*1 Pеople oe the State oe Y.M. Stokes Statement of case. The defendants, so, notice to do refused to upon produce The them. defendants truth knowing omitting inference warranted the evidence should be speak, every them. some of a There was evidence indulged against joint contract should be defendants, the judgment with costs. affirmed,
All concur. affirmed.
Judgment Edward S. Plaintiff in Error, v. The Stokes, of the State of New York, Defendants in Error. power legislature It is changes within to make such in the law respecting procuring ’impanneling may mode of a it expedient, only hy deem preserve' limited obligation constitutional impartial right hy jury. of trial an challenges jurors 475,- The act “in relation (chap. in criminal cases” 1872), provides opinion impres- Laws substance that an or guilt pri- sion as to circumstances or as to the innocence ground soner shall not a challenge principal canse, he sufficient provided juror impartial declares on oath that can he render an ver- n diet, provided the court he that he satisfied does entertain not such present opinion verdict, a infringe upon would influence his does not impartial jury, right to an is constitutional. The rales of in or details of changed evidence a criminal trial he prior subsequent offences, provisions as to as well as to and the applicable upon statute above mentioned are of an trial offence perpetrated prior charged passage. to have been to its Where, upon murder, trial of an indictment for given evidence had been question making perpetrated it for the whethеr the act hy was defending against attempt part himself on the bodily great murder or to inflict some him,—Held, barm deceased against pri- that evidence of violent threats made the deceased time proper, although soner short before occurrence such prisoner. not communicated to the threats were asked, witness cross-examination, A material for the things belonging she had whether taken to her she when left a place prosecution permitted where she had at service. give showing Held, that her error; answers untrue. a collateral matter the was hound the answers. grand jury, of a tending minutes to show that an indictment oe Stokes v. oe N". Y. *2 of case. Statement prisoner, complaint against the of the deceased had been ordered prosecution part and of the received. Ho offered in evidence on proof knowledge had given tending to was show received; Held, improperly evidence was that it such action. that the motive,in tendency knowledge, a could have no to show absence only tending the commission of and that its effectwas as another show prove. right by accused, had no crime implication, charged jury, substance, legal
The court in from / proof killing, the fact of the in the absence of the circumstances of its ) perpetration, murder, was that the act and cast was showing Held, error; the burden of that it was not. that under the classifying deprived statute homicide mere that one has of / by utterly life the act another fails to show the class to which the belongs. homicide The rule that an error committеd a trial be overlooked when party complaining prejudiced thereby applicable was not only in by possibility produced injury. cases where the error could have 10, 1873; (Argued May 10, decided June
Ebbob 'to the General Term of the Court in the Supreme first to review a judicial department judgment, affirming of the Court and in and Terminer for the judgment Oyer of Hew entered York, verdict county convicting in error in crime of murder the first plaintiff degree. in error was indicted of the plaintiff by grand jury and for the Terminer, York, and of Hew on
Oyer county the 12th 1872, for the murder of James day Fisk, January, Jr., the 6th at the 1872, on Grand Central day January, in the Hotel, of Hew York. city
In in error seven 1872, interposed February, plaintiff : forth special indictment, setting pleas First. That there was of the General Sessions grand at the time of the hill existence finding the former was Oyer Terminer; grand jury existence. only legal grand Terminer Second. Oyer grand jury inasmuch who Judge legally impanneled, Ihgbaham, at the time were sworn returned therein presided at filed, the time was was also one of indictment, Term.. General judges y. oe the State oe 1ST. Y. Statement case. That an order of the General Term, Third. Ingraham D. P. 1869, November, Judge appointed December, and Terminer a Court of Oyer 1871; hold he 1870, April, subsequently, appointed one of the of the General Term. Governor permanent judges Is to the same substantial effect as the third Fourth. plea. time this That at the bill of indictment was found Fifth. Terminer, the Oyer only regular grand jury that of the General Sessions. *3 was session The coroner was bound to return the indictment to Sixth. of criminal have been record, the next court term either General оf Sessions Oyer the February Terminer, on second of 1872. February, beginning Monday Seventh. That was grand jury illegally irregularly organized. said the district demurred six-of these
To pleas attorney his and to the seventh he the court sustained demurrer, tried The issue thus came on to be issue. joined joined held in a Court of and Terminer 1872, at May, Oyer the evi- York. The after court, New hearing city allow the dence, facts, refused to pass upon jury them, directed but protest exception against find a In verdict for error, people. plaintiff into error 1872, plaintiff again brought May, and Terminer and directed to to the plead Court Oyer an addi- counsel, his He, interposed indictment. through forth the facts proven upon plea, setting tional special raised the seventh The court over- the issue plea. trial and directed thе the same plead ruled directed a do, which he court indictment, plea declining to be recorded the clerk. guilty the defendant on trial under the In June, 1872, placed and were indictment; jury disagreed discharged said 15th the defendant December, 1872, On the court. day on trial returned placed guilty again ver.dict murder the first degree. People 167 Y. oe FT. «. oe State case. Statement far as so trial, pertinent facts appearing in the sufficiently opinions. discussed, appear questions John, Brain and Cephas R. Dos Passos Tremain,
Lymain the court to error for in error. It was for the erd plaintiff conceded, fact of the charge murder was pri that was not the burden of proof v. Cr., 619; A Wilson, Park. v. soner. (People 3 463; Hawkins, 66; Gray, 16 N. Hone v. McCann, Y., Webster, Trial Prof. Cr., 235; 2 Park. Robinson, v. Cas.; Hurd’s York, v. 178; N. Comm. Rev., Ldg. A. 72 1 Hale 325, note; 2d Metс., 109; ed., 9 Lim., Const. Cooley 1 Hawk 47; C., 3 Com., 198; Ins., 4 Blk. Coke’s 425; P. C., 1 22; 1 East P. Browne Foster, 256; C., 215; 31, 3; Appx., § 1 v. Lewis, 282, Penn McFall, Addis., 257; id., Penn note, O'Hara, 4 Comm. v. 283; 21, 26; Sharswood’s Black., Russ, 1 148; Crime, 482, cited Whart. on note; Dig., 1 Ash., Crome, Com. v. Gross, 281; Case, Com.v. Virg. Bob., Dal., 145; v. Turner,
10; Respublica Wright, *4 State, v. 3 v. 10 20; 283; State, id., 551; Dale Yerg., Coffee v. 3 Bratton v. 10 State, 439; State, 103; Dains Hump., id., Park., 136; 2 10 606; Y., v. N. v. Darry People, Fitzgerald Russ, 1 id., 413; Crime, 571; on v. Sulli 37 People, People Clark, 1 Seld., v. 3 van, Park., 347; 385; v. People People 1 Sullivan, id., 396; Austin, Park., v. v. 154; People People 10 Johnson, id., 291; 136; v. N. Maher v. Dury People, Y., Mich., 217, 218; 6 v. 8 Abb. People, People Perry, S.], [N. 1
34; Crim. v. 6 593; Comm., Rand., Colby L., Whifford 594; 2 v. 1 725; Case, Gratt., Hill's Comm., Grant’s Kelly 3 Case, Ev., 377; Ev., Stark on Greenl. on 29 492; ; People § 594; 1 Edmunds’ Select Divine, Cas., v. v. Wynhamer People, Wend., 159, 421, N. v. 14 Y.; Enoch, 424; 15 Comm. Cush.,
v. 5 3 L. Webster, 305; 1, 13; Monthly S.], Mag. [N. L. J., 497; 2 West. U. S. U.S. v. 487; Monthly Mag., Mungs, R. Comm. v. 435,439; 7 L. Gard Monthly S.], [U. [Boston] What, J., 11 4 Penn. L. on ner, 438; Gray, 156,157; Hom., 461; 1084; Whart. Cr. Fonts v. 8 Ohio 460, L., State, St. § of 1ST.Y.
168 v.
Statement case. 98; L., Am. Cr. 6th ed., 925, Whart. Dale S.], note; § [N. 10 1 State, 351; State, v. v. Anthony 265 Yerg., Meigs, 195-212, v. 3 This error Hill, et affords People Wilеy, seq.) abundant trial. Rastatt, for new v. Wilson 4 T. ground ( R., 3 753; T., cited, G. & W. on N. cases 774, 800, 775, 11 v. 768; 83; Benham v. Wend., Cary, Hastings Bangor, H. 18 Troxdale v. 9 P., Me., 436; State, James 411; Hump., v. 193; B. Chrisman v. 4 Langdon, Mon., id., 7 Gregory, 474; Conn., 356; 4 Lamb v. C. R. R. and T. and A. , C o . 46 N. error to admit the minutes of Y., It was 279.) the homicide before evidence, grand day had indicted the crime blackmailing Malcolm, deceased. 6 note; v. 296, Gun {Myers Hill, 104; v. Am. Barb., L., 2 Whart. Or. Mayor, § liff 824; 1 Real v. 42 M. Greenl., 461; Y., 281; People, § Gillett, ell v. 1 melee, Warr Par M. Bawd v. 519; 47 Y., id., 4 12; 41; 186 Wilson v. 413 7 ; Wilson, Wend., id., Keyes, It 21 was error to exclude evidence of 193; Barb., 189.) that he would kill the threats deceased prisoner. Ga., 194; State, v. 18 Pritchette v. 22 State, .Ala., {Keener 5 16 State, Ga., 85; 111., 39 Monroe v. v. ; People, Campbell v. 15 B. 539 v. 21 ; Mon., ; Banning, Cor. Jewitt Com., 17 1 102 1 27; Ev., ; Ev., 181; Phil. Williams v. Y.,N. Greenl. 54 erred evidence of The court People, excluding Ill.) had under that he violence apprehension 1 Rector, Wend., 591; 19 Arch. from deceased. (People Whart, 2 Case, 1027, Seeberth 794; Waterman’s Notes, § 2 Com., 538; 806 ; Car., note Cro. x, p. Loque Wright, Hale, The court erred Case, Hawkeswait's ; *5 v. Griswold, evidence. 24 (Newcomb admitting secondary Maseras, Barb., 56 When v. Y., 298; 521.) Wright N. is introduced impeach a fact evidence witness testifies to corroborated what he he bemay his credibility, v. Jones, on former occasions. (Henderson or stated testified 6 Har. & J., 86; v. Rawle, ; Curtis, & 322 Cooke 10 Serg. v. 6 State, Blackf., 395; v. 4 Anderson, Beauchamp Coffin v. 8 3 Ire., 324; Miller, Dorsett v. 300; Georgia, id., 169 People of N". Y. the State v. 1873.1 * (cid:127) of case. Statement bound the evidence of The
Sneed., 73.) con cross-examination, and could not her on Turner Jennie 5 449, cited; and cases Greenl., Wend., her. (1 tradict § v. Buz Pick., 157; Com. v. 16 Baker, Lawrence 301-305; 3, 1872, act of May regulating 4 Den., ell, 502.) is unconstitutional. (Constitution of jurors qualifications U. 3, III; subd. art. S., 2, 6 Constitution Y., art. 1, ; N. § § Burr’s VI; Vase, art. S., to Constitution U. Amendments Trials, 4 Hawk. Trial, 748; St. 387,415; 1 Hargraves’ Burr’s E., Juries, 5; Bac. Coke 2, ; B. 28 Ch., 43, P. C. Abridg., § Blk. 26 353, 12, Christian; 4 N. 155, etc.; Com., Litt., 484; 4 Cranch, S. v. 2 T., 1223; Woods, U. Howell’s St. 446 5 L., ; Ab., Bac. Work Jurors, 303;
Reeves’ Hist. Eng. 2 & H. Cr. 333 Cas., Ben. v. Ohio, ; People v. St. Ldg. 108 v. 4 Cow., ; id., 557; 6 Mather, People 7 Vermilyea, 4 Mann v. Freeman, 34; Glover, 22; Den., Wend., Peoples. & ; 2 Drs. 196 Irvine v. Green, Benton, B.,
2 195 State v. ; v. 155; Com. 11 R., Lester, id., 14 S. & 292; People Kean, Cancemi, Y., Allen, 16 43 N. Y., v. N. v. 33 501; People ; Park., 2 v. v. Baxter 317; How., Kennedy, Putney, 37 People Hendricks, 162; 143 40 v. ; id., Mourse, Townsend v. Lloyd v. 31 N. Plumer, H., 2 Blake v. Rawle, 49; 272; Wiggin 316 Dunk v. 8 R., ; 1 J. Mosher, id., Prin 445; Milspaugh, v. 432; 1 Huse, Cow., Goodwin, 18 J. People R., v. gle 200; Lim., 311; 2d R. v. ed., 309, Gordon, Const. 1 Leach Cooley’s 1 Den., C. v. 3 Blk. L., 515; Bodine, 304; Com., 1 b, 1 156 Trials 1 363; Just., pais, 178; 157 Bish. per a; R., was entitled trial Crim. under the 772.) that existed when the crime was committed. alleged 37; note Potter’s Blk., 91, Stat., 162, Dwar. on Shars. (1 Lim., 63; Const. v. cited; Wisner, eases 8 Sayer Cooley’s 18 v. Cabenas, Fust v. Abb., 144; Griswold At. Wend., 661; 15 Barb., 21 N. Co., 225; Ely Holden, 595; Y., Dock Camel, id., Ful- K. district William Phelps, attorney, Benjamin in error. for the defendants There dis- lerton nothing VIII. Sickels—Vol. *6 People oe 27.Y.
170 oе the v. per Gboveb, Court, J. closed the trial that would verdict for the justify pri it was soner, direct a' verdict proper for the people. v. 15 N. (Herring Hoppock, Y., 413; v. 8 Cook, People id., Labar v. 4 67; Kopplen, Comst., 547; v. Bennett, People 49 N. Y., law of 137.) 1872 constitutional. v. 4 Porter, Hill, (Taylor 140; Wynehamer v. 13 N. People, Y., 446; Walters v. 32 id., People, 147, 159; 3 Coke’s Litt., 464; Eliz., 260; Cro. Durell v. 8 J. Mosher, 347; Free R., man v. v. Den., 9, 34; People Lohman v. 1 Com., People, 384; v. 3 People Bodine, Den., Comm. 122; v. 5 Webster, Cush., There was no error in 295.) the admission of evi dence as to what occurred after the in the shooting presence of deceased the prisoner. Iowa, v. 10 (State Nash, 81; Comm. v. 3 Harle v. McPipe, Cush., 181; Slate, Swans., 253; 1 Arch. Cr. L. and Am. ed., 7 Pldgs., 408, note; Jewett v. 21 27; N. Banning, Y., v. 36 People McKee, id., 113; v. 1 Green, Park., People Proof of 17.) threats by deceased that he kill not claimed prisonеr, to have been communicated to the latter until after the homicide, was excluded. properly v. (People Lamb, 7 360; Powell v. 19 Keyes, State, Ala., 577; State v. Gregor, 21 La. An. 473; Wharton’s Am. B., L., Cr. § error of the having prejudiced judge on the will trial, conviction not be reversed. v. (People 32 v. Bransby, Y.,N. 525; Gonzales, 35 id., 49; v. 39 id., id., People Kennedy, 245; Shorter v. 2 People, 193; McGann, id.; Markley Schultz, id., 356.) examined the six Having carefully pleas Grover, abatement, in error interposed by plaintiff to the indict- ment, which district demurred, attorney given demurrers, arrived at judgment sustaining the conclusion that there was contained in nothing any these him to pleas indictment entitling judgment quashing other we shall not any relief, examine whether these are before this court proceedings review propérly certiorari issued and return made thereto. The same *7 jST. T. L71 the oe oe 18Í3.] Grover, J. the Court, per Opinion, an issue which the seventh plea, upon to remark applicable district attorney, the replication by of fact was joined he Mr. Justice Cardozo, upon tried before which was disclosed The the testimony for people. a verdict directed indictment, the the invalidity show tending nothing the in by disposition error was not the injured plaintiff matter by judge. are raised be thus attempted Whether questions be should if what court, and, so, this practice reviewable by immaterial court, are them before adopted bringing in the case. present these error had clearly right interpose plaintiff a character, or others of similar time, second
pleas and, to the indictment, the court plead properly required by his taken course was mute, upon рroper by standing him, court of not be entered for guilty ordering plea to the trial of the issue thus proceeding joined. to examine are law, those of questions only necessary taken counsel for the arising upon exceptions by trial issue, and, accused of this those perhaps, upon upon the errors fact the writ of error upon upon assigned taken arising Those exceptions judgment. * trial will first be considered. were taken decisions of the court
Exceptions of several challenge by jurors princi It not claimed the counsel of the cause. accused by pal committed, error was if volume chapter 475, any 1, of Laws of 1872 constitutional. It 1,133 will be page to determine this first case that question, act proper held it be valid, constitutional will unnecessary error to determine whether had any committed, at the time of remained as was passage for the act. The counsel is, accused position of trial is secured to accused of right persons Oonstitution, secures further felony of trial We shall assume impartial jury. right of the latter act of the legislature correctness position. Any of the State of 1ST.Y. Stokes v. per Gboveb, Court, for the trial than otherwise common-law
providing twelve be unconstitutional composed men, jury, *8 and a act or such trial void, any requiring authorizing and biased a viola either would be partial jury against party, tion of one of the essential elements of the referred to jury in and secured that Constitution. The counsel insists the act in does a accused to be tried question compel and biased him. That the partial against common law held, that formed or an having expressed conclusively opinion, a want of and for this reason proved excluded impartiality, a for upon juror challenge cause, without principal inquiry as to whether this would influence his action as a juror. The authorities question somewhat conflicting, and the of the statute was to a definite rule. object prescribe The act provides formation or previous expression anof or in reference to the opinion circumstances impression criminal action at law or in any reference based, or innocence of the aor guilt prisoner, present opinion or reference shall not a thereto, sufficient impression cause who .is ground challenge principal any person otherwise a trial to serve as legally qualified juror upon of such as a action, who person proposed juror provided have or or formed has an may such or expressed, opinion as shall declare on aforesaid, oath that he impression verily that he an believes can render verdict impartial according the evidence submitted to the on such and that trial, such formed or will not bias previously opinion impression or his influence shall court be satisfied verdict, provided that so as a not does entertain such person proposed juror a as a would influence his verdict as It present opinion juror. will be seen that the of the act not to intention place partial but that care was taken to panel, jurors great prevent a such result. The end common law wаs to sought by a hear the evidence secure impartially panel render a verdict thereon uninfluenced con extraneous by any as a can siderations whatever. If the person proposed juror secure and will do To this, entire purpose accomplished. 1ST. T. of the State per Grover, Court, do he can oath that he shall make this statute requires or or existing opinion this, any previous irrespective ¡Not relied be safely upon, satisfied that impression. a having
on account of the determining by person difficulty influ m far he be unconsciously how ay opinion impression further enced the statute thereby, goes provides as does a court shall be satisfied that person proposed juror a his ver entertain such would influence opinion present a if this latter prоvision, dict Surely rightly juror. will afford court, administered competent pro
intelligently from But tection to accused injury partial jury. accused has not this but further his only protection *9 overruled, has after for cause been challenge principal
right, this tried and deter favor, to have for again challenge the uninfluenced the decision former by by mined, While the Constitution secures the of trial challenge. right the mode an by jury, procuring impartial impanueling either is common or law, such by statutory, regulated it is within the latter, power the of the legis principally from time to such in the time, lature law make, to changes care to it deem taking preserve may expedient, right The of Chief trial an Justice jury. opinion by impartial v. The State in Eason cited in Tennessee, Nicholson, This view. to this opinion given upon оpposition a statute of Tennessee same constitutionality upon from that in this State. the Ten but By differing subject, shall be statute it nessee provided juror competent, oath, on that, if he state on testimony upon trial, a fair and can the accused ver he impartial he believes give statement is made conclusive of the The question. dict. further for the accused insists offence counsel if at all, been prior passage having perpetrated,
charged trial this case, to be if act, is not applied to constitutional, cases thereafter. but This only arising held While ex be sustained. no law is cannot post position faeto the rules of evidence or the this has to valid, application oe N. Y. oe Grover, Court, per
details of the These as to trial. changed рrior with offences. equally subsequent for the accused to counsel offered prove . a short time before the had made vio deceased, occurrence, lent threats him such that he him, would against beggar “ kill first and then him“I for him all go prepared time; so sure as name is Jim I will kill him“I Fisk my kill him as I This as soon would ferocious dog.” by by objected rejected for In court, which counsel the accused excepted. it must be of this determining competency testimony1; in mind that it a borne evidence had been given/ making whether the case was on'e excusable question homicide the act was ground by perpetrated the accused in himself defending attempt against deceased murder or inflict some great injury upon bodily and the further him, whether it question was not perpetrated an attack made him rеsisting deceased he had reasonable ground apprehend a'design murder or inflict him some great bodily injury. Evidence of threats made which had deceased, cammunicated .to accused, received the court. *10 of the latter facts Proof was to competent, tending create a belief in the mind of the accused that his life was in or that had he to reason danger, some apprehend great bodily harm from and the acts motions of the in deceased, when, absence of such such threats, acts and motions would cause no such belief. But admissible this why ? For ground the reason that threats made would show an to exe attempt cute them an when probable occurred, and the opportunity more belief of the ready accused would be to justified extent of this But an precise to probability. execute attempt threats is when not equally probable, communicated to the threatened as when are and party so; as in when,- this case, is whether the in question was fact attempt made, we for can see no reason them in excluding former that would not be for the exclusion equally cogent latter, latter 175 of H. Y. v. Gboveb, per Court, the reason threat for person admissible only himself the more believe endangered ened readily such Threats an to execute threats. the probability attempt trial are is con commit the crime which person to as circumstances him, received as against stantly whether in considered determining question proper for the reason crime, in fact, he committed has, and the existence of an intentiоn to do this it, threats indicate has in committed it. that he fact creates a intention probability his into hotel Had the deceased, previous just going he declared that was the transaction occurred, going where to execute accused, there kill the he was prepared think would have we the evidence been compe purpose, he had in fact made the whether tent upon question And there when that litigated. yet question attempt this and the difference between principle testimony The difference only degree. offered rejected. decision of are not aware of any precise question by
We but there have been several accord State, the courts of this (Keever views other States. v. ance with above 22 State, Ala., 39; Pritchette v. 194; Camрbell 18 State, Ga., Commonwealth, B. Ill., Cornelius 17; v. People, Banning held In Y., 27) Jewett Mon., (21 N. assault to have in an action for battery, alleged defendant when no plaintiff
been committed ill-will previous witnesses present, circum competent defendant plaintiff against the commission of acts to show charged by tending stance taken. I accords with view above This the plaintiff. offered was the exception competent the testimony
think one taken. The error was well prejudicial its exclusion him com to have accused, depriving right his favor considered *11 by jury, testimony petent the court. by be overlooked cannot a introduced as witness gave was by, Turner
Jennie to With a view impair for accused. testimony material asked by proseen- her she was testimony, credibility v, 1ST.Y. of the State of Grover, Cоurt, per tion, had left Mrs. cross-examination, whether she not upon, had been Morse, whom she without her know employed, and whether consent, she did not take ledge things to her she when left. The was belonging per prosecution mitted to Mrs. Morse that her answer prove by testimony to these to which counsel of the questions untrue, accused This was error. excepted. cross-examinationi Upon had the prosecution for the right, purpose impairing the credit of the to ask as witnesses, to those col questions matters, lateral but asked and answers, obtained must having abide answers other could given; witnesses not be to called such answers Barker,, prove untrue. (Lawrence Wend., 301; Howard Fire 4Co., Den., Ins. City It cannot be said that the accused sustained no injury this. The direct tendency testimony incompеtent to the credit to impair of his witness. given testimony
We think the minutes that grand jury, showing had indictment been ordered that the accused against body of Fisk for complaint blackmailing, improperly received. There was no to show that the proof tending pri- had soner such action any knowledge any grand The had, no to therefore, show a jury. tendency motive of the for the prisoner deceased. The killing that he had testified knew Fisk had been prisoner trying to him indicted as he for, understood, with conspiracy get but him, that, another blackmail he he had understood, The failed to one. could not evi- prosecution procure give to' show had been dence tending guilty other crime than the he one for which trial. any see effect of the minutes I was.to can only satisfy there was evidence of his cоmmitted having other crime induce the some of such cogency grand jury indict him therefor. had-no give right such evidence. Had the known action of have show motive jury, grand competent deceased, and, for any proper purpose, there would have been error it. receiving *12 H. Y. of of the State Court, per Geovee, J. Opinion of the the taken counsel by exceptions other Humorous the the court upon trial to of the rulings the prisoner these, have examined evidence. We of the admissibility discussion. that none of them require at the conclusion arrive ws: the as follo the jury the conclusion judge charged Hear “ con- this case substantially being fact of the killing the here to you of satisfy ceded, duty becomes from the which law would murder, imply it was in the circumstances, under absenсe fact killing third or that it was manslaughter degree explanation I have of kill- because, said, the fact homicide; justifiable and the law motive from the conceded, implying ing case case, fully circumstances prosecutor’s and therefore have out, made can no reasonable entirely you that, unless the shall evidence suffi- doubt give that it was under the circum- satisfy you justifiable cient of the case.” To this stances portion charge We have examined counsel for prisoner excepted. idea to determine whether the intended
portion charge to be would derive conveyed jury, was that the act therefrom, implied killing was murder when under the perpetrated circumstances or whether case, such was the present implication legal absence of the circum- proof killing, stances its which the case of the perpetration, by prosecu- tion out, unless the fully entirely prisoner?
had them that satisfied it was not murder which the law! from the fact of the We think imply care*' killing.
ful examination entire portion charge excepted to will show latter was the idea intended to be and that must have conveyed, so understood it.
From the delivered it' opinions was so understood Oourt at Term. This justices Supreme General view is confirmed fact circumstances attending in case present were controverted questions, be determined from evidence more less con- ; as claimed flicting such as would prosecution, fully VIII. Sickels—Vol.
178 Y. Stokes oe the State oe 1ST. Opinion Court, per Gboveb, J. authorize a the all the facts finding by of jury constituting the crime of murdеr in the first as claimed the by degree; such as would prisoner, authorize the find the homicide to jury excusable. It can under hardly that, proof such supposed the what circumstances intended the really were, judge the that the law the of murder charge jury crime implied under of proof killing circumstances the case, such an such instruction would proof have been erro- in neous. instruction was, effect and the must so have understood that the law it, and con- motive, implied the crime of murder sequently first from the degree, proof deceased and that killing by prisoner, this should find him of that proof crime, they unless guilty he had that them it was given satisfying manslaughter or excusable This is homicide. further confirmed what by follows the to. immediately portion charge excepted “ to instruct the as follows : proceeds Ordi- judgе in cases this narily, kind, naturally properly, juries are to and should disposed give prisoner benefit of reasonable doubt exist in the any I do case, not that even is an know to that rule. exception If the evidence shall be doubtful if subject, you if shall entertain reasonable doubts, evidence is evenly balanced, so do not know where the truth you lies, be entitled to the would benefit of that doubt.” prisoner idea But for the by conveyed part charge excepted the crime of murder in the to, law implied first from the unless only, satis- degree prisoner fied murder, them was not the benefit the doubt be given would have been restricted their find- so that did not the evidence know they evenly balanced, ing where the truth on the instruction lay; contrary, crime unless to convict convinced have been not and that if а all the case that he the evidence guilty, their minds examination of all evidence left careful of his should give doubts guilt, reasonable This instruction warranted the benefit accquital. of 1ST.Y. 179 of the State Glover, Court, per H. P. 1 common law of East 445; England. (1 C., 3 s. 2 C., P. M. & 34; S., 15; R.; Regina Chapman, Eng. Cox Cases, Crim. 4; York, Metcalf, 93.) Commonwealth v. thus to is
As construed, portion charge excepted contravention of obviously analogies principle- law. It is a maxim the law that innocence presumed until How is established contrary proved. *14 guilt one the essential to constitute proof only ingredients the ? To constitute crime there must be crime only act, concur, also the criminal these must the intention, but latter essential the former. Actus non with equally sed mens is maxim of the law. common reumfacit, _The_, the in act, intention inferred from but this, principle, to be drawn the an inference fact and not an by jury, lawof to be the court. But the applied by ques implication the in case is not what was the rule of common tion this law of malice from the act, whether such implication rule deduced from or authority principle legal analogies. arises statute of State which question by
homicide is or murder in first excusable, justifiable or second one four or degree, manslaughter degrees, of its determinable intention circumstances per it is that mere statute, Bnder proof obvious petration. has been life one act of another, deprived under fails to show of the homicide class
utterly statute. 3 of title 2 of the statute declares what c'ases
Section shall be homicide, individual, when perpetrated by amended act of 2 of title as1, Section justifiable. it be manslaughter, that such unless
1862, killing, provides first or shall be murder homicide, excusable justifiable When cases : First. degree following perpetrated killed to effect the death person premeditated design this under human It was provision or being. any To justify convict prisoner. prosecution sought j for the prove such conviction it necessary J within it.' all the the case facts bringing 180 r. oe 1ST.Y. oe Gkoyek, Court, per Here proof of the show did as a not, implication, legal this. It still man be murder in the might second degree, in some slaughter homicide, or excusable degree, justifiable consistent with such proof. It fj was error to all instruct implied
(these facts from the The correctness killing. this has been rarely since enactment questioned statute. Hence there has beеn but little said the courts upon what question, but has said it. v. sustains (People Clark, 7 H. Y., ;393 418 ; v. id., 37 Fitzqerrold People, v. 24 White, Parker, 4 ;520 Wend., Wilson People, The General Term 619.) correct the conclusion that con- part and in the further erroneous, charge clusion that to obviate the error was for .the show people that the prisoner was not such error. prejudiced by (Greene v. White, 37 9 ; If. Y., Putoher, Cow., 674; Clcvrkev. W,e People Wiley, Hill, have examined the *15 entire to. determine whether does so show. We charge . find that the the the judge correctly to charged jury facts to the constitute crime of murder in the necessary first and that he degree, instructed them further, correctly (that the must all these facts to authorize the people prove to render verdict him that crime. jury of convicting Hut this how does cure thе error of the instruction that the law all the additional from implied facts the necessary proof the % It in of effect the that killing instructing must all facts, the these had ,/although prove yet they people and done so that case of the by proving killing, made out, fully entirely prosecution that it it the to them proof duty prisoner satisfy was not murder which law would imply proof, in that the thus effect instructing proof to show that it the burden of east proof upon but homicide. was not murder or justifiable manslaughter, was, burden of cast by that, Ho such proof upon prisoner. A. P. P. and Tr. 46 Y., C. and H. Co., {Iamb to the that the The further instruction effect jury, Y. 1ST. of the State Stokes Court, per Sapallo, J. time between forming length particular required effected, death kill and the act by design in question; had no to or bearing upon point relatiоn kill from the find fact, matter of the design jury may, all that of facts, effected; except which death was act by first murder to constitute itself, the killing required them the convince of circumstances which degree, proof are the whole case, truth of facts. upon such They pass facts which convince facts from the other inferring proof inferred, their of the truth the facts bearing judgment as to mind that the burden of upon the entire all the facts to constitute necessary guilt during their verdict conscientious trial, should from all the of their convictions derived evidence. expression It is unnecessary pass upon any questions arising error in fact offer of error plaintiff assign these remark that As to we will simply judgment. think we motion for disposed properly trial. a new
But for errors offered evidence rejеcting competent and in receiving incompetent against and in the him, to, part charge excepted judgment must be trial reversed a new ordered. I am satisfied conviction this case
Rapallo, without the violation of cannot be sustained settled principles I and it follows that must rote law, necessarily *16 in While the reasons reversal. assigned concurring my to conclusion, learned associate for the same I will coming the considerations to me state seem briefly controlling, of the numerous other which have been independently points discussed. in
It rule criminal cardinal prosecutions rests of and that if burden prosecutor; the whole that of the evidence, defence as including as of the entertain a well prosecution, reasonable jury of the of the he is aсcused, doubt entitled guilt benefit oe 1ST.Y. 'oe Court, per Bafallo,
Opinion, of that doubt. The must be satisfied on the jury whole evi- accused; dence and it guilt is clear error to when the them, has charge made out a prima case and evidence has been introduced to shovv tending facie a that defence, must unless are they convict, satisfied of they the truth defence. Such a throws the burden charge him a proof upon prisoner subjects conviction, the evidence on his have though part may created reasona- ble doubt the minds of the as to his Instead guilt. it to them to determine the whole evidence leaving whether his is established a reasonable guilt beyond doubt, convict, constrains them to unless are satisfied they fully his he has innocence. proved this case inwas calculated to charge my judgment erroneous rule for their convey guidance. were virtually that, instructed conceded, They killing being convict of the crime should unless the murder, proofs adduced satisfied them circumstances under which the took were such as to his killing place justify act, or reduce of his offence. grade Though upon whole evidence doubt as to what the circum- they might stances were, conceded, really killing being charge that it was indicated their to convict. duty to which taken is as language charge exception “ follows: The fact of this case killing being substantially it becomes the conceded, here to duty satisfy that it mwrder, was not which the you law would from imply fact under the in the absence circumstances, killing that it third explanation manslaughter degree as I homicide; becаuse, said, have the fact of justifiable and the malice the circum- conceded, implying case, stances of the case fully prosecution’s entirely can hemeno reasonable out; and doubt you therefore shall that, unless the prisoner give sufficient under that it was the circumstances you satisfy justifiable the case.” demonstrate the error seems
Argument unnecessary *17 op op Y. N. the State m. Court, per Rapallo, Opinion of the a case pro- It was part necessary charge. awith homicide was
secution perpetrated to establish killed; death of the to eifect the person design premeditated what the circumstances to determine court, the assuming yet the the that fact instructed were, the solemnly jury of killing law malice from conceded, implied of killing being the case on the case, that part circumstances of and that the could ham out, was jury fully unless the on the as that part no reasonable doubt them that the justifiable. prisoner satisfied Court, The Supreme sustaining judgment do not to defend Terminer, attempt Court Oyer On the able of this contrary, very charge. legality demonstrates J., conclusively opinion Fanoher, it is at variance with numerous that adjudications authority it But is claimed that and the settled subject. on the overlooked that error ground are cases cited which decide not thereby, prejudiced it to the court error has been
that where appellate appears the error could have committed, yet possibly preju- will not be made complaining, diced ground party or criminal cases. civil either reversal it mil be found that the court has
In all these cases to limit this careful so rule to render it appli- exceedingly could the error have where by possibility pro- cable only this was an innovation and even duced ancient injury, a matter which it was of course to reverse under when rules, into its without inquiring error appeared, materiality. one vital error as which should or
That so mislead might on whom the on burden question party jury within could come rested, those which category the determination of case, could not prejudice possibly short of an retrac- inadmissible. Nothing unequivocal utterly could have removed from portion charge tion it was calculated impression minds of the It concluding portion charge, produce. rule for their their simple guidance afforded *18 if. Y. Stokes of the Opinion, Court, per Rapallo, consultation: The fact of was, as killing told, were con- they ceded. were further that told it They was the duty prisoner them that satisfy was not murder. That the law malice from implying the circumstances case, the case prosecution’s madé fully out, entirely and therefore could have no reasonable they doubt as to that, them, unless the evidence on the of the part prisoner satisfied that was under the circumstances. Their justifiable inquiry reduced to thus whether were they truth satisfied on the of the defence. If allegations part were they whether these were time or doubt not, bound they convict. mind
It seems to have struck the of the learned at judge time, the rule thus laid down him encroached somewhat principle entitled to the benefit of a doubt, reasonable and he fol- immediately lowed that, should' stating ordinarily, juries give the benefit of doubt exist in the any case, he did not know that even this anwas to that exception rule, and he instruct them proceeded generally upon subject of reasonable doubts. that we
It is should know whether impossible these instruc- tions eradicated from the minds of the effectually calculated to be erroneous produced by impression previous we cannot, portion charge, therefore, pronounce, as it had law, that no conclusion of influence verdict. Whether under a would have proper charge cometo it is same result not within our province decide. The determination of the facts rests with the It wholly jury. to the law, for the court to instruct them as and these instruc- If are bound to follow. erroneous it tions materially tribunal-to a new duty imperative appellate grant trial.
All concur. J., J., opinion Ch. expressing Allen,
Chubch, Laws of act, 475, 1872. constitutionality chapter and new trial ordered. reversed, Judgment