
    The People of the State of New York, Respondent, v. Chiara Cignarale, Appellant.
    The power to grant a new trial on appeal from a judgment of conviction in a capital case, vested in this court by the act of 1887 (Chap. 493, Laws of 1887), is the same as that theretofore vested in the Supreme Court; the act does not confer any new power not previously exercised by that court, or authorize its exercise upon other or different considerations than those which formerly governed said court in similar cases.
    In determining, therefore, whether a new trial should be granted under said statute, it is not the province of this court to review and determine controverted questions of fact arising upon conflicting evidence. The jury is the ultimate tribunal in such a case, and with its decision the court may not interfere unless it reaches the conclusion that injustice has probably been done.
    Upon the trial of an indictment for murder in the first degree it appeared that upon a former trial defendant pleaded not guilty, a jury was impanneled and sworn, and at the conclusion of the case on the part of the prosecution defendant, with the consent of the district-attorney, withdrew her plea and pleaded guilty of murder in the second degree, which plea was accepted by the court, but no sentence was pronounced. On a subsequent day on application of the defendant, the district-attorney assenting thereto, the court permitted the plea to be withdrawn and defendant again pleaded not guilty, and under this plea the trial was had. Held, that the withdrawal of the plea of guilty of murder in the second degree involved a waiver of the benefit of the implication which existed, so long as the plea remained, of an acquittal of the higher crime, and it ceased to be a defense.
    
      It seems that the defense of former acquittal must be pleaded, and in the absence of a plea, the question cannot be raised.
    
      Kring v. Missouri (107 U. S. 221) distinguished.
    (Argued May 1, 1888;
    decided June 5, 1888.)
    Appeal from a judgment of the Court of General Sessions of the city and county of ISTew York, entered on the 27th day of May, 1887, upon a verdict convicting defendant of the crime of murder in the first degree, under an indictment found against her and one Antonio D’Andrea, jointly charging them with the murder of one Antonio Cignarale on the 20th day of October, 1886. The appeal is brought directly to this court from the judgment of the Court of General Sessions, under chapter 493 of the act of 1887.
    Two reasons only were argued for the reversal of the judgment. 1. That the verdict is against the weight of evidence, and justice requires a new trial. 2. That the defendant could not legally be convicted of any crime higher than murder in the second degree, by reason of a prior plea to the same indictment, of guilty of murder in the second degree, accepted by the court.
    The facts upon winch this question arises are stated in the opinion.
    
      WilUam F. Howe for appellant'.
    The defendant having been convicted by her confession of murder in the second degree, as murder was divided into different degrees by operation of section 36 of the Penal Code, she could not be thereafter tried for the same crime in any other degree. (People 
      v. Dowling, 84 N. Y. 478, 483, 484; 1 Bishop Cr. L. § 676; Kring v. Missouri, 107 U. S. 221.) A conviction by confession — a plea of guilty — of a lesser degree of crime is, of itself, an acquittal of record of all higher degrees of crime embraced in the indictment. (People ex rel. Evans v. McEven, 67 How. 105 ; Code of Crim. Pro. § 471; People v. Shepherd, 25 N. Y. 419; 4 Bl. Com. 336.)
    
      McKenzie Semple for respondent.
    The fact that upon the first trial the jury was impanneled and sworn and evidence submitted by the prosecution to sustain the issues on their part, does not constitute jeopard available to the appellant by plea or otherwise, within the meaning of the Constitution or of the Code of. Criminal Procedure, the jury having been subsequently discharged from the consideration of the case by leave of the court and with the consent of the appellant and of the public prosecutor. (Code Crim. Pro. §§ 428, 429, 430.) The provisions of the Code of Criminal Procedure are simply declaratory of the law as it was formerly, understood, declared and decided. (Canmcemi v. People, 18 N. Y. 118 ; People v. Reagle, 60 Barb. 527; 1 Bishop on Crim. Law [7th ed.], § 998, n. 5 ; Elijah v. State, 1 Humph. 102 ; William v. Commonwealth, 2 Grat. 567; Dye v. Commonwealth, 2 id. 662 ; Ferro’s Case, L. Raym. 84; Kinlocks Case, Foster, 16, 27; S. C., sub nom. Rex v. Kinlock, 1 Wils. 157; Rex v. Stokes, 6 Car. & P. 151 ; Regina v. Deane, 5 Cox C. C., 501 ; State v. McKee, 1 Bailey, 651, 654; Commonwealth v. Nix, 11 Leigh, 636; Stuart v. State, 15 Ohio St. 155 ; Cooley’s Const. Lim. [5th ed.] 401, n. 7 ; People v. Allcott, 2 Johns. Cas. 301 ; Wharton’s Crim. Pl. and Pr. § 518.) The putting in by defendant of a plea of guilty of murder of the second degree, which, in pursuance of leave granted on her own motion, was withdrawn before sentence, does not constitute acquittal of the crime of murder of the first degree, available by plea or otherwise, upon her subsequent prosecution and trial. (People v. Guenther, 24 N. Y. 100; People v. Dowling, 
      84 id. 478; People v. Palmer, 43 Hun, 397.) The mere putting in of a plea to the indictment of guilty of a lesser degree of the crime charged does not operate as a conviction of the lesser and an acquittal of the higher degree of the crime until the plea is accepted, and nothing but the passing of sentence upon the plea can be treated and regarded as an acceptance. (Kring v. State of Missouri, 107 U. S. 224.) Former acquittal is available by plea only, and failure to plead it is a waiver thereof. (Code of Crim. Pro. §§ 332, 339 ; People v. Benjamin, 2 Parker’s Cr. R. 201 ; Bishop on Crim. Pro. §§ 806, 813; State v. Barnes, 32 Maine, 530 Archbold’s Cr. Pl. and Pr. [Waterman’s ed.] 373.)
   Andrews, J.

The jurisdiction vested in this court by chapter 493 of the Laws of 1887, to order a new trial on appeal from a judgment of conviction in a capital case, where it is satisfied that the verdict was against the weight of evidence, or that justice requires a new trial, is invoked upon this appeal. The power to grant a new trial upon these grounds formerly pertained exclusively to the Supreme Court. But as now, by the act of 1887, an appeal lies directly to this court from a judgment of death rendered by the trial court, without any intermediate review in the Supreme Court, the power to grant a new trial under the same circumstances, as it was formerly exercised by the Supreme Court, was with manifest propriety and justice conferred upon this court. It was not, however, the intention of the statute of 1887 to confer upon this court a new power not theretofore exercised by appellate courts to grant new trials in criminal cases, or to confer a power to supervise or set aside the judgments of courts of original jurisdiction upon other or different considerations than those which governed the Supreme Court in similar cases. The statute' simply invested this court with the jurisdiction formerly possessed by the Supreme Court to grant new trials on the merits, a change made necessary by the change of procedure. Therefore, in determining whether in a case brought to this court under the statute of 1887, a new trial should be granted on the merits, this court is bound by the settled rules governing appellate courts possessing and exercising this jurisdiction. It is a cardinal principle in our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. It is no more the province of an appellate court than of the court of original instance to determine controverted questions of fact arising upon conflicting evidence, hi either can lawfully usurp the appropriate function of the jury, and neither carl substitute its own judgment for that of the jury where the .facts are reasonably capable of diverse or opposing inferences. But the power to grant new trials is an essential safeguard against the miscarriage of justice; and in nearly all judicial systems the courts in some form have been invested with this power as a protection against passion, prejudice, mistake, perversity or corruption on the part of jurors; and these are the matters to be considered by the court when called upon to supervise the findings of a jury. In very many, if not most, criminal cases there is a conflict of evidence upon material facts. It is primarily the province and duty of the jury to determine where the truth lies. The case may be nearly balanced. There must, according to settled principles of criminal law, be a preponderance of evidence against the defendant to authorize a conviction. It is the duty of juries to be guided by this rule. But on which side is the preponderance of evidence cannot be determined by fixed rules. It must be left, after all, to the good sense of the jury, under proper instructions as to the law, to determine the question. The court may entertain some doubt whether the fact was properly found by the jury, and in case of seri pus doubt, especially in a criminal case, it may, if in its opinion justice requires it, order a new trial. But the mere fact that there is a conflict in the evidence is not alone a ground for a new trial. The court must be able, upon a review of the proceedings, to reach the conclusion that injustice has probably been done on the trial, before it is justified in setting aside the verdict of the jury. In the nature of the inquiry the matter is not capable of exact rules or definítian, and the court must act in the exercise. of a discretion, having reference to the circumstances of the particular case.

The court would not, we think, be justified in granting a new trial in this case, under the act of 1887. There is much to appeal to the sympathies in the unfortunate condition of the defendant. But the evidence justified the jury in finding that in shooting her husband she acted deliberately and with premeditation, with the intention of taking' his life. The defendant, before leaving her rooms on One 'Hundred and Twenty-fifth street, shortly before the homicide, armed herself with the pistol. According to the testimony of disinterested witnesses of the transaction, she was first seen following her husband on the avenue, and deliberately shot him from behind while he was walking ahead of her, apparently unconscious of her presence in the vicinity. The story of the defendant of the occurrences immediately preceding the shooting, not only is without any corroboration, but is irreconcilably inconsistent with the facts as observed by the other witnesses. Her story that the deceased attempted to attack her with a razor is not only inconsistent with the testimony of the other eye-witnesses of the shooting, but seems conclusively disproved by the uncontroverted evidence that the razor of the deceased was found after his death in his inside vest pocket, wrapped in paper and tied around with a string, and no other razor was found in the vicinity. Upon the whole facts, we cannot say that the verdict was against the weight and preponderance of evidence, or that justice requires a new trial. The defendant may have been driven almost to desperation by the wrongs and insults of her husband, but the circumstances of the shooting, as the jury had a right to find them, do not show that the homicide was either justifiable or that the defendant acted in the heat of passion or without an intent to kill. .

The remaining question arises upon the claim made by the counsel for the defendant, that on a former trial under the indictment the defendant had, by legal intendment, been acquitted of the principal offense of murder in the first degree, which was a bar to a subsequent trial and conviction for that degree of homicide. The facts upon which this question depends are briefly these: On a former trial the defendant, upon arraignment, pleaded not guilty, and a jury was impanneled and sworn to try the issue. The trial proceeded and witnesses were sworn and examined in behalf of the prosecution. At the conclusion of the case on the part of the People, by mutual consent of the defendant, the district attorney and the court, the jury were discharged and the defendant withdrew her plea of not guilty and pleaded guilty of murder in the second degree, which latter plea was accepted by the court, but no sentence was pronounced. On a subsequent day the defendant, by her counsel, applied to the court to be permitted to withdraw her plea of guilty of murder in the second degree, and the district attorney consenting thereto, ■ the court allowed the motion, and the defendant thereupon withdrew her said plea and again pleaded not guilty to the indictment. The grounds upon which the application to withdraw the former plea was made, or upon which it was granted, do not appear. The trial, from which the present appeal is taken, was thereafter had under the general plea of not guilty so interposed, which resulted in the present conviction. It is now claimed that the acceptance of the plea of guilty of murder in the second degree on the former trial, was, in law, an acquittal of the defendant of the crime of murder in the first degree, which acquittal stood in full force and unimpaired by the subsequent proceedings. It would be a complete answer to this claim, in point of law, that the defense of former acquittal must be pleaded, and that, in the absence of a plea setting it up, the question cannot be raised. This was the rule before the enactment of the Code of Criminal Procedure, and is recognized by that statute. (People v. Benjamin, 2 Park. Cr. Rep. 201; Code, §§ 332, 339 ; see, also, State v. Barnes, 32 Me. 530; Bishop on Crim. Pro. §§ 806, 813.) But in a capital case, if it was made to' appear that there had been a former acquittal, we should deem it our duty, under the statute of 1881, to take notice of the fact, although not presented by a formal plea. The contention that the acceptance of the plea of guilty of murder in the second degree on the former trial was, in law, an acquittal of the higher offense, notwithstanding its withdrawal at the instance of the defendant, is placed on the supposed analogy with those cases in which it has been held that where a defendant indicted for murder is put on his trial for that crime, a conviction of murder in the second degree, or of manslaughter, is an acquittal of any higher degree of the crime than that for which he was convicted ; and that although the defendant succeeds in procuring a reversal of the judgment convicting him of the lesser offense, he does not thereby waive the benefit of the former verdict as an acquittal for the higher offense, but may insist upon it; and he cannot thereafter be tried for any higher degree of crime than that of which he was formerly convicted. The preponderating weight of authority sustains the general principle as above stated. (Slaughter v. State 6 Humph. [Tenn.] 411; State v. Ross, 29 Mo. 32 ; People v. Gilmore, 4 Cal. 378 ; State v. Hendry, 5 La. An. 588; State v. Kittle, 2 Tyler [Vt.] 472.) In this state the same doctrine is recognized in cases of inferior offenses. (People v. Guenther, 24 N. Y. 100; People v. Dowling, 84 id. 478.) The question has not arisen in this state, so far as we know, on an indictment for murder, but a fortiori, if the doctrine contended for is applicable in case of minor offenses, it is to those of the higher grade. In determining whether the principle of these decisions is applicable in the present case, the ratio decidendi is to be considered. The doctrine that a man once tried and convicted, or acquitted of a crime on a valid indictment by a court of competent jurisdiction, cannot be tried again for the same offense has its foundation in the principles of justice and is a very ancient doctrine of the common law. ' It is embodied m that provision of the Constitution of our state (art. 1, § 6), which declares that “Ho person shall be subject to be twice put in jeopardy for the same offense.” In the application of this constitutional principle, it is well settled that an acquittal or conviction by verdict of a jury, although not followed by judgment or sentence, is an acquittal or conviction which protects an accused person against another trial, provided there was a competent court and a lawful indictment, or, in case of conviction, so long as the judgment remains unreversed. And, whether the conviction was on confession or by verdict, the rule was the same. (Sheperd v. People, 25 N. Y. 406, and cases cited.) But in this state and, generally, elsewhere, a party convicted is permitted, in some form, to have a review for the purpose of correcting any errors of fact or law which may have been committed on the trial. And it became a settled qualification of the doctrine that a party could not be twice tried for the same offense, that by seeking and obtaining a new trial for error, he thereby waived the constitutional protection and could be again tried for the offense of which he was formerly convicted. ( United States v. Keen, 1 McLean, 435 ; People v. Dowling, supra.) But this doctrine, in turn, was limited so as to protect a defendant, who secured a reversal and new trial, from being again put on trial for a higher grade of the same offense, or for another offense included in the same indictment, of which higher grade, or of which other offense the first conviction was, by inference, an acquittal. So it was held that a verdict of conviction of one of several offenses charged in an indictment, or of a lesser degree of a single offense, implied, although the verdict was silent on the subject, that the jury found the defendant not guilty of such other offenses, or of the' higher degrees of the same offense. It was on the theory that the verdict was separate and divisible, being both a verdict- of acquittal and conviction, and that there was no inconsistency between a claim that the defendant was not guilty even of that of which he was convicted, and the claim that the verdict still stood as an acquittal of the other matters charged in the indictment, that „ye defendant was permitted, on a new trial, to urge the former verctAt as an acquittal of all the matters charged, other than that on Which the conviction was had. The reason of the rule has, we think, no application to the present case. The confession of guilty of murder in the second degree having been voluntarily withdrawn by the defendant on her application to the court, removed, as is justly claimed by the assistant district attorney, in his very able argument, the only prop which sustained alike the conviction, as also the constructive acquittal, of the defendant of the higher crime. It left the case without any plea whatever until the defendant again interposed her general plea of not guilty to the whole indictment, and in a criminal case an arraignment and plea are essential to a. valid trial and judgment. (People v. Bradner, 107 N. Y. 1, and cases cited.) The waiver wrought by the withdrawal of the plea involved the waiver of all which depended on the plea, and this included a waiver of the benefit of the implication which existed, so long as the plea remained, of an acquittal of the higher crime. We think that neither upon reason nor principle can the defense of former jeopardy be maintained. (As to waiver in criminal cases, see Pierson v. People, 79 N. Y. 424, and cases cited.) The case of Kring v. Missouri (107 U. S. 221) does not, we think, decide the question now presented. In that case there was a confession of the crime of murder in the second degree, followed by sentence and judgment in the state court of Missouri. The sentence was set aside by the appellate court of the state, because in violation of an understanding between the prosecuting officer, the defendant, and the court, as to the length of sentence in case the defendant should plead guilty, and the appellate court remanded the case to the lower court for further proceedings. When the cause was again moved the defendant stood on his plea of guilty of murder in the second degree and its acceptance by the court, and refused to withdraw it. The court thereupon directed a plea of not guilty to be put upon the record against the defendant’s protest, and he.was thereupon tried and convicted of murder in the first degree. The judgment was reversed by the Supreme Court of the United States. In the present case there was neither sentence nor judgment on the plea, and the defendant voluntarily withdrew-the plea and pleaded over to the indictment. It is quite clear from the prevailing opinion in the Kring Case that the absence of these circumstances in that case had a controlling influence. We are of opinion, therefore, that the defense of former acquittal, if properly pleaded, could not have prevailed.

We deem it unnecessary to consider whether the legislature, by sections 464 and 544 of the Code of Criminal Procedure, have changed the rule that a conviction for a lesser grade of an offense, or of one of two offenses charged in an indictment, imports an acquittal of the higher grade of the offense or of the other distinct offense. It is assumed in the Krinq Case that it would be competent for the legislature to make such a change applicable to future cases.

The judgment should be affirmed.

All concur, except Gbay, J., not voting.

Judgment affirmed.  