
    Court of Appeals.
    
      June, 1889.
    PEOPLE v. LEWIS.
    Mubdeb.—Questions of Fact.'—Chabge to the Juey.
    When, upon a trial for murder, there were only two exceptions to the judge’s charge to the jury, both as to a statement of fact in the charge, one of which was corrected by the judge, and the other submitted to the jury for them to determine the same, there is no error.
    The evidence was in the present case considered, and held to justify • a verdict of murder in the first degree.
    Appeal by the defendant John Lewis from a judgment of the Court of General Sessions of ¡New York, Hon. ¡Rufus Cowing presiding, entered December 13, 1888, upon-a conviction of murder in the first degree.
    The questions raised on appeal in the present case were almost entirely questions of fact, and the Court of .Appeals upon considering the facts held that they justified the verdict of murder in the first degree.
    These facts were as follows:
    John Lewis, the appellant, was convicted of the crime of homicide of the degree of murder in the first degree, by a judgment of the Court of General Sessions of the Peace, in and for the City and County of ¡New York, on December 13, 1888, for the murder of Alice Jackson, at said city, on July 11, 1888.
    Lewis was a miner employed on the new Aqueduct. He and Alice Jackson, the deceased, cohabited as man and wife. Both were colored. About six months before the murder, and while they were residing at the village of Sing Sing, Alice was shot in one of her legs. She accused Lewis of shooting her and had him arrested, but he was subsequently discharged. When she recovered from the wound she left him, declaring “that she was going to get rid of him and would never live with him any more after she entered the eitj’.”
    She arrived in Mew York and obtained work as a cook at the house Mo. 87 West Third Street, in the City of Mew York, where she was killed; she lodged in a different house.
    After she left him, Lewis left Sing Sing and wandered about to various places. About a nionth previous to the woman’s death he reached the new Aqueduct near Kings-bridge, Mew York City. During this month he lounged and idled among the shanties of the miners, and frequently went down to the city and endeavored to meet and become reconciled to Alice.
    Deceased avoided him as much as possible, as she was afraid of him.
    He called several times at her lodging, and one evening, about three weeks before the killing, the following conversation took place between himself and the housekeeper: “Q. What did he (Lewis) say?” “A. Mothing more than he said he would like to see her.” “ Q. To see whom ?” “A. To see Alice Jackson; I told him she was afraid of him: he said she had no reason to he afraid of him ; I told him she said she was afraid of him, and he said she had no reason, for he didn’t intend to hurt her and only wished to see the lady and have a talk with her ? I says,1 how can she help being afraid of you when yon have already shot her ? ’ He said : e If I shot her I didn’t shoot her to kill her!’ ”
    A week previous to the shooting, some time between six and nine o’clock in the evening, Lewis called at the house where deceased worked, trouble ensued, and a police officer was sent for. When he arrived-Lewis was sitting on a truck in front of the house and deceased came out on the stoop and said to the officer, “ This man is dogging me.” The officer said to Lewis, “Are you dogging this woman ?” and he answered, “Mo, I am not dogging this woman. I came here by appointment.” She said, “I don’t care whether you came by an appointment or not, I don’t want to see you.” She further said that he (Lewis) had shot her once before. He answered, “Yes, I know it, but I was punished for it.” Deceased finally said, “ If you don’t want to lock him up, lock me up,” and Lewis further said, “ I don’t want to shoot you; what would I shoot you for ?” Lewis was not seen around that neighborhood until the morning of the 17th of July.
    Early that morning he took a train on the Elevated Bailroad at ICingsbridge, and went to the street where deceased worked, between eight and nine o’clock. While he was walking around and watching, he saw deceased go into a butcher’s market around the corner from her house. Lewis followed her to the threshold and said to her, “I want to speak to you,” and she said, “Ho, no, I don’t want to see you this morning.”
    Deceased waited in the market until Lewis had gone. She then left, turned the corner, and proceeded to her house about seventy-five feet distant. Another domestic in the same house was sweeping the sidewalk in front. Deceased went up to the stoop, and left the door partly open.
    Meanwhile Lewis after leaving the butcher’s market turned the corner in the direction that deceased was to go and stood waiting in an archway until she passed. He hurriedly followed her, ran up the stoop, pushed the hall door open, and pursued deceased, who, by this time, had reached the small kitchen at the end of the hall. The other domestic ran in from the sidewalk after Lewis. Deceased was at the further side of a kitchen table, and Lewis leaned across it with a revolver in his hand. Alice cried: “ For. God’s sake, Susie, help me if you can.”
    Lewis fired close to her heart, she screamed “ murder,” and ran around the table to get past him to the door. He caught her and they struggled through the hall to the front door. During this struggle in the hall “ Susie” started towards deceased to help her. Lewis said, “ If you come a step further to interfere with me, I will give you the same as I am going to give her.”
    The struggle at the door continued, the woman seizing his hands to prevent him from using the revolver. He freed his right hand and fired again, the bullet striking the palm of her right hand; that arm fell powerless to her side. Then he placed the muzzle of the revolver against her abdomen and fired, when she sank to the stoop and slid down the steps to the sidewalk; her clothing was on fire from the last shot, and a little boy put it out.
    Lewis proceeded down the street a short distance, then returned. A girl from the neighboring house went to raise the dying woman. Lewis said: “ The first one goes near to help her I will shoot,” then he stooped down and placed a five chambered loaded revolver under her head and turned down another street where he was captured a block away.
    At the time there was found in his pistol pocket a five barreled Smith and Wesson revolver, four barrels of which ■contained empty cartridge shells and one barrel was empty. He was brought back to where the woman lay on the sidewalk. She was" asked “if this man shot her,” and she ■answered, “Tes, that is the man,” and the prisoner thereupon said, “Tes, I am the man that shot her; I ain’t going to let any wench get the best of me or make a sucker out of me.”
    The loaded revolver was taken from under the woman’s head where Lewis had placed it. He was taken to the police station. On the way to the station he said, “If any of these black wenches go to play me for a sucker they will get the wrong man.”
    At the station both revolvers were placed in front of him. He said to the sergeant, “I shot her.” Some one remarked that the woman was dying, and he said that “ there would be one wench less in Hew York.”
    Alice was immediately taken to the hospital and died within an hour after her admission. On her body were found three pistol shot wounds, one in the palm of the right hand, one in the right breast, and one on the right side of the abdomen; either of the latter two was fatal and sufficient to cause death.
    The defense in this case was that Alice Jackson shot herself. He denied that he did the shooting in self-defense, accidentally, or otherwise.
    Briefly stated, Lewis claimed that when he went into the hallway after Alice, she approached him having in her hand a revolver which was concealed under her apron. As she drew it upon him he grappled with her and a struggle ensued, during which four shots were fired; that one of these shots struck him in the hand and arm and the other three struck the deceased in places already described. But he also claimed that she pulled the trigger for the firing of each shot, and that he did not get the pistol in his possession until after the last shot was fired. He also claimed that during the struggle the pistol bent backward at the hinge connecting the barrel with the breech, and that one of the cartridges fell out. He says that he did not get the pistol until after the last shot was fired and the tussle ended.
    
      Howe (& Hummel (Wm. F. Howe, of counsel), for defendant appellant. •
    
      Jno. R. Fellows, district attorney {Jno. W. Goff, assistant), for the people respondent.
   Per Curiam.

We have deemed it our duty to examine the record in this case, notwithstanding the.appeal had been substantially abandoned. The evidence justifies the claim of the district attorney that the killing of Alice Jackson was a deliberately planned and premeditated murder. There was motive, preparation, lying in wait for opportunity, and a fatal execution of the murderous purpose, under circumstances of great atrocity. The evidence against the defendant was given by disinterested witnesses. It shows that the relations between the deceased and the defendant had been meretricious; that the defendant had shot and wounded the deceased on a previous occasion ; that she had left him ; that he sought to regain her society, and that she repulsed him ; that he bad threatened her, and on the morning of the homicide had armed himself with two pistols, and waited for her as she went to the butcher shop and on her return to the house where she was employed followed her in, and shot her several times, twice fatally. His subsequent conduct and declarations corroborate the evidence of the eye-witnesses of the transaction. The defendant sought by his own testimony to show that the deceased shot herself, but his story is so contradictory and incredible as to render it impossible of belief. The facts of the case fully warranted a conviction, and the jury reached the only reasonable conclusion.. There was but one exception to evidence, and that was on the ground that certain' evidence offered was cumulative, and was clearly frivolous.. There were two exceptions to the charge, and both related to statements of fact. The judge corrected one, and submitted it to the jury to find as the other fact referred to. The trial was a fair one, and there is no reason for disturbing the judgment.

Judgment affirmed.

All concur, except Finch, J., absent.  