
    The People of the State of New York, Respondent, v. Henry Miles, Appellant.
    Under the provision of the Penal Code defining murder in the first degree (§ 183), which includes the killing of a human being “by a person engaged in the commission of or attempt to commit a felony either upon or affecting the person killed, or otherwise,” the word “ otherwise ” is not confined to felonies against property simply, but also includes a felony upon or against a person other than the one killed.
    Upon the trial of an indictment for murder, in advance of the selection of a jury, and before any of the panel had been examined, the parties, by permission of the court, elected to have all peremptory challenges as to jurors determined before the juror left the witness stand, and if accepted, that the final oath be at once administered. "A juror was then called and sworn as to his qualification; after his examination by the prosecution, defendant’s counsel asked if the juror was satisfactory to the People, to which the district attorney replied: “We do not challenge him for bias nor for favor.” Said counsel then asked the court to direct that the prosecution should at once accept or reject the juror, and pxercise it? right of peremptory challenge then, if at all; this, the court refused. The juror was then examined by the prisoner’s counsel, and, after his examination was concluded, the court called upon the district attorney to exercise his right of peremptory challenge; he interposed none, and said counsel having expressed himself satisfied, the juror was sworn. Held, that the ruling of the court was not error; that there was a full compliance with the provision of the Code of Criminal Procedure (§§ 385, 386) in reference to challenges.
    One of the defenses interposed was insanity; after evidence had been given on the part of the defense as to the words and actions of defendant on an occasion specified, which it was. claimed were so strange and inexplicable as to indicate insanity, the prosecution was allowed to show that on that occasion defendant was intoxicated. Held, no error.
    It appeared that the person killed was shot by defendant; he, as a witness in Ms own behalf, testified that the fatal shot was fired, not at the deceased, but in the direction of another person. Held, that, assuming defendant, in an attempt to wound or Mil such other person, by a false ' aim killed the deceased, it was murder in the first degree.
    (Argued October 9, 1894;
    decided October 23, 1894.)
    Appeal from judgment of the Court of Oyer and Terminer of Jefferson county, entered upon a verdict rendered March 13, 1894, which convicted the defendant of the crime of murder in the first degree, and also from an order of said court denying a motion by defendant for a new trial.
    The facts, so far as material, are stated in the opinion.
    
      Wilbur F. Porter for appellant.
    This court is clothed with the power to grant a new trial; if it be satisfied that the verdict was against the evidence or law, or that justice requires a new trial, it should grant it. (Code Civ. Pro. § 528; Code Crim. Pro. § 385.) The court erred in permitting the witness Lester H. Baum to testify that on an occasion when trying to settle with deceased at half-past two o’clock in the afternoon, at Evans Mills, defendant was intoxicated. ( Warner v. N. Y. C. R. R. Co., 44 N. Y. 465.) It appeared upon the trial, by the evidence of the defendant, that in an attempt to maim Rusaw, Mary A. Ward received the discharge of the gun, from the effects of which she died. Upon this evidence the jury, upon the contention claimed for by the defendant, might have found the defendant guilty of a crime less than murder in the first degree. (Laws of 1860, chap. 410; Laws of 1873, chap. 644; Dolan v. People, 64 N. Y. 485; Buel v. People, 78 id. 492; Cox v. People, 80 id. 502; People v. 
      Greenwall, 115 id. 520.) The charge, as a whole, left no doubt in the minds of the jury as to the opinion entertained by the court relative to the case and the degree of murder the defendant should be convicted of. This is contrary to the spirit and intention of criminal law and criminal trials, destroys the confidence of the jury in themselves, and breaks down the bulwark of safety in a jury trial. This was manifest throughout the trial, and is urged as a reason for a new trial. ( Wasson v. Palmer, 13 Neb. 376; Dingman v. State, 48 Wis. 485; Vedder v. Fellows, 20 N. Y. 126.)
    
      Virgil K. Kellogg for respondent.
    The defense that at the time of the alleged murder the defendant was of unsound mind and incapable of reason or judgment to appreciate the nature and quality of his act, or to know that it was wrong, is untenable. (Brotherson v. People, 75 N. Y. 159; Penal Code, § 17; People v. Fish, 125 N. Y. 153; Flanagan v. People, 52 id. 467; People v. Carpenter, 102 id. 250; People v. Walrath, 4 N. Y. Cr. Rep. 395 ; Willis v. People, 32 N. Y. 717; Moett v. People, 85 id. 379.) The charge of the trial justice as to the degree of crime committed was proper. (Penal Code, § 218; Buel v. People, 78 N. Y. 492.) It may be contended that the common-law indictment would not warrant the finding that Miles killed Mrs. Ward while shooting at Rusaw. This would be untenable. (People v. Giblin, 115 N. Y. 196.)
   Finch, J.

The defendant has been convicted of murder in the first degree and sentenced to death. His counsel assails that judgment for alleged errors occurring at the trial, and also insists that upon the merits the conviction should only have been for murder in the second degree.

In advance of the selection of a jury, and before any of the panel had been examined, the mode and order of that selection came up for discussion. The court allowed the parties to choose whether all peremptory challenges should be reserved until twelve jurors had been provisionally selected, or whether the case of each juror should he fully settled before leaving the witness stand, and if accepted the final oath be at once administered. The parties chose the latter method and the court assented.

Thereupon Walton B. Canter was called and sworn as to his qualification as a juror. He was examined by the prosecution and at the close of that examination the prisoner’s counsel asked if the juror was satisfactory to the People, to which the district attorney replied, “ we do not challenge him for bias nor for favor.” The defense insisted that the prosecution should at once accept or reject the juror and exercise its right of peremptory challenge immediately if it meant to do so at all: and to the refusal of the court to so direct an exception was taken. The juror was then examined in behalf of the prisoner, and both examinations having been concluded, and the basis obtained for determining whether challenges should be interposed or not, the court called upon the district attorney for the exercise of his right. There was no challenge for general disqualification, nor for implied bias, nor for actual bias, and then the district attorney was called upon to exercise his right of peremptory challenge. He interposed none, and, after a few further questions, the prisoner’s counsel announced himself satisfied and the juror was sworn. In this process there was full.obedience to and no disregard of the provision of the Criminal Code that challenges to an individual juror must be first taken by the People and then by the defendant. (§ 385.) The next section, fixing the order of the different challenges, indicates that they might have been disposed of in that order. Practically that result was accomplished, but at all events the prisoner’s counsel was in no case and in no manner compelled to challenge until after the prosecution had fully exhausted its right.

One of the defenses interposed on the trial was that of insanity. To sustain it proof was given of the conduct of the defendant at Evans’ Mills on an. occasion when he was trying to settle his business difficulties with Mrs. Ward, and it was Maimed on his behalf that his words and actions on that occasion were so strange and inexplicable as to indicate insanity. To rebut that inference and answer the manifest tendency and purpose of the proof, the prosecution were allowed to show that on that day and that occasion the defendant was intoxicated, and that his excited and ugly conduct was explainable by that fact. The evidence was clearly admissible.

On the day of the homicide the witness Carpenter was one of the first persons who came upon the scene, and described in very considerable detail what the prisoner said, what his appearance was, and the manner of his conduct. The following question was then propounded by the defendant’s counsel: “After you were over there at the house with him, before leaving for Evans’ Mills, how did his acts and conversation, which you have here related upon the stand, impress you at the time as to being rational or irrational ?” To this inquiry the prosecution objected that it aggregated a whole series of acts and words and called for an opinion upon that aggregation, leaving it impossible to determine upon what specific acts or words the impression of the witness was founded. The court took that view of the question and at first excluded it, but thereafter changed its ruling and explicitly allowed the question read from the stenographer’s minutes to be put to the witness and answered by him. Thenceforward similar questions were asked by the defendant’s counsel of other witnesses, and I have discovered no instance in which they were excluded.

The remaining objections respected the charge of the court.

The trial judge defined murder in the first degree, using for that purpose the words of the statute. In so far as that definition involved homicide while engaged in the commission of a felony the prisoner’s counsel insisted that it had no application to the facts disclosed. The defendant as a witness testified that the fatal shot was fired not at Mrs. Ward, and not even at Rusaw, but in the latter’s direction, without intention to kill or even to wound him, but solely to frighten him and so drive him away from the premises. The truth of that testimony was submitted to the jury, the court saying that upon that theory the woman was shot accidentally and the prisoner was not guilty. The jury disbelieved the pretended accident and rejected the explanation, and that they were fully justified in that conclusion is apparent from two facts. If the killing of Mrs. Ward had been accidental the prisoner would have said so at the time; it would have been the first word to spring to his lips; the natural and swift explanation made to those who came upon the scene. But no such word was then uttered. His first word to Carpenter was “ What are you going to do with me ? ” and then he said: I have shot that woman.” He proposed to carry the dead body into the house, and when Carpenter doubted their right to do so, he insisted and said : “ They will electricity me.” This was the evidence of Mrs. Carpenter, who did not go into the house when they carried the body.in; but she adds that when they came out the defendant in answer to her remark, “ You hadn’t ought to done that,” replied, “ I don’t think I had ought to, but she would have other men around her, and she slept with that hired man all night,” and further added, She has got my property all away from me.” The defense called Mr. Carpenter, who not only corroborated his wife, but repeated what occurred in the house mwhen the body was laid upon the bed. The prisoner bent over her and kissed her, and said: “ Mary I have shot you — I have killed you— my God, Mary, I have killed you — but I couldn’t help it — I done it because I loved you—you have lied to me — you have proved false to me and I couldn’t stand it.” All these expressions indicating an intentional killing, and the motive for it are utterly inconsistent with any theory of accident, which was evidently an afterthought. Beyond that the two lines of fire, towards Mrs. Ward in one direction and toward Rusaw in another, were shown to be seventeen feet apart, and made the theory of an accident quite improbable.

■But assuming that Miles did shoot at Rusaw intending to wound or kill him, and by a false aim killed Mrs. Ward, the defendant’s counsel contended that the court erred in describing it as murder in the first degree, and that a felony affecting another than the person killed will not he sufficient to make the homicide murder in that degree. The words of the statute are “ by a person engaged in the commission of or in an attempt to commit a felony either upon or affecting the person killed or otherwise.” (Penal Code, § 183.) The construction asserted is that the word otherwise ” relates only to felonies against property and does not include a felony upon or against a person other than the one killed. The supposed authority for this construction is People v. Greenwall, (115 N. Y. 520), hut it decides no such proposition. In saying that the word “ otherwise ” cannot ho changed into “ another ” it means only that it cannot be so narrowed and limited and that it includes a felony against property as well as against another. There was no error in the charge in this respect.

That, charge was not unfair or an invasion of the province of the jury. The evidence, could not be re-called and put before them hi its logical order without seeming to bear heavily upon the prisoner, hut they were left to find the facts and steadily instructed that no opinion of the court was intended to he expressed, or should at all influence then’ conclusion. No opinion was expressed upon any fact in dispute, hut the testimony given was recalled so far as was needed to make plain the legal rules which it ivas the duty of the court to state and to explain. There was in truth no defense available to the prisoner. The proof of insanity fell far short of the legal standard, and the examination of the prisoner himself showed that he fully understood at the time the nature and quality of his act.

We see no reason for a reversal of the verdict.

The judgment should be affirmed.

All concur.

Judgment affirmed.  