
    The People of the State of New York, Appellant, v. William Conroy, Respondent.
    Upon trial of an indictment for murder, wherein insanity was set up as a defense, a witness for defendant, who had testified as to, and gave the details of an interview with him on the same evening, and a short time prior to the homicide, was asked : “ Were his acts at eight o’clock that night rational or irrational? ” This was objected to, and objection sustained. Held error. -
    
      It seems that to render the opinion of one not an expert competent in such a case, it must be limited to his conclusion from the specific facts his testimony discloses.
    It was not intended by the provision of the Code of Criminal Procedure § 273), abolishing existing forms of pleading in criminal actions, to set aside the judicial construction theretofore given to the language usually employed in such pleadings; its true office is to' abrogate the technical rules formerly governing such pleadings, and to substitute simpler forms and a more liberal interpretation.
    In an "indictment under said Code for murder in the first degree it is not necessary that the particular intent with which the homicide was committed shall be set forth ; it is sufficient to allege that it was done feloniously, with malice aforethought, and contrary to the form of the statute. (Code of Grim. Pro., §§ 275, 284.) ’
    The question as to whether the crime was committed under such circumstances, with reference to intent, as to make it murderjin the first degree within the statutory definition (Penal Code, § 183), is one of fact, determinable by the jury.
    
      It seems that it is the better form of pleading to charge the crime to have been committed with one of the several intents described in said Penal Code.
    The objection that an indictment does not conform to the requirements of the Code of Criminal Procedure (§§ 275, 276) may only be taken by demurrer. (§§ 321, 323.)
    An indictment for murder contained two counts, one charging that defendant discharged a pistol at K. “ with a deliberate and premeditated design ” to effect his death, and that death resulted therefrom. The other charged in substance that defendant committed the crime of murder in the first degree by “ feloniously, willfully and with malice aforethought” shooting K. and thereby killing him ; that such killing was done “ willfully, feloniously, and of his malice aforethought and contrary to the form of the statute in such case made and provided.” The court on the trial instructed the jury to acquit unless they came to the conclusion that the shooting was done with a deliberate and premeditated design to effect the death of K. as charged in the first count. The defendant was convicted. The judgment entered was reversed by the General Term. Upon appeal to this court, held, that even if the evidence authorized a conviction under the second count of killing “ by an act immediately dangerous to others and evincing a depraved mind, although without a premeditated design to effect the death of any individual,” this court could not reverse the decision of the General Term, as the questions of fact involved have not been submitted to the jury or passed upon by the General Term.
    
      It seems that although this court could not agree with the General Term upon the question of the sufficiency of the proof as to deliberation and premeditation it would hesitate greatly before reversing an order granting a new trial upon that ground, unless absolutely necessary to prevent a failure of justice.
    
      It seems, also, that the better practice in such cases on the part of the people, unless the determination of the court below proceeds upon grounds necessarily fatal to a conviction upon a new trial, is to acquiesce in such determination, and proceed with the retrial.
    A review of questions of law in a criminal action may not be had in this court on appeal from order of the General Term, reversing a judgment of conviction and granting a new trial, where questions of fact, arising upon conflicting evidence, were tried and determined by the jury, unless the order of reversal shows that the General Term considered the case upon the facts, and found no reason for granting a new trial thereon, and that the same was granted upon questions of law exclusively.
    
      It seems, that on the trial of an indictment for murder in the first degree where the homicide is charged to "have been committed ‘ ‘ from a deliberate and premeditated design to effect the death of the person killed ” (Penal Code, § 183, subd. 1), while the prosecution is required to prove deliberation and premeditation, and while there is no legal presumption arising from proof of the mere commission of the homicide by the defendant which concludes the jury from finding upon that evidence alone that such facts were not established, yet they may be inferred from the perpetration of the act, and the jury are authorized to find them unless the circumstances surrounding the homicide clearly repel the idea of deliberation and premeditation.
    In capital as well as in other cases in which intent is made an element in determining the character of the act, where the result produced is the natural and necessary result of the act, the jury has the right to find from the result the intention to effect it, unless the act was done under circumstances precluding the existence of such an intent.
    Upon the trial of such an indictment the testimony tended to show that the defendant, knowing the location of the deceased, drew a pistol from his pocket, with some difficulty, as it caught in the lining, and, spite of the appeals of another person ’not to fire, turned toward the deceased, pointed the pistol in his direction and fired, causing his death. Held, that the evidence was - sufficient to authorize the jury to find premeditated and deliberate design to cause the death; and this, although no motive for the killing was shown.
    To authorize the inference of premeditation and deliberation in such a case the lapse of any special period of time is not required, but such an inference is justified from proof of the commission of an act which naturally would and does produce death, under circumstances showing that the perpetrator was not disturbed by sudden and uncontrollable emotion excited by an unexpected and observable cause, and where he was at the time in the possession of his usual faculties.
    (Argued June 26, 1884;
    decided October 14, 1884.)
    Appeal from order of the General Term of the Supreme Court, in the first judicial department, made June 14, 1884, which reversed a judgment of the Court of General Sessions of the peace in and for the city and county of New York, entered upon a verdict convicting defendant of the crime of murder in the first degree.
    The material facts are set forth in the opinion.
    
      John Vincent for appellant.
    The defendant’s intent to kill Keenan was.fully proved by all the facts preceding and succeeding the act. (91 N. Y. 211; People v. Leighton, 88 id. 117; People v. Sindram, id. 196.) The necessary premeditation and deliberation to make out the crime of murder were proved. (People v. McGlom, 91 N. Y. 254; Penal Code, § 183.) If there was a premeditated and deliberate design against Cantwell and the ball from Conroy’s pistol entered Keenan’s body, the crime is complete. (People v. Enoch, 13 Wend. 159; People v. Kennedy, 39 N. Y. 245; People v. Fitzgerald, 37 id. 413; 1 Russ. on Crimes, 538-539; 1 Hale, 441.) The defendant is presumed to be responsible for his acts and the burden of proving him irresponsible is upon the accused. (Penal Code, § 17.) As there was no exception to the charge it cannot he reviewed by this court. (Mathews v, Neyberg, 63 N. Y. 65.)
    
      William F. Howe for respondent.
    The court should have taken the question as to whether the prisoner was guilty of murder in the first degree from the consideration of the jury. (People v. Bennett, 49 N. Y. 137.) A lay witness may, after describing acts of another, give his opinion as to whether the acts were rational or irrational. (De Witt v. Barly, 17 N. Y. 340; Howell v. Taylor, 11 Hun, 214; Best’s Prin. of Ev., § 349; Adams v. People, 3 Hun, 654; 63 N. Y. 621; People v. Eastwood, 14 id. 562.) Where intoxication results in a fixed mental disease of some continuance in duration it will have the effect to relieve from responsibility. (Lanagan v. People, 6 Park. 209; O'Brien v. People, 48 Barb. 274.)
   Ruger, Ch. J.

The defendant was indicted and convicted in the Court of General Sessions of New York, of the crime of murder in the first degree, for having killed one Peter Keenan, on the night of November 3,1883, by means of a pistol. The killing was not denied, but it was urged in defense that there was an absence of that deliberation and premeditation essential to the commission of the crime charged, and that the defendant was insane at the time of its perpetration. The General Term reversed the conviction upon the ground that the evidence was insufficient to establish such deliberation and premeditation, and that such evidence was essential to justify a conviction under the indictment.

Although we differ with that .court in reference to both of the propositions stated, we are precluded from reversing its order upon that ground by a well founded exception taken by the defendant to the decision of the trial court, excluding certain evidence offered by him, and which requires us to affirm the order granting a new trial.

One of the defenses sought to be established upon the trial was the insanity of the defendant at the time of the commission of the offense. The witness, Buckley, had testified to the conduct and conversation of the defendant at an interview occurring between them earlier in the evening of the day on which the homicide occurred, and stated that he then drank two glasses of sherry with Conroy, and conversed with him for the space of one hour. He testified to the details of a long conversation, in which the defendant appeared to talk in a rambling, incoherent and discursive manner. He was afterward asked by the defendant’s counsel the question: Were his acts at eight o’clock that night, in your judgment, rational or irrational ? ” The return of this court was counted on the argument by the consent of the district attorney, to show that this question was objected to by the counsel for the people, and the objection was sustained by the court, to which the defendant excepted.

The evidence called for by this question was pertinent upon the issue of the defendant’s insanity, and the witness was competént to give his opinion as to the character of the conduct and conversation which he had observed. How much or how little the answer might have influenced the jury if the witness had been permitted to give it, we are unable to conjecture. The jurors might have considered it important, or in the exercise of their judgment might have disregarded it as of no material weight.

The question of the defendant’s sanity was one upon which the jury was required to pass, and the defendant was entitled to give such competent evidence as he possessed upon that question, and this privilege was denied him.

The rule regulating the admissibility of the opinions of non-expert witnesses upon questions affecting the mental condition of individuals is well stated in the opinion of Judge Porter in Clapp v. Fullerton (34 N. Y. 190). He says: “ When a layman is examined as to facts within his own knowledge and observation, tending to show the soundness or unsoundness of the testator’s mind, he may characterize as rational or irrational the acts and declarations to which he testifies.” “ But to render his opinion admissible, even to this extent, it must be limited to his conclusions from the specific facts he discloses. *’ The rule thus expressed was followed and approved in the cases of O'Brien v. People (36 N. Y. 282), and Hewlett v. Wood (55 id. 634). This question was recently examined and discussed in this court in the case of Holcomb v. Holcomb (95 N. Y. 316), and the rule as above stated was approved, and our conclusion upon this question leads to an affirmance of the General Term order.

A new trial, therefore, being necessary, its exigencies require us to examine the conclusions reached by the General Term in ordering it, and to state our reasons for differing with the views expressed in the prevailing opinion of that court upon which such order was based.

The Penal Code (§ 183) declares, that “ the killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed either from a deliberate or premeditated design to effect the death of the person killed or of another; or, by an act imminently dangerous to others and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual.” Other cases, not important here to refer to, are also described in the statute.

This indictment contained two counts, one alleging, substantially, that the defendant shot off and discharged a pistol at Peter Keenan, resulting in his death, “ with a deliberate and premeditated design to ” effect his death. The second count charged in substance, that the defendant committed the crime of murder in the first degree, in the first ward of the city and county of New York, on the 3d day of November, 1883, by feloniously, willfully and with malice aforethought, shooting one Peter Keenan with a bullet discharged by him from a pistol, and thereby inflicting upon said Keenan a mortal wound, whereof he died on the 4th day of November, 1883 ; that said killing was done “ willfully, feloniously, and of his malice aforethought and contrary to the form of the statute in such case made and provided.” This count seems to contain all of the allegations necessary to describe the crime of murder in the first degree, as defined in the Penal Code. The requisites of a good indictment are prescribed by section 275 of the Code of Criminal Procedure, and are the following: “ The indictment must contain, 1st. The title of the action, specifying the name of the court to which the indictment is presented, and the names of the parties. 2d. A plain and concise statement of the act constituting the crime, without unnecessary repetition.” Section 284 provides, with reference to objections which may be made to an indictment for defects' in the description of the offense, that it is sufficient if it can be understood therefrom. “ 6th. That the act or omission charged as the crime is plainly and concisely set forth.” 7th. That the act or omission charged as the. crime is stated with such “ a degree of certainty as to enable the court to pronounce judgment upon a conviction according to the right of the case.”

The act through which the crime in this case was effected is fully described in the second count of the indictment, and is charged to have constituted the crime of murder in the first degree and to have been done feloniously, with malice aforethought, and contrary to the form of the statute in such case made and provided.

It has never been required, under the strictest and most technical rules of pleading, that the particular intent with which a homicide was committed should be set forth in the indictment ; but it has uniformly been deemed sufficient to allege it to have been done feloniously, with malice aforethought, and contrary to the form of the statute. (People v. Enoch, 13 Wend. 159; Kennedy v. People, 39 N. Y. 245; People v. Fitzgerrold, 37 id. 413.)

The question as to whether the crime was committed under such circumstances with reference to intent, as makes it murder in. the first degree within the statutory definition, has been held, under several changes of the statute defining that crime, to be one of evidence determinable by the jury under the instructions of the court. (People v. Enoch, supra.) Judge Woodruff, in Fitzgerold v. People (supra), commenting upon the case of People v. Enoch, and others, says: The result of these cases most clearly is that the crime of murder is sufficiently charged when alleged, as in the present indictment, with malice aforethought.’ But, in order to prove the crime, the proofs must establish a case within the requirement of the statute, in one of its three subdivisions. And the party indicted is entitled to proper instructions to the jury as to what facts must be found to sustain the indictment.’ ’ There would seem to be no reason why the form of an indictment, which was considered sufficient under the strict and technical system of pleading formerly prevailing, and which required the allegation of every essential fact constituting the crime, should be deemed insufficient under a system directed to the simplification of criminal proceedings, for the avowed purpose of obviating a failure of justice, which had sometimes occurred through the technicalities of an artificial and complex mode of procedure. It was not intended by the section of the Code of Criminal Procedure, abolishing existing forms of pleading in criminal actions, to obliterate forms of expression, or the judicial construction theretofore given to the language employed in such pleading; but its true office was to abrogate the technical rules formerly governing the construction of criminal pleadings, and to substitute therefor the simplicity and liberality of interpretation presented by the new system of criminal procedure.

In the first report made by the commissioners of the Penal Code to the legislature in 1850, the following form, aside from its formal parts, for an indictment for murder in the first degree, was recommended, viz.: “ A. B. is accused by the grand jury of the county of , by this indictment, of the crime of murder in the first degree, committed as follows: The said A. B. on the day of , 1850, at the city of in this county, without the authority of law, and with malice aforethought, killed C. D. by shooting him with a pistol.” The commissioners say in a note to the form, that “ the words 1 malice aforethought ’ are used in the same sense in which they are understood in the existing form of indictments for murder, and are intended to comprehend the several divisions of that offense, as it is defined by statute.”

While the construction given by the commissioners of the Code is not deemed controlmg authority on the question of its interpretation, it is yet entitled to high consideration in determining the meaning and intent of the statute. An indictment which now states all of the facts necessary to constitute a crime under the Penal Code is not bad, because in the statement it adopts the phraseology formerly in vogue, provided by the usual and natural import of the language, the matters intended to be alleged, are communicated with sufficient clearness to fully inform the defendant of the charge which he is required to answer.

The form adopted in this case was the old common-law form of pleading which has been uniformly approved as sufficient by the courts of this State through all the statutory changes in the definition of the crime of murder, and embraces, all of the allegations deemed material by the authors of the Code. It is undoubtedly the better way of pleading, to charge the critne to have been committed with one of the several intents described in the Code, but we are of the opinion that it is sufficient if the description of the offense be stated in the language employed in the second count of this indictment.

No demurrer was interposed to this count by the defendant, and the objection that it did not conform to the requirements of sections 275 and 276 of the Code of Criminal Procedure, could be taken only by demurrer. (§ 321, Code of Criminal Procedure.)

It is now claimed by the people that notwithstanding the abolition of the prior form of pleading in criminal actions, effected by section 273 of the Code, that a conviction for murder in the first degree may be sustained under the second count of this indictment if the evidence justifies it, even though it were insufficient to sustain all of the allegations charged in the first count.

■ We fail to see how the people can be aided on this appeal by our conclusion as to the sufficiency of the second count, inasmuch as the question of fact thereby presented has not been tried and determined in the trial court.

The court on the trial substantially instructed the jury to find a verdict of not guilty, unless they should come to the conclusion that the shooting was done with a deliberate and premeditated design to effect the death of Keenan, as charged in the first count; and that question, with the defenses thereto, alone was "submitted to the jury. Even if we were of the opinion, therefore, that the evidence authorized the jury to convict under the second count of killing by an act immediately dangerous to others, and evincing a depraved mind, regardless of human life, although without a premeditated design to effect the death of any individual,” we could not, for that reason, reverse the judgment of the General Term, since the questions of fact involved, have not been submitted to the jury, or passed upon by the General Term. (Home Ins. Co. v. Western Transportation Co., 51 N. Y. 93; Stapenhorst v. Wolff, 65 id. 596.)

The General Term did not reverse the conviction upon the facts as it might have done, but a majority of that court came to the conclusion that the evidence was insufficient in law to authorize a conviction under the first count of the indictment, and reversed the judgment upon that ground.

Although we cannot agree with the views expressed by the General Term upon the question of the sufficiency of the evidence of deliberation and premeditation proved against the defendant upon the trial, we would have hesitated greatly before reversing an order granting a new trial upon that ground, on account of our reluctance in a capital case to render such a decision, unless it is absolutely necessary to prevent a failure of justice. The high regard which courts entertain for the rights of parties accused of crime will always render this court averse to interfering with an order granting a new trial, in a capital case, where the necessary effect of such a course will be to deprive a human being of life. In such cases it is the wiser and better practice on the part of the public prosecutor, unless the determination of the court below proceed upon grounds which must necessarily be fatal to the prosecution upon a new trial, to acquiesce in- the decision of the General Term, and proceed with the retrial.

It-also seems proper in this case to comment upon the form' of the order appealed from, and suggest again what we consider to be the appropriate formula to be used in cases, in which a review of questions of law by this court in criminal cases is desired. The present order certifies “ that for the errors of law aforesaid, so found in the said return, and not for errors of fact or as matter of discretion, the judgment appealed from herein be, and the same hereby is, reversed and set aside, and a new trial of the said appellant ordered to be had. ” In a case where questions of fact arising upon conflicting evidence are tried and determined by the jury, a defendant is entitled to a review and determination of such questions by the General Term. In this case the defendant had taken the necessary steps to secure his right, and ought not to be deprived of it. Such a review has not been had, and we cannot say that the General Term would not have granted a new trial upon the evidence if it had supposed the ground of the decision actually adopted by it was erroneous. It is essential that the order made by that court should state that it had considered the case upon the facts, and the result of such consideration. If it certifies that it finds no reason for granting a new trial upon the facts, and then orders a new trial upon a question of law exclusively, that question may properly be brought to this court for review.

The reasons for this rule are fully explained by Judge Rapallo in the case of Harris v. Burdett (73 N. Y. 136), and need not here be repeated or elaborated.

Recurring to the question discussed in the court below, we are of the opinion that the jury was justified in inferring, from the facts and circumstances proved, that the death of Keenan was the result of deliberation and premeditation on the part of the defendant. The evidence tended to show that the defendant had been a policeman in the city of New York several months, performing the duty of a patrolman. On the night of the homicide, at about half-past eleven, he passed the saloon of one Cody, in which were assembled some fifteen or more persons, and was informed that one Murphy had been treating the crowd, and that he was entitled to a drink. He entered the saloon with some friends and drank a small glass of sherry. He was conscious of a violation of duty in going into the saloon, and in reply to some one who interrogated him as to what he should do in case he was discovered, replied that he should “run him in.” Almost immediately thereafter he commenced an abusive controversy with one Cantwell, and proposed to fight with him. He then produced some money and offered to bet that he could whip any man in the room. No one accepted his offer. He invited the party to drink, and when the charge for the treat was stated to him, he angrily disputed it, and commenced polling the persons present to determine how many had drank upon his invitation. When one McGinnis stated that he had drank a glass of mixed ale, defendant called him a G—d d—d liar, and upon McGinnis retorting, “ you are another,” knocked him down and kicked him. The crowd interfered to protect McGinnis, and gathered around the defendant, whereupon he drew his club and drove all except Cody, Keenan, Buckley, Keating and Cantwell, from the room into a card-room adjoining. Some one in the card-room then attempted to open the door and look into the saloon, whereupon the defendant struck at him with his club and broke a pane of glass in the door. He then pushed the door open and struck at the people in the card-room. Immediately after this he stepped backwards into the saloon three or four paces, and putting his hand into his hip pocket endeavored to pull out his revolver. The witness, Keating, then expostulated with him and said “for God’s sake Billy don’t fire, those are friends of mine.” He continued his efforts, but the attempt was obstructed by the instrument catching in the pocket. He soon, however, released it, and in the language of the witness Cody, “ turned to the left, and he leveled his revolver in the direction; by that time I beckoned at my wife to go back when I saw the revolver pointed in the direction where she was and Keenan and Cantwell. I spoke to her, and during the time I was speaking the revolver was fired.” “He fired the shot and Keenan staggered back, and he says, £I am gone.’ ” Cantwell who stood near Keenan says: ££ I couldn’t say whether he fired at me or Keenan, but he turned toward us.” The defendant with Buckley and Keating then went into the street, and seeing two or three boys running away from the vicinity, threw his club and discharged three or four shots from his revolver at them. Reinforced by two policemen, to whom he stated that he had been fighting a mob, he returned to the saloon, where he was informed that a man had been shot. He there saw two men and inquired, “ ain’t those two of the mob ? ” being answered by Buckley that he had seen no mob that night, he said, “ I have been hit with bricks, haven’t I ? ” Buckley replied, “ Ho.” The defendant then gave the two men into the custody of his associates, and finding Keenan lying behind the bar, pulled him up by the lapels of his coat and compelled him to walk to the station-house. The evidence tended to show that he clubbed Keenan severely on the way, and inflicted bruises upon his face, head and neck. On arriving at the station-house, Conroy stated to the policeman in charge, that he was assaulted by a crowd of roughs in Thirty-sixth street, between First and Second avenues, while attempting to arrest Keenan for drunken and disorderly conduct. He charged that Keenan was drunk and collected a crowd, and used profane language. About the same time,.in an interview with Capt. Ryan, a policeman, he stated that he “ arrested a man of the name of Keenan for being drunk and disorderly; as I had him arrested he assaulted me, and the crowd rushed onto me and took him away. I then drew my pistol and fired into the crowd, and I happened to shoot this man.”

Soon after his arrival at the station, he had a conversation with Sergeant Cassidy, in which he stated that he arrested Keenan for being drunk and disorderly; that he was attacked by a crowd, and his prisoner rescued. Upon being asked: “Is this man shot?” he replied, “ Well, I don’t know; if he is not it is not my fault, I tried hard enough to shoot him.”

It was undoubtedly essential under the first count of the indictment. that effect should be given to both of the words “ deliberation and premeditation,” as used in the statute; and that the act should be proved to have been deliberate in the sense that it should not have been committed under the influence of sudden and uncontrollable impulse, produced by a proximate cause ; and premeditated in the sense that an intention to inflict injury must have preceded the doing of the act, which effected death. It is a general rule, however, that all homicide is presumed to be malicious, and, of course, amounting to murder until the contrary appears from circumstances of alleviation, excuse or justification. (Russell on Crimes, 483; 2 Blackst. Com. 201; Rex v. Greenacre, 34 Eng. C. L. Rep. 280; Hill’s Case, 2 Gratt. 594; People v. McLeod, 1 Hill, 436.)

It was, however, held in People v. Stokes (53 N. Y. 164) that a charge stating that “ the fact of killing in this case being substantially conceded, it becomes the duty of the prisoner here to satisfy you that it was not murder, which the law would imply from the fact of the killing, under the circum-. stances, in the absence of explanation that it was manslaughter in the third degree, or justifiable homicide,” was erroneous, because it relieved the prosecution from the burden of proving the killing to have been premeditated, and imposed the obligation upon the defendant of showing affirmatively, that the homicide was effected under such circumstances as excused or justified the defendant. The effect of this decision undoubtedly requires the public prosecutor, on the trial of an indictment for murder in the first degree, to prove all of the essential facts required by the statute to make out the crime. But when the commission of a homicide by the person accused, has been shown, it is the province of the jury to say, from the facts and circumstances surrounding it, unless they clearly repel the idea of deliberation and premeditation, what the character of the act really was, and the degree of crime which should be attached to it. In other words, that there is no legal presumption arising from mere proof of the commission of a homicide, that concludes the jury from finding, upon such evidence alone, that there was not such deliberation and premeditation, as constitutes the crime of murder in the first degree, or but that the act was justifiable or excusable. The intention to commit a homicide which is not formed under the impulse of immediate provocation, or a sudden and instinctive apprehension of danger from some apparent cause, would seem to involve, to a certain extent, both deliberation and premeditation. These terms are not the creation of our statute, but were considered essential elements of the crime at common law. It was said by Judge Johnson in People v. Clark (7 N. Y. 393): “ If there be sufficient deliberation to form a design to take life, and to put that design into execution by destroying life there is sufficient deliberation to constitute murder, no matter whether the design is formed at the instant of striking the fatal blow, or whether it be contemplated for months. It is enough that the intention precedes the act, although that follows immediately.” Judge Danpobth says : “ If the killing is not the instant effect of impulse, if there is hesitation or doubt td overcome, a choice made as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder.” (People v. Leighton, 88 N. Y. 117.) In People v. Majone (91 N. Y. 211) Judge Earl says: “Under the statute there must not be only an intention to kill, but there must also be a deliberate and premeditated design to kill. Such design must precede the killing by some appreciable space of time. But the time need not be long. It must be sufficient for some reflection or consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. The human mind acts with celerity, which it is sometimes impossible to measure, and whether a deliberate or premeditated design to kill was formed must be determined from all of the circumstances of the case.”

We think evidence was given upon the trial from which the jury were authorized to find either way upon the question of deliberation . and premeditation. The circumstances of the crime showed no apparent cause for its commission, the defendant having had no previous difficulty with the deceased, and he at the time was not engaged in any act calculated to' provoke the hostility or anger of the defendant.

It is suggested that the defendant had no motive for killing Keenan. To this, it is sufficient to say, that he had no apparent motive for killing any one, and there is no evidence tending to show that he intended to kill some other person, or that he did not intend to kill the person whom he actually killed. The existence of malice is to be inferred from the perpetration of the deed, “ the corrupt disregard of the person and life of another is precisely the dole or malice, the depraved and wicked purpose which the law requires and is content with.” (2 Hume, 254; Starkie on Evidence, 663.) In capital, as well as other cases, it must be held that a person intends that which is the natural and necesssry consequence of an act done by him, and unless the act was done under circumstances which preclude the existence of such an intent, the jury had the right to find, from the result produced, an intention to effect it.

Whenever intent is made an element in determining the character of an act, it is in accordance with our general observation and experience to infer its existence, by reference to the laws which have been usually and generally found to control human conduct. Indeed, this is the only method by which the intent can be made to appear. The intent formed, is the secret and silent operation of the mind, and its only visible physical manifestation is in the accomplishment of the thing determined upon. The individual whose intent is sought to be ascertained may remain silent, or if he speaks may, and probably will if he has a crime to conceal, speak untruly, and thus the mind is compelled from necessity to revert to the actual physical manifestations of the intent, exhibited by the result produced, as the safest if not the only proof of the fact to be ascertained. This rule is always applied, unless from the circumstances of the case it affirmatively appears that the will of the actor was subordinated to some controlling and irresistible cause precluding the existence of any voluntary mental action.

In Starkie on Evidence it is- said, that a rational agent must be taken to contemplate and intend the natural and immediate consequences of his own act, is a presumption so cogent as to constitute rather a rule of law than of mere evidence ” • (p. 848). “ There is a general presumption in criminal matters that a person intends whatever is the natural and probable consequences of his own actions.” (1 Phillips’ Ev. 632.) It was said by Judge Andrews, that It is a fundamental rule of evidence of very general application, founded upon observation and experience, that a man is presumed to intend the natural consequences of his acts.” (Foster v. People, 50 N. Y. 609.) The proof in this case tended to show that the defendant, knowing the location of the deceased, drew a pistol, a necessarily dangerous weapon, from his pocket with some difficulty, turned around toward Keenan and discharged it, and that the pistol ball entered a vital part and caused Keenan’s death. It can hardly be conceived that the defendant was ignorant either of the presence of Keenan, the dangerous character of the weapon used by him, or the necessary effect of the discharge of a ball therefrom into the body of a human being.

It was competent for the jury to find from the circumstances, that the defendant had a purpose formed after more or less deliberation at the time his hand moved in obedience to the suggestions of his mind to take the pistol from his pocket, and that this purpose influenced him during the time he was releasing his pistol from his pocket, and while he was conveying it from its usual receptacle to the position from which it was discharged at Keenan.

It is not known that there was any one in the direction toward which he discharged his bullet, against whom he entertained animosity, more than he did toward Keenan. There Avas, therefore, no controlling or probable reason for supposing that he intended to kill any other person than the one he killed. To infer the existence of deliberation and premeditation does not require the lapse of any special period of time. If a person is undisturbed by sudden and uncontrollable emotions, excited by an unexpected and observable cause, and is in the possession of his usual faculties, it will be presumed that his actions are prompted by' reason and are the result of causes operating upon his mind and deemed sufficient by him to inspire his action. A sane person, meeting a stranger upon the street, and in the absence of a sudden impulse produced by an observable cause, without words of explanation or warning, immediately drawing a deadly weapon and therewith causing death unquestionably brings himself within the penalties prescribed for the punishment of the crime of murder in the first degree. The shortness of time elapsing between the conception of the intention and its execution form no legal defense of the crime. Under such circumstances it would be impossible to conceive of a voluntary act, the commission of which requires physical exertion as being independent of mental operation and unaccompanied by a determination to perform such act, and an incidental reflection as to the means to be employed in its accomplishment. Short as was the time occupied in the present case between the effort to get the pistol and its use, the bystander, Keating, realized the consequences and vainly attempted to avert them. The natural laws which govern human action tend to show that when the defendant attempted to remove the pistol from his pocket he had a design to accomplish, the period during which his effort to get the pistol was obstructed by its catching in the lining prolonged the period of his reflection, and notwithstanding the remonstrances of Keating his design held its sway until the weapon was discharged. It required mental effort to realize that he had a pistol, to contemplate * its use, and to appreciate the existence of a cause for its production at that time. The defendant’s motions apparently were not controlled by involuntary impulse produced by mental emotion or by instinctive action adopted under a sudden • apprehension of danger, for no causes appear to exist, accounting for such action, and the jury had the right to infer from the circumstances that they were the-result of such deliberation and premeditation as brought the act within the meaning of the statute. ' The evidence of intent is also corroborated by the conversation and conduct of the defendant after the commission of the crime.

That evidence tends to show that the defendant immediately commenced to invent a scheme to justify his conduct and without cause, other than conscious guilt; to adopt a line of conduct intended to convey false impressions as to the circumstances of the crime. In pursuance of this scheme he made many false statements and some that were contradictory as well as false. He quite deliberately gave two versions of the reason which induced him to shoot the deceased, in one of which he claimed that the killing was unintentional and in the other that it was intentional.

When the court below assumed to decide which of these statements was true or that they were both false, we think it usurped the province of the jury, and gave a construction to evidence susceptible of a different interpretation, and which it was the exclusive right of the jury to give. When the inferences to be drawn from the testimony are not clear and incontrovertible, and men of ordinary judgment and discretion may differ as to its significance, it is the exclusive province of .the jury to pass upon the questions involved. (Thurber v. Harlem R. R. Co., 60 N. Y. 331; Morrison v. Erie R. Co., 56 id. 308.) When the consequences of his act began to be appreciated by the defendant, he turned to falsehood as his defense, and as often happens in such cases, involved himself in contradictory statement's in his efforts to escape the imputation of crime.

The resort to falsehood and evasion by one accused of a crime affords of itself a presumption of evil intentions, and has always been considered proper evidence to present to a jury upon the question of the guilt or innocence of the person accused.. (U. S. v. Randall, Deady, 524; State v. Reed, 62 Me. 129; Commonwealth v. Goodwin, 14 Gray, 55.) The falsity of the various accounts given by the defendant of the circumstances, attending the commission of the crime, so far from modifying the force of the express admission of Conroy that he intended to shoot Keenan, gives it additional weight, and would of itself afford sufficient ground to authorize an inference of guilt, by the jury. Although the evidence shows that the defendant had been drinking during the evening, it does not show that he had become intoxicated, or that the liquor taken by him had obscured his reason or weakened his intellect. The readiness with which he saw the danger his conduct had brought upon him, and the promptitude with which he adopted precautions to obviate it, were circumstances from which a jury might well conclude that he perpetrated the act with an understanding of its consequences and a reckless disposition to brave them.

We approve of the disposition made by the General Term of the remaining questions in the case, but for the errors stated, the order directing a new trial must be affirmed.

AH concur, Rapallo, J., in result.

Order affirmed.  