
    The People of the State of New York, Respondent, v. Michael E. McGloin, Appellant.
    Upon the trial of an indictment for murder, a statement or confession made and signed by the prisoner was offered in evidence on the part of the prosecution. It appeared that when the prisoner was arrested the officer making the arrest, an inspector of police in the city of New Fork, informed him of the crime for which he was arrested, and that he (the officer) was an inspector of police, and had been watching him (the prisoner), since the shooting and saw him, in company with a man named Healey try to steal a barrel of whisky the night before, also told him about his pledging a pistol with which the murder was supposed to have been committed; the prisoner thereupon said he would make a statement, a coroner was sent for, who came to police head-quarters where the prisoner was in custody, and the confession in question was then made, the coroner not acting in an official capacity, but simply as a clerk to take down and prove the confession. Meld, that the evidence did not disclose any threats, and did not authorize an inference that the confession was made under the influence of fear; that assuming the paper was sworn to by the accused it was in no respect a compulsory statement, and it was properly received in evidence under the Code of Criminal Procedure (§ 395).
    The provisions of said Code regulating the mode of taking and authenticating the statements of prisoners accused of a crime (§§ 188-300) refer only to the judicial examinations therein provided for, regularly instituted before a magistrate authorized to conduct such an examination (§ 147); they do not include a statement made in the manner of the one in question.
    As to whether the provision of the said Code (§ 537, as amended in 1883, chap. 360, Laws of 1883), providing that “ the appellate court may order a new trial if it be satisfied” that justice requires it, although no exceptions were taken on trial, applies to this court, qumre.
    
    The provision of the Revised Statutes (3 R. S. 701, § 33), rendering a person “ sentenced upon a conviction for felony ” incompetent to testify as a witness was repealed by the provision of the Code of Civil Procedure (§ 833), declaring that a person “ convicted of crime or misdemeanor is notwithstanding a competent witness in a civil or criminal action,” etc., and a person convicted and sentenced is competent as well as one con victed only.
    It appeared that the deceased prior to his death lived with his family in rooms over a bar-room and restaurant kept by him; that being disturbed in the night time by a noise in the room below, he got up and started to go down stairs to ascertain its cause, and while upon the stairs was shot by some person standing in the door between the hall and bar-room at the foot of the stairs who was engaged in the commission of a burglary; that in the evening prior to the murder the prisoner redeemed a pistol which was in pawn, and took it away, which he again pawned the morning after the murder. The pistol was found through the admission contained in the confession, and the prisoner acknowledged that- it was the pistol with which the deceased was shot. He also admitted to a witness that the morning after the murder he was on the street where the crime was committed the night before, and said “ a man ain’t a tough until he knocks his man out.” Held, that there was sufficient evidence aside from the confession to meet the requirements of said provision authorizing proof of a confession, i. e., that to warrant a conviction “additional proof that the crime charged has been committed ” shall be given.
    (Argued January 17, 1883;
    decided January 30, 1883.)
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 27, 1882, which affirmed a judgment of the Court of General Sessions in and for the city and county of New York, entered upon a verdict convicting defendant of the crime of murder in the first degree. (Reported below, 28 Hun, 150.)
    The material facts are stated in the opinion.
    
      William F. Howe for appellant.
    The admission in evidence of the sworn statement of the prisoner, it not being a voluntary one, and he being under duress and in the power of an official who had done all that was necessary to arouse his fears, was error. (1 Greenl. on Ev., § 220; People v. McMahon, 15 N. Y. 384, 385, 386, 395 ; Comm. v. Knapp, 9 Pick. 496; Jeffards v. People, 5 Park. 522; Price v. State, 18 Ohio, 418; U. S. v. Mott, 1 McLean, 501; People v. McMahon, 15 N. Y. 386; 1 Greenl. on Ev. [13th ed.], § 219, p. 256 ; 1 Phil, on Ev. 401; 2 East’s P. C. 659; People v. Bates, 11 Cox’s Crim. Cases, 686; People v. McMahon, 15 N. Y. 385; People v. Phillips, 42 id. 200; Roscoe’s Crim. Ev. 39; Jeffards v. People, 15 Park. Cr. 547; Comm. v. Cullen, 111 Mass. 435; Comm. v. Morey, 1 Gray, 461; People v. Wentz, 37 N. Y. 303; Cox v. People, 19 Hun, 430; 80 N. Y. 500; 1 Starkie’s Ev. [ed. 1824] 49; United States v. Chapman, 4 Am. Law Jour. 440.) The rule respecting .the admission of extra-judicial confessions is not at all changed by section 395 of the Code of Criminal Procedure so far as it relates to the objection that the confession was obtained by threats or fear. (1 Gfreenleaf on Evidence, §§ 219, 220; People v. Wentz, 37 N. Y. 308; Cox v. People, 80 id. 500; S. C., 19 Hun, 430; Balbo v. People, 80 N. Y. 484.) When a confession is "once improperly obtained, the influence is presumed to continue to another confession of the same or like facts. (U. S. v. Chapman, 4 Am. Law Jour. 440; Cox v. People, 19 Hun, 437.) The deposition or confession should not have been received, because the prisoner was sworn. (Code of Crim. Pro., § 198 ; 1 Greenl. on Ev., § 225; Bull. N. P. 242; Hawk. P. C. B., chap. 46, § 3 ; People v. Hendrickson, 1 Park. Cr. 396; Hendrickson's Case, 1 Park. 414; 10 N. Y. 13, 32-45; People v. McMahon, 15 id. 384, 391; Teachout v. People, 41 id. 7; Hunter v. Le Conte, 6 Car. 728 ; People. v. Rensselaer Com. Pleas, 6 Wend. 543 ; Merritt v. Gumaer, 2 Cow. 552.) In taking the prisoner’s statement the statute was not complied with. (Code of Crim. Pro., §§ 196, 198, 199, 200; People v. McMahon, 15 N. Y. 397.) The investigation before the coroner is to ascertain, in addition to other things, “ whether a crime has been committed,” and further, who is guilty thereof. (Code of Crim. Pro., §§ 773, 777, 780.) A confession of a defendant is not sufficient to warrant his conviction without additional proof that the crime charged has been committed. (Code of Crim. Pro., § 395.) A person sentenced upon conviction for a felony, is incompetent as a witness. (Code of Civ. Pro., § 832 ; 3 R. S. [6th ed. Banks] 994, § 43.)
    
      John Vincent for respondent.
    The jury were justified, under all the circumstances surrounding the case, in finding premeditation and deliberation. (1 Greenleaf [7th ed.], § 18; Comm. v. York, 9 Metc. 93 ; Comm. v. Webster, 5 Cush.; Van-Pelt v. McGraw, 4 Comst. 110, 114; Burrill on Circumstantial Evidence, 49; Leighton v. People, 10 Abb. N. C. 261, 269; Sindram v. People, 88 N. Y. 196.) The voluntary confession of the defendant was correctly admitted as evidence in the case by express authority of law, unless it was made under the inflnence of fear produced by threats. (Code of Criminal Procedure, § 395 ; Cox v. People, 80 N. Y. 515; Willett v. People, 27 Hun, 469.) To establish the incompetence of the witness Banfield, it was, therefore, essential that the record of a conviction should be produced, and the facts developed by his cross-examination could only be used for the purpose of affecting the weight of his testimony before the jury. (Code of Civil Procedure, § 832 ; Perry v. People, 86 N. Y. 353.) Where the court has already charged the substance of a request to charge, it is proper to refuse it. (O'Connell v. People, 87 N. Y. 381; Walker v. People, 88 id. 89.)
   ' Huger, Ch. J.

We should be quite content to rest our decision of this case upon the opinion.delivered at General Term, were it not a matter affecting the existence of a human life, and, therefore, requiring the utmost care on the part of those having charge of the administration of the law, to see that no injustice be done to the accused. These considerations have seemed to require that we should express our views fully on the material questions presented by this record, and state, the reasons for the conclusions arrived at. It appears by the record that the defendant, Michael E. McGloin, was indicted for murder in the first degree, in having caused the death of one Louis Hanier on the morning of the 30th day of December, 1881. The indictment contained two counts, the first charging that the murder was committed while the said Mc-Gloin was engaged, with others, in the commission of the crime of burglary and felony; and the second, that the said crime of murder was committed with a deliberate and premeditated design to effect the death of said Louis Hanier.' Upon the trial of this indictment, at a Court of General Sessions in the city of New York, a statement, proved to have been made and signed by the defendant, was offered in evidence, on behalf of the .people, against him. It was objected by the counsel for the defendant that this statement was inadmissible, for substantially the following reasons:

First. That it was made by the defendant under the influence of fear, produced by threats made to him by the officer in whose custody he then was upon a charge of committing the crime in question.
Second. Because it was taken before a magistrate after defendant was accused of, and under arrest for, the perpetration of a crime; but was not taken and authenticated in accordance with the _ requirements of sections 198 and 199 of the Code of Criminal Procedure.
Thvrd. That it was not voluntarily made, being a sworn deposition. The first objection proceeded upon the assumption that the officer effecting the arrest had threatened the prisoner, and that such threats had produced an emotion of fear in the mind, probably affecting the character of his confession. If this assumption is well founded, it will be fatal to the admissibility of the evidence, and also to the conviction, in part founded thereon. The facts upon which this ground of objection rests are as follows: Upon making the arrest, the officer informed McGloin that he “ was charged with shooting Louis Hanier;” that he (the officer) was inspector of police, and had been watching him ” (the prisoner) since the shooting, and saw him in company with a man named Healey, and saw him try to steal a barrel of whisky the night before I arrested him. I also told him about the pledging, of the pistol ” (referring to the pawning by McGloin, the day after the murder, of a pistol with which the crime was supposed to have been perpetrated). McGloin said he would make a statement. I said to him, I would send for Coroner Herman to take it.” The coroner was then sent for and came to police head-quarters, where the defendant was in custody, and the confession in question was made, the coroner not acting in any official capacity, but as a mere clerk to take down and prove the confession. This was substantially all that occurred between the officer and the defendant previous to the making of the statement. We fail to see, in this conversation, the existence of any threats, or any proof from which it could be inferred that the defendant made the statement under the influence of fear.

It was held by this court in the case of The People v. Wentz (37 N. Y. 303), where the defendant was in custody upon a charge of arson, that a confession drawn out by questions, and preceded by the statement made by the officer to the prisoner, “ that he was in a bad fix, and had got caught at last,” Was “ wholly voluntary, and made uninfluenced by any threat, menace, promise, or other influence.”

The case of Cox v. The People (80 N. Y. 500), although a capital case, was, in respect to the inducements held out to the prisoner, similar to the Wentz Case. A confession there made by the defendant was held admissible. The court further held that it was “ not sufficient to exclude a confession by a prisoner that he was under arrest at the time, or that it was made to the officer in whose custody he was, or in answers to questions put by Mm.” Ho material circumstance appears in the case at bar, which did not appear in the cases referred to, except that here the officer stated to the prisoner that he was aware of an attempt on the part of the prisoner, the night before his arrest, to steal a barrel of whisky. It would be unreasonable to say that the defendant was moved to make this confession by fear of his exposure and punishment -for the- comparatively trivial crime of stealing, when he stood uninfluenced by the fact that he was in custody charged with the commission of a crime for which his life then stood in jeopardy. The argument in short is that the defendant might be improperly influenced to confess the commission of the crime of murder, through fear that he might be exposed and prosecuted for' the crime of stealing whisky. There is little, if any, force in it.

The question upon which the second ground of objection was based, prior to the adoption of the Code of Criminal Procedure, was the subject of some controversy and difference in the courts. (Hendrickson v. People, 10 N. Y. 28; People v. McMahon, 15 id. 385 ; People v. Wentz, supra ; Teachout v. People, 41 N. Y. 7.) The difficulty in brief seemed to be in determining whéther the reason for the objection rested upon the • theory that the evidence was given in obedience to the requirements of a subpoena, and was, therefore, compulsory atid objectionable, as requiring a prisoner to give evidence which might criminate himself, or whether it was based upon the presumption that a prisoner giving evidence in relation to a crime, with the commission of which he is charged or suspected, gives it under such influences as produce an apprehension of danger and a mental disturbance, rendering it unjust to hold him responsible for what he says while subjected to such influences. It was said that such evidence is not voluntary, because the mind being confused and agitated by the apprehension of danger, cannot reason with coolness, and will naturally resort to falsehood to escape the consequences of the impending danger. (Hendrickson v. People, supra ; People v. McMahon, supra.)

The effect of these differences was to cause the line which distinguished admissible from objectionable confessions to fluctuate according to the theory which was followed, and deprived the law of that certainty, and prisoners accused of crime of that uniformity of protection, which is so essential to justice. Without discussing or referring to the authorities on this subject at length, it may be said that the following propositions were, prior to the adoption of the Criminal Code, well settled by law in this State: First, That all confessions material to the issue, voluntarily made by a party, whether oral or written, and however authenticated, were admissible as evidence against him on a trial fora criminal offense. (People v. Wentz, supra.)

Second. It was no objection to the admissibility of such confessions, that they had been taken under oath from a person attending before a coroner, in obedience to a subpoena, upon an inquiry conducted pursuant to law, into the causes of a homicide. (Hendrickson v. People, supra ; Teachout v. People, supra.)

Third. That the confession or declaration sought to be given in evidence was in writing and purported to be sworn to was no objection to its admissibility, unless it also appeared that it was taken before a magistrate upon a judicial investigation against the person accused of the commission of the crime.

Parker, J.,

in Hendrickson v. People (supra) said in relation to the objection that a confession was not taken conformable to the statute, but neither is the statute, nor were the common-law rules, of which it is declaratory, applicable to any examination, except that of a person brought before a magistrate on a charge of crime,. All other examinations are classified as extra-judicial.”

The provisions of the Code of Criminal Procedure regulating the mode of taking and authenticating the statements of prisoners accused of crime, contained in sections 188 to 200 inclusive, refer in terms only to the judicial examinations therein provided for, regularly instituted before one of the magistrates described in section 147, for the examination of criminals. A coroner is not one of these magistrates. There is no direct evidence in the case that the paper offered was sworn to by the defendant. Such fact is sought to be inferred from the fact that in the body of the paper this clause is inserted: The above is a true statement in every respect, to which I swear, and I make the same of my own free will;” and also because it purports to have been taken” before the coroner and is subscribed by him. These facts furnish very uncertain evidence that the defendant was sworn to such statement. The only witness who was called upon- to testify on this subject was officer Byrnes, and he testifies positively that the defendant was not sworn by the coroner. But assuming that this paper was sworn to by HcGrloin, we must, within the authorities in this State, come to the conclusion that it was in no respect a compulsory statement, and was at common law admissible in evidence as against him on his trial.

The Code of Criminal Procedure went into effect in September, 1881, and contained the following provision: “ Section 395. A confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor; but it is not sufficient to warrant his conviction without additional proof that the crime charged has been committed.” The crime in this case was committed after the Code took effect and is, therefore, governed by its provisions. The admissibility of the evidence in controversy, under this statute, there being no proof that the same was made either under the “influence of fear produced by threats,” or upon the stipule tion referred to in the act, is beyond question. It is thus found that neither at common law, nor by the statute, was this evidence open to any of the grounds of objection raised.

One Frederick Banfield was called as a witness by the people on the trial, and gave material evidence against the defendant. Upon cross-examination, he testified that he had been arrested and convicted of the crime of grand larceny, and that he had been sent to the State prison for the period of eighteen months. That he was also convicted of the crime of burglary, and sentenced therefor, in a Court of General Sessions, to the penitentiary for the term of three and one-half years. No objection was taken to this testimony, neither was a motion made to strike it out on the trial. The question as to the competency of Banfield, as far as can be seen from the record, was first raised at the General Term. If the question had been raised upon the trial, non constat but that the people might have shown a pardon, and thus restored the competency of the witness.

It was contended on the argument by the appellant’s counsel, that by virtue of section 527 of the Code of Criminal Procedure, this court had power to order a new trial when the verdict was against the weight of evidence, or against law, or when justice required it to be done' “ whether any exceptions shall have been taken or not in the court below.” It is quite doubtful whether that provision applies to this court, but without considering that question we are clearly of the opinion that the objection now raised to his competency is not tenable even if we were at liberty to review it.

It is claimed that Banfield was rendered incompetent to testify as a witness in the case, by virtue of the provisions of the Revised Statutes (vol. 3 [Banks’ 6th ed.], 994, § 43, tit. 7), the essential portions "of which read as follows: “No person sentenced upon a conviction for felony shall be competent to testify in any cause, matter or proceeding, civil or criminal,, unless he be pardoned by the governor or by the legislature, except in the cases specially provided by law.”

It is claimed that section 832 of the Code of Civil Procedure, which was in force at the time of the commission of this crime,, and which reads as follows: “A person who has been convicted of a crime or misdemeanor, is notwithstanding a competent witness in a civil or criminal action, or special proceeding, but the conviction may be proved for the purpose of affecting the weight of his testimony,.either by the record or by his cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining him is not concluded by his answer to such a question,” does not restore the competency of the witness, because the disqualification imposed by the foregoing section of the Revised Statutes follows only upon a sentence based upon a conviction for a felony,” whereas the subsequent enabling statute,, embodied in section 832 of the Code of Civil Procedure,.relieves only those who have been disqualified by a conviction of a crime or misdemeanor, leaving, as it is claimed, those who have been tried, convicted and sentenced, still subject to the exclusion pronounced by the Revised Statutes. It is hardly conceivable, that this construction can be seriously urged. Both at common law and by statute a witness becomes disqualified, only after sentence rendered upon a conviction for felony. (People v. Whipple, 9 Cow. 707; People v. Herrick, 13 Johns. 82.) When it is considered that a mere conviction, not followed by a sentence, never worked a disability, it will be seen that the construction contended for by the plaintiff in error would deprive section 832 of the Code of Civil Procedure, as well as section 714 of the Penal Code, of any meaning, or effect whatsoever.

One of the most familiar rules for the construction of statutes requires not only that some effect should be given to all acts of the legislature, if capable of such interpretation, but that éffect must be given,, if p ossible, to all of the language employed. (Matter of New York & Brooklyn Bridge,, 72 N. Y. 527.) The language used in section 832 to describe the object intended to be accomplished is that-which has obtained invariable usage, not only in the reports, but with text-writers, and is there used according to the signification given to it by legal writers. It was, therefore, an accurate legal description of such a disqualification to say that it is produced by a conviction of a felony. It is the depravity of nature evidenced by the conviction that creates the disability, and is the only cause of that disability. “ It is the infamy of the crime, and not the nature of the punishment, which destroys competency.” (1 Wharton’s Criminal Law, § 760.)

While the terms “ disqualified by a sentence for crime,” or similar words, are never found in the text-book or reports, the language used in section 832 is invaluably employed to describe the disability referred to. (Jackson v. Osborn, 2 Wend. 555 ; 13 Johns. 82, supra; Hilts v. Colvin, 14 id. 182.)

The disqualification, though entirely based upon the conviction, yet in order to preclude the possibilty that the conviction may have been nullified by a motion in arrest, or other proceeding, is by the Be vised Statutes required to be followed by a sentence in order to become effectual. There is not one disqualification produced by a conviction, and another by a sentence, but both conviction and sentence together produce one and the same disqualification. The removal of the cause of disqualification necessarily restores the competency of the- witness, without reference to the fact as to whether he was sentenced or not. It was evidently the intention of the legislature to remove the disqualification in question, and it is our duty in construing this statute to give effect to that intention.

From the irreconcilable repugnancy which exists between these acts, the inference inevitably follows, that the provisions of the Bevised Statutes- were intended to be repealed by the enactment of the Code of Civil Procedure. We are, therefor, of opinion that no reason exists for granting a new trial upon this ground.

Notwithstanding the admission of the confession of McGloin in evidence against him, it is still required by section 395 of the Code of Criminal Procedure, in order to warrant his conviction, “that additional proof that the crime charged has been committed,” should be given. Without undertaking to state the evidence in detail, it will be sufficient to refer to the •several prominent facts which the evidence, outside of the admissions contained in his confession, either proved or tended to prove. The proof showed that previous to his murder, one Louis Hanier lived in a two story frame dwelling on West Twenty-sixth street in the city of New York; that the lower part was used for a bar-room and restaurant, with a hall adjoining; and the upper part was occupied as a dwelling by said Hanier with his family, and communicated with the lower part of the house by a stair-way running into the hall, and from the hall by a door-way opening into the bar-room; there were two modes of entrance into the house, one from the street by a door-way opening into the barroom, and another by a door opening into the hall. On the morning of the 30th day of December, 1881, about the hour of two o’clock, Louis Hanier, standing on the stair-way leading from the upper to the lower stories of said house, and being at the time about three steps from the top of the stair-way, was fatally shot by a pistol or revolver in the hands of some person standing in the door-way, between the bar-room and the hall, at the foot of the stair-way; that said Hanier died about three minutes after the shooting, in consequence of the wound thereby occasioned. It was in proof that Hanier closed and locked up his saloon about the hour of one o’clock and had retired to rest. That he was awakened by his wife, who heard a noise in the saloon below, and started in his nightshirt to investigate the cause of the noise, when he was shot as described. It was testified by a policeman, that after Hanier had closed up his saloon, and retired, he (the policeman) tried the front doors of the house and found them both securely fastened. It was further shown that there was a back door to the saloon, opening into a back yard, which they were accustomed to fasten at night on closing up the saloon. It was also shown that immediately after the shooting, the front door of the saloon was found open.

About eleven o’clock, p. m., of the night of the homicide, the defendant, Michael E. McGloin, redeemed a pistol which he had in pawn with one Gooley on West Thirteenth street, then supposed to be loaded, and took it away with him; that said McGloin, sometime on the morning of the 30th day of December, 1882, in company with several other persons, left a package containing a revolver with one Charles R. Graves, who keeps a saloon on West Fifty-seventh street in Hew York, and asked him to keep the same for him; that on the morning of the said 30th day of December, McGloin again- obtained said pistol, and at about eleven o’clock, a. m., of that day, pledged it for a small loan with one Bernard Rosenthal, who keeps a pawnbroker shop at Ho. 362 Hinth avenue in Hew York city. This pistol was found through the admissions contained in Mc-Gloin’s confession, and was acknowledged by McGloin to be the pistol with which Louis Hanier was shot.

It was further proved by Frederick Banfield that he saw McGloin about half-past ten o’clock of the morning of said 30th of December, and had the following conversation with him : I asked him,” says Banfield, if on the night before, he was out. He said, yes.’ I told him there was a man killed around Twenty-sixth street. I asked him if he was around Twenty-sixth street the night before. He said, yes,’ Then he said to me, ‘a man aint a tough until he knocks his man out.’” This evidence, we think, not only tended to prove, aside from McGloin’s confession, that a burglary was committed upon the dwelling of Louis Hanier on the morning of the 30th of December, 1881, but also tended to establish the fact that Louis Hanier was unlawfully killed in the course of the commission of such burglary, and that the defendant was a principal in the commission of both such crimes. We are, therefore, of the opinion that there was sufficient corroboration of the confession of the defendant, McGloin, to warrant his conviction of the crime of murder in the first degree. The confession of the defendant also tends to prove not only his active participation in the commission of the burglary, but the fact that he fired the shot which killed Louis Hanier.

If we consider the confession in connection with the other proofs given on the trial, it tends to establish the fact that the crime in question was committed under circumstances of great atrocity, indicating on the part of the perpetrator a wanton and reckless disposition and a depraved and dangerous character; they together unquestionably furnished sufficient evidence to justify a jury in finding the defendant guilty of the murder of Louis Hanier under both counts of the indictment. •

The conclusions at which.we have arrived, as to the competency of the evidence objected to, as well as the legal effect of all the evidence in the case, render it unnecessary to examine at length the several exceptions taken to the charge of the recorder by the counsel for the plaintiff in error. Three exceptions are brought to our attention by the brief of the counsel. The first is an exception to the refusal of the recorder to charge as follows: “ That in order to convict under the first count of the indictment, the jury must be satisfied beyond reasonable doubt, first, a burglary or larceny was committed by the prisoner; second, that while so engaged in the commission of either or both of said offenses, the prisoner killed the deceased. Before the jury can consider the proposition as to the killing whilst in the perpetration of a felony, they must find that there was evidence exclusive of the confession of the prisoner, that the felony had been committed; that the prisoner’s alleged confession is not sufficient to warrant the jury in finding affirmatively that the offense of burglary or grand larceny, or both of said offenses, had been committed, without additional proof on the subject.” If there were any erroneous propositions included in this complex request, the refusal to charge as requested was properly made. It will be' seen by the first clause of the request, that the recorder is asked to charge the jury, that they cannot find the defendant guilty of any crime thereunder, unless they also find the existence of the several elements constituting the crime of murder in the first degree. In other words, that no conviction could be had under said count, except for murder in the first degree. In fact it was competent for the jury to convict the prisoner of the crime of manslaughter, or any inferior degree under that count, and without reference to the truth or existence of several of the facts described in the request. The second' clause of such request is based upon the alleged inadmissibility of the confession of McGrloin. As we have seen, that assumption was incorrect, and this part of the request was, therefore, erroneous. The last clause of this request was actually charged by the recorder immediately after the refusal to charge above referred to. The exception to the refusal to charge as requested was, therefore, not well taken.

The exceptions to the refusal of the court to charge the jury as matter of law, upon the evidence, that they could not convict the prisoner of murder in the first degree under the first count of the indictment, and also the exception to the refusal of the court to charge the same with reference to the second count, were neither of them well taken, inasmuch as we have ■ held the evidence to be sufficient to justify the jury in finding the defendant guilty under both counts. Upon the whole case we are satisfied that the verdict was neither against the evidence, or against law, that the trial was conducted in substantial conformity with the rules of law, and that the result was such as the jury might properly reach upon the evidence. We do not think that justice requires a new trial, but on the contrary that it leads us to an affirmance of this conviction.

The judgment should, therefore, be affirmed.

All concur, except Rapallo, J., absent.

Judgment affirmed.  