
    The People, Resp’ts, v. Frank Zounek, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 18, 1892.)
    
    
      1. Criminal law—Appeal—Conflicting evidence.
    Although the appellate court may order a new trial if satisfied that the verdict was against the weight of evidence, or against the law, or that justice requires a new trial, whether any exceptions were taken-or not; yet the jury is the ultimate tribunal for the determination of questions of fact, and their determination upon conflicting evidence will not be disturbed.
    2. Assault—Evidence.
    On the trial of an indictment for assault, evidence of the complainant as to whether he became unconscious, and how long he remained so, and evidence as to the fact of his being taken away in an ambulance, is admissible as part of the res gestee.
    
    Appeal from a judgment of conviction of assault in the second degree, rendered by the court of general sessions of the peace for the city and county of New York on the 24th day of March, 1892.
    
      Henri Pressprich, for app’lt; De Lancey Nicoll and Henry B. B. Stapler, for resp’ts.
   O'Brien, J.

The indictment consisted of three counts, the first charging the prisoner with assault in the first degree for having ■assaulted the plaintiff “ with a deadly weapon, and with intent to kill.” The other two counts charged assault in the second degree. Upon the trial the learned judge directed the jury that there was not sufficient evidence to warrant a conviction for assault in the first degree, and sent the case to the jury upon those counts in the indictment which charged assault in the second degree. Those counts, in effect, charged defendant with an assault upon the complainant with a steel square, and the circumstances surrounding the making of the assault may be briefly referred jfco, because too great extent their statement disposes of most, if not .all, the contentions urged by appellant. The complainant and prisoner are marble cutters, and were working in the same shop at opposite sides of the same millstone. On the day of the assault, the complainant walked around the stone to where the defendant was working, and his request for a match was met with a refusal and a push. This resulted in a fight between the parties, and, according to the testimony of the witnesses, when the defendant had thrown the complainant to the ground, he took from the wall where it was hanging a steel or iron square, the long leg of which was about two feet long, and the short leg about TJ feet, and struck the complainant over the head as the complainant was lying on his back. The force of the blow rendered the complainant unconscious, and he lay on the floor until taken by the ambulance to the hospital. The severity of the blow is shown by the fact that it cut his scalp open, and covered the floor with blood.

It is stated that at the time of the assault the complainant had no weapon in his hand. Against the testimony of three eyewitnesses, who were fellow workmen in the same shop, the defendant testified that the complainant attacked him, and knocked him down; that he stood up again, and the complainant again attacked him, and that he then struck the complainant with the-square, in self-defense. This testimony was impartially submitted by the learned trial judge to the jury; and while there may be some conflict of fact as to details between the evidence of the-respective parties, we think the preponderance is in favor of the version given by the complainant; but whether this be so or not, the verdict of the jury upon these questions of fact is conclusive. It is true, as urged by the appellant, that this court may order a new trial if satisfied that the verdict against the prisoner was against the weight of evidence or against the law, or that justice requires a new trial, whether any exceptions shall have been taken or not in the .court below. Code Grim. Pro., § 527. The distinction, however, between the province of the court and that of the jury in dealing with evidence is clearly pointed out in the ' following cases: People v. Cignarale, 110 N. Y., 26; 16 St. Rep., 155 ; People v. Kelly, 113 N. Y., 647; 22 St. Rep., 969; People v. Slone, 117 N. Y.. 483; 27 St. Rep., 823; People v. Trezza, 125 N. Y., 740; 36 St. Rep., 149. In the case first above referred to, Judge Andrews says: “It is a cardinal principle in our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. It is no more the province of an appellate court than of the court of original instance to determine controverted questions of fact arising upon conflicting evidence. Neither can lawfully usurp the appropriate function of the jury, and neither can substitute its own judgment for that of the jury, where the facts are reasonably capable of diverse or opposing inferences.” Having regard, therefore, to the-power of this court to interfere with the verdict of a jury, and the limitations placed thereon by the decision from which we have quoted, we do not think that this is a case where we would be justified in interfering with a verdict which, upon the record,, appears to be amply supported by evidence.

The claims that there is wanting evidence of intent, that the instrument was an iron, instead of a steel, square, and that it was not a weapon or instrument lilvelyr to produce grievous bodily harm, all these, we regard as without merit. The court was, therefore, right in its ruling disregarding the motion made by the prisoner’s counsel that the jury be advised to acquit, and in overruling the motion made to acquit the prisoner on the ground of

the variance between the facts proven and the facts alleged in the indictment.

The only other matter pressed upon our consideration relates to certain rulings upon admission of evidence, which may be briefly noticed. The complainant was asked how long he had been working in this marble yard, to which he answered, “About two years.” This testimony was introductory, and in no way harmed the prisoner. He was also allowed to answer the questions asked as to whether he became unconscious, and how long after the blow he became sensible or conscious. These questions, we think, were properly allowed, being competent to show the extent of the injury received by the complainant, and, therefore, part of the res gestae. Nor, for the reason already given, do we think it was error to allow the witness Soukup to state, in answer to the question objected to, that the complainant was taken away in an ambulance. Upon an examination of the entire record, we do not find any error which would justify us in interfering with this verdict. The trial judge’s charge was impartial and clear, to which no exception was taken; in addition to which the defendant had the benefit of all his requests to charge, which were granted. We are, therefore, of opinion, on the whole case, that the judgment of conviction should be affirmed.

Van Brunt, P. J.

The verdict of the jury was clearly right,' and this court, even though it has the power, should not interfere therewith. The judgment should be affirmed..

Lawrence, J., concurs.  