
    SUPREME COURT.
    The People agt. Felix Sanchez.
    An averment in an indictment, describing a mortal wound made by a sword " in and upon the body,” is not defective, because it does not specify the part of the body in which the wound was inflicted; nor is it defective in stating only one wound instead of two.
    Such objections are matters of form which, under the statute, maybe disregarded' as not tending to the prejudice of the defendant. Besides, they are objections which may be taken before, but not after verdict—the law on this point being the same in criminal as in civil cases.
    Where a juror, on challenge, stated that “hehad read part of the statements m the papers at the time of the homicide, and had formed a preconceived idea in regard to the prisoner’s guilt or innocence, but had no bias one way or the other; that his preconceived idea or impression would in no way influence his verdict, but he would be governed entirely by the evidence produced on the standheld, that the juror was impartial within the meaning of the law requiring jurors to be persons “ of sound judgment and well informed,” and was properly allowed to be sworn.
    The heat of passion, where there is a design to effect death by a dangerous weapon, is no excuse in law or palliation of the act, although not premeditated and not directed against any particular individual, but evinces a depraved mind and a reckless disregard of human life.
    
      New-York General Term, October, 1859.
    
      Present, Roosevelt, Clerks and Sutherland, Justices.
    
    Motion for a new trial.
    Mr. Anthon, for motion.
    
    Peter B. Sweeney, District-Attorney, opposed.
    
   By the court—-Roosevelt, Oh. Justice.

The prisoner, Sanchez, was convicted at a court of sessions of the crime of murder, in taking the life of one Curnon, his wife’s father, on the 6th of January last, at ETo. 154 Sullivan street, in the city of ETew-York, by stabbing him with a sword-cane through the lungs, in a manner which, according to the testimony, must have produced instantaneous death.

Before the execution of the sentence, a writ of error was sued out by the prisoner to bring the proceedings into the supreme court for review, in pursuance of the recent statute in relation to capital convictions in the court of sessions of this city, which gives to parties in such cases a right to a new trial if the supreme court shall be satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below. (Laws of 1855, p. 613.)

Several exceptions, however, were specifically taken at the trial, and still insisted on as grounds for reversal.

It was contended, among other objections, that the indictment was defective in not specifying the part of the body in which the wound was inflicted, and in stating only one wound to have been given instead of two.

The object of an indictment is to give to the prisoner reasonable notice of the crime with which he is charged, so that he may be enabled to prepare his defence, and also to protect him, if necessary, from a second trial for the same offence, by showing from the record the identity of the two accusations.

This indictment describes the stab as made by a sword “ in and upon the body ” of Curnon, indicting upon his body “ one mortal wound of the breadth of one inch and of the depth of three inches,” of which he “ instantly died.” The term body, in such a connection, clearly means only that part of the human frame to which the head and limbs are attached. Of what consequence is it whether the wound was given to the left side or to the right side, below the fifth rib or above the fifth rib, or whether there were two wounds or one, if both or either were mortal ? That these minute particulars are not matters of substance is evident from the well established rule that, if averred one way in the indictment, they may be proved another way on the trial. To test the objection, let us suppose that' the wound, instead of three inches in depth, had turned out to be two inches and three-quarters, would the legal consequences have been an acquittal ? Even the musty records of antiquity furnish no authority for such a proposition. If they did, we should not feel ourselves compelled to follow it. The common law is a progressive science, and one of its leading attributes is adaptation to the circumstances and spirit of the age and to the common sense of -the people, of whose actions it is made the rule, and of whose will it is the presumed exponent. The statute, too, admonishes us to disregard the mere cobwebs of former days. “ Ho indictment shall be deemed invalid, &c., by reason of any defect or imperfection in matters of form, which shall not tend to the prejudice of the defendant.”

That the defendant did not consider himself prejudiced, or likely to be prejudiced, by the alleged uncertainty of this indictment, is shown by the fact that, instead of demurring, he went to trial upon it, and had no consciousness.of the supposed error until after a verdict of guilty had been pronounced, and he was instructed by his counsel to move an arrest of judgment.

There are many objections which may be taken before, that cannot be taken after verdict. And the law on that point is the same in criminal as in civil cases.

The next suggestion relates to one of the jurors, who, being challenged, said that “ he had read part of the statements in the papers at the time of the homicide, and had formed a preconceived idea in regard to the prisoner’s guilt or innocence, but had no bias one way or the other; that his preconceived idea or impression would in no way influence his verdict, but he would be governed entirely by the evidence produced on the stand.”

The court below admitted the juror to be qualified, and it is quite obvious that if jurors are on such grounds to be rejected, it will be impossible at the present day to administer justice in cases sufficiently exciting to inspire a newspaper paragraph. Every male adult over twenty-one and under sixty, “ in possession of his natural faculties, and not infirm or decrepit, of sound judgment and well informed ” (and no other can be a juror), must read the news of thp day, and must, from such reading, form- some “ idea or impression.” If an idea or impression, therefore, is to be a disqualification, no competent juror at the present time can be found; for no man, in a land of newspapers, can be “ well informed ’’ without reading, or, with a “ sound judgment,” can read without receiving an idea or impression.”

The case of Oancemi, when last under review in the court of appeals, involved two propositions, one relating to the alleged improper allowance of a juror, and the other to the erroneous charge. All the judges agreed that there was an error in the charge, but all did not agree, nor was it necessary to the result that they should, that the juror was improperly admitted. In other words, all agreed in the propriety of a new trial, some on one ground, some on the other, and some on both. The decision, therefore, can hardly be considered as a controlling authority on either of the questions referred to— certainly not to support the proposition for which it is cited in the present case. In its strongest aspect it went no further than to hold that a juror who had both “ formed and expressed an opinion,” which was so fixed that it would require an affirmative evidence to dislodge it, was not qualified to sit as an impartial umpire between the people and the prisoner. The case of Cancemi, therefore, although it illustrates, does not dispose of that of Sanchez, and we think the principle contended for will be found so embarrassing in practice that it should rather be restricted than extended.

To understand the other points discussed by the prisoner’s counsel, a brief statement of facts is necessary. Sanchez, it appears, only a few weeks previous to the homicide, had been married to Curnon’s daughter, and had taken up his residence in the same house with his father-in-law. The family consisted of Mr. and Mrs. Ournon, their two daughters, and Sanchez. On the night in question he had possessed himself, for what reason does not appear, of Curnon’s sword-cane, or rather of the sword drawn from the cane, and with his wife was in the room of his father-in-law, the old people being below in the basement. Mrs. Ournon says:

“ My husband and I proceeded up stairs to go to bed, and found the door of the parlor, which was the room in which my husband and I slept, locked; I saw Sanchez standing by his bedside as I looked in through the small window at the head of the stairs; I said, ‘ Feelee, open the door,’ which I repeated three times; but he made. no reply; I then spoke to Sarah Jane, who was sitting up in the bed, and said, ' Sarah Jane, open the door;’ to which she answered, ‘He won’t let me;’ I put my hand to the door and gave it one shove, and it flew open, which forced me into the room, my husband must have followed me; there was no one there but Sanchez, who bounded out of the bedroom as I came in the door ; he rushed upon me and stabbed me with a sword which he held in his hand; then Sarah Jane jumped out of the bed and passed him, he turned quick and gave her a stab in the shoulder; he then turned upon my husband, I saw my husband’s hand raised; I saw Sanchez make a plunge at him with the sword-cane, I saw but one blow ; in the morning I saw my husband lying dead on the floor,” &c.

Here would seem to have been, in the common acceptation of the term, no “ premeditated design to effect the death of the person killed,” but still the act may be murder. Killing, says the statute, shall be deemed murder “ when perpetrated by any act imminently dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.” Whoever recklessly uses a murderous weapon is in law responsible for the consequences. The law does not regard the want of adequate motive as a mitigation or justification, or as evidence of that species of insanity which makes the perpetrator an irresponsible machine. Mere jealousy, like hatred or malice, may explain, but cannot excuse, the wanton disregard of human life. The object of penalties is to compel men to control their depraved minds, and to teach them not to yield to frenzied passion. In this view, what defence could it be to say that some person had told the prisoner—falsely as appears—that his wife had been unfaithful ? The rumor communicated to the injured husband might inflame passion, but, in the case of a “ dangerous weapon,” would have no tendency to show any absence of “ design to effect death,” so as to reduce the crime from murder to manslaughter. More especially was the inquiry irrelevant when the person killed, instead of being the alleged adulterer, was the father of the wife.

Is a husband, on being told of his wife’s supposed infidelity, to seize a dagger, and on the instant commence stabbing every person that comes near him, and then to quote the monstrous atrocity of the act, in connection with such rumor, true or false, as evidence of insane frenzy ? We think not, and that the question objected to by the public prosecutor, although it might as well have been allowed, was lawfully overruled, and that no injustice has been done by its exclusion.

The same remark applies to several other questions which were excluded by the court below.

A point has been, raised as to the testimony of the prisoner’s wife, who by consent was permitted to be sworn on his behalf, but who, when sworn; stated that her husband did not accuse her of any improper intercourse. This statement being sought to be contradicted by her answers before the coroner, the district-attorney objected to the question, on the ground that a party cannot impeach his own witness. Such, undoubtedly, is the rule of law. There was, therefore, no legal error in the exclusion. And as to any supposed injustice, it was sufficiently obviated by the subsequent admission of all the proceedings had before the coroner, and among them the following statement:

My husband accused me of having improper intercourse with a man named Annisetto Lajeunechette, and threatened that unless I told the truth he would stab me; he accused me of being a prostitute; I was sitting rip in bed crying at the time; my mother knocked at the door on account of his remarks ; I heard her burst in the door.”

So that if the defendant’s own witness had in Met contradicted herself, both the versions given by her were submitted to the jury to be weighed as they might deem proper. Which of -the two they believed does not appear '; but neither, it is clear, warranted or was deemed to warrant a verdict of acquittal or of manslaughter. '

The result is:

First. That the indictment, in the particulars excepted to, was sufficient, or that its defects, if any, were merely formal, and were cured by the statute of amendments and by the verdict.

Second. That the juror objected to, being impartial within the meaning of the law requiring jurors to be persons of sound judgment and well informed,” was properly allowed to be sworn.

Third. That whether information of his wife’s alleged infidelity was communicated to the prisoner or not, and whether such information, if communicated, was true or not, was an immaterial inquiry, as it in no way tended to justify the homicide or to reduce its grade from murder to manslaughter.

Fourth. That neither the evidence excluded, nor the evidence received, had any tendency to show legal insanity, or to exempt the perpetrator of the homicide from responsibility for his acts.

Fifth. That the heat of passion, where there is a design to effect death by a dangerous weapon, is no excuse in law or palliation of the act, although not premeditated and not directed against any particular individual, but evinces a depraved mind and a reckless disregard of human life.

/Sixth. That, as, therefore, there was no legal error in the rulings of the court below, and, tested by the statute “ of crimes punishable with death,” no injustice in the verdict of the jury, the application for a new trial must be denied and the judgment affirmed.

Justice Sutherland said he agreed with the chief justice in his conclusions upon the merits of the case, but could not give his assent to that part of the opinion which made or appeared to make, a prevailing public sentiment superior to the common law. He could not believe that current public opinion could in any sense be considered safer than the common law, or that it could be dignified as an element of the common law.  