
    The People of the State of New York, Respondent, v. John Greenwall, Appellant.
    Under the Penal Code (sub. 3, § 183) the killing of any human being by one engaged in the commission of a felony is murder in the first degree, whether the felony was committed upon or affects any person or concern^ property only.
    In the course of the trial of an indictment for murder the district attorney referred to a former conviction of the defendant on trial under the same indictment, and in his argument referred to the fact that a witness called for the defendant on the former trial was not called on this. Held, that while the language of the district attorney was improper, and it may he a technical violation of the provision of the Code of Civil Procedure (| 464), which provides that upon a new trial, after reversal of a former conviction, “ the former verdict cannot he used or referred to either in evidence or on argument,” yet as the facts showed defendant was not' injured it was not a ground for reversal; that to justify a reversal on such a ground the court should he satisfied that justice requires it. ¡Reported on former appeal, 108 N. Y. 296. ■
    (Argued June 25, 1889;
    decided October 8, 1889.)
    Appeal from judgment of the Court of Sessions of the county of Kings, entered January 18, 1889, upon a verdict convicting the defendant of the crime of murd'er in the first degree, and from an order denying a motion for a new trial.
    Defendant was convicted of the same offense on a "former trial, which conviction, on appeal to this court, was reversed and a new trial granted.
    The facts, so, far as material, are stated in the opinion.
    
      C. F. Kingsley for appellant.
    The facts set forth in the second count of the indictment do not constitute the crime of murder in the first degree. (Penal Code, §§ 183, 189; subd. 1; § 193, subd. 1; In re N. Y. & B. Bridge, 71 N. Y. 527, 550; People v. McGloin, 91 id. 241, 250.) The viction by the district attorney was a violation of the law. court has the power to review a capital case upon the merits and to grant a new trial, although no exception was taken. (Code Grim. Pro. §■ 528.)' The reference to the former con-(Code Crim. Pro. § 464; State v. Hornsby, 8 R. 583; Bishop on Grim. Law, § 1003 ; Code Grim. Pro. [Tex.] § 783; Guest v. State, 7 S. & W. 242; Allair v. Allair, 39 N. J. Law, 113 ; Crawford v. Morris, 5 Gratt. 90, 103 ; Butler v. Slam, 50 Pa. 456; Martin v. Orndorf, 22 Iowa, 506.) The court erred in failing to instruct the jury to disregard the remarks of the district attorney. (Melvin v. Easley, 1 Jones’ Law, 388.) The court erred in permitting the district attorney to call the jury’s .attention to Miller’s testimony as given on the former trial. (Blackman v. State, 3 S. E. Rep. 418; Patterson v. Com. 5 S. & W. 765; Tilery v. State, Id. 842; Green v. State, 5 Texas Law Rep. 39 ; People v. Rose, 4 N. Y. Sup. 787, 790 ; Koelges v. G. L. Ins. Co., 57 N. Y. 638 ; Lessner v. Perkins, 39 Hun, 341; Quinn v. People, 15 N. Y. 32; People v. Anderson, 44 Ca. 70 ; Fuller v. Talbot, 23 Ill. 357; Sprague v. Craig, 51 id. 289 ; Hoxie v. H. Ins. Co., 33 Conn. 471 ; Melvin v. Easley, 1 Jones’ Law, 386 ; Martin v. Orndorf, 22 Iowa, 504; Butler v. Slam, 50 Pa. 456 ; Allair v. Allair, 39 N. J. Law, 113.) The court erred in charging the jury that the eoryms delieto was established as matter of fact. (Penal Code, § 181.)
    
      James W. Ridgway for respondent.
    The confession made by the prisoner to the witness Baker was properly admitted by the court. (People v. Carr, 3 N. Y. Cr. R. 578; People v. Jaehne, 4 id. 478 ; 103 N. Y. 182; 3 N. Y. S. R. 11; People v. Mondan, 4 Cr. R. 117; People v. Bodgley, 16 Wend. 53; People v. Deacon, 109 id. 375; People v. Routy, 21 N. Y. S. R. 1; People v. O'Neil 109 N. Y. 251: 14 N. Y. S. R. 829.)
   Earl, J.

This is the same case which was here upon a prior appeal. (108 N. Y. 296.) The new trial has again resulted in the defendant’s conviction. A careful scrutiny of the record satisfies us that there was ample evidence to justify the verdict of the jury. There was no dispute that Mr. Weeks-was murdered by some person while engaged in a burglary in the night-time at his house, and upon the trial the only disputed question of fact was as to the identity of the criminal. The confessions of the defendant to one of his criminal associates, and the other evidence, were ampielo identify him beyond a reasonable doubt as the author of the crime.

The indictment contains two counts. In the first count the defendant is charged with killing Mr. Weeks from a deliberate and premeditated design to effect Ms death; and in the second count he is charged with killing him while engaged in . the commission of - a felony, to wit, the crime of burglary. The evidence was sufficient to warrant a verdict' of guilty under either count, and the jury were instructed that they might, as they should view the evidence, convict under either count. It appears, however, from the charge of the trial judge, that the prosecution mainly relied upon the. second ' count, and the jury found the defendant guilty of murder in the first degree under that count. Fo objection was made upon the trial, or upon the motion subsequently made for a new trial, to the indictment. But upon the argument of this-appeal the objection was for the first time made that the second count in the indictment does not charge the crime of murder in the first degree.

It is provided by subdivision 3 of section 183 of the Penal Code that the killing of a human being “ without a design to effect death, by a person engaged in the commission of or in an attempt to commit a felony, either upon or affecting the person killed or otherwise,” is murder in the first degree. The defendant’s counsel contends that the words “ or otherwise” mean “or another,” and that, therefore, the second count does not charge murder in the first degree, because it does not allege that the defendant killed Hr. Weeks while engaged in the commission of or attempt to commit a felony either upon or affecting him or some other person.

We think it is entirely clear that it was intended to make the killing of any human being, while engaged in the commission of any felony, murder in the first degree, whether the felony was committed upon or affected any person or concerned property only. Mo intelligent draftsman of an act would use the inappropriate word “ otherwise ” in the sense of “ another.” Such an absurd use of language cannot be supposed. In the Eevised Statutes (2 E. S. 657, § 5, subd. 3) it was provided that such killing, “ when perpetrated without any design to effect death, by a person engaged in the commission of any felony,” was murder. By the act chapter 410 of the Laws of 1860, the crime of murder was divided into the first and second degrees, and the degrees were defined as follows: “'All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or the attempt to perpetrate any arson, rape, robbery or burglary, or in any attempt to escape from imprisonment, shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder in 'the second degree.” Under this act the particular crimes in which the criminal may be engaged at the time of the killing, in order to constitute murder in the first degree, are specified; and if the killing was perpetrated while the criminal was engaged in the commission of a crime not specified, it was murder in the second degree. The act of 1860 -was repealed by the act chapter 197 of the Laws of 1862, and by that act section 5 of the Eevised Statutes above quoted, was re-enacted down to subdivision 3 thereof, and that was amended so as to read as follows: “Third. When perpetrated while committing the crime of arson in the third degree.” Under that act it was only when the killing was perpetrated in committing the -crime of arson in the first degree that the crime was made murder in the first degree, and the killing of a human being while engaged in any other felony was murder only in the ■second degree. By the act chapter 644 of the Laws of 1873 the act of 1862 was amended so that subdivision 3 of section 5 of the Bevised Statutes again took its original form. By the act chapter 333 of the Laws of 1876 the act of 1873 was •amended so as to make subdivision 3 of section 5 of the Bevised Statutes read as follows : “ Third. When perpetrated by a person engaged in the commission of any felony.” The words “ without any design to effect death,” before in the section, were omitted.

While the section was in this form a question was raised whether it was murder in the first degree to kill a human being while engaged in an assault upon the person killed, but without any premeditated design to effect the death of such ■person. (Buel v. People, 18 Hun, 487; 73 N. Y. 492.) Section 183 of the Penal Code was drafted before that question was put at rest by the decision cited, and hence the phraseology of subdivison 3 was again changed, as we may infer, to make it certain that the killing should be murder in the first degree, whether the felony was committed upon or affected the person killed, or was any other kind of felony. But, in the Code, a further subdivision is added as follows: “ When perpetrated in committing the crime of arson in the first degree.” It is claimed that this language must be read in connection with the prior subdivision, and that it qualifies it, and shows that the felony there referred to means only one upon or affecting the person killed, or some other person, and that the only other felony intended is arson in the first degree. Why subdivision 4 was added cannot certainly be perceived. Its grammatical structure is such as to lead us tó suppose that it was added by some one after the prior portions of the section had been drafted and completed by another. The draftsman of subdivision 4 clearly did not have a clear comprehension of the force and effect of the prior subdivision. It may have been intended to make the crime murder in the first degree in case a human being was burned to death in consequence of the crime of arson in the first degree. Under the construction contended for the killing of a human being without deliberate and premeditated design to effect death while in the commission of any felony not upon or affecting the person of some human being, except the crime of arson in the first degree, would not be murder in any degree, and such has never been the law in this state, and it was not the common law. In People v. Johnson (110 N. Y. 134), the killing took place while the defendant was attempting to escape from jail under such circumstances as to make his attempt a felony, and the conviction was affirmed. The point, however, which we have been considering was not taken in that case, and yet, if the point is well taken, the defendant there ought not to have been convicted. "We are satisfied that it is not well taken.

The defendant was a witness upon his own behalf, and during his cross-examination the district attorney said in the presence and hearing of the jury : “ I convicted the defendant before and I will do it again.” The defendant’s counsel immediately arose and addressing the court said: <l that reference to the former conviction is a violation of law and I ask it become a matter of record in this court.” This the court then declined, but it was subsequently made part of the record. In his address to the jury the district attorney used the following language:

“ Ask Butch Miller, the man who is jointly indicted with the defendant of the murder of Mr. Weeks, where he was on the night of the loth of March, 1887, and see if he won’t tell you he was on DeKalb avenue and opposite the Weeks house. Ask Butch Miller if he was not in the saloon where Dr. Atwood said he saw them both. Ask Butch Miller if he did not take the car of which Dickerson was the conductor, and rode to the ferry after twelve o’clock on the night in question. Ask Miller if he did not cross the ferry at the time And place as testified to by Mr. Chamberlain. The gentleman on the other side used him as a witness and profited by the experience.”

Miller was not a witness upon this trial, but seems to have been a witness for the defendant upon the former trial. For _ the use of the language quoted, and upon other grounds the defendant before judgment moved for a new trial, which was denied. The language of the district attorney first quoted was improper; and it may have been a technical violation of section 464 of the Code of Criminal Procedure, which provides that upon the new trial, after a reversal of a former conviction, the former verdict cannot be used or referred to either in evidence or on argument.” But we do not know .under what precise circumstances the language was used, nor what prompted it. So the words used by the district attorney in his summing up should not have been spoken. But the Attention of the court was not called to them, and no objection was made to them at the time. The whole address of the district attorney is not given, and thus we have not before us the context and are unable to see how, if at all, the words were qualified.

The judge very emphatically charged the jury that they must base their verdict exclusively upon the law and the evidence, and if the charge was not sufficiently explicit in this respect, it would undoubtedly have been made so if he had been properly requested. If the intemperate remarks of the prosecuting attorney in criminal cases, made in the heat and excitement of the trial, and sometimes under the provocation of language used by counsel for tlie defendant, may always be the foundation for a new trial, the administration of criminal justice will become very uncertain. The district attorney, representing the majesty of the People, and having no responsibility, except fairly to discharge his duty, should put himself under proper restraint, and should not in his remarks, in the hearing of the jury, go- beyond the evidence or the bounds of a reasonable moderation. The presiding judge can, however, control intemperate language, or so guide the minds of the jury that it may not have injurious, effect. If, however, this court can see that the defendant has been prejudiced by such language, it has power, under sections 527 and 528 of the Code of Criminal Procedure, to order a new trial. But before a new trial should be ordered upon'such a ground .the court should be satisfied that justice requires it. Here the trial judge, who heard all that was said and done upon the trial, refused to grant a new trial, and we are satisfied that justice does not require a new trial, and the defendant has no absolute right to a new trial. Two juries, upon substantially the same evidence, have passed upon his case with the same result. There can be no reasonable doubt of his guilt, and the judgment should be affirmed.

All concur.

Judgment affirmed.  