
    Court of Appeals.
    
      June, 1889.
    PEOPLE v. NOLAN.
    Murder.—Evidence.—Insanity.—Statute Changing Method of Punishment.
    Upon a trial for murder it appeared that the deceased was a prostitute with whom defendant had been living, and who had been supporting him, and that she had refused to support him any longer. He found another man in her room a short time before the crime. Defendant went away, purchased a pistol, beought a man back with him to the house, and both went in. He called the deceased to come down stairs, saying that there was a man there wanted to see her. She finally came, when the man left, when defendant, having sent the landlady into her own room, standing in the hall with his hand on the street-door, drew the pistol and shot the deceased five times, from which she died. He fled, and when subsequently arrested stated that he had shot deceased' because “ she had shook ” him, he was angry and did not know what he did. Held, that this evidence was sufficient to justify a verdict of murder in the first degree.
    Defendant, when a small boy, fell oS a banister and hit his head, remaining unconscious a couple of hours. Shortly after his mother’s death, he then being of the age of twelve, he woke up in the night and told his brother that he had seen his mother, and this is said to have been of somewhat frequent occurrence. Defendant slept with his brother, who was the only witness to testify concerning the matter. He had one of these so-called illusions about two weeks before the homicide, as his brother testified. The brother also testified that defendant when at the of seventeen was overcome by the heat. Counsel suggested it was sunstroke and the brother assented, but could not remember whether he was unconscious or not, but remembered that he was sick about a week. Defendant at the time of the trial was about twenty-three years of age and had been a hard drinker. He also had a severe form of syphilis. Held, that these facts were entirely insufficient to show insanity.
    By the saving clause of section 10 of the Laws of 1888, chapter 489, changing the punishment of death from hanging to death by electricity, the act has no application to the case of a person indicted for crime before the time when the act took effect, but such crime must be punished according to the provisions of the law existing when it was committed, in the same manner as if the statute had never taken effect. '
    Appeal by the defendant James Holán from a judgment of the Court of General Sessions of Hew York, Hon. Braus B. Cowing presiding, entered March 8, 1889, upon a conviction of murder in the first degree.
    The facts appear in the opinion of the Court of Appeals.
    
      William F. JJowe, for defendant, appellant.
    • John It. Fellows, district-attorney (John W. Goff‘s assistant), for the people, respondent.
   Beckham, J.

The counsel for the defendant has argued two points before us, upon which he claims that the judgment in this case should be reversed. He claims that the verdict was against the weight of evidence, and that hence justice requires a new trial, and also that the death penalty by hanging can no longer be inflicted in such a case as this, and that thes tatute of 1888,—which provides for inflicting such penalty by means of electricity,—does not apply, or that, if it did, it would be unconstitutional as being an ex post facto law.

A careful perusal of the evidence contained in the record leads us without hesitation to a perfect agreement with the jury in the verdict of murder in the first degree. The killing is admitted, but it is alleged to have been perpetrated by the defendant while in such a mental state as to call for his acquittal on the ground of insanity. The evidence is clear and conclusive that no such immunity can properly be claimed for the defendant. It does not raise within us a shadow of doubt that at the time of the homicide the defendant was of perfectly sound mind. That part of it which has been assumed proved the contrary is so exceedingly weak and vague that it scarcely requires consideration. There is some evidence which shows that the defendant, when a small boy, fell off the banisters as he was sliding down, and hit his head, and remained unconscious for a couple of hours. Shortly after his mother’s death, and when at the age of twelve years, he awoke at night and told his brother that he had seen his mother, and called his attention to her, and his brother, much older, told him to <£ shut up, and go to sleep.” This is said to have been of somewhat frequent occurrence since, while sleeping with his brother. It seems always to have occurred at night, and no one other than his brother gave any testimony regarding it. He had one such so-called delusion about two weeks before the shooting, as the brother says. The brother also testified that once, when the defendant was seventeen years of age, he was overcome with the heat, and the counsel for the defendant, who was then examining the witness, at once suggested that it was a sunstroke, and the brother assented, and added that he disremembered whether he was unconscious or not, but that he was sick about a week. It is entirely evident there was no sunstroke about it. The defendant, at the the time of the trial, was about twenty-three years of age, and had been a hard drinker. He was also afflicted with syphilis in quite a severe form.

This completes the evidence which it is alleged shows the defendant to have been insane at the time of the homicide. Ho one had ever supposed that there was any mental derangement or unsoundness about him prior to that event. ¡Nothing in his manner, actions, speeches, or general course of life had ever led anyone to suspect that the defendant differed in aii}r respect from men whose mental condition was sound beyond all question. The evidence shows that he had been living with this unfortunate woman, and to a certain extent had been supported by her. She was a prostitute, and the immediate cause of the crime was her refusal to support defendant any longer, and also the fact that the defendant discovered that she was bestowing her favors upon another man whom he found in the room with her a short time prior to the perpetration of the deed. He went away, purchased a pistol, brought a man with him back to the house, and both went in, and he called for her to coiné down stairs, saying that there was a man there who wanted to see her. She finally came, when the man left, and the defendant sent the landlady into her own room, and there in the hall, with his hand upon the hall door leading into the street, to secure a means of retreat, he drew the pistol and fired at her five times, each shot taking effect, and the fatal one lodging in her abdomen. He then fled. When subsequently arrested he stated that he had shot her because “ she had shook” him, and he was angry and did not know what he did. This is the substance of the case, and we can but repeat our entire satisfaction with the verdict of the jury. A clearer case of deliberate and willful murder it would be difficult to show.

The second ground taken for a reversal of this judgment seems to us to be wholly free from merit. If I have been able to understand the argument of the counsel for defendant, it is that the legislature, in changing the manner of inflicting the death penalty from hanging by the neck to the application of electricity, has done it in so stupid a manner as to leave no method of inflicting the death penalty upon those who committed murder subsequent to the passage of the act and prior to the time when it went into operation (January 1, 1889), provided the trial took place after such-date and the sentence was consequently then pronounced. The act amended those sections of the Code of Criminal Procedure which related to carrying out the punishment of death by hanging, and substituted in their place the provisions requiring the application of electricity as therein stated, and it repealed all acts and parts of acts inconsistent with its provisions. But, by section 10, it was enacted as-follows: “Nothing contained in any provision of this act. applies to a crime committed at any time before the day when this act takes effect. Such crimes must be punished according to the provisions of law existing when it is committed, in the same manner as if this act had not been passed; and the provisions of law for the infliction of the penalty of death upon convicted criminals in existence on the day prior to the passage of this act are continued in existence and applicable to all crimes punishable by death which have been or may be committed before the time-when this act takes effect. A crime punishable by death, committed after the beginning of the day when this act takes effect, must be punished according to the provisions of this act, and not otherwise.” We are unable to see why this section is not a perfect answer to the argument of flic counsel for the defendant. The claim seems to be that, by the eleventh section of the act, all acts and parts of acts inconsistent with its provisions were repealed, and therefore, as the amendments made by the prior sections of the act to those sections of the Code of Criminal Procedure which provided for death by hanging had wiped out such sections as originally enacted, there was no law left for inflicting the-death penalty 'other than the sections as amended, which provided for its infliction by means of electricity, and that,, as applied to defendant’s case, such law was ex post faeto. This reasoning leaves out of view the provisions of section-10. The legislature, in that section, expressly enacted that nothing contained in any provision of the act should apply to a crime committed at time before the day when the act took affect. It went further, and, in so many words, provided that, as to such a crime, the punishment must be according to the old provisions in the same manner as if the act had not been passed. The defendant’s counsel gives a force to the repealing words of section 11 which the legislature expressly enacts they should not have. He says they repeal all acts prior to the repealing of the sections of the Code relative to the infliction of the death penalty; and, as the Code directed that the defendant was to be punished according to its provisions, the prior laws were not applicable to the defendant’s case, who was thus left, according to counsel’s contention, to be punished according to the Code as' it now exists, not as it existed heretofore, as by the amendment its former provisions were repealed. I am not sure that I have perfectly comprehended the position taken by the counsel for the defendant, but this is his argument as I understand it from his brief. The difficulty, and the whole difficulty, with it is as I have already suggested. It wholly ignores the provisions and effect of the tenth section,—the saving clause of the act. By reason of such clause the sections of the Code as they existed prior to the passage of the act remain, for all purposes therein stated, in full force and effect, exactly the same as if no act of amendment, alteration, or repeal had ever been passed ; and on that account, and for that reason, the law in force in this State, so far as the defendant is concerned, remains as it was before January 1, 1889, and all its provisions relating to the infliction of the death penalty by hanging are saved and continued. Ho amount of reasoning or argument can make this plainer than it is made by the statute itself, and further amplification would only tend to confuse what is now clear and unambiguous.

The judgment should be affirmed.

- All concur, except Finch, J., absent.  