
    Court of Appeals. June Term,
    1863.
    
      Hunt, Woodruff, Mason,
    
    
      Grover, Dwight, Miller, Bacon and Olerlce, Justices.
    Maurice Lanergan, Plaintiff in Error, v. The People, &c., Defendants in Error.
    A felony may be charged in an indictment in different ways in several counts, for the purpose of meeting the evidence as it appears on the trial, and if the different counts are inserted in good faith, for the purpose of making a single charge, the court will not compel the prosecution to elect.#
    Conversations between parties, in order to be admissible as evidence against an accused person, must have been not merely in his bodily presence, but in his hearing and understanding. A declaration made in the presence of one unconscious from sleep or stupor, cannot be given in evidence against him-
    The Court of General Sessions of the Peace, in and for the city and county of New York, is a “Court of Sessions” of the county of New York, within the meaning of the act of 1859 (Laws of 1859,- chap. 339, § 4), it being within the description of the words “ The Court of Sessions of any county of this State.”
    An intent to kill, formed on the instant of the killing, is within the meaning of the word “ premeditated,” under the act of 1862, amending the law of murder, as well as under the Revised Statutes.
    Drunkenness is no excuse for crime, and a person who is voluntarily in that condition, is resposible for the consequences of his acts.
    Evidence of intoxication is admissible on trials for murder, because it may tend to cast light upon the acts, observations or circumstances attending the killing; but intoxication must result in a fixed mental disease, of some continuance or duration, before it will have the effect to relieve from responsibility for crime.
    Concealment is evidence of malice, and tends to establish a premeditated design to commit the deed.
    The plaintiff in error was indicted in the Court of General Sessions of New York, at the April term, 1868, for murder, in taking the life of his wife Delia, on the 26th day of March, 1866. The indictment contained three counts, alleging severally a killing: first, with an axe; secondly, with a knife; and, thirdly, by beating and choking. He was tried at the June term, 1867, the Hon. John K. Hackett, recorder, presiding.
    The evidence, as given on the trial, tended to show that the prisoner and the deceased occupied two rooms on the second floor of a tenement house at No. 135 Washington street, in the First ward of the city of New York. That they were both of very intemperate habits, and frequently quarreled.
    The deceased commenced to drink freely of liquor on St. Patrick’s day, and continued more or less under its influence down to the time of her death. Upon the 26th of March the prisoner, in company with one George Cram, visitJd the premises of John Hickey, brother-in-law of deceased. They were both under the influence of liquor. While there, the prisoner spoke about his wife, and swore he would kill her. Later in the day Cram induced the prisoner to go home, and accompanied him to his' house in Washington street. Upon arriving there and going into the prisoner’s room, the deceased was found there considerably under the influence of liquor, and upon going in the prisoner made a rush at his wife to strike her, but was prevented by Cram, and the prisoner then fell over into a rocking chair and went to sleep. While in this condition, the deceased was informed by Cram that he must leave and go to his work, whereupon the deceased inquired of Cram whether he thought “ he would kill her,” and begged Cram not to leave, to which Cram replied: “No; what humbug! ” Afterwards Cram raised Lanergan, and after putting him to bed left the premises. At the time, Cram noticed no marks or bruises on the person of the deceased.
    About six o’clock in the evening, a little boy living on the third floor saw the pi is oner have the deceased down on the floor, and beating her with something, after which a man by the name of Carrón testified that he heard three heavy knocks on the wall of the room occupied by Lanergan. Carrón, occupying the adjoining room to the prisoner, heard no screams. Lanergan was afterwards seen to come out of his room, lock the door and leave.
    About nine o’clock in the evening, Michael Tully, who sometimes lodged with the prisoner, came to his rooms, found the door locked, and, having a key, opened the door,. and upon going in found the dead body of Mrs. Lanergan lying on the bed in a nude condition. The alarm was given, and the officers of the law summoned. Upon examination of the room occupied by the prisoner and his wife, a number of cuts were found on the wall by the side of the bed, as if made by an axe, on which was blood, and by the mantel-piece stood an axe, upon the blade and handle of which were stains of blood. Upon the examinar tion of the body of the deceased, a number of incised and lacerated wounds were found. The body was very much ecchymosed, and presented the appearance of having been badly beaten.
    Search was made for the prisoner after the discovery-of the body of his wife, and he was shortly afterwards arrested in the vicinity of the occurrence, in a- porter house. Upon his arrest a pocket knife was taken out of his -pocket, having the appearance of having been recently sharpened, and upon the blade of which were stains of blood. Upon being interrogated as to why he beat his wife, he replied: “ I did not beat her this week, but last week.”
    Upon the post mortem examination, it appeared, as testified to by the doctors, that she-died from concussion of the brain, the skull being fractured. Upon the part of the defence, it was contended that the concussion of the brain was produced in consequence of her having received a fall while under the influence of liquor; and they also proved the good character of the accused for peace and quietness, and the improbability of the deceased having died from the effect of violence at the hands of the prisoner; and as explanatory of his conduct as to the threats of taking his wife’s life, showed his drunkenness during the day of the alleged occurrence. After the testimony closed, counsel for the prisoner moved the court that the prosecution elect before going to the jury, upon which count of the indict-meet they would claim a conviction. The court refused to compel an election, to. which refusal counsel for the prisoner excepted, after which counsel for prisoner requested the court to charge the jury in the affirmative upon the following propositions of law:
    “ That in order to constitute murder in the first degree, the premeditation must have existed prior to the immediate occurrence, which resulted in death.
    “ That if upon a sudden quarrel or meeting between both parties, one Mils another designedly and with malice, there being no previous deliberation, it is the duty of the jury to treat such as a case of murder in the second degree.
    “ That the fact of the intoxication of the prisoner, if proved to the satisfaction of the jury, is a proper matter to be considered by the jury in determining the question as to whether his mind was in such a condition as to be able to form an intent to Mil, or a premeditated design to affect death.”
    
      The court refused so to charge, to which refusal counsel excepted. The jury rendered a verdict of guilty of murder in the first degree. A motion for a new trial was made, on the ground of the verdict being against the law and the evidence; but the court refused to entertain the same, on the ground that no such power was vested in the court, to which ruling an exception was taken on writ of error. The general term of the Supreme Court affirmed the judgment, and the case was then brought into this court.
    The following opinion was given in the Supreme Court,which is reported, because it decides several questions not noticed in the opinion in the Court of Appeals.
    The case was heard at the New York General Term, before Leonard, Olerhe and Sutherland, Justices, and decided November, 1867.
    Leonard, P. J. Maurice Lanergan was indicted, tried, and convicted in the Court of General Sessions of the city of New York of murder in the first degree, and sentenced to be executed. The case comes up before this court upon a writ of error.
    The indictment charges Lanergan on three counts, with killing Delia Lanergan: first, with a knife; second, with an axe; third, by beating and choking. The deceased was the wife of the accused. Both began to use intoxicating liquors excessively on St. Patrick’s day, and continued to do so, becoming more and more subjected to intoxication, till the evening of March 26, 1867, when the death of Delia occurred by violence.
    They occupied two rooms in a tenement house in Washington street, on the second floor; one of which they let for a lodging room to Tully and Cram, who were witnesses at the trial.
    John Sullivan (stated in the charge of the recorder, to be a lad of thirteen years), testified that he resided in the same house. That towards evening, about two hours and a half after the school, which he attended, had closed for the day, or about five and one-half o’clock, p. m., he was going down stairs, and saw Mrs. Lanergan on the floor, near the door of the rooms, which the accused, with his wife, occupied, and the accused then beating her with something he had in his hand. He could not see what the' accused had in his hand. When Lanergan saw the boy, he “drew the thing back,” and put his hand over the mouth of the deceased. Tully, one of the lodgers, came out of the door, and went down stairs, passing the witness. Lanergan closed the door. Nothing appears to have been spoken by any one at this time. He does not mention any noise. Thomas Carrón testified that he occupied a-room adjoining that of Lanergan. A little before night, half an hour or so, on the day of the occurrence, he heard three knocks, as it might be of an axe or sledge, in Lanergan’s room. In less than an hour he saw Lanergan- come out of the room, go down stairs, and out of the house. When Carrón left his own room, the door of Lanergan’s room was closed. Nothing was said by either of them. Later in the evening he heard Tully in Lanergan’s room hallooing and clapping his hands. He thinks it was about ten ' o’clock. He went into the room, and saw the deceased lying upon the bed, dead. He heard no scream when he heard the knocks. After this he went at once for the sister of the deceased, Mrs. Hickey, and met Lanergan on the way to his rooms. Lanergan was then returning from Mrs. Hickey’s residence, where he had been, and informed her that his wife was dead.
    Tully testified that Lanergan and his wife were in bed when he left the house to go to his business, on the morning of the 26th of March. He returned between six arid six and one-half o’clock, p. m., and saw Mrs. Lanergan then, in bed. Lanergan told the witness he had better get his supper. He left the house, got his supper, and appears to have met Lanergan at about eight o’clock, when the two, together with John Hickey, the brothér-in-law of Lanergan, took a drink at a public house. They played dominoes at another public house, near by, till after ten o’clock. Tully then went to his room at Lanergan’s house, having a night key, with which Lanergan had supplied him. He thought Lanergan under the influence of liquor when he loft him. Tully went to the rooms, went in, lit a light, saw Mrs. Lanergan in bed; called, got no' answer; went over, and listened to hear her breathe; laid his hand on her chest, and' found it cold. He then gave the alarm, and called the neighbors.
    The week previous, Tully saw Lanergan strike the deceased (who was under the influence of liquor, and in bed), with a broom handle upon her hip to keep her quiet. She was striving to get' up, and made a racket, and Lanergan struck her to keep her quiet.
    Tully testified that he left the house at seven and one-half that morning, and did not return until six and one-half p. m. Was not at the room at five and one-half p. m. Did not see Lanergan beat his wife, while she was on the floor. He. knows the boy Sullivan by sight. Did not pass him at the time of such an occurrence as the lad testified to.
    Cram, who occupied the room with Tully, as a lodger, testified that he took Lanergan home about one o’clock, on the day of the occurrence, from the residence of Hickey, where they had dinner. That Lanergan was very drunk and staggered against his wife when he went in, grabbed her, and “went to strike her,” but Cram calling to him, not to strike her for God’s sake, and the deceased repeating the words, he staggered into the rocking-chair. From his actions, Cram was satisfied that Lanergan was so drunk that he did not know anything. ' Cram then advised her to lie down. She inquired of Cram if he thought Lanergan would kill her. He replied, “no! what humbug!” Cram says, that Lanergan was then asleep in the rocking-chair.
    The prisoner’s counsel objected to this evidence. The court overruled the objection, and an exception was taken. The witness then further testified, “ I told her it was humbug, or something to that effect; Mrs. Lanergan asked me not to go out, but to put him to bed. I went and asked him, said I, 1 Maurice, get into bed.’ I then assisted him to get into the bed. I then left the house.”
    Lanergan took his dinner that day at Hickey’s and was then quite intoxicated. ' Referring to the drunken condition of his wife, he said with an oath, while at Hickey’s that he would kill her. Hickey did not think that he meant any harm by this threat. Mrs. Hickey said, “ Lanergan, you know you have a good wife.” Lanergan cried and praised the goodness of the deceased.
    On an examination of the room occupied by Lanergan, made the next morning, an axe was found there with blood on it.
    The post-mortem examination showed a contusion upon the side of the head, made with some blunt instrument. The dura-mater, or membraneous covering of the brain, was ruptured, immediately under the contusion, but the skull was not fractured. There was also a broken broom-handle in the room. A knife was taken from the pocket of the prisoner at the station house, and the policeman who made the arrest and was examined as a witness, testified that he thought the blade appeared to have been recently rubbed.
    It should be further observed, that the post-mortem examination disclosed only a local extravasation of blood at the place where the skull and dura-mater were bruised, but there was nothing showing that the brain was not otherwise in a healthy condition.
    The face, arms and legs of the deceased appeared to be black and blue, and exhibited signs of bruising.
    
      The witness also speaks of her face as swollen and discolored.before the fatal occurrence took place. It is also proven that she had fallen down a flight of stairs. Several witnesses testified to the general good character of Lanergan, as a quiet, peaceable and inoffensive person, not quarrelsome, but very peaceable in his disposition.
    After the evidence was closed, the prisoner’s counsel requested the recorder to charge the jury.-
    “That in order to constitute murder in the first degree, the premeditation must have existed prior to the immediate occurrence which resulted in death;” also, “that if upon a sudden quarrel or meeting between both parties, one kills another designedly and with malice, there being no previous deliberation, it is the duty of the jury to treat such as a case of murder in the second degree.”
    Also, “that the fact of the intoxication of the prisoner, if proved to the satisfaction of the jury, is a proper matter to be considered by the jury in determining the question as to whether his mind was in such a condition as to be able to form an intent to kill, or a premeditated design to effect death.
    There were other requests made to charge as to the law, but no question has been raised here in respect to any other.
    The recorder refused to compel the district attorney to elect upon which of the three counts in the indictment he would claim a conviction, and to his refusal there was an exception.
    The prisoner’s counsel moved for a new trial, on the ground that the verdict was against the law and the evidence. Argument was then had by the prisoner’s counsel and the district attorney, as to the power of the court to entertain the motion. The recorder said, that assuming that he had the power to hear the motion (but not passing upon that question), no argument would induce him to grant a new trial, either upon errors of law or of fact, and thereupon denied the motion.
    
      Upon being further requested to decide whether the prisoner had the right to move for a new trial in that court,' upon the merits, the recorder further said “I decide that this court has not that power.” The counsel for the prisoner then said: “We except to your Honor’s refusal to entertain the motion for a new trial.”
    ' The prisoner’s counsel also insists before this court, upon the present appeal, that the verdict is against the evidence. The recorder did not, in his charge, declare the law in conformity with the requests above stated, made by the coun sel for the prisoner.
    Previous to the act of 1860, the law was well settled that an intent to kill, formed on the instant of the killing, was proof of premeditation, and established the malicious •intent necessary to constitute the crime of murder.
    The use of numerous adjectives in the act of 1860, defining murder in the first degree, as “ willful, deliberate, and premeditated ” killing, and the enactment of a second degree of murder not punishable by death, induced the judges of the first district; or some of them at least, to hold, that an intent to kill, formed at the instant of killing, was not such premeditation as the new statute contemplated. This construction was further confirmed by the immediate conjunction of the adjectives cited above, with a reference to specific acts of murder in the first degree, by .poison and lying in wait, involving a premeditation of some considerable time, and embodying the idea of a preconceived plan. Certain other acts of killing while in the commission of specific crimes, were also declared to be murder in the first degree, without any reference to malice or premeditation. It is not necessary now to decide whether the construction given to the act of 1860 was correct or not. The act of 1862, while retaining the division of two degrees in the crime of murder, has provided three very distinct definitions of murder in the first degree. The first declares that the killing of a human being with' a premeditated design to effect death, shall be murder in the first degree. This definition is the same as the first definition of the crime in the statutes prior to 1860. The application of the term “premeditated ” to an intent, formed on the instant of the killing, so well established by the courts as proof of a malicious intent to commit murder, must be deemed to have been understood by the Legislature, and that it was intended that there should be no change in the meaning or application of that term, as applied to the killing of a human being..
    Premeditation proves a malicious intention, when applied to a homicide; and when the killing occurs with an intent to effect death, however instantaneously the intent is formed - prior to the commission of the deed, the crime is murder. Under the law, as it existed prior to 1860, the penalty of that crime was death. Since the act of 1862, such killing is murder in the first degree, and the penalty is the same. The word “premeditated” is used in the same connection in the old and in the present statute, and must have the same meaning and construction. The definition of murder in the second degree is exceedingly obscure under the act of 1862. A slight verbal alteration -will make it definite and certain, and not unreasonable, or, perhaps it is better to say, not without reason. As it reads literally, there is no affirmative definition of murder in the second degree. The second degree is such ‘murder as is not within the definition of murder in the first degree.
    The last sentence of section five, defining the crime of murder, as contained in the act of 1862, reads as follows: “ Such killing, unless it be murder in the first degree, or manslaughter, or excusable or justifiable homicide, as hereinafter provided, or when perpetrated without any design to effect death, by a person engaged in the commission of any felony, shall be murder in the second degree.”
    The inquiry occurs, why, except from the definition of murder in the second degree, the killing of a human being by a person engaged in the commission of a felony, although perpetrated without any design to effect death? Such killing was formerly murder, and the penalty death, when no division of the crime of murder into first and second degrees existed. Under the statute, as it existed prior to 1860, such killing was embraced in the third definition of murder in express language. The first and second definitions of murder in the first degree, as contained in the act of 1862, are the same, verbatim, as contained in the definition of murder by the statute before the division of that crime into two degrees. The third definition of murder in the first degree, by the act of 1862, includes killing only when perpetrated in committing arson in the first degree. The third definition of murder by the statute, in force prior to 1860, was in these words: “ When perpetrated without any design to effect death, by a person engaged in the commission of any felony.” The third definition of murder is the only part of the former law that has been modified. In other respects, the three definitions of murder in the first degree are the same now as those of murder, contained in the statute before 1860. A further reference to the statutes is in vain to find what crime is committed by the killing of a human being, “ when perpetrated without any design to effect death, by a person engaged in the commission of any felony.” As the statute now reads, such killing is not murder in the first degree, and it is excepted from the definition of murder in the second degree, nor is it found in any other portion of the statutes punishable as a crime. Clearly, it could not have been the intention of the Legislature to exempt such a class of crime from any punishment. I will not undertake to declare in this case that the statute, as now existing, can be amended by any judicial construction. It is not necessary so to do. I will barely suggest that an obliteration of the last “ or,” occurring in the sentence of section five in the act of 1862, defining murder in the second degree, will remove the obscurity now existing, and give an, express affirmative definition to murder in the second degree, in harmony with the modification of the third definition of murder, as contained in the statutes prior to 1860, into murder in the second degree, except in the single instance of killing when perpetrated in committing arson in the first degree. It will, perhaps, not be too much to say that, in my opinion, such an amendment, by judicial construction, will be in harmony with the intention of the Legislature. It will, I think, be impossible to conceive of any definition of murder, as embraced in the law prior to 1860, not now defined to be murder in the first degree, except killing, without premeditation or design, by a person in the commission of a felony other than arson in the first degree. The conclusion is entirely satisfactory to my mind that it was intended to embrace killing, under the circumstances last mentioned, within the definition of murder in the second degree, by the act of 1862. Unless this class of homicide be included, there is no crime embraced in the present definition of murder in the second degree.
    I expressed the same opinion substantially in the case of The People v. jSkeehan, recently decided by the general term in this district, without any elaboration or course of reasoning by which I had reached that conclusion. A reference to that opinion by the counsel for the prisoner has induced me to make this explanation. My reasons have now been given, as they ought to have been in the former case, that the conclusion there stated may stand only, for so much as it shall prove :to be judicially worth. No doubt it would be better that the amendment should be made by the Legislature, rather than left to the construction of the judiciary.
    It is evident from the previous observations, that the recorder committed no error in declining to charge in conformity with the first two requests of the prisoner’s counsel, relating to premeditation and deliberation, as applicable to murder in the first and second degrees. Both requests assume that an intent to kill, formed at the time of the commission of the act, will not be evidence of premeditation. The rule of law is otherwise, and the requests are not consistent with the rule.
    The remaining request is in reference to the mental condition of the prisoner, arising from intoxication, which the recorder.was requested to instruct the jury, they might take into consideration in determining whether he was able to .form an intent to kill, or a premeditated design to effect death.
    The evidence established that the prisoner had been drinking intoxicating liquors for some days; and that he was very much intoxicated at one o’clock, some four or five hours before the probable time when the killing occurred. Carrón, one of the witnesses, saw him go out of the house, ■ leaving his wife there dead, from violence which he had inflicted, and he required no assistance to walk; neither doing anything to call for a remark, so far as it appears from the evidence, nor making any observation, but knowing sufficient to conceal his crime for several hours, and until her death was discovered, and the alarm given at or about ten o’clock in the evening. After passing the evening at different public houses, from the time he left his own rooms, after the murder (between six and seven o’clock), until ten o’clock, when he went to the residence of the sister of his deceased wife, and informed her that his wife was dead. He then returned to his own rooms, and neither did or said anything tending to show any want of his usual intelligence or understanding, so far as appears from the evidence. - There are few instances of persons who have, in a state of intoxication, taken the life of another, who could refrain from saying or doing something which would tend to inculpation for nearly four hours after the- commission of the act.
    There is no evidence tending to establish the existence of any mental disorder or aberration at the time of the offense committed. There was no evidence to show that the will of the prisoner was not entirely the regulator of his conduct.
    The rule appears to be that drunkenness is no excuse for crime, and that .the person who is voluntarily in that condition, must take the consequences of his own acts. (People v. Rogers, 18 N. Y.)
    
    It appears, too, from the same case, that intoxication may be adverted to where “ you would not infer a malicious intent,” or where the accused has been aggravated by the conduct of the deceased, but not where the killing was caused by the use of a dangerous instrument.
    The evidence of intoxication is admissible in every trial for murder, because it may tend to cast light upon the acts, observations or circumstances attending the killing.
    Intoxication must result in a fixed mental disease, of some continuance or duration, before it will have the effect to relieve from responsibility for crime.
    There was no error in refusing to charge, as requested, upon the subject of intoxication. Nor was there any error in refusing to require the public prosecutor to elect between the three counts in the indictment.
    The prisoner was apprised of the charge, and. that proof would be produced to show that the crime was committed in one of the several ways in which it was charged.
    The conviction is for murder in the first degree, the crime charged in each count, and not of the facts which constitute the offense.
    In Oolt’s Oase, the indictment charged the killing with an instrument unknown in one count, and in another with a hatchet.
    The indictment was sustained upon appeal, and also the admission of evidence tending to show that the killing was committed by a ball from a pistol, a weapon not mentioned in the indictment, and the evidence was admissible only under the general count, of killing with an unknown instrument.
    In the present case, there was evidence tending to prove that the offense was committed with an axe.
    The prisoner also had a pocket knife, which the policeman thought had been recently rubbed, leaving a possible inference that an attempt had been made to remove the stain of blood.
    The evidence, or rather the probability, of the commission of the offense with a knife was very slight.
    From the evidence of the boy Sullivan, there was more probability that the offense was committed by beating or choking.
    I can perceive no inconsistency in the conviction had under these counts, and no injury to the defense or the fairness of the trial.
    The recorder denied the motion for a new trial upon the merits. He declared that he would not grant a new trial for any error of law or fact appearing in the case, assuming that he had the power to hear the motion. He was after, wards invited to declare whether he had the power to entertain the motion, and he gave his opinion that he had not the power.
    I think upon the authority of Lowenburg’s Case, in the Court of Appeals (27 JV. Y. Rep., 336), that the recorder was mistaken in his opinion, but if he had granted a new trial, his mistake would have been much greater; it would have been an error.
    There was no error in admitting the evidence of the conversation between the witness Cram and the deceased.
    Lanergan was present, and although very drunk, it appears that he was not wholly insensible, although Cram says he was satisfied that Lanergan was so drunk he did not know anything; for it appears that he immediately afterwards asked Lanergan to get into bed, and he complied, with the assistance of Cram.
    
      The conversation was wholly immaterial, as affecting the result. It showed that Cram did not not believe Lanergan would kill her, while she had so much apprehension as to ask the opinion of Cram about it.
    The evidence tended to prove an absence of malice, rather than the contrary.
    There was also some reason to doubt the exact truth of the evidence that the prisoner “ was so drunk that he did not know anything,” and that “ he was asleep,” and in that aspect it was admissible, and competent for the jury to pass upon its weight or sufficiency as evidence.
    Upon the merits, the judgment is, in my opinion, correct. I am unable to perceive that there is any error of law or fact, or that any injustice had been done by the conviction.
    There appears to be no evidence showing any motive to induce the commission of the crime.
    The evidence of the lad, Sullivan, proved that Lanergan attempted .to conceal the act which he was committing, and suppress any attempt his wife might make with her voice to give an alarm.
    It is true that the evidence of the lad was contradicted by Tully, but both were before the jury, and it was their province to decide upon the credibility of the two witnesses.
    The prisoner also concealed the killing for several hours. He has never admitted the killing by himself, and claimed that it was an accident, or for any cause excusable; at least there is no evidence of any such admission.
    ' Concealment, it is well settled, is evidence of malice—of a premeditated design to commit the deed.
    If he had not intentionally committed the killing, some human emotion would have induced him to betray his sorrow or his consciousness of his own overwhelming disaster.
    The evidence of the sounds heard in the room of Lanergan by Carrón; the axe found there with marks of blood on it; the contusion upon the- head of the deceased with a blunt instrument; the fact that the deceased and the accused were- left together in their rooms at oiie o’clock by Cram, when she was last seen alive; that he was seen to leave- the rooms shortly after the heavy sounds or knocks heard by Carrón; that Tully found the door locked when he returned at about ten o’clock, no one appearing to have been there after Carrón saw Lanergan leaving the place; that after passing the evening away from his room, from the time he left there when Carrón saw him, till about ten o’clock, when, without any one giving him the information, he was able to go to the residence of Hickey and inform Mrs. Hickey that his wife was dead, he having previously omitted to make any mention of the fact to Tully or to his brother-in-law, Hickey, with whom he had passed a considerable portion of the evening; all these facts, aside from the evidence of the lad, Sullivan, make a strong case of premeditated murder. Tully saw Mrs. Lanergan in bed, as he thought, at six or six and a half o’clock, p. m., and Lanergan advised him to get his supper elsewhere. It is probable, from the evidence of Sullivan and Carrón, as to the time when the former saw Lanergan striking his wife, and the lattér heard knocks as with an axe or sledge; that the murder had been then committed. Tully was mistaken in supposing that she was alive and lying down in her dress. If so, then the skill with which Lanergan induced Tully to go away was sufficient to rebut any idea of stupefaction from intoxication, and to establish premeditation or design in the commission of the killing.
    In my opinion the judgment should be affirmed.
    Clerke, J., concurred.
    Sutherland, J. I concur in the conclusion, but I would suggest that the presiding judge is certainly mistaken in his construction of the fifth section of the act of April 12th, 1862. The last “or” in that section should be read “ and.”
    Compare that section with section fourth.
    The killing, without premeditated design, m the commission of a felony, is not excepted in the last sentence of the fifth section, but is made murder in the second degree by it.
    The whole act, and especially section fifth, is crudely drawn, but I think its meaning is quite plain.
    Judgment affirmed. The case was then brought into this court for review.
    
      William F. Kintzing, for the plaintiff in error,
    cited Session Laws of 1859, chap. 339, § 4; Session Laws of 1859, chap. 208, § 1; Lowenburg v. The People, 27 N. Y. Rep., 336; Ferris v. The People, 35 N. Y. Rep., 124; People v. Powell, 14 Abbott Pr. Rep., 91; Wharton Am. Cr. Law, 1st ed., p. 424; Bemis' Webster Case, 471; State v. Melville, 10 Louisiana R., 456; Wharton on Homicide, 260, 291; 1 Wharton Am. Cr. Law, 1059; 1 Arch. Cr. Pr. and Pl., 883; 3 Durn. & East, 106; Donelly v. State, 2 Dutcher, 463, 601; State v. Abrahams. 6 Clark (Iowa), 117; State v. Fox, 1 Dutcher, 556; Mackally’s Case, 9 Coke, 69; 1 East P. C., 341; 2 Hawk. P. C., 616; Rex v. Walter, 7 Carr & Payne; People v. Sullivan, 1 Park. Cr. R., 347; People v. Clark, 7 N. Y. Rep., 385; State v. Turner, Wright’s Rep., 20; Clark v. State, 8 Humph., 651.
    
      A. Oakey Hall (District Attorney), for the defendant in error,
    cited Kane v. The People, 8 Wend., 211; People v. McKee, 36 N. Y., 116; People v. Kenny, 31 N. Y, 337; People v. Clark, 7 N. Y., 385; People v. Sullivan, 7 N. Y., 396.
   Dwight, J.

The plaintiff in error was convicted in the General Sessions of New York city, of the murder of his wife in that city, on the 26th day of March, 1867. The conviction was of murder in the first degree. The indictment contained three counts, alleging severally a killing with an axe, with a knife, and by beating and choking. After the evidence was in, the prisoner moved that the people be required to elect upon which of these counts, they would go to the jury, which was refused by the court, and the prisoner excepted. A witness for the people; George Cram, said that on the day- of the killing, at about one o’clock in the afternoon, he accompanied the prisoner hpme; that the latter was very much intoxicated; that, as he entered the. room .where his wife was, he staggered against her and “went to strike her;” that witness and the wife both remonstrated, and the prisoner staggered over into a rocking chair and went to sleep; that witness then advised the wife, who was not sober, to go into the adjoining room and lie down, and upon her doing so told her he must goto Ms work; that the woman thereupon'begged him not to go, and asked him, “ Do you think he will kill me?” to which witness replied, “No; what humbug;” that at the time of this conversation the prisoner was in the adjoining room (the connecting door being open) in the chair asleep, “sound and solid;” that he was asleep, as soon as he struck the chair, and that witness shortly after-wards shook Mm in the chair, and knew he was unconscious. The prisoner’s counsel objected to the evidence of the conversation between Cram and the deceased, under the circumstances above narrated. The objection was overruled and the prisoner excepted.

After verdict, the prisoner moved the court for a new trial, on the ground that the verdict was against the law and the evidence. The court refused to' entertain the motion, deciding that it had no'power’to grant a new trial, the recorder at- the same time remarking that he was “quite sure that no argument of counsel would induce Mm to grant a new trial, either upon error of law or of fact,” and the prisoner excepted to the refusal to entertain a motion for a new trial. One other alleged error was relied upon by the plaintiff in error, viz: ' The refusal of the court to charge “That in order to constitute murder in the first degree, the premeditation must have existed .prior to the immediate occurrence which resulted in death.” .But the whole question here involved, including the construction of the act of 1862, defining the degrees of murder, was disposed of in the case of Fitzgerald v. The People, decided at the March term of this court, and will not be reconsidered here. The evidence showed that the .prisoner had always been a quiet and peaceable man, and, so far as appears, had lived pleasantly with his wife, down to about the time of her death; that on St. Patrick’s day, nine clays before the event, the prisoner and his wife had both commenced to drink, and had both been constantly under the influence of liquor, down to the hour of the catastrophe. There is no evidence of any motive for the commission of the crime.

The first objection raised by the plaintiff in error, viz: to the refusal of the court to require the people to elect on which count of the indictment they would ask for a .conviction, is untenable; as was said by Chancellor Walworth, in Kane v. The People (8 Wend., 203), “ It is every day’s practice to charge a felony in different, ways in several counts for the purpose of reaching the evidence as it appears on the trial,” and “if the different counts are inserted in good faith for the purpose of making a single charge, the court will not compel the prosecution to elect.” I am not aware that the correctness of this practice has ever since that time been questioned.

The second objection, viz: that the court erred in admitting the testimony of the witness Cram to the conversation between himself and the prisoner’s wife, I think is well taken. That conversation cannot be evidence, only on the theory that it took place in the presence of the accused, and not merely in his bodily presence, but in his hearing and understanding. A declaration made in the presence of one unconscious from sleep or stupor, cannot be evidence against him, and that seems to have been the condition of the prisoner here. The learned judge below thought it was for the jury to say whether he was wholly unconscious or not, but the evidence on that point was uncontradicted, and to my mind seems positive. The witness says he was very much intoxicated; that immediately upon coming into the room he staggered over into a rocking-chair and went to'sleep; that he appeared to be asleep, “sound and solid;” that as soon as he struck the chair he was gone; that about the same time witness shook him in the chair and was satisfied he was unconscious. It is true the witness testifies that soon after the conversation he told the prisoner to go to bed, and that he got to bed with the assistance of the witness; but I have no doubt it was then that he shook him in his chair, and found such means necessary to rouse him sufficiently to be got to bed.

But aside from this condition of the prisoner, and whatever the degree of .his stupor, the conversation was not even in his bodily presence.. The fact, apparently overlooked by the learned judge below, is that the prisoner was in one room, and the interlocutors, the witness and the deceased, in an adjoining room. Cram had induced the deceased to go into his room, adjoining that in which the prisoner and his wife lived, and lie down; he had gone in with her, and it was when he was about to leave her there that the conversation took place. It is true he testifies that the door between the rooms- was open; but there is no evidence of the position of the several parties relative to the door, nor of their distance from it, nor whether the tone of voice was such as could have been heard from one room to the other. Since, therefore, this conversation was not in any sense in the presence of the accused, it was clearly inadmissible; and unless it appears that it cannot in any degree have operated to the prejudice of the prisoner, its admission is good ground for a new trial. Upon this point it seems to me that there can be no question. The evidence of the prisoner’s guilt was wholly circumstantial: both the fact of killing and the design to effect death were required to be inferred from the circumstances mainly of opportunity and of the conduct of the prisoner both before and after the event. Prominent among these were the facts of some threats uttered by the prisoner on the same day of the. killing, though not in the presence of the deceased; and the evidence of the conversation with Cram, certainly tended to show that the prisoner had previously made similar threats to the deceased herself, or had in some other way impressed her with fear of fatal violence at his hands. The language of Cram clearly indicates an apprehension in his mind that the prisoner entertained murderous purposes towards her, and it is not only impossible to say that this proof cannot have influenced the minds of the jury to the prejudice of the prisoner, but it is difficult, to see how it can have failed to do so. In my opinion, the admission of this testimony was an error fatal to the trial.

The remaining objection of the plaintiff in error which I shall consider is that the recorder erred in refusing to entertain a motion for a new trial. . In the opinion below it is said, “ The recorder denied this motion on its merits;” but surely it is not possible to decide such a motion on its merits without entertaining it, and in this case the recorder distinctly refused to entertain the motion on the ground that he had no power to grant it, although he added that if he had the power he would not exercise it. There can be no doubt that the recorder was wrong in his opinion on the question of the power to grant a new trial. The act of 1859 (Laws of 1859, chap. 339, § 4) provides: “The.Courts of Sessions of the several counties in this State shall have power to grant new trials upon the merits or for irregularities or on the ground of newly-discovered evidence in all cases tried before them.” It is difficult to see how this provision could ever have been understood not to include the “Court of General Sessions of the Peace, in and for the City and County of New York.” And this court in the case of Lowenburg v. The People (27 New York, 336), held that substantially the same language in another act did include that court. The question in that case arose under chapter 208 of the laws of the same year (Laws of 1859, chap. 208, § 1), which provides: “It shall be lawful for the Court of Sessions of any county of this State to continue its sittings at any term thereof, so long as it may be necessary,” etc., etc.', and the opinion in that case which upon this point seems to have been concurred in by the whole court, holds the following language: “The Court of General Sessions of the Peace, in and for the City and County of New York, is but a Court of Sessions of the County of New York, and- is designated in the act of 1859 by the words ‘ The Court of Sessions of any county of this State.’ ” There can be no question but thai the- designation in chapter 339 is equally inclusive with that in chapter 208, and consequently no question but that the Court of General Sessions of New York has the power to grant a new trial on the merits. Such being the case, I cannot avoid the conclusion that a substantial right was denied the prisoner in this case, viz: the right to have his motion for a new trial heard by the court which tried him. I cannot think this motion was decided upon its merits. The remark of the recorder about not being induced to grant the motion seems to have been a hasty declaration made without hearing counsel, and coupled in the same breath with the decisive announcement that he had no power to entertain the motion; nor am I prepared to say, as is said in the opinion below, that if the recorder had granted a new trial it would have been an error. I do not think an appellate court can decide what effect a review of the case might have had upon the judge who tried it, and who heard and saw all the witnesses.

If the prisoner had a right to move for a new trial, he had a right to have that motion heard and considered. That right was denied him, and in my opinion that denial was error..

If the views which I have expressed upon the second and third objections of the plaintiff in error, as enumerated above, are correct, it follows that the judgment of the General Term of the Supreme Court and that of the General Sessions should be reversed, and a new trial granted.

Judgment reversed and new trial ordered.  