
    Court of Appeals.
    April, 1889.
    PEOPLE v. KELLY.
    Murder.—Appeal to Court of Appeals.—Premeditation.—Refreshing Recollection of Witness.
    Upon a direct appeal to the Court of Appeals in a criminal ease under the provisions of the Code of Criminal Procedure, § 517, as amended by Laws 1887, ch. 498, the Court of Appeals is required to examine the whole case and to determine, whether, in its opinion, the verdict was “ against the weight of evidence or against the law, or that justice requires a new trial, whether any exception has been taken in the court below or not.”
    These provisions were not intended to authorize by the Court of Appeals the review of findings of fact founded upon sufficient evidence made by the jury, or to reverse judgments simply because of difference of opinion between the Court of Appeals and the jury; but were intended to invest that Court with the power of ordering a new trial in cases where, upon the consideration of the whole case, it is manifest that injustice has been done, although the question has not been properly raised by exceptions in the Court below.
    The authority of the Court of Appeals in granting new trials to convicted offenders, must be exercised under the restraint of settled rules and in accordance with established principles of law regulating and defining the duties of appellate tribunals'in reviewing the judgments of trial courts.
    It is not sufficient to excuse a person from the consequences of a fatal assault upon another, that he has been provoked thereto by an angry controversy of words alone, however aggravated they may have been.
    When violent language induces a personal conflict of strength between parties of comparatively equal ability to inflict injury, the seizure of a dangerous weapon near-by, by one of the parties, and a blow given in the heat of passion might be regarded by the jury as excusable; b.ut this is not the rule where the parties áre unequal in strength and the assaulting party has no reason to apprehend physical injury from the other.
    Evidence that after an affray between defendant and deceased had apparently terminated, and after deceased had retired to the corner of the room the most remote from the defendant, with an evident intention to avoid him, and that- he then sought her out after an opportunity to reflect upon his course of action, with the obvious purpose of continuing the affray, and with a new and dangerous weapon, is very persuasive proof of a deliberate and determined purpose on his part to inflict injury upon her.
    After a witness for the prosecution had described the circumstances of the interview which terminated in the killing of the deceased, but had omitted to give the details thereof, it is proper for the prosecution to ask him if he did not previously testify to certain further particulars of the occurrence, this question being asked for the obvious purpose of refreshing his memory and not to contradict him.
    Appeal by defendant, John Kelly, from a judgment of the Court of Oyer and Terminer of Ontario County, entered December 20, 1888, upon a conviction in that court, Hon. William Rumsey presiding, of defendant of the crime of murder in the first degree.
    The indictment alleges in various forms, the homicide as murder in the first and second degree, and also as man» slaughter in the first degree, with allegations that the mortal wound was given by striking with the hands and feet, and with a stick of wood and with a hammer, that on November 6, 1888, at the town of Geneva, in and upon one Eleanor O’Shea, feloniously and with malice aforethought, and from a deliberate and premeditated design to effect the death of the said Eleanor O’Shea, did make and assault and with a certain hammer upon her head did beat and strike her, giving her a mortal wound from which she died.
    The evidence is very fully set forth in the opinion of the Court of Appeals.
    
      Ed/win Hieles, for defendant, appellant.
    I. In this case the people entirely failed to establish either murder in the first or second degree. A verdict of manslaughter can alone be sustained. Leighton v. People, 10 Abb. N. C. 261, 268; People v. Mangano, 29 Hun. 259; 1 N. Y. Crim. Rep. 411; People v. Conroy, 97 N. Y. 75 ; 2 N. Y. Crim. Rep. 563; 1 East P. C. 241; Foster's Crown Law, 295; Preston v. State, 25 Mass. 383 ; People v. Majone, 91 N. Y. 211; 1 N. Y. Crim. Rep. 94; People v. Hovey, 29 Hun. 382; 1 N. Y. Crim. Rep. 180; People v. Cornetti, 92 N. Y. 85; 1 N. Y. Crim. Rep. 303; Sindram v. People, 88 N. Y. 196; People v. Jefferson, 2 N. Y. Crim. Rep. 240; People v. Kiernan, 4 Id. 288; People v. Jones, 3 Id. 252; Daly v. People, 42 Hun, 182; 2 N. Y. Crim. Rep. 159.
    II. The ruling of the court in permitting testimony as to what Maher swore to before the grand jury was erroneous. The witness was called by the prosecution He had not manifested any reluctance to tell what he knew about the transaction. He had been cross-examined. The re-examination was not upon or in explanation of any new fact that his cross-examination had elicited. It was bold attempt to put before the trial jury what was alleged to have been sworn to in an ex parte examination before the grand jury, and in doing which, evidence of the most inculpatory character was put before the jury in regard to which' the defendant has never had the right of cross-examination.
    It is true that in the cross-examination of an adverse witness, evidence and declarations made outside of the court inconsistent to the testimony given on the trial, may be proved for the sole purpose of impeaching a witness. This was the effect if not the object of the testimony. The prosecution had no right to attack their own witness. If Malter had been impeached, the prosecution would have failed. The evidence was given that the jury might find that there was deliberation and premeditation, that they might find the defendant guilty of murder in the first degree upon evidence given before the grand jury. See People v. Safford, 5 Den. 112; Thompson v. Blanchard, 4 
      N. Y. 303; Kennedy v. McGuire, 15 Hun. 70; Pollock v. Pollock, 71 N. Y. 152; Sanchez v. People, 22 Id. 151.
    
      Maynard N. Clement, district attorney (Frmik Rice, of counsel), for the people, respondent.
    (The points of the respondent are fully covered by the opinion of the Court of Appeals.)
   Huger, Ch. J.

The defendant was indicted for the crime of murder in the first degree, for killing one Eleanor O’Shea, by striking her upon the head with a hammer, at the town of Geneva, in the county of Ontario, on November 6,1888. At a trial in the Court of Oyer and Terminer, held in said county in December, 1888, the defendant was convicted of the crime charged, and, in pursuance of the provisions of the Code of Criminal Procedure, as amended by chapter 493 of the Laws of 1887, has appealed directly to this court from the judgment entered upon his conviction. Upon such an appeal we are required to examine the whole case, and determine whether, -in our opinion, “ the verdict was against the weight of evidence, or against law, or that justice requires a new trial, whether any exceptions shall have been taken or not in the court below.” We do not think that this provision was intended to authorize this court to review findings of fact, founded upon sufficient evidence, made by the jury, or to reverse judgments simply because of a difference of opinion on the facts between this court and the jury; but was intended to invest the court with the power of ordering a new trial in cases where, upon a eonsideratipn of the whole case, it is manifest that injustice has been- done, although the question has not been properly raised byr exceptions in the court below. People v. Cignarale, 110 N. Y. 23; 6 N. Y. Crim. 82. This provision undoubtedly gives great latitude of authority to the court in granting new trials to convicted offenders, but it is an authority which must be exercised under the restraint of settled rules, and in accordance with established principies of law regulating and defining the duties of appellate tribunals in reviewing the judgments of trial courts.

It is claimed that a consideration of the evidence shows a lack of proof of that premeditation and deliberation in the commission of the offense which is required by the statute to sustain a conviction.

There is no serious question in the case but that Eleanor O’Shea came to her death in consequence of a blow inflicted with an iron hammer upon her head by John Kelly, or but that the blow was intentionally given for the purpose of inflicting serious bodily injury upon said O’Shea. The principal question in the case is the determination of the particular intent with which the defendant struck the blow. This can be ascertained only by an examination of the facts proved on the trial. The evidence on the subject is given almost wholly by the witness Habar, who was apparently friendly to the defendant, and betrayed a slight, but perceptible, disposition, not only by his evidence, but also by his failure to recollect inculpatory circumstances, to favor him in his version of the transaction. The affray occurred about 10 o’clock in the evening, at the house of one George Kippen, who was a farmer living about two and one-half miles from the village of Geneva. The household consisted, at the time in question, of George Kippen, Margaret Kippen, his daughter, aged about thirty years, Elean- or O’Shea, his housekeeper, aged about forty-six, and one Mahar, the witness, who was of the age of about sixty-eight years. The defendant was the foreman of the farm, and had worked for Kippen in that capacity about fifteen years. He was a married man, with children grown up, and was then living in a tenant-house on the same farm, about eighty rods distant from Kippen’s house, but was separated from his family, and took his meals generally at Kippen’s.

On the day in question he had been at Geneva through the afternoon and evening, and returned to Kippen’s about 9 o’clock p. m. He went directly to the barn to put out his horse. Margaret Kippen followed him there with a lantern, leaving O’Shea and Mahar in the kitchen of the house. Margaret and O’Shea had immediately previous to defendant’s return, had an angry and violent controversy growing out of a charge made by O’Shea that Margaret went to the barn to see defendant for improper purposes, and forbidding her from going there any more. Margaret insisted upon going, and did so. After the lapse of a few minutes Margaret returned to the house, and was soon followed by defendent. O’Shea then again commenced her imputations upon Margaret’s chastity, and accused her of being unduly intimate with Kelly. Kelly then asked her what authority she had to charge him with such conduct, and she replied that she had Mr. Kippen for authority, and what she knew herself, and what Margaret had told her. Kelly then asked her, “Do you say that I am a whore-master?’'1 and she rose up and said, “Yes, I do.” Kelly immediately struck her with his fist, knocking her down near the stove, in the center of the north side of the room, and, while she was on the floor, kicked her on the breast, head, and shoulders with his boot. She then ran up hurriedly, and seized a tea-kettle standing on the stove, and exclaimed, “I will scald you;” and struck with it at Kelly. Thereupon a squabble ensued between Kelly and Margaret on one side, and O’Shea on the other, which resulted in their getting the tea-pot away from her. O’Shea then assaulted Margaret, and shoved or drove her into the hall through a door near the north-east corner of the kitchen, and said to her: “I will smash you if you don’t keep your hands off me.” It would appear that Margaret remained in the hall until after the fatal blow was struck. About this time Mahar said to Kelly that he had better quit, and approached him near the middle of the room, and Kelly told him “ to keep away.” Mahar then put up his .hands, and Kelly put his hands against those of Mahar, and crowded him back into the north-west corner of the room, where he remained during the rest of the affray. When O’Shea returned from the hall, and, passing Kelly, went to the south-west corner of the room without making any remarks, Kelly stood in the north-east corner near a p mantel, upon which were two or three hammers, usually I kept in that place. After a brief interval he walked coolly Ij across the room to the opposite corner where O’Shea stood, j' and, speaking low and quietly, said : *6 Can you prove what you said ? Do yon say I am a whoremaster ?” She says, “I do upon which, in the language of Mahar, Kelly “up with his hand, and struck her with the hammer on the head.” O’Shea sank to the floor on her knee, and Kelly poked at her with his foot': O’Shea then got up, and says, “Mr. Mahar, you know all this;” and struggled to a chair standing on the south side of the room, near the table, a few feet from where she was struck, and sat down. While sitting there, Margaret came up with a stick of stove wood and struck at her several times, probably hitting her face, breast, and legs some apparently trifling blows. Then O’Shea got up, and staggered along the south and east side of the room to a pantry opening from the north-east corner of the kitchen, and passed through the door, closing it behind her. Soon after this she was heard to fall on the floor: Here she remained, unobserved and unattended, until the next morning, when she was discovered lying in a pool of blood, in a dying condition, and expired in the evening of that day. Kelly remained in the kitchen a short time, when he went into George Kippen’s room, on the same floor, and, after a short conversation, returned with him tv the kitchen, and remarked: “ By Christ, whoever will accuse me of being >a whoremaster in this house, or an adulterer, if I had a pistol, I would send the contents of it right through him.” He then walked over to Mahar, and told him to put on his things, and come outdoors. As they went out Margaret said to Mahar: “ That is right, Tom; go outdoors, and go away from here, and don’t come around again this night.” Mahar went to the barn with Kelly, who, after doing some chores, returned towards the house, when Mahar said to him: “ I guess she is hurt; I think she* ought to be seen to.” Kelly replied: “ Wait here; I want to go to the house;” and, taking a lantern, went to the pantry window, and looked in. He soon returned, and said: “ Let’s go to my house.” Mahar replied: “ I will sleep in the barn, and I guess I won’t go up there to-night.” Kelly says: “Ho you won’t; yon must come with me;” and Mahar went with him, and remained through the night with Kelly.

About seven o’clock the next morning Kelly and Mahar returned to the barn, when Mahar said : “John, I am afraid she is hurtto which Kelly replied : “ It is good enough for the d—n thing; she might attend to her business.” He also paid : “ The d—n rotten thing; she is always making trouble,” It also appeared that Kelly and O’Shea had, at various times previous to the affray, had angry controversies on the subject of his relations with Margaret, and on one occasion nearly came to blows. He had frequently before this said that he wouldn’t have the d—n thing there, and would send her away; that he didn’t want her there; and similar remarks to various persons. After his arrest, and on his way to jail, the day after the homicide, on being reproached for his conduct, he said : “ A man can’t control himself when everybody is picking on him, and his anger gets the best of him.’’ At the time of the áffray Kelly was under the influence of liquor, and he, as well as O’Shea, in the language of the witness, was very angry, and acted like crazy people.

Upon this evidence it was, we think, a fair question for the jury to determine whether the death of O’Shea was produced by that degree of deliberation and premeditation which rendered it murder in the first degree. So far as this case is concerned, the inquiry is whether the evidence establishes the fact that Eleanor O’Shea was killed from a deliberate and premeditated design to effect her death* Pen. Code, § 183. If she was, then the defendant was guilty of murder in the first degree, and was properly convicted of the offense. It is not sufficient to excuse a person from the consequences of a fatal assault upon another that he has been provoked thereto by an angry controversy of words alone, however aggravating they may have been ; but, when such language induces a personal conflict of strength between parties of comparatively equal ability to inflict injury, the seizure of a dangerous weapon, accident, ally near, by one of the parties, and a blow given in the heat of passion, might be regarded by a jury as excusable. This, however, is not the rule where the parties are unequal in strength, and the assaulting party has no reason to apprehend physical injury from the other. Here the violence was initiated by the defendant, and, although he had no reason to anticipate adequate resistance, it was followed up and continued after his adversary had been silenced and disarmed.

That there was abundant evidence of deliberation and premeditation in striking the blow which caused death we do not consider a debatable question in the case, but whether it was delivered with homicidal intent is a question about which some difference of opinion might exist. We think, however, upon the whole evidence, that the jury, who saw the parties and their witnesses, and heard their evidence, and could judge of their intelligence and credibility, had better opportunities for arriving at a correct conclusion in respect to the question than an appellate tribunal possesses. The evidence that the affray had apparently terminated after O’Shea excluded Margaret from the room, and retired to the corner most remote from Kelly, with an evident intent to avoid him, and that he then sought her out, after an opportunity to reflect upon his course of action, with the obvious purpose of continuing the affray, armed with a new and dangerous weapon, is very persuasive proof of a deliberate and determined purpose on his part. People v. Sullivan, 7 N. Y. 396. It is obvious that Kelly never considered himself in danger of bodily harm from O’Shea. He had silenced her tongue, and she showed no disposition to renew the controversy, and all apparent reason for continuing it liad ceased, except a purpose on his part to inflict punishment upon her. He then apparently armed himself with the hammer,—a dangerous, if not deadly, weapon,—and proceeded across the room to attack a defenseless and unresisting woman, not possibly with the intention of striking her in the first instance, but evidently with a view of compelling in some way a retraction of her charges against him. In the event that she refused, it was a natural inference from the evidence that he intended to strike her on the head,—a vulnerable and1 vital spot.—with the consequences which would naturally follow from such a blow. It is not possible that he eouldi have supposed it would be harmless, and it is difficult to-see how he could have expected it would be otherwise than fatal. The indifference with which he witnessed her struggle to reach the pantry, and his peremptory disposition of Hahar for the night, thus removing the only person from the house who was friendly to the deceased, and capable and willing to render assistance in her extremity, showed a cruel disposition, and a reckless disregard of human life, and bore strongly upon the intent with which the blow was inflicted. That he considered the provocation given to him by O’Shea a sufficient reason for killing a human being was-ostentatiously avowed by him immediately after the affray,, and might fairly have been considered by the jury as an attempted justification of consequences which he then apprehended, and probably premeditated- The hindrance-which O’Shea had for a long time' presented! to' the continuance of his illicit intercourse with his paramour furnishes-a motive for the crime, which might have been considered; by the jury sufficiently strong to induce him to attempt the1 life of the deceased. We are, therefore, on the whole case, of the opinion that the evidence supports the verdict of the jury, and that there is no sufficient reason in the facts of case to authorize the conclusion that injustice has been done the defendant by the judgment appealed from.

The only other point made by the appellant of any im. portauce is that raised by the objection to questions put to the witness Mahar by the people, respecting testimony previously given by him before the committing magistrate and the grand jury. Mahar had omitted to testify in detail to the movements of Kelly between the time when the deceased returned to the kitchen and the infliction of the fatal blow. With the obvious and avowed purpose of refreshing his recollection, the district attorney asked whether he had not previously sworn that Kelly moved coolly across from the north-east to the south-west corner of the room, where O’Shea stood, and also whether Kelly did not then address her in a low and quiet tone of voice. The Witness admitted that he so testified, and, upon the further question as to whether that was the fact, he answered that it was. This was certainly quite material evidence, and, if it was true, ■was competent on the part of the people. ■ The fact that he .omitted to testify to it on his direct examination must be ¡ascribed either to his forgetfulness or a disposition to befriend the accused by its suppression. He had given no • evidence conflicting with this statement, and it tended in no degree, to contradict his testimony. The manner in "which it was drawn ont might affect the credibility of the •witness with the jury; but having affirmed the truth of the ..facts, aside from his admissions as to his testimony on the previous occasion, it was the province of the jury to give .such credit to his evidence as it was entitled to. We are of the opinion, within the rule laid, down in Bullard v. Pears-all, 83 N. Y. 230, that it was proper for the people to refresh the recollection of the witness in the manner pui-sned in this ease. Several exceptions were taken to the rulings • of'the court upon challenges to jurors made by the accused, ■ but we are of the opinion that none of them were well •taken. Thomas v. People, 67 N. Y. 218; People v. Carpenter, 102 Id. 238 ; 4 N. Y. Crim. Rep. 177. We have • examined other points made by the appellant on the argument with the -care which the importance of the. ease requires, but are of the opinion that no errors were committed by the trial court which authorize a reversal of the judgment of conviction. The judgment should, therefore, be affirmed.

All concur,-  