
    COURT OF APPEALS.
    People agt. Donovan.
    
      Criminal law — Code of Criminal Procedure, section 527— New trial— Powers conferred by this section as to new trial to be exercised by the supreme court.
    
    The power given by section 527 of the Code of Criminal Procedure of ordering a “ new trial, if 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,” was intended to he exercised by the supreme court alone, and does not apply to this court.
    
      Decided January, 1886.
    
      Charles M. Deed, for appellant
    
      
      De Lancey Nicoll, for the people.
   Huger, G. J.

Upon the argument of this appeal no excep- , tion to any ruling of the trial court was pointed out by the appellant’s counsel as a ground for a reversal of the conviction of the defendant; and after a careful examination of the case and exceptions we are satisfied that none was taken which authorizes a reversal.

The appellant urges that upon a consideration of the whole case, if the court should be of opinion that injustice had been done to the defendant, it is authorized, by section 527 of the Code of Criminal Procedure, to order a new trial. We have frequently decided that the powers conferred by that section were intended to be exercised by the supreme court alone, and that we have no authority to review a judgment in á criminal action unless exceptions have been regularly and properly taken to the rulings of the trial court alleged to be erroneous (People agt. Hovey, 92 N. Y., 554; People agt. Boas, id., 560). If further answer were required to the claim of the appellant, we might say that a review of the trial satisfied us that the verdict of the jury was based upon sufficient evidence, and is fully supported by the testimony taken on the trial.

The evidence tended to show that the defendant, who belonged to a social organization called the “Kipp’s Bay Coterie,” which had its head-quarters at the saloon where the homicide was committed, started out. on the afternoon in question, with a number of his comrades, to go to that saloon and ’ there avenge a fancied insult claimed to have been offered by the bar-tender of the saloon to one of his associates earlier in the same day. Immediately upon their entrance into the saloon, which was -then occupied by the bar-tender and the deceased, who was an attendant therein, hostilities commenced. One of the visiting party took possession of some billiard cues, and distributed them among his associates, giving one to the defendant, and then one of the party, alluding to the deceased, said he was the man who went for a policeman, and immediately thereafter the ‘ defendant, without apparent provocation, struck Rainor one or two powerful blows upon the head with the butt end of the cue, inflicting wounds fracturing the skull, «tod causing his death within one hour. Immediately thereafter «me one of the assaulting party exclaimed, Cheese it; a cop!” and they all fled. The defendant remained concealed in New York until the next day, when he left for Maryland, where he resided, passing under an assumed name, until he was arrested on the Saturday following the homicide Evidence was given on the trial tending to show the previous good character of the defendant, but under the circumstances attending the commission of the homicide and the direct and positive evidence as to the agency of the defendant therein, it properly did not have controlling weight with the jury in determining the verdict The evidence was submitted to the jury under an unexceptionable charge, and there is no ground in the case for the reversal of the judgment rendered on the verdict.

We think the judgment should be affirmed.

All concur, except Miller, J., absent.  