
    The People of the State of New York, Resp’ts, v. Virgil Jackson, App’lt.
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    1. Practice—Postponement oe trial—When party entitled to because OF ABSENCE OE WITNESS.
    To put oil a trial on account of the absence of a witness, it must appear, first, that the witness is really material and appears to the court to be so; second, that the party who applies has been guilty of no neglect; third, that the witness can be had at the time to which the trial is deferred, and nothing less than these concurrent facts will be sufficient.
    
      S. Same—What facts insufficient.
    One of the affidavits on which the motion for a postponement of the trial was made only averred that there are two witnesses (ladies by the name of Harrington) who are material witnesses for the deponent, without the. benefit of whose testimony deponent cannot safely proceed to the trial of said indictment, as he is advised by his counsel, after fully and fairly stating to him what he expects to prove by said witnesses, and as deponent verily believes. That neither their names nor addresses nor residences can be learned, and he cannot procure their attendance at this term of the court. The affidavit of the attorney was to the effect that he had been informed that some person whose name or residence he could not learn would be a material and essential witness. The' judge denied the motion for postponemeut. Held, that the question as presented did not call for the exercise of any legal discretion. That it was destitute of merit, and was not a proper subject of review upon appeal. That the trial judge did not err in his decision.
    3. Same—Discharge of regular panel of jurors—When not error.
    On the arraignment of defendant on an indictment for murder, he pleaded not guilty, and the trial was set down for a certain date, the court ordering an adjourned term of the oyer and terminer to be held on the day named, and directed one hundred and twenty-five trial jurors to be summoned to attend at that time. These were drawn and summoned in the usual manner, and the court, because of their service, discharged from further attendance all jurors of the original panel who had attended and served during the four weeks’ session of the court. The defendant objected to and challenged the array and the panel of jurors, because of the discharge by the court of the jury originally summoned for the oyer and terminer. Held, that the dismissal of the regular panel, if erroneous, was nor within Code Criminal Procedure, section 361. That the court had the discretion to excuse one or all the jurors, under section 1033.
    4. Murder — Indictment — Variance — Error in date of crime as CHARGED IN INDICTMENT.
    The indictment charged that the crime of murder was committed on the 30th day of January, The evidence showed that it was in fact committed on the 29th of January. Held, that the variance was unimportant and properly disregarded. That it is enough that the crime was committed prior to the findings of the indictment, and that it could be so understood from its allegation. That the indictment might have been amended, but that it was not necessary to do so for the preservation of any right of the defendant.
    5. Same—Evidence—Photograph—Position of figures in.
    A photograph had been put in evidence representing a street scene, and among other houses the one occupied by the deceased, in his life-time. The witness who had seen part of the affair, and the situation of the parlies at the time that the murder was committed, was present when the photograph was taken, and placed three persons in the highway to represent the position, which according to his recollection they occupied at the time in question. Said witness’ testimony, as to that fact was objected to. Held, that it aided the witness’ real statement, and was an essential and proper explanation of the circumstances attending the "taking of the picture and of the picture itself.
    6. Same—Proof of threats when not competent.
    The defense in order to justify the defendant carrying the revolver with which the murder was committed, offered the evidence of a witness that had heard from the murdered man certain threats, but there was no suggestion that they had come to the defendant’s knowledge. Held, that the evidenee was properly excluded, that without that, they were unimportant, and that they could have had no influence upon the defendant’s conduct.
    
      7 Same—Premeditation when proved.
    After stating at considerable length, the testimony and circumstances of the murder, Held, that there was sufficient evidence of premeditation to sustain the verdict of murder in the first degree.
    Appeal from a judgment of the court of oyer and terminer, in and for the county of Oneida, entered upon a verdict convicting the defendant of the crime of murder in the first degree.
    The materia facts are stated in the opinion.
    
      A. D. Kneeland, for app’lt; Thomas S. Jones, district attorney, for resp’ts.
   Danforth, J.

The matters to be determined relate to the rulings of the court upon questions raised by defendant’s counsel before the commencement of the trial, and during its progress. The first was on an application to the court, made March 19th, for a postponement of the trial to the November term. It was refused. The court had power to grant the application, but the affidavits presented, apart from the absence of a witness, showed nothing more than that the private and personal convenience of the defendant or his counsel would be promoted by the delay asked, and the judge might well conclude that a failure to proceed, would be inconsistent with the due course of public justice. So far as the application depended on the absence of a witness, the case of The King v. D’Eon (1 Win. Blackstone’s Reports, 510), is in point. Upon a like application Lord Mansfield said, to put off a trial, it must appear,

First. That the witness is really material and appears to the court to be so.

Second. That the party who applies has been guilty of no neglect.

Third. That the witness can be had at the time to which the trial is deferred, and I believe that nothing less than these concurring facts has at any time been held to be sufficient.

In the case before us the prisoner met none of the conditions. His affidavit only averred that there are two witnesses, ladies by the name of Harrington, who are material witnesses for deponent, without the benefit of whose testimony deponent cannot safely proceed to the trial of said indictment, as he is advised by his said counsel, after fully and fairly stating to him what he expects to prove by said witnesses, and as deponent verily believes. That neither their names or addresses or residences can be learned, and he cannot procure their attendance at this term of court.” The affidavit of his attorney is, “ that deponent was informed by several persons, and among others, witnesses who were sworn before the grand jury, that there was and is a person who was an eye witness to the transaction or alleged crime with which defendant stands charged, who ran away as soon as the shooting concluded, whose name is unknown, and whose residence is unknown, and who has not divulged his secret, so that either what he saw, his name or residence, can be learned; that such is the current rumor about the village where the alleged murder occurred,” adding that in his opinion the “evidence of such witness is very material and essential to the defendant.”

The question as presented hardly calls for the exercise of any legal discretion. It seems destitute of merit, and not the proper subject of review upon appeal, but in view of the importance of the case we have considered it. The trial judge did not err in its decision.

Second. It is claimed that “the trial judge erred in overruling the challenge to the array and panel of jurors.” It was alleged that the offense charged upon the defendant was committed in the town of Augusta, Oneida county, on the 30th of January, 1888. He was at once arrested, and at the Oneida oyer and terminer commencing March 12, 1888, indicted for murder. He was arraigned on the 15th of March. He plead not guilty, and his motion to postpone being denied, the trial was set down for April 9th. The court ordered an adjourned term of the oyer and terminer to be held on that day and directed one hundred and twenty-five trial jurors to be summoned to attend at that time. These were drawn and summoned in the usual manner, and the court, because of their service, discharged from further attendance all jurors of the original panel who had attended and served during the four weeks’ session of the court.” The district attorney moved the trial of the defendant, and his counsel “objected to and challenged the array and the panel of jurors,” upon various grounds, all of which, however, save one were afterwards abandoned, the prisoner’s counsel stating “that his challenge was directed to and intended to raise the question as to the legality of the discharge by the court of the jury originally summoned for the'circuit and oyer and terminer, and which it was admitted in open court, were, after a four weeks’ session and service, discharged for the term, and this present panel summoned in its stead.”

The Code of Criminal Piocedure permits a challenge to the panel (sec. 361), but provides that “it can be founded only on a material departure, to the prejudice of the defendant, from the forms prescribed by the Code of Civil Procedure, in respect to the drawing and return of the jury, or on an intentional omission of the sheriff to summon one or more of the jurors drawn.”

The objection now relied upon indicates no error. The dismissal of the regular panel, if erroneous, is not within the section cited. That by explicit language is confined to acts of omission from a prescribed procedure. In the oyer and terminer the trial jury is formed as prescribed in the Code of Civil Procedure (Code of Criminal Procedure, § 358), and for that court whether held by original appointment or by adjournment, any number of trial jurors may be summoned by direction of the court and whensoever it deems necessary (Code of Civil Procedure, §§ 34 and 1053). So, also, in the discretion of the court a juror may be excused, and as one .may be, so may all. Section 1033. Continued service by a juror for four weeks might reasonably lead the trial court to the conclusion that public interest as well as that of the juror, required a change or permitted his relief.

Third. The indictment charged that the crime was committed on the thirtieth day of January; the evidence showed that it was in fact committed on the twenty-ninth of January. The variance was unimportant and properly disregarded. It is enough that the crime was committed at some time prior to the finding of the indictment and that it could be so understood from its allegations. Code of Crim. Pro., § 280; § 284, subd. 3. The indictment might, indeed) have been amended (Code of Crim. Pro., §§ 293, 294, 295), but that was not necessary for the preservation of any right of the defendant.

Fourth. That the court erred in the admission of evidence:

(1) . A photograph had been put in evidence, not only without objection from the defendant, but with his consent, to show the place where the homicide was committed. It represented a street scene and among other houses the one occupied by the deceased in his lifetime. Wasmuth, whose testimony is hereinafter referred to, from his own window had seen part of the affair and the situation of the parties. He was present when the photograph was taken, and placed three persons in the highway to represent the position which, according to his recollection, they, occupied at the time in question. His testimony as to that fact was objected to and its admission is assigned as error. The arrangement was not exact, but it was matter of description and served to indicate in a general way the impression left upon the mind of the witness. It aided his oral statement and was an essential and proper explanation of the circumstances attending the taking of the picture and of the picture itself]
(2) . The defendant visited the wife of Metcalf the night before the shooting and remained in her bedroom for several hours; he was there as on many former occasions he had been, for an illicit purpose, and evidence was given that the overcoat worn that night, contained a stocking with a stone in it, described by the defendant as a slung: shot. It is now made a point that the defendant was not permitted to show why he carried it. This, if well-founded,, might present a serious question, but we have carefully examined the record, especially at the folios referred to by the defendant, and find no evidence of such exclusion.
Fifth. That evidence was improperly excluded.
(1.) The shooting was from a revolver, and the defendant’s counsel, in answering the plaintiff’s case, said: “ I desire to show, if the court please, that'-Mr. Frederick Wing-assaulted the defendant about July last, in the saloon of Edward Wasmuth, in the village of Augusta Centre. That there they had a quarrel, Wing and the defendant, and that Wing threatened the defendant’s life. I shall produce an array of witnesses to show that Wing threatened the defendant’s life, and has repeatedly since. That the defendant carried the revolver which he had on his person to guard against a threatened assault by Frederick Wing. As bearing upon the question of premeditation and deliberation in the carrying of this revolver, I desire to show the fact in reference to that assault and of his threats; to show that one of those threats was made about a week before this homicide. I shall show that he purchased his revolver after that fracas,” and the trial judge replied, “ I do not think the evidence is admissible at this stage of the case, but I will allow you to proceed for the present on the line of the examination which you offer.”

The defendant’s counsel thereupon gave evidence by one witness of threats made by Wing to Jackson, and offered another to testify that he had heard from Wing similar threats, but there was no suggestion that they had come to the defendant’s knowledge. Without that they were unimportant, for if not communicated to the defendant, they could have had no influence upon his conduct. It was no-doubt competent for the defendant to explain the possession and carrying of the revolver, and he was not prevented by the court from doing so. But although a witness in his own. behalf, he gave no explanation of that fact until on cross-examination he was asked by the district attorney as to the occasion, and he explained that a week before the homicide he had taken the revolver from his drawer, and put it in the pocket of his “ best pants,” to take with him to his min to see if he could shoot a rat; ” and on the day in question, he put on “ the same pants,” the revolver still remaining in the pocket. He made no mention of Wing or apprehension of danger from any source.

Sixth. That there is no evidence of premeditation or deliberation. To us it seems otherwise. That Metcalf was killed by the defendant is not denied; that the killing was effected by one or more of three bullets discharged from the revolver into his body, is proven, and that before these-three, one other bullet had been discharged without effectMetcalf was unarmed, and ill to such, a degree as to require -and have the care, of a physician before and even on the very day of his death. How the defendant and Metcalf met, and what beyond the shooting occurred at the meeting, is partly in evidence and partly in inference.

The direct .evidence, except as it comes from the defendant, is absent at a most interesting stage of the transaction. The parties had been friends, but about a year before the homicide the defendant had formed such relations with Metcalf’s wife as permitted him to visit her at his pleasure in her bed chamber at night, and remain usually until one o’clock the next morning. There is no suggestion that Metcalf connived at this. There is some that he had been informed of intimacy between them. He occupied a room apart from his wife, but in the same house. During the last year he refused to speak to the defendant, and the latter had been informed by Mrs. Metcalf that her husband did not wish him to come to the house, or pay any attention to her or his family. So far as appears the defendant and Metcalf had after that no intercourse, and the defendant’s visits to’Mrs. Metcalf were made in the absence of her husband from home, or late at night. On the night of the 28th of January the defendant went to Mrs. Metcalf, and remained with her until after midnight. At that time he had with him, as he says, the “ slung shot ” already referred to. They had planned an elopement, and on leaving her room the defendant took with him some of her clothing; other portions he had before taken. The next day was Sunday (the 29th), and the defendant about noon went into the neighborhood of Metcalf’s house, and remained at different places m the vicinity and in sight of it until two o’ clock, when Mrs. Metcalf left her house, and the defendant at once followed her. She went to church, and so did he. It was not usual with her to do so, and with him it was the first time. At the close of service they met and walked together along the highway towards Metcalf’s house, and when about opposite his gate, Metcalf was seen coming from it, walking at a moderate pace. The defendant’s statement of the occurrence is as follows: “I was walking down from the Episcopal church with Mrs. Met-calf, and as we came down nearly opposite from Mr. Met-calf’s house, he came out of the door and began swearing at me and calling me names. Says he, “You went up to the church on purpose to walk down with my wife, did you not?’’ I denied it. Says he, “If you think so much of her why don’t you take her and take care of her?” I told him I didn’t mean any harm in walking down with her, and I didn’t see why he wanted to come out and make such a fuss about it for. I told him I didn’t want any disturbance on Sunday. He stepped in front of me; I tried to pass along; says I, “I wish you would let me pass; says he, ,££ God dam you, I will kill you.” At that he struck me. I stepped back step or two; he staggered me a little; then he clinched me by the throat, and in the scuffle we got turned around, and he got his hand over my throat and was choking me; he was on the upper hillside then; he pulled me down, or I slipped down on my knee and I fell; I was afraid that he would throw me over on my back, and I thought with the passion he was in, he would do as he said; I drew my revolver, he had me by the throat, as I said, and I doubled my head down to keep his thumb from pressing my throat; I did not take any aim when I drew my revolver; he was tiying to get his other hand hold of my throat; as I fired I threw my hand up; I don’t remember of firing but twice; it seems I did shoot three times; then I struggled to regain my feet, and got part way up; I knocked his left hand away that he was trying to get hold of my throat with, and he changed his other hand and got hold of my coat and run his knuckles up in that- shape and threw my head over; at that instant I threw my hand up and fired; that was the last shot; immediately he began to sink down gradually, and I looked at him and I thought he was fainting, I didn’t know that he was mortally wounded; he settled down right in front of me, close to me; right at my feet; Mrs. Metcalf started to go down and call Mr. Williams; at least I supposed that was the object; she turned to me and she says: “I wish you would go and call him;” I went down to the door and told Mr. Williams I had shot Nort, and I wished he would come out and help •get him \n the house.

Did this actually occur ? Did Metcalf press the defendant, impede his passage and strike him ? Did the defendant attempt to escape from his attack? Was the- assault so sudden and violent, and the danger so imminent, that no time was left for escape ?

There was no pretense that Metcalf was armed, or that the defendant thought he was armed.

On cross-examination the defendant .said Metcalf' had nothing in his hand, and that.he did not at the time believe that Metcalf intended to kill him.

Were these things as related by defendant? Did he go to church for any other purpose than to walk home with Metcalf’s wife, and did he do so to incite Metcalf, and remain with her in order to carry out with deliberation a design already formed, and did he kill Metcalf after premeditation, and intentionally, in pursuance of that design, and not in the preservation of his own life or in the heat of blood ? It was for the jury to say. They were not bound to believe, the defendant’s -story, even in the absence of other evidence, but there was a witness to a part of the occurrence.

One Wasmuth, a store-keeper and house-keeper in the village, living next door to Metcalf’s, knew both parties. On the day in question he was at home; his attention was attracted by pistol reports; he went to the window and in plain sight saw the defendant, Mrs. Metcalf and Mr. Met-calf; he describes their position; he says both were standing, a little space between them; neither had his hands upon the other; Metcalf was two or three steps from Jackson, his left side towards him, his head over his shoulder,, and he looking at Jackson; his arms were by his side; as-the witness got to the window he heard another report and saw the flash of the pistol from Jackson’s right hand; his left hand was by his side; Metcalf took three steps, his head dropped on his breast and he fell to the ground motionless; the witness was looking at them and saw no-demonstration on the part of Metcalf towards Jackson; this was the last shot; he went at once to the spot and saw no indications of any struggle in the snow, nor marks on Jackson’s face or on his neck; there are other circumstances, enough in some reasonable view to satisfy the jury that there was no mutual combat, and that the aggression and violence were altogether on the part of the defendant in carrying out a deliberate design to kill; he had provided means necessary for its effectual perpetration; he had owned the revolver, a five-shooter, for some months, since the preceding August; he had habitually kept it in a table drawer in a room occupied by himself and another person; on this day he took it with him; was it by accident" or for a purpose? He knew of-Metcalf’s objections to any attentions on his part to Mrs. Metcalf; as his visits before had been in the dark so as to avoid the husband, did he on this occasion in open day in her company solicit his observation, hoping -thus to sting and provoke him to an altercation, himself ready with a deadly weapon to determine the result and so remove the only obstacle to his unchallenged possession of the woman he had debauched and whom he still "coveted? But if the defendant, smarting under the provocation and affrighted by the attack of the husband, did for a moment lose his own understanding, was there not time for reason to resume its seat, before the mortal wound was given? He was a larger and. stronger man than his assailant; his escape by flight was unimpeded; his pistol was in his hip pocket, over it an undercoat, upon that an overcoat, yet he contrived, and without a serious attempt either at flight or effectual resistance, where both were possible, to overcome the obstacles 'presented by his clothing and possess himself of the weapon, A jury might fairly say, not only that the pistol was with him as a mode of preparation, hut that in the manner of possessing himself of it when the. use was desirable in the perpetration of his design there was manifested, such exercise of thought and contrivance as denoted the presence of judgment and reason, rather than the violent and ungovernable passion, either of fear or anger. They have, indeed, said hy their verdict that the circumstances of the case and the credible evidence point with irresistible force to a crime committed intentionally and with premeditation and deliberation.

Some other exceptions were taken by the learned counsel for the defendant. They are unimportant. So'right of the defendant was prejudiced by any ruling during the trial; we find no misdirection on the part of the judge, nor any reason to doubt that the verdict was reached after a fair and full consideration of the case by the jury. We think that it reflects the very truth of the issue and justice requires that it should be made effective.

The judgment and conviction, therefore, should be affirmed.

All-concur, except Gray, J., not voting.  