
    The People of the State of New York, Respondent, v. Theodore M’Vey, Appellant.
    
      Record on appeal—the remedy, where it was erroneously settled.
    
    The objection that the record, on an appeal from a judgment convicting the appellant of manslaughter, does not fairly present his case, is not available upon appeal.
    If the case was erroneously settled by the trial judge the appellant’s remedy is to move for a resettlement, and, if his motion be denied, to appeal from the order granted thereon.
    
      Appeal by the defendant, Theodore M’Vey, from a judgment of the County Court of Montgomery county in favor of the plaintiff, rendered on the 11th day of June, 1900, convicting him of the crime of manslaughter in the first degree.
    The defendant was barkeeper in a saloon run by one Murphy. The deceased, one Haiden, with several others were in what was. called the dining room back of the saloon, between one and two o’clock upon the morning of the day in question, having been therefrom the previous evening, All of them except the defendant were more or less intoxicated. The defendant, wishing to close up the place, was endeavoring to get one Griswold to go home when Haiden approached him and told him not to get too fresh about it. Some conversation then passed between the defendant and Haiden. According to the evidence presented by the prosecution, the defendant struck Haiden and knocked him down, Haiden striking upon his chin upon the stove, and defendant thereafter kicked him three-times. The claim of the defendant is that he simply pushed Haiden away from him, as Haiden was attempting to prevent his getting Griswold out of the place, and that Haiden fell. In falling Haiden so struck that he injured his spinal cord and immediately died.
    
      Florence J. Sullivan, for the appellant.
    
      Frank G. Kelsey, for the respondent.
   Smith, J.:

The act of the defendant was either manslaughter in the first degree or excusable homicide. That the death of Haiden resulted from the defendant’s acts is not questioned. If the force used by the defendant was wrongful his act was criminal, and death caused by a criminal act without an intent to kill is manslaughter in the first degree.

There is abundant evidence upon which the verdict of guilt can rest, and the rulings of the trial judge disclose no error prejudicial to the defendant. The case appears from the record, to have been, fairly tried and fairly presented to the jury. The complaint of the appellant’s attorney that the record does not fairly present his caséis not available upon this appeal. If the case were erroneously settled by the trial judge, the appellant’s remedy was to move to resettle the case, and upon the denial of his motion therefor to have appealed from the order. Upon this appeal the record as presented is conclusive upon the court and the opinion of the justice who. granted the certificate of reasonable doubt can add nothing .thereto. The judgment of conviction should, therefore, be affirmed.

All concurred.

Judgment of conviction affirmed.  