
    Michael Donohue, Plaintiff in Error, v. The People of the State of New York, Defendants in Error.
    A writ of error in a criminal case brings up for review only questions of law raised by exceptions properly taken upon the trial. This court has no power to reverse the judgment upon the ground that the verdict was against the weight of evidence.
    The provisions of the statute (§ 150, chapi 460, Laws of 1847) authorizing a convict to be sworn and making him “ a competent witness against any fellow-prisoner for any offence actually committed whilst, in prison,” permit a convict to testify to any facts material to the issue upon the trial of any such offence; lie- is not restricted to the particular acts constituting the crime.
    Upon the trial of an indictment against a convict for the murder of a fellow-convict, after the prosecution had introduced a letter alleged to have been written by the prisoner, but intercepted and not delivered, which tended to show an attempt to suborn witnesses to testify in his behalf, a keeper testified to a conversation with the prisoner in reference to preventing communications between him and other convicts, in which the prisoner stated that he “had done all the communicating he wanted to.” The witness also gave evidence tending to show that such communication, other than by writing, was possible in the shop where the prisoner worked and where the homicide occurred. The prisoner was thereupon called as a witness in his own behalf and his counsel offered to show by him that he had held no communication in any way with any one in the shop since the- homicide. This evidence was excluded. Held, error; that the prisoner had the right to relieve himself of the imputation of having suborned his witnesses, and to repel the imputation attempted to be east upon them, which would have been done by satisfying the jury that no communication had in fact taken place between him and them.
    
      (Argued February 26, 1874;
    decided March 24, 1874.)
    Also, held, that this error was not obviated by the fact that the question when first put, which preceded the offer, was answered by the prisoner and then immediately objected to and objection sustained, as the jury must have understood from the ruling that the evidence was incompetent.
    Error to the General Term of the- Supreme Court, in the fourth judicial department, to review judgment denying a motion for a new trial, and affirming a judgment of the Court of Oyer and Terminer of Cayuga county, entered upon a verdict convicting the plaintiff in error of the crime of murder in the first degree.
    On the 22d May, 1873, the plaintiff in error, then a convict confined in the Auburn State prison, stabbed Elihu Moore, a fellow-convict, with a shoe knife, inflicting a mortal wound, of which he died. The evidence, upon the part of the prosecution, tended to show that the prisoner had had an altercation in the collar shop of the prison with deceased; that they had separated, when the prisoner saying, with an .oath, that he would “ follow that man,” went toward him with the knife concealed in his sleeve, and after a moment’s conversation stabbed him. It was claimed by the prisoner’s counsel that the blow was in self-defence; that Moore had a knife with which he made a thrust at the prisoner, and had raised his hand to strike another blow, when the prisoner struck up his hand and inflicted the wound.
    Upon the trial a fellow-convict was called as a witness to prove the genuineness of a letter alleged to have been written by the accused. The witness testified that the accused asked him for paper, which he furnished, and thereafter received a letter from accused written on the paper which the accused requested him to deliver to another convict to whom it was directed ; instead, thereof, witness delivered the letter to the prison agent. The letter was, in substance, a request that the convict to whom it was written should get convicts to swear that Moore had a knife in his hand and was going to cut Donohue, when he struck the fatal blow. The witness also testified to other conversations between him and the accused. The evidence was received under objection. Further .facts appear in the opinion.
    
      William B. Mills for the plaintiff in error.
    The verdict is against the clear weight of evidence and should be set aside. (6 Park. Cr., 629, and cases cited ; 1 G. & W. on N. T., 362, 367; Rudd v. Davis, 3 Hill, 288 ; Wendell v. Safford, 12 N. H., 171; Bank v. Small, 21 Me., 136 ; Bangor v. Brunswick, 27 id., 351; Manuel v. People, 48 Barb., 548.) The conversations sworn to by the convict Haley were improperly received in evidence. (1 Greenl. Ev., §§ 372, 373, and cases cited; 2 Edmonds’ Stat., 724, § 23; 2 A. & E. [N. S.], 721; People v. Robertson, 26 How. Pr., 90.)
    
      S. E. Payne for the defendants in error.
    The court has no power to set aside the verdict on the ground that it is against the clear weight of evidence. (People v. Thompson, 41 N. Y., 4, 5; 1 R. S., § 23, p. 736.)
   Church, Ch. J.

The prisoner, a convict in the State prison at Auburn, was indicted, tried and convicted of murder in the first degree, for killing Elihu Moore, another convict, by stabbing him with a sharp knife. As no opinion was delivered in the Supreme Court, we are deprived of the benefit of the views of that court upon the questions presented, except as may be inferred from an affirmance of the judgment and conviction. The points presented in this court will be briefly noticed: 1. That there was no evidence of premeditated design to kill. This point is not tenable. The evidence given upon the trial was conflicting as to the principal point litigated, whether the deceased had a knife in his hand with which he attempted first to stab the prisoner. It was for the jury to determine whether the version given by the witnesses for the prosecution or that given by the witnesses for the defence was correct. If the former, as we must assume for the purposes of this question, the jury were justified in finding the requisite premeditation under the construction of the statute which has been uniformly adopted by the courts since the case of People v. Enoch (13 Wend., 159), that it is sufficient if the design ■ to effect death be formed at the instant of striking the fatal blow. (3 Seld., 385; 37 N. Y., 418.) The act chapter 644 of the Laws of. 1873 changed the definition of murder, both in the first and second degrees, but the homicide in question took place a few days prior to the passage of the act and was not affected by it. (See. 3.)

2. This court has no power to reverse the judgment upon the ground that the verdict was against the w;eight of evidence. A writ of error in a criminal case brings up for review only questions of law raised by exceptions properly taken upon the trial. (2 R. S., 740; 41 N. Y., 1.)

3. It is objected that the convict Haley was not a competent witness to prove the letter alleged to have been written by the prisoner, or to conversations with the prisoner subsequent to the commission of the offence. The statute authorizing convicts to be sworn, is as follows: “ Such convict may be examined on such trial and shall be considered a competent witness against any fellow-prisoner, for any offence actually committed whilst in prison, and whilst the. witness so offered shall have been confined in the prison in which such offence shall have been committed.” This statute is amply broad enough to permit convicts to testify to any facts material to the issue upon the trial of any such offence, and is not restricted to the particular acts constituting the crime. Ho reason for - such restriction is perceived, and the language will not justify it.

4. It is claimed that the court erred in sustaining the objection to the offer to show, by the prisoner, that he had held no communication in any way with any one in the collar shop where he worked, and where the homicide was committed, from the day of its occurrence. This presents the most serious question in the case. The prosecution had introduced a letter in evidence, alleged to have been written by the prisoner to a féllow-convict, but which was never delivered, the same having been intercepted and retained by the agent of the prison, which, if genuine, tended to show an attempt on the part of the prisoner to suborn witnesses to testify upon the trial in his behalf. The keeper Thomas was then called by the prosecution, and testified to a conversation with the prisoner, in which the latter requested to he removed to another part of the prison, which was refused by the keeper, on the ground that they wished to prevent any communication between him and the other convicts, and the prisoner said, he had done all the communicating he wanted to.” This witness also gave evidence from which it might be inferred that other com.munications than by writing between the prisoner and other convicts were possible. The prisoner’s counsel questioned .the witness directly on this point: Do you want to give the jury the idea that there was any opportunity of his communicating with persons outside ? ” A. “ It is possible he may have communicated, but it was our intention to prevent it.” Q. “ Were there any of the convicts at work in the collar shop who had any occasion to go to the south-west corner of that wing ? ” A. “ Hot regularly; they could have got there.” The admission was not confined to the letter produced, .nor to written communications, but might be claimed to embrace verbal communications. The evidence' of Thomas showed verbal intercourse practicable, and the letter tended to show that the object of the prisoner was to manufacture .testimony. About an equal number of convicts were sworn on each side, those for the prosecution giving evidence which, if true, as we have seen, justified the verdict; those' for the prisoner giving evidence which, if true, tended to establish the defence of justifiable homicide, or at least an offence considerably below murder in the first degree. All these witnesses were tainted with crime. They were made competent by statute from the necessity of the case. The jury were permitted to hear and consider their evidence and give it such weight as they thought it deserved, but would naturally and properly scrutinize it with care, and with a degree of suspicion not exercised toward ordinary witnesses. The prisoner clearly had a right to answer the evidence tending to prove that he had tampered with these witnesses, and induced them to testify falsely in his favor. He had this right in the first place to relieve himself from the imputation of suborning his witnesses (2 Phill. on Evidence, .972), and in the next place, to repel, if he could, the imputation attempted to be cast upon them, that they had been suborned. The intercepted letter could not have been effective. He was permitted to testify as to writing letters, but was refused the offer to testify that he had had no other communication, thus leaving the jury to infer that such other communications had taken place, and for the improper purpose of manipulating evidence. I am unable to conceive a reason to justify this refusal. If the prisoner had satisfied the jury that no communication had in fact taken place, it would have relieved him and the witnesses called by him from the criminal imputation which the evidence, on the part of the prosecution, was calculated if not designed to establish, and would have tended to strengthen their credibility. The evidence offered was of the same character, and competent upon the same ground as the evidence received as to writing letters. It should have been received. We have no legal means of determining what effect the evidence would have had if received. It was material and competent, and it was therefore error to reject it. It was suggested upon the argument, that this exception was obviated by the fact that the question when first put was answered. The record shows that the question was put, and the answer “ Ho, sir,” given, and immediately after an objection was interposed and sustained. The counsel for the defence then made the distinct offer before stated, which was objected to, the objection sustained and an exception taken. This exception was not obviated by the answer to the first question. The decision of the court at that time sustaining the objection, and the distinct ruling rejecting the offer was specific that the evidence was incompetent, and the jury must have so understood it. Besides, the defence was not restricted to a simple negative, but had a right to prove, in addition, any facts pertinent to the question. The prisoner was legally entitled to the evidence offered, and there is no alternative but to grant a new trial.

The judgment should be reversed and new trial ordered. All concur.

Judgment reversed.  