
    The People, Resp’ts, v. Frank Fish, App’lt.
    
      (Court of Appeals,
    
    
      Filed January 13, 1891.)
    
    1. Criminal law—Homicide—Premeditation.
    Frank Fish, while under the influence oí liquor, upon the repeated re- ' fusai of a companion, with whom he was carousing, one Cullinane, to shake hands wi h him, left him and walked away about thirty feet, and then walking rapidly back, with both hands in his overcoat pockets, as he came opposite Cullinane, drew his right hand from his pocket and stabbed him in the neck with a narrow iron blade, not sharp, but used for opening cigar boxes, saying, "take that,” and then went home and went to bed. From the wound thus inflicted Cullinane very soon died. Reid, that there was evidence sufficient to warrant the jurjr in finding that defendant intentionally killed Cullinane with premeditation and deliberation.
    2. Same—Intoxication no excuse.
    The fact that defendant was intoxicated furnishes him no excuse. If he was sober enough to form an intent and to deliberate and premeditate the crime, his responsibility is the same as if he had been perfectly sober.
    3. Same—Motive.
    It is not incumbent upon the prosecution to prove the motive of a crime in any case.
    4. Same—Evidence.
    The question propounded to a"physician called as a witness in behalf of the People: “ Taking this instrument as it is now, how much force would be necessary to drive it through the tissues you have described and into the vertebrae,” and the answer: “I should think it would take a great deal of force,” were competent.
    ' 6. Same—Photographs.
    A photograph, proved to have been accurately taken, of the place where the homicide was committed, and also a photograph of the dead man’s head and neck, showing the wound, are competent as evidence.
    6. Same—Code Grim. Pro., § 8, sued. 3.
    The preliminary proof excusing the production of a witness against the prisoner and allowing his testimony taken before a magistrate under § 8, subd. 3, of the Code Crim. Pro , is addressed to the trial court, and where it is tacitly assented to by the defendant’s counsel that the proof was sufficient, the objection that such preliminary proof was not sufficient to authorize the reading of the deposition is not available on appeal to this court.
    Appeal from judgment of the Ontario oyer and terminer, convicting defendant of the crime of murder in the first degree.
    
      
      Oliver 0. Armstrong, for app’lt; Maynard N. Clemeni, disk att’y, for resp’ts.
   Earl, J.

The defendant was convicted of murder in the first degree on the 24th day of May, 1890, for killing John Oullinane on the prior 26th day of January, at Canandaigua in this state. There is no substantial dispute about the facts of the case. The defendant, *at the time of the homicide, was about twenty-four years old, five feet five inches in height, weighed about one hundred and forty pounds, and was a painter by occupation. Oullinane was a moulder, over six feet in height, weighed about one hundred and ninety pounds, and was about thirty years old, and they were both married and householders. The 25th of January was Saturday, and about six o’clock in the evening the defendant and his brother, John E. Fish, and Oullinane quit work, and each went to his home. A few moments before ,nine o’clock John E. Fish and Oullinane went to a saloon kept by Ryan, where they were soon joined by James Oullinane, a brother of John. The defendant left his home about eight o’clock, and about nine o’clock he met two young men, who had with them a pint of whiskey, and they invited him to share it with them. They each drank out of the bottle, and then the defendant drank about a teacup full, the balance remaining therein.

Soon thereafter he also went to Ryan’s saloon, and he and his brother and the two Cullinanes remained there talking on various subjects and drinking beer together until nearly a quarter to twelve o’clock. While in Ryan’s saloon the defendant offered to shake hands with John Oullinane on two different occasions, and Oullinane declined to take his hand. About twelve o’clock Oullinane and the defendant and his brother left Ryan's saloon and went to a saloon kept by Charles McCarthy, and there they drank some beer, and the defendant and the deceased danced, and after remaining there about fifteen minutes the three persons left the saloon together and proceeded down the street to a barber shop, and while going down the defendant stated to his brother that he would go and stay with him. They stopped opposite the barber shop and John E. Fish asked his companions to go in while he had his hair cut. Oullinane declined, saying he thought he would go home, and John E. Fish shook hands with him and bade him good night. The defendant then offered to shake hands with Oullinane, and he drew his hand away. Then the defendant asked him if he ever did anything to him. He replied that he had not. The defendant then said to his brother John E. Fish, “ All right, you are a brother of mine ; that settles you and me.” John Fish replied: “All right You go to hell.” The defendant then started up street and Oullinane started to follow him, and went ten or fifteen feet up the walk in the direction the defendant was going, and then turned and came back in front of the barber shop and stopped, and he said in a low tone, evidently inaudible to the defendant, “ The son of a bitch.” The defendant after going about eighty feet came back walking rapidly down the street, with both hands in his overcoat pockets, and as he came opposite the deceased he drew his right hand from his pocket, turned towards the deceased and dealt him a blow on the right side of the neck, saying at the time, “ Take that,” and then ran down the street in the direction of his home. The instrument with which he struck the blow was a narrow iron blade used for opening cigar boxes. It was not sharp, and was not made for the purpose of cutting anything, hut merely for the purpose of prying off the covers of cigar boxes. The blow was dealt upon the neck a little below the jaw, and the instrument penetrated about four inches in depth,passing through the larynx and into the hard bone of the vertebrae more than half of an inch. From the wound thus inflicted Cullinane very soon died. The defendant, after striking the blow, went directly to his home and soon thereafter undressed and went to bed. Within an hour after the fatal blow had been dealt officers, went to his house and arrested him. He was at once taken before a police magistrate and there he appeared, to some extent, to be unconscious that he had committed the homicide. All the witnesses who saw him shortly before and after the homicide testified that he was somewhat intoxicated ; he was able, however, a few minut-es before, to dance in McCarthy’s saloon, and he was sober enough to run away, go home, undress and go to bed immediately after striking the fatal blow. After his arrest his conversation showed that he was aware, at least, that he had committed some wrongful act. It does not appear that the defendant and the deceased were, prior to the evening in question, at all intimate or familiar with each other. There is no evidence showing what their relations were, and it does not appear that there was any animosity between them, and no explanation was given on the trial showing why the deceased refused the proffered hand of the defendant on the three occasions when it was offered.

The learned counsel for the defendant claims that upon this evidence the defendant ought not to have been convicted of murder, hut that he should have been convicted only of manslaughter, and he claims that we should grant a new trial to the defendant under § 528 of the Code of Criminal Procedure, which authorizes this court, when the judgment is of death, to order a new trial, “if it he satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below.” This section has been under consideration in this court several times. People v. Driscoll, 107 N. Y., 417; 12 N. Y. State Rep., 253; People v. Cignarale, 110 N. Y., 23; 16 N. Y. State Rep., 155; People v. Lyons, 110 N. Y., 618; 16 N. Y. State Rep., 660 ; People v. Kelly, 113 N. Y., 647; 22 N. Y. State Rep., 969; People v. Stone, 117 N. Y., 480; 27 N. Y. State Rep., 823.

It does not confer upon the court power, arbitrarily, to grant a new trial whenever it thinks justice may require it, but its jurisdiction in such a case is to be exercised according to settled rules of law. If there is a conflict in the evidence, or different inferences may be drawn therefrom, it is the province of the jury to weigh the evidence and determine the facts, and their determination should not be interfered with unless we can see that such determination was against the clear weight of the evidence, or was influenced in some way by passion, prejudice, mistake, perversion or corruption.

In the case of the People v. Cignarale, supra, Andrews, J., said: “ 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.” The People were bound to show that the defendant-intentionally killed Cullinane with premeditation and deliberation, and we think there was evidence sufficient to warrant the jury in so finding. The defendant was undoubtedly somewhat intoxicated and was probably angered by the refusal of the deceased, a minute or two before the fatal blow was struck, to shake bands with him. It is probably true that if he had been perfectly sober that circumstance would not have provoked him to violence. But the motive which would have had comparatively little influence upon a sober man evidently aroused his animosity, and after he had passed down the street a short distance he returned near to where e the deceased was standing, and with this dangerous instrument in his hand he spoke to his own brother so as not to attract the attention of the deceased, and then suddenly turned and with a swinging blow, and with, great force and violence, plunged this blade into the throat of the deceased, the place where it would be most likely to produce a fatal effect. That he returned for the express purpose of inflicting the blow cannot be doubted. That he deliberated upon his purpose while he was returning and when » he approached the deceased and struck the blow is equally clear. We think the inference may fairly be drawn that he then and there intended to take the life of the deceased.

The fact that the defendant was intoxicated furnishes him no excuse. Section 22 of the Penal Code provides that “No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent, is a necessary element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent, with which he committed the act.”

The only materiality, therefore, of the evidence of the defendant’s intoxication is its bearing upon the questions of deliberation, premeditation and intent. "If he was sober enough to form an intent and to deliberate and premeditate this crime, then his responsibility is the same as if he had been perfectly sober. In weighing the evidence as to premeditation and deliberation the jury were bound to take into account the condition of the defendant, and they were só instructed. But if while somewhat intoxicated he still deliberated upon and premeditated the act which he intentionally committed, the crime is murder in the first degree.

It is claimed that the prosecution proved no motive for the crime. But it is not incumbent upon the prosecution to prove the motive of a crime in any case. It may be impossible to discover a motive hidden in the human breast and yet the crime may be proved beyond a reasonable doubt. Here, while the motive would be deemed extremely inadequate, yet there was some motive which we must assume acted upon the mind of the defendant in inducing him to deal the fatal blow, and that was the refusal of the deceased, thrice repeated, to take his hand when extended to him for a friendly greeting.

It is further said that there was no proof of any intent on the part of the defendant to kill Cullinane. All the facts were proved. The circumstances under which the blow was dealt, what the defendant then said and did, his conduct afterwards, the natui’e and force of the blow and the character of the instrument used, all this evidence was before the jury, and it was for them to determine whether the defendant in dealing this fatal blow intended to kill.

We, therefore, see no reason in the exercise of any discretion conferred upon us under § 528 of the Criminal Code for granting a new trial, and it only remains further for us to consider the questions of law to which our attention has been called by the defendant’s counsel.

Dr. Hollenbeck, a physician and surgeon, called as a witness on behalf of the People, after testifying that he'had examined the wound and made a post mortem examination thereof, was asked this question: “ Taking this instrument as it is now, how much force would be necessary to drive it through the tissues you have described and into the vertebrae?” This was objected to on the part of the defendant, and the witness was permitted to answer as follows: “I should think it would take a great - deal of force;” and substantially a similar question was put to and answered by another physician. We think these questions and answers were competent. The amount of force necessary to drive such a blunt instrument through the tissues, muscles, arteries, windpipe and into the vertebrae is not a matter of common knowledge. But physicians and surgeons who have dissected and cut into the human body are better able to tell the resisting force of those parts than other people, and are, therefore, experts who are competent to give opinions on the subject. But in any event the answers were harmless, because one of the physicians answered that it would take a great deal of force, and the other answered that it would take a very heavy blow; and that it would is very obvious from the bluntness of the instrument and the parts through which it passed.

The district attorney presented in evidence a photograph of the place where the homicide was committed, and also a photograph of the dead man’s head and neck, showing the wound, and it is now claimed that this evidence was incompetent. It was proved that the photographs were accurately taken, and were true representations of the barber shop and the location of the wound, and such evidence is now everywhere held to be ■competent. Ruloff v. The People, 45 N. Y., 213; Cowley v. The People, 83 id., 464; People v. Buddensieck, 103 id., 487; 3 N. Y. State Rep., 664; Archer v. N. Y., N. H. & H., R. R. Co., 106 N. Y., 589 ; 11 N. Y. State Rep., 32.

The defendant was permitted to give evidence of his intoxication, of his appearance, his acts, and all that he said before and .after the commission of the homicide, and his witnesses were permitted to give their opinions as to his condition. Among the questions asked by his counsel was this, put to the police justice before whom the prisoner was brought soon after the homicide: “ On this occasion from what you observed of Fish when you brought him out there, do .you believe he was in the condition in which he comprehended the situation, and what was transpiring there fully?” This question was objected to on behalf of the People, and the objection was sustained. It is now claimed that the witness should have been permitted to answer the question. The witness was not an expert. He was not asked for any fact, but for his opinion or belief. He should have testified to the facts, and then it would have been for the jury to determine whether the prisoner comprehended the situation and what was transpiring there.

The same witness was asked this question: “ State how he appeared?” And he answered: “He appeared a little astonished.” This was objected to on behalf of the People, and •stricken out. The defendant was permitted to obtain from the same witness evidence showing that the defendant was apparently astonished at the charge of murder made against him, and that he appeared to be intoxicated, and the witness was permitted to testify as to all the facts in relation to his ' appearance. But whether the evidence stricken out was competent or not, it was of no importance and had no material bearing, and added nothing to the force of the other evidence upon the same subject. Ho exception was taken to the ruling of the court striking it out,' and we think no harm came to the defendant from striking it out.

Maltman, one of the important witnesses for the People, was sworn upon the preliminary examination before the police justice. The defendant was there with counsel, who cross-examined the witness. The examination of the witness was reduced to writing, read over to him, subscribed by him and properly certified. The witness was subpoenaed to attend the trial, and not appearing, the district attorney against the objection of the defendant’s counsel was permitted to read the deposition in evidence.

He claimed the right to read it under subdivision 3 of § 8 of the Code of Criminal Procedure, which provides that the defendant in a criminal action is entitled, (3), “ To produce witnesses in his behalf, and to be confronted with the witnesses against him in the presence of the court, except that where the charge has been preliminarily examined before a magistrate, and the testimony reduced by him to the form of a deposition in the presence of the defendant, who has, either in person or by counsel, cross-examined, or had an opportunity to cross-examine, the witness, or where the testimony of a witness on the part of the People has. been taken according to sections two hundred and nineteen and two . hundred and twenty, the deposition of the witness may be read upon it being satisfactorily shown to the court that he is dead or insane, or cannot with due diligence be found in the state.”

It is now objected that it was not satisfactorily shown to the court that the witness was dead, or insane, or could not with due diligence be found within the state. The trial of the defendant commenced on the 19th of May, 1890, and resulted in his conviction on the 24th day of the same month. Prior to that, and on the 24th day of April, the district attorney delivered to the under sheriff of the county a subpoena to serve upon Maltman, and on the 25th day of April he served it upon him in the village of Canandaigua, at the place where he was then working. Some days after the service of the subpoena the under sheriff met the witness in the streets of Canandaigua, and told him. that he had been subpoenaed, and that he would expect him to be present in court. He said that the week before court convened he wanted to go to the home of his sister, who lived about two and a half miles from the village, and that on Monday morning, the 19th of May, he would be at court. On the 19th, and also on the 20th, his name was called in court by the crier, and he did not answer. Monday morning the under sheriff made inquiries of his relatives and other people, and not being able to learn anything about him, on Tuesday he drove to the residence of his sister, where he said he was going, but did not find him, and could not learn anything of his whereabouts. Further inquiry was made, but the officer was not able to learn anything about him, or to find him.

Upon this evidence the court held that the district attorney had established prima facie that due diligence had been exercised by the district attorney to find the witness and that he could not be found. No exception was taken to the ruling of the court and no claim was made at the trial that the preliminary proof was not sufficient to authorize the reading of the deposition. It is quite true that the preliminary proof was not very satisfactory, and that the diligence used to find the witness and procure his attendance was not very great, and yet it is difficult to see what more the under-sheriff could have done to procure his attendance. It does not appear that the officer had any reason to suppose that the witness was at any other place than those where he had inquired for him, or that any diligence which he could use would discover him. It is quite a valuable right to a prisoner to be confronted upon his trial with the witnesses against him, so that he may cross-examine them and the jury see them and thus judge' of their credibility, and he should not be deprived of this right without a strict compliance with the statute. But the preliminary proof is addressed to the trial court, and if based upon evidence legitimately tending to establish the facts required by the section of the Code referred to, his decision should not be lightly interfered with. But here it was tacitly assented by the defendant’s counsel that the proof was sufficient, as he made no objection on that ground. If he had then and there made such objection and required further proof, it is possible that the district attorney might and would have furnished it. We are, therefore, of ■opinion that the objection that the preliminary proof was not sufficient to authorize the reading of the deposition, is not now available to the defendant.

It is further objected that the provision of the section of the Code referred to is in violation of article 6 of the amendments of the Federal Constitution, which provides that in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him. There is no such provision in our state constitution, but under the Bill of Rights, 1 R. S., 94, § 14 (part 1, chap. 4, § 14, of the Revised Statutes), it was provided that in all criminal prosecutions the accused has the right to be confronted with all the witnesses against him.

This was, however, a statutory enactment, and the legislature could repeal or alter it. The provision in the Federal constitution, as originally adopted, had reference only to prosecutions in the Federal courts, and had no reference whatever to prosecutions in the state courts. Withers v. Buckley, 20 How., U. S., 84; United States v. Cruikshank, 92 U. S., 542; Walker v. Sauvinet, id., 90; Pearson v. Yewdall, 95 id., 294. But the learned counsel for the defendant claims that the sixth article has been made applicable to prosecutions in the state courts by § 1 of the fourteenth amendment of the Federal constitution, which provides that “all persons horn or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. Ho state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United "States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

We do not think that this section has the effect claimed for it. It was never one of the privileges or immunities of a citizen of the United States to be confronted with the witnesses against him in a state court. That was a privilege secured to him by the Federal constitution, and, as we have seen, was confined strictly to the Federal courts. The section of the Criminal Code referred to does not attempt to interfere with any privilege or immunity which a citizen of the United States ever enjoyed under the Federal con■stitution. All citizens of whatever race or color are secured the right to be confronted with their witnesses in every prosecution in the Federal courts. But the states may modify that privilege in all prosecutions in state courts, provided that equal protection and ■due process of law be left to the citizen. '

But even if we are wrong in this construction of the fourteenth amendment, we think it is clearly settled by numerous adjudications that the right of the defendant to be confronted with the witnesses, within the meaning of the Federal constitution and the •bill of rights, was not denied to him. The evidence of the witness was taken in his presence, where he had the opportunity to cross-examine him, and where he did in fact cross-examine him, and thus he had all the protection that the bill of rights and the constitution were intended to secure him. This constitutional provision was not intended’ to secure to the accused person the right to be confronted with the witnesses against him upon his final trial, but to protect him against ex parte affidavits and depositions taken in his absence, as was frequently the practice in England at an early day. It was never regarded as an invasion of the fundamental rights of an accused person to read depositions upon his trial if at some stage of his case he could be confronted with and cross-examine the witnesses to be used against him.

In Cooley’s Constitutional Limitations, 5th ed., 389, the learned ' author, speaking of this constitutional provision, says: “If the witness was sworn before the examining' magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him, or if there were a former trial on which he was sworn, it seems allowable to make use of his deposition, or of the minutes of his examination, if the witness has since deceased, or is insane, or. sick and unable to testify, or has been summoned but appears to have been kept away by the opposite party.”

And for this he cites numerous authorities. This precise question was under consideration in the case of People v. Williams, 35 Hun, 516, and was disposed of in accordance with these, views. See, also, Sullivan v. Haug, Michigan supreme court, October 17, 1890.

The court charged the jury, among other things, as follows: “ If- the defendant, while in the possession of his faculties, sufficiently to conceive a design, voluntarily and wilfully did an act which had a direct tendency to destroy another’s life, the jury would have the right to prestíme from that fact that he intended the natural consequences of his own act.” This portion of the charge is free from error. It is, in substance, that if the prisoner was sufficiently in possession of his faculties to form an intent, and voluntarily and Wilfully did an act which had a direct tendency to destroy another’s life, the jury would have the right, not that they were bound to do so, to presume that he intended the natural consequences of his act, and this, we believe, is a correct statement of the law. It is quite true that the prosecution is bound to prove all the facts constituting the crime with which the prisoner is charged, and that the burden rests upon the People from the beginning to the end of the trial to establish, beyond a reasonable doubt, every fact essential to the conviction of the defendant. But this rule was not violated by the charge referred to.

The jury were bound to find that the defendant was capable of forming an intent, and that he did form the intent and that he wilfully and voluntarily dealt the blow, and they were permitted to infer or presume from these facts that he intended the fatal blow which he inflicted. The court did not lay down the rule that "they were bound as matter of law to presume it, or that the law implied that the defendant intended the natural consequences. of his act Therefore, the rules laid down in Stokes v. People, 53 N. Y., 164; People v. Baker, 96 id., 340; People v. Conroy, 97 id., 62, were not violated. In York's case, 9 Met., 103, Chief Justice Shaw said: “A sane man, a voluntary agent, acting upon motives, must be presumed to contemplate and intend the necessary, natural and probable consequences of his acts. If, therefore, one voluntarily or wilfully does an act which has a direct tendency, to destroy another’s life the natural and necessary conclusion from the act is that he intended so to destroy such person’s life. So if the direct tendency of the wilful act is to do another some great bodily harm, and death in fact follows, as a natural and probable consequence of the act, it is presumed that he intended such consequence, and he must stand legally responsible for it. So where a dangerous and deadly weapon is used, with violence, upon the person of another, as this has a direct tendency to destroy life, or do some great bodily harm to the person assailed, the intention to take life or do him great bodily harm is a necessary conclusion from the act.”

It is also claimed that the following portion of the charge of the judge is erroneous : “ Before coming to consider more directly the question of premeditation and deliberation, it is perhaps desirable, as leading up to that consideration, that we examine one or two other points which present themselves. Was there any design on the part of the defendant to kill this man, John Oullinane, and does the evidence in the case furnish any motive for such design on his part ?

•It has been said, and very properly, in your hearing, that where a man who is in possession of his faculties deliberately takes the life of another, the law presumes that he intended the natural consequences of his act, and, therefore, if you find that the defendant did take the life of John Oullinane in such a manner and under such circumstances as tó show deliberation, the presumption arises at once that he intended to take his life as he did. The law raises that presumption against the defendant, provided you shall find that he was in the possession of his faculties and that he took the life of John Oullinane with premeditation and deliberation.”

This portion of the charge involves the self-evident proposition that if the defendant with premeditation and deliberation took the life of Oullinane that he intended to take it. That, so far as we can see, must be universally true of all the acts of an intelligent person. Whatever is done with premeditation and deliberation must be done intentionally.

Other portions of the charge were objected to, and several requests to charge, made on behalf of the defendant, were refused. We have carefully examined the whole charge as given, and all the requests refused, and we think no error was committed by the learned judge. His charge was eminently fair and just to the defendant, and fully and fairly instructed the jury, so that there could have been no misconception as to the law governing the case.

A careful consideration of the whole case has constrained us to believe that no error was committed at the trial to the prejudice ' of the defendant. We think all the elements, constituting the crime of murder in the first degree were proved by uncontradicted evidence.

The crime was undoubtedly committed, like many others, under the influence of intoxicating liquor, but for which the deadly blow would not have been dealt. We sit here to administer and to uphold and enforce the principles of law and justice applicable to the cases presented to us, uninfluenced by sentiments of commiseration or of mercy. It may be that if we had jurisdiction to listen to an appeal for mercy we would relieve the defendant from the extreme penalty of the law. But such relief can be given only by the governor of the state, to whom, very properly under the circumstances of this case, an application can be made.

It remains for us only to affirm the judgment of conviction.

All concur.  