
    REAL against THE PEOPLE.
    
      Supreme Court, First District; General Term,
    
    
      December, 1869.
    Court of Otee and Terminer.—Removal of Causes.—Evidence.—Opinion of Witness.— Impeaching.—Error.—Amendment.
    The provision of 2 Rev. Stat., 209, §§ 6, 7, 5 ed., vol. 3, p. 303,—for the transfer of indictments from the courts of sessions to the court of oyer and terminer,—does not peremptorily require that the trial shall take place at any particular term or session of the oyer and terminer, but leaves the control of the calendar with the presiding judge, who may postpone cases so transferred until another term.
    The proof, by the prosecution, of admissions of guilt, made by. the prisoner to an officer, on his arrest, does not entitle the defense to inquire what he said the next day to the officer.
    A non-professional witness may be. allowed to testify to his opinion that the prisoner had the delirium tremens, but not to his opinion as to the general soundness or unsoundness of his mind.
    Upon the trial of an indictment, a witness having admitted that he had been in the penitentiary, without due objection being taken on the part of prisoner’s counsel that such fact could only be proved by the record, the conviction should not be reversed on the ground that the court allowed a further question to be put to him,—how long he had been there ?
    Errors in the pleadings or proceedings, which have not affected the substantial rights of the adverse party, are to be disregarded in criminal as well as in civil cases.
    Writ of error.
    The prisoner, John Real, was convicted, in the oyer and terminer, of murder. A writ of error w'as granted to review the conviction (7 Abb. Pr. N. 8., 26); upon which the cause now came before the supreme court; at general term.
    
      John Graham, for the prisoner.
    
      S. B. Garvin, district-attorney, for the people.
   Clerke, J.

I. The first point taken by the counsel of the plaintiff in error involves the question of jurisdiction. It appears from the judgment record that the indictment was presented in the court of general sessions on the first Monday of August, 1868 ; that on the sixth day of the same month, the said court ordered that the indictment be sent to the next court of oyer and terminer, to be held in and for the city and county .of New York, there to be determined according to law ; that on February 1, 1869, the indictment was accordingly sent to, and received by, the court of oyer and terminer, to be determined according to law; and that afterwards, on February 10, in the same year, at the said court, before a jury for the purpose impanneled and returned, the plaintiff in error was convicted of murder in the first degree, as in the indictment was alleged against him.

The counsel for the plaintiff in error states in his first point that it is not alleged that the session of the court when the prisoner was tried was the court next after August 6, 1868, when the transference of it to the court of oyer and terminer was made; and he says it was conceded on the trial that the next court of oyer and terminer sat in October, 1868. On referring to the error book, I cannot find any such concession.

Ho doubt Mr. Stuart, counsel for the prisoner, in stating his objection to the jurisdiction of the court, affirms that a court of oyer and terminer had been held in the previous October, and he is not contradicted either by the court or opposing counsel. We, however, can alone be guided by the record ; and from all that there appears, we cannot infer that a court of oyer and terminer was held in October, 1868; but on the contrary, it is to be inferred that the court next after August 6, 1868, was held in February, 1869, when the prisoner was tried. But if a court had been held in October, I do not think that it was indispensable that he should have been then tried.

Undoubtedly the statute (3 Rev. Stat., 5 ed., 303) directs, in section 6, that the courts of sessions shall send all indictments not triable therein to the next court of oyer and terminer, there to be determined according to ' law; and in section 7, the, one applicable to the case before us, it says that the said courts may also, by an order to be entered in their minutes, send all indictments for offenses triable before them, which shall not have been heard and determined, to the next court of oyer and terminer, there to be determined according to law. Does this necessarily require that the prisoner shall be tried during the next session of the court, and • if not then tried, that he shall not be tried at all ?

It appears to me that the language of the statute does not. peremptorily require that the trial shall take place at any particular term or session. It shall indeed be sent to the court next after the time when the order of transference had been made; but when it says, “there to be determined according to law,” it does not mean then, at that particular time or session. It still, as on all occasions, leaves the control of the calendar with the presiding judge; and" he retains the power, which every judge necessarily possesses,-of reserving the case or postponing the trial for another term or session, as the exigencies of the occasion or as justice may require.

The counsel for the plaintiff in error refers us to Quimbo Appo v. People, 20 N. Y., 531, in which the judge who wrote one of the opinions in the court of appeals, remarks, that 16 the court of oyer and terminer is a permanent and continuous court, existing in its appointed and stated terms.” But the counsel, if he had read further, could have added the next sentence in the opinion, in which the judge says, “Its successive sessions are terms of the same, and not distinct tribunals;” and being so, being one identical, continuous tribunal, it has undoubtedly power, like any other tribunal, to reserve or postpone a case for trial at any one of its terms, whether it originated there, or was transferred to it from any other co-ordinate or subordinate tribunal.

II. and III. I think, therefore, this first point is not well taken ; and the same reasoning and conclusion will apply to the second and third points, which I consider consequently equally untenable.

IV. The counsel for the prisoner at the trial asked permission to inquire of Mee, a patrolman, and a witness called on behalf of the prosecution, what the prisoner said to him the day after he was arrested. This was overruled, and correctly overruled. The intended question applied to language alleged to have beerruttered by the prisoner at a totally different time and place when and where, the offense was committed, or when and where the first declarations of the prisoner were made. The language was, therefore, no part of the res gestee, or of the declarations.- If unsworn declarations of the perpetrator of a crime, after he has had time to consider and concoct an excuse, were to be received in evidence, he would in all cases be able to manufacture an available defense for himself, if they were 'to be regarded at all by the jury; and if they were not to be regarded by the jury, it would be utter waste of time to receive them at all.

The counsel for the plaintiff in error insisted, on the argument, that the declarations were admissible, on the ground that this witness had testified, in the direct examination, that the prisoner had admitted, first, to him alone on the arrest, and again at the station-house to the captain, in his presence, that he had killed Smedick. And having made these admissions, the counsel contended that the prisoner was entitled to the benefit of any further declarations made in explanation of the admissions at a subsequent period, “as some kind of' counteractive for these admissions.” The counsel, quoting the language of the counsel for the "prisoner at the trial, as follows :—“ Now I ask permission that I may ask the witness what the prisoner said next day,” insists that the meaning of this was permission to ask what reason the prisoner assigned for his act; “because it was as fair, from officer Mee’s testimony, to presume that he said it on the night and at the time of his arrest, when he admitted the act itself, as that he said it next day.” But no such presumption was involved, expressly or impliedly, in the terms of the, proposed question. This question sought for the declarations of the next day, not for the explanations, if any, of the night of the arrest.

If the counsel at the trial wished again to ask the witness if the prisoner, at the several times when he admitted his guilt, also mentioned the reason why he committed the offense, I suppose he would have been permitted to .do so, although the witness has expressly said he did not remember that the prisoner had ’stated any reason at the -time, he made the admission. Yet, no doubt he would have been permitted to refresh the memory of the witness on this subject, if he was able to do so. But, as I have said, the proposed question did not import anything of this kind ; it was confined, in express terms, to what the prisoner had said the day next after the commission of the offense.

Y. McGrill, a witness for the prisoner, was asked to state what the deceased had said to him about the prisoner in the latter part of June, or about July 1, 1868.

This was professedly offered “for the purpose of showing, with other facts, whether, at the time of this occurrence, the prisoner was justified by the circumstances in apprehending danger from the officer.” This presupposes that the mere apprehension of danger justifies the killing of the person from whom it is apprehended. I have no doubt that such an apprehension gives rise to many of those street shootings'which occur so frequently in lawless districts ; but I need scarcely say that the law has never sanctioned any such conduct ; it emphatically condemns and brands it as murder in the first degree.

The alleged threat of the deceased was made during the latter part of June, or the beginning of July; the deceased was killed on the 23rcl of the latter month. The law justifies homicide only when an actual attempt has been made to murder the person committing it, or to commit any felony upon him, or upon or in any dwelling-house in which such person is, or in the lawful defense of such person, or of his or her wife, husband, parent, child, master, mistress, or servant, when, at the time of the attempt, there is reasonable ground to apprehend a design to commit a felony, of to do some great personal injury, and imminent danger of the accomplishment of such design. But apprehension of a previous threat, followed by no overt act, surely does not justify homicide. Such a homicide, I repeat, the law pronounces to be murder in the first degree, while at the same time it affords an effectual remedy to the person against whom the threat is made, to protect him from danger reasonably apprehended..

YI. The same remarks and the same course of reasoning will apply to the sixth point of the counsel of the plaintiff in error. Previous bad treatment will not, any more than previous threats, justify homicide. The law affords redress for the one, as it affords a remedy for the other; and in neither case is the person injured or threatened to be his own avenger.

YII. The counsel for the prisoner at the trial asked the witness Rowe, “From what you saw of him that night (the night previous to the murder), what impression did his acts and words make upon your mind ; what impression as to the state of his mind did his words and conduct leave upon your mind %15 This required the witness to state, from his observation of the whole language and demeanor of the prisoner, his opinion relative to the general soundness or unsoundness of his mind.

The object of it, I suppose, was to show that the prisoner, at the time of the commission of the offense, was laboring under delirium tremens. This the court afterwards expressly told his counsel he was at liberty to show; and the witness, previously to the putting and rejection of the question, gave some evidence tending to show that the prisoner was in such a condition on the evening preceding the day of the murder. He said he thought that the prisoner then had the horrors. But a non-professional person is not capable of satisfactorily answering such a question as that proposed—calling for his opinion as to the general soundness or unsoundness of • the prisoner’s mind.

The case referred to by the .counsel does not, in my • opinion, sustain his proposition (Clapp v. Fullerton, 34 N. Y, 190). The judge who delivered the opinion in that case undoubtedly went very far. There is no reason, however, to infer from his language that he meant to overrule the well-established and long-estabfished and only safe rule, that the opinion of a witness is, in general, not evidence. The witness must speak to facts while on questions of science or trade, or others of the same kind. Persons of skill may speak not only as to facts, hut may be allowed also to give their opinions. In the case referred to, the judge says, that to render the opinion of an unprofessional witness admissible, even to the extent stated, it must be limited to his conclusions from the specific facts he discloses; and this the witness in the case before us did, by saying that he thought the prisoner had the horrors on the night previous to the homicide. His opinion as to the general soundness or unsoundness of the prisoner’s mind was, I think, properly rejected.

VIII. These observations apply with equal force to the counsel’s eighth point.

IX. The counsel of the prisoner at the trial offered to prove that the prisoner was addicted to hard drinking ; that he sometimes drank to great excess, arid continued on drunken sprees for days and weeks at a time, and had delirium tremens and insanity. The court asked whether the counsel proposed to show that, within two or three days previous to the homicide; he had one of those fits on him. The counsel replied, that he did not propose that by the witness, but proposed to lay a foundation to prove it. The court ruled out the question, and afterwards told the counsel, if he could show that the prisoner had the delirium tremens at or about the time of the homicide, he could show it by this or another witness. The counsel remarked, that he proposed to show the drinking first. The course prescribed by the court renders the objection untenable.

X. The observations and reasoriing which I have stated in relation to counsel’s fifth and sixth points, apply to the tenth point. Whether the alleged threats were or were not communicated to the prisoner, the homicide was not justifiable.

XI. Henry Real, a witness called on behalf of the prisoner, was asked, on the cross-examination by the counsel for the people, whether he had ever been arrested in New York? He said he had. He was then asked whether he remembered what it was for ? This was objected to by the counsel for the prisoner, and it was not answered. He was then asked if he had ever been in the penitentiary ? ,This was also objected to by the counsel for the prisoner. The court remarked to the witness, that he need not answer, if he did not think proper to do so. There seems to have been no exception by the counsel for the-prisoner to the admission of the .question by the court; and the witness proceeded to answer, saying, “ I will tell the truth ; I was in the penitentiary.” Then the counsel for the people asked him, “How long there?” The question was objected to by the prisoner’s counsel. The objection was overruled, and then the counsel duly excepted. . This is the only question relating to the point which we are called upon to consider; no exception to the ruling of the court having been taken to the preceding questions put to this witness in relation to his imprisonment in the penitentiary.

There is no point appertaining to the rules of .evidence, on which greater diversity of opinion exists than upon questions calling for answers having a tendency to degrade the character of a witness. I think, however, that now the conflicting authorities on this subject may be deemed.reconciled. Where, as in Newcomb v. Griswold, 24 N. Y., 298, the witness was asked on the cross-examination, whether he had been convicted of petit larceny, although the opposite party alone and not the witness objected, it was held that the party had a light to insist that the conviction be proved by the record, because that is the only proper way of proving a conviction. But where, as in Great Western Turnpike Co. v. Loomis, 32 N. Y., 127, the question called for an answer calculated to disparage the witness, and not directly to prove a conviction, it was held to be allowed or disallowed by the court, in the exercise of its discretion, and that the ruling is not subject to review, unless in cases of manifest abuse or injustice.

In the case before us, the witness having answered that he had been in the penitentiary, although the court informed him that he was not bound to.answer ; and the counsel for the prisoner having taken no exception, was then asked, “How long there?” This was not calling for proof of his conviction, nor did it involve the question of his conviction, which could be proved only by the judgment record, although his having been in the penitentiary presupposes a conviction. But having admitted, without due exception on the part of the prisoner’s counsel, that he had been, there, an answer showing the duration of the time of his imprisonment was, if it was capable of producing any effect, calculated merely to disparage him. The answer, which was in fact given, if believed at all by the jury, must have been favorable rather than prejudicial to him. He answered, “Four months and he added, “innocent of the crime.”

XII. The counsel for the plaintiff in error, in his twelfth point, maintains that the court erred at the trial in refusing to charge the jury, as requested by the ■prisoner’s ’ counsel, that if the proof failed to show which wound it was .that actually killed the deceased, the case was not made out according to the indictment. The indictment charged, in substance, that the prisoner made an assault, and with a pistol, charged and loaded with gunpowder and a leaden bullet, fired at the''deceased, and then and there, feloniously and of his malice aforethought, did strike, penetrate and wound the deceased with the leaden bullet, causing, a mortal wound, of which he died. This the prosecution was bound to prove ; but it mattered not which of the bullets or which of the wounds caused the death of the deceased. Whichever bullet caused his death, it was fired off by the prisoner, out of a pistol held and discharged by him, and inflicted a wound which caused the death of the deceased. This twelfth point, therefore, like all the others, I hold to be untenable.

I have thus patiently and carefully considered all the numerous points, with the introduction and voluminous comments of the counsel of the plaintiff in error. I have a strong conviction that the conclusions at which I have arrived in relation to these points, are incontrovertible. But I am convinced, if I have erred, and if any of the rulings of the court at the trial were erroneous, that the error did not affect the substantial rights of the prisoner. If the rulings were the other way, it is not within the range of legal possibility that the result could have been different. The perpetration of the frightful act itself, the deliberation with which it was executed, the cruel vindictiveness which manifestly instigated and accompanied it, the absence of mental alienation, except what was caused by the tumult of malign passions, were so satisfactorily proved, that whatever disposition the court made at the trial of the various objections and requests of the prisoner’s counsel, the jury could not, without'grave dereliction of duty, have rendered any other verdict than that which they did render.

The doctrine that the court shall'disregárd any error or defect in the pleadings or proceedings, which have not affected the substantial rights of the adverse party, and that no j ndgment shall be reversed or affected by reason of such error or defect, is salutary and just, equally in criminal as in civil cases. It will make the administration of justice more easy and efficient, the triumph of mere’technicality almost impossible, and the impunity of criminals, it may be reasonably hoped, of rare occurrence. The judgment of the oyer and terminer should be affirmed.

Barnard, J.

After acareful examination of the ruiings and exceptions made and taken on the trial of the prisoner, I am of opinion that no error has been committed. The charge was very fair towards him. The case was one that clearly called for a conviction. A jury having a proper regard for their character and the evidence, could have rendered no other verdict. The judgment and sentence of the court below should be affirmed.

Cardozo, J. (dissenting).

There are two grounds upon which I think it so plain that the prisoner is entitled to a new trial, that I shall not examine any of the other exceptions. On the trial the prisoner offered to show threats of violence, which had come to Ms knowledge, made by the deceased against him, and also acts of violence committed upon Mm by the deceased after those threats. This evidence was excluded ; and the question arises whether, upon the case as disclosed upon the trial, that ruling was right. It may be conceded that generally mere threats, or even acts of violence, prior to the homicide, might not be admissible ; but that does not touch the point.

The question here is, whether such testimony is admissible, when there is proof from which the jury,may say that the deceased assaulted the prisoner when the fatal act was done. There was evidence of a scuffle between the parties before the firing of the pistol; and the question is, whether, in such a case, when there is no testimony as to which began the conflict, evidence of threats and of previous violence by the .deceased against the prisoner, is not admissible as bearing upon the question of who commenced the attack, and “as illustrating the circumstances attending the homicide, and as tending to produce a reasonable belief of imminent danger in the mind of the slayer.” That it is, see Franklin v. State, 29 Ala., 14.

After the exhaustive examination of the cases by Chief Judge Davies, in People v. Lamb, 2 Abb. Pr. N. S., 148; S. C., 2 Keyes, 360, I think it must be considered indisputable, that when there is evidence from which the jury may find that the deceased attacked the prisoner, even the general character of the deceased, if shown to have been brought to the knowledge of the prisoner, may be proven upon his: part, “upon the principle that it tends to rebut the presumption of malice, or to show that the killing was in self-defense, or under the reasonable apprehension of great bodily harm” (Id., 371).

And if the general character of the deceased may, under such circumstances, be shown, how much more clear is it when, as in this case, there was evidence from which the jury-might have concluded that Smedick assaulted the prisoner at the very time of the homicide, that evidence of his “particular character” (so to speak) as respects this prisoner—evidence of ill-will toward him—evidence of threats of attack, to the knowledge of the prisoner—evidence that Smedick had bruised and beat the prisoner, to the peril of his life, on several occasions prior to the killing—should be received as bearing upon the circumstances of the case, and as tending to elucidate whether or not, when Smedick was killed, he was engaged in attempting to execute the purpose which it was sworn he had declared he designed, .“to run” the prisoner “to death.”

The exception in this respect, which was taken by the counsel for the prisoner, is well founded. The other exception to which I shall allude is to the evidence, which was admitted under the objection of the prisoner, that the witness Real had been in the penitentiary. That his evidence prejudiced the prisoner, since it cast a reflection upon his witness, cannot be doubted; and it is clear, upon authority, that .the prisoner was entitled to insist upon his legal right to have the record produced, even if the witness were willing to answer. The witness might waive his privilege, but he could not waive the right of the accused.

That the ruling on this subject was erroneous was scarcely disputed on the argument, and is settled by the court of appeals, in Newcomb v. Griswold, 24 N. Y., 298, where the precise point was decided. It is supposed, however, that the effect of that case is overcome by the decision of the same court, in Great Western Turnpike Co. v. Loomis, 32 N. Y., 127. But that is obviously a mistake.

There is no inconsistency between the two cases; and it is not pretended that the former case was intended to be overruled by, or was considered, or even referred to, in the latter. In fact, the question decided by New-comb v. Griswold, and that presented and decided by Loomis’s case, are entirely distinct. The latter case simply holds, that the question of the extent to which inquiry not relevant to the main issue should be allowed, for the purpose of degrading a witness, rests in the discretion of the circuit judge, and will not be reviewed on appeal, unless in a plain case of abuse of discretion. But it nowhere intimates that the legal rule which prevents a record being proved by parol, rests in the discretion of the court.

The extent to which inquiry into irrelevant subjects, with a view to discredit a witness, shall be allowed, is discretionary. It may be allowed, or it may be refused. But if allowed, at all, and to the extent to which it is permitted, the same rules of evidence apply which control as to the competency of testimony addressed to the main issue. It is to be remarked also, that in the case last cited the court was asked to grant a new trial, because the circuit judge had not permitted the witness’ general character to be attacked to the extent that the party desired. The court said, that subject rested in the discretion of the judge below, and might have been wholly excluded without furnishing ground for exception ; but it did not say, and I think no case can be found in which it ever had been said, that the admission of incompetent evidence, tending to discredit a witness, rested in the discretion of the judge, and would not be cause for an exception' in favor of the party prejudiced. I am not willing, in a case involving life,-to split hairs as to whether an exception was noticed on the record with entire precision, when it appears by the error-book that the objection was actually taken, and when the district-attorney treats the exception claimed by the prisoner as being properly in, and presented by, the case.

On the argument the district-attorney distinctly stated that the whole subject matter of this objection was before the court, and he so treats it in his printed points. . I cannot doubt, therefore, that the exception should be considered as duly entered; and certainly, if any question exists on that point, instead of refining away the prisoner’s life, when we cannot say that an error was not committed, we should call the district-attorney before us, and ■ have him say whether the exception noted was to apply to the question immediately preceding it, or whether it referred, as by his concession on the argument it must have done, to the whole inquiry upon that subject, to which objection had been taken and noted. In a case involving only money, a mere slip in formally entering an exception after objection duly made, would be relieved against and corrected by the court; and, so far as I am concerned, I shall not consent to be less considerate when life is involved. For both these errors, I am of opinion that a new trial should be ordered.

I am the more readily brought to this conclusion, because, though no exception was taken to that particular, I think the learned judge committed an error in the charge, which tended' greatly to the prejudice of the prisoner, and for which he would be entitled to a new trial under the statutes of 1855 and 1858, if the indictment had been tried in the sessions instead of the oyer and terminer. The case was presented to the jury by the learned judge, upon the theory that the prisoner must be convicted, either of murder, or else of manslaughter in the fourth degree. In other words, the jury were told that they had no alternative between convicting him of the highest crime, or of an offense of a very light degree. Had they been instructed that under the law and the facts they might convict of the serious crime of manslaughter in the third degree, perhaps they might have- taken that view of the case, and rendered a verdict less severe upon the prisoner than they did; and a charge which took away the opportunity for them to do so, operated unfavorably to the prisoner. The charge took from the prisoner the benefit of having the jury inquire whether his case did not come within the definition of. manslaughter in the third degree; and as the evidence certainly would have warranted such a verdict, the prisoner was prejudiced by having that subject withdrawn from, or not presented to, the consideration of the jury; as that is a subject on which life depends, and the jury, upon a trial conducted certainly in not the most auspicious way for- the prisoner, unanimously recommended the accused to. mercy.-

So much doubt as to the measure of his guilt seems to exist, that we should not be astute to find grounds to uphold the verdict, but should incline to a view by which the case should be again submitted to a jury, under proper instructions, so that complete justice may be done to the prisoner as well as to the people, and so that life be taken through the instrumentality of the law, and in vindication of its supremacy, only when all its forms and requirements have been strictly and accurately observed. I am for a new trial.  