
    The People of the State of New York, Respondent, v. Oscar F. Beckwith, Appellant.
    A homicide may only be classed as manslaughter when there is no design to kill; when that purpose is present, the crime is murder in one of its degrees.
    
      The provision of the statute requiring a deliberate and premeditated design to kill to constitute murder in the first degree (Penal Code, § 183), is satisfied where it appears that there was sufficient time and opportunity for reflection, that reflection was had and a choice was made, with full opportunity to choose otherwise.
    Upon the trial of an indictment for murder in the first degree, the testimony of defendant was to the effect that V., the deceased, came to the cabin where defendant lived, forced open the door and entered without permission and, after some words, struck defendant as he was sitting on a bench, knocking him off on the floor, and, as he arose, seized a stick of wood; defendant also grasped hold of it; a struggle ensued, during which V. grasped defendant by the throat and jammed him back to the wall near a shelf upon which was a butcher knife; this defendant seized and stabbed V. with it, weakening him so that defendant got him down and choked him until, as defendant testified, he found him " about past recall,” and feared he had killed him; he then struck V. with an axe, crashing in his skull and killing him. Held, that defendant’s own testimony j ustified a conviction for murder in the first degree.
    (Argued October 6,1886;
    decided October 36, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 20, 1886,5which affirmed a judgment of the Court of Oyer and Terminer of the county of Columbia entered upon a verdict convicting defendant of the crime of murder in the first degree.
    Defendant was charged with the murder of one Vandercook; he admitted the homicide, which occurred in a cabin where defendant lived alone. His story of the killing given as a witness on the trial was as follows : “ Q. When you saw Vandercook, what did you do ? A. When he got up most to the house door, I turned a button to keep him out. Q. When you saw him come toward the door, you stepped to the door and turned the button; what happened next í A. I stepped back and sat down near the middle of the room. Q. What happened next ? A. He came to the door and hoisted the latch without leave; he knew that I would not bid him come in' if he knocked; he did not knock. Q. Tried the latch, then what ? A. He found it was fast and gave it a jam, tore the button off, and -nail and button dropped on the floor; he came in without leave; I ordered him out; told him to get out of the house, I was afraid he would poison me again; he spoke the same over again as he did the week before; he said, ‘ It was a damned pity you puked it up.’ Q. What did you say ? A. After that I called him a dirty whoremaster, ‘ Get out of my house.’ Q. What reply did he make ? A. ‘ Damn you, you call me a whoremaster? ’ Q. What did he do, if anything? A. He drew back his fist and I sprang to get up, so ; I don’t know whether I got up off my bench or kept my hands on the bench; I sprang to save myself a little; he hit me in the forehead ; it commenced bleeding between the eyes; he hit me in the forehead, knocked me over off my bench on the floor; I struck my hip on the floor, and my hand and sprang to my feet; he says, ‘ I will knock your damned brains out; ’ he grabbed for a stick of stove-wood — pile of wood laid by the stove, round stick of stove-wood about three inches through; he got it; I clenched it, when it was about two feet from the floor, with my right hand, his wrist with my left; I was afraid of my life; there was twitching and hauling. Q. What followed then ? A. In twitching and hauling, twitching me back against the bench, we turned over close up to the wall, and kept twitching and pulling until he got me up against the wall back side, north side of the wall, north side of the room. Q. What was there, if any thing? A. There was a couple of shelves out in the corner five or six feet long, some holes bored into the logs, and put in some sticks; couple of boards put on there to put my dishes, etc., on; upper shelf kept my books and papers; he clinched me in the throat with one hand. Q. Then what? A; Jammed me back against the wall, choked me a little while; I had both hands hold of the stick, he had but one hand; I grabbed for the butcher knife that laid on the shelf (indicating), about that distance within reach of my hand ; he had me by the throat choking me, stopped my wind; I grabbed that knife; I passed it into the other hand; I used it (indicating); he staggered a little. Q. And then what ? We had a kind of scuffle there a little, and I was a little. the best for him about that time; got him down and choked him a while ; we" got away most to the door of the other side of the room. Q. You got him down and choked him ? A. I choked him then, it was a kind of turn about. Q. Did he get up ? A. I guess he did not get up very far; I don’t think he did; I don’t think he ever did get up very far; I hung on him and choked him some time; I finally found that he was about past recall; I let him go; I was afraid I had killed him.”
    On his cross-examination, after the witness had testified that he stabbed the deceased with the butcher knife, the examination proceeded as follows : “ Q. Did he fall from the effect of the blow? A. Not immediately, but pretty much fallen, I got him down, got the best of him and choked him a while. * * * Q. Is it not true that Mr. Yandercook started for the door, and you struck lfim on the head with an axe ? A. No, sir, not then. Q. When was it ? A. When he fell; I jammed him over near the door, perhaps two feet; I don’t know how far from the door; about that time I used an axe. Q. Where did you use it on him ? A. On his skull; blood flew up against the door. Q. That accounts for the blood spots on the door around there ? A. Yes, sir. Q. Is it not true that when that blow was struck, or just before that blow was struck with the axe that hit him in the head, that he started for the door ? A. No, sir; I started him there ; he had me by the throat when the blow was struck; I gave him a jam back and fell; hardly twelve feet in the room. Q. Was not he in such condition after the stab with this knife that you could have handled him without this blow from the axe? A. I don’t know whether it was or not. Q. Did not stop to find out ? A. No, sir. Q. You could not have handled him without crushing in his skull with an axe after that blow with the knife ? A. I don’t know. Q. You did not care? A. I did not care much about it one way or the other; I considered I had a right.” Further facts appear in the opinion.
    
      L. F. Longley for appellant.
    The trial court erred in refusing to set aside, on defendant’s motion, the juror, Abner A. New, after he was sworn and before evidence had been given in the case. (Code of Crim. Pro., § 371; Livermore v. Bainbridge, 56 N. Y. 72 ; Jeffries v. McKillop, etc., L. Co., 48 How. Pr. 122.) Where, as in this case, there is evidence of an altercation and attack by the deceased upon the defendant, previous expressions of ill-will on the part of the defendant, even if amounting to threats, will not alone furnish evidence that the homicide was committed in pursuance of a deliberate purpose. There must be some act of defendant indicating his purpose preceding the killing. (Hovey's Case, 29 Hun, 382; Sindram’s Case, 88 N. Y. 196; Majone's Case, 91 id. 211; Cornetti's Case, 92 id. 85; Leighton's Case, 10 Abb. N. C. 261; 2 Starkie’s Ev. 948.) Under the statute classifying homicide, mere proof that one has been deprived of life by the act of another fails to show the class to which the homicide belongs. (Stokes v. People, 53 N. Y. 164; Roscoe’s Crim. Ev. 964, 965; People v. Sullivan, 7 N. Y. 400 ; Russ, on Crimes, 524-5 ; 2 Starkie’s Ev. 947, 948.) A homicide ending a mutual combat commenced by the deceased, and not sought or brought on by the defendant, for the purpose of killing, or done with an instrument previously provided for the purpose, should not be adjudged murder in the first degree. (4 Bl. Com. 191; 1 Russ, on Crimes, 513, 515, 521, 526; Roscoe’s Crim. Ev. 640.) There is no evidence of any time for passion to cool. (Roscoe’s Crim. Ev. 685, 714; Leighton's Case, 88 N. Y. 117; Conroy's Case, 97 id. 62; 1 Russ, on Crimes, 585.) There is no legal evidence of “ the deliberate and premeditated design ” required in the definition of murder in the first degree, and which is an element in the people’s case necessary to be established affirmatively. (Penal Code, § 183; Russ, on Crimes, 662-3; Roscoe’s Crim. Ev. 710.) If Vandercook was not dead when the blow with the axe was struck, then the ease comes clearly within the second and not the first of the two degrees of murder. (Penal Oode, § 184; People v. Conroy, 33 Hun, 119, 127.)
    
      A. B. Gardenier for respondent.
    If a fatal blow is struck in self-defense the homicide is not justifiable unless the prisoner first retreated as far as possible. (People v. Harper, Edm. Sel. Cas. 180; Shorter v. People, 2 N. Y. 193.) A man is presumed to intend the natural consequences of his act. (Foster v. People, 50 N. Y. 609; Phillips’ Ev. 632; People v. Conroy, 2 N. Y Crim. 582; Thurber v. Harlem R. R. Co., 60 N. Y. 331; Morrison v. Erie P. Co., 56 id. 308.) The finding of the jury that the offense was murder in the first degree is sustained by the evidence of the defendant himself. (People v. Clark, 7 N. Y. 393 ; Leighton v. People, 88 id. 117; People v. Majorie, 91 id. 211; People v. Conroy, 97 id. 62-76; 4 N. Y. Crim. 88.) The Supreme Court alone exercises the powers conferred by section 527 of the Code of Criminal Procedure, and unless exceptions have been regularly taken to the rulings of the trial court, claimed to be erroneous, this court will not review. (People v. Donovan, 4 N. Y. Crim. 86; People v. Hovey, 92 id. 554; People v. Boas, id. 560.) In cases of homicide it is competent to show the conduct and feelings of the prisoner toward his victim and to prove that he had made previous threats or attempts to kill his victim. (People v. Jones, 3 N. Y. Crim. 261; 3 Russ, on Crimes [9th ed.], 288 ; Roscoe’s Crim. Ev. [7th ed.] 18; Whart. on Homicide [2d ed.], § 693; 2 Colby’s Crim. Law, 193.) The juror New possessed all the statutory qualifications and was in no sense legally disqualified. (Code of Crim. Pro., § 371.)
   Finch, J.

That the prisoner killed the deceased by the blow of an axe he himself has testified. While the jury were not bound to believe his account of the struggle, and its origin, and might well have doubted it, as in many respects improbable and unreasonable, yet, if they gave it credence, it furnished, in connection with the other evidence, sufficient ground for the verdict which they rendered.

The argument before us was largely devoted to the point that the final blow was delivered at the close of a furious struo-O gle, and before sufficient time had elapsed for the prisoner’s passions, engendered by the conflict, to subside and cool; and so the crime was manslaughter only. But that grade of homicide is marked by the important characteristic that there is no design to kill. If such purpose be present, the offense is murder in one of its degrees. The evidence very clearly shows the existence of that design. Granting all that the prisoner says of the struggle, yet it is apparent that while the blow of the knife might have been given in the heat of the affray, and without a purpose to kill, the blow of the axe admits of no such explanation. That was struck when the struggle had ended, and the victim lay paralyzed and unresisting. The knife had penetrated the lung, and weakened him perceptibly, and the prisoner had choked him until, to use his own expression, he was “about past recall,” and then, with no danger remaining, his own personal safety assured, and abundant opportunity to escape from the cabin without injury, or hand the assailant over to justice, he nevertheless “let go” of his antagonist, rendered helpless and harmless, went after and obtained his axe, and with it ended the life not yet destroyed by the blow of the knife, and the choking which followed. The weapon was selected, and the blow was struck with a palpable design to effect death, hfo other inference is reasonable. If we assume what the evidence does not show, and the prisoner does not say or pretend, that the axe was near at hand, and easily and swiftly grasped, and the knife had been dropped in the struggle, which also is wholly unproved, it is still true that the conflict was at an end, and the prisoner himself says, “ I let him go ; I was afraid I had killed him.” That was a natural fear, and the presence of such an emotion, the shock of discovering that he had endangered the life of his adversary, is quite inconsistent with the continuance of frenzy and rage. The passion of the fight was probably replaced by the fear of consequences naturally born of the condition of the deceased. Scarcely any thing would cool the prisoner’s anger more swiftly than the sight of the dying man on the floor, and the consciousness of having, per(haps, killed him; for one strong emotion drives out another. That fear of consequences, he tells us, came into his mind, and following it seems to have arisen an evident purpose to evade those consequences by making sure of the death of his enemy, and proceeding to mutilate and destroy the body with a view to escape detection. And so the axe was wielded with a set- ¡ tied design to kill.

There was some degree, also, of premeditation and deliberation. The process of reasoning which the prisoner’s own words suggest shows that he deliberated. He reflected enough to be conscious that his victim was in danger of death; enough to feel an emotion of fear for the consequences to himself; enough to decide that it was safer to finally kill him than run the risk of his recovery, or his death lingering and discovered; enough to select and choose the axe as the surest weapon instead of the knife which he had already used; and then, having inflicted death, to proceed coolly to the logical end of his deliberation by burning so much Of the body as could be identified, by taking from the pockets of the dead man whatever would reveal his name, by a thoughtful preparation for flight, by escape into Canada, and concealment under a false name. When he was asked why, when further violence was unnecessary for his own defense, he persisted in the work of killing his antagonist, he answered first that ho did not know what he was about, but finally said,“ I thought I had a right.” Ordinarily we are compelled to infer the intent from the nature and surroundings of the act, and these alone in this case would furnish a sufficient answer; but the prisoner himself reveals two of the thoughts that arose in his mind, and with their aid we can quite accurately ascertain the rest. As he looked upon the result of his action there came a consciousness of what he had done, and with that consciousness a shock that would sober almost any rage; then arose the fear that his victim might linger and die and he himself be detected and punished. How to avoid that result was the natural sequence of his thought, and then came the other reflection of which he tells us,—brutal and ignorant it may be, but with which he braced his nerves and hardened his courage for the final act,— that he had a right'’ to kill the man who was not yet dead and so avoid detection and punishment. Then followed the choice of a weapon. The knife which he had just used would naturally come first to his mmd, but he either sees or remembers his axe, and chooses that as the more effective weapon of the two, and possibly also because he had then in mind a mutilation of the body, which would prevent identification. In all this there is very much more than impulse or an unreflecting blow. There is thought, choice and plan.

The rule as to deliberation and premeditation has been stated so often- as to have become familiar. The time need not be long and may be short. If it furnishes room and opportunity for reflection, and the facts show that such reflection existed, and the mind was busy with its design and made the . choice -with full chance to choose otherwise, the condition of the statute is fulfilled. The jury were justified in their conclusion that there was a deliberate and premeditated design to kill even though they credited the prisoner’s account of the affray.

But they may have disbelieved it entirely. Why should Vandercook on finding the cabin door barred proceed to force an entrance? What foundation was there for an accusation of poisoning? When Beckwith made that accusation Vandercook is represented as having admitted it, and as coolly expressing his regret that it failed of its purpose because Beckwith threw it off his stomach. If there was any quarrel between these men it was about the mine; that was their sole cause of hostility ; and yet neither mentioned it at all, or broached the subject by a word. On the contrary Beckwith calls Vandercook by an'opprobrious epithet as far away as possiblefrom the subject ot difference, and thereupon the latter, who had borne without emotion the charge of attempted murder, flames into a rage at being called a “ whoremaster” and resorts to violence. In relating what occurred as a witness, the prisoner at first on his direct examination conceals the fact of a blow with the axe given after the close of the struggle, and confesses it only when pressed by the cross-examination. After that blow he admits that he cut Vandercook’s throat and pulled out his tongue. The atrocity of the act is here said to indicate frenzy, but the prisoner gives a different and very strange explanation, saying that it was same as the Masons do; that is the penalty they have to inflict on one another.” The answers he made often had about them a tone of brutality, of cold unconcern, and the jury may very well have disbelieved his story of an affray and reached their conclusion with little trust in the prisoner’s explanation. In that view of the case they had before them the quarrel about the ownership of the mine which had developed in the prisbner a considerable degree of hostility; his repeated threats to put his enemy out of the way, and his tempting another to murder with a suggestion of the money to be gained from the man he hated; the opportunity offered by Vandercook’s presence in the solitary cabin hidden in the ravine and little exposed to observation; the thrust of the knife indicating a blow struck from behind; the chopping of the body into fragments and burning whatever could be identified; the falsehood told to explain Vandercook’s absence and the final departure and flight. These facts taken together tend to the conclusion which the jury reached.

The grade of the crime was a question of fact for their de-, termination acting under proper instructions as to the law. There is no complaint of those instructions and the verdict rendered on the question of fact it would be our duty to respect even if it bred in us a doubt which we do not feel.

The request to discharge the juror Hew after he had been accepted and sworn was by the statute within the discretion of the trial judge. (Code of Grim. Pro., § 371.) That discretion was not at all abused, and if we were at liberty to review it we should feel that it was not unwisely or improperly exercised.

Discovering no error in the record, our duty is to affirm the conviction.

The judgment should be affirmed.

All concur.

Judgment affirmed.  