
    The People of the State of New York, Respondent, v. Edward Hughson, Appellant.
    1. Murder, — Evidence. The evidence on a trial for wife murder by shooting held to indicate deliberation and premeditation and to support the verdict of guilty.
    3. Jury—Challenge for Bias. The fact that a juror, on examination for service on the trial of an indictment for murder by shooting, states that he has a prejudice against a person in possession of a pistol without a permit, but that such prejudice will not influence his verdict, does not disqualify him so as to sustain a challenge for bias.
    3. Defense of Mental Irresponsibility — Evidence—Denial of Act. If on a trial for murder the defendant in effect admits the act, but interposes the defense that it was done when he was unconscious and not criminally responsible, declarations made in his presence immediately after the act charging him with it and denied by him are admissible against him for the purpose of characterizing his denial, as tending to show that he denied the commission of the act which he knew he had committed.
    4. Charge to Jury—Definitions of Murder in First Degree. Reversible error is not predicable upon the fact that the trial judge in defining murder in the first degree included the statutory provisions as to the killing of a person by an act imminently dangerous to others or committed while engaged in a felony (Penal Code, § 183), though not applicable to the case, where, although he did not in specific terms withdraw such acts from the consideration of the jury, he limited their consideration to the killing with deliberation and premeditation.
    5. Good Character. Good character creates a doubt against positive evidence of guilt only when, in the judgment of the jury, the character is so good as to raise a doubt as to the truthfulness or correctness of the positive evidence.
    6. Leaving Exhibits with Jury—Clothing. When clothing of the deceased has been made an exhibit upon a trial for murder, and at the retirement of the jury the court inquires if there is any objection to the jury taking the “ exhibits,” the clothing is to be deemed included in the inquiry, as well as the papers and other articles in the case, so as to call for an objection from the defendant if he does not wish the clothing to be left with the jury. (Code Or. Pro. § 435.)
    (Argued October 5, 1897;
    decided October 26, 1897.)
    Appeal from a judgment of the Supreme Court, Albany county, entered October 27, 1896, upon a verdict convicting the defendant of the crime of murder in the first degree.
    The facts, so far as material, are stated in the opinion.
    
      jP. C. Dugan for appellant.
    The trial court erred in overruling the defendant’s challenge for bias to the jui’or J acob Miller, who participated in the verdict. (People v. Larubia, 69 Hun, 197; 140 N. Y. 87; Greenfield v. People, 74 N. Y. 278-283; People v. Casey, 96 N. Y. 118; People v. McQuade, 110 N. Y. 284; Balbo v. People, 80 N. Y. 495.) Section 528 of the Code of Criminal Procedure requires this court to review the facts in a capital case, and to grant a new trial when justice requires it, whether any exception shall have been taken or not in the trial court. (People v. Shea, 147 N. Y. 85; People v. Pallister, 138 N. Y. 601; People v. Barberi, 149 N. Y. 271.) It was error to permit the witness Delia McTeague to describe her call at the defendant’s house nearly a year before the alleged homicide. (People v. Sharp, 107 N. Y. 427; Commonwealth v. Abbott, 130 Mass. 472; People v. Corey, 148 N. Y. 476; People v. McKeon, 10 N. Y. Cr. Rep. 205; People v. Larubia, 140 N. Y. 92.) It was error to permit the witness Pauline Groutchy to testify as to the appearance of Mrs. Hughson when she first saw her on the morning of June twenty-third, and particularly in reference to the blood, and what Mrs. Hughson told her. (Walsh v. People, 88 N. Y. 463.) It was clearly erroneous to permit the witness Benjamin to detail the conversation between himself and the witness Murphy. (People v. Larubia, 140 N. Y. 93.) The trial court should have directed a verdict of acquittal of the crime of murder in the first degree, as requested by the defendant at the close of the People’s case. (Stokes v. People, 53 N. Y. 179; People v. Downs, 123 N. Y. 564.) The whole evidence in the case does not justify a verdict of murder in tire first degree, and the conviction ought not to be sanctioned by this court, either upon the facts or upon the law. (People v. Conroy, 97 N. Y. 62; People v. Wood, 126 N. Y. 249; Leighton v. People, 88 N. Y. 117.) The case was improperly submitted to the jury under the second clause of section 183 of the Penal Code. There was no proof in the case to warrant the submission of the case to the jury on the theory described in that clause of the section defining murder in the first degree. (People v. Gallo, 149 N. Y. 106.) The defendant had a legal right to have the jury instructed by the court as requested, that “ the evidence of good character may create a douht against positive evidence of the defendant’s guilt,” and the refusal of the court to so instruct the jury is reversible error. The whole charge on the question of good character is clearly erroneous. (Remsen v. People, 43 N. Y. 6; Stover v. People, 56 N. Y. 319; People v. Sweeney, 133 N. Y. 609; People v. De Graff, 5 N. Y. Or. Rep. 561; People v. Friedland, 2 App. Div. 332; People v. Drown, 38 N. Y. S. R. 985; People v. Clements, 42 Hun, 355; People v. Wileman, 44 Hun, 190; People v. Pallister, 38 N. Y. 604; People v. Leonardi, 143 N. Y. 360; People v. Corey, 148 N. Y. 476.) The motion made to set aside the verdict and for a new trial should have heen granted. (People v. Hall, 57 How. Pr. 346; Code Crim. Pro. §§ 135, 421, 425; People v. Linzey, 9 N. Y. Cr. Rep. 260; Kehrley v. Shafer, 92 Hun, 196.) The errors herein complained of were harmful, and affected a sustantial right of the defendant. Whether or not they affected the verdict of the jury is not the province of this court to decide. (People v. Corey, 148 N. Y. 493.)
    
      Eugene Burlingame for respondent.
    The record fails to show that “injustice has been done,” or that “a different result ought to have been reached.” (Code Crim. Pro. §§ 528, 542; People v. Pallister, 138 N. Y. 601; People v. Shea, 147 N. Y. 85; People v. Barberi, 149 N. Y. 271; People v. Hoch, 150 N. Y. 291, 301; People v. Corey, 148 N. Y. 506; People v. Kelly, 113 N. Y. 647; People v. Cignarale, 110 N. Y. 23; People v. Fish, 125 N. Y. 136-144.) The trial judge properly overruled defendant’s challenge for bias to the juror Jacob Miller. (Code Crim. Pro. §376; Pierson v. People, 79 N. Y. 429; People v. Hoch, 150 N. Y. 291.) The defendant was not prejudiced by the charge of the learned trial court on the question of good character. (People v. Sweeney, 133 N. Y. 609.) The court properly refused defendant’s motion for a new trial. (People v. Wood, 131 N. Y. 618.) There was no irregularity or impropriety in what was done by the jury. The defendant’s rights were in no way prejudiced. (People v. Buchanan, 25 N. Y. Supp. 481; People v. Hoch, 150 N. Y. 291; Code Crim. Pro. §§ 425, 465; People v. Johnson, 110 N. Y. 134.)
   Haight, J.

About eight o’clock in the morning of the 23d day of June, 1896, Elizabeth Hughson, the wife of the defendant, was found in the house occupied by her covered with blood and suffering from four gunshot wounds; one bullet had entered the back part of the head, struck the skull, deflected downward and lodged in the muscles of the neck ; another had entered near the nose, passing nearly through the head, and embedded itself in the brain tissues; another had lodged in the bones of the wrist, and the other had passed through the index finger. She was conveyed to a hospital in the city of Albany where she died on the third day thereafter.

The defendant was twenty-six years of age. He had been married to the deceased two years and they had one child. On the 17th day of September, 1894, he entered the employ of Charles Hinckel in the capacity of a coachman and took up his residence with his wife in the lodge house upon the Hinckel premises, within a few rods of the city line of the city of Albany. In February, 1895, one Anna Bohloff was employed by Mr. and Mrs. Hinckel as a cook in their residence, which was situated a few rods back from the lodge house which stood at the entrance to their grounds. Shortly thereafter Mrs. Hughson became violently jealous of Anna Bohloff and accused her of being intimate with her husband and repeated these charges to Mrs. Hinckel. From that time on frequent quarrels appear to have taken place between Mrs. Hughson and the defendant with reference to the Bohloff girl, until finally it culminated in her refusing to cook for him and of his refusing to stay with her in the lodge house. He thereafter took his meals in the kitchen of the Hinckel residence and slept in the club room of the carriage house. About three weeks before the homicide he went to a pawn shop on Green street in Albany and purchased a. pistol together with a box of cartridges. He then returned to the Hinckel residence and loaded the pistol with four cartridges, leaving two empty chambers.'^ After loading the'pistol he placed it in his hip pocket and ’ continued to ’ carry it until the morning of the homicide.' ;On Monday, the 22d of June, Mrs. Hinckel and Anna Rohloff went to Albany in the carriage, the defendant driving. After doing some shopping, the defendant, under the directions of Mrs. Hinckel, drove Anna to her own home on Fourth avenue. „ It was then arranged that he was to meet her at the end of the Madison_ avenue street car line at the corner of Allen street, about twenty-five minutes after ten o’clock, for the purpose of conveying her to the Hinckel residence. He then returned home, put his horses out, and went to his house between six and seven o’clock. It then appears from his statement in the case that he and his wife had another quarrel, she inquiring who went to town with Mrs. Hinckel, and on being informed that it was Anna, spoke of her as a vile person, saying that he was a nice coachman to be driving her about the city and that she supposed he was going for her again that night, and he said he was. Other expressions then followed which it is unnecessary to repeat, which very plainly indicated her displeasure and disgust. At the appointed hour he drove over to the end of the car line, got Anna and returned, reaching the Hinckel residence about forty minutes after ten o’clock in the evening. He states that he drove to the barn, put out his horse, asked Anna to get him the key to the ice house so that he could get a bottle of beer; that after he got the beer, he sat down upon the cellar door at the rear of the kitchen of the Hinckel house, drank it and smoked his pipe. He tells us that he sat there alone from half to three-quarters of an hour. He then went to the lodge house and found the door locked, but his wife got up and let him in. She then asked him where he had been since he came from the car. He told her, and that he had got a bottle of beer and smoked his pipe. She says, “ Yon lie ; you have been over in the kitchen again with the whore.” I says, “ Lizzie, I have .not; I have not seen Anna since she locked the door and went upstairs.” She says, “ I know better, and if this thing don’t stop I am going to leave you.” I asked her then what she was going to do, if she was going to get the divorce she said she was going to get from me. She says, “Ho, I will not disgrace my people by getting a divorce. Before I will do that, I will kill myself.” I says, “ Go on to bed; I don’t feel like quarreling to-night; I have a headache, and I don’t want to have anything more to say to you about it.” She says, “ I will not shut up,” and she whirled around to the stand that set at the side of the bedroom door and picked up a saucer and threw it at me. „ I jumped up and threw my hand up over my head to ward off the blow, and I lost myself entirely from that time.” “ When I woke the next morning I was in the club room on the floor. ■ I had my coat and clothes on the same as I was the night before. The minute I woke up it came to me about my wife quarreling with me and some way that I had heard a pistol shot, I could not remember. I thought I heard a pistol •shot some time during the night. I jumped up and grabbed my pistol out of my pocket to see if it had been shot, and the cylinder of it was gone and I went right out in the wagon house, started to go over home. When I got where I could see the clock it was twenty minutes of six, and I expected Hr. Hinckel out any minute to take his horse, so I put ■on my overalls and jacket and went in the stable and .got his horse ready, and I just got his horse hooked when he came out and drove away. As soon as he drove away I took the pistol that I had, what was left of it, and walked around back of the icehouse and threw it under the corner of the old carriage house I was scared ; I didn’t know what to do. I went back and started to go over to my house to see if I was right in hearing that pistol shot. I got over as far as the little play house for the children and looked over to the house and saw smoke coming out of the chimney, and I thought then everything was all right, that she was up; so I turned and went back to the bam.” This is the defendant’s version of the transaction. It appeared, however, the next morning, that the front door was locked and that the door between the living part and the new apartment which was being fixed was bolted or fastened, and that in order to enter the living room he and another man had to push the door open. There was evidence tending to show that the drawers had been opened and the contents scattered about the room; that the money in Mrs. Hughson’s purse had been taken from it and it lay open upon the stand; that a half-dozen silver-plated salt cellars had been taken from the house and were subsequently found under the carriage house where he had thrown his pistol. When entrance was first effected to the house in the morning Mrs. Hughson was standing behind the door. When questioned as to what was the matter with her, she replied that she had fallen down stairs, but subsequently, after a neighboring woman had arrived, and it was found that she had gunshot wounds, she said in the presence of her husband that he had done it. This he denied, but he had made the statement that she had been shot before that fact had been discovered by others, and he evidently sought to have the impression go out that the house had been entered by burglars who had done the shooting. We have but briefly alluded to the evidence, passing over many of the details without mention. It was submitted to the jury upon an impartial charge, and the verdict has been found against the defendant. We have carefully examined the evidence, and are fully satisfied that it supports the conclusion reached by the jury. The circumstances quite clearly indicate deliberation and premeditation. He had never been in the habit of carrying a revolver until within three weeks of the homicide, and not then until the relation between himself and his wife had become so strained that they could not longer live together. It is true that he claims to have purchased it for the purpose of killing dogs, but he put it to a very different use. The opening of the drawers, the scattering of the contents about the room, the taking of the salt cellars and the emptying of the purse, all tended to support the theory that the house had. been entered by burglars, and in view of his subsequent admission, practically to the effect that the shooting was done by himself, although, he claims, Avhile in an unconscious condition, leaves no reasonable doubt but that there was deliberation and premeditation prior to the doing of the act.

In impaneling the jury Jacob Hiller was challenged for bias by the defendant. The challenge Avas overruled by the court and an exception taken. He was then sworn and served as a juror upon the trial, no peremptory challenge being interposed. Upon his examination he was asked if he entertained any prejudice against a party in possession of a pistol or revolver. He answered: “ Unless he has permisssion to carry such a weapon. Q. Suppose he has not permission ? A. Then I have. Q. Strong? A. Yes, sir. Q. And decided ? A. Yes, sir. Q. So strong it might influence your verdict? A. Hot a bit. Q. The evidence would have to be stronger in his behalf than though the ¡fistol was not spoken of ? A. Yes, sir. Q. Whether used or not? A. Yes, sir. Q. You say you entertain a strong prejudice against a party having in his possession firearms ? A. Yes, sir. Q. If you were accepted as a juror and it should develop on the trial that he was in possession of a firearm, Avould that prejudice, influence your verdict ? A. Ho, sir; not a bit. * * * Q. Do you believe that the prejudice you would have against a party carrying a pistol would influence your verdict upon the evidence that might be submitted ? A. Hot a bit.”

We think no error is presented by the ruling of the court. It will be observed that the examination of the juror was with reference to an abstract question, which so far as it then appeared was not involved in the case. It is true that upon the trial it appeared that the defendant had a pistol in his possession and the jury has found that it was the weapon with which the murder was committed. But it does not appear that the trial court at the time the ruling was made was advised that any such evidence would be presented, and if it had appeared we should still be inclined to the view that the ruling should be sustained. Every time the attention of the juror was drawn to the trial of the case and questioned as to whether the possession of a revolver would in any wise prejudice or influence his inind with reference to his arriving at a verdict, lie distinctly answered that it would not a bit. We do not understand that a juror can be disqualified by asking questions with reference to his views, or the effect that would be produced upon his mind from certain evidence which may be produced upon the trial. If so, criminal trials in many instances could be avoided for the reason that it might be impossible to find qualified jurors to sit upon the trials. If a person placed upon trial charged with the crime of burglary, who, upon being searched at the time of his arrest, was found to have burglar tools secreted in his clothing, should be permitted to disqualify jurors by showing that they had prejudice against men who carried upon their persons such instruments, it might be impossible to find a qualified jury before whom the person could be tried. We doubt if a worthy juryman could be found who could conscientiously testify that lie regarded such a person with the same favor as one who had never had such implements in his possession. The same may be true with reference to a revolver carried by a person for an unlawful or improper purpose. Such conduct on the part of a person may not be sanctioned or approved by law-abiding citizens. But the fact that the juryman does not approve of the carrying of a revolver or other concealed weapon in violation of the statute, does not necessarily disqualify him from serving upon a jury or prevent him from determining the guilt or innocence of the accused as an impartial juror.

Upon the trial, Pauline G-outchy testified that, on the morning after the shooting, and while Mrs. Hughson was being washed, witness, in the presence of the defendant, asked her how it happened, and that she replied, “ Ed did it,” referring to her husband; that the witness then turned to the defendant, who stood by, and said to him, Ed, is it possible that you done this?” That then he began to cry and said, “ Oh, no! I didn’t do it, and I couldn’t do anything like that.” And then he went away.

Declarations or statements made in the presence of a party, when admissible, are taken, not as evidence in themselves, but to enable the court or jury to understand the force and effect that should be given to the reply made thereto by the party affected. (Gibney v. Marchay, 34 N. Y. 301; People v. McCarthy, 110 N. Y. 309, 315; Missouri v. Devlin, 7 Mo. App. Rep. 32; Iowa v. Nash, 7 Clarke (Ia.), 347, 376; Watt v. Illinois, 126 Ill. 9; S. C., 1 L. R. A. 403; 2 Wharton’s Law of Evi. § 1136; Cowen & Hill’s Notes to Phillips on Evi., notes 191, 192.) The action, conduct and statements of a person charged with crime immediately after its commission often have an important bearing upon the question of his guilt or innocence. If he attempts an escape or secretes himself or makes false, contradictory or inconsistent statements, 'they all properly become the subject of inquiry upon the trial.

It is thus apparent that, under the rule to which we have called attention, the declaration of Mrs. Hughson to the effect that her husband had shot her was not evidence, or entitled to be received as evidence that he did do the shooting, but that it could only be taken for the purpose of enabling the jury to understand the force and effect that should be given to the reply made by him. If the defense interposed upon the trial had proceeded upon the theory that the shooting was done by some person other, than the defendant, and this evidence was introduced solely for the purpose of getting before the jurors the statement of the deceased accusing the defendant, instead of enabling them to draw conclusions from his answer made to the charge, in view of the fact that he then and there denied the shooting, it is quite possible that an orderly administration of the criminal law would require that he should be given a new trial. His case was, however, defended upon a different theory. When the crime was discovered, he first suggested the theory that the house had been broken into by burglars and the shooting done by them, and then, as we have seen, he denied that it was done by himself. Subsequently, he admitted that he had purchased a revolver on Green street in the city of Albany; that he had loaded it with four cartridges and that he carried it in his hip pocket; that he was in the house in company with his wife at a late hour on the night of the homicide; that they had a violent quarrel in which she threw a saucer at him, and that he then suddenly lost control of himself and knew nothing further until he awoke the next morning in the carriage house; that immediately upon awakening he recalled the quarrel of the night before, and had the impression that he had heard a pistol shot $ that he immediately drew his revolver from his pocket for the purpose of seeing whether it had been fired, and on making the discovery that it had been used he became frightened and threw it under the barn. He thus, in effect, admitted the shooting, and his defense was that it was done at a time when he was unconscious and not criminally responsible for his acts. Upon this theory his actions, conduct and. statements the next morning became important as bearing upon his mental condition. If, at the time he was- charged with the crime, he knew that the shooting had been done by himself and he denied it, it was a circumstance which the jury might properly consider as bearing upon the question of his guilt and his mental responsibility. We are, therefore, of the opinion that the evidence was competent.

The court, in submitting the case to the jury, defined the crime of murder in the first degree by reading the provisions of the Penal Code with reference thereto, including the statutory definition of an act eminently dangerous to others and evincing a depraved mind regardless of human life, together, also, with the provision with reference to the effecting the death of a person whilst engaged in the commission of q, felony. He then charged the jury that it must be with a premeditated design to effect the death of the person killed, and that, before they could convict the defendant of murder in the first degree, they must find that there was that degree of deliberation and premeditation which is contemplated by the statute. He did not, in specific terms, withdraw from the attention of the jury the killing of a person by an act imminently dangerous to others, or whilst engaged in the commission of a felony. He did, however, as we have seen, limit their consideration to the killing with deliberation and premeditation, so that we think there can be no question but that the jury properly understood the court with reference to the crime submitted to them for their determination.

At the close of the trial the defendant requested the court to charge that the evidence of good character may create a doubt against positive evidence of defendant’s guilt. The court replied: “ It is for the jury to say. The evidence of good character is evidence which must be considered, and if, in the judgment of the jury, that good character does raise a doubt against positive evidence, they have a right to entertain that doubt, and the prisoner must have the benefit of it.” An exception was taken to the charge as made by the court. We think the remarks of the court embraced every element of the request. Good character may create a doubt against positive evidence, but this doubt against positive evidence is created only when, in the judgment of the jury, the character is so good as to raise a doubt as to the truthfulness or correctness of the positive evidence. In such a case the prisoner must be given the benefit of the doubt. The charge was correct; it but amplified and made more plain the request.

A motion was made to set aside the verdict upon various grounds, among which is the claim that the defendant was prejudiced by the leaving in the jury room the blood-stained garments of the deceased, which had been made exhibits upon the trial. Section 425 of the Code of Criminal Procedure provides that the court may permit the jury, upon retiring for deliberation, to take with them any paper or article which has been received as evidence in the case, but only upon the consent" of the defendant and the counsel for the People. The evidence presented upon the motion tends t.o show that at the time the jury was about to retire the question was asked as to-whether they should be given the exhibits, and that thereupon the court inquired if there was any objection. None being made, they were given the exhibits that had been admitted in evidence upon the trial. The defendant now contends that he understood that only the paper exhibits were to be given to the jurors, and did not understand that the clothing was to he further inspected by them. We think, however, that the term “ exhibits ” embraced in the inquiry of the court had reference to the clothing as well as the other articles and papers, and that if the defendant did not wish them to he left in the charge of the jury, an objection should have been interposed when the court asked if there was any objection.

No other exception is presented which requires consideration here.

The judgment and conviction should he affirmed.

All concur.

Judgment affirmed.  