
    Robert M'Kee, Plaintiff in Error v. The People, etc., Defendants in Error.
    Everything which happened in the presence and hearing of the prisoner, at the time of the homicide, as tending to show the motive with which it was committed, is material.
    The act of 1855, ch. 337, as amended in 1858, ch. 330, has no application to trials of courts of Oyer and Terminer.
    Such provisions only apply to the General Sessions of the Peace in. and for the city and county of New York.
    The remarks of the judge on the subject of feigning insanity by the prisoner were correct.
    
      Scott Lord, for the plaintiff.
    
      J. H. Martindale, Attorney-General, for the defendants.
   Davies, Ch. J.

At a court of Oyer, and Terminer, held in the county of Livingston, in the month of February, 1863, the plaintiff in error was convicted of the crime of murder in the first degree, and sentenced to be executed on the third day of April, then next ensuing. The homicide was committed on the 18tli day of November, 1861. On the ninth day of March, 1863, a writ of error was brought upon said judgment to the Supreme Court, and at a General Term thereof held on the 16th day of December, 1863, the judgment was affirmed, and on the 31st day of December in the same year, the writ of error upon this latter judgment was brought to this court.

The cause was argued in this court at the January Term thereof, held in I860.

We then held that the sentence passed upon the prisoner was clearly erroneous, and, in conformity with the provisions of the act of April 21th, 1863 (this court, upon that occasion, being of the opinion that the conviction of the prisoner had been legal and regular), directed the record to be remitted to the Oyer and Terminer, to pass the sentence prescribed by the act of I860. (32 N. Y., 239.) Upon this argument no question was made, that the trial and conviction of the prisoner had not in all respects been legal and regular, nay, this court understood the learned counsel for the prisoner to' concede upon that argument that it had been:'

At the September Term of -this court, held in 1865, an application was made to this court, on behalf of the plaintiff in error, for- a re-argument, on the ground that errors had intervened on the trial prejudicial to the prisoner, and which, in ' the opinion of his counsel, was sufficient to procure a new trial, and which had not been urged on the former argument, for the reason that it was supposed the point relied on was fatal to the conviction, and would, of itself, insure the discharge' of the prisoner. Under the peculiar circumstances presented, this court ordered a re-argument, and the court have now heard all the suggestions of counsel deemed important for the consideration of this court. We do not propose to review the questions discussed and decided, upon the former argument. They .were then' carefully considered, and received the general approval of the members of the court. Those questions then passéd upon must be regarded as finally settled, and not open to further discussion. (Ratzky v. The People, 29 N. Y., 124.) There remains to be considered the points now made by the counsel'for the prisoner on this re-argument, and urged as reasons why this conviction and judgment should be reversed. The homicide was perpetrated under circumstances evincing premeditation, and a determination to take the life of the deceased. He was the brothel-in-l'aw of the prisoner, and had been at the prisoner’s house at an early hour of the evening of the homicide, and had sought admittance to the prisoner’s house, and had been refused. The deceased then' went to the house of Hr. Hakey, 'the father-in-law of himself and the' prisoner, and soon' after his arrival there, the wife of the prisoner .caine to the same house with her infant, child. A short ■ time afterward the prisoner was heard outside the house, calling upon the deceased to come out, which he did, and immediately the report of a gun was heard, and the persons in the house going out, found the deceased had been shot, arid was dead: ' The prisoner-was there, and confessed he had shot" him with his gun. Upon this state of facts there would seem- to be no question-, that human life had been taken, under circumstances which the law characterizes as murder in the first degree. Ho question was made but that the prisoner had taken the life of the deceased,' and the'defense of-insanity interposed was fairly left • to the jury, who, as the record states, “in a very few minutes returned to the court and rendered a verdict, finding the- prisoner guilty of murder in the first degree.” It is now urged that it was error-in the learned judge at the trial, in not advising the jury that there was no sufficient evidence of premeditation to warrant a verdict of murder in the first degree. -

■ It is a sufficient answer to "this objection to .say, that- no such request was made at the trial, and consequently no refusal and exception. The act of 1855 (Laws of 1855, chap. 337), as amended by chap. 330, of Laws of 1858, has no application to trials of Courts of Oyer and Terminer. It is only when a conviction for a capital offense has taken place iii the Court of General Sessions of the Peace, in and for the city and county of New York, -that this court is authorized to grant a new trial, “ whether any exception shall have been taken or not in the court below.” But we think the law was correctly expounded to the jury. The judge said: “In order to establish the guilt of the prisoner, two things arc necessary— first, a corrupt intent, and second, a vicious will. That the fact of the killing of Roger McMillan by the prisoner is not denied and cannot be. The law pre- ■ sumes that a person taking the life of another with a deadly weapon intends to do it, and if a sane man so intends, it makes no difference whether he had a motive or not, for it is not necessary to look for a motive when a person has been so killed with a deadly weapon or with poison; and if a man under the influence of passion and intoxication commits a crime, the law holds him responsible for it, though done in the heat of passion, and it is a question for you to determine, whether- the prisoner killed McMillan with' premeditation or whether he acted in the heat of passion, without premeditatian.” The authorities sustain the doctrine of this charge. (The People v. Clark, 7 N. Y., 385; The People v. Rogers, 18 id., 9; Willis v. The People, 32 id., 715; Freeman v. The People, 4 Denio, 9.

We see no error in permitting the whole conversation, which occurred at the time of the killing, in the presence and in the hearing of the prisoner, to be given in evidence to the jury. The witness had asked the prisoner if at the time he was in a passion, and he replied that he was. The prisoner’s wife, then, manifestly in exculpation of the prisoner, and to account for- his being in a passion, according to his statement, said that the deceased had broken her windows, and she gave that as the cause of the difficulty, and she said it was done that evening. The evidence was clearly competent. It was a statement made in the-presence and hearing of the prisoner, and his silence must be taken as an acquiescence in its truth. It was important as tending to establish the anger and passion of the prisoner, and the motive operating upon him in taking the life of the deceased. It tended to rebut the presumption that the shot was accidental, and strengthened the position that it(was designed and intentional. It was part of the res gestee, and everything which happened in the immediate presence and hearing of the prisoner, at the time of the homicide, was material and therefore admissible, as tending to show his motive for the act. It was correctly said by Parker, Justice, in the The People v. Green (1 Parker Cr., 17), that “it was well settled that the maxim, qui tacet consentiré videtur, was applicable to verbal conversation when there was a statement made in a party’s presence which was not denied by him. In such case, the party had an opportunity to- deny the statement at once, and not doing so, there was good reason for supposing he could not controvert it.” The statement made by the prisoner’s wife in his presence, of what she had told him, was clearly admissible. (Jewett v. Banning, 21 N. Y., 27.)

Joseph Makey, the father-in-law of the prisoner, was called to prove various acts and declarations of the prisoner, tending to show that the prisoner was insane. On his cross-examination he testified that upon an occasion mentioned, the prisoner came to the witness’ house, and made threats of burning his barn and shooting his man, if he, the witness, would not come out of his house. That the prisoner said, “ Come out you old coward, I am a little boy.” That the prisoner then kept still some time. The witness then remarked, “ a week or two before this he had threatened to burn Bailies’ barn; I told liis wife I would have him taken up.” ()n his re-direct examination, the witness testified: “ Prisoner was not present when I had the conversation with his wife about the burning of the barn and taking him up; that he made no complaint of what I had said to his wife that night; he gave no reason why he was angry that night.’.’ The prisoner’s counsel moved to strike out that part of the evidence relating to conversation between witness and prisoner; the court denied the motion, and the prisoner excepted. The evidence objected to consists in the statement of the witness, that in a conversation he had with the prisoner’s wife, in reference to a threat of the prisoner to burn a barn, that he, the witness, would have him taken up. As it did not appear that this threatened action of the witness was ever communicated to the prisoner, or that he had any knowledge or intimation of it, it could never have had any influence upon anything the prisoner ever said or did. It was wholly immaterial and irrelevant, and could not, upon any theory, have worked any prejudice to the prisoner. From aught that appears, he was in entire ignorance that any such threat had ever been made, and no act of his could therefore have been based upon, or affected by it. The silence of the prisoner on this subject leads to the inference that his wife had never mentioned the contemplated action of her father to him. The judge might properly have directed the striking out of this testimony, but it was no error for him to refuse to do so. For the reasons already stated, it was wholly immaterial. The "declarations and statements of the prisoner could not be given in evidence on his own behalf for any purpose whatever. They certainly could not be to enable the witness to identify the prisoner, and were, therefore, properly excluded.

We see. no1 error, in-what, the learnéd- judge said to the jury in .reference to. the testimony .of. Dr. .Bennett; ..He said to-them, “ If- you find- the prisoner,- at the time-,Dr. Bennett was observing-itim through,¡the hole in the wall as ¡described by .the - witnesses, was watching do- see whether... he was ^observed,. and. was regulating his: conduct, accordingly, it .would raise a very .strong: presumption .that.-.the. prisoner .was feigning insanity, and, indeed; sueH.-evidence,of design; and ¡calculation on his part as .to be -in my opinion entirely fatal .to his defense .of insanity.” .......

A reference-to Dr. Bennett’s ¡testimony will ¡¡show the circumstances under winch -.lie,.watched the prisoner, and were important, to determine whether,¡the insanity-imputed to the prisoner-was feigned.or, real.. The doctor said he-was looking through the hole prepared so.that.he might observe the prisoner, and.was looking through the¡hole when,the prisoner was put into, the west side of the jail. • As soon as the sheriff closed the door, the prisoner walked through the hall, going through the samo - motions as he had been before. .■ He then walked hack toward theihole, and as .he did so the witness noticed his eyes directed toward the aperture. ¡ It-could he seen, from'the inside;-, ’ lie did it two or three times. He came near the aperture, passed to one:side,.and -stood still a moment. He then crossed directly.in front of. the, aperture ■to .the other, side... .He then- appeared -to bend, forward, and looked.-into the hole and. dodged back. The conduct of the prisoner as thus detailed, if he was watching.to see whether he was-observed, and'was regulating his conduct accordingly, was most important for the consideration of the jury on the issue whether the insanity claimed for the prisoner was real or feigned. . If the jury came to the conclusion that the prisoner was watching to see if he was observed; and believed that he was, then his conduct clearly evinced such evidence of calculation and design as conclusively showed that he was not at that time, at least, insane. It certainly-tended strongly to show, that the defense of insanity was not founded in. fact,- and the expression of the opinion of the judge that it was fatal to the defense of, insanity is. not .a matter of exception. (Carver v. Jackson, 4 Peters, 1; Foster v. Steele, 5 Scott, 28; Belcher v. Prithe, 4 Moore & Scott, 295; Gardner v. Picket, 19 Wend., 136; Corn v. Child, 10 Pick., 252.)

We see no error in any of the rulings upon the trial, and if the appropriate sentence had been passed upon the prisoner, the judgment would be affirmed. But for the reasons heretofore given in this case, we reverse the judgments of the Oyer and Terminer and of the Supreme Court, and in obedience to the mandate of the legislature, we remit the record, to the end that the appropriate sentence upon the conviction may be passed. The judgments of the Oyer and Terminer and of the Supreme Court are accordingly reversed, and the conviction of the plaintiff in error being in the opinion of this, court legal, and regular, is affirmed, and the record is remitted to the Oyer and Terminer of the county of Livingston, to, the end that that court may sentence the prisoner to suffer death for the crime whereof he stands convicted,and that he be confined at hard labor in the State prison at Auburn, until such punishment of death shall be inflicted.  