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We agree with the learned judges of the courts below in the opinion that the facts in evidence fully justified the submission of the case to the jury as one in which they might find the defendant guilty of murder in the first degree, as charged in the indictment, and think it necessary to consider only those points which allege error in regard to evidence, or the directions under which the evidence was to be weighed. First. The deposition of Mrs. Daghiero, the widow of the murdered man, taken on application of the prisoner and in pursuance of the provisions of the Code of Criminal Procedure (§§ 620-635), was offered in evidence in behalf of the people, the district attorney stating, as appears by the record, "that he would read the same for the reason that the same conditions now exist to prevent the personal attendance of the witness as existed at the time of granting the order for the taking such examination, and that the witness is unable to personally attend by reason of her continued sickness." It also appears that the defendant's counsel made no objection or exception to the reading of the same, and it was thereupon read. Errors upon criminal trials can be made available in this court only by exceptions duly taken on the trial (People v.Thompson, 41 N.Y. 6; People v. Casey, 72 id. 399; Connors
v. People, 50 id. 240; Brotherton v. People, 75 id. 159); and it follows that as no objection was then taken, the questions now argued against the admissibility of the deposition
are quite out of place. But notwithstanding this doctrine is well established, the learned counsel for the appellant contends that by section 527 of the Code (supra) a different rule is enacted, and that the question may be considered in the same manner as if an objection had been made upon the trial. It was, however, held otherwise in People v. Hovey (92 N.Y. 554); Same v. Boas
(id. 560), and Same v. D'Argencour (95 id. 631). Nor is any hardship imposed upon the appellant by the application of this rule. Assuming what, except for this purpose, I by no means concede, that there is any force in the objections now made to the reading of this deposition it was deliberately acquiesced in by the prisoner, and it was clearly in his power to waive them. Consent would not give the court jurisdiction or authorize a substantial change in its fundamental mode of proceeding; that could be neither enlarged nor restricted. The trial must be by a jury of twelve, and not a less number, although the prisoner consent thereto (Cancemi's Case, 18 N.Y. 128), but he may waive his right to challenge. He cannot be compelled to be a witness against himself, but by consenting to take the stand he waives the constitutional protection and may be examined in the same manner as any other witness. (Connors v. People, supra.) He is not subject to be twice put in jeopardy for the same offense, but if judgment is arrested on his motion, or if for any reason a new trial is granted on his prayer, he must submit to another trial. So the jury must act upon evidence, but secondary in place of primary evidence may be received. Admissions of facts may be allowed, and in many similar particulars consent will render valid what without it would be erroneous. (Cancemi's Case,supra; Pierson v. People, 79 N.Y. 424.) So here if there were no statute upon the subject, whether the witness should be produced in court and there confronted with the prisoner, or whether her deposition, taken at his instance, should be read, might be left to his determination (Webster v. People,92 N.Y. 422), and his assent to the latter course having been signified by acquiescence, makes it immaterial
to inquire as to the true meaning and effect of the statute (supra).
Second. In behalf of the prisoner twenty-eight requests to charge were submitted to the court, and among others one in these words: "The prisoner is entitled to the benefit of any reasonable doubt which the jury might entertain, not only upon the case generally but upon each and every specific fact necessary for them to find before reaching a verdict in the case, and if they entertain any such doubt in respect to any matter necessary to sustain a verdict for either of the higher offenses, then it is their duty to convict of the lesser, and if they entertain any such doubt on the whole case they must acquit."
In response the court said to the jury: "I charge you that, perhaps I can put it in shorter terms so that you can understand it. If you have any reasonable doubts upon any facts which are necessary to convict the defendant he is entitled to the benefit of that doubt. If you have any reasonable doubt of his guilt he is entitled to be acquitted. If you have any reasonable doubt of his guilt of murder in the first degree you cannot convict him of that count. If you have any reasonable doubt of guilt of murder in the second degree you cannot convict him on that count, or if you have any reasonable doubt as to manslaughter in either degree you cannot convict him of that, and he must be acquitted. You must understand what a reasonable doubt is. It is not a mere guess or surmise that the man may not be guilty, it is such a doubt as a reasonable man might entertain after a fair review and consideration of the evidence. A doubt for which some good reason arising from the evidence can be given. When you find such a doubt as that in a case, it is your duty to give the prisoner the fullest and amplest benefit of it."
"To all which defendant's counsel," as the case states, "then and there duly excepted."
It is entirely well settled that such general exception is of no avail if any portion of the matter be well stated. (Decker
v. Mathews, 13 N.Y. 313.) No error was specifically pointed out, and it is not now claimed by the learned counsel
for the appellant that all the propositions laid down in this portion of the charge are erroneous. The exception, therefore, might well be treated as unavailing, but having regard to the importance of the case we have followed the argument for the appellant and find no just cause of complaint. The criticism is limited to the definition given of a reasonable doubt, and aimed at that portion where, by way of paraphrase, the trial judge said: "A doubt for which some good reason arising from the evidence can be given." It should be read with the whole sentence of which it forms a part, and so taken seems only to distinguish that doubt which would avail the prisoner, from one which is merely vague and imaginary. The jury were not called upon to formulate and state their reasoning, but in substance to view all the circumstances from which an inference was to be drawn, and inquire whether, consistently with the truth of the whole, the prisoner might not be innocent — to weigh and consider the evidence, and if from a deficiency of proof, or inconclusiveness of testimony, any material fact was not established, there was then left a reasonable doubt arising from the evidence, and to the benefit of that the prisoner was entitled. We find in the language of the judge nothing to mislead or perplex a juror, but if counsel at the trial thought otherwise, the attention of the court should have been directed to it. "An indefinable doubt, which cannot be stated, with the reason upon which it rests, so that it may be examined and discussed, can hardly be considered a reasonable doubt, as such an one would render the administration of justice impracticable," and as to this it has not been too strongly said, "all the authorities agree." (3 Greenl. on Ev. [14th ed.], § 29, note.)
Many other propositions are submitted to us as ground for a new trial. They have been examined, but we find no error of law, and must affirm the judgment.
All concur, except RAPALLO, J., not voting.
Judgment affirmed.