
    The People of the State of New York, Respondent, v. Thomas Tobin, Appellant.
    1. Murder — Sufficiency of Evidence — Insanity. The evidence upon the trial of an indictment for murder reviewed and held sufficient to sustain a verdict convicting the defendant of the crime of murder in the first degree, including, as an essential part of such verdict, the finding that the defendant was sane when he committed the act.
    0. When Court Is Justified in Refusing to Appoint Commission UNDER THE STATUTE (CODE GRIM. PRO. § 658) TO EXAMINE DEFENDANT and Report as to His Sanity. Where a trial court, at the request of counsel for a defendant charged with the crime of murder, at the time the indictment was moved for trial, appointed two expert physicians to examine the defendant and report as to his sanity, and adjourned the trial until such report could he made, and the physicians, after making an examination, reported that in their judgment the defendant was sane, in which opinion a third physician, who at one time had charge of defendant, concurred, the court is justified, in the exercise of sound discretion, in denying a motion made in hehalf of defendant, based upon the affidavits of his attorneys, for a commission, pursuant, to section 658 of the Code of Criminal Procedure, to examine the defendant and report to the court as to his sanity at the time of the examination, where no evidence is presented to controvert the report of the medical experts, who examined the defendant, and to show that he was insane, except the affidavits of his counsel, which contained few facts and consisted mainly of the expression of their own opinions, unsupported hy the affidavit of any physician.
    3. Instruction as to Presumption op Sanity op Dependant. An instruction to the jury that “if evidence is given tending to establish insanity, then the general question is presented * ® * whether the crime, if committed, was committed hy a person responsible for his acts; and upon this question the presumption of sanity and the evidence are all to he considered, and the prosecutor holds the affirmative, and if a reasonable doubt exists as to whether the prisoner is sane or not, he is entitled to the benefit of that doubt,” must be considered as embodying the correct rule upon the subject.
    4. Same — Trial Court Not Bound to Charge Request op Counsel Where Substantially the Same Proposition Has Already Been Charged. Where the court has carefully defined reasonable doubt and has charged in various ways that the jury must he convinced ■of the defendant’s guilt beyond a reasonable doubt, and that if there is a reasonable doubt as to his sanity he is entitled to the benefit of that doubt, the refusal to charge substantially the same propositions in the language of defendant’s counsel does not constitute reversible error.
    5. Same—Examination op Alleged Error in Charge—When Such Error Cannot Be Reviewed Without an Exception Thereto —Efpect op Section 528, Code op Criminal Procedure. An instruction hy the trial court that it is “ not necessary that every circumstance should he proved beyond a reasonable doubt,” does not constitute reversible error where it is apparent that the court did not mean that every circumstance constituting a link in the chain of circumstances necessary to establish “ the fact of killing hy the defendant ” need not be proved beyond a reasonable doubt, hut that every incidental circumstance, such as those hearing upon the probabilities that the main circumstances were true, or that every fact essential to convict, such as “the death of the person .alleged to have been killed,” need not be proved beyond a reasonable doubt; moreover, such instruction cannot he reviewed under the statute ■(Code Grim. Pro. § 528) in the absence of a specific exception thereto, when the court is satisfied that the verdict is right and based upon ■evidence that is clear and convincing.
    (Argued October 15, 1903;
    decided October 27, 1903.)
    Appeal from, a judgment of the Supreme Court, rendered at •a Trial Term for the county of New York December 22, 1902, 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.
    
      Henry W. Unger and Abraham Levy for appellant.
    In weighing the evidence upon the issue of insanity, the People are not entitled to have thrown in the scale, in their favor, any presumption of sanity. (O'Donnell v. Rodiger, 76 Ala. 222; Best on Evi. [8th ed.] 304; Justiee v. Lang, 52 N. Y. 329; Graves v. Colwell, 90 Ill. 615.) It was error for the court to refuse the request to charge that, if the jurors, entertain a reasonable doubt, from the evidence in the case, as-to the sanity or insanity of the defendant at the time of the commission of the act charged in the indictment, he is entitled to the benefit of that doubt and must be acquitted. (Walker v. People, 88 N. Y. 89.)
    
      William Travers Jerome, District Attorney (Howard S. Gans of counsel), for respondent.
    The court charged properly as to the burden of proof upon the issue of sanity. (Brotherton v. People, 75 N. Y. 159; O'Connell v. People, 87 N. Y. 377; Walker v. People, 88 N. Y. 81; People v. Egnor, 175 N. Y. 427; People v. Leonardi, 143 N. Y. 360.) The court charged clearly that the prosecution must establish the defendant’s sanity beyond a reasonable doubt, and it was not error to refuse to charge the same matter in the language requested by the defendant’s counsel. (People v. Pallister, 138 N. Y. 601.) 2To error is presented in the instructions on the weight, and effect of circumstantial evidence. (People v. Leonardi, 143 N. Y. 360.) The refusal to appoint a commission to-determine the defendant’s sanity at the time of the trial was a proper exercise of discretion on the part of the court and resulted in no prejudice to the defendant. (People v. McElvaine, 125 N. Y. 596.)
   Vann, J.

The homicide which is the subject of this, appeal occurred on the 27th of September, 1902. The next month the defendant was indicted, and on the 16th of December following, after a trial which lasted eight days, the jury found him guilty of murder in the first degree and judgment was pronounced accordingly. The counsel who conducted the trial are entitled to the thanks of the court and of the public for the thorough investigation made and the prompt disposition of this important case.

The defendant is thirty-seven years old and has spent about nineteen years of his life in prison. The offenses for which he was thus punished were crimes against property and he does not appear to have been charged with a crime against the person until the present accusation was made against him. In October, 1898, he was transferred from the state prison at Dannemora, where he was confined for grand larceny, to the JVIatteawan Insane Asylum for custody and treatment as an insane convict. On the 13th of December, 1900, he was returned to prison as recovered.” At the time of the homicide he was employed as a waiter at Ho. 38 West 29th street, in the city of Hew York, known as the Empire Café, a place of resort for prostitutes and their patrons. At one o’clock on the morning of September 27th, 1902, the police, according to their custom, cleared the place of all occupants except the employees, and during the rest of the night the door leading from the street to the first floor was locked, but access to the premises could be had through a Chinese restaurant in the basement. About an hour later, James Craft, a resident of Staten Island, forty-six years of age, and already under the influence of liquor, entered the basement, where a prostitute began to talk with him, and, upon the suggestion of the defendant, all three went upstairs into the café. The defendant brought in beer and whisky ordered by Craft, who, in paying therefor, exhibited a roll of bills amounting to twenty-five or thirty dollars. After that all the" employees and other persons left the place, some through the efforts of the defendant, except himself, Craft and McEneaney, who was the barkeeper. Craft and the defendant continued to drink until both were intoxicated, and at about five o’clock in the morning there was talk between them, approaching a quarrel, about some change claimed to be due after paying for drinks. After this discussion ended there was silence for about twenty minutes, and McEneaney, who was behind the bar where he could hear but could not see what was going on, testified that he then heard a thud followed by a fall. Going to the door he saw Craft on the floor, bleeding and senseless, and the defendant was jumping on him, tearing his clothes and kicking him. Craft’s face was swollen and covered with blood. McEneaney went over to the defendant, pushed him away and asked him what he was doing. He made no reply, but went downstairs, while McEneaney tried to pour some brandy down the throat of the injured man, but did not succeed because his teeth were clinched.” During his effort he got some blood on his hands, and while he was washing it off in another room the defendant returned, seized the body by the feet and was dragging it downstairs, the head bumping on the steps, when McEneaney took hold of the arms and helped carry the man to the foot of the stairs. McEneaney then said: Open the Chinese door and give him some air.” The body was put down, the defendant went into the Chinese restaurant, McEneaney went upstairs for some more brandy and on his return the defendant had the body in the cellar under the basement, and was standing over it with a butcher’s cleaver in his hand. The head was nearly off and the defendant struck the body once with the cleaver in the presence of McEneaney, who asked him what he was doing and pushed him back, but was told to mind his own business. He was afraid the defendant was going to hit him, and when told to take off his shirt, which was bloody, he did so, in fear of his life, and as the shirt came off over his head he pushed Tobin “ with shirt and all ” and ran upstairs. He put on his coat and hat, took a drink, picked up a bottle to defend himself and went downstairs quietly, where he saw the defendant holding the head, severed from the body, in his hands and walking toward the furnace in the cellar. He then ran out of doors, called a cab, drove to a station house and informed the police. This is an outline of the.story told by McEneaney, who was jointly indicted with the defendant, but was not tried with him. It was corroborated in nearly all respects by the testimony of several witnesses.

When the police arrived they found the body entirely naked, concealed under some rubbish in the cellar. There was a pool of blood two feet wide near the furnace, with a trail of blood leading to the furnace door. The head and clothing, half charred, were in the furnace, where a fire had been kindled but was nearly out, as the draft did not work. The defendant was found with blood on his hands and clothing hiding in the saloon. He had in his pocket thirty-six dollars in bills, besides some silver and coppers. A cleaver, old and with, a rough edge, was picked up in the café and was identified as one kept for use in the Chinese restaurant.

The physician who made the autopsy found all the organs of the body in a healthy condition. Thirteen different blows had been struck with an instrument having more or less of a sharpened edge before the head had been severed. There was a fracture of the skull, which would probably have caused death in time, but the surgeon vas of the opinion, from the flow of blood and other physical signs, that the man was alive and the heart still beating when his head was cut off.

We will not continue this painful narrative, for the learned counsel for the defendant does not ask us to review the facts; still we have examined “them with care, and find that the evidence sustains the verdict, including, as an essential part thereof, that the defendant was sane when he committed the act. The only substantial contest at the trial ivas over the sanity of the defendant, and upon that issue the weight of evidence was with the People. Fóur questions of law have been argued before us which we will-now consider.

1. On the 4th of December, 1902, when the trial of the indictment was moved, the counsel for the defendant stated that they believed he was insane and asked the court to appoint some competent physician for the purpose of making an examination as to his mental condition. The court thereupon adjourned until the 8tli of December, and in the meantime the justice presiding requested two expert physicians of long experience and high standing to examine the defendant and report as to his sanity. They made an examination and reported that in their judgment the defendant was sane and a third physician, who at one time had charge of the defendant, concurred in that opinion. When the court met pursuant to adjournment a motion was made in behalf of the defendant, based upon the affidavits of his attorneys, for a commission pursuant to section 658 of the Code of Criminal Procedure, but in view of the report of the experts appointed by the court the motion was denied. The case proceeded to trial and it is now claimed that the denial of the motion was reversible error, but we think this point is not well taken.

The statute authorizes, but does not require, the court to appoint a commission to examine “ a defendant who pleads insanity” and report “as to his sanity at the time of the commission of the crime; ” or when “ a defendant in confinement, under indictment,” either before or after conviction, appears “ to be insane,” the court “ may appoint a like commission to examine him and report * * * as to his sanity at the time of the examination.” (Code Crim. Pro. § 658.) When the motion in question was heard no plea of insanity had been made by the defendant, but this is not important because the application was for a report as to his mental condition at the time of the proposed examination. The court was authorized to appoint a commission for this purpose, provided the defendant appeared to be insane when the motion was made. Since eminent medical experts, appointed informally upon the suggestion of the defendant’s counsel, had within a day or two, after personally examining him, reported that he was sane, how could the court decide that he appeared to be insane when no evidence was presented to show it, except the affidavits of the counsel themselves, who did not claim to be experts and who presented no supporting affidavit from any physician ? Their affidavits contained few facts and were confined mainly to the expression of their own opinions. The facts, except the confinement of the defendant in the Matteawan asylum, related to acts and words of the defendant which may have been feigned and which it is reasonable to believe, in view of the testimony subsequently given at the trial, were in fact feigned. The question was within the sound discretion of the court, and we think it was discreetly exercised. The subject was thoroughly discussed in a recent case, the facts of which were so analogous as to make it controlling. (People v. McElvaine, 125 N. Y. 596, 605.)

'2. In charging the jury upon the question of insanity the court said : “ Sanity being the normal and usual condition of mankind, the law presumes that every individual is in that state. Hence the prosecutor may rest upon that presumption. Without other proof, the fact is deemed to be proved prima facie. Whoever denies this or interposes a defense based upon its untruth, must prove it. The burden, not of the general issue of the crime by a competent person, but the burden of overthrowing the presumption of sanity or of showing insanity, is upon the person who alleges it. And if evidence is given tending to establish insanity, then, the general question is presented to the court and jury whether the crime, if committed, was committed by a person responsible for his acts. And upon this question the presumption of sanity and the evidence are all to l)e considered, and the prosecutor holds the affirmative, and if a reasonable doubt exists as to whether the prisoner is sane or not, he is entitled to the benefit of that doubt.”

The counsel for the defendant claims that it was error to instruct the jury upon the vital question in the case that the presumption of sanity and the evidence are all to be considered. lie argues that the function of the presumption with which the trial starts is ended when evidence has been given tending to show that the defendant is insane; that thereupon the presumption becomes fvnctus officio and the case proceeds as if it had never existed; that the burden of proof thus thrown upon the prosecuting officer requires him to establish sanity by evidence, without any aid from the dead presumption, which is not evidence; that the only use of the presumption is to relieve the People of the necessity of proving sanity in the first instance, and when it has been overthrown by evidence for the defendant, while the jury may consider it they are not required to and should' not be told by the court that it is their duty to.

This point was not raised by an exception, ahd the portion of the charge above quoted was taken verbatim et literatim from the opinion in Brotherton v. People (75 N. Y. 159, 162). That case has been cited and followed so faithfully for a quarter of a century both by trial courts and appellate courts,, including ourselves, that we regard it as the established law of the state, and while we appreciate the argument of counsel upon the subject, discussion is foreclosed, for the question is not open to consideration.

3. The defendant asked the court to charge the jury that if they “ entertained a reasonable doubt from the evidence in the case as to the sanity or insanity of the defendant at the time of the commission of the act charged in the indictment he is entitled to the benefit of that doubt and must be acquitted.” The court declined to vary his charge and an exception was taken.

In the body of the charge the court carefully defined reasonable doubt and told the jury, among other things, that “ Whether the defendant killed Craft is a question of fact which you must determine from all the evidence in the case, and that must be established beyond a reasonable doubt.” “If the People have failed to establish by the evidence, beyond a reasonable doubt, that there was premeditation and deliberation, then the prisoner is entitled to the benefit of that doubt.” “ Before you can find the defendant guilty of murder in the first degree, it is necessary that the facts should satisfy you beyond a reasonable doubt that the defendant struck the deceased with a deadly 'weapon and that he had in his mind at the time he struck the blow or blows or beheaded him, a deliberate and premeditated design to kill him.” “ You must be convinced of the prisoner’s guilt beyond a reasonable doubt. * * If you are satisfied beyond a reasonable doubt of the guilt of the prisoner, it will be your duty to say so.” If a reasonable doubt exists as to whether the prisoner is sane or not, he 'is entitled to the benefit of that doubt.” But it all rests upon your good judgment to determine * * * whether this defendant knew the nature of the crime that he was committing, whether he knew that he was doing a wrongful act or not. ' If you entertain a reasonable doubt upon that point he is entitled to the benefit of that doubt.” “ If you reach the conclusion from the evidence that the defendant is innocent, it is your duty to acquit him, but, on the other hand, if you come to the conclusion from the evidence heyond a reasonable doubt that the defendant committed the crime and that he was sane when he committed it then it is your duty to find him guilty.”

At the close of the charge the counsel for defendant asked the court to instruct the jury that When the defense of insanity was interposed in this case and throughout the case this defendant is entitled to the benefit of the reasonable doubt resting upon the question of insanity.” The court remarked that he had charged that, and when further asked to charge it in those words said it was unnecessary, but added, “ I charge the jury that if they have a reasonable doubt as to his sanity he is entitled to the benefit of that doubt.” The learned justice further said : Gentlemen, after the insanity is first established or the defendant’s witnesses give testimony tending to show that the defendant is insane, it then devolves upon the People to satisfy you beyond a reasonable doubt that at the time he committed the homicide he was sane.” Upon the request of the defendant he also charged that the defense of insanity interposed here by the defendant need not be proven beyond a reasonable doubt.” Then followed the request, with reference to which the exception was taken.

It is claimed that the court did not make it clear, while the request did, that the defendant should be acquitted if the jury had a reasonable doubt as to his sanity. It would be very remarkable if the jury failed to understand the effect of a reasonable doubt and that if they entertained it as to any one of the various elements of guilt, they should acquit the defendant. How could they give him the benefit of a reasonable doubt, as they were repeatedly told to in certain contingencies, except by acquitting him % They were told what the People were bound to show beyond a reasonable doubt in order to convict, and that the defense of insanity relied upon by the defendant need not be proved beyond a reasonable doubt. How could they observe these directions or give any effect to them except by finding a verdict of acquittal, if a reasonable doubt existed in their minds as to the sanity of the defendant ? We find no error here, for the court, as we have repeatedly held, was not bound to charge in the language of counsel, provided the substance of the request was fairly covered, as we think it was. (People v. Pallister, 138 N. Y. 601.)

4. It is further claimed, although, the point was not raised by an exception, that it was error for the court to charge that it was not “ necessary that every circumstance should be proved beyond a reasonable doubt.”

The court did not mean by this that every circumstance constituting a link in the chain of circumstances necessary to establish “ the fact of killing by the defendant” need not be proved beyond a reasonable doubt, but that every incidental circumstance, such as those bearing upon the probabilities that the main circumstances were true, or that every fact essential to convict, such as “ the death of the person alleged to have been killed,” need not be proved beyond a reasonable doubt. (Penal Code, § 181.)

Moreover, it- is to be remarked that only errors raised by exception require a new trial, and it is only when we are satisfied that the verdict was against the weight of evidence, or against law, or that justice requires a new trial, that we are permitted to reverse whether an exception shall have been taken or not in the court below. (Code of Grim. Proc. § 528.) In this case we think the verdict was right and that it was based upon evidence that is clear and convincing. We do not think that it was against the weight of evidence, or against law, or that justice requires a new trial, and hence, owing to the absence of an exception we are not at liberty to exercise a discretion confided to us for the protection of persons under sentence of death, as to whose guilt we may have some doubt. Exceptions are still necessary, notwithstanding the statute, to fully protect the rights, and especially the technical rights, of a person on trial, even for a capital offense. This is just, for if an exception is taken the court, warned by the challenge, may correct the error on the spot and thus avoid the expense and delay involved in case a new trial should be ordered.

As we find nothing to justify a reversal, the judgment must he affirmed.

Parker, Ch. J., Gray, O’Brien, Bartlett, Haight and Martin, JJ., concur.

Judgment of conviction affirmed.  