
    The People of the State of New York, Respondent, v. Charles Giblin, Appellant.
    The various statutory changes in the definition of the crime of murder-have not abrogated the common-law counts in indictments for that crime,' and an indictment in common-law form, stating the facts constituting the crime and charging the killing to have been done by the defendant willfully, feloniously and with malice aforethought, is sufficient to sustain a, conviction of murder in the first degree, if the proof as to the manner of the commission of the crime brings it within one of the statutory definitions.
    Where, therefore, upon trial of such an indictment, the evidence showed that the homicide was committed while the defendant was engaged in the commission of a felonious assault upon the husband of the deceased, held, that the indictment was sufficient to sustain the conviction; that it was not necessary to state the circumstances constituting the offense according to the third alternative provision of the section of the Penal Code (§ 188), defining murder in the first degree.
    Upon cross-examination it is proper to impeach the credibility of a witness by showing facts which connect him with a nefarious occupation.
    (Argued June 34, 1889;
    decided June 28, 1889.)
    Appeal from judgment- of the Court of Oyer and Terminer of the county of New York, entered june 19, 1888, upon a verdict convicting the defendant of the crime of murder in the first degree.
    The facts, so far as material, are set forth in the opinion.
    . William F. Howe for appellant.
    A common-law count for murder is not sufficient to sustain a conviction for the statutory offense of murder in the first degree whilst committing a felony. (People v. Dumar, 106 N. Y. 502; Penal Code, § 182; People v. Conroy, 97 N. Y. 71; Home Ins. Co. v. West. Tr. Co., 51 id. 93; Stapenhorst v. Woolf, 65 id. 596.). The court and jury were bound, as matter of law, to hold the prosecution to the proof of the charge as it is laid in the indictment, for the statute requires that the indictment must not only charge the offense, but, in addition, must also contain a plain and concise statement of the act constituting that offense. (Code of Or. Pro. §§ 254, 273, 274, 276, 278, 279 ; People v. Dumar, 106 N. Y. 502; Hartman v. Commonwealth, 5 Barr. 60; People v. Stockman, 1 Park. 424; Ike v. State, 23 Miss. 525; State v. Cheatwood, 2 Heill. [S. C.] 459 ; State v. Foster, 3 McCord, 442; State v. O'Bannow, 1 Bailey, 144; State v. Morse, 1 Green [Iowa], 503; State v. McKenzie, 42 Me. 392 ; 1 Chitty on Cr. Law, 281—283 a; Archbold’s Cr. PI. and Ev. Law, E. N. 356; 1 Bish. Cr. Pro. [2 Ev.] § 618.)
    
      McKenzie Semple for respondent.
    Conviction of murder in the first degree, under an indictment charging the crime in common-law form is sustained by evidence of a killing in perpetration of a felony. (People v. Conroy, 97 N. Y. 62; People v. Willett, 102 id. 254; People v. Cox, 80 id. 500; People v. Fitzgerald, 37 id. 413; People v. Kennedy, 39 id. 245; People v. Enoch, 13 Wend. 159.)
   Gray, J.

The defendant was convicted at a Court of Oyer and Terminer, held in and for the city and county of New York, of the crime of murder in the first degree, for the killing of Madeline Goelz. From the sentence of death pronounced upon him he has appealed to this court, alleging various grounds in support of his appeal. The indictment was drawn in common-law form, and, in one count, charged the killing to have been done willfully, feloniously and with malice .aforethought. The defendant objected that such an indictment was not sufficient to sustain the conviction of the defendant for the offense of murder in the first degree while engaged in the commission of the felonious assault upon Valentine Goelz. He argues that the offense is defined by the statute in the alternative, as consisting of separate acts, and the indictment should have stated the circumstances constituting the offense, according to the third alternative provision of section 183 of the Penal Code, which makes the killing of a human being murder in the first degree when committed, without a design to effect death, by a person engaged in the' commission of, or in an attempt to commit, a felony. The objection to the indictment is untenable. A conviction of murder in the first degree under such an indictment is sustained by proof of a killing in the perpetration of a felony. (People v. Conroy, 97 N. Y. 62; People v. Willett, 102 id. 254.)

If the indictment contains a plain and concise statement of the act constituting the crime, and the proof, as to the manner in which it was perpetrated, brings it within one of the statutory definitions of murder in the first degree, the requirements of the law are sufficiently met. The various statutory changes in the definition of what may constitute the crime of murder have not affected, and have not been held to affect, the ordinary common-law counts in indictments for murder.

The evidence warranted the finding of the jury as to the guilt of the prisoner. He di'd not deny the killing, but claimed that it was done in self-defense. None of the witnesses of the occurrence testify to any fact which, we think, tends to corroborate, or to give color of truth to his claim. They all agree upon the material facts, and the evidence compels the mental conviction that the prisoner was committing an unprovoked and unwarrantable assault upon Valentine Goelz, the husband of the deceased. In her attempt to aid her husband in his resistance to the assault upon him, she received her death wound from the pistol in the prisoner’s hand.

The testimony is abundant to establish that the defendant tendered a five-dollar bill in payment of purchases made by him, and when it was asserted to be a counterfeit by Valentine Goelz, defendant drew his pistol upon Goelz, demanding, with a threat, change for the bill. During the scuffle which ensued between them, and after several shots had been fired, two of which had struck Goelz, the deceased came into the store and at once rushed to her husband’s assistance. She seized hold of defendant from behind and endeavored to rescue her husband. Holding his hand behind him, the defendant fired at her and the bullet entered her abdomen, inflicting the wound from which she died on the day following. In the testimony of the police officer, who was drawn to the spot by the cries of the parties, we have a valuable corroboration of the case for the prosecution. He testified that he arrested the defendant, and, upon bringing him over to where the wounded woman lay, she identified him as the person who shot her, and said: “ He shot my husband and he shot me. I was trying to pull him away from my husband.” This testimony is of considerable weight as characterizing the attitude of the parties, and it was given immediately after the affray.

The pistol was never found, and, from the evidence, it is fairly inferable that it was stolen by a bystander. Several of the members of the Goelz family testified that Valentine Goelz did not own a pistol, and there was evidence of a belt to hold a pistol and ammunition being found at defendant’s house, from which the pistol was missing.

After a careful consideration of the record, we are of opinion that not only was the evidence ample to sustain the verdict which the jury rendered, but that such a verdict was the only con-^ elusion to which a fair and rational mind could come upon ^ the case as it was developed.

The appellant alleges errors in the admission of evidence. We think none of the exceptions to be well taken. Hpon the defendant’s cross-examination the district attorney was permitted to interrogate him as to the possession of certain dies and plates, and also as to whether he had not visited an engraver for the purpose of obtaining a die for the figure five. He denied the visit, but admitted the possession of the dies and plates; which he endeavored to account for by stating that they were owned by him for innocent purposes. It was permissible to impeach the defendant’s credibility by showing facts which would connect him with a nefarious occupation. It is an office of cross-examination to exhibit the improbabilities of the witness’ story, and in this case we do not think that the prosecuting officer exceeded the proper bounds, in his endeavor to show that the defendant was not of such a character as to command entire confidence in his statements. Ho other exceptions call for our consideration.

The defendant had a fair trial and the case was submitted to the jury in a charge, explaining the law ably and clearly, and presenting the facts fully, fairly and dispassionately.

' The judgment should be affirmed.

All concur.

Judgment .affirmed.  