused temporary insensibility, and when McCarty fell, or was knocked into the canal by its force, he was unable to -help himself, and was drowned. The questions on the trial were: 1st. Was Wilson guilty of any offence; and 2d. If so, was it murder or manslaughter in one of the degrees defined by statute ? These were questions for the jury, under proper instructions from the court.

It appears from the bill of exceptions, that the presiding judge prefaced his charge to the jury by the statement that it was not claimed by the prisoner’s counsel that the defendant could be convicted either of manslaughter in the first or second degrees, but that if he was guilty of any crime, it was either murder, or manslaughter in the third degree.

It is undoubtedly true, that there was nothing in the circumstances under which the death was effected, to bring the case within the statute definitions of manslaughter in the first or second degrees, unless it be assumed that the sixth section of the statute defining manslaughter in the first degree, is applicable to a case where a party causing death without design, is engaged in an assault and battery. Some judges have taken this position, whilst others have held that, in order to bring a case within the definition of manslaughter in the first degree, it is necessary to show that the accused was committing, or attempting to commit, some other offence than that of intentional violence upon the person killed. (Darry v. The People, 2 Park. Cr. R., 634; The People v. Butler, 3 Id., 377; The People v. Rector, 19 Wend., 605.) But was the proposition that, if the prisoner was guilty of any crime, it was either murder or manslaughter in the third degree, strictly correct? Of this I entertain serious doubt. The statute defines what shall be murder, and also four degrees of manslaughter. It also declares what shall be justifiable or excusable homicide. Manslaughter in the third degree is the killing of another in the heat of passion, without the design to effect death, by a dangerous weapon, in any case except such wherein the killing is declared to be justifiable or excusable.

In the fourth degree, it is defined to be the involuntary killing of another by any weapon, or by means neither cruel nor unusual, in the heat of passion, in any other cases than such as are declared by the statute to be excusable homicide. After defining murder, justifiable and excusable homicide, and the four degrees of manslaughter, it is provided that “ every other killing of a human being, by the act, procurement or culpable | negligence of another, where such killing is not justifiable or excusable, or is not declared in this chapter murder, or in this title manslaughter of some other degree, shall be deemed manslaughter in the fourth degree. (2 B. S., 662, §19.)

Mow this was not a case of murder, unless the killing was perpetrated from a pernreditated design to effect the death of McCarty. It was not a case of manslaughter in the first or second degrees. Mor was it manslaughter in the third degree, unless the killing was in the heat of passion, and without a design to effect death, and by a dangerous weapon. For the case to have fallen within this degree, it was not enough that the killing was in the heat of passion, and without the design to effect death, but it must also have been by a dangerous weapon. If the killing was not effected by the use of a dangerous weapon, though the heat of passion existed, and there was the absence of design to effect death, it would not be manslaughter in the third degree. But if the killing was in the heat of passion, and without the design to effect death, but not by the use of a dangerous weapon, I see not why a conviction might not properly be had of manslaughter in the fourth degree; and if so, the instruction that Wilson, if guilty of any crime, it was either murder or manslaughter in the third degree, was erroneous. I use the term instruction, for what the judge said to the jury was in the nature of an instruction, whilst directing their attention to the statutory definitions'of murder and manslaughter in the different degrees, and interpreting those provisions. But the prisoner’s counsel appear to have been satisfied with this branch of the charge, and took no exception.

It is now well settled that, under our statutes, to constitute the offence of murder, there must be a premeditated design to effect the death of the person killed, or, in other words, an intention to kill. The design may be long meditated, or it may be conceived at the moment the fatal blow is given; but it must be found to exist, else it is not murder. There must be, what the common law did not require, the existence of an actual intention to kill. In this case, unless Wilson, when he pushed or knocked McCarty overboard from the canal boat, precipitating him into the water, formed the design, at the instant, to kill the latter, it was not murder. Such intention may be inferred from the circumstances under which the violence is inflicted, and sometimes from the act itself, for men are to be presumed to intend the natural and inevitable conse- f quences of the acts which they willfully perform; but unlessj there be such an intention, the act cannot be more than maa-j slaughter. The effect of our statute is to explode the whole common law doctrine of implied malice and the power of i recent provocation, to reduce the act from murder to man- • slaughter. In the absence of the intent to kill, the act must, be justifiable or excusable homicide or manslaughter, within} some one of the degrees defined by statute—Was the judge therefore correct, whilst speaking of the blow inflicted by Wilson, in instructing the jury that, if the natural consequences of a blow is to precipitate a man into the water, and he drown, such act is murder, unless explained away by evidence or circumstances attending the transaction? Or was he correct in the charge, “ That should a man stand on the edge of a dock, and another push him into the river, the pusher is not entitled to say to the other, you must swim; if he be drowned, such act is murder, unless explained away by evidence of the circumstances attending the transaction, for the law presumes that a man intends the consequences of his acts, unless otherwise explained ?” Either of the cases put to the jury would, at' common law, have been prima facie murder, for malice would have been implied from the act itself, and the burden of proof | to explain or reduce the grade of the offence to manslaughter would have been shifted upon the accused. But under ourf statutes, another ingredient was wanting to constitute the crime | of murder: viz.: an actuaOntention, by Ine lnnicabn^flthe blow, or the push into the water, to lnil. ~ltis true that the jury would be at liberty to infer this intention in a proper case from the act itself, upon the salutary rule of the commc law, that a man is held to intend that which, in the ordina] course of things, would be the natural result of his acts jr1out no legal implication of a felonioi innocence of the transaction, or sl&ugktenf^Itseehis apparent to me mat me learned judge nad in view the common law rule, that in every homicide by vigas to throw upon the accused * lence, the law implies malice, so as to make it prima fade I criminal, throwing the onus of explanation on the accused; telse what is meant by the language, “ Unless explained away by evidence or circumstances attending the transaction ?” “If,” says the judge, “ the natural consequences of a blow is to pre- * cipitate the man into the water, and he drown, it is murder, unless explained away by evidence,” &c. How explained away, and by whom ? Certainly, by the prisoner. “ To strike a blow, the natural consequence of which is to precipitate another into the water, and that other drown, it is murder.” This is the instruction. Why, unless it be that the law implies malice, and an actual intention to kill need not exist. It is virtually saying that it is not incumbent upon the prosecution to satisfy the jury of a conceived design to effect death by the person inflicting the blow, before there can be a conviction" for murder; but that the act of inflicting a blow under circumstances that will necessarily precipitate the person into the water, and he drown, is sufficient prima fade (the law inferring that the act was malicious), to establish guilt. It seems to me, that, taking the charge together, it proceeded upon the idea that the homicide was per se criminal, and that if the destruction of McCarty’s life resulted from the act of the prisoner, it ’ was murder, unless explained away by proof on the part of the prisoner. This ruling shifted the burden of proof, and * relieved the prosecution from the necessity of satisfying the » jury of the intent to take life, the existence of which fact it was just as necessary for the prosecution to establish, and which was as much of, the essence of the crime, as the killing. Should it be said that the illustrations given of what would be ¿ murder, were not applicable to the facts of the case, and are Á therefore to be treated as mere abstract propositions, it is not difficult to perceive that they were calculated to mislead the jury. The circumstances under which McCarty was drowned were few and simple. He and Wilson were hands on board * of boats navigating the canals of the State. McCarty’s boat, with two others, were lying in the canal, near the railroad bridge, at West Troy. About 3 o’clock in the morning, the boat on which Wilson was employed arrived from Buffalo, and came too along side of one of the boats. Whilst they were engaged in securing and managing her lines, an altercation arose between Wilson and McCarty. Whether they had ever met before does not appear, but abusive words passed between them, and threats of fighting. McCarty was near the stern or side of his boat, when Wilson stepped upon her deck. As the latter approached McCarty, he picked up from the deck a blunt instrument and inflicted a blow with it upon the head of McCarty. The latter was so near the side of his boat that, being stunned by the blow, he fell into the water of the canal, or the force of the blow precipitated him into the water. Wilson dropped the weapon on the boat, and took a pole and attempted to get the body out of the water, but failing, called to the men of the other boats. The blow producing a concussion of the brain, rendering him insensible, McCarty could do nothing to extricate himself from the water, and he drowned.

Mow, that the destruction of the life of McCarty resulted from the act of Wilson was manifest, but certain it is that it was not murder, unless at the time of striking the blow he designed to kill him. This was a controlling question in the case in characterizing the act as murder, and it was a fact that the jury must find before a conviction could legally be had. Indeed, in my view, it was the principal question. The jury might have found the actual intention to kill, from the circum- f stances attending the act, or inferred it from the act itself, if a murderous weapon was used, or the blow was inflicted in a dangerous place, or the natural and inevitable consequences of such blow was to produce insensibility, and from McCarty’s position on the boat to precipitate him into the water in that state. But instead of saying to the jury that they must find the actual intention to kill at the time of inflicting the blow^' which precipitated McCarty into the water, before they could convict of murder. I cannot but think that the charge of the judge was calculated to mislead them, if nothing more, by the abstract propositions (if they are to be so called), enunciated in this part of it. But the judge did not intend them as abstract propositions. He was speaking of the case in hand when he told the jury that pushing a man into the water, if he were standing on the edge of a dock, or that if the natural consequences of a blow be to precipitate the man struck into the water, and he drown, the acts were murder. The jury must naturally have understood from the charge, that in order to find the verdict that they did, they need only determine that the prisoner pushed or knocked McCarty into the water, and that he drowned. This would be ignoring the true criterion of the crime of murder, the intent to hill, and cannot be correct unless it is true that every killing, not explained by the defendant, is per se murder.

- In the judge’s explanation to the jury of the statutory offence of manslaughter in the third degree, he stated “ that the ‘heat of passion’ means a quarrel—an altercation in which the party killed is immediately concerned; that is, the ‘ heat of passion ’ must not be all on one side; there must be sufficient cause for it.” And again, after the jury had returned into court, and inquired whether they could find a verdict in any other form than guilty or not guilty, the presiding judge further charged, among other things, in these words: “ It is questionable whether words even of the most aggravated character would be allowed to produce the heat of passion meant by the statute, which would reduce the grade of the offence.” «The idea sought by the judge to be conveyed to the jury in his explanation of the term “heat of passion,” in his first charge, probably was, that if in a paroxysm of unprovoked anger one kill another, or instigated by brutal passion, not excited by such other, the assailant kills his victim, it is not that “ heat of passion ” which forms one of the statutory ele^rnents of manslaughter. As a principle, this was undoubtedly correct. If the intention to kill exists, it is not the less murder that the killing occurred under the excitement of unpro- . voked and brutal passion. I cannot but think, however, that the judge was unfortunate in the use of terms to convey the idea to the jury. Is it always necessary to the existence of that “ heat of passion” contemplated by the statute, that there should be a quarrel or altercation in which the party killed is immediately concerned? I think not. If the contemplated “ heat of passion ” actually exists, it would palliate the offence, if the accused should, whilst thus excited, kill some other than the one engaged in the altercation with him. Again, said the judge, “ the heat ot passion must not be all on one side; there must be sufficient cause for it.” Now, would not the jury from this probably understand that the statute “heat of passion” could not exist where there was no manifestation of excitement or passion on the side of the party assailed ? Such a view would certainly be a mistaken one. The test which the statute makes, is as to the “ heat of passion ” of the accused. He may be severely injured, and his passions excited by the acts of one who is entirely cool and deliberate. Again, what was meant by the expression, “ There must be sufficient cause for 1 the heat of passion ?’ ” Or, rather, what would the jury probably understand by it? Why, that there must be sufficient in the conduct of, the party assailed to provoke :and heat the passions of the assailant. What conduct would be sufficient, was not explained. Whether an assault, or words alone, or words added to an assault. Subsequently, however, the judge instructed the jury substantially, that the use of words alone, even of the most aggravated character, would not be allowed in law to produce the heat- of passion meant by the statute, which would reduce the grade of the offence; that is, that an excited or heated passion, provoked by words alone, even of the most aggravated character, is not that “heat of passion” meant by the statute in defining the offence of manslaughter. This was virtually saying to the jury that in nt> case where a party, acting under an excitement provoked by words alone, assaults another, and death, not intended, is the result of the assault, can the offence be reduced to manslaughter. In the' prisoner’s case there was no pretence that in making the assault upon McCarty he was acting under any other excitement than that provoked by words; and this declaration of the law was equivalent to saying to the jury that they could not find the prisoner guilty of manslaughter in the third degree, even though the killing was by a dangerous weapon, and unintentional. Was the law, therefore, in this respect correctly expounded ? I think not. The law, respecting the infirmities of oar nature, attaches a less degree of criminality to acts of violence perpetrated under an excitement provoked by the assailed. The passions may be heated as effectually by words as by acts; and an assault may be provoked oftentimes as readily by the former as the latter. In cases of assault of the person, it has always been held that provocation by words has gone far to mitigate the legal wrong. It cannot be that the accused must always show a combat and a sufficient provocation. It is enough that the passions are heated by the acts or conduct of the one upon whom the assault is made, and it matters not whether- this state is produced by acts or words, if either the one or the other are naturally calculated to produce it. It is conceded, in the points of the counsel for the People (what is undoubtedly the law), that if parties become excited by words, and one of them, acting under the excitement provoked by words, attempt to chastise the other with a weapon not deadly, he may be held for manslaughter, though death, not intended, is inflicted. This could not be, if the law would not allow, as the judge charged, “ the heat of passion ” meant by the statute to be produced or provoked by “ words even of the most aggravated character.”

Upon the trial, the coroner, who was a physician, and who had held the inquest and made the post-mortem examination, was called as a witness. He described with particularity the wound discovered on the right side of the head of McCarty, and expressed the opinion that only one blow was given, and that blow produced concussion of the brain, causing insensibility. He expressed the further, opinion that McCarty was by the blow rendered insensible so that he could not help himself, and he drowned in the water of the canal. The prosecution then put to him the following question: From your examination of the wound that you have described, what kind of an instrument, was it caused by, in your opinion ? This question was objected to as not being the subject matter of an opinion; but the objection was overruled by the court, and the witness answered: “ That wound, in my opinion, was caused by a blow from some blunt instrument.”

The same question was put to another physician who assisted in the post-mortem examination, the same objection taken and overruled, and his answer was, “I think it was caused by some blunt instrument like the head of an axe or hammer.” I am not satisfied that the court ruled correctly in this respect, and I think it would be difficult to sustain the ruling upon principle. The kind of instrument used was of course a material element in showing malice aforethought; but the question here is, was the evidence admitted to show it legal and competent ? Whether any, and what kind of instrument was used, was a fact for the jury to find. Physicians are allowed to express opinions on matters pertaining to their particular science or profession, for the reason that, from the nature of the subject, facts disconnected from such opinions cannot be so presented to a jury as to enable them to pass upon the question with the requisite knowledge and judgment. On a subject not of science or skill, or involving no peculiar experience or knowledge, opinions of witnesses are inadmissible. To answer properly whether the wound discovered on McCarty’s head was produced by a sharp or blunt weapon, required no peculiar scientific knowledge; and after the physicians had described minutely the character of the wound and the indentation of the skull bone, and expressed the opinion that concussion of the brain was produced by the blow, the jury were just as competent as these professional experts to find or guess what kind of a weapon caused the skull bone to be pressed in as described, and whether it was blunt or otherwise. It is obvious that a great variety of weapons would produce such an injury as was found on the head of the deceased; and if there was to be any guessing on the subject, the jury, and not the witness, was alone competent to do it. From the description given of the wound, it was just as manifest to the jury as to the witness that it was caused by some blunt and not sharp weapon. But this was not the purpose of the inquiry. That purpose was to get these experts to express an. opinion as to the particular instrument with which the blow was inflicted. This was accomplished by the reply of the second witness, that he thought the wound was caused by .some blunt instrument, like the head of an axe or hammer. In the absence of any weapon identified as being used by the prisoner, the theory of the prosecution that the weapon was an axe or hatchet, or hammer, was sought to be sustained not by the proof of facts tending to show the particular kind of instrument used, but by the opinions of witnesses. These witnesses were experts in matters pertaining particularly to their profession, and as such were permitted to express opinions; but when the question was one not of skill, and it was obvious that the jury were quite as competent as themselves to determine the question, such opinions were inadmissible. These scientific witnesses were certainly not better able to judge of the peculiar kind of blunt instrument that pressed in the skull of the deceased, the thickness of the bone, than the jury. Their skill "did not enable them to say whether it was an axe or hammer, or any other weapon. All that they could say was, that a blunt substance of the dimension of the wound had been applied to McCarty’s skull with sufficient force to press in the skull the thickness of the bone. This the jury was just as competent to determine as the witnesses, and the prisoner was entitled to the opinion of the jury, and not the witnesses, whether the instrument used was an axe or hammer, or other dangerous weapon.

I am of the opinion that there should be a new trial. One thing is quite manifest, that the prisoner did not intend to destroy the life of McCarty by drowning him; but when he struck the blow that cast the latter into the water, if the design existed to effect death, it would be murder. If the killing was not actually intended, it could be but manslaughter.

The prisoner was entitled to have this question of intent distinctly presented to the jury; and if, from the evidence, they found it to have existed 'at the time of raising the weapon and striking the blow, they might properly convict him of the higher offence. So also, if the jury found that under an excitement growing out of a quarrel or altercation with the deceased, the assault was made with a dangerous weapon, but without the formed design of effecting death, the only proper conviction would be for manslaughter.

The judgment of the Oyer and Terminer should be reversed, • and a new trial ordered.

Hogeboom, J., concurred; Gould, J., dissented.

Judgment reversed.


source: Caselaw Access Project

author: Birdseye, J.

license: Public Domain

text:
    Supreme Court. At Chambers. Brooklyn,
    November, 1856.
    Before Birdseye, Justice.
    The People v. John Dixon et al.

    In cases of felony the prisoner cannot demand, as matter of right, to be let to bail, and he should not be bailed unless the court can, upon all the facts, see that letting to bail will, in all reasonable probability, secure his forthcoming to abide the event of his trial.
    When there is so strong a probability of conviction as to warrant the belief that the person accused would, by flight, and at the expense of any mere pecuniary forfeiture, seek to evade trial and punishment, he should not be bailed.
    On an application to bail, alter indictment, depositions taken before the committing magistrate cannot be looked into.
    After indictment found, a defendant is presumed to be guilty for most purposes, except that of a fair and impartial trial before a petit jury.
    This was an application to let the defendant to bail. Six indictments had been found against the defendants, John Dixon and Joseph Jackson, among which were indictments for rape and abduction, and for assault with intent to commit a rape.

      A. Hadden, for the prisoners.

      R. E. Underhill (District Attorney), for the People.
   Birdseye, J.

The power to let these defendants to bail after indictment, is conferred by statute. (2 B. 3, 728, § 57.) It is admitted that the exercise of that power rests in the discretion of the court or judge. That discretion is, however, a judicial one. It is to be governed by fixed rules and principles, so far as they are applicable to the circumstances of the particular case presented. In cases of felony, the prisoner cannot demand as a matter of right to be released from imprisonment and let to bail. He should not be so released, unless the court can, upon all the facts, see that letting to bail will, in all reasonable probability, secure the end intended by his confinement. The object of arrest and imprisonment, prior to conviction, is not to punish the delinquents, but to ensure his forthcoming to abide his trial and the punishment which may be inflicted on him by the sentence of the law upon conviction. (Goodwin's case, 1 Wheeler's Crim. Cas., 446; Ex parte Tayloe, 5 Cow., 54; The People v. Van Horne, 8 Barb., 165.) The question which arises in this case, and the rules which should govern its decision, are stated with much clearness and force by Sutherland, J., in Ex parte Tayloe (5 Cow., 55). He says: “The principal consideration is, whether the nature of the crime be such as that a recognizance would operate to secure the prisoner’s appearance. If so, it is proper to receive bail as a substitute for imprisonment. Where the punishment is directly or in effect pecuniary merely, .as by fine or temporary imprisonment for a misdemeanor, it is accordingly a matter of course to receive competent bail, proportioned to the probable amount of the ultimate penalty. There is little or no difficulty in saying what the amount should be, and it may, at any rate, be made perfectly adequate to the object. But when the punishment is either capital, or imprisonment may follow for a considerable length of time in the State Prison, at hard labor, or other degrading circumstances, for a crime involving moral turpitude, these are far different considerations; and the law proceeds upon this difference in allowing or denying bail. If capital, bail should not, in general, be allowed, because no pecuniary consideration can weigh against life; and where guilt is clear, and a .rigorous and disgraceful imprisonment may follow for a great length of time, the presumption is strong that the accused will not appear and surrender himself to the demands of justice, to avoid a mere forfeiture of property. The safest course, therefore, in cases of felony, where the guilt of the criminal is clear, is to deny bail.”

The rule which should control in a case of this kind, is well expressed in Hawkins (Pleas of the Grown, B. 2, ch. 15, §40), as follows: “Bail is only proper where it stands indifferent, whether the party -be guilty or innocent of the accusation against him, as it often does before his trial; but where that indifferency is removed, it would, generally speaking, be absurd to bail him.” The same rule in substance is repeated in section 80 of the same chapter.

This rule is adopted by Chitty (1 Cr. Law, 99, 3d Am. ed.). It was acted upon by the Court of King’s Bench, in The King v. Marks (3 East., 163), by Chief Justice Spencer in Goodwin’s case (1 Wheeler's Cr. Cases, 443), and was expressly approved by each of the three judges of the court, in 5 Cow., 38, as also in The People v. Van Horne (8 Barb., 163). Nor have I found any adjudged case, or any text book of respectability, which questions it.

Testing the application, then, by these principles, does it stand indifferent whether these parties are guilty or innocent of the accusations against them; or, in other words, is there such a probability of their guilt as to warrant the belief that they would by flight, and at the expense of any mere pecuniary forfeiture, seek to evade trial and punishment.

Examining this question now, simply upon the indictments, and the consequences attached by law to conviction thereon, I am constrained to hold that the accused now rest under a violent presumption of guilt, such as would naturally induce them to seek, by any sacrifice of properly, an escape from the rigorous and disgraceful imprisonment to which they may be subjected. That imprisonment, it will be recollected, may, in case of conviction for the principal offence charged, be for the life of the accused: all whose property would then pass from them on such civil as upon a natural death. And should that imprisonment not be for life, or should the conviction be for the lesser offences, I am unable to say what pecuniary loss would, in the mind of the accused, be a greater evil than the punishment to which they would be subjected.

It was well urged that the spirit of our law has tended, and is tending, to a mitigation of the severity of our criminal code. But it is the duty, as well of those who make as of those who administer that law, to gee to it, that, though the amount of the penalty imposed may in proper cases be diminished, yet that the certainty of its infliction shall not be impaired. Unless this be carefully guarded, the humane tendency of our law will assuredly be checked. It has been well said, that the inquiry here “ comprehends not only the individual case, but the interests which a large community have in the faithful execution of the criminal laws.” Yigilance and certainty in-this respect can alone insure public safety and tranquillity. Laxity, while it brings the administration of justice into contempt, is sure to result in the greatest of social evils—the indiscriminate punishment of guilt and innocence at the hands of an infuriated multitude.”

It was, however, urged upon the argument, that I should look beyond the indictment, and should examine the depositions before the committing magistrate, and that there were some discrepancies and contradictions in them which diminished the probability of guilt.

The prisoners are held now under the indictments; not on the warrants founded upon those depositions. The proof before the grand jury may well have been very different from that before the committing magistrate. All the authorities agree that, when the indictment has been found, the inquest of the coroner and the depositions before the magistrate can no longer be looked into. (5 Cow., 56; 1 Hill, 392; 8 Barb., 163.)

It is true that, in the case of The People v. Van Horne (8 Barb., 163), the court intimate that since the provision'in the Bevised Statutes (2 B. S., 728, § 30), giving to the grand jury power to appoint a clerk, and to preserve minutes of the evidence before them, and to direct that such minutes be delivered to the District Attorney, the effect of an indictment upon an application like the present, is not as conclusive as before, and that the court may look into the minutes of the evidence before the grand jury.

This provision was a new one, introduced into the statute by the revisers. Their note to it, as reported, shows that it was intended principally for the convenience of the District Attorney, and that it was left discretionary with the jury whether they would keep such minutes, or if they did, whether they would direct them to be delivered to the District Attorney. How far the intimation in 8 Barbour, 164, should be affected by the permissive, rather than the directory nature of the statute (a distinction not adverted to there), or by the difficulty of obtaining such minutes, if withheld by the District Attorney, need not now be inquired into. It is sufficient here that the minutes of the grand jury are not laid before me, nor was any effort made to compel their production when the District Attorney, upon request, declined to furnish them.

It was also sought upon the argument, by reference to the presumption of innocence till guilt is proved, to lessen the conclusiveness of the indictment upon the question of guilt. That presumption of the common law has no place here. So far as the application is concerned, it has ceased, if not given place to the presumption of guilt. “ After bill found, a defendant is presumed to be guilty to most, if not to all purposes, except that of a fair and impartial trial before a petit jury.” (The State v. Mills, 2 Dev. R., 421.)

Application denied.


author: Ingraham, J.

text:
    Supreme Court. At Chambers. New York,
    November, 1859.
    Before Ingraham, Justice.
    The People v. John Richardson.
    On return to a writ of habeas corpus, issued to inquire into the cause of detention, after commitment by a magistrate, and before indictment, additional proof may be received by the judge for the purpose of enabling him to decide upon the legality of the detention.
    This matter came before Mr. Justice Ingraham, at Chambers, on a writ of habeas corpus, and the question was, whether additional evidence could be received to show that the prisoner was legally detained. The prisoner had been committed by a magistrate, but had not been indicted. The following opinion was given:
   Ingraham, J.

The affidavits made before the police justice show that the prisoner proposed to Little to retain the money of his employer, which he was sent to obtain from the bank. Knowing the money to be the property of Winslow, Lanier & Co., he took the money from Little and concealed it. It is not by any means clear that, on this evidence, the prisoner could not be convicted of grand larceny. The money was the property of the firm, although in the possession of their servant, and, if taken from the servant, without his consent, it would clearly have been a larceny. The assent of the servant would not alter the nature of the offence.

But if it amounts to nothing more than an embezzlement, the evidence is ample to sustain the charge against the prisoner of receiving the property of another, knowing it to have been embezzled, and the only ground on which the discharge of the prisoner is sought is, that the clerk was under eighteen years of age when the embezzlement was committed. If this be true, the crime of embezzlement could not be charged upon Little, and the prisoner would not, of course, be liable under that charge. The District Attorney now offers additional proof to show that Little is mistaken as to his age, and that he is over nineteen years of age. I think that such evidence may be taken now.

The 58th section of the habeas corpus act provides, “ that if the prisoner appear to have been legally committed for the offence, or if he appear, by the testimony offered with the return or on the hearing, to be guilty, the court should remand him,” &c. This contemplates an examination of the evidence returned by the magistrate, or of evidence offered on the hearing, and allows such evidence then to be received.

Besides this, although I should discharge him on this writ, if the District Attorney has the necessary evidence, he could at once apply for a new commitment on such proof, and it would be my duty to commit him anew thereon.

It would not be a creditable administration of justice to discharge a prisoner from custody on such a technical objection, when the District Attorney offers to supply the defect in the evidence, and produce sufficient testimony fully to establish the guilt of the prisoner.

The evidence may be received, and on producing proof that the correct age of Little is over eighteen years, the prisoner must be remanded.


author: Sutherland, J.

text:
    Supreme Court. New York General Term,
    February 1860.

      Sutherland, Allen and Bonney, Justices.
    The People v. Richard Barry.
    An order quashing a conviction and sentence, is not reviewable on writ of error under the act of 22d March, 1852. That act is only applicable to judgments.
    This was a writ of error on behalf of the People to the New York General Sessions.
    The prisoner was indicted on the 21st of May, 1858, for an assault upon Philip Wolfe, with intent to kill. On the same day another indictment 'was presented against him for a rob. bery, by violence, in stealing over $100 from the person of Philip Wolfe. To the first indictment the prisoner pleaded guilty of an assault and battery, and was sentenced to four months’ imprisonment, on the 23d of October, 1858. On the 5th of November, 1858, a notice was given of a motion for a new trial, and on the 15th of November, 1859, an order was made in the Sessions, by the city judge, that the conviction and sentence upon conviction be quashed, and that the order of imprisonment be revoked “ said 'indictment having been, on the same day, by operation of the statute, superseded and quashed by the filing of another indictment for the same matter, although charged as a robbery.”

      N. J. Waterbury (District Attorney), for the appellants.
    I. The section of the act referred to (3 R. S., 5th ed., 1018, marg. p. 726, §42), reads: “If there be at the tiiy.e pending against the same defendant two indictments for the same offence, or two indictments for the same matter, though charged as different offences, the indictment first found shall be deemed to be superseded by such second indictment, and shall be quashed.” The case involved only elementary principles.
    As a matter of practice, the motion to quash cannot be entertained after plea, impanneling of jury, giving of evidence, and conviction; and it is decided that under the last above statute, a motion must be made before such indictment will be quashed.
    II. The indictments presented different offences and different matters severally, unless a grand larceny is the felonious assault by one person upon another.

      Brown, Hall and Vanderpoel, for the respondent, moved to quash the writ.
   By the Court,

Sutherland, J.

The order of the city judge, on November, 15, 1858, quashing the previous conviction of the defendant, Barry, and his sentence on such conviction, by the Recorder, on October 23,1858, and revoking and annulling the Becorder’s order of imprisonment, was not a judgment upon the indictment, but was, or purported to be, an order quashing and annulling the previous proceedings before and by the Becorder in this case.

The act of 1852, allowing writs of error to be brought in behalf of the People in certain cases, allows such Writs “to review any judgment rendered in favor of any defendant upon any indictment,” &c. The order or proceeding of the city judge, of November 15, so far from being a judgment rendered upon the indictment, was an order or proceeding annulling and destroying, or undertaking to annul and destroy, a previous judgment rendered upon the indictment.

Therefore it is clear, however unauthorized or erroneous the order of the city judge, on November 15th, may have been, that such order cannot be reviewed or such error corrected by writ of error under the act of 1852, and that the motion made by defendant to quash the writ of error in this case must be granted.

Bonney, J. In the Court of Sessions, on the 21st May, 1858, the indictment was found against Bichard Barry, for assault and battery with intent to kill. On the same day, at a later hour, an indictment for robbery in the first degree was found against the same person, for the same act or matter for which the first indictment was found. On the 4th October, 1858, Barry was arraigned on the indictment first found, and then pleaded guilty of an assault and battery; and upon that plea was, on.23d October, 1858, sentenced to imprisonment in the penitentiary for the term of four months.

On the 5th November, 1858, a motion was made in Sessions, on the said indictments and other papers, for a new trial, on the ground of irregularity in the proceeding and on the merits, and on the 15th November, 1858, that court ordered that said conviction and sentence be quashed, and the order of imprisonment to the sheriff thereon be revoked and annulled, “for the irregularity of taking the same on the indictment found May 21, 1858, against the said Bichard Barry, charging bhfl wbb an assault and battery, with intent to kill one Philip Wolfe, said indictment having been on the same day, by operation of the statute, superseded and quashed by the filing of another indictment for the same matter, although charged as the offence of robbery.” This last order of the Sessions is now brought before this court, by writ of error, for review.

The counsel for Barry move to quash the writ of error as unauthorized by law. In the case of The People v. Corning (2 Comst., 9), decided in December, 1848, the Court of Appeals dismissed the writ of error, on the ground that a writ of error to that court would not then lie in behalf of the People after judgment for the defendant in a criminal case; and in the opinion in that case, Judge Bronson also expresses the opinion that the writ in behalf of the People would not be from the Sessions to Supreme Court. By the act of 22d March, 1852 (Laws of 1852, 76, ch. 82), it is enacted that writs of error to review any judgment rendered in favor of any defendant, upon any indictment for a criminal offence (except after acquittal by a jury), may be brought in behalf of the People, &c., on being allowed by a justice of the Supreme Court. In this case, the judgment of the court below was rendered on the 23d of October, 1858, on conviction by confession, that Barry be imprisoned in the penitentiary four months. Afterwards it was, by the Court of Sessions, on motion, ordered that said conviction and sentence be quashed for irregularity, &c. In my opinion, this order or decision of the Court of Sessions, on motion, was not a judgment rendered upon the indictment, within the meaning and intent of the act of 1852. The motion to quash' the writ of error, should consequently be granted.

The order of the Court of Sessions sought to be reviewed, was by that court founded on 2 Revised Statutes, 726, section 42, which is in the following words: “ If there be, at any time, pending against the same defendant, two indictments for the same offence, or two indictments for the same matter, although charged as different offences, the indictment first found shall be deemed to be superseded by such second indictment, and shall be quashed.”

In this case two indictments for the same matter, but charged as different offences, were on the same day (21st May, 1858) found against the defendant. Afterwards, on the 4th October, 1858, on being arraigned on the first indictment, which was for the minor offence, by leave of the court and consent of the District Attorney, he pleaded guilty of an offence less than that charged, and on that conviction by confession, sentence was pronounced October 23d, 1858.

The statute is clear and positive, and there can be no question that, on the finding of the second indictment, the defendant was entitled to have the first indictment quashed. But the statute does not say that the first indictment shall, on the finding of the second, become void, so that no trial or conviction thereupon can afterwards be had by confession or otherwise. Some action by the court, on motion, in behalf of the accused, or otherwise, to put that indictment out of the way, was evidently intended, and an order of the court was necessary to quash it.

From the case as it now appears, it is a legitimate conclusion that this defendant preferred a conviction by confession, on the indictment for the minor offence, in its mitigated form, to the hazard of a conviction by the jury, on trial of the indictment for the greater offence, and acted accordingly. In my opinion, it was competent for him to waive the provision of the statute in his favor, and I think he has clearly and advisedly done so; and that after his confession, he had no right to claim the benefit of the statute which he has so waived. The cases of The People v. Monroe Oyer and Terminer (20 Wend., 108), is direct authority on this point. If, however, I am right in the conclusion first stated, we have no power to correct the error committed by the court below.