
    Supreme Court—General Term—first Department.
    
      July 1883.
    PEOPLE v. HOVEY.
    Application for New Trial—Appealability of Order made thereon.—When Evidence is cumulative.—Diligence. —Code Criminal Procedure, §§ 465, 466, 517.
    On a motion for a new trial, on the ground of newly discovered evidence, under subdivision 7 of section 461 of the Code of Criminal Procedure, the court must consider not only the affidavits upon which the motion is based, but the testimony and proceedings on the former trial, and also whether the newly discovered evidence would, if given on the former trial, have changed the verdict.
    A new trial should not be granted upon the application of defendant, where the alleged newly discovered evidence is inconsistent with che testimony of the defendant on the former trial.
    Evidence which existed and was known to defendant before the former trial cannot be considered newly discovered, because he has since discovered that it might have been important if used on the trial.
    It must be shown affirmatively by the party seeking the new trial that the proposed evidence is not cumulative.
    It was in evidence on the former trial that prisoner had, before the crime for which he was on trial, been drinking and was intoxicated at the time of its commission. Held, that further and additional testimony, to show that the effect of indulgence in drink was greater than was proved on the trial, and had produced a diseased condition of mind, was cumulative, because on the evidence as given on the trial, the prisoner’s mental condition was before, the jury.
    If the accused relies, for the purpose of proving the character of the crime, upon the condition of- his mind at the time of doing the act, he must proceed upon the trial to establish that condition by the production of all the evidence bearing upon the question within his knowledge, or which he could have procured by proper diligence.
    It is lack of diligence on the part of the accused to fail to disclose the facts to his counsel, so as to enable him to judge whether matters of any kind are within his knowledge which would be important to him on the trial.
    Semble, that an appeal does not lie from an order of a justice or Special Term of the Supreme Court denying an application under §§ 465-466 of the Code of Criminal Procedure for a new trial, on the ground of newly discovered evidence. In such a case an appeal lies only where there is a statutory provision permitting it. .
    Appeal from an order made July 19, 1883, by Hon. Qhables Donohue, Justice of the Supreme Court, denying a motion by defendant for a new trial on the ground of newly discovered evidence.
    The defendant was convicted in the Hew York General Sessions of murder in the first degree, and sentenced to death.
    Upon appeal the conviction was affirmed by the General Term in the First Department {ante, p. 180), and by the Court of Appeals {ante, p. 283).
    After these appeals, and after the prisoner had been resentenced to death by the General Term, an application was made to Mr. Justice Donohue as a Justice of the Supreme Court by defendant under §§ 465-466 of the Code of Criminal Procedure, for a new trial on the grourid of newly discovered evidence. The alleged newly discovered evidence was as follows:
    Thomas Baker, a police officer, deposes that he arrested prisoner eleven days before the murder, for intoxication, that prisoner had the appearance of a man who had been drinking for some days, that he talked wildly and was very violent, and that on the following day he was sentenced to three days’ imprisonment.
    George E. La Faye, a keeper in the Jefferson Market Prison, deposes that at the time of prisoner’s .confinement under said charge, he was so violent from the use of intoxicating liquors, that deponent, together with the other keepers, was forced to place a leather belt around his waist and to place his hands in the handcuffs attached to the belt, for the purpose of preventing him from harming himself and others. That at the time of his discharge from prison, eight days before the commission of the murder, prisoner was not fully recovered from the effects of indulgence in liquor.
    Win. L. Hardy, a.physician of the prison, and an examiner in lunacy, testifies that on the day after the murder, he visited the prisoner, found him in a highly nervous state, the result of indulgence in alcohol, that he complained that he was unable to sleep or control himself, which as deponent found was due to the excessive use of intoxicating drink and deprivation of sedatives, to which prisoner had for a long time been addicted and that deponent is of the opinion that prisoner’s mind was in such a condition that he was “ oblivious of his actions ” during the week of the murder.
    It was father shown that such evidence was not communicated to defendant’s counsel till after the determination of the appeals in this action, and that the witnesses above mentioned had not been examined on the trial of the action. This motion was denied, and the following opinion written:
    Donohue, J. This is an application . on the part of the prisoner for a new trial, on the ground of newly discovered evidence, the evidence offered being that of Dr. Hardy and two others—one an officer at Jefferson Market, and the other an officer of the -twentieth Precinct. The killing was committed on April 26, 1882. The trial was held on September 21, 1882. On the trial the defense was that the shooting was an accident; and the prisoner on his own behalf gave. a very distinct and connected statement of the occurrence as he claimed it to have occurred. That defense the jury did not believe, and convicted the prisoner ; and the case has-been to the Court of Appeals, and the prisoner is now under sentence of death, the judgment having been affirmed.
    The people objected to the granting of the motion on the ground that there has been laches, and in this the court fully agrees with them. The condition and state of the prisoner were well known to himself long before the trial. He was in his perfect and sober senses during his confinement in the Tombs under the charge. Ilis testimony on the trial showed that he had full knowledge of the facts at the time, and even prior to the killing, and that he could easily have obtained all the evidence now sought to be brought in on this motion. There were no witnesses who were absent or who had to be sought at a distance. They were at all times within his reach, one of them, the doctor attached to or attending in the very prison in which he was. It seems therefore very plain that not only was there haches in producing .the evidence, but gross laches ; and so gross are the laches that we must look to another point of the case to see why the evidence was, apparently, not produced. Although there was the grossest laches, still, if the evidence was important, the court, in a case in which human life is at stake, should be very guarded in depriving the prisoner of the slightest right he may possess. But in this case, it seems to me that the prisoner’s act in not producing this evidence is easily explained and entitles him to no relief. He knew there was no living witness of the act of shooting, who could be examined on that point against him, and he apparently made up his mind that he would take the risk of putting his defense on the .fact that the shooting was accidental.. To make his testimony of any use on this point with the jury they must,' from the evidence, be led to believe that he was fully able from his mind being clear, and knowing what he was about, to describe what took place. With the evidence now sought to be put in, he would have weakened his chance of escape on the plea which he expected would have given him an entire acquittal. He apparently recklessly chose this course, with the intent, by a manufactured story, to escape entirely from the charge, and, having failed in it, he now wants to use evidence, which, if of any value, had always been within his reach, and there is not the slightest evidence to show that he was ignorant of it.
    But, again, the prosecution claims that the evidence is simply cumulative, and in this the court entirely agrees. What are the condition and state of mind of a prisoner at the time of committing the act are among the first and most important considerations, and the fact that they were considerations in this case is evident from the questions asked as to his drinking and drunkenness. The opinion of Mr. Justice Daniels in the case of People v. Leighton (10 Abb. N. C. 2-61), goes over this ground so thoroughly that it would be useless for me to discuss the questions here. But supposing neither of the grounds stated to be sufficient to deny the application, it seems to me it should be denied on the ground that the evidence would not change the facts in the case in the least. The defense of the prisoner was not his condition. He never pretended that whatever he did he did not do with full knowledge. His defense was that the shooting was accidental. At the trial, and long before it, he was certainly sane and sober, and not affected by drink. He went to trial with the full knowledge of all former acts, and his counsel on this motion would have the court hold that the jury would hold on this new evidence that the prisoner’s plain testimony on his own behalf, when cool and sober, showing that he knew exactly what occurred and what he was doing, was not reliable, and that these witnesses, who did not see him at the time when he committed the act, but who only saw him either days before the shooting or after he realized the terrible act he had committed, knew his condition and mind better than himself.
    It seems to me that the whole evidence shows that the prisoner’s case would not be in the least benefited by the new evidence offered, and that in this case to grant anew trial would ' be to hold out to criminals a premium to invent defenses, on the failure of which an appeal to the mercy of the law would give another trial. There is mercy alike due to the community and to the prisoner, and in this case, on the evidence, I think the community is entitled to be protected".
    Motion denied.
    From the order denying the motion for a new trial an appeal was taken by defendant to the General Term, First Department-Thereupon the District Attorney gave notice of a motion in the General Term to dismiss the appeal, on the ground that such an order was not appealable.
    Upon the hearing of the motion to dismiss, the court intimated that it would hear the argument of the appeal from the order before rendering a decision as to the motion to dismiss.
    The appeal from the order and the motion to dismiss were therefore argued at the same time.
    
      Wm. F. Kintzing and Thomas F. Grady, for defendant appellant.
    On the motion to dismiss the appeal from the order.
    I. An appeal from an order denying motion for a new trial, in a capital case, lies to the General Term of this court, and is not precluded by section 517 of the Code of Criminal Procedure. As originally enacted, section 466 of the Code of Criminal Procedure provided as follows: “ The application for a new trial must be made before judgment; ” and by section 485 the Clerk of the court, where the conviction was had, was required to include in the judgment roll, upon service upon him of a notice of appeal, among other papers “ a copy of the minutes of any proceedings upon a motion for a new trial or in arrest of judgment’ and on an appeal to this court from the judgment on a conviction after judgment.” Any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll, as prescribed by section 485, was reviewable; see section 517. Subsequent to these, enactments and in the year 1882 the legislature amended section 466 by adding to the then existing provisions, “ except in case of a sentence of death, when the application may be made at any time before execution, and in case the court before which the trial was had is not in session, so that the application can be made and. determined before the execution, then the application may be made to any justice of the Supreme Court, or Special Term thereof, within the judicial department where the conviction was had.” Although omitting to amend section 517 of said Code so as to expressly include an appeal from an order denying a motion for a new trial made after judgment, it is clear that the legislature did not intend to deprive the defendant of such remedy. It was the design of the legislature to extend rather than restrict in capital cases, the rights of the defendant, and to hold that in availing himself of the right conferred by section 466, as amended, to move for a new trial after judgment, the defendant had forfeited his right to have the determination of such motion reviewed, is to hold that the legislature in extending the time to make such motion intended to deprive the defendant of the right to have such determination reviewed. Clearly such a construction would defeat rather than aid the manifest intent of the legislature and the whole spirit of the Code of Criminal Procedure. It is much more reasonable to claim that the legislature, in amending section 466, regarded this appeal as provided for by section 527, which recognizes “ an appeal to the supreme court from a judgment of conviction, or other determination from which an appeal can be taken,” for, at the same session of the legislature, and with the evident intent to give force to the prior amendment of. section 466, by an amendment to section 527, the appeal, as a matter of course, in capital cases operates as a stay until the determination of the appeal, without the certificate of the judge as required in all other cases. But regardless of the provision of the Code of Criminal Procedure, this is an order of a justice of the Supreme Court affecting a substantial right of the defendant, and is, therefore, re viewable, under section 465 of the Code of Criminal Procedure. The right to review the decision of a single judge, sitting at special term, in a matter affecting substantial rights, being general and fundamental, it must be deemed to exist unless the intent to destroy it is expressed with great clearness. Matter of Duff, 10 Abb. Pr. N. S. 423; Matter of Brady, 69 W. 7. 215 ; 53 How. 128; Bonynge v. Waterbury, 12 Hun, 534; Security Bank v. Bank of Commonwealth, 2 Hun, 288.
    On the appeal from the order denying the motion for a new trial. The evidence now produced would have changed the verdict.
    I. It would have shown that the prisoner’s mind was in no condition to form a design with deliberation and premeditation. The result would at least to have reduced the offense to murder in the second degree. People v. Batting, 49 How. 392; People v. Walworth, MS.; People v. Eastwood, 14 N. Y. 562; Flanigan v. People, 86 N. Y. 554; Wharton on Homicide, 369. Such proof would also have rebutted the presumption of malice, apparently shown by the prisoners conduct.
    II. The -proposed evidence is not cumulative. The want of the capacity on the prisoner’s part to form a design with deliberation and premeditation was not made an element of of the defense, and there was no evidence offered in proof thereof.
    III. There has been due diligence. There was nothing in the appearance of the accused, when three weeks after the crime counsel was assigned to him, to draw attention to this mental state, and counsel was not therefore put upon inquiry. The prisoner made no mention of his previous mental condition, and his silence on and ignorance of this important point goes far to corroborate Dr. Hardy’s affidavit as to the condition of his mind at the time of the crime.
    
      
      John McKeon, District Attorney, John Vincent (assistant), for the People, respondent.
   By the Court.—Davis, P. J.

The court have given to the case on this appeal, and to the motion to dismiss the appeal their careful consideration, and have reached conclusions that will now be indicated.

As to the appealability of the order a majority of the court are of opinion that no appeal lies in such a case. Section 517 of the Code of Criminal Procedure declares in what cases appeals may be taken by the defendant in criminal cases. It is-in these words: “ An appeal to the Supreme Court may be taken by the defendant from the judgment on a conviction after indictment, and upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment roll as prescribed by section 485 may be reviewed.” Section 485 makes provision for the inclusion in the judgment roll which may be brought up by the appeal under section 517, of “ a copy of the minutes of any proceedings upon a motion either for a • new trial or in arrest of judgment.”

. Provision is therefore made for the revision of motions of this character when they are embraced in the judgment roll as provided Vy section 485. But we look in vain in the act for any provision for an appeal on a motion for a new trial in any case except in the case and form presented by section 517. At common law no appeals could be brought from judgment orders or interlocutory proceedings in criminal cases. The right of appeal in such oases is purely statutory; but in cases where there is no statutory provision, the right of appeal does not exist. The code has made no statutory provision for an appeal from an order denying a motion for a new trial in any case where the motion is made after final judgment in the action, unless the findings and order be embodied in the judgment roll. It has, however, by. the provisions of the act of 1882, now section 517 of the Code, granted to the convicted party an opportunity to make a motion in the trial court in capital cases, or when the application cannot be made to the trial court prior to the execution of the sentence, by application to a justice of the Supremo Court or a Special Term thereof. But while it has given this new privilege to a party convicted of a capital crime, where sentence of death has been pronounced, the legislature has not seen, fit to superadd the right of appeal by any statutory provision. It has only granted an additional privilege to the convicted party which terminated with the application to the court or judge before whom the motion is made. A majority of the court have come to the conclusion that this is the correct view of the statutory provisions and of the law in respect of the right of appeal in such cases.

But notwithstanding the views of the majority of the court, and especially because one of the judges entertains a different opinion, and because the case is a capital one, involving the life of the defendant, we have concluded that it is our better course to consider the appeal and dispose of it on its merits without finally determining the question whether or not^ an appeal li.es.

The provision of the act of 1882 (now section 466 of the Code of Criminal Procedure) allows in capital cases at any time before the sentence is executed, an application to be made to the court before which the trial was had, or if that court be not in session, to any justice of the Supreme Court or any Special Term thereof for a new trial upon several grounds. These grounds are enumerated by section 465. They are seven in number, upon all or either of which a motion of this character can be made under section 466. But when the motion is founded upon the seventh subdivision of section 465 the Code expressly prescribes what must appear as sufficient grounds for granting a new trial.

That section is in these words : “ When it is made to appear by affidavit that upon another trial the defendant can produce evidence such as if received would probably have changed the verdict, if such evidence has been discovered since the trial, is not cumulative, and the failure to produce which on the trial was not owing to want of diligence.”

On such a motion the court or judge is to act not only upon the affidavit presented, but also of course upon the testimony and proceedings had and taken upon the trial at which the conviction occurred; and it must be considered whether the evidence claimed to be newly discovered if it had been given upon the former trial would probably have changed the verdict.

How if we take the case the prisoner made for himself and assume that his testimony would have been the same if this new evidence had also been produced, we can hardly conceive it possible for the jury to have rendered any other verdict, because liis own evidence and the manner in which he detailed the act which constituted the homicide and the manner in which he states what he did on that day and what he said, and the effect of his version of the transaction, would be in direct conflict with all that is sought to be added upon the new trial. If the new evidence had been given in the case, the jury would have been driven to the necessity of rejecting his own account of the affair in order to give him the benefit of the new evidence now sought to be introduced.- So that we are not able to come to any conclusion different from that reached by the justice at Special Term upon the question whether it would probably have changed the verdict.

But if we had reached a different conclusion we must then be satisfied that the evidence has been discovered since the trial within the meaning of the law. That it existed before the trial is indisputable. Has it been discovered since the trial within the meaning of the law ?

We must assume that the prisoner, on the former trial, knew that he had been arrested ten days previous to the commission of the crime in a state of intoxication, had been in prison three days and subject to the close confinement described in the affidavit by reason of his conduct, although he may not have known the exact condition physically and mentally in which he then was. All that preceded the crime, therefore, in respect of his condition, so far as relates to the intoxication and the arrest and imprisonment for intoxication, were known to the prisoner. If it was known to him before the trial, it cannot properly be called newly discovered evidence. It was a fact, which it was his duty, if he regarded it as important, to have made known to his counsel and to have had it brought to the attention of the court by summoning witnesses.

What occurred after the commission of the crime and his arrest as detailed by the affidavit of the prison doctor is also not newly discovered. It is not the development of some unknown fact, but of facts which had previously existed, and must well have been known to the accused. If he were under the treatment of the medical man who makes the affidavit is there any question blit that that fact was within his knowledge ? The only thing newly discovered is the fact that it might have been of some importance to himself if it had been produced. That is not what the law contemplated when a party seeks a new trial upon this ground.

But again, it must appear not to be cumulative. The fact that it is not cumulative must be shown affirmatively. In this case it appeared by the testimony of several of the witnesses, and to some extent by the testimony of the defendant himself, that he had been drinking for some days'before the commission of the crime, and that he was intoxicated at the time of its commission. The subject therefore of'his condition by reason of the use of intoxicating drinks was one circumstance presented by the testimony for the consideration of the jury. It would be cumulative evidence in the meaning of the law to give additional proof of his intoxication and of its effect prior to the commission of the crime, by producing the witnesses who could testify to those facts. There is, therefore, no doubt that the learned court was correct in holding that if this evidence was produced it would be cumulative in.its character. We do not lose sight of the fact insisted upon by the learned counsel that the evidence goes so far as not merely to show habits of intoxication, but also that the prisoner had by the use of sedatives as well as of intoxicating liquors produced a diseased condition of the mind which he was incapable of controlling. That evidence, however, would of necessity, have been required to be sufficient to convince the jury that his mind was in such a condition as to be incapable of forming a deliberation and premeditation required to constitute murder in the first degree. But evidence upon that question was of necessity before the jury. The whole case, as a matter of course, involved the condition and mental operations of the accused party at the time of the commission of the crime, In such cases that question is one of primary importance. If, therefore, any evidence is produced on the trial to establish that the mental condition of the party was such that he did not or could not form the deliberation required by the statute, all that has a tendency to make that more potent in its influence on the minds of the jury is cumulative. So ihat if any accused party relies for the purpose of proving the' character of the crime, upon the condition of his mind at the time of doing the act, he must proceed to establish that condition by the production of all evidence bearing upon that question, within his knowledge or which he could have procured by proper diligence. In this case the prisoner went into that evidence to a certain extent. He brought before the jury the proof of the fact that he had been drinking and was intoxicated to some degree on that morning ; and accompanied that evidence with his statement, clear, coherent, and as it appears from the record if credited by the jury, justifying a verdict of minor character, because of the alleged accidental nature of the act which caused the death. All the evidence that is offered here relative to his condition is in our opinion cumulative within the sense of the law.

In addition, however, to the things already noticed, the section requires it to appear that the failure to produce it on the trial was not owing to want of diligence.

It is perfectly obvious, as we think, that the failure to produce this evidence upon the trial was owing to want of diligence. We do not mean to impute wnnt of diligence in any sense of neglect of duty, to the counsel employed. They have at no time been lacking in diligence in doing their whole duty toward this prisoner, and the motion now pending is in itself strong evidence not only of diligence but of extreme diligence in favor of this unhappy man. But what the law means by lack of diligence is the omission on the part of the accused to disclose the facts to his counsel, so as to enable him to judge whether matters of any kind are within his knowledge would be important to him on the trial. Diligence on his part would have disclosed the fact of his arrest ten days before for intoxication, his confinement in prison and the treatment he was subjected to, and that that indicated the condition of mind as now claimed.

So also, as it seems to us, very slight diligence on his part would have disclosed his illness in, prison and the attendance he received from the doctor; and a single question to the doctor would have developed the facts as to the condition of the prisoner’s mind for a week previous to the commission of the crime, judging by his condition as the doctor’s affidavit states it, several days after his imprisonment for the crime.

On none of these several requirements of the seventh subdivision of section 455 of the Code does the affidavit come up to what the law demands.

The result is that this court is of opinion on the merits that the decision of Mr. Justice Donohue at Special Term was in all respects entirely correct ; and that it is our duty to affirm the order without dismissing the appeal because the order was not appealable as we might do under the opinion of the majority of the court.

The order of the Special Term must therefore be affirmed.

Present, Davis, P. J., Beady and Cullen, JJ.  