
    The People of the State of New York, Respondent, v. John Bester, Appellant.
    Argued March 4, 1948;
    decided April 22, 1948.
    
      
      Joseph Lonardo forappellant.
    I. The instructions concerning the jury’s order of consideration, directing them to give priority to the felony murder theory, and the submission to the jury of a “ chart ” showing felony murder on top, prejudiced the defense. (People v. Snyder, 297 N. Y. 81.) II. The reception of the hammer in evidence constituted prejudicial error. (People v. Corbisiero, 290 N. Y. 191.) III. There were erroneous instructions as to extent of intoxication. (People v. Leonardi, 143 N. Y. 360; People v. Gerdvine, 210 N. Y. 184; People v. Crumble, 286 N. Y. 24; People v. Van Zandt, 224 N. Y. 354; People v. Conroy, 33 Hun 119, 97 N. Y. 62.) IV. There were no instructions as to reasonable doubt on intoxication issue. (People v. Crumble, 286 N. Y. 24; People v. Levan, 295 N. Y. 26; People v. Odell, 230 N. Y. 481.) V. There was no instruction as to reasonable doubt whether a felony was in progress. VI. There was no instruction as to reasonable doubt on issue whether intoxication affected the forming of an intent to rób. (People v. Levan, 295 N. Y. 26.) VII. The charge upon the felony theory was silent about lower degrees. (People v. De Jesus, 290 N. Y. 789; People v. Richardson, 287 N. Y. 629; People v. Koerber, 244 N. Y. 147; People v. Cummings, 274 N. Y. 336; People v. Lunse, 278 N. Y. 303; People v. Moran, 246 N. Y. 100; People v. Wagner, 245 N. Y. 143.)
    
      Frank S. Hogan, District Attorney (Whitman Knapp, Eugene A. Leiman, William Hoppen and Edgar J. Nathan 3d of counsel), for respondent.
    I. The trial court properly directed the jury as to the order in which they were to consider the forms of homicide. (People v. Schappes, 291 N. Y. 575; People v. Little, 295 N. Y. 656; People v. Clark, 289 N. Y. 618; People v. Snyder, 297 N. Y. 81; People v. Willson, 109 N. Y. 345; State v. Norton, 227 Iowa 13; Dillon v. State, 137 Wis. 655; People 
      v. Daniel, 297 N. Y. 538; People v. Little, 295 N. Y. 656; People v Maduro, 291 N. Y. 529; People v. De Jesus, 290 N. Y. 789; People v. Clark, 289 N. Y. 618; People v. Mardavich, 287 N. Y. 344; People v. Richardson, 287 N. Y. 629; People v. Cvek, 287 N. Y. 701; People v. Pryor, 283 N. Y. 623.) II. Defendant’s guilt was proved beyond a reasonable doubt. (People v. Becker, 215 N. Y. 126; People v. Atlas, 183 App. Div. 595, 230 N. Y. 629.) III. The hammer was properly received in evidence.
   Per Curiam.

The Trial Judge handed to the jury a chart listing “ the crimes submitted to you ” and directing the jury to consider such crimes in the order in which they are set forth on this Chart.” The sequence on the chart was as follows: “ Murder in the first degree, as a felony murder; murder in the first degree by premeditated and deliberate design; murder in the second degree; manslaughter in the first degree; manslaughter in the second degree ”. This procedure is now challenged by the defendant as being inconsistent with the opinion of Conway, J., in People v. Snyder (297 N. Y. 81, 90-91), but the proposition thus invoked (which had the support of three members of this court in the Snyder case) cannot here be considered, since the point is not presented by sufficient exceptions. (See Code Grim. Pro., § 420-a.)

The judgment should - be affirmed.

Loughran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ., concur.

Judgment affirmed.  