
    The People of the State of New York, Respondent, v. Frank Fish, Appellant.
    The provision of the Code of Criminal Procedure (§ 528), authorizing this court, when the judgment in a criminal case is of death, to order a new trial, “if it be satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial,” does not confer upon the court power arbitrarily to grant, a new trial whenever it thinks justice may require it, but its jurisdiction is to be exercised according to settled rules of law. If there is a conflict in the evidence or different inferences may be drawn therefrom, the determination of the jury will not be interfered with unless it appears that it is against the clear weight of the evidence, qr was influenced in some way by passion, prejudice, mistake, perversion or corruption. v
    To sustain an indictment for murder in the first degree, the People are bound to show that the defendant intentionally killed the deceased, with premeditation and deliberation.
    In weighing the evidence as to premeditation and deliberation, the jury is bound to take into account the condition of the defendant.
    If, however, it appears that the defendant, although intoxicated at the time of the homicide, was sober enough to form an intent and to deliberate and premeditate the crime, his responsibility is the same as if he had been perfectly sober. (Penal Code, § 22.)
    It is not incumbent upon the prosecution to prove the motive for the crime, and the fact that the animosity of the defendant was aroused by a circumstance which would have had but comparatively little influence upon a sober man, is no defense.
    Upon the trial of an indictment for murder, it appeared that the deceased refused to shake hands with the defendant, who was somewhat intoxicated; the latter, after passing down the street about eighty feet, turned back, walking rapidly with his hands in his overcoat pockets; as he came opposite the deceased he spoke to another person, then drew his right hand from his pocket and saying “take that” dealt the deceased a fatal blow on the neck with a narrow iron blade not sharp or used for cutting, but made and used for opening cigar boxes. The blow was struck with such force as to penetrate the neck about four inches, passing through the larynx and into the bone of the vertebres. After striking the blow the defendant ran away, went directly home and soon after undressed and went to bed. The jury rendered a verdict of guilty. Held, that the evidence was sufficient to sustain the verdict; and that the discretion conferred upon this court did not authorize a reversal.
    A physician and surgeon, called as a witness for the prosecution, after testifying that he had examined the wound and made a post mortem examination, was asked and permitted to answer, under objection and exception, this question: "Taking the instrument as it now is, how much force would be necessary to drive it through the tissues you have described and into the vertebrae? ” The answer was: “ I should think it would take a great deal of force.” Held, that the question and answer were competent, as the evidence called for was in the nature of expert evidence.
    The prosecution was permitted to give in evidence a photograph of the place where the homicide was committed, also one of the head and neck of the decedent, showing the wound; it was proved that they were accurately taken. Held, that the photographs were competent evidence.
    The police justice, before whom defendant was brought soon after the homicide, was asked, as a witness for defendant, if from what he observed of the defendant he believed he was in a condition to fully comprehend the situation and what was transpiring. This was obj ected to and the ob j ection sustained. Held, no error; as the witness was not shown to be an expert.
    The same witness was asked: “ State how he appeared; ”, and he answered: ‘ ‘ He appeared a little astonished.'” .This was obj ected to and stricken out on motion. Ho exception was taken. Defendant was allowed to prove by the same witness all the facts in relation to his appearance, and that he was apparently astonished at the charge of murder and appeared intoxicated. Held, that defendant was not harmed by the granting of the motion.
    W., a material witness for the People, was sworn on the preliminary examination before the police justice and cross-examined by defendant, who was present with counsel; the examination was reduced to writing, read over to and subscribed by the witness and properly certified. W. was subpoenaed to attend the trial and, not appearing, the district attorney, against the objection of defendant’s counsel that the preliminary proof was not sufficient to permit its being read, was permitted to read the deposition in evidence. It appeared that several days after service of the subpoena, the officer, who served it, met W. and told him he had been subpoenaed and would be expected to be present in'court, and W. replied that he was going to his sister’s house, but would be present. He was called by the crier on the day for which he was subpoenaed and the next, but did not answer. The under-sheriff made inquiries for W. of his relatives and others, and, not being able to learn anything in regard to him, then drove to his sister’s house, but did not find him there and could learn nothing of his whereabouts. The deposition was read in evidence. Held, no error; that the evidence was sufficient to establish prima faeie that due diligence had been exercised, and that the witness could not be found.
    (Argued December 11, 1890;
    decided January 13, 1891.)
    The provision of the Code of Criminal Procedure (Subd. 3, § 8, Code of Crim. Pro.) which provides that where a “ charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine the witness,” the deposition may be read on trial for the crime charged, upon its being satisfactorily shown to the court that the witness "is dead, or insane, or cannot with due diligence be found in the state,” does not violate the provision of the Federal Constitution (Art. 6 of amendments) which provides that in all criminal prosecutions the accused shall have the right to be confronted with the witnesses against him.
    
      It seems that said constitutional provision has reference only to prosecutions in the Federal Courts, and was not intended to secure to the accused person the right to be confronted with the witnesses against him on his final trial, but to protect him against'ex parte affidavits and depositions taken in his absence. 11
    Also held, that said provision was not made applicable to prosecutions in state courts by the provision of said Constitution (14th amendment, § 1) which provides that "no state shall make or enforce any law which shall abridge th.e privileges of citizens of the United States.”
    Also held, that, conceding said constitutional provision was applicable, the right of the defendant to be confronted with the witnesses, within its meaning, or that of the “Bill of Rights” (1 R. S. 94, § 14), was not denied to him; that to read depositions upon his trial was not a denial of the fundamental rights so secured to an accused person, if he had been confronted with and had had an opportunity to cross-examine the witnesses.
    The court charged the jury that, if the prisoner, while sufficiently in possession of his faculties to conceive a design, voluntarily and willfully did an act which had a direct tendency to destroy another’s life, they would have the right to presume that he intended the natural consequences of his act. Held, no error. ,
    
      Stokes v. People (53 N. Y, 164); People v. Balter (96 id. 340); People v. Oonroy (97 id. 62), distinguished.
    The court also charged, in substance, that where a man in possession of his faculties deliberately takes the life of another, the law presumes that he intended the natural consequences of his act, and that if the jury found that the defendant took the life of the deceased "under such circumstances as to show deliberation, the presumption arises at once that he intended to take his life as he did.” Held, no error.
    
      Appeal from judgment of the Ontario county Oyer and, Terminer, entered upon a verdict rendered Hay 24, 1890, which convicted the defendant of the crime of murder in the-first degree.
    The facts, so far as material, are stated in the opinion.
    
      Oliver C. Armstrong for appellant.
    A new trial should be-granted. (Code Civ. Pro. § 528; People v. Cignarale, 6 N. Y. Cr. Rep. 82.) Witnesses cannot in general be allowed to testify to opinions as distinguished from facts. (Lamoure v. Caryl, 4 Den. 370; Fish v. Dodge, Id. 311, 313; Hoyt v. L. I. R. R. Co., 57 N. Y. 678.) The court erred in allowing the photographs to be received in evidence under the defendant’s-objection and exception. (Haynes v. McDermott, 82 N. Y. 50.) The court erred in sustaining the objection of the-People’s counsel to the following question: “ On this occasion, from what you observed of Fish when you brought him out-there, do you believe he was in a condition in which he comprehended the situation and what was transpiring there fully ? ” (People v. Eastwood, 14 N. Y. 562; People v. Blake, 73 id. 568; Howell v. Taylor, 11 Hun, 214-217; People v. Conroy, 97 N. Y. 62, 66, 67; Clapp v. Fullerton, 34 id. 190; O'Brien v. People, 36 id. 282; Hewlett v. Wood, 55 id. 634; Holcomb v. Holcomb, 95 id. 316; People v. Sanford, 1 Green’s Cr. Rep. 682; Wharton’s Cr. Ev. §417.) The jury cannot presume any of the essential elements of the crime of murder in the first degree. The prosecution must prove-each and all of them. (People v. Clark, 7 N. Y. 293; Fitzgerald v. People, 37 id. 418; People v. White, 24 Wend. 520; Wilson v. People, 4 Park. 619; Stokes v. People, 53 N. Y. 180; Green v. White, 37 id. 405; Clarke v. Dutcher, 9 Cow. 674; People v. Wiley, 3 Hill, 194; People v. Conroy, 97 N. Y. 97.) The prosecution failed to prove any intent to kill John Cullinane. (People v. Conroy, 97 N. Y. 62; People v. Mangano, 1 N. Y. Cr. Rep. 415; People v. Batting, 49 Hun, 392.) The People entirely failed to establish murder in either the first or second degree. A verdict c£ manslaughter only can be established by the evidence. (Leighton v. People, 10 Abb. [N. C.] 261-267; 88 N. Y. 117; People v. Mangano, 29 Hun, 259; People v. Hovey, 27 id. 382; People v. Sindram, 88 N. Y. 196; People v. Mangano, 1 N. Y. Cr. Rep. 414, 415; People v. Majone, 91 N. Y. 211; 1 N. Y. Cr. Rep. 94; People v. Cornetti, 92 N. Y. 85; Stokes v. People, 53 id. 164; People v. Sullivan, 7 id. 400.) ■Subdivision 3 of sectition 8 of the Code of Criminal Procedure is unconstitutional, being an unconstitutional exercise of legislative authority in depriving the defendant of his right to be ■confronted with the witnesses against him upon his trial before .the court and jury. (U. S. Const, art. 6; 1 Edm. R. S. § 14; Const. N. Y. art. 1, § 1; People v. Williams, 35 Hun, 516; Drayton v. Wells, 1 M. & McC. 409; People v. Chung Ah Chue, 57 Cal. 567; People v. Newnan, 5 Hill, 295; Crary v. Sprague, 12 Wend. 41; People v. Penhollow, 42 Hun, 104.) 'The court erred in admitting the deposition of Charles Malt-man, taken by the committing magistrate, against the defend•ant’s objection. (People v. Murphy, 1 N. Y. Cr. Rep. 102; Barron v. People, 1 N. Y. 387; People v. Hadden, 3 Den. 220; Warner on Ev. 216 ; Uline v. N. Y. C. & H. R. R. R. Co., 2 Hun, 354; 79 N. Y. 175; Meyer v. Terry, 54 How. Pr. 274.)
    
      Maynard A. Clement for respondent.
    A sane man is presumed to contemplate the natural consequences of his acts. (People v. McKee, 36 N. Y. 113; People v. Thomas, 67 id. 224; 1 Greenl. on Ev. 24, § 18.) The facts proven establish ■deliberation and premeditation and bring the homicide clearly within the degree charged in the indictment. (Penal Code, § 22; People v. Rodgers, 18 N. Y. 9; People v. Kenney, 31 id. 337, 341; People v. Flannigan, 86 id. 558, 559, 560; People v. Conroy, 97 id. 62, 73-79; People v. Lyons, 6 N. Y. Cr. Rep. 105, 110; People v. Leighton, 88 N. Y. 117; People v. Majone, 91 id. 211.) The exceptions taken to the rulings •of the court in overruling the challenges to jurors have no merit. (Thomas v. People, 67 N. Y. 218; Code Crim. Pro. § 377; People v. Carpenter, 102 N. Y. 238.) The exception to the ruling of the court admitting the photographs was not well taken. (Cowley v. People, 83 N. Y. 464-476; Ruloff v. People, 45 id. 213; People v. Buddenseick, 103 id. 500; Archer v. N. Y., N. H. & H. R. R. Co., 106 id. 589.) The exceptions to the rulings of the court which permitted the attention of the witness John Fish to be called to his evidence given a few weeks prior to the trial, at the preliminary examination before the police justice, and at the investigation of the-grand jury, were not well taken. (Bullard v. Pearsall, 53 N. Y. 230; People v. Kelly, 7 N. Y. Cr. Rep. 40.) The exception to the ruling of the court, permitting a question to be put to one of the defendant’s witnesses on cross-examination, which elicited the fact that on the night of the homicide the-witness made >- statements to the officers who arrested the defendant which contradicted material evidence given by that witness on the trial, was not well taken. The evidence was designed to affect the credibility of the witness, and was a proper cross-examination. (Patchin v. A. M. Ins. Co., 13 N. Y. 268; Snell v. Plumb, 55 id. 592; Sitterly v. Gregg, 90 id. 688; People v. Schuyler, 7 N. Y. Cr. Rep. 262.) The excep-. tions to the rulings of the court admitting evidence showing the effort and diligence of the prosecution to procure the personal attendance of Charles Maltman, a material witness for the people on the trial, were not well taken. (Code Crim. Pro. subd. 3, §§ 8, 195, 204, 205; Barron v. People, 1 N. Y. 386; People v. Murphy, 1 N. Y. Cr. Rep. 104.) FTo right guaranteed to the defendant by the Constitution of the State of FTew York was violated by the admission of the deposition in evidence. (Barron v. Mayor, etc., 7 Peters, 247; Withers v. Buckley, 20 How. [U. S.] 84; U. S. v. Cruikshank, 92 U. S. 542; Walther v. Sauvinet, Id. 90; People v. Penhollow, 5 N. Y. Cr. Rep. 41; People v. Williams, 35 Hun, 516; People v. Penhollow, 42 id. 103; People v. Molins, 7 N. Y. Cr. Rep. 51.) The definitions of the crimes of murder and manslaughter were clear and definite. (Penal Code, §§ 183, 184, 188, 189, 193.) The findings of fact by the jury are founded upon sufficient evidence, and in the absence of errors in the admission or rejection of evidence or instructions to the jury by the court upon the trial, the judgment will not be reversed or a new trial granted because of a difference of •opinion on the facts between the appellate court and the jury. (People v. Kelly, 113 N. Y. 647.)
   Earl, J.

The defendant was convicted of murder in the first degree on the 24th day of May, 1890, for killing John Oullinane on the prior twenty-sixth day of January, at Canandaigua. There is no substantial dispute about the facts ■of the case. The defendant at the time of the homicide was about twenty-four years old, five feet five inches in height, weighed about one hundred and forty pounds, and was a painter by occupation. Oullinane was a moulder, over ■six feet in height, weighed about one hundred and ninety pounds, and was about thirty years old ; and they were both married and householders. The twenty-fifth of January was Saturday, and at about six o’clock in the evening the defendant and his brother) John E. Fish, and Oullinane quit work and each went to his home. A few moments before nine o’clock John E. Fish and Oullinane went to,a saloon kept by Byan, where they were soon joined by James Oullinane, a brother of John. The defendant left his home about eight o’clock, and .about nine o’clock he met two young men, who had with them a pint of whiskey, and they invited him to share it with them. They each drank out of the bottle, and then the defendant drank about a teacupfull, the balance remaining therein Soon thereafter he also went to Byan’s-saloon, and he and his brother and the.two Cullinanes remained there talking on various subjects and drinking beer together until nearly a quarter to twelve o’clock. While in Byan’s saloon the defendant offered to shake hands with John Oullinane on two different occasions, and Oullinane declined to take liis hand. About twelve o’clock Oullinane and the defendant and his brother left Byan’s saloon and went to a saloon kept by Charles McCarthy, and there they drank some beer, and the defendant and the deceased danced; and after remaining there about fifteen minutes the three persons left the saloon together and proceeded down the street to a barber shop, and while going down the defendant stated to his brother that he would go and stay with him. They stopped opposite the barber shop, and John E. Fish asked his companions to go in while he had his hair cut. Cullinane declined, saying he thought he would go home, and Jolm E. Fish shook hands with him and bade him good night. The defendant then offered to shake hands with Cullinane and he drew his hand away. Then the defendant asked him if he ever did anything to him. He replied that he had not. The defendant then said to his brother John E. Fish: “All right, you are a brother of mine; that settles you and me.” John E. Fish replied : “All right, you go to hell.” The defendant then started up street and Cullinane followed him, and went ten or fifteen feet up the walk in the direction the defendant was going, and then turned and came back in front of the barber shop and stopped, and he said, in a low tone, evidently inaudible to the defendant: “ The ■ son of a bitch.” The defendant, after going about eighty feet, came back, walking rapidly down the street, with both hands in his overcoat pockets, and as he came opposite the deceased he drew his right hand • from his pocket, turned towards the deceased, and dealt him a blow on the right side of the neck, saying at the time: “ Take that,” and then ran down the street in the direction of his home. The instrument with which he struck the blow was a narrow iron blade used for opening cigar boxes. It was not sharp, and was not made for the purpose of cutting anything, but merely for the purpose of prying off the covers of cigar boxes. The blow was dealt upon the neck, a little below the jaw, and the instrument penetrated about four inches in depth, passing through the larynx and into the hard bone of the vertebrae more than half an inch. From the wound thus inflicted Cullinane very soon died.

The defendant after striking the blow went directly to his home and soon thereafter undressed and wrent.to bed. Within an hour after the fatal blow liad been dealt, officers went to' his house and arrested him. He was at once taken before a-police magistrate, and there he appeared, to some extent, to be unconscious that he had committed the homicide. All the witnesses, who saw him shortly before and after the homicide, testified that he was somewhat intoxicated. He was able,, however, a few minutes before, to dance in McCarthy’s saloon,, and he was sober enough to run away, go home, undress and go to bed immediately after striking the fatal blow. After his arrest his conversation showed that he ivas aware, at least, that he had committed some wrongful act. It does not appear that the defendant and the deceased were, prior to the evening in question, at all intimate or familiar with each other. There is no evidence showing what their relations were, and it does not appear that there was any animosity between them, and no explanation was given on the trial showing why the deceased refused the hand of the defendant on the three occasions when it was offered.

The learned counsel for the defendant claims that upon this evidence the defendant ought not to have been convicted of murder, but that he should have been convicted only of manslaughter ; and he claims that we should grant a new trial to' him under section 528 of the Code of Criminal Procedure, which authorizes this court when the judgment is of death to order a new trial if it be satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have-been taken or not in the court below.” This section has been under consideration in this court several times. (People v. Driscoll, 107 N. Y. 417; People v. Cignarale, 110 id. 23; People v. Lyons, Id. 618; People v. Kelley, 113 id. 647; People v. Stone, 117 id. 480.) It does not confer upon the court power arbitrarily to grant a new trial whenever it thinks-justice may require it, but its jurisdiction in such a case is to be exercised according to settled rules of law. If there is a conflict in the evidence or different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts, and their determination should not be interfered with unless we can see that such determination ivas against the clear weight of the evidence or was influenced in some way by passion, prejudice, mistake, perversion or corruption. ' In the case of People v. Cignarale (supra), Ahdkeays, J., said: “It is a cardinal principle in our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. It is no more the province of an appellate court than of the court of original instance to determine controverted questions of fact arising upon conflicting evidence. ¡Neither can lawfully usurp the appropriate function of the jury, and neither can substitute its own judgment for that of the jury where the facts are reasonably capable of diverse or opposing inferences.”

The People Avere bound to show that the defendant intentionally killed Cullinane, Avith premeditation and deliberation, and, we think, there Avas evidence sufficient to warrant the jury in so finding. The defendant was undoubtedly somewhat intoxicated, and was probably angered by the refusal of the deceased, a minute or two before the fatal blow was struck, to shake hands Avith him. . It is probably true that if he had been perfectly sober, that circumstance would not have provoked him to violence. But the motive which would have had comparatively little influence upon a sober man, evidently aroused his animosity, and after he had passed down the street a short distance he returned near to where the deceased was standing, and Avith this dangerous instrument in his hand, he spoke to Ms oavii brother so as not to attract the attention of the deceased, and then suddenly turned and, with a sAvinging blow and Avith great force and violence, plunged this blade into the throat of the deceased, the place where it would be most likely to produce a fatal effect. That he returned for the express purpose of inflicting the blow cannot be doubted. That he deliberated upon his purpose while he Avas returning and when he approached the deceased and struck the blow, is equally clear. We think the inference may fairly be drawn that he then and there intended to take the life of the deceased.

The faót that the defendant was intoxicated furnishes him no excuse. Section 22 of the Penal Code provides that: “Ho act committed hy á person while in a state of voluntary intoxication shall he deemed less criminal hy reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent, is a necessary element to- constitute a particular species or degree of crime, the jury-may take into the consideration the fact that the accused ay as intoxicated at the time, in determining the purpose, motive or intent, Avith which he committed the act.”

The only materiality, therefore, of the evidence of the defendant’s intoxication is its hearing upon the questions of deliberation, premeditation and intent. If he was sober enough to form an intent and to deliberate and premeditate this crime, then his responsibility is the same as if he had been perfectly sober. In weighing the evidence as to premeditation and deliberation, the jury were bound to take into account the condition of the defendant, and they Avere .so instructed. But if, Avhile someAvhat intoxicated, he still deliberated upon and premeditated the act Avhich he intentionally committed, the crime is murder in the first degree.

It is claimed that the prosecution proAred no motive for the crime. But it is not incumbent upon the prosecution to prove the motive of a crime in any case. It may be impossible to discover a motive hidden in the human breast, and yet the crime may be proved beyond a reasonable doubt. Here, Avhile the motÍAre Avould be ■ deemed extremely inadequate, yet there was some motiA'-e Avhich we must assume acted upon the mind of the defendant in inducing him to deal the fatal blow, and that Avas the refusal of the deceased — thrice repeated — to take his hand Avhén extended to him for a friendly greeting.

It is further said that there Avas no proof of any intent on the part of the defendant to kill Cullinane. All the facts were proved. The circumstances under which the blow was dealt," what the defendant then said and did, his conduct-after-wards, the nature and force of the blow and the character of the instrument used — all this evidence was before the jury and it was for them to determine whether the defendant, in dealing this fatal blow, intended to kill.

We, therefore, see no reason in the exercise of any discretion conferred upon ns under section 528 of the Criminal Code for granting a new trial, and it only remains further for us to consider the questions of lav/ to which our attention has been called by the defendant’s counsel.

Dr. Hallenbeck, a physician and surgeon called as a witness on behalf of the People, after testifying that he had examined the wound and made &post mortem examination thereof, was asked this question: “ Taking this instrumentas it is now, how much force would be necessary to drive it through the tissues you have described,' and into the vertebra;?” This was objected to on the part of the defendant, and the witness wras permitted to answer as follows: “ I should think it would take a great deal of force; ” and .substantially a similar question was put to and answered by another physician. We think these questions and answers were competent. The amount of force necessary to drive such a blunt instrument through the tissues, muscles, arteries, wind-pipe and into the vertebrae is not a matter of common knowledge. But physicians and surgeons who have dissected and cut into the human body are better able to tell the resisting force of those parts than other people, and are, therefore, experts who are competent to give opinions on the subject. But in any event the answers were harmless because one of the physicians answered that it would take a great deal of force, and the other answered that it would take a very heavy blow; and that it would is very obvious from the bluntness of the instrument and the parts through which it passed.

The district attorney presented in evidence a photograph of the place where the homicide was committed, and also a photograph or the dead mams head and neck, showing the wound; and it is now claimed that this evidence ivas incompetent. It was proved that the photographs were accurately taken, and were true representations of the barber shop and the location of the wound, and such evidence, is now everywhere held to be competent. (Ruloff v. People, 45 N. Y. 213; Cowley v. People, 83 id. 464; People v. Buddensieck, 103 id. 487; Archer v. N. Y., N. H. & H. R. R. Co., 106 id. 589.)

The defendant was permitted to give evidence of his intoxication, of his appearance, his acts, and all that he said before and after the commission of the homicide, and his witnesses were permitted to give their opinions as to his condition. Among the questions asked by his counsel was this, put to the police justice before whom the prisoner was brought soon after the homicide : ■“ On this occasion from what you observed of Fish when you brought him out there, do you believe he was in the condition in which he comprehended the situation, and what was transpiring there fully % ” This question was objected to on behalf of the People, and the objection was sustained. It is-now claimed that the witness should have been permitted to answer the question. The witness was not an expert. He was not asked for any fact, but for his opinion or belief. He should have testified to the facts, and then it- would have been for the jury to determine whether the prisoner comprehended the situation and what was transpiring there.

' The same witness was asked this question: “ State how he appeared;” and he answered: “He appeared a little astonished.” This was objected to on behalf of the People and stricken out. The defendant was permitted to obtain from tile same witness evidence showing that the defendant was apparently astonished at the charge of murder made against him, and that he appeared to be intoxicated, and the witness was permitted to testify as to all the facts in relation to his appearance. But Avhether the evidence stricken out was competent or not, it was of no importance and had no material bearing and added nothing to the force of the other evidence upon the same subject. Flo exception was taken to the ruling of the court striking it out, and we think no harm came to the defendant from striking it out.

Maltman, one of the important witnesses for the People, was SAVorn upon the preliminary examination before the police justice. The defendant was' there with • counsel who cross--examined the witness. The examination of the witness was reduced to writing, read over to him, subscribed by him and properly certified. The witness was subpoenaed to attend the trial, and not appearing the district attorney, against the objection of the defendant’s counsel, was permitted to read the deposition in evidence. He claimed the right to read it under subdivision 3 of section 8 of the Code of Criminal Procedure, which provides that the defendant in a criminal action is entitled To produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily ■examined before a magistrate and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, -or had an opportunity to cross-examine the witness, or where the testimony of a witness, on the part of the people, has been taken, according to sections two hundred and nineteen and two hundred and twenty, the deposition of the witness may be read, upon it being satisfactorily shoivn to the court that he is •dead, or insane, or cannot with due diligence be found in the ■state.”

It is now objected that it was not satisfactorily shown to the ■court that the witness was dead or insane, or could not with ■due diligence be found within the state. The trial of the ■defendant commenced on the 19th of May, 1890, and resulted in his conviction on the twenty-fourth day of the same month; Prior to that, and on the twenty-fourth day of April, the -district attorney delivered to the under-sheriff of the county a •subpoena to serve upon Maltman, and on the twenty-fifth day of April he served it upon him in the village of Canandaigua, at the place where he was then working. Some days after the ■service of the subpoena, the under-sheriff met the witness in one ■of the streets of Canandaigua and -told him that he had been subpoenaed and that he would exjiect him to be present in court. He said that the week before court convened he wanted to go to the home of his sister who lived about two and a half miles from the village, and that on Monday morning the nineteenth of May lie would be at court. On the nineteenth and also on the twentieth his name was called in court by the crier and he did not answer. Monday morning the under-sheriif made inquiries of his relatives and other people, and not being able to learn anything about him, on Tuesday he drove to the residence of 1ns sister where he said he was going, but did not find him and could not learn anything of his whereabouts. Further inquiry was made but the officer was not able to learn anything about him or to find him. Upon this evidence the court held that the district attorney had established, prima facie, that due diligence had been exercised by the district attorney to find the witness, and that ho could not be found. USTo exception was taken to the .ruling of the court, and no claim was made at the trial that the preliminary proof was not sufficient to authorize the reading of the deposition. It is quite true that the preliminary proof was not very satisfactory, and that the diligence used to find the witness and procure his attendance was not very great; and yet it is difficult to see what more the under-sheriff could have done to procure liis attendance. It does not appear that the officer had any reason to suppose that the witness was at any other place than those where he had inquired for him, or that any diligence winch he could use wmuld discover him. It is quite a valuable right to a prisoner to be confronted upon his trial with the witnesses against him, so that he may cross-examine them and the jury see them and thus judge of their credibility, and he should not be deprived of this right without a strict compliance with the statute. But the preliminary proof is addressed to the trial court, and if based upon evidence legitimately tending to establish the facts required by the section of the Code referred to his decision should not be lightly interfered with. But here it was tacitly assented by the defendant’s counsel that the proof was sufficient, as he made no objection on that ground. If he had then and there made such objection and required further proof, it is possible that the district attorney might and would have furnished it. We are, therefore, of opinion that the objection that the preliminary proof was not sufficient to authorize the reading of the deposition, is not now available to the defendant.

It is further objected that the provision of the section of the Code referred to is in violation of article 6 of the amendments of the Federal Constitution, which provides that in all criminal prosecutions the accused shall en joy the right to be confronted with the witnesses against him. There is no such provision in our State Constitution, but under the Bill of Bights (1 R. S. 94, § 14) it ivas provided that in all criminal prosecutions the accused has the right to be confronted with all the witnesses against him. This ivas, however, a statutory-enactment, and the legislature could repeal or alter it. The provision in the Federal Constitution, as originally adopted, had reference only to prosecutions in the federal courts, and had no reference -whatever to prosecutions in the state courts. (Withers v. Buckley, 20 How. [U. S.] 84; United States v. Cruikshank, 92 U. S. 542; Walther v. Sauvinet, Id. 90; Pearson v. Yewdall, 95 id. 294.) But the learned counsel for the defendant claims that ’the 6tli article has been made applicable to prosecutions in the state courts by section 1 of the 14th amendment of the Federal Constitution, which provids that “ all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. Ho state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.” We do not think that this section has the effect claimed for it. It was never one of the privileges or immunities of a citizen- of the United States to be confronted with the Avitnesses against him in a state court. That was a privilege secured to him by the Federal Constitution, and, as AA'e haAre seen, Avas confined strictly to the Federal Courts. The section of the Criminal Code referred to does not attempt to interfere with any privilege or immunity which a citizen of the United States ever enjoyed under the Federal Constitution. All citizens, of whatever race or color, are secured the right to be confronted with their witnesses in every prosecution in the federal courts. But the states may modify that privilege in all prosecutions in state courts, provided that equal protection and due process of law be left to the citizen.

But even if we are wrong in this construction of the 14th amendment, we think it is clearly settled by numerous adjudications that the right of the defendant to be confronted with the witnesses, within the meaning of the Federal Constitution and the Bill of Bights was not denied to him. The evidence of the witness was taken in his presence where he had the opportunity to cross-examine him, and where he did in fact cross-examine him, and thus he had all the protection that the Bill of Bights and the Constitution were intended to secure him. This constitutional provision was not intended to secure to the accused person the right to be confronted with the witnesses against him upon his final trial; but to protect him. against expa/rte affidavits and depositions taken in his absence, as was frequently the practice in England at an early day. It was never regarded as an invasion of the fundamental rights of an accused person to read depositions upon his trial, if at some stage of his case he could be confronted with and cross-examine the -witnesses to be used against him. In Cooley’s Constitutional Limitations (5th ed.), 389, the learned author, speaking of this constitutional provision, says: “ If the witness was sworn before the examining magistrate, or before a coroner, and the accused liad an opportunity then to cross-examine him, or if there was a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or sick and unable to testify, or has been summoned, but appears to have been kept away by the opposite party.” And for this he cites numerous authorities. This precise question was under consideration in the case of People v. Williams (35 Hun, 516), and was disposed of in accordance with these views. See also Sullivan v. Hang, Michigan Supreme Court, October 17,1890.

The court charged the jury, among other things, as follows: “ If the defendant, while in the possession of his faculties sufficiently to conceive a design, voluntarily and willfully did an .act which had a direct tendency to destroy another’s life, the jury would have the right to presume from that fact that he intended the natural consequences of his own act.” This portion of the charge is free from error. It is, in substance, that if the prisoner was sufficiently in possession of his faculties to "form an intent, and voluntarily and willfully did an act which had a direct tendency to destroy another’s life, the jury would have the right — not that they were bound to do so — to presume that he intended the natural consequences of his act; and this, we believe, is a correct statement of the law. It' j quite true that the prosecution is bound to prove all the facts constituting the crime with which the prisoner is charged, and that the burden rests upon the People from the beginning to the end of the trial to establish beyond a reasonable doubt every fact essential to the conviction of the defendant. But this rule was not violated by the charge referred to. The jury were bound to find that the defendant was capable of forming an intent, and that he did form the intent, and that he willfully and voluntarily dealt the blow, and they were permitted to infer or presume from these facts that he intended the fatal blow which he inflicted. The court did not lay down the rule that they were bound, as matter of law, to presume it, or that the law implied that the defendant intended the natural consequences of his act. Therefore, the rules laid down in Stokes v. People (53 N. Y. 164); People v. Baker (96 id. 340); People v. Conroy (97 id. 62) were not violated. In York’s case (9 Met. 103), Chief Justice Shaw said: “ A sane man, a voluntary agent, acting upon motives, must be presumed to contemplate and intend the necessary, natural and probable consequences of his own acts. If, therefore, one voluntarily or willfully does an act which has a direct tendency to destroy another’s life, the natural and necessary conclusion from the act is that he intended so to destroy such person’s life. So, if the direct tendency of the willful act is to do another some great bodily harm, and death in fact follows as a natural and probable consequence of the act, it is presumed that he intended such consequence, and he must stand legally responsible for it. So, where a dangerous and deadly weapon is used with violence upon the person of another, as this has a direct tendency to destroy life, or do some great bodily harm to the person assailed, the intention to take life or do him some great bodily harm is a necessary conclusion from the act.”

It is also claimed that the following portion of the charge of the judge is erroneous:

“ Before coming to consider more directly the question of premeditation and deliberation, it is perhaps desirable, as leading up to that consideration, that we examine one or two other points which present themselves. Was there any design on the part of the defendant to kill this man, John Cullinane, and does the evidence in the case furnish any motive for such design on his part? It has been said, and very properly, in your, hearing, that where a man who is in possession of his faculties deliberately takes the life of another, the law presumes that he intended the natural, consequences of his act, and, therefore, if you find that the defendant did take- the life of John Cullinane in such a manner and under such circumstances as to show deliberation, the presumption arises at once that he intended to take his life as he did. The law raises that presumption against the defendant, provided you shall find that he was in the possession of his faculties and that he took the life of John Cullinane with premeditation and deliberation.”

This portion of the charge involves the self-evident proposition that if the defendant, with premeditation and deliberation, took the life of Cullinane, that he intended to take it. That, so far as we can see, must be universally true of all the acts of an intelligent person. Whatever is done with premeditation and deliberation must be done intentionally. ' ,,

Other portions of the charge were objected to and several requests to charge made on behalf of the defendant were refused. We have carefully examined the whole charge as given and all the requests refused, and we think no error was committed by the learned judge. His charge was eminently fair and just to the defendant and fully and fairly instructed the jury, so that there could have been no misconception as to the law governing the case.

A careful consideration of the whole case has constrained us to believe that no error was committed at the trial to the prejudice of the defendant. We think all the elements constituting the crime of murder in the first degree were proved by uncontradicted evidence. The crime was undoubtedly committed, like many others, under the influence of intoxicating liquor, but for which the deadly blow would not have been dealt. We sit here to administer and to uphold and enforce the principles of law and justice applicable to the cases presented to us, uninfluenced by sentiments of commiseration or of mercy. It may be that if we had jurisdiction to listen to an appeal for mercy we would relieve the defendant from the extreme penalty of the law. But such relief can be given only by the governor of the state, to whom very properly, under the circumstances of this case, an application can be made.

It remains for us only to affirm the judgment of conviction*

All concur.

Judgment affirmed.  