
    The People of the State of New York, Respondent, v. Tuefil Tuczkewitz, Appellant.
    1. Capital Case-—Expert Witness — Hypothetical Question. On a trial for murder the refusal of the court to permit a hypothetical question, assuming that the defendant had been subject to epileptic fits, to be put to a medical expert, on the ground that there had been no proof of epilepsy, is not objectionable where, at the time of malting the ruling, the only evidence in the case on the subject was that the defendant had fallen and become unconscious on a certain occasion, without any testimony as to whether it was an epileptic seizure or a mere fainting fit.
    3. Hypothetical Question — Mental Condition. When, on a trial for murder, a hypothetical question put by the defendant to a medical expert concludes by asking his judgment as to what would be the man’s mental condition at the time of the act, it is proper for the court to exclude an answer that, under the circumstances, the witness did not believe the man would be responsible for his acts, and to confine the witness to stating what the man’s mental condition would be.
    3. Criminal Case — Undisputed Testimony. The rule observed in civil cases, that direct, clear and undisputed testimony, which is not in itself incredible, given by a disinterested witness, who is unimpeached and uncontradicted and in no way discredited, must be taken by the jury as true, has no application.to criminal cases.
    4. Homicide—Fit of Passion. The fact that a fatal act was done in anger, and while in a fit of passion, does not save it from constituting murder in the first degree, if it was done with deliberation and premeditation.
    5. Charoe to Jury—Consideration of Established Fact. A refusal by the trial judge in a capital case to charge the jury that they must consider a fact, if established by the evidence, and his charging instead that they might do so, held not to constitute an error calling for a reversal of conviction, in view of the state and character of the evidence in the case, and of the fact that the jury were subsequently instructed that they must consider all the established facts on the subject in question.
    (Argued March 13, 1896;
    decided April 14, 1896.)
    ' Appeal from judgment of the Court of Oyer and Terminer for the city and county of New York, entered upon a verdict rendered February 28, 1 895, convicting the defendant of the crime of murder in the first degree.
    The facts, so far as material, are stated in the opinion.
    
      
      Henry D. Sedgwick, Jr., and Herman L. Roth, for appellant.
    The court erred in refusing to charge that the jury are bound to believe the .testimony of any disinterested witness which is not contradicted, and which is not in itself improbable; that Officer Kupfrain, who testified to this defendant’s fit, to his hot temper, to his quarrelsome disposition, to his fights, his fits of passion, and to his confused actions consequent thereupon, is such a witness. (Lomer v. Meeker, 25 N. Y. 361 ; Kavanagh v. Wilson, 70 N. Y. 177; Plyer v. G. A. Ins. Co., 121 N. Y. 689 ; Kelly v. Burroughs, 102 N. Y. 93 ; Arms v. Arms, 13 N. Y. S. R. 196; Johnson v. Doll, 65 N. Y. S. R. 275 ; Storey v. Brennan, 15 N. Y. 524.) The court erred in refusing to charge that even if the jury find that at the moment of shooting the defendant had sufficient reason to know the nature and quality of his act, and that it was wrong, but, nevertheless, that he would not have done it but for a sudden fit of passion, they cannot convict him of the crime charged in the indictment. (People v. Sullivan, 7 N. Y. 396 ; Leighton v. People, 88 N. Y. 117; People v. Mangano, 29 Hun, 259.) The court erred in the following ruling: A long hypothetical question, strictly based on the evidence in the case, was asked of Dr. Barber, a witness for the defendant; it. assumed the facts concerning the mental condition of the defendant, of which there was evidence in the case, to which the witness replied: “ Under those circumstances I do not believe the man would be'responsible for his acts.” “ The Gouvfc: Strike out the answer. That is not for you to say.” (People v. Barber, 115 N. Y. 475 ; People v. McElvaine, 121 N. Y. 256 ; Brubaker v. Okeson, 36 Penn. St. 519; Warrick v. Grosholz, 3 Grant’s Cas. 235.) The learned court erred in stating to the jury: “ There is no proof of epilepsy here.” (Code Crim. Pro. §§ 527, 528; People v. Gorman, 83 Hun, 605 ; People v. Kerrigan, 147 N. Y. 213 ; People v. Cignarale, 110 N. Y. 23; People v. Stone, 117 N. Y. 483; People v. Fish, 125 N. Y. 144; People v. Taylor, 138 N. Y. 398; People v. Loppy, 128 N. Y. 629 ; People v. Trezza, 125 N. Y. 740; People v. Shea, 147 N. Y. 78.)
    
      
      John D. Lindsay for respondent.
    The verdict was abundantly supported by the evidence, and the interests of public justice require that it should stand. (People v. Cignarale, 110 N. Y. 26; People v. Sliney, 137 N. Y. 570; People v. Fitzthum, 137 N. Y. 581; People v. Taylor, 138 N. Y. 398; People v. Leonardi, 143 N. Y. 360, 367; People v. Driscoll, 107 N. Y. 417; People v. Kelly, 113 N. Y. 647; People v. Stone, 117 N. Y. 480 ; People v. Fish, 125 N. Y. 136; People v. Trezza, 125 N. Y. 740.) There was no error in the charge, and the exceptions thereto, and to the refusals to charge as requested, are untenable. (People v. Sharp, 107 N. Y. 427; People v. Hovey, 92 N. Y. 554; Penal Code, § 23; Flanagan v. People, 52 N. Y. 467; Walker v. People, 88 N. Y. 81, 86 ; People v. Mills, 98 N. Y. 176; People v. Carpenter, 102 N. Y. 238, 250 ; McKenna v. People, 81 N. Y. 360 ; Sindram v. People, 88 N. Y. 196; People v. Fanning, 131 N. Y. 659 ; People v. Sliney, 137 N. Y. 570, 580 ; People v. Leach, 146 N. Y. 392, 396.)
   Haight, J.

On the eighth day of January, 1895, a little after five o’clock in the afternoon, at the office of one Adolph Lissner, at hfo. 228 East Sixth street, in the city of hiew York, the defendant Tuefil Tuczlcewitz shot and killed one Adolph Balensiefer. The defense interposed upon the trial was that of insanity. There is some little variance in the testimony of the witnesses as to the minor details, to which attention will be called, but the controlling facts are without material dispute.

The history of the case is substantially as follows:

The defendant was born in Russian Poland in the year 1858; his father had engaged in the revolt of Poland and had been banished to Siberia ; after some years of banishment he escaped and fled to France, where he was last heard from;. his mother was engaged as a domestic in a hotel, taking care of rooms. The defendant, when a young man, learned the trade of a weaver, and engaged in that business until he was about twenty-five years of age, when he came to the United States. He worked at his trade for a few weeks near Philadelphia, and then, hearing that his mother was sick, returned to Russia. He remained with her, however, hut a short time, when he again returned to this country .and worked at various occupations, as dish washer, as fireman and assistant cook in a restaurant, and as a coppersmith. His chief employment was with George Kupferjan, who kept a restaurant at Ho. 2046 Third avenue, in the city of Hew York, for whom he worked as a cook off and on for seven years. In June or July, 1894, he heard that his mother had died, and he again returned to Russia, where he received as his inheritance from her estate the sum of $800. He remained in Russia hut a few days, and again returned to the city of Hew York, arriving about the middle of September. He deposited his money in a bank, and then sought a business in which he could engage. On the first day of October he saw an advertisement in one of the papers of Adolph Lissner, a real estate broker, announcing an interest in a restaurant and bakery for sale. On the same day he called upon Lissner at his office, at Ho. 228 East Sixth street, and was by him advised that the restaurant and bakery advertised for sale was that of Adolph Balensiefer, at 485 Third avenue. The defendant then went to Balensiefer’s, looked over the place, and entered into an arrangement with him to give him $J00 for a half interest in the business, with the understanding that they should become co-partners and that he should be permitted to draw from the business twenty-five dollars per week. That evening they returned to Lissner’s office, stated the arrangement to him, and directed him to draw the necessary papers, which he did, and on the next day they were executed and the transaction closed. The defendant then went to work at the new place in which he had purchased an interest, but within a few days he again called upon Lissner and complained that Balensiefer was not treating him fairly; that he had been informed that Balensiefer was a rascal; that he kept his daughters in the office and they took in all the money. Lissner' then went with him to the bakery, saw Balensiefer, and apparently adjusted the differenees between them. But this lasted but for a few days, for about the ninth of October the defendant again called upon Lissner and told him that he did not like the business, and wanted to get out of it. This resulted in another interview with Balensiefer, in which he was asked to buy back the defendant’s interest, but this he declined to do; but it was finally arranged that he should give the defendant, one hundred dollars, the partnership should be dissolved, and that Lissner should again advertise the business for sale, with the understanding that the defendant should have half the proceeds of any sale which should be effected. Lissner then again advertised the business for sale, but no purchaser came until the fifteenth of November, when a man by the name of Richard Reinhold was found, who entered into an agreement with Balensiefer to pay him five hundred dollars in cash and engage in the business at once, with the privilege of deciding at the end of a week whether he desired to become a partner or the sole proprietor, by paying an additional sum of nine hundred dollars. It was also agreed that in case the business did not prove to be what it was represented, Balensiéfer should return to him the five hundred dollars paid. At the end of the week Reinhold entered into a co-partnership with Balensiefer, but did not pay him anything in addition to the five hundred dollars. Lissner advised the defendant that he was entitled to one-half of the five hundred dollars paid in by Reinhold. The defendant then called upon Balensiefer for the money, wTho told him that he did not think he was entitled to anything until the entire business was sold, but that to- end the matter he would give him two hundred dollars cash for his claim. This the defendant refused to accept, and an action was brought therefor in one of the District Courts. A judgment was obtained for the sum of two hundred and fifty dollars, and execution was issued thereon against Balensiefer. The execution, however, was returned unsatisfied by the city marshal, who reported that Balensiefer had transferred his interest in the concern to his wife. Various plans were then talked over between the parties with reference to the sale of the business and a settlement of their difficulties, but nothing definite appears to have been accomplished, and it seems that the defendant had reached the conclusion that neither Balen, siefer nor Lissner intended to effect any settlement with him.

At the time of the homicide Baiensiefer and the defendant had met Lissner at his office for the purpose of arranging a settlement. Lissner was seated at his desk in a corner of the room, Baiensiefer in a rocking chair on the same side of the room, but a few feet therefrom, and the defendant in a chair back of Lissner, but facing Baiensiefer. Lissner testified that the defendant then said, “ Well, Baiensiefer, are you ready to make the arrangement we spoke about yesterday ? ” That Baiensiefer answered, That is what I am here for; are you ready? ” And the defendant said, Yes, but I want to light my cigarette first.” At that the defendant arose, walked into the next room, where the matches were,, and shortly thereafter he heard a shot; turning to the right he saw the defendant with a smoking pistol in front of Baiensiefer pointing against his body; the next instant Baiensiefer jumped up and both came back of Lissner’s chair, and as he got up lie heard a second shot; as soon as he turned around the defendant pointed the pistol at him and he grasped it in his hand, and with the other hand seized him by the throat; they struggled out into the hall, and thence along the hall until they reached the end by the janitor’s room; then Lissner succeeded in wrenching the pistol from the defendant’s hand, and threw it back into the kitchen; the janitress then came to his assistance and they pulled him along toward the stoop and held him until Officer Kennell came and took him back into the office. The officer pointed to Baiensiefer, who was-then dead, and asked the defendant if he shot that man, and he said, “Yes, and I am sorry I didn’t shoot the other one,” pointing towards Lissner.

The defendant’s version of the affair is to the effect that they were talking for a while, whilst sitting in their chairs," and that then he said, “ I want to smoke a cigarette.” “ I went into the adjoining room and got a match and lit a cigarette, then I took out my pistol, I kept the revolver in my hand, on my hack, so that the other one should not see it. * * * Then I went to Balensiefer and stood before him in this position (illustrating), and when I went to Balensiefer I kept my hand at the back and I told him, c Well, now, we want to settle everything,’ and I asked him if he wanted to give me two hundred dollars, and he said no, and I told him again to give me the one hundred at least, and I will be satisfied with this one hundred, and everything will be settled, and he said he will not give one cent. I got excited. I took the pistol and shot him. He got hold of my shoulders with both hands. I took my hand, put it in his face and pushed him back towards the chair upon which Lissner was sitting. He was lying there and I was lying (indicating) with the abdomen on the chairs, and I had my hand in his face and he bit my finger (indicating the index finger of the right hand). When he done this I got into a rage and shot him again. Then Lissner came while I was still lying upon the chair and took the revolver away from me.”

. Other police officers arrived shortly after Officer Kennell,' and Officer Hughes took the defendant to the station house. On the way he asked the defendant why he had killed Balensiefer, and he said they had skinned him out of seven hundred dollars. Hughes said to him, “ .Don’t you know yon have committed an awful crime ? ” and the defendant replied, “ Well, I don’t care.” Hughes said, “Don’t you know that it is a terrible thing to do that? You are liable to be punished.” The defendant answered that he did not care, that he was going to shoot himself, and would have shot the. other fellow too. Hughes asked him whom he meant, and the defendant said, “ The notary public; he helped him to skin me. They were both in the deal.” Hughes inquired what the deal was about, and the defendant answered, “ You will see when we get to the station; I have letters in my pocket which I wrote.” At the station house the defendant again repeated his avowal of the deed, and expressed his regret at not having killed Lissner also. Upon being searched there were found in his pockets a box of thirty-two calibre cartridges, a business card of Balensiefer & Company, No. 485 Third avenue, a passport, citizenship papers, the original partnership articles between himself and Balensiefer, thirty-six cents in money and two letters written by himself, one dated January second and the other January eighth, 1895. The first letter was addressed to the authorities of the city of New York. In it he said that Balensiefer and Lissner were under the same cover, and that he had made up his mind that blood should be atoned for in blood, and that he intended to kill them both.” The last letter was addressed to William Netterman, 202 East Sixth street, with whom he lodged. It is as follows: “ Having decided to die I want to beg of you to go to Court after January 11th and take out the promissory note against Balensiefer, and if yon can get a few hundred dollars more out of it he would like to have his body cremated, and that all he had belonged to Netterman.” When the pistol was shown to him he identified it as the one with which he did the shooting, and stated that after the writing of the letter of January" second they put another advertisement in the papers, and that he dropped his intention to shoot them and only wanted to shoot himself, and that on the day of the homicide it was his intention to shoot himself in order that Lissner and Balensiefer should be exposed and should be put into the penitentiary.

Taking the defendant’s own version of the affair, we think it fully sustains the verdict of the jury. Balensiefer had obtained from him seven hundred dollars, and had returned but one hundred. The defendant had thus been deprived of the greater portion of his fortune, and he evidently believed that Balensiefer and Lissner, acting together, had cheated him out of his money. Whether this belief was well founded is quite immaterial. Believing it furnished the motive under which he acted. That he deliberated and premeditated upon committing the homicide clearly appears by the letter written by him on the second of January, and that the design then formed continued until the act was consummated, is apparent from the manner in which he equipped himself on the day of the shooting with a revolver, his going into an adjoining room, taking it from his pocket, hiding it at his back, then returning to Balensiefer, demanding the money, and shooting on his refusal to deliver it. All of the statutory elements constituting the crime charged are here disclosed and established' by the defendant’s own testimony. Was he responsible ?

Section 21 of the Penal Code provides that “A person is not excused from-criminal liability as an idiot, imbecile, lunatic or insane person, except upon proof that at the time of the committing of the alleged criminal act he was laboring under such a defect of reason as either

“ 1. Biot to know the nature and quality of the act he was doing; or,

“ 2. Hot to know that the act was wrong.”

Upon this branch of the case evidence was given tending to show that when the defendant was a boy some one threw a stone which hit him on the forehead, leaving a soar; that when he was about fourteen he had an abscess on his hip ; that at one time he fell down a flight of steps and struck on his head; that at another he was skating on the ice and fell, striking the back of his head, causing pains in it. When he was seventeen he broke his arm, and after he came to this country had a toe amputated; that he indulged in self-abuse, and after he became twenty-two had'the gonorrhoea and subsequently syphilis, from which he had recovered. He was a great smoker of cigarettes, hot tempered and 'quarrelsome. On one occasion, when, cooking for Kupferjan, he drank a bottle of beer, and shortly thereafter everything became dark before his eyes, and he suddenly became unconscious, fell over, became rigid, and did not come to for several minutes. When his mother'was sick she would break out suddenly and cry and laugh, often changing from one to the other; would scold him and then be good, and was filthy in the bed in which she was sick. Several physicians were sworn as experts,-in which we find conflicting views as to his mental condition. The defendant testified that he knew that the punishment for murder in the first degree was death and that he knew it was wrong to kill.

A careful study of the case leads us to the conclusion that the verdict of the jury is amply supported by the evidence; indeed, his sanity would seem to be demonstrated by his own testimony and by his actions and declarations at the time of the homicide. Immediately after his arrest he was taken into the room where the homicide took place and confronted by the dead body of Balensiefer. ' He then stated that he did the shooting, and within a few minutes thereafter gave his reasons for so doing. He would not acknowledge that he was sorry, but knew that it was a sin, and that the crime was punishable by death. It would thus seem that at the time he not only knew the character of the act, but that it was. wrong.

The exceptions relied upon by the defendant chiefly pertain to the charge of the court. Some criticism, however, has. been made with reference to two rulings upon the trial. The first was with reference to a hypothetical question put to one of the'medical experts by the counsel for the defendant, which was objected to by the counsel for the People, as assuming facts that had not been proved. The question assumed that the defendant had been subject to epileptic fits ; the court remarked that there was no proof of epilepsy here. The ruling Avas not excepted to, but the examination of the witness proceeded with reference to epilepsy and epileptic fits, after Avhich the question was renewed,, assuming that the defendant was subject to epilepsy, and it Avas answered. At the time the court made its remark that there was no proof •of epilepsy, the only evidence upon the subject was that given in reference to the defendant’s falling whilst in the kitchen and becoming unconscious, to which attention has already been called. Ho evidence at the time of the ruling had been given as to whether it was an epileptic seizure or a mere fainting fit. The ruling, therefore, at that time was not objectionable, and if it Avas, it was cured by the subsequent ruling permitting the question in substantially the same form to be answered.

Again, Dr. Barber, in answer to a hypothetical question-which concluded in asking for his judgment as to what would be the man’s mental condition at the time of the shooting,, answered that under the circumstances he did not believe the man would be responsible for his acts. This answer was stricken out, the court remarking that “the responsibility for crime or act has involved in it not only a medical principle, but also a legal. Give us an answer to the question. He asks what his mental condition was, not whether he is responsible or not.” To this the witness answered, “ I should think his mental condition would be in a very excitable condition, and that he would not realize what he was doing'.” We think the ruling of the court was proper. The first answer given embraced a conclusion of law which was not called for by the question, or proper to be included if it had been. The last, answer given was proper in form, and was a complete answer to the question.

At the conclusion of the evidence the defendant asked the court to charge “ that the jury are bound to believe the testimony of any disinterested witness which is not contradicted and which is not in itself improbable; that Officer Kupfrain, who testified to this defendant’s fit, to his hot temper, to his. quarrelsome disposition, to his fights, his fits of passion, and to his confused actions consequent thereupon, is such a witness.” The court declined to so charge, and the defendant took an exception.

The appellant has submitted an earnest and elaborate argument in support of the proposition embraced in his request. It; therefore, demands a candid consideration, although we had supposed that this question had been long settled, and no longer remained open for doubt.

The cases upon which the appellant relies are all civil, and not criminal. He quotes largely from the case of Lomer v. Meeker (25 N. Y. 361-363).

In that case the action was upon a promissory note for the sum of a thousand dollars, and the defense was that it was an accommodation note, made for the purpose of discount at a. usurious rate of interest, and that one hundred dollars had been paid as usurious interest. The evidence upon the trial on the part of the defendant was undisputed, and established a complete defense to the action. The court, on review, speaking in reference thereto, says: “ The witness was not impeached or contradicted. His testimony is positive and direct, and not incredible upon its face. It was the duty of the court and jury to give credit to his testimony. The positive testimony of an unimpeached, uncontradicted witness cannot be disregarded by court or jury arbitrarily or capriciously. They are-bound to believe, for judicial purposes, such testimony, and it would in an instance like this, be the clear duty of the court to set aside the verdict of a jury founded upon a disbelief of clear, uncontradicted and undisputed evidence.” In Kavanagh v. Wilson (70 N. Y. 177), Eabl, J., says: “ It is undoubtedly a general rule that when a disinterested witness, who is in no way discredited, testifies to a fact -within his own knowledge, which is not of itself improbable, or in conflict with other evidence, the witness is to be believed, and the fact is to be taken as legally established, so that it cannot be disregarded by court or jury.” It will be observed that the words “ unimpeached,” discredited ” and “ not incredible ” are used in the cases, but we find no such words in the request. A witness may be discredited even when not contradicted. The examination may disclose that the witness was of bad character, a criminal and perjurer, and yet it may not be within the power of a party to contradict his testimony. His manner upon the witness stand, his halting and quibbling in answering questions, may satisfy both the court and the jury that he is swearing falsely, and yet no witness may be in existence that could contradict his testimony. He may have told a probable story, and yet it may have been false and rendered incredible by reason of his character and manner.

The rule, however, has no application to criminal cases* In civil cases, the jurors are not the sole judges of the facts. It is only the controverted questions that are submitted to them. The credible, unimpeached, undisputed evidence is for the court, and it may non-suit or direct a verdict thereon in favor of either party, as the facts may require. Hot so, however, in criminal cases. True, the court may advise an acquittal in criminal cases, under a provision of the Code of Criminal Procedure (Section 410). But it can do no more. It cannot order or even advise a conviction. The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided by the Code (Section 392), but, by section 419, it is provided: “ On the trial of an indictment for any other crime than libel, questions of law are to be decided by the court, saving the right of the defendant to except; questions of fact, by the jury.” And, by section 420, it is provided that: “ In charging the jury, the court must state to them all matters of law which it thinks necessary for their information in giving their verdict; and must, if requested, in addition to'what it may deem its duty to say, inform the jury that they are the exclusive judges of all questions of fact.” It will thus be seen that the rules of evidence in civil cases are applicable also to criminal cases, except that in criminal cases the jurors are the exclusive judges of all questions of fact.

The question presented is, therefore, answered by the express provisions of the Oode. This enactment is but a re-assertion of the common law. In People v. Upton (38 Hun, 107-109), it is said that “ it is the true theory and fundamental principle of the common law, in trial of criminal cases, for the court to adjudicate upon all questions of law, and for the jury to adjudicate upon all questions of fact.” (Duffy v. People, 26 N. Y. 588; McKenna v. People, 81 N. Y. 360 ; Howell v. People, 5 Hun, 620 ; affirmed, 69 N. Y. 607; Commonwealth v. Anthes, 5 Gray, 185; Pennsylvania Co. v. Versten, 15 L. R. A. 798-800 ; 2 Thompson on Trials, section 2418 ; 29 American and English Encyclopædia, 766.)

The defendant also asked the court to charge, that if the (jury find that, at the moment of shooting, the defendant had sufficient reason to know the nature and quality of his act, and that it was wrong, but that, nevertheless, he would not have done it but for- a sudden fit of passion, they cannot convict him of the crime charged in the indictment.” This was refused, and we think properly. He undoubtedly was angered, and did the shooting whilst in a fit of passion. But if it was done with deliberation and premeditation, it would be murder, as charged.

The defendant also asked the court to charge, “ that if the jury believe that the defendant’s mother, in her lifetime, was insane, and that insanity is hereditary, they must take that fact into consideration in determining the question of the defendant’s insanity at the moment of the shooting.” The court declined to charge that they must, but charged that they may take into consideration any fact which is established in the case ; and if they believe those facts are established, they may take them into consideration. An exception was taken by the defendant.

We think-that as an abstract proposition of law, the trial court was wrong in using the word “ may ” instead of must,” for it was the duty of the jury to take into consideration all of the facts established by the evidence, and it had no option to disregard such facts in part. But, notwithstanding this, we do not regard the instruction as requiring a new trial. The court was not required to charge in reference to specific items of evidence selected by counsel, but could only properly be called upon to charge generally with reference to the facts proved. The court had already charged fully upon the subject, and subsequently expressly charged that the jury must consider all the evidence bearing upon the defendant’s mental capacity,” thus, in effect, reversing the ruling excepted to.

The evidence in reference to the mother’s insanity is very meagre and unsatisfactory. Certain acts have been described. Th® cause or duration have not been given. She appears to have been a woman at service in a hotel up to about the time that the defendant was called home in consequence of her sickness. She was about sixty years of age at the time she died. There is no other evidence tending to show that her insanity was hereditary; there is no evidence that her mind was in any manner affected in early life. Whether her trouble resulted from hereditary taint, her period •of life, or other causes, we are left without the means of ■ascertaining, so that in case the court had declined to charge ■as requested, and withheld its further comments, there would have been no error, and in view of the subsequent charge made upon the same subject we think the ruling should be disregarded.

The trial judge indulged in some comments with reference -to the pardoning power of the governor and the duty of jurors which have been criticised by counsel. The comments might properly have been omitted. Some of the remarks were withdrawn, others modified. We discover no such ■departure from established rules as to require a new trial.

Other requests were made, but none require discussion.

The judgment and conviction should be affirmed.

Mastín, J.

(dissenting). I am of the opinion that the judgment in this case should be reversed upon the grounds : 1. That the court erred in refusing the defendant’s request "to charge that, “if the jury believe that the defendant’s mother, in her lifetime, was insane, and that insanity is hereditary, they must take that fact into consideration in determining the question of the defendant’s sanity.” In response to this request, the court charged the jury that if it believed that the defendant’s mother was insane and that insanity was hereditary, it might take those facts into con■sideration, but declined to charge that it must. I know of no principle upon which it can be properly held that a jury may refuse to consider material evidence which it believes. It seems to me that the defendant was entitled to the instruction asked for, and that the defendant’s exception to the refusal of the court to charge as requested was well taken.

2. The court, in its charge, instructed the jury as follows : “ The jury have a good deal of power. If you render a verdiet against the defendant, and he feels himself aggrieved, why he can review it and reverse it. When you render a verdict of not guilty, either of the higher or lower degree, that ends it; the People cannot appeal.” This was excepted to.by the defendant. To instruct the jury that the defendant, if he felt himself aggrieved, could review and reverse the verdict, was clearly wrong. It was both incorrect and misleading. Its direct tendency was to induce the jury to find a verdict against the defendant with less consideration and upon less proof than it would otherwise require. The-natural effect of this portion of the charge was to lead the jury to believe that if the defendant was found guilty and felt himself aggrieved, he could reverse its decision and, consequently, have another ti'ial or be discharged. I can hardly imagine a statement to a jury which would be more effective to produce a conviction. This instruction could not have been otherwise than prejudicial to the substantial rights of the defendant, as its direct tendency was to deprive him of a fair consideration by the jury of the controverted questions of fact.

I do not see how a reversal of the judgment can fairly' be avoided. I think it should be reversed and a new trial granted.

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

Judgment and conviction affirmed.  