
    Court of Appeals.
    
      June, 1889.
    PEOPLE v. CAROLIN.
    Murder.—Eemoval of Trial from General Sessions, to Oyer and Terminer.—Opinions of Jurors.
    Upon the trial of defendant for murder, it was shown that he had determined upon a separation from his mistress, that quarrels followed, that at the time of the alleged act, a scream was heard coming from the hall into which the prisoner’s apartment opened, and he was seen drawing the woman by her hair into his room, and that the door closed. Other screams were heard, as from a woman, and a sound or something dragging on the . floor. There was a kind of chopping, or dull sound, eighteen or twenty, in rapid succession, and meanwhile a man’s voice was heard, saying, “Now die, die, die.” A witness heard a scream, and looked in at the window and saw the defendant holding his mistress by her left hand. The witness saw him strike her with an axe on the head three or four blows, and when the witness went for assistance to a lower room, she, from there, heard dull muffled blows. When the officers came, they found the prisoner, and the body of his mistress. The prisoner said, “ She wanted me to kill her, and I killed her.” Her body showed the result of many blows. Held, that this evidence justified a verdict of murder in the first degree.
    There need be no notice given to the defendant of the transfer of an indictment for trial from the Court of General Sessions of New . York to the Court of Oyer and Terminer.
    On a trial for murder a proposed juror, while examined, said in substance that his scruples were such as would render him extremely reluctant to find the defendant guilty of murder in the first degree. This was somewhat attenuated and modified by further examination. Held, that it was for the court to say, from the examination of the juror, including his appearance- and demeanor, whether he was fit and competent to perform fairly and impartially his duties.
    
      Appeal by defendant Ferdinand Carolin from a judgment of the Court of Oyer and Terminer of New York County, Hon. Chas. Van Brunt, presiding, entered December 13, 1888, upon a conviction of murder in the first degree.
    
      Ahraham Suydam, for defendant, appellant.
    
      John li. Fellows, district attorney •(John W. CroffP assistant), for the people.
   The facts fully appear in the opinion of the Court of Appeals.

Danforth, J.

Our judgment must in this case be against the appellant. The circumstances of the homicide leave no doubt that the act was qualified by every condition which by statute constitutes murder in the first degree. Its subject was the defendant’s wife in name, but mistress in fact. He determined upon a separation, and to this she did not assent. Quarrel and threats followed, and at the time named in the indictment a scream was heard coming from the hall into which the prisoner’s apartment opened, and he was seen drawing the woman by her hair into his room, and the door closed. Other screams were heard, as from • a woman, and a sound as of something dragged on the floor. There was a kind of chopping or dull sound,—eighteen or twenty in rapid succession,-—and while this hitting was going on a man’s voice was heard. He said: “Now die, die, die.” There was an eye-witness,—a woman- standing on a stoop close to the window of the defendant’s room, and on a level with it. She heard a scream, and, looking in at the window, saw the defendant holding his wife with his left hand, and she says: “ He struck her with an axe on the forehead. He kept on striking her several blows,—three or four.” The witness went for assistance to a lower room, and from there heard dull, muffled blows. Officers Conner and Breen came. They found the prisoner and the body of his wife. Conner asked the defendant “ what he assaulted his wife for,” and lie said, She wanted me to kill her, and I ■killed her.” Her body showed the result of blows,—contusion of the cheek, abrasion of the right eye, wound under the chin, compound fracture of the upper jaw, fracture of the lower jaw, fracture of the nasal bone, destruction of the right eve-ball, compound fracture of the skull, fifth, sixth, seventh, eighth, ninth, and tenth ribs of the right side, and .as many on the left side, broken ; and the physician “ found us cause of death these multiple fractures and contusions.” Upon the trial, as a witness in his own behalf, the prisoner testified that on the occasion in question he gave his wife one blow only, and that with his fist; that she then seized the axe, and, in spite of his efforts to prevent her, struck herself with such effect as to produce the injuries above described. There was no other defense, and indeed, except by ■criticism and exceptions by counsel, the prisoner was undefended. It was impossible, in view of the evidence, for his ■counsel to do more. The offense charged was unmistakably made out, and there was not the slightest foundation for the motion, the denial of which furnished the ground for the first point now argued for the appellant, viz., that the charge •of murder in the first degree should be withdrawn from the consideration of the jury.

The indictment was found in the “general sessions of the peace of the city and county of New York,” and; on ■application of the district attorney, and without notice to the defendant, was sent to the court of Oyer and Terminer, there to be determined. At the opening of the trial the prisoner’s counsel objected" that for want of such notice the removal was invalid, and the court without jurisdiction. The objection was properly disregarded. The power to make such transfer is given by statute, and neither by legislation nor the decision of any court to which óur attention is called, or of which we have knowledge, is it made necessary to apprise a person indicted that an indictment found in one court will be taken for trial into another. Nor does it appear that either reason, or the ends of justice, or the

Note.—See People v. Kiernan. 3 N. Y. Crim. Rep. 247; affirmed, 4 Id. 88, on the question of a conviction of murder in the first degree although there were no eye-witnesses of the act.

preservation of any right of the citizen, requires that the practice contended for by the appellant should prevail. He might as well complain that he had no previous notice of the application for the indictment. Other exceptions, also-forming the basis of argument, were taken at the trial. They relate to its conduct, to the sustaining by the court of challenges by the people to jurors upon the ground of their opinions concerning capital punishment. The Code of Criminal Procedure (section 377) provides that in such a case as the present a person entertaining “ such conscientious opinions as would preclude his finding the defendant guilty shall neither be permitted nor compelled to serve as a juror.” On this occasion each, said, in substance, that his-scruples were such as would render him “extremely reluctant to find the defendant guilty of murder in the first degree,” and, although this was attenuated, and somewhat modified by further examination, it was for the court to say, from the whole examination of the juror, including his-appearance and demeanor, whether he was fit and competent to perform fairly and impartially his duty as a trier of the issues which involved such result. Other objections were made by the defendant’s counsel to decisions of the court in the course of impaneling the jury, to some questions of testimony, and to refusals of the court to charge in certain respects as requested by him. Well ave examined all. We find none that possess any merit, and, except for the importance of the case, they, as well as those already mentioned, would have been treated as frivolous. The prisoner was well and carefully tried. He had the benefit not only of the substance, but the forms, of law, and no other result than that expressed in the verdict of the-jury and the judgment of the court could have been reached.

That judgment must be affirmed.

All concur, except Finch, J., absent.  