source: Caselaw Access Project

author: Ingraham, J.,

license: Public Domain

text:
    New York Oyer and Terminer.
    January, 1860.
    Before Ingraham, Justice of the Supreme Court.
    The People v. Patrick Tannan.
    The statute declaring a homicide to be excusable “ when committed upon a sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner," is not applicable to a case where the deceased was lolled by the prisoner in a fight with fists, and in which the fight was arranged by the prisoner or his friends with his adversary some hours before the fight took place.
    Where, in an indictment for murder, it was charged that the death was caused by beating and striking, and the evidence showed that it was probably caused by injuries to the side of the deceased, occasioned by his falling upon a mound of earth when engaged in a personal combat with the prisoner, the prisoner was acquitted by the jury under the advice of the court.
    The defendant was brought to trial on an indictment charging him with the homicide of one Honeyman, in December, 1859, in the city of New York. The defendant possessed a good character for peace, quietness and integrity, while the deceased was proven to have been a man of abandoned character and addicted to ruffianly habits.
    The defendant and deceased met at a porter house, when the former charged the latter with having passed counterfeit money. Angry words ensued, and the deceased drew a knife on the defendant, upon which the bystanders interfered, and the parties were separated. On the following day, deceased and his friends sought out defendant, and proposed that he should fight with deceased. Defendant manifested a disposition to avoid the encounter, but upon being pressed, consented to “fight it out.” Accordingly, in the morning, it was arranged that the parties should fight at two o’clock in the afternoon, at which time they met in an open lot in First avenue, stripped to the waist, and formed a ring. The parties fought four rounds with their fists. The amount of hitting done by each party was about equal. At the end of each round the defendant fell upon Honeyman with crushing weight, and, in one or two instances, remained there some little time. The prosecution admitted that no undue advantage in the combat was taken by the defendant, with the exception of falling on Honeyman. At the end of one or two rounds, Honeyman fell upon his side, hitting a mound of earth.
    Honeyman died nine days afterwards. Several physicians testified, that in their opinion death was the result of the injuries received in the fight. Severe injuries were received upon' the side, which were sufficient to cause death. The physicians testified that these injuries might have been caused by the deceased falling violently upon a mound of earth.

      Henry L. Clinton, for the prisoner,
    contended that upon the testimony in the case the homicide was excusable, under 2 R. S., 661, § 4, sub. 2, which provides that homicide is excusable when committed “ upon a sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.” The combat was forced upon the prisoner. Had he not assented to it, taking into view the character of the deceased as a desperado, he was justified in believing that, if he did not fight the deceased, the latter would perpetrate a murderous attack upon him when he was unprepared.

      Mr. Clinton also contended that inasmuch as the indictment charged that the death was caused by beating and striking, and the evidence showed it was probably the result of the falling of the deceased upon a mound of earth, and thereby causing fatal injuries to his side, the jury could not, in any point of view, convict under this indictment. To sustain this point, the counsel cited Rex v. Kelly, 1 Moody's Cr. C., 113; Rex v. Wrigly, 1 Lewin. C. C., 193; and Ib., 127.

      Nelson J. Waterbury (District Attorney), contended that the testimony showed a clear case of manslaughter in the fourth degree.
   Ingraham, J.,

charged the jury, that although it appeared from the evidence the prisoner was a man of good character, and the deceased was a man of notoriously bad character, yet the bad as well as the good were entitled to the protection of the law. It was for the jury to say, upon the whole evidence, whether the combat was sudden. If the prisoner arrangéd with his adversary, hours before the fight, that it should take place, or authorized his friends to make such arrangements for him, then clearly it was not a “ sudden combat,” and the section of the statute cited by prisoner’s counsel, did not apply. It was for the jury to say whether the evidence showed that the prisoner made the previous arrangements for the fight, or whether they were made by his friends on his behalf, without his knowledge.

The court also charged, that if it appeared from the evidence that the deceased came to his death from injuries occasioned by falling on a mound of earth, under the indictment, the jury should acquit.

The prisoner was acquitted.


text:
    New York General Sessions.
    April, 1860.
    Before George G. Barnard, Recorder.
    The People v. George L. Ward.
    An order for taking the testimony of a non-resident complainant Ae bene esse, under the acts of 1844 and 1846, entitled in the “ Court of General Sessions,” hefore the finding of an indictment thereon for the offence, is irregular, and testimony taken under it cannot be read in evidence on the trial of the indictment.
    The defendant was brought to trial upon an indictment for petit larceny.

      John Anthon, Jr. (Assistant District Attorney),
    after having opened the case, produced a witness who testified that Benjamin Weston, the complainant, was a non-resident at the time of the alleged commission of the offence; that he left this State immediately afterwards, and was now absent from the State. The Assistant District Attorney then offered in evidence the deposition of Weston, taken under the act of 1844, chapter 315, page 476, section 11, and the act of 1846, chapter 302, page 408, section 9.

      James M. Smith, Jr., and Henry L. Clinton, for the defendant,
    objected, on the ground that the order of the judge, under which the deposition was taken, was wrongly entitled. This order reads as follows:
    Court of General Sessions.
    The People, on complaint of Benjamin Weston, v. George Ward.
    On reading the affidavit of Benjamin Weston, and it appearing that George L. Ward is charged with larceny, and that the offence with which the accused, the said George L. Ward, stands charged, was committed in the city and county of Mew York, and that at the time of the commission of said offence, Benjamin Weston was, and still is, a non-resident of the said city and county, and that the said Benjamin Weston resides in the State of Maine, on application of the District Attorney, ordered, that the testimony of the said Benjamin Weston be taken de bene esse before me, at my chambers, Mo. 11 Chambers street, in the city of Mew York, on the seventh day of February, instant, at 10 o’clock, A. m. and that the District Attorney cause a copy of this order to be served on the accused forthwith, pursuant to the provisions of the act entitled “An act for the Establishment and Regulation of the Police of the city of Mew York,” passed May 7th, 1844, and an act to amend the same, passed May 13th, 1846; and I do hereby specify two days as the length of notice which shall be given to the accused, of such examination.
    Dated Mew York, February 4th, 1859.
    GEORGE G. BARNARD, Recorder.

      The following affidavit and certificate were annexed to the order:

      City and County of New York, ss:

    John Haley, being sworn, doth depose and say: That on the 4th February, 1859, about 2 o’clock, p. M., he served copies of the within order and affidavit upon George L. Ward, within named, by handing to and leaving with him the same, and at the same time showing to him the original thereof.
    JOHN HALEY.
    Sworn to before me this 7th) day of February, 1859, )
    George G. Barnard.
    I, George G. Barnard, Recorder for the city and county of New York, do hereby certify, that on the 7th day of February, 1859, Benjamin Weston, the witness in the foregoing order named, appeared before me at my chambers, in the City Hall of the city of New York, and due proof having been made before me of the service of the said order upon the accused, the said witness was thereupon duly sworn by me and examined in my presence and in the presence of the accused. That his$direct and cross-examination was reduced to writing in questions and answers, which examination was signed by the witness, duly certified by me, and is hereunto annexed. And I do further certify, that such examination has been filed by me in the bffice of the clerk of the Court of General Sessions of the Peace in and for the city and county of New York.
    GEORGE G. BARNARD, Recorder.

   The indictment was not found until the 22d day of December, 1859.

Defendant’s counsel contended that, as this case was not in the Court of Sessions at the time of the granting of the order entitled in that court, the deposition, although entitled “The People on complaint of Benjamin Weston against George L. Ward,” was inadmissible. To sustain this position, People v. Chrystal (8 Barb., 545), Milliken v. Selye (3 Denio, 54; 12 John., 460,) were relied on.

After hearing the Assistant District Attorney in opposition, the court sustained the objection and ruled out the deposition.

The defendant was acquitted.


author: Bacon, J.,

text:
    Supreme Court. At Chambers.
    Before Bacon, Justice. Utica,
    May 9, 1860.
    The People v. Henry Budge.
    After an inquest, super visum corporis, has been held, by a coroner, in case of sudden or violent death, and an inquisition has been found by the jury, a second inquest cannot be held by the coroner, unless the first inquisition shall have been vacated or set aside, or shall have been absolutely void.
    Where, on a coroner’s inquest, the jury found that the death was caused by suicide, and nearly four months afterwards the coroner summoned another jury, and held a second inquest, at which the jury found that the deceased was killed by H. B., whereupon the coroner issued a warrant of commitment, under which he was imprisoned, on habeas corpus the accused was discharged from imprisonment, on the ground that the second inquisition was not authorized by the statute.
    The fifty-eighth section of the habeas corpus act (2 B. S., 568), which provides that, though the commitment was irregular, the judge may require bail in a bailable case, if the prisoner appear to be guilty of the offence charged, was designed only to prevent the escape of a guilty person through a technical irregularity, and is not applicable to a case where two inquests have been held, and on the first a verdict of suicide was rendered, and on the second, which was unauthorized, the jury found that the deceased was killed by the prisoner.
    On a return to a writ of habeas corpus, before Justice Bacon, it appeared that the prisoner, who was the Bev. Henry Budge, of Lewis county, was held under a warrant of commitment issued by Thomas Rogers, one of the coroners of Lewis county, under the following circumstances:
    On the eleventh day of December last, Mrs. Budge, the wife of the prisoner, was found dead in bed, with her throat cut, and a bloody razor lying by her side. Coroner Rogers was at once notified, and an inquest was held by him on the same day. Several witnesses were examined, including the prisoner himself and his two children. That jury, composed of eleven citizens, rendered a verdict that Mrs. Budge died by her own hand. If early four months afterwards, on the ninth of April last, the same coroner summoned another jury, composed of seven men, and held another inquest, which resulted in a finding by the jury that the deceased was killed by the prisoner. The coroner then issued his warrant of commitment, under which the defendant was imprisoned.

      C. H. Doolittle and Ward Hunt, for the prisoner,
    asked for an absolute discharge, on the ground that there having been one inquisition, not quashed, vacated or set aside, the coroner had no power to hold a second inquest, and had, therefore, obtained no jurisdiction over the person of the prisoner. The counsel contended that the statute of this State authorized no second inquest; that such statute was taken from the English statute, under which it had been decided in England that no second inquest could be held by a coroner, unless the first inquest had been set aside, citing 1 R. L., 150; 2 R. S., 743; Impey on Coroners, 3, 13; 2 Bac. Abr., 427, 428; 2 Hale P. 0., §59; 2 Hawk, 52, 53; 1 Salk. R., 190; 3 Mod., 238; 1 Burns' Jus., 360; 5 Eng. Com. L. R., 277; 24 Wend., 45. The counsel contended that there was an unbroken current of authority that a coroner can hold but one inquest super visum corporis, concerning the death of a person who had been slain or suddenly died, either by the common law or the English statutes, unless the first inquisition had been set aside or quashed, or was absolutely void. That the statute of this State, in the particular in question, was merely in affirmance of the common law, as had been held of the English statutes.

      The counsel further claimed that, in case the judge differed from him in opinion as to the right to hold the second inquest, the prisoner should be discharged on bail.

      Henry A. Foster, for the prosecution, proceeded to contrast the powers of the coroner in England and in this State:
    Here, the coroner does not hold a Court of Record, as in England. If he held a Court of Record, he could not be interfered with by habeas corpus. The case could only be reached by appeal or writ of error. In England, the finding of a coroner’s jury is equivalent to a bill of indictment. Such is not the case in this country. Have our coroners jurisdiction in cases of wreck and treasure trover ? Can the inquisition here forfeit to the State the goods and chattels of the murderer or the suicide, as in England to the king ? Is the finding equivalent to a judgment against the widow and next of kin ? There is great difference between the powers of the coroner in England and in this country. In the former, their inquisitions divest rights and vest rights. In the case of the suicide of the Earl of Essex, property to the value of a million of dollars passed by the finding of the juiy.
    The decisions cited are under the English statute, where coroners’ inquests are something more than a preliminary investigation. In this country, it is a mere preliminary examination, and the coroner has no power except such as is conferred by statute. (Crocker on Sheriffs, 907; 4 Chitty's Black., 190.)
    If a magistrate held an examination, and decided to discharge a suspected party, could he not in a week afterwards issue another warrant, hold another examination de novo, -and hold the same man to bail? Does the ignoring of a bill by one grand jury, prevent another grand jury from finding a bill? If a grand jury find a bill of indictment, may not the same jury find another indictment for the same offence, but in a different form, and will not the second indictment supersede the first ?

      The counsel on both sides discussed also the facts of the case at length, with a view to the question of bail, in case it should be held that the second inquest was not unauthorized.
   Bacon, J.,

reviewed briefly the arguments of the counsel, and the powers of Justices of the Supreme Court upon habeas corpus—that great writ of freedom, which was designed to protect the liberty of the citizen. He also alluded to the 58th section of the habeas corpus act, which had not been alluded to by the counsel. That section provided that if the person brought up on the writ appeared to be guilty of an offence, although his commitment be irregular, the judge shall hold the person to bail, if it be a bailable offence. This evidently contemplated a clear case of guilt, and was enacted to prevent the escape of a guilty person through a technical irregularity. It was sufficient to say that this was not a case of that kind. Here were two inquisitions before a coroner—the first held super visu/m corporis, not irregular or questionable in its form— wherein the jury of eleven men made and filed a verdict of suicide. Four months afterwards, a jury of seven men came to a conclusion of an opposite description—to the effect that there was cause to suspect the defendant of homicide. So far the case was balanced, and although he had an opinion which inquisition was entitled to the greatest weight, it was not necessary, for the purpose of the decision, to state that opinion. After some further, comments upon the arguments of counsel, Judge B. announced his conclusions as follows:

Upon the whole case, I see no escape from the conclusion that if the committal by the coroner is unauthorized, the prisoner must be discharged; and that the committal is unauthorized, follows from the rule, perfectly well settled, that a second inquisition cannot be held until the first has been vacated, and a new inquiry ordered by the court.

Such is the rule unquestionably in England, as is conceded, and there is nothing to the contrary to be found by any authority in this country. Ho power is given to the coroner by our statute to hold a second inquisition, but by the strongest implication there is to be but one inquisition, super visum ccnporis, and that is to be held “ forthwith ” on his receiving notice of the death, and being completed it is filed, and the whole proceeding is ended. “As to any original self-moving ” power to do anything further in holding an inquest, the coroner is functus officio.

This being so, it is clear he has no power to act further on his own motion, and especially while the first inquisition stands. He cannot proceed on surmise or suspicion that some further discoveries may be made. Until the first inquisition is vacated by the action of some court, it is conclusive upon the coroner and all others.

There is no reported case to be found in this country where a second inquisition has been held, the first remaining undischarged, nor is any such practice known to, or recognized, or to be tolerated by the laws of this State. Such a practice would be liable to great abuse, and as the object of the proceeding is merely preliminary, the main purpose being to ascertain whether it is probable that a crime has been committed, and to preserve the evidence and examine the facts and circumstances while they are all fresh and easy of inspection, all the ends of the inquiry are answered by one inquisition, super visum corporis, and there is no question made that the first inquisition in this case was not fairly and legally conducted.

There is no danger of a failure of justice in this case if the defendant is discharged on this committal, as proceedings may be taken and an examination had before any magistrate in the county of Lewis, and the proceedings before the coroner form no sort of bar to such an examination, and an original proceeding may be taken to procure an indictment before the first grand jury that shall be impanneled in the county of Lewis. Ho apprehension is expressed by the counsel of the People, that the defendant will make any attempt to escape, and the opportunities for flight constantly presented to him since these proceedings commenced, and which he has declined to embrace, may be taken as conclusive proof that no such fear need be indulged. But whatever speculations may be allowed on this point, it is important to the ends of justice and the safety of the community that inferior ministerial officers should be strictly confined to their legitimate functions, and not overstep those boundaries which the law has prescribed; and whenever this has been done, any court or magistrate having power to supervise the proceeding, fails of its duty if it does not, upon its authority being invoked, instantly interpose to correct an improper, even though it may perhaps be a well-intended, procedure.

The result is that the defendant must be and he is hereby discharged from custody on the warrant under which he now stands committed.

Prisoner discharged.


author: By the Court, James, P. J.

text:
    Supreme Court. Clinton General Term,
    May, 1860.
    James, Rosekrans, Potter and Bockes, Justices.
    The People v. Sumner Porter.
    A Court of Sessions has no power to direct a nolle proseqm to be entered on. an indictment pending therein for an offence not triable in that court.
    Nor can a nolle proseqm be entered to a part of a count of an indictment, though the court in which' it is pending have jurisdiction to try the offence charged. A nolle proseqm may be entered to the whole of an indictment, or to any one or more of several counts in an indictment.
    Where a person was indicted in a Court of Sessions for rape, with but one count in the indictment, in the usual form, and the Court of Sessions directed a nolle proseqm to be entered for the crime of rape, and the prisoner was tried for an assault only, and convicted, the conviction was reversed, and the prisoner discharged.
    The prisoner was indicted for the crime of rape, at a Court of Sessions held in Hamilton county, in October, 1858. The indictment contained but a single count in the usual form. ■ At a subsequent term of said court, held in June, 1859, the prosecuting attorney moved that said indictment be sent to the Fulton county Oyer and Terminer for trial, or that the prisoner be tried for an assault only. The court directed a nolle prosequi to be entered for the crime of rape charged in the indictment, and that the prisoner be tried upon the remaining part of the indictment for an assault only. A nolle prosequi was entered accordingly, to which «the prisoner, by his counsel, duly excepted.
    The prisoner was thereupon put upon trial under the said indictment, for an assault. The prisoner, by his counsel, insisted that he was not under indictment for an assault, and that the court had no authority to try him for such an offence. The objection was overruled, the trial proceeded, and the prisoner was convicted.

      R. H. Rowe, for the People.

      W. Gleason, for the prisoner.
   By the Court, James, P. J.

It is a constitutional, as well as a statutory provision, that no person can be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a grand jury. In this case the grand jury had presented the prisoner for the crime of rape. The indictment contained but a single count charging the crime in the usual form. For the trial of that offence the Court of Sessions had not jurisdiction. (2 R. S., 208, 19 Wend., 192.) That court can only let to bail persons indicted for crimes not triable therein, or where the indictment is found in that court, order it to the Oyer and Terminer for trial. (2 R. S., 209.) It has not authority even to order a nolle prosequi to be entered in such a case. This does not conflict with the remark of Cowen, J., in The People v. Abbott (19 Wend., 201), that “to warrant a trial at the Sessions, the District Attorney should have entered a. nolle prosequi on the count for rape.” The judge did not say when or where the nolle prosequi should be entered. If sent to the Oyer and Terminer, as the statute requires, and the indictment contained separate counts for rape and assault, a nolle prosequi might be then entered on the count for rape, and then the cause returned to the Sessions for trial. That indictment contained counts for rape and for an assault, and what the learned judge intended, was to show that such an indictment was not triable at the Sessions, unless the counts for the higher offence were stricken out. The Court of Sessions having no power to direct a nolle prosequi in this case, its entry was a nullity, and the trial on the indictment was without authority and void.

But admitting the court had authority to direct a nolle prosequi on an indictment for an offence not triable therein, it should be to the whole count, and could not be to a part of a single count, so as to change the nature, character or degree of the sole offence charged by the grand jury. The entry on the record of a nolle prosequi is an act by which the prosecution declares it will proceed no further with the indictment, or with that part of it specified in the order. Its effect is to.put the prisoner without day to such part, and, if to the whole, entitles Mm to a discharge from arrest, unless held for re-mdictment, as the entry does not operate as an acqMttal.

As I have before said, a nolle prosequi may be to the whole indictment, or to the whole of any one or more of several counts, but cannot be to a part of any one count; therefore, when a nolle prosequi is entered to a part of an indictment containing a single count, it operates upon the whole Mdictment, and entitles the prisoner to Ms discharge, unless held for further indictment. In this view of the case, the court proceeded in the trial without authority.

The conviction should be set aside, and the prisoner discharged.


author: Rosekrans, J.

text:
    Supreme Court. Clinton General Term.
    May, 1860.

      James, Rosekrans, Potter and Bockes, Justices.
    John Grant, plaintiff in error, v. The People, defendant in error.
    The return to a writ of error in a criminal case, brings up the indictment, the pleas interposed by the defendant, and the trial and judgment upon those pleas, as well as the bill of exceptions. On such a return, therefore, a special plea of a former trial "on the same indictment, and the proceedings on such plea are properly before the court for review.
    After the impanneling of a jury in a criminal case, its arbitrary discharge, with out any cause, and where no circumstances exist calling for the exercise of the discretion of the court, is a bar to a subsequent trial of the defendant upon the same indictment.
    The issue joined upon a special plea of a former trial, can only be tried by a jury; the consent of the defendant cannot confer jurisdiction upon the court to try the issue without a jury.
    Form of an indictment for the statutory offence of seduction under promise of marriage.
    This case came up on a writ of error to the Court of Sessions of St. Lawrence county, where the plaintiff in error was arraigned upon an indictment in the following words:

      State of New York, County of St. Lawrence, ss:

    At a Court of Oyer and Terminer, held at the Court House, in the town of Canton, in and for the county of St. Lawrence, on the 15th day of February, in the year of our Lord, one thousand eight hundred and fifty-nine, before the Honorable Amaziah B. James, Justice of the Supreme Court, William C. Brown, County Judge, and Joseph Barnes and Silas Baldwin, Esquires, Justices of the Peace of said county, assigned to inquire by the oath of good and lawful men of said county, of all crimes and misdemeanors committed or triable in said county, and to hear, try, determine and punish all offenders according to law.

      zS?. Lawrence County, ss:

    The Jurors of the People of the State of New York, in and for the body of the county of St. Lawrence, to wit: Elihu M. Dana, &c., &c., good and lawful men of said county, now here sworn and charged to inquire for the said People, in and for the body of the said county, upon their oath do present:
    That John Grant, late of the town of Norfolk, in the county of St. Lawrence, heretofore, to wit, on the 20th day of July, in the year of our Lord one thousand eight hundred and fifty-eight; at the town of Norfolk, in the county of St. Lawrence, unlawfully, willfully and feloniously, under and by means of promise of marriage, did seduce and have illicit sexual intercourse and connection with one Buth Amelia Bose, she, the said Buth Amelia, then and there, being an unmarried female of previous chaste character, against the form of the statute in such case made and provided.
    And the jurors aforesaid, upon their oaths, do further present; That heretofore, to wit, on the 20th day of July, in the year 1858, at the town of Norfolk, in said county of St. Lawrence, the said John Grant undertook and promised to, and with one Buth Amelia Bose, who was then and there an unmarried female of marriageable age and condition, to marry her, the said Buth Amelia, whenever he, the said John, should be thereunto afterward requested, and mutual promises of marriage were then and there made and entered into by and between the said John and the said Buth Amelia.
    And the jurors aforesaid, upon their oaths, do further say: That after making the said promise of marriage by the said John Grant, he, the said John Grant, under and by means of his said promise of marriage, willfully and feloniously did seduce and have illicit connection with the said Buth Amelia Bose, she, the said Buth Amelia, being then and there an unmarried female of previous chaste character, against the form of the statute in such case made and provided, and against the peace of the People of the State of New York.
    THOMAS Y RUSSELL, District Attorney.

      Thereupon the counsel for the plaintiff in error interposed the following plea, to wit:
    The People j ns. L John Grant. J
    Sept. 2d, 1859.
    And the said John Grant comes and says, that no farther proceedings in the premises ought to be had or taken against him on the said indictment, because he says, that on the first day of September, instant, in the Court of Sessions in said county, the said defendant was put upon his trial upon said indictment, and a jury between the People and the said defendant, upon the said indictment, was in due form of law drawn, impanneled, charged and sworn to well and truly try the said issue. And the said jury, without the consent of the said defendant, have been discharged and separated without having rendered any verdict therein, and without disagreeing or other special cause, but by mere irregularity, and the said defendant says that he has been once in jeopardy upon the said indictment, and cannot by the law of the land be again tried thereon.
    To which said plea on the part and behalf pf the said defendant, the District Attorney put in the following reply, to wit:
    St. Lawrence Sessions,
    The People ) vs. r John Grant. )
    The People of the State of New York, by Thomas Y. Russell, District Attorney, for the county of St. Lawrence, come and reply to the special plea in bar of the said defendant, and say that said jury was not discharged by the court, in case of the said John; - that immediately after the impanneling of the jury in said plea mentioned, and before any further proceedings were had, and before any evidence was given to the said jury, at the special instance and request of the said defendant made in open court, the said jury were allowed by the said court to separate and go without the Court House.
    Issue being thus joined upon said defendant’s said special plea, the counsel for the defendant proposed and requested that this issue upon the special plea in bar should be tried by the court without jury, and the court proceeded to try said issue, and upon such issue gave judgment for the People, and ordered the indictment to be tried before a jury.
    The trial then proceeded before a jury, and the plaintiff in error was convicted and sentenced to two years’ imprisonment in the State Prison.

      William H. Sawyer, for plaintiff in error,
    cited People v. Meany, 4 Johns. R., 294; 2 R. S., 5th ed., 718, 1026; People v. Cancemi, 18 N. Y. R., 134; 4 Black. Com., 349; Const. of N. Y., arts. 1, 2; Pfefer v. Com., 3 Harris, 465; Com. v. McCall, 1 Va. Cas., 371; McLain v. State, 10 Yerg., 529; People v. McKay, 18 Johns. R., 218.

      Thomas V. Russell (District Attorney), for the People.
    I. So much of the bill of exceptions in this case as relates to the proceedings in the .court of Sessions, on the defendant’s special plea in bar, ought to be stricken out and disregarded. All that matter is improperly incorporated into the bill.
    The office of a bill of exceptions is confined tp, bringing up for review questions of law raised and decided -on the trial of the main issue.

    It does not extend to such questions as arise on the trial of preliminary or collateral matters. (People v. Stockham, 1 Park. 426; 2 R. S, 736, § 21; People v. Freeman, 4 Denio, 21; People v. Wynehamer, 2 Park., 382.)
    H. In order to have brought that collateral issue in any way into the case, the defendant should have demanded to have the issue raised on his special plea, tried by the jury, like any other issue of fact, but at the defendant's especial request, this collateral issue was submitted to the court, and whether the decision was right or wrong, it is not a subject for review by this court on writ of error.
    III. But if this court can, upon this bill of exceptions, review the decision of the Court of Sessions, on that collateral issue, it is submitted that no error was committed by the Sessions, because,
    1. The suspending of the trial of the defendant after the jury had been impanneled, for the purpose of first trying another defendant, was by this defendant’s express consent, which led necessarily to the separation of the jury over night, and his consent waives the irregularity, if there was any.
    This was a matter as to which the prisoner’s consent was binding upon, and cannot be revoked or repudiated, as in Cancemi’s case.
    2. In cases not capital, the separation of the jury, without the prisoner’s consent, is a matter within the discretion of the court. (People v. Eastwood, 3 Park., 28, and cases there cited.)

    The mere fact of separation of the jury furnishes of itself no proof of misbehavior on their part (People v. Douglass, 4 Cow., 26), and no misbehavior was alleged in this instance.
    The true meaning of the maxim embodied in the Constitution of this State—“ no man shall be subject to be twice put in jeopardy, for the same offence,”—is that no man shall be twice tried for the same offence and a verdict rendered.
    ISTo evidence will support a plea of “ once in jeopardy ” which will not support a plea of “autrefois acquit,” or '■'■autrefois convict.” That is the test. (Arch., vol. 1, p. 111, and note.)

   Rosekrans, J.

The return to the writ of error necessarily brings up the indictment, and the pleas interposed by the defendant, the trial and judgment upon those pleas, together with the bill of exceptions. The objection on the part of the People to so much of the bill of exceptions as relates to the defendant’s special plea and the proceedings thereon, is therefore not well taken.

This special plea alleges, that on the first day of September, 1859, the defendant was put upon his trial upon the indictment, and a jury was drawn, impanneled and sworn to try the issue between the People and the defendant, and that said jury, without the consent of the defendant., had been discharged and separated without rendering any verdict, and without disagreeing or other special cause, but by mere irregularity, and that the defendant had once been put in jeopardy upon the indictment, and could not be again tried. The reply to this plea, as amended, denied that the jury had been discharged, and alleged that they separated immediately after being impanneled, and before any evidence was given, at the reguest of the defendant.

If the facts alleged in the special plea are true, there can be no doubt, under the decisions in our own courts and elsewhere, that the defendant cannot be tried upon the indictment. The earlier cases upon the question whether the court had the power to withdraw a juror or to discharge a jury in a criminal case, were reviewed by Kent, Justice, in the case of The People v. Olcott (2 J. Cas., 301), and it was held that the power existed, but that it could only be exercised in cases where it was necessary for the proper administration of justice, and that this necessity must be determined by the court upon a consideration of all the circumstances attending the case. The same question was considered in the case of The People v. Goodwin (18 J. R., 187), and Spencer, Ch. J., in that case said: “ Upon full consideration, I am of the opinion that, although the power of discharging a jury is a delicate and highly important trust, yet that it does exist in cases of extreme and absolute necessityand that it may be exercised without operating as an acquittal of the defendant, that it extends as well to felonies as misdemeanors, and that it exists and may discreetly be exercised in cases where the jury, from the length of time they have been considering the case and their inability to agree, may be fairly presumed as never likely to agree unless compelled so to do from the pressing calls of famine or bodily exhaustion.” In The People v. Barrett (2 Caines' R., 308), Livingston, J., says: “ The power (of withdrawing a juror in criminal cases) should not be lightly used, but confined as much as may be to cases of very urgent necessity, where, by the act of Grod, or by some sudden and unforeseen accident, it is impossible to proceed without manifest injustice to the public or the defendant.” And in The United States v. Perez, it was held that “the law has invested courts of justice with the authority to discharge a jury from giving a verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” In The People v. Green (13 Wend. R., 55, 57), it was held that when it is admitted that the court has the power to discharge, and that the time when the power ought to be exercised rests in the discretion of the court, a case is presented in which, if the power has not been discreetly exercised, there can be no remedy by writ of error. (See also M. C. Newton's Case, 66 N. C. L. R., 716.) In the case now before us, the special plea excludes the existence of any necessity, and all grounds for the exercise of the discretion of the court. It alleges that the jury was “ discharged without disagreeing or other special cause, but by mere irregularity,” and that this was done without the consent of the defendant. In Mahala v. The State (10 Yerg. R., 582), the Supreme Court of Tennessee held that there was no power to discharge a jury in a criminal case without the consent of the defendant, except in cases of manifest necessity. When the jury are unwarrantably discharged, it is equivalent to an acquittal. The law, to warrant the discharge of the jury, must be one of uncontrollable emergency. (The State v. Waterhouse, Mart. & Yerg. R, 278.) The English cases are all cited in the case of Mary Catharine Newton (66 E. C. L. R., 716, supra). The arbitrary discharge of a jury in a criminal case, against the consent of a defendant, without any cause, and where no circumstances exist calling for the exercise of the discretion of the court (which is the case presented by the special plea of the defendant), is a bar to a subsequent trial of the defendant upon the same indictment. (Commonwealth v. Cook, 6 Searg. & Rawle, 577; State v. Ephraim, 2 Dev. & Bat., 162; 2 Gr. & Wat. on New Trials, 105, 106, and folios and notes) In the case of The United States v. Pedro Gibert (2 Sumn. R., 60), Mr. Justice Story approves of the doctrine of the Supreme Court of Pennsylvania and ¡North Carolina, which hold that the provision of the Constitution of the United States, which declares that no person shall be subject for the same offence to be twice put in jeopardy of life or limb, includes cases where a party is once put upon his trial before the jury, and they are discharged from giving a verdict without extreme necessity, and he adds: This, too, is the clear, determinate and well settled doctrine of the common law, acting upon the same principle as a fundamental rule of criminal jurisprudence.” The clause of the Constitution referred to, has been held to extend to all felonies. (People v. Godwin, supra, 18 J. R., 201.)

The issue joined upon the defendant’s plea could only be tried by a jury. The consent of the defendant could not confer jurisdiction upon the court to try the issue without a jury. This was held in the case of Cancemi v. The People (18 N. Y. R., 129, 135, 137), upon the ground that the State has an interest in the preservation of the liberty of its citizens, and will not allow it to be taken away except by due process of law, and that the trial of an issue joined upon an indictment, must be by the tribunal and in the mode prescribed by the Constitution and laws, without essential change. The defendant, therefore, has not been legally tried upon his special plea, and the judgment against him should be reversed, and a new trial ordered before the Sessions of St. Lawrence county, to which court the case is remitted.

Ordered accordingly.


author: Roosevelt, J.

text:
    Supreme Court. New York General Term,
    October, 1859.

      Roosevelt, Clerke and Sutherland, Justices.
    Felix Sanchez, plaintiff in error, v. The People, defendants in error.
    In an indictment for murder, it was charged that the mortal wound was given by stabbing with a sword “in and upon the body ” of the deceased: Held, suf. ficient, without specifying the part of the body upon which the wound was inflicted.
    Where the indictment alleged that the deceased was killed by “one mortal wound,” and the proof showed that two were given, the variance was held to be immaterial.
    On the trial of a challenge for favor, the person challenged as a juror testified that he “ had read part of the statements in the papers at the time of the homicide, and had formed a preconceived idea in regard to the prisoner’s guilt or innocence; that he had no bias one way or the other; that his preconceived idea or impression would in no way influence his verdict, but would be governed entirely by the evidence produced on the stand.” He was adjudged to be a competent juror.
    It is not competent for a party calling a witness, to ask him whether he had not previously made a certain statement on oath before the coroner’s inquest, the alleged statement being repeated in the question, and differing from the testimony of the witness on the trial.
    On the trial of an indictment charging the prisonerwith the murder of his father in-law, it was proposed, in behalf of the prisoner, to prove that communications had been made to him, at some time before the alleged murder, notifying him of the infidelity of his wife, which evidence was offered for the purpose of authorizing the inference that the act was committed under the influence of an “insane frenzy:” Held, that the evidence was incompetent, and was properly excluded.

      Homicidal mania and its exciting causes and premonitory symptoms described by physicians.
    The prisoner was indicted for the murder of Harmon Cur-non. The indictment contained one count, charging “ that the said Felix Sanchez, with a certain sword, which he, the said Felix Sanchez, in his right hand then and there had and held, the said Harmon Cumon, in and upon the body of him, the said Harmon Curnon, then and there willfully and feloniously, and of his malice aforethought, did stab, cut and wound; giving unto the said Harmon Curnon, then and there, with the sword aforesaid, in and upon the body of him, the said Harmon Gurnon, one mortal wound of the breadth of one inch, and of the depth of three inches, of which said mortal wound he, the said Harmon Gurnon, at the ward, city and county aforesaid, then and there instantly died.”
    The prisoner pleaded “ not guilty,” and the issue thus joined was tried at a Court of General Sessions in the city of New York, before Abraham D. Bussell, City Judge, in June, 1859.
    After several jurors had been called, and either sworn to try the cause, or set aside upon challenges for principal cause, or for favor by the prisoner, John S. Tuthill was called as a juror, and appeared, and was challenged for principal cause on the part of the prisoner, and the challenge denied by the counsel for the People; the said John S. Tuthill having been sworn to testify the truth as to his competency as a juror, testified that he had not formed or expressed any opinion as to the guilt or innocence of the accused, whereupon the challenge for principal cause was overruled. The counsel for the prisoner then challenged him for favor, and it was agreed by and between the counsel for the prisoner and the counsel for the People, that the court should act as trier. The said John S. Tuthill thereupon testified that he had read part of the statements in the papers at the time of the homicide, and had formed a preconceived idea in regard to the prisoner’s guilt or innocence; that he had no bias one way or the other; that his preconceived idea or impression would in no way influence his verdict, but would be governed entirely by the evidence produced on the stand. The court found said challenge for favor untrue, and overruled the same, to which decision the counsel for the prisoner excepted.
    The following are the principal facts proved in the case:
    The prisoner was married to the daughter of the deceased on the 18th of Hovember, 1858. They boarded for five weeks after the marriage, with Mrs. Petrona Saunders, in Grand street, New York, and afterwards with the family of the deceased. On the afternoon of January 4th, 1859, the prisoner went to Mrs. Saunders, and procured a sword-cane he had- left at her house. He pulled out the sword and rolled it up in paper, and took the cane in his hand, saying he was going to have it fixed in Laurens street. On the evening of January 5th, the prisoner and his wife took tea at home, and then went to the house of Mrs. Saunders. They arrived there between six and seven, and soon afterwards the prisoner went out, leaving his wife there. He returned at half-past ten, and after a short time left with his wife; they arrived home at about that time; they went in at the basement door, into the kitchen, where part of the family of the deceased were together; .the prisoner’s wife went immediately up stairs, and the prisoner followed her in five minutes afterwards; the deceased came in soon afterwards with some apples, which his niece, Maria Johnson, put on a plate and took up stairs to a room occupied by the deceased and his wife as a bedroom, which was also used as a parlor; the prisoner and his wife slept in a small room which was entered through that room, and which was lighted from the entry by a small window; the prisoner and his wife, her younger sister Martha, and Maria Johnson, remained together in the parlor until half-past twelve o’clock, singing songs, playing upon the guitar, and eating apples; Maria Johnson and Martha Ournon then returned to the kitchen, where the deceased and his wife were nodding by the fire, the latter having been ironing; and the girls then went up to bed in the attic of the house; the last they heard of the prisoner he was singing and whistling.
    About two o’clock the deceased and his wife went up to go to bed, and found the door of their room locked. Mrs. Cur-non looked through the entry window into the prisoner’s room, and saw him standing there. She asked him three times to open the door, but he made no answer. She then asked her daughter, who was sitting up in bed, to open the door, who replied, 11 He won’t let me.” The mother then forced open the door of the outer room, and as she entered it, the prisoner rushed out of the bedroom and stabbed her with the sword he had procured from the house of Mrs. Saunders. His wife then jumped out of bed and escaped up stairs, the prisoner stabbing her in the shoulder as she passed. The prisoner then turned upon the deceased, and stabbed him with the sword-cane—the weapon being entirely or partially withdrawn, and immediately pushed in again, so as to make really two wounds together, showing a cruciform cut on the outside. The wounds were such as to cause instantaneous death. The mother also escaped up stairs pursued by the prisoner, and she and the prisoner’s wife, and Maria Johnson, fastened themselves in the garret. The prisoner had forced the door partially open, when Martha Curnon, who had gone down stairs during the disturbance, called out from below. The prisoner turned and pursued her, but his light went out, and she hid in the cellar. While there, she heard him say, “ Never mind I’ll catch you and kill you, and kill myself, too.” He remained in the house only some five minutes afterwards, when he left it, went down the alley to the street, slammed the outer gate, returned back into the yard, washed something at the hydrant, and loitered about until near six o’clock in the morning, when he finally left. He escaped from New York, and was subsequently arrested in New Orleans.
    When Anrdsetto Lajeunechette, a witness called by the prisoner, was on the stand, the counsel for the prisoner asked him the following question:

      Q. Did you at any time after the marriage of Sanchez, give him any information of his wife’s infidelity to him; and if so, when?
    This question was objected to by the counsel for the People, and the objection sustained, to which decision the prisoner’s cotmsel excepted.

      Sarah Jane Sanchez, the wife of the prisoner, was called as a witness in his behalf, by consent of the counsel for the People, and after testifying, among other things, that the prisoner had not accused her of having improper intercourse with Lajeunechette, was asked the following question:

      Q. Did you not state before the coroner, when examined at the inquest, that “ last night ” (meaning the morning of January 6th), “ My husband accused me of having improper intercourse with a man named Annisetto Lajeunechette, and threatened that unless I told the truth he would stab me; he accused me of being a prostitute; I was sitting up in the bed crying at the time; my mother knocked at the door on account of his remarks ; I heard her burst in the door ?”
    This was objected to by the District Attorney, and excluded, and the prisoner’s counsel excepted.

      Tibulcio Aguillar, a witness called by the defence, testified, that he saw the prisoner, shortly after the homicide, at his store in New York, and conversed with him about the case.
    The prisoner’s counsel then asked the following question:

      Q. “ Did he, on that occasion, state to you that he had slept with Mrs. Sanchez on the night of the fifth of January ?”
    The District Attorney objected, and it was excluded, and the prisoner’s counsel excepted..
    The prisoner’s counsel then asked the following question:

      Q. Did you ever communicate to Sanchez statements made by Annisetto, or by any other person, in regard to the infidelity of his wife ?
    This was also objected to by the District Attorney, and excluded, and an exception taken by the prisoner’s counsel.

      Benjamin Ogden, M. D., called on the part of the defence, testified as follows:
    I have examined the head of Felix Sanchez; there is a small scar on his head, the result of an incised wound made by some blunt instrument; I found some little thickening of the membrane, which shows that the wound is some six or eight months old; I have made the human mind a special study; there is such a thing as homicidal mania; it is an affection of the brain, in which the patient, in a frenzied state, has a desire to commit violence on individuals; the exciting causes are violent emotions of the mind; I would classify extreme jealousy as one of these; there are many cases of this kind in the books; there are cases where homicidal mania has been developed suddenly, but generally they sho.w some premonitory symptoms; these are, suspicion, jealousy, vascular excitement, fever, red eyes, quick pulse, hurried manner; in many cases of insanity, a person’s best friends are supposed to be his worst enemies.
    On his cross-examination, he said: I called at the suggestion of the District Attorney, in company with Dr. Eunney; we had interviews of two hours each to examine as to his sanity; the counsel for the prisoner was there at the time; in the course of that examination, I came to the conclusion that he was sane.
    Being further examined by the prisoner’s counsel, he said: A man who has his reasoning faculties and the control of himself, is sane; I heard the testimony as to the homicide.

      Q. Judging from your knowledge of Sanchez’s temperament, and the facts and circumstances of this case as you have heard them described in the testimony, do you believe that at the time of the homicide Sanchez was mentally capable of forming a premeditated design to take away life ?

      A. I can form no opinion; I have doubts on that subject.

      Moses H. Munney, M. D., called by the prisoner’s counsel, testified as follows: I am resident physician of the Lunatic Asylum at Blackwell’s Island; I have heard part of the testimony of Mrs. Sanchez, and of her mother, and of one or two other witnesses; I examined Sanchez on the 6th and 9th of this month, perhaps about three hours; as a general principle, where a homicide has been committed, and it can be determined that there is no motive, I should consider it evidence of homicidal mania; but it is extremely difficult to determine the absence of all motive.

      Q. Judging from your knowledge of Sanchez’s temperament, and from the facts and circumstances of this case, as you have heard them described in the testimony, do you believe that at the time of the homicide he was mentally capable of forming a premeditated design to take away life ?

      A. It is a difficult point to decide; if the inception of the idea was immediately followed out, there could of course be no premeditation.

      Q. Have you doubts as to that subject in this case?
    To this question the counsel for the People objected, and the objection being sustained, the counsel for the prisoner excepted.

      The witness being cross-examined, testified as follows: Dr. Horwitz was present at the second examination; the prisoner’s counsel was also present, and the Assistant District Attorney was there during a part of the time; he remained there until the examination reached a point at which the prisoner’s counsel decided to advise his client to answer no further questions in his presence; he then withdrew; on this examination I found nothing to convince me of his insanity; I saw no evidence that he ever had been insane.
    The jury found the prisoner guilty.

    The counsel for the prisoner then moved an arrest of judgment on the following grounds, to wit:
    1st. That the indictment does not show upon what part of Harmon Curnon the mortal wound was given.
    2d. That there is a variance between the indictment and the evidence; the indictment setting forth but one mortal wound, while the evidence shows that there were two.
    The court denied the motion; to which decision the counsel for the prisoner excepted.
    Judgment was then pronounced by the court, and the case was brought to this court by writ of error.

      William Henry Anthon, for the prisoner.
    I. The statute enlarging the jurisdiction of the Court of General Sessions of the Peace of the city and county of New York, provides that in all cases of conviction in said court for a capital offence, or one punishable as a maximum punishment, by imprisonment for life, a writ of error, with a stay of proceedings, shall be a matter of right, and that the appellate court may order a new trial “ if it shall be satisfied that the verdict against the prisoner was against the weight of evidence, or against law or that justice requires a new trial, whether any exceptions shaE have been taken or not in the court below.” (Sess. L., 1855, ch., p. 337, 613.)
    H. The indictment is defective in this, that it does not state on what part of the body of Harmon Curnon the mortal wound was inflicted, and in this, that there were two mortal wounds, instead of one, as stated.
    1. Under the Constitution of the State, a party must be indicted before he can be tried for a criminal offence (with certain exceptions); and under the provisions of the Bevised Statutes he is entitled to a copy of the indictment. (Const., § 6, 3d B. S., 1020, 5th ed.)
    2. The indictment, possession of a copy of which the law deems so essential to the prisoner, must describe the offence charged, in all its essential details, in order that the defendant may clearly understand what he is called upon to answer— may frame his defence accordingly, or may be enabled to plead with accuracy auterfois acquit or auterfois convict.

    3. Where the death was by a wound or stroke, the indictment must show with certainty to what part of the body the violence was applied. (Hawk. P. C., book 2, ch. 23, § 82, p. 178; 2 Hale P. C., 185, 186; 1 East., 342; Long's case, 5th Co., 121, cited in Hawk., 178; 1 Russ, on Cr., book 3, § 678, p. 677; 1 Stark. Cr. Pl., 86; 3 Chitty, 735; Whar. on Hom., 272; Arch. C. P., 384; Train & Heard, Prec. of Indict., 248; Whar. Prec., Barb. Cr. L., 54.)
    4. Uo omission of any of those circumstances which the law requires to be expressly set forth, can be aided by the conviction of the defendant, and such omission may properly be brought to the notice of the court by a motion in arrest of judgment. (Hawk. P. 0., book 2, ch. 23, § 86, p. 179; Whar. Or. L., §3043 ; 2 Black., 270.)
    5. The provisions of the Bevised Statutes (3 R., S., 5th ed., 1020, §4), in regard to defects of form in indictments, do not meet this case, this being an error of substance. This distinction may be clearly seen by examining the cases of errors of form only. (2 Seld., 50; 3 Park. Cr., 330; 2 Id., 208; 8 Barb., 547; 3 Id., 470; 5 Denio, 76; 12 Wend., 425.)
    III. The court below erred in overruling the challenge for favor, in the case of the juror, John S. Tuthill, and the exception was well taken.

      1. The juror testified that he had read the statements in the papers, and had not formed or expressed an opinion, but that he had formed apreconceived idea or impression as to the prisoner’s guilt or innocence.
    2. The fact that he had formed and expressed an opinion, would certainly exclude him under the decisions in Cancemi v. The People (2 Smith, 501), The People v. Freeman (4th Denio, 9).
    3. A preconceived idea or preconceived impression is even stronger than an opinion, according to the best lexicographers. (Webster: Idea, impression, opinion.)

    4. The existence of a preconceived idea or impression in the mind, denotes a prejudiced state of feeling, disqualifying the juror, under the rulé laid down in the Cancemi case, and at variance with the principle there enunciated: “That the testimony as to the juror’s state of mind is to be construed with liberality to the defendant, in the humane spirit which pervades our criminal laws, and the rules of their administration.” (The People v. Cancemi, 2 Smith, 501.)
    TV". The court below erred in not allowing the question to be put to Sarah Jane Sanchez as to the facts to which she had testified before the coroner.
    1. The witness was the wife of the prisoner, who was examined by consent; it was supposed that she would swear to the same facts to which she had testified before the coroner, and which would have aided the defence by showing the discovery of her adultery, which produced, as is contended, the insane frenzy under which the prisoner acted; instead of which she swore to a state of facts diametrically opposite, thus taking the defence by surprise.
    2. It is competent for a party to prove that a witness whom he has called, and whose testimony is unfavorable to his cause, had previously stated the facts in a different manner. (1 Greenl. Ev., 492; 2 Bull. N. P., 297; Alexander v. Gibson, 2 Camp., 555; Lowey v. Jolliffe, Wm. Blackst., 365; Richardson v. Allen, 2 Stark. R., 334; Ewer v. Ambrose, 3 B. & C., 746; Friedlander v. London Ass. Co., 4 B. & Ald., 195; Lawrence v. Barker, 5 Wend., 305; Bradley v. Ricardo, 8 Bing., 57; Jack

      son v. Leek, 12 Wend., 105; Stockton v. Demuth, 7 Watts, 39; Brown v. Bellows, 4 Pick 179; Rice v. N. Eng. Mar. Ins. Co., 4 Pick., 439.)
    3. The subsequent admission of the testimony of the witness before the coroner in evidence, did not cure the error excepted to; if she had been compelled to account upon the stand for the discrepancy between her testimony on the two occasions, it could not have failed to elicit the truth in regard to what took place between her and her husband at the very instant preceding the homicide, which produced the temporary frenzy under which he acted.
    4. Without such testimony, forming strictly a part of the very res gesta, the case is entirely without evidence showing any cause or motive for the act.
    5. The witness had given affirmative declarations injurious to the prisoner, inconsistent with her previous declarations, which were favorable to him.
    6. The question was certainly proper, as tending to refresh the recollection of the witness.
    V. The court below erred in not allowing the question to be put to Annisetto Lajeunechette as to his informing Sanchez of his wife’s infidelity to him.
    1. The theory of the defence being that the act was committed in an insane frenzy, which would, at least, reduce the offence from murder to manslaughter, the causes which produced that frenzy, were, properly, matters of evidence in regard to his condition of mind, in the same manner as intoxication, or any other condition of the man depriving him of the power of knowing what he does, may properly be inquired into in reference to the design with which the act was perpetrated. (The People v. Eastwood, 4 Kern., 562; Swan v. State, 4 Humph., 136.)
    2. The fact that the prisoner killed the innocent and unoffending father, with whom he had no quarrel, and against whom he bore no malice, affords additional support to the argument, that the act was committed in an insane frenzy, caused by the sudden communication of his wife’s infidelity.

      VI. The court below erred in not allowing the question to be put to Tibulcio Aguillar—as to his informing Sanchez of his wife’s infidelity to him.
    VII. The court below erred in not allowing the question to be put to Tibulcio Aguillar, as to previous statements of facts, made by Annisetto Lajeunechette, differing from those made by him on the stand, by which the defence was taken by surprise.
    VIII. The court below erred in not allowing the question to be put to Dr. Eanney, as to his doubts in respect to the prisoner’s mental capacity to form a premeditated design to take away life.
    1. This was a question involving the prisoner’s state of mind at the time of the homicide, and was based as well upon a physiological examination made by the witness as to his mental temperament, as upon the facts of the case. It bears directly upon the question, what effect a strong exciting cause would produce upon his mind, and upon the question, whether the homicide was murder or manslaughter.
    2. The witness was an expert, who had made a careful examination as to Sanchez’s state of mind, and had heard part of the testimony.
    3. It was decided in The People v. Freeman (4th Denio), that if there be a doubt as to a prisoner’s sanity, he is not in a fit state to be put upon his trial, A fortiori then, doubts of experts as to the mental capacity of a prisoner to form a premeditated design at the time of the homicide, ought to go to the jury.
    4. The course of examining experts, both as to the results of their own interviews with the prisoner, and upon the testimony evolved in the trial, in respect to the question of insanity, is sanctioned in the following cases: Lake v. The People, 1 Park. Cr. R., 495; The People v. Thurston, 2 Park. Cr. R., 49; see also the Answer of the English Judges on this point, cited in 3 Greenl. on Ev., § 5.
    5. The defence had introduced this course of examination, the prosecution making no objection, and it was not competent for the prosecution to interrupt it, after once assenting to it.

      Nelson J. Waterbury (District Attorney), for the People.
    1. The^test of the sufficiency of an indictment is whether or not it describes the offence charged so as to constitute the crime, as defined by law, and to this end every particular or feature of the crime, as so defined, must be set forth with precision, certainty and consistency, and the whole must fully describe the offence. If this is done so as to present a complete description of the offence, as defined by law, or, in other words, so as to insure “ the formality of the indictment,” the indictment is good, and neither an omission, in a case of homicide, to allege any of the means by which the crime was accomplished, as, for instance, the manner of holding the weapon, nor any deficiency in the description of the wound, nor a variance between the averments of the indictment and the proof to sustain it, unless by the variance the particular species of the crime proved, though it may nevertheless be of the same general character, differs from that described, or unless the accused is misled thereby, is fatal to a conviction. (Com. v. Haines, 6 Penn. Law J., 232.)
    1. Means of death. If the variance does not show a difference of operations in the means, it is immaterial. Proof of a wound by a sword, or perhaps, in this State, by a pistol, will support an averment of one by a knife; and a blow by a stone, an averment of one by a stick; but an averment of a wound by a stick or stone, will not permit proof of one by a knife or pistol. So, also, proof of death by one kind of poison, will support an averment of a different kind of poison, though proof of death by starving will not support an averment of poisoning. (R. v. Briggs, 1 Moody C. C., 322; 2 Hale P. C., 185; 1 East. P. C., 341; 3 Hawk. P. C., 330, § 84, cap. 25; Arch., 484, 485; Whar. Or. L., §§ 1059-62; 3 Chitty Cr. L., 734-736; 1 Stark. C. P., 91, 92; 1 B. & B., 473; 1 Buss, on Cr., 467; Rose. Cr. Ev., 577, 578; People v. Colt, 3 Hill, .432; 5 Car. & P, 128; 7 Car. & P., 788.)
    2. Location of wound. The widest variance between the indictment and proof, in this respect, is immaterial. The wound may be described on one part of the person, and proved to be on an entirely different part. It may be laid as upon the right temple, and proved to be upon the left; or as through the heart, and proved to be through the head. (2 Hale's P. C., 185, 186; 1 East. P. C., 342, 343, § 110; Arch. P. L., 485, 486; Whar. on Hom., 274; Dias v. State, 7 Blackf., 22; Lazier v. Com., 10 Grat., 715.)
    3. Dimensions of wound. These need not be averred at all, but if described, any variance is immaterial. (Rex v. Mosely, 1 Moody C. C., 98; Lex v, Tomlinson, 6 C. & P., 370; Lazier v. Com., 10 Grat., 708; 1 Lewin, 177; Stone v. State, 12 Scammon, 326; Bennett & H., 58; Whar. C. L., 1069.)
    II. The location of the wound is described in the indictment with sufficient precision. It was held in past centuries that the spot where the wound was made must be so described that it could be pointed out from the description by the finger; but this rule has been gradually relaxed in the progress of legal science, until now, in England, by statute, a simple allegation of the fact of the murder is sufficient. (Waterman’s Arch., 206.)
    III. The use of the word “body,” in pleadings, to describe a particular part of the human system, has been fully established by authority and precedents. (Hawk. P. O, cap. 23, § 80; Long’s case, 5 Coke R., 121; Chitty’s Cr. L., 3d vol., 736; Train & Heard’s Prec. of Ind., 268; Rex v. Mosley, 1 Moody, 103; People v. Restell, 3 Hill, 291; People v. Stockham, 1 Park. C. R., 424; Lake v. People, 1 Park. C. R., 498, 499; State v. Bullock, 13 Ala., 413.)
    IY. If the use of the word “ body ” as the location of the wound, was a demurrable defect, it would be one of form only, and would, especially after verdict, be cured by the statute of jeofails. (2 B. S., 728, § 52; People v. Powers, 2 Seld., 50; People v. Phelps, 5 Wend., 18-20; People v. Warner, 5 Wend., 271; People v. Rynders, 12 Wend., 431, 432; Briggs v. People, 8 Barb., 550, 551; People v. Golden, 3 Park. C. R., 330; People v. Treadway, 3 Barb., 470.)

      V. At common law, also, it has been held that a verdict will not be disturbed by reason of an uncertain, or even repugnant statement of the offence in the indictment. (Penn v. Bell, Arch. Pl., 486; Addison, 168, et seq.)

    YI. Humbers in indictments are unimportant. Whatever may be alleged, one mortal wound must be proved, and no more is necessary. If two are proved, the case, certainly, is not weakened.
    VII. If the objection that two wounds are proven, when only one was alleged, were material, it could not be taken advantage of upon a motion in arrest of judgment, which is founded solely upon the record. (Rex v. Spiller, 5 C. & P., 334; Stone v. People, 2 Scam., 326.)
    VIII. Objections to indictments founded upon a specification in respect to wounds, are only available on a motion to quash. (Stone v. People, 2 Scam. 326; Rex v. Spiller, 5 C. & P., 334.)
    COMPETENCY OF JUROR.
    I. Ho exception could properly be taken to the competency of the juror, Tuthill. He had been challenged for principal cause, been found competent, and been so declared, without exception. The challenge for favor being, by consent, tried by the court, and there being no objection to any question put to the juror, the finding of the court, being solely upon a question of fact, was final, and not subject to exception or review. (Ex parte Vermilyea, 6 Cow., 555; People v. Vermilyea, 7 Cow., 108; The People v. Bodine, 1 Denio, 308, 309; Freeman v. The People, 4 Denio, 34.)
    II. If an exception was allowable, as upon a question of law, it could not be sustained, for the juror was clearly competent. A “ preconceived idea,” which the juror subsequently explained to be, as meant by him, synonymous with “ impression,” but which by proper construction is merely a “ notion,” does not disqualify. The rule is well settled, that the action of the mind of a proposed juror, must have extended to the formation of an opinion, to render him incompetent. (People v.
      Honeyman, 3 Denio, 121, et seq.; Freeman v. People, 4 Denio, 34, 35; Cancemi v. People, 16 N. Y. R., 504, 505.)
    EXCEPTIONS TO EVIDENCE.
    I. The exception to the exclusion of the question propounded to the witness, Annisetto Lajeunechette, was not well taken.
    1. Testimony in relation to the infidelity of the prisoner’s wife, if any were possible, could have no legal bearing upon the question of his guilt in the murder of her father.

      2. If proof of a communication to the prisoner, impeaching the fidelity of his wife, could have had any proper influence in determining the grade of the offence for which he was tried, the question should have been limited to a period of time immediately preceding the murder. (R. v. Fisher, 8 Car. & P., 182; R. v. Kily, 2 Car & Kir., 815.)
    II. The refusal of the court to allow the witness, Sarah Jane Sanchez, to be examined on behalf of the prisoner relative to her testimony at the coroner’s inquest, was manifestly just and proper.
    1. The witness was called and sworn for the prisoner, and no rule is better settled than that a party is not entitled to impeach his own witness by any testimony, having only that object. (Cow. & Hill's Phil. Ev., n. 604, and cases there cited; 1 Green., § 442; Ewer v. Ambrose, 3 Barn. & Cress., 749, et seq.)

      2. The refusal to allow the proposed question, worked no injury to the prisoner, because all the testimony at the coroner’s inquest was put in evidence by consent, and if the question had been wrongly excluded, the error would be cured by the fact that the previous evidence of the witness was subsequently read to the jury. (Stephens v. People, 19 N. Y. R., 570, 571.)
    3. The testimony sought by the question was wholly immaterial to the issue to be tried.
    4. If the object of the question was to refresh the recollection of the witness, its allowance was within the discretion of the court, and no exception can properly be taken to its exclusion.
    III. The question propounded to Dr. Moses H. Ranney was entirely unwarranted, and the exception to its exclusion is not well taken.
    1. The question was put upon direct examination, and it was necessary to prove opinions and not doubts,. Jurors may have doubts upon the testimony given, but witnesses should not state doubts, or else we might have doubts piled upon doubts.
    2. If the opinion of the witness was desired, that could only be asked for upon a given state of facts, and, not upon part of the testimony, as heard by him, to which he may have attached a degree of credit which the jury would not, or which he would not, if he heard the whole. (Lake v. People, 1 Park. C. R., 495; 3 Oreen. Pv., § 5; McNaughton's Case, 10 Clark & Fin., 210; Vide 2 Green. Ev., n. to § 373; 1 Mood,. & Rol., 75; Com. v. Rogers, 7 Met., 500.)
    3. The question was not confined to the matters upon which the witness was an expert, but the subject of it involved both legal and medical science; and therefore the question could not be put in any form unless its scope was restricted.
    4. The point as to whether or not a premeditated design to take life, can instantaneously precede a fatal blow, is one of law, and in respect to this, the answer of the-witness to the question immediately previous, shows that he was at variance with the Court of Appeals. (People v. Clark, 3 Seld., 394.)
    IY. The question propounded to the witness Tibulcio Aguillar, was manifestly wrong, and was properly excluded.
    1; If the object was to impeach the credibility of the previous witness, Lajeunechette, he was a witness for the prisoner, and it could not be done.
    2. If the object was to impeach his testimony, it would have been necessary to lay a foundation by asking .Lajeunechette if he had made such a statement. (Palmer v. Haight, 2 Barb., 210; Everson v. Carpenter, 17 Wend., 429; Pendleton v. Empire Stone Dressing Co., 19 N. Y. R., 13.)

      3. If the object was not to impeach Lajennechette, the evidence was hearsay, and therefore inadmissible.
    4. More especially the virtue of the prisoner’s wife was not to be impeached by the braggart boasts of a third party, made to another stranger; and there was not a single word of evidence during the whole trial throwing even a doubt upon her fidelity to him.
    5. The evidence sought was, under any circumstances, immaterial to the issue to be tried.
    6. If it was material, and otherwise allowable, it could not be proper unless connected with a further statement or other proof that the prisoner had knowledge of the fact previous to the murder.
    V. The question proposed to the witness Tibulcio Aguillar, was properly excluded.
    1. The testimony sought was entirely hearsay.
    2. It was, in any point of view, wholly immaterial to the issue to be tried.
    3. If it was material, it would have been necessary to limit any such statements as those sought, to a period of time immediately preceding the murder.
   By the Court,

Roosevelt, J.

The prisoner, Sanchez, was convicted, at a Court of Sessions, of the crime'of murder, in taking the life of one Curnon, his wife’s father, on the 6th of January last, at 154 Sullivan street, in the city of New York, by stabbing him with a sword through the lungs, in a manner which, according to the testimony, must have produced instantaneous death.

Before the execution of the sentence, a writ of error was sued out by the prisoner, to bring the proceedings into the Supreme Court for review, in pursuance of the recent statute in relation to capital convictions in the Court of Sessions of this city, which gives to parties in such cases a right to a new trial, if the Supreme Court shall be satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below. (Laws 1855, 613.)

Several exceptions, however, were specifically taken at the trial, and are still insisted on as grounds for reversal.

It was contended, among other objections, that the indictment was defective in not specifying the part of the body in which the wound was inflicted, and in stating only one wound to have been given, instead of two.

The object of an indictment is to give to the prisoner reasonable notice of the crime with which he is charged, so that he may be enabled to prepare his defence, and also to protect him, if necessary, from a second trial for the same offence, by showing from the record the identity of the two accusations.

This indictment describes the stab as iSiade by a sword “ in and upon the body ” of Curnon, inflicting upon his body “ one mortal wound, of the breadth of one inch, and of the depth of three inches,” of which he “ instantly died.” The term body, in such a connection, clearly means only that part of the human frame to which the head and limbs are attached. Of what consequence is it, whether the wound was given to the left side or to the right side, below the fifth rib or above the fifth rib, or whether there were two wounds or one, if both or either were mortal? That these minute particulars are not matters of substance, is evident, from the well established rule that, if averred one way in the indictment, they may he proved another way on the trial. To test the objection, let us suppose that the wound, instead of three inches in depth, had turned out to be two inches and three-quarters, would the legal consequence have been an acquittal ? Even the musty records of antiquity furnish no authority for such a proposition. If they did, we should not feel ourselves compelled to follow it. The common law is a progressive science, and one of its leading attributes is adaptation to the circumstances and spirit of the age, and to the common sense of the people, of whose actions it is made the rule, and of whose will it is the presumed exponent. The statute, too, admonishes us to disregard the mere cobwebs of-former days. “Ho indictment shall be deemed invalid, ¿te., by reason of any defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant.”

That the defendant did not consider himself prejudiced, or likely to be prejudiced, by the alleged uncertainty of this indictment, is shown by the fact, that instead of demurring, he went to trial upon it, and had no consciousness of the supposed error until after the verdict of guilty had been pronounced, and he was instructed by his counsel to move in arrest of judgment.

There are many objections which may be taken before, that cannot be taken after verdict. And the law on that point is the same in criminal as in civil cases.

The next suggestion relates to one of the jurors, who, being challenged, said that “ he had read part of the statements in the papers at the time of the homicide, and had formed a preconceived idea in regard to the prisoner’s guilt or innocence, but1 had no bias one way or the other; that his preconceived idea or impression would in no way influence his verdict, but would be governed entirely by the evidence produced on the stand.”

The court below admitted the juror to be qualified, and it is quite obvious that if jurors are on such grounds to be rejected, it will be impossible at the present day to administer justice in cases sufficiently exciting to inspire a newspaper paragraph. Every male adult, over twenty-one and under sixty, “ in possession of his natural faculties, and not infirm or decrepit, of sound judgment and well informed ” (and no other can be a juror), must read the news of the day, and must, from such reading, form some “ idea orimpression.” If an idea or impression, therefore, is to be a disqualification, no competent juror, at the present time, can be found; for no man, in a land of newspapers, can be “ well informed ” without reading; or, with a “sound judgment,” can read without receiving an “idea or impression.”

The case of Gancemi, when last under review in the Court of Appeals, involved two propositions, one relating to the alleged improper allowance of a juror, and the other to the erroneous charge. All the judges agreed that there was error in the charge, but all did not agree, nor was it necessary to the result that they should, that the juror was improperly admitted. In other words, all agreed in the propriety of a new trial, some on one ground, some on the other, and some on both. The decision, therefore, can hardly be considered as a controlling authority on either of the questions referred to—certainly not to support the proposition for which it is cited in the present case. In its strongest aspect, it went no further than to hold that a juror who had both “formed and expressed an opinion,” which was so fixed that it would require affirmative evidence to dislodge it, was not qualified to sit as an impartial umpire between the people and the prisoner. ° The case of Cancemi, therefore, although it illustrates, does not dispose of that of' Sanchez, and we think the principle contended for will be found so embarrassing in practice that it should rather be restricted than extended.

To understand the other points discussed by the prisoner’s counsel, a brief statement of facts is necessary: Sanchez, it appears, only a few weeks previous to the homicide, had been married to Curnon’s daughter, and had taken up his residence in the same house with his father-in-law. The family consisted of Mr. and Mrs. Curnon, their two daughters, and Sanchez. On the night in question, he had possessed himself, for what reason does not appear, of Curnon’s sword-cane, or rather of the sword drawn from the cane, and, with his wife, was in the room of his father-in-law, the old people being below in the basement. Mrs. Curnon says:

My husband and I proceeded up stairs to go to bed, and found the door of the parlor, which was the room in which my husband and I slept, locked; I saw Sanchez standing by his bedside, asT'looked in through the small window at the head of the stairs; I said, “ Feely, open the door,” which I repeated three times, but he made no reply; I then spoke to Sarah Jane, who was sitting up in the bed, and said, “ Sarah Jane, open the door,” to which she answered, “ He won’t let me I put my hand to the door and gave it one shove, and it flew open, which forced me into the room; my husband must have followed me; there was no one there but Sanchez, who bounded out of the bedroom as I came in the door; he rushed upon me, and stabbed me with a sword which he held in his hand; then Sarah Jane jumped out of the bed and passed him; he turned quick and gave her a stab in the shoulder; he then turned upon my husband; I saw my husband’s hand raised; I saw Sanchez make a plunge at him with the sword-cane ; I saw but one blow; in the morning I saw my husband lying dead on the floor, &c.

Here would seem to have been, in the common acceptation of the term, no “premeditated design to effect the death of the person killed,’[¡but still the act may be murder. Killing, says the statute, shall be deemed murder “ when perpetrated by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. Whoever recklessly uses a murderous weapon, is, in law, responsible for the consequences. The law does not regard the want of inadequate motive as a mitigation or justification, or as evidence of that species of insanity, which makes the perpetrator an irresponsible machine. Mere jealousy, like hatred or malice, may explain, but cannot excuse, the wanton disreregard of human life. The object of penalties is to compel men to control their depraved minds, and to teach them not to yield to frenzied passion. In this view, what defence could it be to say that some person had told the prisoner—falsely, as appears—that his wife had been unfaithful? The rumor communicated to the injured, husband might inflame passion, but, in the case of a “ dangerous weapon,” would have no tendency to show any absence of “ design to effect death,” so as to reduce the crime from murder to manslaughter. More especially was the inquiry irrelevant when the person killed, instead of being the alleged adulterer, was the father of the wife.

Is a husband, on being told of his wife’s supposed infidelity, to seize a dagger, and on the instant commence stabbing every person that comes near him, and then to quote the monstrous atrocity of the act, in connection with such rumor, true or false, as evidence of insane frenzy? We think not—and that the question objected to by the public prosecutor, although it might as well have been allowed, was lawfully overruled, and that no injustice has been done by its exclusion.

The same remark applies to several other questions-which were excluded by the court below.

A point has been raised as to the testimony of the prisoner’s wife, who, by consent, was permitted to be swqpiSion his behalf, but who, when sworn, stated that her husband did not accuse her of any improper intercourse. This statement being sought to be contradicted by. her answers before the coroner, the District Attorney objected to the question, on the ground that a party cannot impeach his own witness. Such, undoubtedly, is the rule of law. There was, therefore, no legal error in the exclusion. And as to any supposed injustice, it was sufficiently obviated by the subsequent admission of all the proceedings had before the coroner, and among them the following statement:

My husband accused me of having improper intercourse with a man named Annisetto Lajeunechette, and threatened that unless I told the truth he would stab me; he accused me of being a prostitute; I was sitting up-in bed crying at the time; my mother knocked at the door on account of his remarks; I heard her burst in the door.

So that if the defendant’s own witness had in fact contradicted herself, both the versions given by her were submitted to the jury, to be weighed as they might deem proper. Which of the two they believed does not appear; but neither, it is clear, warranted, or was deemed to warrant, a verdict of acquittal or of manslaughter.

The result is:

First. That the indictment, in the particulars excepted to, was sufficient, or that its defects, if any, were merely formal and welfe cured by the statute of amendments and by the verdict.

Second. That the juror objected to, being impartial, within the meaning of the law requiring jurors to be persons “ of sound judgment and well-informed,” was properly allowed to be sworn.

Third. That whether information of his wife’s alleged infidelity was communicated to the prisoner or not, and whether such information, if communicated, was true or not, was an immaterial inquiry, as it in no way tended to justify the homicide, or to ^p?e its grade from murder to manslaughter.

Fourth. That neither the evidence excluded, nor the evidence received, had any tendency to show legal insanity, or to exempt the perpetrator of the homicide from responsibility for his acts.

Fifth. That the heat of passion, where there is a design to effect death by a dangerous weapon, is no excuse in law, or palliation of the act, although not premeditated and not directed against any particular individual, if the act evinces a depraved ■ mind and a reckless disregard of human life.

Sixth. That as, therefore, there was no legal error in the rulings of the court below, and tested by the statute “of crimes punishable with death,” no injustice in the verdict of the jury, the application for a new trial must be denied, and the judgment affirmed.

Judgment affirmed.

         Sed vide, Darry v. The People (2 Park. Cr. R., 606), as to the Inapplicability of that subdivision of the section to a case of homicide resulting from a direct assault o£ one person upon another.