
    The People of the State of New York, Respondent, v. Michael Corey (alias Michael Kelley), Appellant.
    1. Capital Case—Evidence—Letter. Where an important letter is offered in evidence against a defendant in a capital case it should only he received when the proof shows with reasonable certainty that it was written by him.
    2. Evidence—Admissions. Statements of a party, which merely raise a suspicion or conjecture as to the existence of an alleged fact, do not constitute an admission of its truth and cannot be relied upon by the court in determining the rights of parties to an action.
    3. Evidence — Comparison oe Handwritings. The effect of the statute (Chap. 36, Laws of 1880, as amended by chap. 555, Laws of 1888), which permits, on a trial involving the genuineness of a written instrument, the introduction of other writings for the purpose of comparison, is to permit the admission in evidence of only such writings as have been proved to the satisfaction of the court to be in the genuine handwriting of the person claimed to have executed the disputed instrument.
    4. Evidence Tending to Excite Prejudices oe Jury. Illegal evidence which has a tendency to excite the passions, arouse the prejudices, awaken the sympathies or warp or influence the judgment of jurors in ■any degree, cannot be considered harmless, and the admission of such ■evidence constitutes reversible error.
    5. Murder Trial •— Evidence as to Diseased Condition oe Defendant. When, on a trial for murder committed in an affray, it has been proved that the defendant actually engaged in the affray and committed the fatal act, so that there is no necessity for showing his physical condition to establish the fact that he was able to engage in the affray, it is harmful error to permit the prosecution to show by a witness, who on cross-examination has testified that the defendant was sick at the time in question, the particular character of the disease, when the result is to elicit testimony tending to prejudice the jury against the defendant.
    6. Murder Trial — Charge to Jury—Intoxication—Penal Code, § 22. A charge to the jury, on a murder trial involving the question of the defendant's intoxication at the time of committing the act, is erroneous if it fails to state the rule on the subject (Penal Code, § 22) with sufficient clearness to enable the jury to understand that partial intoxication may he considered upon the question of motive or intent in determining the grade or degree of the crime committed.
    7. Murder—Review by Court oe Appeals — Code Grim. Pro. § 528. Section 528 of the Code of Criminal Procedure, which provides that, where the judgment is of death, the Court of Appeals may order a new trial if it is satisfied that justice requires it, whether an exception shall have been taken or not, was not intended to confer upon the court the right to' disregard any valid exception taken by a defendant, or to abridge any right he formerly possessed in reviewing the rulings of a trial court; but "its purpose was to throw additional safeguards around the defendant.
    8. Orimotal Appeal—New Trial —Code Crim. Pro. § 542. While even in criminal cases a new trial will not be granted by an appellate court on account of errors not affecting a substantial right of the defendant (Code Crim. Pro. § 542), the statute in no way impairs or affects the rule that the rejection of competent and material evidence, or the reception of incompetent and improper evidence, which is harmful to a defendant and excepted to, presents an error requiring reversal, even if the appellate court would, with the rejected evidence before it, or with the improper evidence excluded, still come to the same conclusion reached by the jury.
    (Argued January 22, 1896;
    decided February 18, 1896.)
    Appeal from judgment of the Court of Oyer and Terminer of the county of Madison, entered upon a verdict rendered February 11, 1895, convicting defendant of the crime of murder in the first degree, and also from an order of the court denying a motion for a new trial.
    The facts, so far as material, are stated in the opinions.
    
      Albert O. Briggs for appellant.
    The verdict in this case is-clearly against the weight of evidence, and the facts and justice require a new trial. (Code Crim. Pro. §§ 465, 528.) It was error for the court to receive evidence of the statements of the defendant given to Officers O’Brien and Lawlor in New York city. (Code Crim. Pro. §§ 199, 395; Const. N. Y. art. 1, § 6; Hutchins v. Hutchins, 98 N. Y. 56.) The admission of the testament alleged to have contained the genuine handwriting of the defendant was error. (Hall v. Van Vranken, 28 Hun, 403.) The charge of the court in reference to the defendant’s intoxication was error. (People v. Leonardi, 143 N. Y. 360; Penal Code, § 22; People v. Eastwood, 14 N. Y. 562; People v. Mongano, 1 N. Y. Cr. Rep. 411; Sanchez v. People, 22 N. Y. 147.) While the errors were unexcepted to upon the trial, where the record shows that the ends of justice really require a new trial, the court will grant it, when the judgment is of death. (143 N. Y. 367; Code Crim. Pro. § 528.) The motion for a new trial should have been granted. (Code Crim. Pro. §§ 465, 528; Penal Code, § 22.)
    
      Joseph D. Senn and M. H. Kiley for respondent.
    The People contend that the charge upon the question of intoxication is within the rule and does not contain reversible error. (People v. Kemmler, 119 N. Y. 580; People v. Fish, 125 N. Y. 136; People v. Mills, 98 N. Y. 176; Warren v. Commonwealth, 37 Penn. St. 45.) There was no error in the reception or rejection of evidence upon the trial that will warrant a reversal of the verdict of the jury. (Pierson v. People, 79 N. Y. 424; Hendrickson v. People, 10 N. Y. 13; Kennedy v. People, 39 N. Y. 245-253; Pontius v. People, 82 N. Y. 339; People v. Harris, 136 N. Y. 423.) The objection to the reception in evidence of a testament which contained the genuine handwriting of the defendant is untenable. The jury had a right to this evidence for the purpose of comparing it with the handwriting of the letter. (Pontius v. People, 82 N. Y. 349.) The appellate court should not disturb the verdict of the jury. (People v. Taylor, 138 N. Y. 398; People v. Fish, 125 N. Y. 136; People v. Kerrigan, 147 N. Y. 210.)
   Martin, J.

The defendant appeals from a judgment of ■the Madison Oyer and Terminer, entered upon the verdict of a jury, convicting him of the crime of murder in the first degree. The evidence discloses that the defendant stabbed James George, an Indian, with a knife or some other sharp instrument, and that the wound thus inflicted caused his death. 'The defendant was known by the name of Michael Kelley, as well as by the name of Michael Corey. The assault which ■resulted in the Indian’s death occurred in the evening of the "twenty-seventh of September, 1894, at the house or place where Frank Webb and his family then resided in the town of Eaton, Madison county, Y. Y. At and prior to the time ■of the affray the defendant had been living or boarding with the Webb family, and. had made it his home with them more or less for about one year. There were present at Webb’s when the affray occurred ■ the defendant, the decedent, Cora Bennett and Webb’s family, which consisted of himself, his wife and six children, who were from one to seventeen or nineteen years of age. The place where Webb resided was a mere shanty consisting of one room, twelve by sixteen feet, with one small window and a door. There was but little furniture in the room.

On the day of the homicide the defendant had been assisting Webb in putting up a woodshed or “lean-to” adjoining the house or shanty, and had been there during the entire day. The decedent staid at Webb’s the previous night, but had been absent during the day, and returned at about seven o’clock in the evening. The evidence tends to show that all the persons present when the decedent was stabbed were more or less intoxicated, with the exception of Webb and his younger children. During the afternoon and evening two jugs of beer, a quart of whisky and a pint of alcohol had been furnished, and all had been drank by the persons there except a portion of one jug of beer and a pint of whisky. The evidence also tends to show that the decedent was a strong, healthy Indian of a somewhat quarrelsome character, while the defendant was not in robust health and was usually a quiet and peaceable man.

When the decedent returned to Webb’s house in the evening of that day, he brought with him some provisions for the family, a portion of which Mrs. Webb cooked for his supper. The defendant, at the invitation of the decedent, ate with Mm. During the evening, a portion of the time before the homicide had been spent in dancing. Shortly before the affray the defendant had complained of the decedent for sitting upon a bed on which some of the girls were lying. He also expressed to Mrs. Webb a feeling of hatred for the decedent, his design to have revenge upon him, and declared that he “ would lick him if it cost his life to do it.” About the time the encounter took place, the decedent was talking with Susan Webb, when the defendant said to him: “Wliat do you talk to her for ? ” To which the decedent replied : “ Ain’t I a right to talk to this girl % ” The defendant then jumped up, saying: “Mo, you ain’t (calling the decedent a vile name); I will fix you,” at the same time striking him with his fist. Whether the decedent simply warded off the blow or struck the defendant a blow in return is not entirely clear, but the evidence tends to show that he simply warded it off. Immediately following this the defendant struck and stabbed the decedent six or seven times with a knife or some other sharp instrument, probably a small knife belonging to one of the Webb girls, and immediately left the house. The decedent attempted to sit upon a chair, but fell upon the floor and was then discovered to have been stabbed. The defend, ant shortly left the county of Madison, went to Mew York, and when arrested was found at a hospital on Blackwell’s Island. The decedent lived until about the 4th day of October, 1894, when he died from the effects of the injury inflicted upon him by the defendant. Mo other or further statement of the facts preceding or surrounding this transaction need be made to present the questions involved.

On the trial a letter and two envelopes were offered in evidence. They were objected to by the defendant upon the grounds that they were incompetent and inadmissible; that no foundation had been laid for the evidence; and that they were not properly proved or shown to have been written by the defendant. These objections were overruled, and the letter and envelopes were admitted in evidence. To this ruling the defendant excepted. The letter was as follows:

“New York City, Sunday, October 21st, 1894.

“ Bear Susie.— I thought I write you these few lines hoping they may find you and all the "rest of the family in good health and getting along good. Susie, I can’t tell you how sorry I am for getting in that trouble and having to leave you, but you are as much to blame as I am, for if you hadn’t carried on the way you did that night I would not have got fighting with that Gr-d d-n Indian, but never mind, it may be all for the best, Susie. After I had that trouble that night I went down to Ira Spaulding’s and stayed there until morning and was going to work for him that day but I was afraid Jimmie would get a warrant cut for me so I made up my mind the best thing I could do was to come to New York until it would blow over. Susie, I can’t tell you how lonesome I am without you, and how I long to be back home with you and mother again, for, Susie, I always looked on your mother as my own and she always treated me like if I was her son, and we would have got along all our life without a word only for that Jimmie coming there. Well, Susie, I don’t do anything yet; I am living with my brother since I came to New York, as he is pretty well oil, now I have anything I want from him but I expect to get a good job soon and if I do you will hear from me. Well, Susie, I was telling my brother about you and that you Avanted him to come out and see you but he wouldn’t leave the city for anything, as he said he would die if he had to live as we live up there. Well, Susie, I want you to get some one to write a letter for you to me and let me knoAV Iioav you are all getting along, and if Jimmie made much of a fuss over that trouble and if everything is all right. Noav, if you don’t want to get any one to write for you, Avhy write yourself, if it was only two words, for I long to hear from you, Susie. Although you are 300 miles away from me I am always thinking of you both night and day. You are always in my thoughts. Remember, Susie, I love you with all my heart, and shall never forget the A?ay you treated me, let it be good or bad. Remember, also, that I have often told you that I would kill any one that would como between us, and so, Susie, so help me God, I will, and that is why I cut Jim with that knife. I meant to kill him, and will, if I didn’t, if he ever comes monkeying around you again while I am there, the G-d d-d big Indian bum. I was always down on him for putting his hand up little Mary’s clothes. I had a right to get him arrested right there then, G-d d-n him, but I will say no more noAA', but will now close, hoping to hear from you soon. Susie, tell your mother and all the rest of the family I was asking for them and send them my love. Susie, kiss little Gertie for me. Susie, I will send you an envelope already addressed, so all that you will have to do is to write your letter and post it and I will get it all right. Be sure and write soon, as.I long to hear from you. MIKE. XXX.

“ Tell Libbie I was asking after her.”

The envelope in which this letter was inclosed had upon it the following address : “ Mr. Frank Webb, care of Mr. Lewis, Post Master, Pratt’s Hollow, New York.” It was postmarked, “New York, Oct. 22nd, 10 a. m.” Inclosed with the letter was an envelope directed, “ Mr. Hugh Foley, 53 Bowery, Phoenix House, N. Y.”

The only evidence upon the trial tending to show that the letter or the envelopes received in evidence were written or addressed by the defendant was the testimony of Frank Webb and Susan Webb, and certain statements proved to have been made by the defendant. Frank and Susan Webb testified they had seen the defendant write and that the letter was in his handwriting, and Frank Webb testified that the envelopes were addressed by him, while Susan testified that they were not. The admissions claimed to have been made by the defendant were made shortly after his arrest in the city of Hew York.

To fully understand the nature and extent of this evidence and to determine the effect that should be given to it, it is necessary to examine it somewhat in detail, Frank Webb testified upon his direct examination that he had seen the defendant write; that he knew his handwriting; that he could read his writing; could read it better than any one else’s; that he saw Kelley sign his name, Michael Kelley, in the testament; that he wrote his name Michael Kelley; and that he wrote the words “Mr. Frank Webb” in the testament. He then testified he did not know as he saw him write anything in the testament except his name, which was printed in Homan letters, and finally said he did not see him write any more. He was then asked if the letter and the two envelopes mentioned were in the handwriting of tl^e defendant. This was objected to as incompetent, inadmissible and that the witness was not shown competent to judge. The objection was overruled, and he testified that they were. On his cross-examination he stated distinctly that he never saw the defendant write except to print his name in the testament. When his attention was called to the envelope contained in the letter which he had already testified was in the handwriting of the defendant, he was able to read correctly but a single word of the entire address which contained ten words and figures, and testified that New ”. as a part of the word Hew York was fully written out, when it was abbreviated, there being only the letters N. Y.” On the envelope addressed to himself, he was able to read only his own name. Without going into further detail, a careful examination of the evidence of this witness bearing upon the subject of his competency to give an opinion as to the defendant’s handwriting renders it manifest that he ,was practically unable to read writing, to write, or to distinguish words written, and that he had never seen the defendant write his name, but only saw him print it in the testament offered in evidence. It is quite obvious that the opinion of this witness was worthless and of no value in determining the question whether the letter introduced was written by the defendant.

The only other person who testified to his handwriting was a daughter of the last witness, who was about sixteen years of age. She testified she knew the defendant’s handwriting; that she could read writing a very little; that she saw him write in the testament; that the letter was in his handwriting, but that neither of the envelopes was addressed by him although her father had testified they were. On her cross-examination she admitted she could not read writing very much, and when asked to read what was upon the third page of the testament, where she claimed the defend ant had written, she was unable to do so. Her evidence seems to be equally as valueless as that of her father. Here was a girl who practically could neither read nor write. At most could read but little, and write less. There is nothing whatever in her evidence to show that she had ever in any way become familiar with writing or reading the writing of others. Hor was she shown to have had any knowledge of the defendant’s handwriting except from having seen him write in the testament produced. The letter and envelopes thus received in evidence were of vital importance. As evidence, they were very damaging to the defendant, if not substantially controlling, especially to establish the elements required to constitute the crime of murder in the first degree. To permit evidence of this importance to be read before a jury with only such proof of its genuineness, seems to me to be totally inconsistent with a proper and safe administration of the law.

Before a witness should be permitted to testify to the handwriting of another, he should be acquainted and somewhat familiar with the handwriting of the person whose writing is sought to be proved. He should have an intelligent acquaintance with the handwriting of the party so that he can determine with a reasonable degree of certainty whether the writing offered is his genuine handwriting. It seems very clear that neither of these witnesses had any such knowledge of the writing of the defendant, or any such acquaintance with it as qualified them to give an opinion upon the question whether this letter and these envelopes were written by him. An examination of the evidence of these witnesses shows that they possessed little natural intelligence, were ignorant, illiterate, had little knowledge of the art of writing or of reading it, and little appreciation of the responsibility which rested upon them as witnesses when giving evidence as to the handwriting of the defendant. The positive certainty with which they testified to their knowledge and qualifications to give an opinion upon that subject, when their subsequent testimony disclosed that they had ljttlé .or no knowledge of it, tended to show a carelessness and indifference as to the accuracy of their testimony which clearly indicated that but little, if any, reliance could be placed upon their evidence.

But it is contended by the respondent that the letter was sufficiently proved by the admissions of the defendant, and hence, if the evidence of these witnesses should be disregarded the letter was properly received. The learned district attorney insists that the evidence of the witnesses O’Brien and Lawlor shows that the defendant admitted to them that he wrote this letter, that such admission was binding upon him, and was sufficient to justify the court in receiving the letter in evidence. It, therefore, becomes necessary to examine the testimony of these witnesses to determine whether it was of the character and has the effect claimed for it by the respondent. The witness O’Brien in effect testified that he was a detective in the city of New York ; that he arrested the defendant; that after his arrest he heard a conversation between the defendant and the witness Lawlor in which the defendant asked Lawlor if he thought “ that letter amounted to anything; ” that Lawlor said, “ You must have been a fool if you thought somebody would call for that letter; ” that the letter was to be answered and called for at 53 Bowery, N. Y.; and that the defendant then said to Lawlor: “ Do you think I can play crazy on them?” To which Lawlor said : “ You must do something better than that.” The witness Lawlor was" then called and testified: “ I had charge of him (defendant) while Mr. O’Brien and the sheriff were at the judge’s desk waiting to have him delivered over to the sheriff. He said to me: ‘ Can I send a . message —’ He says, ‘ Can I send a message to my brother ? ’ I says,"‘ I guess so.’ So I called O’Brien. I says, £ This man wants to send a message to his brother.’ He says, ‘All right.’ He gave him a piece of paper and a pencil and he wrote down the name, 53 Bowery, Phoenix House. I says, ‘That is where the envelope was in that letter that you spoke about to that girl, was it ? ’ He says, ‘ Yes, that is the letter that got me here.’ I says, ‘ Ho, we had you locked up before we got that letter at all.’ He talked a few minutes more. Again he says, ‘ Can I play the crazy act on that letter ? ’ I says, ‘ Did you write it like a crazy man when you wrote it ? ’ He says, ‘ Ho, does it read like crazy ? ’ ‘ Well,’ he says, ‘ no.’ I says, ‘ That wouldn’t do you any good.’ So in a minute the judge had turned him over to the sheriff and went off. That is all there was of that conversation.” On his cross-examinatian the witness testified that he did not show him any letter or any envelope, and there is no proof or pretense that the letter or envelopes were present at the time. This was substantially all the evidence given by the witnesses O’Brien and Lawlor bearing upon this subject. We do not find in it any proof that the letter referred to was the one introduced in evidence. It will be observed that in all the statements made by the defendant to these officers, or by them to him, no particular letter was mentioned or sufficiently described to identify it; no particular girl was mentioned as the one to whom the letter spoken of was sent, nor was the substance of it in any way identified, except that it contained an envelope directed as he directed his message. A mere reading of this evidence clearly shows that there was no such identification of the letter referred to in that conversation as to render the evidence of these witnesses proof of an admission by the defendant that lie wrote the letter received in evidence, or that he had any connection with it. It may be these facts were sufficient to raise a suspicion or conjecture that the letter referred to by him was the one received in evidence. But that was not sufficient, as sus- ■ picion is not proof, nor conjecture evidence, upon which courts can act in determining the rights of parties.

In Shaver v. Ehle (16 Johns. 201), where a person called upon the maker of a note payable to A. or bearer, and demanded payment, but neither showed the note nor mentioned the amount or date, and the maker acknowledged that he had given a note to A. and would pay it at a future day, it was held that that was not a sufficient admission of the existence of the note. In Minard v. Mead (7 Wend. 68) it was held that evidence of an admission by a party that he authorized another to give a note to a third person for a specified sum, would-not warrant the reading in evidence of anote corresponding -with the note thus authorized to be made, without proof of its having been duly made. Again, in Palmer v. Manning (4 Denio, 131) the evidence to prove the making of a promissory note, purporting to be signed by the defendant and payable to bearer, was that the plaintiff’s agent called on the defendant with the alleged note in his pocket, which he did not exhibit, and told him he had a note for that amount against him, which he wanted payment of for the plaintiff; and the defendant said he had given such a note and would pay it if the plaintiff would make a small deduction and indulge him as to time; and it was held that the note produced on the trial was not identified with that to which the admission referred, and that the proof was insufficient. These cases were considered in Bardin v. Stevenson (75 N. Y. 164, 168), and the latter case distinguished. Their correctness was, however, in no way questioned, but they were substantially approved. The same doctrine was also held in Glazier v. Streamer (57 Ill. 91, 93). It seems to me the doctrine of the cases cited is applicable to the question under consideration, and sustains the conclusion that the evidence of the witnesses Lawlor and O’Brien was insufficient to establish any admission by the defendant that the letter introduced in evidence was written by him. If the rule stated in the cases cited was applicable in an action arising upon a contract where only a few dollars were involved, surely it should apply in a case like this where the question is of such importance and the evidence so conclusive in its character.

It may, however, be said that, as the testament was received in evidence, the jury may have compared the writing in the letter with the name written in the testament, and, hence, there was some evidence that the letter was written by the defendant. As it was wholly immaterial to any issue in the case, the only ground upon which the testament could have been received in evidence was for the purpose of comparison with the writing upon the letter and envelopes. The effect of the statute which permits the introduction ón a trial of other writings for the purpose of comparison is to permit the admission in evidence of only such writings as have been proved to the satisfaction of the court to be in the genuine handwriting of the person claimed to have executed the disputed instrument. (Laws 1880, eh. 36, as amended by LaVs 1888, ch. 655.) An examination of the record in this case discloses that the court admitted this testament, not as the genuine handwriting of the defendant, but as his handwriting alleged to be genuine. Until its genuineness was established to the entire satisfaction of the court, it was not admissible for the purpose of comparison, and for the reasons suggested as to the testimony of the witnesses swearing to its genuineness, the trial court may well have characterized it as alleged to be genuine instead of being genuine. It may be the evidence, was technically sufficient to justify the admission of the letter and envelopes, still, we think stronger proof of their genuineness should have been given.

Thei’e was another ite2n of evidence which was admitted under the defendant’s objection, which we think was improperly received. As the respondent claims that this evidence was proper because the defendant had opened the door for its admission by interrogating the witness as to the defendant’s health, it is necessary at the outset to ascertain how the question arose. On the cross-examination of the witness, Frank Webb, in answer to the question asked by the defendant’s counsel whether that night the defendant ate any supper, the witness answered, “ I don’t know whether he eat supper or not; ” and then volunteered this statement, He couldn’t eat much any way, he was sick; there was lots of times he couldn’t eat nothing.” When asked if he knew what ailed him, he replied, “ I did pretty near, too, I had it.” He then testified that he knew the defendant was sick and had been for some time. This was the only evidence upon this subject given by the witness upon his examination by the defendant’s counsel. Subsequently upon his re-examination by the People, he was asked, “What was the matter with him?” This question was objected to as incompetent and immaterial. The court then said, They have a right to show whether he was in a condition to make this afíray.” The question was then asked, “What was the matter? What was there about it ? ” The witness replied, “ I don’t really like to tell,” when the court remarked to the witness, Whatever was the matter with him tell it frankly.” His answer was to the effect that he was seriously afflicted with syphilis. The court then, observed, “ Then he was not entirely well.” The witness answered, I guess not.” That this evidence was competent or material upon any issue in the case cannot be pretended. There was no necessity for showing his physical condition to- establish the fact that he was able to engage in the affray which resulted in the homicide, That he did engage in it and stabbed the decedent was proved and not denied. All the facts connected with it had been proved by a number of witnesses. The evidence given in no way tended to show that the defendant was in a “ condition to make the affray.” It could not have been intended for that purpose. Proof of the particular character of the disease with which the defendant was afflicted could in no way answer any proper purpose. The only effect it could possibly have had was to arouse the passions of the jury, and to prejudice them against the defendant. That such would be its natural and almost necessary effect no one having been long connected with the trial of actions can for one moment doubt. It could be helpful to the People’s case only so far as it unjustly and improperly prejudiced the jury, against the defendant, and was, therefore, harmful to him. It is a well-established principle that, illegal evidence which has a tendency to excite the passions, arouse the prejudices, awaken the sympathies, or warp or influence the judgment of jurors in any degree, cannot be considsidered as harmless. (Anderson v. R., W. & O. R. R. Co., 54 N. Y. 334; Hutchins v. Hutchins, 98 N. Y. 56, 65.) We think that the learned trial judge should not, under the circumstances, have permitted the witness to give testimony as to the particular nature and character of the disease with which the defendant was then afflicted.

The defendant contends that the cpiestion of his intoxication was not properly submitted to the jury. He insists that the instructions of the court were such as to lead the jury to believe that unless he was so far intoxicated as to be unable to distinguish between right and wrong, they could not consider his intoxication even upon the question of motive or intent, or in determining the degree or grade of the crime of which he should be convicted. Upon the subject of the defendant’s intoxication, the court gave the following instructions : “ Gentlemen, there is another question which you may take into consideration' in this case, and it is an important one. Were these men engaged in a drunken brawl or fight? How, you must not get the idea, gentlemen, that intoxication, unless it is a total intoxication, and it is conceded on all sides, that this defendant was somewhat under the influence of liquor (but it makes no difference how far George was under the influence of liquor, he is not the one); but if the defendant was wholly irresponsible from intoxication, then he might not be credited even with making an attack; the defendant would have a right to say that he was doing what he knew nothing about if lie did make the attack, and he would have a right to make a certain self-defense within the line which I have given you ; but another provision comes in here, and that is this: it is not an excuse for a man who deliberately gets drunk, who voluntarily gets intoxicated, to commit a crime; he cannot be excused from that crime; he cannot be and ought not to be unless the drunkenness goes so-far and to'such an extent that the man did not know what he did. A very good illustration of it was in the evidence of one of these Indians who took the stand. He said an attack was made by George, and after the attack was made he says he was perfectly oblivious to everything that was going on because he was so drunk. How, if aman was in that condition and made an attack he could not be convicted of crime, because to be convicted of crime a man must know, he must intend, he must have mind enough left sitting upon the Throne of Reason, he must have intelligence enough left, and intention left, that he knows the difference between right and wrong. But simply because a man is drunk and engorged with liquor, which he has voluntarily taken, is no defense to crime, and section 22 of the Code defines that rule: ‘ 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 a state or such a 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 and intention with which the act was committed. Now, if he was not drunk enough so but that he had a motive, and he had an intent, that he formed a purpose to do the act, then it is no excuse. You have a right to take into consideration his intoxication for the purpose of seeing whether he could be convicted of murder in the first or second degree, or in- one of the degrees of manslaughter, and upon the question of intent, upon the question of motive, he would have a right, under those circumstances, to the benefit of the doubt, and you would be justified and authorized in convicting him in a lesser degree. But, gentlemen, you must not do this upon the theory to let him off. You must only do il if you believe that he was so drunk that he did not form a motive, that he could not form a motive, and upon that question you have the right to take into consideration all that he said and all that he admitted about it, the number of blows that were struck, and the way he acted, including his escape, for the purpose of saying whether he appreciated what was going on and whether he was drunk enough or sober enough to know that he had committed this, injury, or that he was committing it. Gentlemen, a very respectable authority, The People against Mills, in the 98th N. Y., holds that intoxication does not preclude premeditation, because a man may premeditate and design and deliberate when he is drunk. He may not do it consecutively and accurately, yet he may be fired up under the influence of liquor and the excitement, so that he is better prepared to do-it and better prepared to deliberate; so you are to take into consideration that proposition.”

This portion of the charge shows that the jury were in effect instructed that if the defendant was totally intoxicated -so that he did not know right from wrong, it was an excuse for his crime. This statement was repeated several times, and illustrated in the charge by calling attention to the evidence of one of the defendant’s witnesses. The judge then charged that voluntary intoxication was no defense to crime, and read to the jury section twenty-two of the Penal Code. After having read that section, he instructed them to the effect that if the defendant was not sufficiently intoxicated so that he had no motive cr intent, his intoxication was no excuse. Whether by-this he intended to instruct the jury that the defendant’s intoxication was no excuse, either partial or complete, or that it was not a complete excuse, is by the charge left in doubt. ITe then stated to the jury that they might consider the defendant’s intoxication upon the question of intent or motive in determining the. grade of the crime. Having previously told the jury that only total intoxication was an excuse, it is not clear that the jury understood that partial intoxication might be considered in determining those questions. This was followed by a statement that upon that theory the jury must not let the defendant off; that they must only do it if they believed he was so drunk that he did not form a motive. Whether by this last statement the court intended to instruct the jury that they must not let the defendant entirely off unless he was so drunk that he could not form a motive, or whether the purpose of this portion of the charge was to instruct them that they should not consider the question of the defendant’s intoxication unless he was so far intoxicated that he could not form an intent. or motive, is not very clear. It may be that the jurors understood from this charge that they might consider the fact of the ' defendant’s intoxication in determining the grade or degree of the crime, even if he was not so intoxicated as to be unable to distinguish between right and wrong ; and yet it is quite as probable the impression may have been left in their minds-that if the defendant was not intoxicated to that extent, the fact of his intoxication was not to be considered by them in the determination of the case. Very likely a trained legal mind would interpret the instructions of the court as permitting the consideration of partial intoxication upon the question of motive or intent. But we think it is equally probable that the jury may have understood from the charge that no intoxication short of that which would render the defendant, unable to entertain a motive or form an intent could in any way affect the defendant’s guilt as to degree or otherwise. The peculiar language of this charge is such that at least it may 'have misled the jury. The charge in this case is similar in some respects to that in The People v. Leonardi (143 N. Y. 360), where this court reversed the judgment on the ground of the insufficiency of the charge. We are fearful that the learned trial judge did not state the rule to the jury with sufficient clearness to enable them to understand that the defendant’s intoxication might be considered by them in determining the grade or degree of his crime.

It is provided in section 528 of the Code of Criminal Procedure that this court may order a new trial if it is satisfied that justice requires it, whether an exception shall have been taken or not. We do not understand that the provisions of that statute were intended to confer upon this court the right to disregard any valid exception taken by a defendant, or to abridge any rights he formerly possessed in reviewing the rulings of a trial court. The manifest purpose of its provisions was to throw additional safeguards around a defendant, where the judgment is of death, by permitting this court to award him a new trial if satisfied that justice requires it, although no exception shall have been taken in the court below. (People v. Driscoll, 107 N. Y. 414.) The only statute that authorizes the court to disregard errors committed on a trial in a criminal action is section 542 of the Code of Criminal Procedure, which provides: “ After hearing the appeal the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” This statute is in effect but little more than a- codification or statutory enactment of the previously ■established rule, that even in criminal cases a new trial will not be granted for an erroneous ruling, where the appellate tribunal can see that by no possibility could the error have worked any harm to the defendant. (Stokes v. People, 53 N. Y. 164.) This statute in no way impairs or affects the previously well-established principle that the rejection of competent and material evidence, or the reception of incompetent and improper evidence, which is harmful to a defendant and excepted to, presents an error requiring reversal. Such a ruling affects a substantial right of a defendant even though the appellate court would, with the rejected evidence before it, or with the improper evidence excluded, still come to the same conclusion reached by the jury. The defendant has the right to insist that material and legal evidence offered by him ■shall be received and submitted to the jury, and to have illegal and improper evidence, which may be harmful, excluded, and to have the opinion of the jury taken upon proper evidence admitted in the case, and upon such evidence only. (People v. Wood, 126 N. Y. 249; People v. Greenwall, 108 N. Y. 296.) As was said by Earl, J., in the latter case: “ A person on trial for his life is entitled to all the advantages which the laws give him, and among them is the right to have his case submitted to an impartial jury upon competent evidence.”

After carefully examining and considering the evidence, the rulings and the charge contained in the record before us, we have become satisfied that justice requires us to grant the ■defendant a new trial in this action. In reaching this conclusion, we have not been wholly controlled by any one of the questions discussed, but upon a consideration of them all we have been led irresistibly to the conclusion that in the furtherance of justice a new trial should be granted.

The judgment must, therefore, be reversed and a new trial granted.

Haight, J.

(dissenting). The deceased, James George, was an Indian about 40 years old, engaged in the business of bot-taming chairs, and from time to time was a visitor at the residence of Frank Webb. The defendant, Michael Corey, was born in the city of Hew York, and was there known by the name of Corey ; but during the summer of 1894 he had been engaged as a farm laborer for one Ira Spaulding, living in the town of Stockbridge in the county of Madison, and he was there known by the name of Kelley. About the first of September he stopped working for Spaulding and entered the employment of one Frost and engaged in picking hops. During this time he boarded with Webb. Webb appears to have been a man in humble circumstances, living in a shanty situated in a swamp surrounded by bushes, about one-half of a mile from the public highway. The shanty contained only one room, twelve by sixteen feet in size, in which the family lived, ate and slept upon bedding lying upon the floor. There was one window in the west side, one door in the south side, and a little shelf or mantel piece on the south side just east of the door, about as high as the head of an ordinary adult. The Webb family consisted of himself, his wife, Sarah Webb, three daughters, Tibbie, aged 19 years, Susan, aged 16 years, Mary, aged 9 years, and two smaller children.

On Thursday evening, September 27tli, 1894, there were present beside the family, Cora Bennett, aged 19 years, James George and the defendant. The defendant had been there during the day and had assisted Mr. Webb in the construction of a lean-to on one side of the shanty. George had been there in the morning, had procured some material for the repair of chairs and had gone to the village of Morrisville. He returned about dusk, bringing with him a quantity of sausage and beef, from which Mrs. Webb cooked his supper. After awhile the defendant suggested that, in view of having visitors, they ought to have some beer. Thereupon Frank Webb went to Pratt’s Hollow, where he procured a quart of beer and two pints of whiskey. He returned about eight o’clock in the evening. While he was away, George took a pint of alcohol which he had brought with him and, reducing it with an equal quantity of water, placed the mixture in two pint bottles, which were passed around among the company. After the return of Webb, the beer was also passed around, each drinking a little, but leaving about half; and then one of the pint bottles of whiskey was passed around, after which Mr. Webb played on his violin while the company danced. George danced with Mary and Susan; the defendant danced with Mrs. Webb and Susan and some of the other girls. After the dance had ceased and about half-past ten o’clock in the evening, the defendant was sitting in his shirt sleeves on the north side of the room near Mrs. Webb. Susie Webb was standing near the shelf next to the door and George stood by her side talking to her. The defendant then .stepped up to them and says to George, “ What do you talk to her for ? ” George says, “ Ain’t I a right to talk to this girl?” The defendant says, “Ho, you ain’t, yon son of a bitch,” and struck George with his fist. George then pushed him back against the wall, and the defendant then sprang back again at him, striking him several times about the body, and'then ran out of the door. George staggered toward a chair, but fell from it on to the floor. Webb then undertook to pick him up, but found that he was covered with blood. He then followed the defendant out of the house and found him in the edge of the woods, and had some conversation with him, in which the defendant stated that he had cut George with the little blade of a knife, and stated that he had thrown the knife back behind the woodshed in the bushes. He then wanted his hat, coat and vest, and Webb returned to the house, got his clothes for him, handed them to him and he went away. Webb then returned to the house and found George groaning and in great apparent agony; he bathed some of the wounds discovered by him in whiskey and salt, took such care of him as he could until it began to grow light, and then he went to the village and procured the attendance of Dr. Clark. The doctor arrived'between five and six o’clock in the morning and then found George suffering from a wound an inch and a half in length, penetrating the pleural cavity: two wounds penetrating into the muscles; one over the stomach; one lower down in the abdomen, from which the omentum protruded; one near the hip bone; one cut above the elbow joint, two and one-half to three inches long; one in the hip that went in about one and one-half inches, and one or two small wounds, in all nine in number. The doctor dressed the wounds and took" charge of the case from that time on until the seventh day, when George died. The cause of death was the wound that- penetrated the pleural cavity. The defendant, after leaving the residence of Webb, went to Spaulding’s, where he had formerly worked, and slept in the barn over night. The next morning he had a talk with one or two individuals, in which he stated that he had had a fight the night before with the Indian and had stabbed him three or four times. He then disappeared and was not heard from until the latter part of October, at which time a letter from him to Susie arrived, to which allusion will be made hereafter. The officers then found him in the hospital on Blackwell’s Island, and procured his arrest.

Upon the trial the facts were undisputed. Passing the details of the affray, the first questions that arise requiring careful and considerate attention are those pertaining to motive and intention and the deliberation and premeditation with which the act was done. It appears that George was a widower and had been giving considerable attention to the girl Susie; that the defendant was also enamored of her and had asked her to become his wife; that a day or two before they had attended a circus in company with Mrs. Webb and her two daughters, Libbie and Susie, and that in returning from the circus the defendant and George had a quarrel, and were about to engage in°a fight, when Mrs. Webb interfered and led the defendant away. Again, it appears that on the evening of the affray the defendant became extremely-jealous of George and made threats against him. A half or three-quarters of an hour before the final affray Susie sat down upon the beds, which were piled up in one corner of the room, with her back against the wall; Libbie and Cora were lying upon the bed; George sat down upon the beds by the side of Susie; the defendant was then sitting in a chair on the other side of the room; he then said to George, “ If you was any kind of a man about you, you would come up here and sit with the men; you wouldn’t be sitting there.” To which George replied, “Ain’t I got any right to sit here ? ” The defendant says, “ Ho.” They then got up, and were preparing to fight, but the girl Susie interfered, and for a time they were quiet. The defendant, however, took a seat by the side of Mrs. Webb, to whom he remarked “that he hated that black, damned Indian, and he wanted to have his revenge on him, and he would some time or another.” He said “he would lick him if he could have trouble with him.” And, again, “ he would lick him if it cost him his life to do it.” As we have seen, about a half an hour thereafter Susie and George were again engaged in conversation at the mantel, at which time the final affray already related took place. The letter, to which allusion has already been made, is set forth in the prevailing opinion. (See supra, page 480.)

This, in substance, is the evidence bearing upon the questions referred to. It will be seen that there was evidence of jealousy, which often forms one of the strongest motives for the commission of crimes of this character, ill-feeling, threats, ■an opportunity to deliberate and premeditate, together with the written declaration that he meant to kill. Seldom is evidence presented more convincing or conclusive. It is not only sufficient to warrant the finding of the jury, but amply sustains the verdict.

The only exceptions appearing in the case requiring special attention pertain to the reception in evidence of the letter above referred to. In the latter part of October after the death of George there arrived at Pratt’s Hollow post office a letter addressed to Mr. Webb, care of Mr. Lewis, the postmaster, stamped, “Hew York, October 22nd.” This letter' was taken from the post office by the under sheriff and taken to Mr. Webb’s house. It was opened and there was found inclosed the letter to which we have referred above, together with an envelope, with a postage stamp thereon, addressed “ Mr. Hugh Foley, 53 Bowery, Phcenix House, N. Y.” This letter was the first disclosure to the Webbs of the whereabouts of the defendant. It was taken in charge by the under sheriff, and was subsequently produced upon the trial after being identified as the letter found inclosed by Webb, on the ■occasion alluded to. Subsequently the defendant was arrested at Blackwell’s Island and taken to the Tombs Police Court in Flew York, at which place he asked Detective Patrick Lawlor if he could send a message to his brother. The detective told him that he could and gave him a piece of paper and a pencil, on which he wrote down the name “ 53 Bowery, Phcenix House.” The detective then said to him, “ That is where the envelope was in that letter that you spoke about to your girl, was it ? ” He says, “Yes, that is the letter that got me here.” The defendant then talked a few minutes more and again says, Can I play the crazy act on that letter ? ” The detective says, “ Did you write it like a crazy man when you wrote it ? ” He says, “Fío, does it read like crazy? ” Detective O’Brien was also present and heard some of the conversation that took place between Lawlor and the defendant. He testifies that the defendant asked Lawlor “ If he thought the letter amounted to anything.” And that Lawlor said to him, “You must have been a fool if you thought somebody would call for that letter. The letter was to be answered and called for at 53 Bowery, Hew York.” He then said to Lawlor, “Do you think I can play crazy on them?” and Lawlor replied, “ You must do something better than that.”

Upon the trial a testament was produced by Hr. Webb and on the outside óf the fly leaf was printed in pencil the name of Michael Kelley, and on the inside of the same leaf was written the name Michael Kelley, underneath which his age was stated. Mr. Webb and Susie Webb both testified that they saw the defendant write these names. There was a conflict between them as to whether the writing appearing upon the opposite page on the second fly leaf was in his handwriting, but as to the writing upon the first fly leaf they both agreed. They further testified that they had seen him write, knew his handwriting, and that the letter referred to was in his handwriting. Mr. Webb thought that the addresses upon the envelopes were also his, but Susie thought otherwise. On cross-examination it appeared that both Mr. Webb and Susie could read writing but imperfectly, and that some of the words appearing upon the envelopes and in the letter they were unable to read. The testament, letter and envelopes were subsequently received in evidence. Objection was made to the reception in evidence of the testament, or that portion thereof containing the handwriting of the defendant, and our attention is called to the cases of Hall v. Van Vranken (28 Hun, 403) and Pontius v. The People (82 N. Y. 349). But these cases occurred before the statute, when the old rule was in force, which permitted comparisons only with the genuine handwriting of the person already in evidence for other purposes. The first statute upon the subject was passed in the year 1880. It was subsequently amended by chapter 555 of the Laws 'of 1888. It pertains to the evidence and practice on civil and criminal trials. It authorizes comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person claimed. Under this statute the genuine handwriting of a person may be admitted in evidence for the purpose of comparison. Objection was further made to the testimony of the detectives, and the claim is now made that their testimony should have been excluded as incompetent under section 395 of the Oode of Criminal Procedure. That section provides that “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 * * There is no claim or pretense that the statements made by the defendant to the officers with reference to the letter were influenced by fear produced or threats made by them, or that there was any communication whatever made to him by the district attorney. So that there can be no question^ with reference to the competency of the evidence under this provision of the Code. The statements made by the defendant appear to have been voluntary and upon his own accord. Further objection was made to the reception of the letter in evidence, but we find no point made in the appellant’s brief; neither was there any question raised upon the argument as to the letter having been sufficiently proven or identified. It is true that the testimony of Mr. Webb and Susie, with reference to the letter’s being in the handwriting of the defendant, was somewhat impaired by their cross-examination. They were both poor readers, but it does not necessarily follow that their judgment with reference to the handwriting of the letter was worthless; having but little correspondence, and accustomed to seeing but few writings, that which has been called to their attention may have been more carefully scrutinized and more thoroughly and intimately known for that very reason. The court, in passing upon the question as to the. admissibility of a paper in evidence, only determines whether there is evidence sufficient to authorize the jury to find that it is genuine. Whether the witnesses should be believed, together with the inferences to be drawn from the facts and the circumstances, are questions for the jury. In 4 Co wen & Hill’s Hotes to Phillips on Evidence, page 476, it is said that a witness who speaks of handwriting from having seen the person write is competent, though he never saw him write but once, and that where he has seen a party write, but has forgotten the 'character of his hand, he may refer to that writing to re-touch and strengthen his recollection. In 1 Greenleaf on Evidence (section 577) it is stated to be sufficient for the purpose that the witness has seen the party write but once, and then only his name; that the proof in such cases may be very light, but the jury will be permitted to weigh it. In The Commonwealth v. Levy (2 Wheeler Criminal Cases, 245) a witness was called to prove the handwriting of the defendant, who stated that he had seen him write his name once, and believed the signature to the letter to be his handwriting. The defendant objected to the reception of the letter in evidence, on the ground that there had been'no legal proof of his handwriting, but it was held that there had been some evidence to prove the signature to the paper, and that whether the evidence is sufficient to establish the fact was a question for the jury and not for the-court. In Magee v. Osborn (32 N. Y. 669) it was held that the question of tjie genuineness of the defendant’s signature, where a,witness had sworn that he had seen the defendant write and that lie believed the signature to be genuine, was sufficient evidence to require its submission to the jury. And in Hammond v. Varian (54 N. Y. 398) it was held that where one has seen a party, whose signature is in question, write his name once, or has held Iris note acknowledged and conceded to be genuine, he is a competent witness as to the genuineness of the signature. Lott, Oh. C., speaking with reference to the objection to the testimony that the witness had not shown himself sufficiently acquainted with the defendant’s handwriting to testify as to its genuineness, said: “ The objection was not tenable. They had some means, although slight, of enabling them to judge whether the signature was that of the defendant. Yet, sufficient, in their belief, to express an opinion in reference thereto. The extent of their knowledge and the weight or effect to be given to their opinion were proper matters for the consideration of the jury.”

We thus have a letter arriving at the post office near the residence of the Webbs, addressed as we have already stated, with a letter inclosed addressed to Susie, with a return envelope with the postage paid thereon addressed to Hugh Foley, 53 Bowery, Phoenix House, N. Y.; the letter inclosed purports to have been written by the defendant. After his-arrest he asks the officer for permission to communicate with his brother. He then writes upon a paper handed him for that purpose the same address appearing upon the envelope for the return letter. He then states to the detective, in answer to his query, that the address is the same as that upon the envelope inclosed in the letter addressed to the girl, and that it was that “ letter that got me here,” evidently meaning that it was the information derived from the letter that enabled the officers to find him and make the arrest. He then asks about the effect of the letter, and as to whether he can play crazy with reference thereto, thus recognizing its importance and his own acts in writing the same. In the letter he asks Susie to write him, and tells her to inclose the answer in the envelope which he had inclosed. Both Susie and Mr. Webb recognize the handwriting in the letter as that of the defendant’s. All these conceded and undisputed facts, taken together in connection with the inferences which the jury properly may draw from the surrounding circumstances, are most convincing, and admit of but one rational conclusion. They not only make a case for the admission of the paper to the consideration of the jury, hut also furnish ample evidence to justify a finding beyond a reasonable doubt that the letter was his.

A question is also made with reference to the charge of the court upon the question of the intoxication of the defendant at the time of the affray, although no request was made to charge differently,'or exception ta'ken to the charge as made. It is contended that the charge is so unintelligible as to leave the jury in doubt with reference to the true rule, and that for this reason a new trial should he ordered. It is evident that the judge had a mistaken idea of the law upon the subject, for he appears to have instructed the jury to the effect that if the defendant was totally intoxicated so as to be wholly irresponsible from the intoxication he would be entitled to an acquittal. This is not the rule where the intoxication is voluntary, unless accompanied with mania. A man cannot escape from the natural and inevitable consequences of his acts by reason of his voluntary intoxication. But murder in the first degree requires deliberation and premeditation, and where a particular purpose, motive or intent is a necessary element to constitute a particular species or degree of crime, the fact of intoxication at the time must he taken into consideration for the purpose of determining the motive or intent with which the act was committed. But the charge in this respect was more favorable to the defendant than it should have been, and it consequently did him no harm. The judge subsequently read to the jury the provisions of section twenty-two of the Penal Code, which 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.” Here we have the statute upon the subject in clear and concise language, with the attention of the jury specifically called thereto. And then after the reading of this provision the judge concludes his charge upon the subject by referring to The People v. Fish (125 N. Y. 136), and quoting therefrom the following: To sustain an indictment for murder in the first degree, the People are bound to show that the defendant intentionally killed the deceased, with premeditation and deliberation. In weighing the evidence as to premeditation and deliberation the jury is bound to take into account the condition of the defendant. If, however, it appears that the defendant, although intoxicated at the time of the homicide, 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.” It would seem that this quotation, together with the reading of the provisions of the Code, must have made clear to the minds of the jurors the true rule upon which they were to determine the question of the intention and the deliberation and premeditation under which the defendant acted. It appears that the defendant drank from the alcohol produced by George twice; that he also drank from the whiskey purchased by Webb once or twice, together with a little of the beer. The amount taken by him at the time of the drinking does not appear. Webb states that he did not appear to be drunk. After the affray he ran out of the house, then sent for his clothes, talked about the knife, what he had done and then went away. The next morning he talked about the transaction, told about the trouble that he had had with George, and how he had stabbed him, thus indicating that he had a pretty clear recollection of the transaction. There is nothing appearing in the evidence in reference to Ms condition which distinguishes the case from that of The People v. Fish (supra).

This case is clearly distinguishable from that of The People v. Leonardi (143 N. Y. 360). In that case the homicide was committed without provocation and without motive by a person who at the time was very much intoxicated. In that case the court charged in substance that if the defendant had intelligence enough to know right from wrong, that the act he committed was wrong, he was responsible; but if he was bereft of reason, sense and judgment, and that without knowledge or intent as to the result of his act he was irresponsible, and that this was all the court would say as to the intoxication as bearing upon the defendant’s capacity to distinguish between right and wrong. Subsequently the court charged that if the defendant was sober enough to know what he was about, that the act was wrong, then his intoxication and motive would both exist and the one would not destroy the other; that he must be completely intoxicated in order to be excused, etc. This charge for obvious reasons was held to be erroneous.

Upon the trial the defendant showed by a witness that at the time of the homicide he was sick. The witness was then asked by the district attorney to state what was the matter with him, and the witness answered, giving the character of his disease. It is now claimed that this "was error, and that the answer tended to prejudice the defendant before the jury. In the first place no exception was taken to the admission of the evidence, and in the next place the defendant disclosed the character of his difficulty on two occasions, one as an excuse for Ms going away the morning after the homicide, and the other for the purpose of showing that he was in the hospital and not in the prison on Blackwell’s Island at the time of Ms arrest. It is quite apparent that at the time of the trial it did not occur to the defendant that the evidence was harmful. He then, evidently, had more confidence in the intelligence and judgment of the jurors. It is now asking too much of a court on review to hold that the twelve jurors, selected with the care and deliberation with which the jurors were impanelled in this case, were so weak, incompetent and utterly unfit for the discharge of the duty assigned to them that they found this man guilty by reason of the afiiiction or disease from which he was suffering.

It would seem that in the presenting of this case the impression prevailed that a murder trial is conducted under different rules, and in a different manner from ordinary trials. If such an impression prevails it is a mistake. If improper evidence is admitted the attention of the court should be called thereto by an exception. If the judge misstates the law or the evidence, his attention should be called thereto, and an exception taken whilst he has an opportunity to correct his instruction to- the jury. To dispense with these safeguards would enable attorneys to trick the court in nearly every trial that takes place. They may sit by, keep still and permit ¡incompetent evidence to be received, by their conduct impliedly consenting-to its reception, and then, after a verdict against them, insist, that it was error, and the judgment should be reversed. It is. provided that “ when the judgment is of death, the Court of Appeals may order a new trial, if it be satisfied that * * * justice requires a new trial, whether any exceptions shall have been taken or not in the court below.” (Code Criminal Procedure, section 528.) Power, is here given to the Court of Appeals to order a new trial when justice requires it. ' This power, however, should be exercised only in cases where manifest injustice has been done, and where it is apparent to the court that a different result ought to have been reached. (People v. Kelly, 113 N. Y. 647; People v. Cignarale, 110 N. Y. 23; People v. Fish, 125 N. Y. 136-144.)

The judgment and conviction should be affirmed.

O’Brien, Bartlett and Vann, JJ., concur with Martin, J., for reversal; Andrews, Ch. J., and Gray, J., concur with Haight, J., for affirmance.

Judgment reversed.  