
    Supreme Court—General Term—first Department.
    March, 1883
    PEOPLE v. HOVEY.
    Mubdee.—Omission of Peisonee to call Eye-witness.— Husband and Wife, Testimony of.—Evidence.— Peemeditation and Delibeeation.
    Upon the trial of an indictment for murder in the first degree, it appeared that the only eye-witnesses of the killing besides the parties, was the wife of the prisoner, who was not called by him, and whose testimony was rejected upon prisoner’s objection, when she was called by the prosecution. The court charged the jury, . . “ the people claim that inasmuch as it appeared in evidence that she was an eyewitness to the occurrence, accessible to the defendant, and the defendant was .allowed by the law to call her as his witness, and having neglected to do so, that this is a circumstance which the jury have a right to consider in coming to a conclusion. And the people claim that the prisoner’s omission to call her as a witness, under the above circumstances, should be taken as a matter of evidence against him, and they claim that the fair presumption is, that if she was called, her testimony would not be favorable to defendant.” Meld, not error.
    Under Laws 1876, chap. 183, § 3, the right of either a husband or wife to call the other as a witness on his or her behalf upon a criminal trial, is absolute, and does not depend on the option of the party called.
    It is not error to allow the prosecution upon cross-examination, to ask the prisoner how many times he had “been in prison,” and whether, each time, it was “for stealing.”
    The evidence in this case fully reviewed and considered by the court, and held sufficient to show that the killing for which the prisoner was indicted, was the result of a premeditated and deliberate design to effect death.
    Appeal by defendant from judgment of the General Sessions of Hew York. .
    An indictment of murder in the first degree was found against defendant, and was, on September 21, 1882, tried before Hon. Bufus B. Cowing, City Judge, and a jury, and resulted in a judgment convicting defendant of murder in the first degree.
    
      A motion for a new trial upon grounds stated in the opinion was made and denied when defendant was arraigned for sentence, and exception taken.
    The facts, and such portions of the charge as are claimed to be erroneous, are set forth in the opinion.
    
      William F. Kintzing, for the prisoner, appellant.
    Defendant’s omission to call his wife should not have been taken against him.
    I. The evidence discloses the fact that the wife was hostile to her husband, and would not have willingly testified to anything in his favor. The principle of law that the failure to produce a material witness to an occurrence in the power of a party to produce, is a circumstance that can be argued against him, does not apply to witnesses whose competency to become such depends upon their own option. It is submitted that the words of the statute “ may be examined ” are simply permissive, ail’d it was optional with the wife whether she would become a witness or not. The evidence in the case discloses the fact that the defendant’s wife would not have been a willing witness for him, and, without her consent, it was impossible for the defendant to put her upon the witness stand. The competency of a wife, as a witness, depends upon her willingness to testify, without the slightest power on the part of her husband desiring the testimony, or of the court or of the law to interfere or to have a word on the subject (22 Alb. L. J. 81). Considering the position which the wife occupied in the case, the charge as to effect of the omission to call her, was clearly erroneous. In the following authorities the principle charged by the court, has been discussed. 1 Starkie Ev. § 24 ; 2 Starkie Ev. 6 Am. ed. 685 ; 1 Phillips Ev. 172 ; 2 Phillips Ev., Cow. & Hill's Notes, 459, 460 ; 3 Bl. Com. 371. See People v. Gordon, 33 N. Y. 501; People v. Dyle, 21 Id. 578; People v. McWhorter, 4 Barb. 438 ; People v. Bodine, 1 Den. 281; People v. Ormsby, 53 N. Y. 475 ; Kennedy v. People, 39 Id. 254; People v. Tweed, 5 Hun, 388; Brooks v. Steen, 6 Id. 517; Bleecker v. Johnson, 69 N. Y. 313. The close relations existing between man and wife might well cause a man to hesitate before calling her as a witness, and his failure or neglect to call her ought not to work to his injury, nor should it create any presumption against him ; she is placed in the same position as the defendant who does not avail himself of the law permitting him to be a witness in his own behalf, which does not make against him.
    II. The court erred in permitting the prosecuting officer, upon the cross-examination of the defendant, to interrogate him as follows : Q. “ How often have you been in prison V’ A. “ Three times.” Q. “ For what ?” A. “ For stealing.” Q. “ Each time V’ A. “Yes, sir.” Ho objection or exception was taken at the time, but it was not necessary. Code Crim. Pro. § 527. This cannot be justified under section 832 of the Code of Civil Procedure, for it was only intended to apply to civil actions and proceedings, except where otherwise provided. Perry v. People, 86 N. Y. 353. If the answer of the defendant meant or would justify the inference that he was in prison each time for stealing, serving out a sentence upon conviction for a crime, it was error, there being record evidence of the conviction and sentence. Hewcomb v. Griswold, 24 N. Y. 298. When the question involves the fact of a previous conviction, it ought not to be asked, because there is higher and better evidence which ought to be offered. 1 Greenl. Ev. § 457. See also King v. Inhabitants of Castell Careinion, 8 East 77 ; People v. Herrick, 13 Johns. 82; Hilts v. Colvin, 14 Id. 182; Jackson v. Osborn, 2 Wend. 555 ; 1 Greenl. Ev. §§ 460, 461, 457, 463; 1 Taylor Ev. 292 ; 1 Phillips Ev. 291, Cow. & Hill’s Notes, 540, 766; Worrell v. Parmelee, 1 N. Y. 519; People v. Wiley, 3 Hill, 194-214; Commonwealth v. Kinison, 4 Mass. 646; State v. Zellers, 2 Halst. 220 ; West v. State, 2 Zabr. 212; Davis v. State, 17 Ala. 355; Commonwealth v. Thompson, Thatcher Crim. Cas. 28; United States v. Gibert, 2 Sumn. 19; Queen’s Case, 2 B. & Bing. 293; Lee v. Chadsey, 3 Keyes, 225. If the answer of the defendant meant or would simply justify the inference that his confinement in prison was only upon a charge of larceny, then it was clearly erroneous. People v. Crapo, 15 Hun, 76 N. Y. 285. See also 1 Phillips Ev. 291; Cowen & Hill’s Notes, 530, 766; 2 Id. 943 (5 Am. ed.); 1 Greenl. Ev. §§ 460, 461; People v. Gay, 7 N. Y. 378; People v. Genung, 11 Wend. 19; Parkhurst v. Louten, 2 
      Swans. 216; Jackson v. Osborn, 2 Wend. 555; People v. Brown, 72 N. Y. 571; 8 Hun, 562; Real v. People, 42 N. Y. 271; People v. Casey, 72 Id. 393.
    III. A verdict of guilty of murder in -the first degree upon the evidence was erroneous. The act of the defendant cannot be construed as the result of “ deliberation and premeditation.” The killing must not only have been intentional, but the result of deliberation; the intent conceived must have been nursed. The statute is not satisfied unless the intention was deliberated upon. The court should not overlook the fact that “ premeditation differs essentially from will, which constitutes the crime, because it supposes besides an actual will a deliberation and continued persistence which indicates more perversity.”
    
      John McKeon, district attorney, and John Vincent (assistant), for the people, respondent.
    (The points presented on behalf of the people are fully covered by the opinion of the General Term.)
   Brady, J.

The defendant was indicted and convicted of murder in the first degree for killing his sister-in-law, Fannie Yermilyea, April 20, 1882. At the time of the killing the deceased and the appellant occupied different apartments on the same floor of a boarding-house, situate at No. 273 West Thirty-eighth street, in this city. On the night preceding the homicide the deceased took from the defendant a pistol which he was in the habit of carrying, and hid it. At this time his child, who was an infant, was seriously ill with the scarlet fever.

On the following morning,—i. e. the day of the killing,—the defendant, in the presence of the deceased, wanted his wife to wash his feet, when the deceased said to him, “ Eddie, you ought to have more thought for your dying baby ; ” to which he replied, “ You’re getting too God damned high-toned.” He soon after left the house, but returned at about one o’clock in the afternoon for dinner, having taken which he again left, and sometime during the afternoon went to a pawnbroker’s shop, where he pawned his coat, purchased a pistol, loaded it, and, returning to his house, went to the room of the deceased and shot her, the ball passing through the lung, and death ensuing within a few minutes. This occurred about twenty-five minutes after his return. He then went out into the hallway connected with the room, where he was seen by another sister of his wife,—namely Sophia McCullough,—who having been called as a witness testified that having heard the shot she asked him what he had done ; to which he responded, “Nothing,” although the pistol was still in his hand. She further testified that he then went into her sister’s room again, and she ordered him out; whereupon he went across the hall to his own room where his sick child was lying. The witness then requested him not to touch the baby; to which he responded, alluding to the witness, “ You little son of a bitch, if you don’t get out of this room I will kill yon too.”

It appears further from the testimony of Mrs. Byrnes, that her attention was directed to the shooting by the request of the deceased, “ Mrs. Byrnes, save me! ” Whereupon she ran ■ to her and caught her in her arms. While she was thus holding the deceased, the prisoner was brought into her presence, when the witness said to him, “ Look what you have done ! ” and he laughed. This was at a moment when the deceased was “just departing,” to use the language of the witness, and he was in the custody of the officer—indeed had walked over the dead feet of the deceased, as the witness stated. The laugh seems to have been the only indication of his consciousness of the observation which was made to him by the witness.

The officer who arrested him, at the time of his arrest and in the house where the shooting took place, asked him if he was the man who did the shooting ; to which he said, “ Yes.” As they passed over the body of the deceased he said to him, “ Is that the woman you shot ? ” And the prisoner answered “Yes.” The officer further asked him, “ Is that [exhibiting it] the pistol you shot her with % ” To which he replied “ Yes,” saying in addition, “ And if I'had another bullet in that pistol you never would have taken me from that room.” The officer further testified that having taken him to the station-house, the sergeant asked if he shot the woman, to which he replied, “ Yes.” The sergeant then further asked, “ What did yon shoot the woman for % ” And the answer was that that was liis. business and not the sergeant’s.

Upon this testimony:—the effect of which the appellant essayed to overcome by his story,which was that the shooting was accidental—the jury found him guilty of murder in the first degree.

There was evidence on the part of the defense to show, doubtless to account for the possession of it, that from his boyhood it had been the habit of the defendant to carry a pistol. It will have been observed from this statement of the case that no witness was called who saw the shooting, except the defendant, who committed the deed, and therefore the importance of the circumstances mentioned must impress itself at once upon' the mind upon the question of premeditation and deliberation, which were necessary elements to establish the guilt of the appellant to the extent pronounced by the verdict herein.

On the night preceding the killing, as we have already seen, the deceased took the defendant’s pistol and hid it, and no doubt from a good motive. It is true he says he was in the habit of giving her his pistol at night, and this necessarily involved the ceremony of returning it to him upon the following day; but on this occasion the pistol was not returned, it was hid. It is a slight circumstance, it is true, but unfortunately for the viciously inclined, the history of crime shows that violent deeds are sometimes committed upon very slight provocation.

In addition to this circumstance, however, as we have seen, the appellant wished his wife to wash his feet, and at a time which, in consequence of the severe illness of his child, and who died the next day, seems to have been most solemn. The deceased reminded him of that fact by saying, “ Eddie, you ought to have more thought for your dying baby,” an observation with which he was evidently displeased, because, as we have already seen, his answer was, “ You are getting too God damned high-toned.” The hiding of the pistol and the observation of the deceased appear to have been proper in themselves, and not calculated to produce very great excitement. They seem, however, to have aroused within him a malevolent sentiment, a passion for revenge, which was to be appeased only by slaughter. Unless we accept his story that the shooting was accidental, no other view can be taken of the occurrence.

It was the- feeling suggested that induced him to pawn his coat and to buy the pistol and load it. It is proper to observe here, that there is no evidence in the case, showing that he was engaged in a calling which required such a weapon for his protection, or that he was in imminent danger in any respect, and, therefore, the loading of the pistol in the pawnbroker’s shop, marked by the preceding circumstances to which reference has been made, must have been with an object, and that object was the killing of the deceased, and was carried into execution within a few hours after the purchase of the pistol. ■ The causes which led to the act are trivial, it is true, when judged by the ordinary standard of human action, but in a bad-tempered man, a person easily excited, quickly inflamed, destitute of a decent sense of propriety, and more particularly if a criminal by habit, they might be, and indeed in this case seem to have been, quite sufficient to instigate the crime of which the defendant was convicted. That he was a criminal by habit, or, if the word habit is not justifiable, that he was a criminal at all events, is shown by his cross-examination, for, when he was .asked how often he had been in prison, he said three times, and each time for stealing.

The jury took all these circumstances into consideration, and the fact also that the defendant’s wife was present when the deceased was shot, and could have been called as a witness on his behalf. He failed, to call her to corroborate, if she could do so, his statement as to the shooting being accidental. It is impossible for us to say, therefore, under all the facts and circumstances to which reference has been made, that the jury were not entirely justified in finding the prisoner guilty of murder in the first degree—premeditated and deliberate murder.

The learned judge, in charging the jury, said : “ There is no eye-witness who has testified to the occurrence, except the defendant. The people claim, however, and the uncontradicted evidence established that there was another eye-witness to this occurrence, namely, the wife of the defendant. You remember when the wife was offered as a witness, on behalf of the people, the court would not allow her to be examined as a witness against her husband, for in my judgment, the law does not permit it, but while that is so, the law does allow the wife to be a witness in her husband’s behalf, and the people claim, that inasmuch as it appeared in evidence, that she was an eye-witness to the occurrence, accessible to the defendant, and the defendant allowed by the law to call her as his witness, and having neglected to do so, that that is a circumstance which the jury have a right to consider, on coming to a conclusion. And the people claim, moreover, that the prisoner’s omission to call her as witness under the above circumstances, should be taken as a matter of evidence against him, and they claim that the fair presumption is, that if she was called, her testimony would not be favorable to the defendant.”

No exception was taken to the observations thus quoted, but after the verdict of guilty had been rendered, and at a sitting of the court upon the 29th of September, 1882, when the appellant was arraigned for sentence, a motion was made for a new trial: First. Upon the ground that the verdict was against the weight of evidence; and, Secondly. That there was not sufficient evidence in the case to show that the act was the result of a premeditated and deliberate design to effect death. And the counsel for the defendant, in connection with these two grounds, urged the error which it was alleged had been committed by the learned judge presiding, in making the observations which have been quoted. The application was made under section 527 of the Code, which provides that in cases of this character, tried in the Court of General Sessions, the appellate court may order a new trial, if it be satisfied that the verdict against the prisoner is against the weight of evidence, or against law, or that justice requires a new trial, whether any exceptions shall have been taken or not in the court below. In the consideration of this case, the appellant should, therefore, be given the full benefit of this section.

The question of premeditation has already been discussed, as will have been seen, and a result arrived at unfavorable to him, and the disposition of it in the court below sustained. The verdict was not against the weight of evidence—there was sufficient proof that the killing was the result of a premeditated and deliberate design to effect death.

No error seems to have been committed, either by the remarks of the learned judge, in reference to the omission of the defendant to call his wife as a witness. It will have been perceived, that in .commenting upon this circumstance, the learned judge merely repeated the claim made on behalf of the people,namely, that the prisoner’s omission to call her as a witness, under the circumstances disclosed in the charge, should be taken as matter of evidence against him; that the fair presumption was, that, had she been called, her testimony would not have been favorable to him. It was not asserted as a conclusion of law, that such a result must follow, or that such must be the consideration given to the circumstance by the jury, but a state-' ment, merely, of the claim put forth by the prosecution of the argument on behalf of the people—that the omission was one which should be regarded by the jury as prejudicial to the pris-' oner. The facts affecting it are, that his wife was in court, and ..that she was called as a witness by the prosecution, but excluded upon the objection of the prisoner’s counsel. It seems to have been conceded that she was present at the time of the shooting, and, therefore, could have stated the circumstances attending the act. The charge is clearly within the rule of law as enunciated by the adjudged cases.

In the case of Gordon v. People, 33 N. Y. 508, it was held, that when one accused of the crime of murder was required to account for his whereabouts at' a particular time, to avoid the force of criminating circumstances, his omission to produce the evidence is not conclusive of the facts in dispute, but the force of such circumstances may be left for the consideration of the jury. The absence of such evidence, the court said, especially when it seems to be in the power of the prisoner to furnish it, creates a strong presumption of his guilt, a strong inference against him, and is a circumstance greatly corroborative of the truth of the evidence given upon the other side, and, in a doubtful case, would justify the jury in resolving the doubt against him.

The case of Gordon v. People is cited with approbation, and the rule is substantially reiterated in the case of Bleecker v. Johnston, 69 N. Y. 309. See also Brooks v. Steen, 6 Hun, 517 ; also the case of People v. Tweed, 5 Hun, 387, in which the learned judge, in discussing the subject, said, that the omission to furnish an affidavit denying the facts upon which an order of arrest was founded, rendered if probable that he could not truthfully do it, and the effect of it was to increase the force of the circumstances disclosed, as well as the probability that the statements made by two of his accomplices as to what really did take place, and the court then states the rule declared in the case of People v. Gordon, supra.

Under these circumstances, and in view of these authorities, it is quite clear that no error was committed by the learned judge in simply stating to the jury the claim made on behalf of the people, without telling them the effect of it, and without in any way expressing any opinion about it, presenting it, as he did, for the consideration of the jury, and leaving it entirely with them to determine its weight and effect.

It is said on behalf of the appellant, that the presumption must be that his wife was hostile to him, and that he was not, therefore, obliged to use her as a witness, or to be subjected to any. criticism because he did not call her. This view is fallacious. The presumption is that she would tell the truth, and the appellant must take the consequences of such presump-tion.

It is also urged that under section 2 of the Law of 1876 chapter 182, it was optional with the wife whether she would become a witness or not on behalf of her husband, that act depending upon her own will, and being free from any control of her husband. This view is predicated of this language of the section: In all criminal trials and examinations before trial, a husband or wife may be examined as a witness on behalf of the other,”—but it is clearly erroneous. The legislature meant to confer, and did so, upon the husband the privilege, in a criminal proceeding against' him, of calling his wife as a witness, if he chose to do so—not to give her any other right than to call him, if she chose to do so, under similar circumstances. She could not decline to become a witness, or exercise any option in regard to it. If called by him she must respond, or be punished for contempt. It is the husband’s right to call her, and as well the wife’s right to call him, by the same section. They may be witnesses, if the right thus conferred is exercised by either, but cannot be compelled to testify against each other, at the call of any other person hostile to either. This construction of the statute is demanded by its language. If it be not, then no benefit was created by the section and it is a nullity.

Sor was it error to allow the defendant, upon cross-examination, to he asked how many times he had been in prison.

Section 832 of the Code expressly authorizes such a line of examination. It declares that a person who has been convicted of a crime may be asked, on cross-examination, as to the facts. Hot only that, but it provides that the person cross-examining is not concluded, by his answer to such a question; so that if the witness falsely states that he was not convicted, his testimony may be disproved.

Thé points presented on behalf of the appellant have thus been considered, and the duty of the court requires, for the reasons stated, a declaration that he shall take nothing by his appeal, and that the judgment should be affirmed.

Ordered accordingly.

Davis, P. J., and Daniels, J., concur.  