
    The People of the State of New York, Respondent, v. Edward Hovey, Appellant.
    In the absence of exceptions on a criminal trial this courtdhas no power to review the case upon the facts.
    The provision of the Code of Criminal Procedure (§ 527), as amended in 1882 (Chap. 360, Laws of 1882), providing that “ the appellate court may order a new trial if it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice required a new trial whether any exceptions shall have been taken or not,” applies only to appeals to the Supreme Court.
    An exception to a charge taken after a criminal trial has terminated does not present any question for the consideration of an appellate court.
    Where, therefore, after a criminal trial, and when the prisoner was before the court for sentence, his counsel moved for a new trial for an alleged error in the charge, and upon denial of the motion took an exception, held, that no question was thereby presented here for review.
    
      It seems that where, upon such a trial, upon objection of the prisoner, his wife, who was an eye-witness to the transaction in question, is excluded as a witness, the jury has a right to infer that her evidence would not have been favorable to him, and a submission of that question to them is not error.
    (Argued April 30, 1883;
    decided June 5, 1883.)
    
      Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made March 22,1883, which affirmed a judgment of the Court of General Sessions in and for the city and county of Hew York, entered upon a verdict convicting defendant of the crime of murder in the first degree. (Reported below, 29 Hun, 382.)
    The facts material to the questions discussed are stated in the opinion.
    
      William F. Kintzvng for appellant.
    The court erred in charging that the failure of the prisoner to call his wife as a witness was a circumstance for the jury to consider. (Wilkie v. People, 53 N. Y. 525; 1 Hale’s P. C. 301; 1 Greenleaf on Evidence [13th ed.], §§ 334-343 and note; Houghton v. People, 24 Hun, 501; 22 Alb. L. J. 81; People v. Briggs, 60 How. Pr. 11; 1 Starkie on Ev., § 24; 2 id. [6th Am. ed.] 685; 1 Phillips on Ev. 172; 1 id. [Cowan & Hill’s Note] 459-460; 3 Blackstone’s Com. 371; People v. Gordon, 33 N. Y. 501; People v. Dyle, 21 id. 578 ; People v. Mc Whorter, 4 Barb. 438; People v. Bodine, 1 Denio, 281; People v. Armsby, 53 N. Y. 475; People v. Kennedy, 39 id. 254; People v. Tweed, 5 Hun, 388; Brooks v. Steen, 6 id. 517; Bleeker v. Johnson, 69 N. Y. 313; Laws of 1869, chap. 678; Ruloff v. People, 45 N. Y. 213.) The court erred in permitting the prosecuting officer, upon the cross-examination of the defendant, to ask him how often he had been in prison and for what. (Laws of 1869, chap. 678; Brandon v. People, 42 N. Y. 265; Connors v. People, 50 id. 240; People v. Casey, 72 id. 392; Perry v. People, 86 id. 353; McGloin v. People, 91 id. 291; Newcomb v. Griswold, 24 id. 298; 1 Greenleaf on Ev., § 457; King v. Inhabitants of Castell Careinion, 8 East, 77; People v. Herrick, 13 Johns. 82; Hilts v. Calvin, 14 id. 182 ; Jackson v. Osborn, 2 Wend. 555 ; 1 Greenleaf on Ev., §§ 457,460,461,463; 1 Taylor on Ev. 292; 1 Phillips on Ev. 291 [Cowan & Hill’s Note], 530, p. 766; Worrell v. Parmelee, 1 N. Y. 519; People v. Wiley, 3 Hill, 194-214; Comm. v. Kinnison, 4 Mass. 646 ; State v. Zeller, 2 Halstead, 220 ; West v. State, 2 Zab. 212; 
      Davis v. State, 17 Ala. 415 ; Com. v. Thompson, Thatcher’s Crim. Cas. 28; U. S. v. Gilbert, 2 Sumner, 19; Queen's Case, 2B. &B. 293 ; Lee v. Chadry, 3 Keyes, 225; Crapo v. People, 15 Hun, 272; People v. Crapo, 76 N. Y. 785; 2 Phillip on Ev. 943 [5th Am. ed.]; People v. Gay, 7 N. Y. 378; People v. Genung, 11 Wend. 19 ; Parkhurst v. Louton, 2 Swanst. 216 ; Jackson v. Osborn, 2 Wend. 555 ; People v. Brown, 72 N. Y. 571; 8 Hun, 562.) A verdict of guilty of murder in the first degree upon the evidence was erroneous. (Laws of 1873, chap. 644, p. 1014; Laws of 1862, chap. 197, 'p. 369; Fitzgerald v. People, 37 N. Y. 413; People v. Clark, 7 id. 385 ; Kennedy v. People, 37 id. 245; Sullivan v. People, 1 Park. Cr. 347; People v. Johnson, id. 291; Wilson v. People, 4 Park. Cr. 305; Lowenburg v. People, 5 id. 444; Walters v. People, 6 id. 15 ; O'Brien v. People, 48 Barb. 274; Lannergan v. People, 6 Park. Cr. 209 ; People v. Austin, 1 Parker; People v. Eroch, 13 Wend. 159; People v. White, 24 id. 524.) A new trial will be granted where error appears, except where by no possibility the error could have produced injury. (Stokes v. People, 53 N. Y. 165; Coleman v. People, 58 id. 561; People v. Wiley, 3 Hill, 194; Worrall v. Parmelee, 1 N. Y. 519 ; Vandervoorst v. Gould, 36 id. 639.)
    
      John Vmcent, assistant district attorney, for respondent.
    The proof and surrounding circumstances were sufficient to txphold the finding of the jury as to the premeditation and deliberation. (Leighton v. People, 10 Abb. N. C. 261; Sindram v. People, 88 N. Y. 196 ; People v. Majone, 91 id. 211.) The defendant having put himself upon the stand, he placed himself in the same position as any other witness, subject to the same rules. (People v. Crapo, 76 N. Y. 288; Brandon v. People, 42 id. 265 ; Connors v. People, 50 id. 240; Code of Civ. Pro., § 832.) The wife was competent as a witness if the prisoner chose to call her. (People v. Houghton, 28 Hun, 501; Gordon v. People, 33 N. Y. 516 ; Laws of 1876, chap. 182, §2.)
   Ruger, Ch. J.

The defendant was convicted in the Court of General Sessions in the county of Hew York, of murder in the first degree, for killing one Fanny Yermilyea, on the 26th day of April, 1882. It is not denied that the deceased met her death at the hands of the defendant, but it was attempted to be shown on his behalf that the killing was accidental and unpremeditated.

Ho exceptions were taken upon the trial by the defendant either to the rulings of the court in the admission or exclusion of evidence, or to the various propositions contained in the charge to the jury.

It is claimed by the appellant that, by virtue of section 527 of the Code of Criminal Procedure, this court has the power to review the case upon the facts, and "if, upon such review, it finds that the verdict was either against the weight of evidence or against law, or that justice requires á new trial, such trial should be directed although no exceptions were taken in the court below.

We are of the opinion that this section does not apply to appeals to this court.

It is contained in chapter 1 of title 11 of the Code, which embraces seventeen sections, some of which treat exclusively of appeals to the Supreme Court, and others of appeals to this court,while still others apply indiscriminately to appeals to both.

Section 527 is entitled “ Stay of proceedings on appeal to Supreme Court from judgment of conviction, new trial,* when granted,” and contains not only the provision in question, but also others made applicable to the Supreme Court alone.

Section 528, immediately following, is entitled “ Stay upon appeal to Court of Appeals from judgment of Supreme Court affirming judgment of conviction.” It refers exclusively to ■ appeals to this court and contains no provision for a review by us of the case upon the evidence.

Section 527 is nowhere made expressly applicable to this court and the provision for a review upon the facts being confined to that section, and omitted from the section expressly treating of appeals to this court, forbid the inference that it was intended to be applicable to the Court of Appeals. (In the Matter of Ross, 87 N. Y. 518.) This construction also accords with the general theory of the law as to the powers and duties of the various courts, and assigns to each the determination of those questions for the consideration of which it was especially) organized and adapted. The review of questions of fact arising upon conflicting evidence is beyond the general powers of this court, and the consideration of such questions can only be entertained either in civil or criminal cases by force of express provision of law requiring it. (In the Matter of Ross, supra.)

The general object and design of the Code of Criminal Procedure was to collect the various statutes relating to the subject and to furnish a uniform, harmonious and comprehensive system of criminal practice, to apply to and govern all criminal proceedings thereafter instituted in any of the courts of the State. (§ 962, Code of Criminal Procedure.)

"We should have been more reluctant in arriving at the conclusion that we had no power to review the facts in a criminal case if a perusal of the evidence given upon this trial had left any doubt in our minds as to the justice of the result attained in the courts below.

That evidence tended to prove a homicide committed under circumstances showing a wanton disregard of the sanctity of human life and the obligations of care and protection, which, as master" of a household, the defendant owed to those belonging to his family circle.

The evidence tended to show that he was a person of idle and dissolute habits, and regardless of the feelings or interests of others. On the day of the homicide he visited the rooms occupied by himself and family at about noon and requested his wife to wash his feet. The wife, who was then in attendance upon her child lying dangerously sick in the room, neglected to comply with this request, and the deceased, who was present, remarked to the defendant that he ought to have more thought for his dying baby. The defendant replied to this remark with some profanity and with apparent anger. He soon thereafter left the house, and having pledged his coat to purchase a pistol, loaded it and returned to the house where the deceased was employed in her work. Soon after entering the room where the deceased and his wife weré sitting he fatally shot the deceased with the pistol he had just purchased and loaded, and then tried to conceal himself under the bed.

The conduct of the defendant immediately after the shooting was marked with great levity and indifference and his conversation immediately thereafter indicated that the act of shooting was intentional and premeditated. We cannot doubt that the jury arrived at a correct result upon the evidence and we feel no disposition to interfere with their verdict.

We have not omitted to observe that a week after the trial, when the defendant was brought before the court for sentence, his counsel moved for a new trial upon the evidence, and for an alleged error in the charge to the jury, and upon the refusal of the court to grant a new trial took an exception to such refusal.

An exception to a charge taken after the trial had terminated and where, if erroneous, the jury could not have been instructed to disregard the erroneous instructions, does not present any question of law for the consideration of an appellate court. (Matthews v. Meyberg, 63 N. Y. 656.) Even if this exception had been taken at the proper time it would have been unavailing for the reason that we think the charge was unexceptionable.

It was in reference to the testimony of the prisoner’s wife, who, when offered as a witness on the part of the prosecution, was excluded, on the objection of the prisoner’s counsel. The learned judge, in charging the jury, said:

“ There is no eye-witness who has testified to the occurrence, except the defendant. The people claim, however, and the uncontradicted evidence established that there was another eyewitness to this occurrence, namely, the wife of the defendant. Yon remember when the wife was offered as a witness on behalf of the people, the court would not allow her to be examined as a witness against her husband, for, in my judgment, the law does not permit it, but while that is so, the law does allow the wife to be a witness in her husband's behalf, and the people claim that inasmuch as it appeared in evidence that she was an eye-witness to the occurrence, accessible to the defendant, and the defendant allowed by the law to call her as his witness, and having neglected to do so, that that is a circumstance which the jury have a right to consider on coming to a conclusion. And the' people claim, moreover, that the prisoner’s omission to call her as a witness under the above circumstances should be taken as a matter of evidence against him, and they claim that the fair presumption is that if she was called her testimony would not be favorable to the defendant.”

A jury would have the right to infer that the evidence of an eye-witness to a transaction would not be favorable to a party who voluntarily excluded such witness from testifying in the case. (Gordon v. People, 33 N. Y. 508.)

The judgment should be affirmed.

All concur.

Judgment affirmed.  