
    The People of the State of New York, Resp’ts, v. John Kelly, App’lt.
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Criminal law — Murder — Appeal—Code Grim. Pro., § 517, as AMENDED BY LAWS 1887, CHAP. 498.
    In pursuance of the provisions of the Code of Criminal Procedure, section 517, as amended by Laws 1887, chapter 493, a defendant who has been convicted of murder in the first degree can appeal directly to the court of appeals from the judgment entered upon his conviction. Upon such an appeal the court are required to examine the whole case and determine whether, in their opinion, “the verdict was against the weight of evidence, or against law, or that justice requires a new trial, whether any exception has been taken in the court below or not.”
    2. Same—When appellate court cannot review findings of fact.
    These provisions were not intended to authorize the court to review findings of fact, founded upon sufficient evidence, made by the jury,- or to reverse judgments simply because of a difference of opinion on the facts between the court and the jury, but to invest the court with the power of ordering a new trial where it is manifest that injustice has been done.
    3. Same—Words no excuse for crime.
    It is not sufficient to excuse a person from the consequences of a fatal assault upon another that he has been provoked thereto by an angry controversy of words alone, however aggravating they may have been.
    4. Same—Use of dangerous weapon—When not excusable.
    When such language induces a personal conflict of strength between parties unequal in physical ability, and the assaulting party has no reason to apprehend physical injury from the other, the seizure of a dangerous weapon accidently near, by the former, and a blow given in the heat of passion, is not regarded as excusable, as it might be were the parties of comparatively equal strength.
    5. Same—Evidence of premeditation.
    Evidence tending to show that after the affray had apparently terminated, and one of the parties had retired to a remote corner of the room, with an evident intent to avoid the other, and the latter then sought the deceased out, after an opportunity to reflect upon his course of action, with an obvious purpose of continuing the affray, armed with a new and dangerous weapon, is very strong proof of a deliberate and determined homicidal purpose.
    6. Same—When recollection of witness may be refreshed.
    It is proper for the people on the trial of an indictment to refresh the recollection of a witness as to material facts already testified to by him.
    
      Edwin Hicks, for appl’t; Frank Rice, for resp’ts.
   Ruger, Ch. J.

—-The defendent was indicted of the crime of murder in the first degree, for killing one Eleanor O’Shea, by striking her upon the head with a hammer, at the town of Geneva, in the countyof Ontario, on the 6th day of November; 1888. At a trial in the court of oyer and terminer, held in said countyin December, 1888, the defendant was convicted of the crime charged, and, in pursuance of. the provisions of the Code of Criminal Procedure, as amended by chapter 493 of the Laws of 1887, has appealed directly to this court from the judgment entered upon his conviction. Upon such an appeal we are required to examine the whole case, and determine whether in our opinion, 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.”

We do not think that this provision was intended to authorize this court to review findings of fact, founded upon sufficient evidence, made by the jury, or to reverse judgments simply because of a difference of opinion on the facts between this court and the jury; but was intended to invest the court with the power of ordering a new trial in cases where, upon a consideration of the whole case, it is manifest that injustice has been done, although the question has not been properly raised by exceptions in the court below. People v. Cignarale, 110 N. Y., 23; 16 N. Y. State Rep., 165.

This provision, undoubtedly, gives great latitude of authority to the court in granting new trials to convicted offenders, but it is an authority which must be exercised under the restraint of settled rules, and in accordance with established principles of law regulating and defining the duties of appellate tribunals in reviewing the judgments of trial courts.

It is claimed that a consideration of the evidence shows a lack of proof of that premeditation and deliberation in the commission of the offense which is required by the statute to sustain a conviction.

There is no serious question in the case, but that Eleanor O’Shea came to her death in consequence of a blow inflicted with an iron hammer upon her head by John Kelly, or but that the blow was intentionally given for the purpose of inflicting serious bodily injury upon said O’Shea. The principal question in the case is the determination of the particular intent with which the defendant struck the blow. This can be ascertained only by an examination of the facts proved on the trial. The evidence on the subject is given almost wholly by the witness, Mahar, who was, apparently friendly to the defendant, and betrayed a slight, but perceptible, disposition, not only by his evidence, but also by his failure to recollect inculpatory circumstances, to favor him in his version of the transaction. The affray occurred about ten o’clock in the evening, at the house of one George Kippen. who was a farmer, living about two and one half miles from the village of Geneva. The household consisted, at the time in question, of George Kippen, Margaret Kippen, his daughter, aged about thirty years, Eleanor O’Shea, his housekeeper, aged about forty-six, and one Mahar, the witness, who was of the age of about sixty-eight years. The defendant was the foreman of the farm, and had worked for Kippen in that capacity about fifteen years. He was a married man with children grown up, and was then living in a tenant house on the same farm about eighty rods distant from Kippen’s house, but was separated from his family, and took his meals generally at Kippen’s. On the day in question, he had been at Geneva through the afternoon and evening, and returned to Kippen’s about nine o’clock, p. m. He went directly to the barn to put out his horse. Margaret Kippen followed him there with a lantern, leaving O’Shea and Mahar in the kitchen of the house. Margaret and O’Shea had immediately previous to defendant’s return, had an angry and violent controversy growing out of a charge made by O’Shea that Margaret went to the barn to see defendant for improper purposes, and forbidding her from going there any more. Margaret insisted upon going, and did so. After the lapse of a few minutes, Margaret returned to the house, and was soon followed by defendant. O’Shea then again commenced her imputations upon Magaret’s chastity, and accused her of being unduly intimate with Kelly.

Kelly then asked her what authority she had to charge him with such conduct and she replied that she had Mr. Kippen for authority and what she knew herself and what Margaret had told her. Kelly then asked her, “Do you say I am a whoremaster?” and she rose up and said, “Yes, I do.” Kelly immediately struck her with his fist knocking her down near the stove in the centre of the north side of the room, and, while she was on the floor, kicked her on the breast, head and shoulders with his boot. She then ran up hurriedly and seized a tea kettle standing on the stove and exclaimed, “ I will scald you,” and struck with it at Mr. Kelly. Thereupon a squabble ensued between Kelly and Margaret on one side and O’Shea on the other, which resulted in their getting the tea pot away from her. O’Shea then assaulted Margaret and shoved or drove her into the hall through a door near the northeast corner of the kitchen, and said to her, “I will smash you if you don’t keep your hands off of me.”

It would appear that Margaret remained in the hall until after the fatal blow was struck. About this time Mahar said to Kelly that he had better quit and approached him near the middle of the room, and Kelly told him “to keep away.” Mahar then put up his hands and Kelly put his hands against those of Mahar, and crowded him back into the northwest corner of the room where he remained during the rest of the affray.

When O’Shea returned from the hall and passing Kelly went to the southwest corner of the room without making any remarks, Kelly stood in the northeast corner near a mantel upon which were two or three hammers usually kept in that place. After a brief interval he walked coolly across the room to the opposite corner where O’Shea stood and speaking low and quietly said, “Can you prove what you said? Do you say I am a whoremaster?” She says “I do,” upon which, in the language of Mahar, Kelly “ up with his hand and struck her with the hammer on the head.” O’Shea sank to the floor on her knee and Kelly poked at her with his foot. O’Shea then got up and says: “Mr. Mahar you know all this, and struggled to a chair standing on the south side of the room near the table, a few feet from where she was struck, and sat down. While sitting there Margaret came up with a stick of stove wood and struck at her several times probably hitting her face, breast and legs some apparently trifling blows. Then O’Shea got up and staggered along the south and east side of the room to a pantry opening from the northeast corner of the kitchen and passed through the door, closing it behind her.

Soon after this she was heard to fall on the floor. Here she remained, unobserved and unattended until the next morning when she was discovered lying in a pool of blood in a dying condition, and expired in the evening of that day. Kelly remained in the kitchen a short time when he went into Gfeorge Kippen’s room on the same floor, and, after a short conversation, returned with him to the kitchen and remarked, “By Christ, whoever will accuse me of being a whoremaster in this house, or an adulterer, if I had a pistol I would send the contents of it right through him.” He then walked over to Mahar and told him to put on his things and come out doors. As they went out, Margaret said to Mahar, “ That is right Tom, go out doors and go away from here and don’t come around again this night.” Mahar went to the barn with Kelly, who, after doing some chores, returned towards the house when Mahar said to him, “ I guess she is hurt, I think she ought to be seen to.” Kelly replied, “ Wait here, I want to go to the house,” and taking a lantern went to the pantry window and looked in. He soon returned and said, “Let’s go to my house.” Mahar replied, “I will sleep in the barn and I guess I wont go up there to-night.” Kelly says, “No you wont, you must come with me,” and Mahar went with him and remained through the night with Kelly. About seven o’clock the next morning Kelly and Mahar returned to the barn, when Mahar said, “John, I am afraid she is hurt,” to which Kelly replied, “It is good enough for the d--n thing, she might attend to her business.” He also said, “The da—nd rotten thing, she is always making trouble.” It also appeared that Kelly and O’Shea had, at various times previous to the affray, had angry controversies on the subject of his relations" with Margaret, and on one occasion nearly came to blows. He had frequently before this said that he wouldn’t have the d--d thing there and would send her away; that he didn’t want her there, and similar remarks to various persons. After his arrest and on his way to jail, the day after the homicide, on being reproached for his conduct, he said, “A man can’t control himself when everybody is picking on him and his anger gets the best of him.” At the time of the affray Kelly was under the influence of liquor, and he, as well as O’Shea, in the language of the witness, were very angry, and acted like crazy people.

Upon this evidence it was, we think, a fair question for the jury to determine whether the death of O’Shea was produced by that degree of deliberation and premeditation which rendered it murder in the first degree.

So far as this case is concerned the inquiry is, whether the evidence establishes the fact that Eleanor O’Shea was ki11p.fi from a deliberate and premeditated design to effect her death. Section 183 Penal Code. If she was, then the defendant was guilty of murder in the first degree, and was properly convicted of the offense. It is not sufficient to excuse a person from the consequences of a fatal assault upon another, that he has been provoked thereto by an angry controversy of words alone, however aggravating they may have been; but when such language induces a personal conflict of strength between parties of comparatively equal ability to inflict injury, the seizure of a dangerous weapon, accidentally near, by one of the parties and a blow given in the heat of passion, might be regarded by a jury as excusable. This, however, is not the rule where the parties are unequal in strength and the assaulting party has no reason to apprehend physical injury from the other. Here the violence was initiated by the defendant; and, although he had no reason to anticipate adequate resistance, it was followed up and continued after his adversary had been silenced and disarmed.

That there was abundant evidence of deliberation and premeditation in striking the blow which caused death, we do not consider a debatable question in the case, but whether it was delivered with homicidal intent is a question about which some difference of opinion might exist.

We think, however, upon the whole evidence that the jury who saw the parties and their witnesses and heard their evidence, and could judge of their intelligence and credibility, had better opportunities for arriving at a correct conclusion in respect to the question than an appellate tribunal possesses.

The evidence that the affray had apparently terminated after O’Shea excluded Margaret from the room, and retired to the corner most remote from Kelly, with an evident intent to avoid him, and that he then sought her out, after an opportunity to reflect upon his course of action, with the obvious purpose of continuing the affray armed with a new and dangerous weapon, is very persuasive proof of a deliberate and determined purpose on his part. People v. Sullivan, 7 N. Y., 396.

It is obvious that Kelly never considered himself in danger of- bodily harm from O’Shea; he had silenced her tongue, and she showed no disposition to renew the controversy, and all apparent _ reason for continuing it had ceased, except a purpose on his part to inflict punishment upon her. He then, apparently, armed himself with the hammer, a dangerous if not deadly weapon, and proceeded across the room to attack a defenseless and unresisting woman, not possibly with the intention of striking her in the first instance, but evidently with a view of compelling in some way a retraction of her charges against him. In the event that she refused, it was a natural inference from the evidence that he intended to strike her on the head, a vulnerable and vital spot, with the consequences which would naturally follow from such a blow. It is not possible that he could have supposed it would be harmless, and it is difficult to see how he could have expected it would be otherwise than fatal. The indifference with which he witnessed her struggle to reach the pantry, and his peremptory disposition of Mahar for the night, thus removing the only person from the house who was friendly to the deceased and capable and willing to render assistance in her extremity, showed a cruel disposition and a reckless disregard of human life and bore strongly upon the intent with which the blow was inflicted. That he considered the provocation given to him by O’Shea a sufficient reason for killing a human being was ostentatiously avowed by him immediately after the affray, and might fairly have been considered by the jury as an attempted justification of consequences which he then apprehended and probably premeditated. The hindrance which O’Shea had for a long time presented to the continuance of his illicit intercourse with his paramour, furnishes a motive for the crime, which might have been considered by the jury sufficiently strong to induce him to attempt the life of the deceased.

We are, therefore, on the whole case, of the opinion that the evidence supports the verdict of the jury, and that there is no sufficient reason in the facts of the case to authorize the conclusion that injustice has been done the defendant by the judgment appealed from.

The only other point made by the appellant of any importance, is that raised by the objection to questions put to the witness Mahar by the people, respecting testimony previously given by him before the committing magistrate and the grand jury..

Mahar had omitted to testify in detail to the movements of Kelly between the time when the deceased returned to-the kitchen and the infliction of the fatal blow. With the obvious and avowed purpose of refreshing his recollection, the district attorney asked whether he had not previouly sworn that Kelly moved coolly across from the northeast to the southwest corner of the room where O’Shea stood, and, also whether Kelly did not then address her in a low and quite tone of voice.

The witness admitted that he so testified and upon the further question as to whether that was the fact, lie answered that it was. This was certainly quite material evidence and, if it was true, was competent on the part of the people. The fact that he omitted‘to testify to it on his direct examination must be ascribed either to his forgetfulness or a disposition to befriend the accused by its suppression. He had given no evidence conflicting with this statement and it tended in no degree to contradict his testimony. The manner in which it was drawn out might affect the credibility of the witness with the jury; but having affirmed the truth of the facts, aside from his admissions as to his testimony on the previous occasion, it was the province of the jury to give such credit to his evidence as it was entitled to.

We are of the opinion, within the rule laid down in Bullard v. Pearsall (53 N. Y., 230), that it was proper for the people to refresh the recollection of the witness in the manner pursued in this case.

Several exceptions were taken to the rulings of the court upon challenges to jurors made by the accused; and we are of the opinion that none of them were well taken. Thomas v. People, 67 N. Y., 218; People v. Carpenter, 102 id., 238; 1 N. Y. State Rep., 648.

We have examined other points made by the appellant on the argument wtih the care which the importance of the case requires; but are of the opinion that no errors were committed by the trial court which authorize a reversal of the judgment of conviction.

The judgment should, therefore, be affirmed.

All concur.  