
    The People of the State of New York, Respondent, v. Lewis Pullerson, Appellant.
    Murder—Sufficiency of Evidence — Confession. The evidence on the trial of a man for killing his paramour hy choking her, including evidence of a voluntary confession, reviewed and found to justify the verdict of murder in the first degree — the circumstantial evidence furnishing proof of the commission of the crime in addition to the confession, and warranting the inference of deliberation and premeditation.
    (Argued April 28, 1899;
    decided June 6, 1899.)
    Appeal from a judgment of the Supreme Court, Criminal Trial Term, for the county of Hew York, rendered June 27, 1898, upon a verdict convicting the defendant of the crime of murder in the first degree.
    The facts, so far as material, are stated in the opinion.
    
      Edmund B. Brown for appellant.
    This court will, in capital cases, review the facts upon appeal without regard to whether or not exception has been taken upon the trial. (Code Crim. Pro. § 528 ; People v. Corey, 148 N. Y. 493 ; People v. Kelly, 113 N. Y. 647 ; People v. Driscoll, 107 N. Y. 414 ; People v. Tice, 131 N. Y. 651.) The prosecution must prove beyond a reasonable doubt, and by affirmative evidence, every element which constitutes the Grime of murder in the first degree. (Penal Code, § 183 ; People v. Mangano, 29 Hun, 259 ; People v. Corey, 157 N. Y. 332 ; Stokes v. People, 53 N. Y. 179 ; People v. Conroy, 97 N. Y. 75 ; People v. Fish, 125 N. Y. 136.) People’s Exhibit A, the postal card, was improperly admitted in evidence. (People v. Corey, 148 N. Y. 484.) Defendant’s alleged confessions to the several police officers were improperly admitted in evidence, and their admission constitutes reversible error. (Code Crim. Pro. § 395 ; Teachout v. People, 41 N. Y. 12 ; People v. Chapleau, 121 N. Y. 274 ; People v. McMahon, 15 N. Y. 384 ; People v. Mondon, 103 N. Y. 211.) The court erred in its charge to the jury in commenting upon the evidence unfavorably to defendant. (People v. Corey, 148 N. Y. 493 ; Leighton v. People, 88 N. Y. 120.) The jury were not properly instructed as to the character of circumstantial evidence. (People v. O'Neil, 6 N. Y. Crim. Rep. 412 ; People v. Leonardi, 143 N. Y. 367.)
    
      Asa Bird Gcvrdiner and Charles E. Le. Bwrbier for respondent.
    The verdict was supported by the evidence. (People v. Fox, 121 N. Y. 449 ; Comm. v. Culver, 126 Mass. 464 ; Code Crim. Pro. § 395 ; Cox v. People, 80 N. Y. 500 ; Murphy v. People, 63 N. Y. 590 ; People v. Druse, 103 N. Y. 655 ; People v. Stocking, 50 Barb. 573 ; Arch. Crim. Pl. 40, 41.) The legal elements of murder in the first degree were proved. (Penal Code, §§ 179, 183, 203-205 ; People v. Beckwith, 103 N. Y. 360 ; 1 Philips on Ev. 632 ; Starkie on Ev. 848 ; People v. Conroy, 97 N. Y. 62 ; People v. Clark, 7 N. Y. 385 ; People v. Hawkins, 109 N. Y. 408 ; Leighton v. People, 88 N. Y. 117.) The element of premeditation in homicide cases is for the jury, and the jury in this case having found by their verdict that the homicide was deliberate and premeditated, the Court of Appeals before it is justified in setting aside the verdict of the jury must be able, upon a review of the proceedings, to reach the conclusion that injustice has probably been done upon the trial. (People v. Cignarale, 110 N. Y. 23, 27 ; People v. Hawkins, 109 N. Y. 408 ; People v. Druse, 5 N. Y. Cr. Rep. 10 ; People v. Conroy, 33 Hun, 119 ; Code Crim. Pro. § 517 ; People v. Kelly, 113 N. Y. 647 ; People v. Stone, 117 N. Y. 480 ; People v. Fish, 125 N. Y. 136.)
   Haight, J.

The facts in this case are without material dispute. They are substantially as follows: The defendant Pullerson, a colored man, and Kate Smith, a white woman, occupied a room on the second floor of a house kept by Mrs. Catherine Lee, known as Ho. 327 West 39tli street in the city of Hew York. They lived together as man and wife, but were not married. Pullerson had been out of work for several months, but Kate had a situation as waitress in a restaurant kept by one Bowyer. On the morning of the tenth day of March, 1898, Kate told Pullerson that she was going to the theatre that evening. He appears to have had some suspicion that she was deceiving him, and he, therefore, in the evening went down in the neighborhood of the restaurant where she was working, and waited upon the opposite side of the street until she came out. She then went to a house Ho. 420 West 20th street, he following her, at which place she met a white man waiting for her in the vestibule of the house. As they met they embraced, then went inside. Pullerson secreted himself behind a post on the opposite side of the street, and there watched the house for about an hour and a half until Kate came out. It was then about twenty minutes after seven o’clock. She went along 20tli street to Hinth avenue, and then jumped on to a car going toward her home. Pullerson had no money with which to pay the carfare, and he, accordingly, walked, reaching home about five minutes after her arrival. At that time Kate was sitting in the kitchen of Mrs. Lee, waiting for Pullerson to come in with the key to their room. When he arrived, he looked into the kitchen and said to her, in the presence of Mrs. Lee and a Mrs. Stevens, that he thought she was going to the theatre that evening. She made some reply, the exact purport of which was not understood by those women, and then arose from her seat and followed Pullerson into their room. About fifteen or twenty minutes after, Pullerson came to the kitchen door, put his head inside and said he wished to speak to Mrs. Lee at the front door. She replied, What do you Avant to make me go downstairs for ? ” He said, I want to speak to you.” So she went down and he placed the key of the room in her hand and said, “ I am sorry I am giving you this key in this way. You have always treated me as a lady since I have been Avith you and I appreciate you as such, hut I am giving you this key because I am giAÚng my room up. I have killed Kate, and I am going to the station house now to give myself up.” With that he went out of the front door and disappeared. Mrs. Lee immediately returned to her kitchen, told Mrs. Stevens what had occurred and she ran for an officer. Officer Monroe was found in a few minutes and returned with Mrs. Stevens to the room. The officer took a lamp and the key and went with Mrs. .Stevens into the Pullerson room, the door of Avliieh was found locked. Kate Avas found lying upon the bed, dead. The body was dressed in a black skirt with a purple waist and a lavender ribbon around the neck. The clothing of the body appeared to have been spread out and was evenly arranged; the pocket in the dress, however, was Avrongside out, and upon the floor underneath Avas found a penny. There was blood that trickled down from the eardrum, and there was -froth coming from the nose; her face was congested and blue, and there were marks upon her neck. Dr. Williams, one of the coroner’s physicians, made an autopsy upon the body and found that the rings of the trachea, below the larynx, were lacerated, and that death was caused by congestion and oedema of the lungs, which were produced by force applied to the throat, and that the force in this case, in the opinion of the doctor, was choking.

After Pullerson had delivered the key to Mrs. Lee and left the house he appears to have procured a postal card and written to Mrs. Bowyer, in which he referred to No. 4, calling her a whore and stated that she would not come “ to your place any more.” Kate was known in ÉErs. Bowyer’s restaurant as waitress No. 4. He then, according to his own story, went to a saloon in Seventh avenue and 38th street and got a drink. -He then took a Broadway car and went down town and walked part way across the Brooklyn bridge. He then walked back and went to a saloon in West Third street, where he was found by the detectives about five o’clock in the morning drinking a glass of beer. After his arrest he talked freely with the officers in reference to the transaction, and after he arrived at the station house his statement was written down, read over and subscribed by him. All of the facts with reference to his following the deceased from the restaurant where she was working to 420 West 20th street, her meeting and remaining with a man there for upwards of an hour are taken from his statement. After their return to .the kitchen ■of Mrs. Lee his statement is in accord with hers with the exception that he stated that he guessed that he had killed Kate, instead of saying that he had killed her. His statement is to the effect that after returning to their home he said to her, “ ‘ I thought you were going to the theatre.’ She said, 6 Well, I intended to go to the theatre, but I had so many people to wait on it kept me until after seven o’clock and I could not go.’ This conversation took place in our room. I •says to her, ‘ Why don’t you tell the truth ? Did you come direct home from your work?’ She said, ‘Yes, I took the Sixth avenue car and came directly home.’ I said to her, ‘You are a stinking liar. You went all the way to Ninth avenue and down to 20th street and into a house and a man met you at the door. Is that what you are doing, going around meeting men ? ’ She says, ‘ It is none of your damn business.’ I says, ‘ Stop this swearing in here. It is bad «enough for you to do wrong. Leave me do the swearing.’ She says, ‘ I will go where I please and meet whom I please.’ I said, ‘ You ought to be ashamed of yourself going around and meeting men on the outside. It is bad enough for us to live together.’ One word brought on another; she struck at. me and I choked her. I did not know that I had killed her. I just put my hand around her neck and choked her. I then put a clean handkerchief in my pocket and left the house. I went in the next room to Mrs. Lee and said, 11 guess I have killed her, I don’t know.’ ”

It is true the confession of the accused is not sufficient to warrant his conviction without additional proof that the crime charged has been committed (Code Or. Pro. § 3*95), but in this case we have ample evidence, aside from the confession, corroborating the statements of the defendant. We have a woman in apparently perfect health, entering a room with the defendant, with closed door, who, within fifteen or twenty minutes thereafter comes out of the room, locks the door and goes away, and within nine or ten minutes thereafter the woman is found in the room upon the bed dead. Her face was blue and congested, blood trickled from the drums of her ears, froth came from her nose, marks were upon her face and neck, and the autopsy shows that death was produced by force applied to the neck rupturing the trachea and shutting the air out from the lungs.

The only question that can arise out of these facts as to which there can be a possible doubt is as to whether there waa that deliberation and premeditation on the part of the defendant which would constitute the crime of murder in the first degree. Upon this subject the trial court very fully and properly instructed the jury with reference to the rule of law that should control them in determining this question. The medical expert who made the autopsy tells us that the choking would have to continue for the space of about three minutes in order to produce death. He consequently had that time to consider the nature of his act. Evidence to which we have-already alluded tends to show that he was very jealous of the deceased and highly incensed at her conduct in meeting another man. He had followed her for a considerable dis-tan.ce, after discovering her, misconduct, and had ample time to determine the character of the punishment he should inflict. The postal card written by him to Mrs. Bowyer, after he had produced her death, tends to show that his vengeance was great and had not abated at that time, for he then applied to her the vilest epithet. At the same time, it is apparent he had not hesitated to appropriate her money. A few minutes before, he had not sufficient money to pay a street car fare. When her body was found the pocket of her dress was found turned inside out. After that he had money with which to buy drinks at saloons and to ride down town upon a Broadway car. Under all of the circumstances, we think the question of deliberation and premeditation was properly submitted to the jury and that the evidence is sufficient to sustain the verdict rendered.

Upon the argument of this appeal it was contended by the counsel for the appellant that the postal card was improperly received in evidence ; that the proof of the defendant’s handwriting was not sufficient. However this may be, there can be no doubt about the competency of the postal card as evidence, for the defendant himself admits that he wrote it.

The confession was voluntary. It was not'made under the influence of fear produced by threats or upon any stipulation of the district attorney.

A claim is made that there were errors occurring in the charge of the court to the jury, but no exeeptiorf whatever was taken to it. We have carefully examined it and find nothing that we regard as prejudical to the rights of the accused.

The judgment should be affirmed.

All concur, except G-eat, J, absent.

Judgment affirmed.  