
    The People of the State of New York, Respondent, v. Michael McDonald, Appellant.
    1. Murder—Sufficiency of Evidence—Self-defense, The evidence on a trial for the killing, hy shooting, of a timekeeper by a laborer, from whom he had deducted time, reviewed and found to justify the verdict of murder in the first degree, over the claim of self-defense.
    2. Review of Capital Case. The power of the Court of Appeals to reverse a judgment of death, even though no exception was taken at the trial, extends only to cases where the court is of opinion that justice requires a new trial; and an exception is always necessary in order to raise a pure question of law.
    3. Crimes — ‘Assault ” not Included in ‘ ‘ Murder ” — Conviction of Assault not Open to Jury on Trial eor Murder. An assault, in any of its degrees, is not a necessary legal element in a charge of murder in an indictment in substantially the same form as was in use under the common law; and, until some statute authorizes a conviction for assault under an indictment charging homicide, the courts are not required, on the trial of such an indictment, to submit to the jury the question whether the defendant was guilty of assault instead of murder.
    (Argued April 19, 1899;
    decided June 6, 1899.)
    Appeal from a judgment of the Supreme Court rendered at a Criminal Trial Term for the county of Mew York, July 7, 1898, upon a verdict convicting the defendant of the crime of murder in the first degree.
    The facts, so far as material, are stated in the opinion.
    
      William F. Howe for appellant.
    The court erred in declining to charge that if the jury are not satisfied, from the evidence, that the prisoner is guilty of murder in either of its degrees, or manslaughter, that they may, upon the evidence, find him guilty of assault in the first degree or assault in the second degree, and in declining to charge the jury upon the law as to what constitutes assault in the first and second degrees. (Code Crim. Pro. §§ 444, 445 ; People v. McDonald, 49 Hun, 69 ; People v. Palmer, 43 Hun, 404 ; People v. Kennedy, 57 Hun, 532.) On the evidence a conviction of assault in the first or second degree would be sustained. (Bush v. Comm., 78 Ky. 268 ; Code Crim. Pro. § 262 ; Peterson v. State, 12 Tex. App. 650.) There was no necessity for an exception to the court’s refusal to charge. (Code Grim. Pro. § 528 ; People v. Corey, 157 N. Y. 351 ; People v. Barberi, 149 N. Y. 278.)
    
      Asa Bird Gardiner and Charles E. Le Banbier for respondent.
    The verdict of the jury was abundantly supported by the facts, and the case was proved beyond a reasonable doubt. (People v. State, 117 N. Y. 483 ; Leighton v. People, 88 N. Y. 120 ; People v. Conroy, 97 N. Y. 77 ; People v. Bekwith, 103 N. Y. 368 ; People v. Hawkins, 109 N. Y. 408 ; People v. Cignarale, 110 N. Y. 27 ; People v. Trezza, 125 N. Y. 741 ; People v. Wilson, 141 N. Y. 185 ; People v. Barberi, 149 N. Y. 267 ; People v. Corey, 157 N. Y. 343.) AH the essential elements of the crime of murder were made out and the jury were justified in finding that the killing of the decedent was with premeditation and deliberation on the part of the defendant. (Penal Code, §§ 170, 181,183, 205 ; People v. Hill, 19 N. Y. S. E. 672 ; People v. Conroy, 97 N. Y. 77 ; People v. Decker, 157 N. Y. 193 ; Leighton v. People, 88 N. Y. 120 ; People v. Beckwith, 103 N. Y. 368 ; People v. Hawkins, 109 N. Y. 408 ; People v. Johnson, 139 N. Y. 358 ; People v. Constantino, 153 N. Y. 24.) The verdict was not against the weight of evidence or against the law. (Code Grim. Pro. § 528 ; People v. Decker, 157 N. Y. 195 ; People v. Cignarale, 110 N. Y. 23 ; People v. Kelly, 113 N. Y. 647 ; People v. Trezza, 125 N. Y. 740 ; People v. Hoch, 150 N. Y. 291 ; People v. Youngs, 151 N. Y. 210 ; People v. Constantino, 153 N. Y. 24 ; People v. Carbone, 156 N. Y. 413.)
   O’Beien, J.

The shooting by the. defendant was established by the testimony of several witnesses called on behalf of the People. Some of these witnesses saw the defendant fire the shots, and others saw some of the shots fired and heard the report of others. There was, as already observed, no controversy with respect to the fact that the defendant inflicted the wounds., which caused the death of Titus. The only controverted questions arise upon the defendant’s claim that his act was justifiable and in self-defense, and whether the killing was with deliberation and premeditation.

It is quite Unnecessary to discuss the evidence bearing upon these questions. It is not seriously claimed upon this appeal that the evidence was not sufficient to require its submission to-the jury, and it was submitted under a very fair and impartial charge by the court. The facts and circumstances attending-the shooting were testified to by several witnesses called by the prosecution, and were of such a character as to justify, if not indeed to require, the jury to find that the defendant willfully, and with deliberation and premeditation, shot and killed the deceased. We have examined the evidence in the record with considerable care, and find it impossible to state any reason for interfering with the verdict of the jury.

With respect to the defendant’s claim that the killing was. justifiable and in self-defense, his testimony is contradicted by that of the witnesses called by the People, and by the circumstances and probabilities of the case. At all events, the weight, and credibility of his version of the transaction was for the jury, and evidently they refused to credit him.

There is really but one question which the learned counsel for the defendant has presented to us for our consideration, and that is an error which he claims the trial judge committed in refusing to charge a proposition submitted to him in behalf of the defendant. The learned trial judge instructed the jury ti&t it was open to them, according to their view of the testimony, to convict the defendant, either of murder in the first degree, murder in the second degree, or manslaughter, the latter being inferior grades of the principal crime charged. He submitted to them careful instructions with respect to the facts and circumstances to be established in order to constitute these offenses. It is admitted that the charge in this respect was fair and correct, at least as far as it went. But the learned counsel for the defendant requested the court to instruct the jury as follows: “.That if the jury are not satisfied from the evidence that the prisoner is guilty of murder in either of its degrees, or manslaughter, that they may, upon the evidence, find him guilty of assault in the first degree, or assault in the second degree, and I ask your honor to charge the jury on the law as to what constitutes assault in the first and second degrees.” The court replied in this language: “ That I refuse under this indictment.” There was no exception taken to the ruling of the court upon these requests ; but it is urged that in a capital case this court has power to reverse the judgment of conviction where an error has been committed, although no exception was taken to the ruling at the trial. That is undoubtedly true, but only in cases where the court is of opinion that justice requires that a new trial should be had. When this court, upon a review of the whole case, is satisfied that the defendant has not had a fair trial, or that injustice may have been done, it has the power to order a reversal, even though no exception was taken at the trial to rulings alleged to e erroneous. In all cases an exception is necessary in order to raise a pure question of law, and even then, under the general provisions of the Code, we are required to disregard exceptions which present only technical errors and which do not affect the substantial rights of the parties. If it be conceded that the refusal off the learned trial judge to charge the proposition above stated was error, it would be difficult even then to give any good reason for making it a ground for interfering with the verdict of the jury. It was left to the jury to say whether the offense was murder in the first degree, murder in the second degree or manslaughter, and it was open to them under the charge to find a verdict for the lowest offense. But it seems that the jury refused to find, from all the evidence, that it was any other than a case of willful killing, with deliberation and premeditation. Under these circumstances it would be very difficult to show that the defendant was in any wise prejudiced "by the refusal of the court to charge the proposition submitted by his counsel.

But we are also of the opinion that the defendant was not entitled to the charge requested. It is provided by section 444 of the Code of Criminal Procedure that “ Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime.” A simple assault is not one of the grades of homicide, and, hence, this section had no application to the case. But the next section provides that “ In all other cases the defendant may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment.” This section has no application to the case at bar, unless it can be shown that a common assault is necessarily included in a charge of murder. The learned counsel for the defendant insists that under the indictment in this case the defendant could have been convicted of an assault in the second degree. If he is correct in that proposition it would follow that had the defendant been convicted of that very inferior offense it would have been a bar to any indictment charging either degree of murder or manslaughter. We think it would not, and it has been so held upon very good authority. (Burns v. People, 1 Park. Or. R.182 ; Colby’s Cr. L. 388 ; Wharton’s Cr. Law [5th ed.], sec. 1122 ; Dedieu v. People, 22 N. Y. 178 ; People v. Willson 109 N. Y. 345.) An assault in any of its degrees, we think, is not a necessary legal element in a charge of murder in an indictment in substantially the same form as was in use under the common law, and until some statute authorizes a conviction for this offense under an indictment charging homicide, the courts are not required to submit such a question to the jury.

We can find no error in the record that would justify us in interfering with the judgment, and it must, therefore, be affirmed.

All concur.

Judgment affirmed.  