
    The People of the State of New York, Respondent, v. Guisseppe Guidici, Appellant.
    (Argued October 23, 1885;
    decided November 24, 1885.)
    Errors upon a criminal trial can be made available in this court only by exception duly taken on the trial. This rule is not changed by the provision of the Code of Criminal Procedure (§ 527), authorizing the Supreme Court on appeal in a criminal action to grant a new trial where the judgment is against evidence or law, although no exceptions were taken on the trial.
    Where upon a criminal trial the deposition of a witness taken in pursuance of said Code (§§ 620-633) on the application of the prisoner was offered in evidence on behalf of the people, and received without objection or exception on the part of the defendant, held, .that no question as to its admissibility could be considered here.
    A general exception to a portion of a charge is of no avail, unless all of the propositions laid down therein are erroneous.
    An indefinable doubt which cannot be stated, with the reason upon which it rests, is not a “ reasonable doubt ” within the meaning of the rule giving the defendant on a criminal trial the benefit of such a doubt.
    Where the court on such a trial charged the jury in substance to view all the facts from which an inference was to be drawn, and inquire whether, consistently with the truth of the whole, the prisoner might not be innocent; to weigh and consider the evidence, and if, from deficiency of proof or inconclusiveness of testimony, any material fact was not established, there was then a reasonable doubt, to the benefit of which the prisoner was entitled; but that it is not a mere guess or surmise that the man may not be guilty, it is such a doubt as a reasonable man might entertain after a fair review and consideration of the evidence for which some good reason arising from the evidence can be given. Held no error.
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made at the February term, 1885, which affirmed a judgment of the Court of Sessions in and for the county of Kings, convicting the defendant of the crime of murder in the first degree.
    The'facts so far as material to the questions discussed are stated in the opinion.
    
      
      Nathaniel C. Moak for appellant.
    When the evidence is conflicting, it is error for the court to refuse to charge the doctrine of reasonable doubt. (Code of Crim. Pro., §§ 389, 390; Spears v. State, 2 Tex. App. 244; May v. State, 6 id. 191; Mace v. State, id. 470; Snyder v. State, 59 Ind. 105; Whart. on Horn. [2d ed.], § 649.) Where the court, in defining what is a reasonable doubt, includes something which ought not, in fairness to the prisoner, to be included, a new trial should be granted. (State v. Johnson, 16 Nev. 36; People v. Brown, 59 Cal. 345 ; Anderson v. State, 41 Wis. 430; Myers v. Comm,, 83 Penn. St. 143; Castle v. State, 75 Ind. 146 ; State v. Sloan, 55 Iowa, 220.) A reasonable doubt may not only arise out of the evidence, but may be the result of a want of evidence. (Massey v. State, 1 Tex. Ct. App. 564; Dinsmore v. State, 67 Ind. 306; Wright v. State, 69 id. 163; Batten v. State, 80 id. 394; Holmes v. State, 9 Tex. App. 313; State v. Rowe, 11 Nev. 348; Mixin v. State, 55 Miss. 527.) A reasonable doubt exists when the evidence is not sufficient to satisfy the judgment of the truth of a propo- . sition with such certainty that a prudent man would feel safe in acting upon it in his own important affairs. (Arnold v. State, 23 Ind. 170; State v. Reed, 62 Me. 142 ; Miles v. United States, 103 U. S. 304; Commonwealth v. Costley, 118 Mass. 16; People v. Finley, 38 Mich. 482; McGuire v. People, 44 id. 286; State v. Bridges, 29 Kans. 138; Whart. Cr. Ev. [8th ed.], § 1; State v. Summers, 9 West. L. J. 415.) Nor is it an answer to what has been said, that the aggregated common sense of the twelve jurors is to determine when a juror is “ able to give some good reason ” for his doubt. It is not necessary he should be able to do so even to his own satisfaction. (Dinsmore v. State, 67 Ind. 308; Wright v. State, 69 id. 165; Anderson v. State, 41 Wis. 430; Myers v. Comm., 83 Penn. St. 142; Anderson v. State, 41 Wis. 433; People v. Ah Sing, 51 Cal. 372; Bishop’s Crim. Pro., § 1094; People v. Schryver, 42 N. Y. 6; 1 Greenl. Ev., § 13 A., and [3d ed.], § 29 ; People v. McCann, 16 N. Y. 58.) Not only the killing but the intent to kill must be proved beyond a reasonable doubt by the prosecution, and when the defense claim that such intent was wanting, they are not to prove beyond a reasonable doubt that the prisoner “ did not intend, to kill.” (Code of Crim. Pro., §§ 389, 390 ; People v. McGann, 16 N. Y. 58 ; People v. Schryver, 42 id. 4.) The reading of the deposition of the widow of deceased by the prosecution was illegal. (Code of Civ. Pro., §§ 527, 631.) The prisoner cannot waive any such constitutional and natural right. (People v. Cancemi, 16 N. Y. 501; People, v. Restell, 3 Hill, 289 ; Barron v. People, 1 N. Y. 391.) The inability of the witness to attend must exist at the time of the trial. (Pry v. Bennett, 4 Duer, 247; Downell v. Walsh, 6 Bosw. 621; Nixon v. Palmer, 10 Barb. 175 ; Guyon v. Davis, 7 Wend. 29 ; Browner v. Frauenthal, 37 N. Y. 166; Markoe v. Eldrich, 1 Abb. 55; Sheldon v. Wood, 2 Bosw. 267; Montressor v. Sice, 3 Wend. 180.) The prosecution cannot read on the trial a deposition taken before trial, unless the defendant was present when the deposition was taken. (People v. Mauer, 43 N. Y. 1; Code of Crim. Pro., § 8, subd. 3; 1 Bishop’s Crim. Pro. [3d. ed.], § 265.) The absence of the prisoner has been held to render the deposition inadmissible. (People v. Restell, 3 Hill, 289.) The judge, in charging the jury, may casually make known his opinion to them on the facts, but to assert to the jury that he has that right, and to impress it upon them by strong language, is by no means a prerogative of the presiding judge on a criminal trial. (2 Park. Cr. 223; 6 id. 209; 15 How. Pr. 557; 13 Abb. Pr. [U. S.] 370.) The verdict against the prisoner was against the weight of evidence and against law. Justice requires a new trial whether under the exceptions taken or under any other exceptions that could have been taken in the court below. (Code of Crim. Pro., § 527.)
    
      James W. Ridgway for respondent.
    There was a deliberate and premeditated design on the defendant’s part to effect the death of Daghiero. (People v. Batting, 49 How. 392; Thomas v. People, 67 N. Y. 218 ; People v. Majone, 91 id. 211; Sindram v. People, 88 id. 196; Leighton v. People, id. 117.) Even if the defendant did fire the shot accidentally, the circumstances were not such as justified him in pointing a loaded pistol at the defendant. (Penal Code, § 205.) Even as the basis of the defendant’s own story, he did not put himself in such a position as warranted the use of a deadly weapon. He was not pushed to the wall in any sense of the word. The evidence does not show that he retreated or flinched. (People v. Cole, 4 Park. Cr. 35; Shorter v. People, 2 N. Y. 193; Sullivan v. People, 7 id. 306.) The burden was on the defendant, after the proof of the assault with the deadly weapon, to show that there was sufficient cause to justify the use thereof. (Sawyer v. People, 91 N. Y. 667; People v. Thomas, 67 id. 218; Abbott v. People, 86 id. 470; Nichols v. People, 23 Hun, 167; 86 N. Y. 641; People v. Moett, 85 id. 373.) The exceptions to be available must have been raised at the trial. (People v. Hovey, 92 N. Y. 80.) Specific quarrels with other parties could not be given in evidence. (Eggler v. People, 56 N. Y. 643; Nichols v. People, 23 Hun, 167; Thomas v. People, 67 N. Y. 218.) The prisoner’s conduct and acts, as well when in custody as when at large, may be given in evidence against him, and their cogency or evidence will be determined by the jury. (People v. Wenz, 37 N. Y. 303 ; Teachout v. People, 41 id. 7; Hochreiter v. People, 2 Abb. Ct. App. Dec. 363; McKee v. People, 36 N. Y. 113; Commonwealth v. Coffee, 108 Mass. 285; Same v. Croker, id. 464.) A party can always contradict other witnesses though they may be his own. He cannot impeach them. (Thompson v. Blanchard, 4 N. Y. 403 ; Williams v. Sergeant, 46 id. 481; Lawrence v. Barker, 5 Wend. 301; McArthur v. Hurlburt, 21 id. 190 ; 1 Greenl. on Ev., § 343.) The counsel could not require the court to charge what had once been correctly stated. (Moett v. People, 85 N. Y. 375 ; Walker v. People, 88 id. 81; O’Connell v. People, 87 id. 377.) The court properly charged that the jury might take into consideration the evidence of character, as well as all the other evidence in the case, and determine the question whether the prisoner is guilty or not. (Stover v. People, 56 N. Y. 319 ; People v. Lyon, 1 Crim. Rep. 290; People v. Lamb, 2 Keyes, 318; (Cancemi v. People, 16 N. Y. 501.) Comments on the testimony so long as the judge leaves all the questions of fact to the jury, and instructs them that they are the sole judges of mattersoi fact, are not the subject of legal exception. (Sindram v. People, 88 N. Y. 202.) There is nothing contained in any Constitution, Federal or State, which renders section 620 et seq. of the Code of Criminal Procedure unconstitutional. (People v. Williams, 35 Hun, 516.)
   Danforth, J.

We agree with the learned judges of the courts below in the opinion that the facts in evidence fully justified the submission of the case to the jury as one in which they might find the defendant guilty of murder in the first degree, as charged in the indictment, and think it necessary to consider only those points which allege error in regard to evidence, or the directions under which the evidence was to be weighed. First. The deposition of Mrs. Daghiero, the widow of the murdered man, taken on application of the prisoner and in pursuance of the provisions of the Code of Criminal Procedure (§§ 620-635), was offered in evidence in behalf of the people, the district attorney stating, as appears by the record, “ that he would read the same for the reason that the same conditions now exist to prevent the personal attendance of the witness as existed at the time of granting the order for the taking such examination, and that the witness is unable to personally attend by reason of her continued sickness.” It also appears that the defendant’s counsel made no objection or exception to the reading of the same, and it was thereupon read. Errors upon criminal trials can be made available in this court only by exceptions duly taken on the trial (People v. Thompson, 41 N. Y. 6; People v. Casey, 72 id. 399; Connors v. People, 50 id. 240 ; Brotherton v. People, 75 id. 159); and it follows that as no objection was then taken, the questions now argued against the admissibility of the deposition are quite out of place. But notwithstanding this doctrine is well established, the learned counsel for the appellant contends that by section 527 of the Code (supra) a different rule is enacted, and that the question may be considered in the same manner as if an objection had been made upon the trial. It was, however, held otherwise in People v. Hovey (92 N. Y. 554); Same v. Boas (id. 560), and Same v. D' Argeneour (95 id. 631). . Nor is any hardship imposed upon the appellant by the application of this rule. Assuming what, except for this purpose, I by no means concede, that there is any force in the objections now made to the reading of this deposition it was deliberately acquiesced in by the prisoner, and it was clearly in his power to waive them. Consent would not give the court jurisdiction or authorize a substantial change in its fundamental mode of proceeding; that could be neither enlarged nor restricted. The trial must be by a jury of twelve, and not a less number, although the prisoner consent thereto (Cancemi's Case, 18 N. Y. 128), but'he may waive his right to challenge. He cannot be compelled to be a witness against himself, but by consenting to take the stand he waives the constitutional protection and may be examined in the same manner as any other witness. (Connors v. People, supra.) He is not subject to be twice put in jeopardy for the same offense, but if judgment is arrested on his motion, or if for any reason a new trial is granted on Ms prayer, he must submit to another trial. So the jury must act upon evidence, but secondary in place of primary evidence may be received. Admissions of facts may be allowed, and in many similar particulars consent will render valid what without it would be erroneous. (Cancemi's Case, supra; Pierson v. People, 79 N. Y. 424.) So here if there were no' statute upon the subject, whether the witness should be produced in court and there confronted with the prisoner, or whether her deposition, taken at his instance, should be read, might be left to Ms determination (Webster v. People, 92 N. Y. 422), and Ms assent to the latter course having been signified by acquiescence, makes it immaterial to inquire as to the true meaning and effect of the statute (supra).

Second. In behalf of the prisoner twenty-eight requests to charge were submitted to the court, and among others one in these words : “ The prisoner is entitled to the benefit of any reasonable doubt which the jury might entertain, not only upon the case generally but upon each and every specific fact necessary for them to find before reaching a verdict in the case, and if they entertain any such doubt in respect to any matter necessary to sustain a verdict for either of the higher offenses, then it is their duty to convict of the lesser, and if they entertain any such doubt on the whole .case they must acquit.”

In response the court said to the jury: I charge you that, perhaps I can put it in shorter terms so that you can understand it. If you have any reasonable doubts upon any facts which are necessary to convict the defendant he is entitled to the benefit of that doubt. If you have any reasonable doubt of his guilt he is entitled to be acquitted. If you have any reasonable doubt of his guilt of murder in the first degree you cannot convict him of that count. If you have any reasonable doubt of guilt of murder in the second degree you cannot convict him on that count, or if you have any reasonable doubt as to manslaughter in either degree you cannot convict him of that, and he must be acquitted. You must understand what a reasonable doubt is. It is not a mere guess or surmise that the man may not be guilty, it is such a doubt as a reasonable man might entertain after a fair review' and consideration of the evidence. A doubt for which some good reason arising from the evidence can be given. When you find such a doubt as that in a case, it is your duty to give the prisoner the fullest and amplest benefit of it.”

“ To all which defendant’s counsel,” as the case states, “ then and there duly excepted.”

It is entirely well settled that such general exception is of no avail if any portion of the matter be well stated. (Decker v. Mathews, 13 N. Y. 313.) No error was specifically pointed out, and it is not now claimed by the learned counsel for the appellant that all the propositions laid down in this portion of the charge are erroneous. The exception, therefore, might well be treated as unavailing, but having regard to the importance of the case we have followed the argument for the appellant and find no just cause of complaint. The criticism is limited to the definition given of a reasonable doubt, and aimed at that portion where, by way of paraphrase, the trial judge said: “A doubt for which some good reason arising from the evidence can be given.” It should be read with the whole sentence of which it forms a part, and so taken seems only to distinguish that doubt which would avail the prisoner, from one which is merely vague and imaginary. The jury were not called upon to formulate and state their reasoning, but in substance to view all the circumstances from which an inference was to be drawn, and inquire whether, consistently with the truth of the whole, the prisoner might not be innocent — to weigh and consider the evidence, and if from a deficiency of proof, or inconclusiveness of testimony, any material fact was not established, there was then left a reasonable doubt arising from the evidence, and to the benefit of that the prisoner was entitled. We find in the language of the judge nothing to mislead or perplex a juror, but if counsel at the trial thought otherwise, the attention of the court should have been directed to it. “ An indefinable doubt, which cannot be stated, with the reason upon which it rests, so that it may be examined and discussed, can hardly be considered a reasonable doubt, as such an one would render the administration of justice impracticable,” and as to this it has not been too strongly said, “ all the authorities agree.” (3 Green! on Ev. [14th ed.], § 29, note.)

Many other propositions are submitted to us as ground for a new trial. They have been examined, but we find no error of law, and must affirm the judgment.

All concur, except Rapallo, J., not voting.

Judgment affirmed.  