Gbover, J.
The case shows that the Supreme Court, upon motion of the district attorney, ordered the cause to be heard upon the reporter’s minutes taken upon the trial of the prisoner, at the present term of the court, although such motion was opposed by the prisoner. This order was not authorized by law. Section 21, vol. 2, E. S., 736, gives to a defendant, on the trial of any indictment, the right to except to any decision of the court in the same cases and manner provided by law in civil cases, and provides that a bill thereof shall be settled, signed and sealed, and shall be filed with the clerk of the court and returned upon a writ of error, as theretofore authorized in personal actions. The cause is to be heard upon the exceptions so settled, signed, sealed and returned upon the writs of error, and the law does not authorize the substitution of the reporter’s minutes for these exceptions. The latter are to be carefully settled by the trial court, and tlie performance of this duty by the court is equally important to the due administration of justice as any other with which the court is charged. To substitute for the bill of exceptions, which the court is to see is made in exact conformity with the truth, the notes taken by a reporter upon trial, unrevised, perhaps, by him, and certainly not corrected by the court, would be hazardous both to the rights of the people and the accused. Such a practice must be condemned. It is a dangerous departure from the safe course furnished by statute. The prisoner was compelled by the court to have his cause heard upon this paper, and the judgment of the Supreme Court has been based thereon. It is manifest that the plaintiff in error might have come into this court and procured the reversal of the judgment of the Supreme Court affirming the judgment of the Oyer and Terminer, leaving
the latter judgment unreversed, but removed into the Supreme Court by the writ of error, and in that event it would have been the duty of the Supreme Court to rehear the case upon exceptions properly settled by the court, if any such were returned with the writ. But the plaintiff in error has not adopted this course. He insists that the minutes, having been substituted for the bill of exceptions by the ■Supreme Court against his consent, and the case heard thereon, he has the right to waive the legal error committed by the Supreme Court in substituting the minutes for a legal bill of exceptions, and to demand the judgment of this court upon the question whether regarding the minutes as a bill of exceptions, that court did not err in affirming the judgment of the Oyer and Terminer. His counsel argues that the Supreme Court had jurisdiction to hear and determine the cause when brought before it by writ of error; that this included the power of determining upon what papers it should be heard; that an error in this respect did not deprive the court of jurisdiction, but was a mere legal error which the party against whom it was committed was at liberty to waive,' and which, after waiver by such party, is to be disregarded. Without passing upon this question, we have concluded that in this case, being capital, we would examine the minutes and the questions presented therein in a manner somewhat more liberal than upon a bill of exceptions settled pursuant to the statute, so far as the exceptions taken to the rulings of the court are concerned. Hpon the trial, the counsel for the people proved by a witness that he heard cries at the house where the prisoner and his wife (the deceased) lived on the Saturday night preceding her death. The counsel for the people then asked the witness what those cries indicated, whether the person was crying for joy or what. The prisoner’s counsel objected to this question. The objection was overruled, and an exception taken. This question clearly called for the conjecture of tire witness as to the cause of the cries and not for a description of them. The former was incompetent. The latter was not. To this the witness
answered that it seemed to him she cried for help; that lie did not thick she did it for pleasure. It was for the witness to describe the cries, so as to give the jury as correct an idea of them as possible, and then for the latter to draw such inferences therefrom as in their judgment were warranted.
The counsel for the people introduced Mrs. Laird as a witness, and proved by her that the prisoner and his wife came to her house on the Sunday preceding her death; that the witness examined the head of the deceased in the absence of the prisoner and found a lump thereon, and that the right shoulder was black; that the deceased kept threatening all day to get him arrested. There was an objection taken to this evidence, but from the papers it is a little obscure whether it applied to the whole or to what part of it. What the witness discovered upon examining the head and shoulder of the deceased was competent evidence. What she said in his absence, whether by way of threat or otherwise, was incompetent. Its effect was injurious to the prisoner by creating a belief in the jury that he had inflicted violence upon her, causing the injuries discovered by the witness.
The record fails to show that the prisoner was asked by the court, after the verdict was rendered and before judgment was pronounced thereon, what he had to say why judgment should not be pronounced against him, or that any opportunity was given to him by the court, at this stage of the proceedings, for that purpose. This omission was error. It deprived the defendant of a substantial legal right. It was his right, at this stage, to move in arrest of judgment for any legal defect in the indictment or other proceedings, to show that the verdict was vitiated and should be set aside for the misconduct of the jury or for any other legal reason, or to plead a pardon. This has been the settled legal rule from the earliest history of the common law. This appears from the case of
The King
v.
Geary (2
Salkeld, 630). Geary was attainted of high treason on an indictment, to which he pleaded guilty. Upon error brought to reverse this attainder, the exception taken was that it did not appear that he was asked what he had to say
why judgment should not be given against him, and the report of the case shows that the precedents were searched and all found to show this fact, and the court held the exception good, for he might have matter to move in arrest of judgment, etc., and the attainder was reversed. This case arose in the reign of William and Mary, and the report shows thatx the law had for a long period been that it was a substantial legal right of the prisoner to show cause, if any he had, why judgment should not be given against him upon a verdict or confession of an indictment, and that the record must show affirmatively that the court had given him an opportunity to exercise it. The like judgment for the same reason was given by the King’s Bench in
The King
v.
Speke
(3 Salkeld, 358). The same judgment for the like reason was given in a case reported Anonymous 3d Modern,'265. In 1st Chitty Criminal Law, 700, it is said that
“
it is now indispensably necessary, even in clergyable felonies, that the defendant should be asked by the clerk, if he has anything to say why judgment of death should not be pronounced on him, and it is material that this appear upon the record to have been done, and its omission after judgment in high treason will be a sufficient ground for, the reversal of the attainder.
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Gbover, J.
The case shows that the Supreme Court, upon motion of the district attorney, ordered the cause to be heard upon the reporter’s minutes taken upon the trial of the prisoner, at the present term of the court, although such motion was opposed by the prisoner. This order was not authorized by law. Section 21, vol. 2, E. S., 736, gives to a defendant, on the trial of any indictment, the right to except to any decision of the court in the same cases and manner provided by law in civil cases, and provides that a bill thereof shall be settled, signed and sealed, and shall be filed with the clerk of the court and returned upon a writ of error, as theretofore authorized in personal actions. The cause is to be heard upon the exceptions so settled, signed, sealed and returned upon the writs of error, and the law does not authorize the substitution of the reporter’s minutes for these exceptions. The latter are to be carefully settled by the trial court, and tlie performance of this duty by the court is equally important to the due administration of justice as any other with which the court is charged. To substitute for the bill of exceptions, which the court is to see is made in exact conformity with the truth, the notes taken by a reporter upon trial, unrevised, perhaps, by him, and certainly not corrected by the court, would be hazardous both to the rights of the people and the accused. Such a practice must be condemned. It is a dangerous departure from the safe course furnished by statute. The prisoner was compelled by the court to have his cause heard upon this paper, and the judgment of the Supreme Court has been based thereon. It is manifest that the plaintiff in error might have come into this court and procured the reversal of the judgment of the Supreme Court affirming the judgment of the Oyer and Terminer, leaving
the latter judgment unreversed, but removed into the Supreme Court by the writ of error, and in that event it would have been the duty of the Supreme Court to rehear the case upon exceptions properly settled by the court, if any such were returned with the writ. But the plaintiff in error has not adopted this course. He insists that the minutes, having been substituted for the bill of exceptions by the ■Supreme Court against his consent, and the case heard thereon, he has the right to waive the legal error committed by the Supreme Court in substituting the minutes for a legal bill of exceptions, and to demand the judgment of this court upon the question whether regarding the minutes as a bill of exceptions, that court did not err in affirming the judgment of the Oyer and Terminer. His counsel argues that the Supreme Court had jurisdiction to hear and determine the cause when brought before it by writ of error; that this included the power of determining upon what papers it should be heard; that an error in this respect did not deprive the court of jurisdiction, but was a mere legal error which the party against whom it was committed was at liberty to waive,' and which, after waiver by such party, is to be disregarded. Without passing upon this question, we have concluded that in this case, being capital, we would examine the minutes and the questions presented therein in a manner somewhat more liberal than upon a bill of exceptions settled pursuant to the statute, so far as the exceptions taken to the rulings of the court are concerned. Hpon the trial, the counsel for the people proved by a witness that he heard cries at the house where the prisoner and his wife (the deceased) lived on the Saturday night preceding her death. The counsel for the people then asked the witness what those cries indicated, whether the person was crying for joy or what. The prisoner’s counsel objected to this question. The objection was overruled, and an exception taken. This question clearly called for the conjecture of tire witness as to the cause of the cries and not for a description of them. The former was incompetent. The latter was not. To this the witness
answered that it seemed to him she cried for help; that lie did not thick she did it for pleasure. It was for the witness to describe the cries, so as to give the jury as correct an idea of them as possible, and then for the latter to draw such inferences therefrom as in their judgment were warranted.
The counsel for the people introduced Mrs. Laird as a witness, and proved by her that the prisoner and his wife came to her house on the Sunday preceding her death; that the witness examined the head of the deceased in the absence of the prisoner and found a lump thereon, and that the right shoulder was black; that the deceased kept threatening all day to get him arrested. There was an objection taken to this evidence, but from the papers it is a little obscure whether it applied to the whole or to what part of it. What the witness discovered upon examining the head and shoulder of the deceased was competent evidence. What she said in his absence, whether by way of threat or otherwise, was incompetent. Its effect was injurious to the prisoner by creating a belief in the jury that he had inflicted violence upon her, causing the injuries discovered by the witness.
The record fails to show that the prisoner was asked by the court, after the verdict was rendered and before judgment was pronounced thereon, what he had to say why judgment should not be pronounced against him, or that any opportunity was given to him by the court, at this stage of the proceedings, for that purpose. This omission was error. It deprived the defendant of a substantial legal right. It was his right, at this stage, to move in arrest of judgment for any legal defect in the indictment or other proceedings, to show that the verdict was vitiated and should be set aside for the misconduct of the jury or for any other legal reason, or to plead a pardon. This has been the settled legal rule from the earliest history of the common law. This appears from the case of
The King
v.
Geary (2
Salkeld, 630). Geary was attainted of high treason on an indictment, to which he pleaded guilty. Upon error brought to reverse this attainder, the exception taken was that it did not appear that he was asked what he had to say
why judgment should not be given against him, and the report of the case shows that the precedents were searched and all found to show this fact, and the court held the exception good, for he might have matter to move in arrest of judgment, etc., and the attainder was reversed. This case arose in the reign of William and Mary, and the report shows thatx the law had for a long period been that it was a substantial legal right of the prisoner to show cause, if any he had, why judgment should not be given against him upon a verdict or confession of an indictment, and that the record must show affirmatively that the court had given him an opportunity to exercise it. The like judgment for the same reason was given by the King’s Bench in
The King
v.
Speke
(3 Salkeld, 358). The same judgment for the like reason was given in a case reported Anonymous 3d Modern,'265. In 1st Chitty Criminal Law, 700, it is said that
“
it is now indispensably necessary, even in clergyable felonies, that the defendant should be asked by the clerk, if he has anything to say why judgment of death should not be pronounced on him, and it is material that this appear upon the record to have been done, and its omission after judgment in high treason will be a sufficient ground for, the reversal of the attainder. The necessity of the record showing that this right was given to the prisoner by the court is laid down as applicable to all cases, and no reason whatever can be given why its omission in the record should be any more fatal in cases of high treason than in other capital cases. The only reason why the omission is said to be fatal in the former, while silent as to the consequence in the latter, is that the question had repeatedly been raised and determined in the former; but it does not appear to have arisen in the latter. It is obvious that the same reasons for the rule apply alike to all capital cases, and when these are the same, the rule must be the same. The same doctrine will be found in Comyn’s Digest, vol. 4, indictment M: 4th Blackstone, 376; Barbour’s Crim. Law, 330; Archibald’s Crim. Practice and Pleading, vol. 1, 180, 181. The question has rarely arisen in this country, for the reason, probably,
that the law was so fully settled and thoroughly understood that it has been almost universally observed in practice.. See
Safford
v.
The People
(1st Parker’s Crina. Cases), where the question arose and was somewhat elaborately discussed by Hand, J. These and other authorities that might be cited conclusively show that it is indispensable that the record should show in capital cases that the prisoner was required to show cause, if any, why judgment should not he awarded against him; that it is the duty of the court to hear and determine the sufficiency of such cause as much as to pass upon any other question during the trial. Indeed this may be-regarded as a part of the trial, as it is an essential prerequisite-to an adjudication of the guilt of the prisoner. The court has-no more power to dispense with this rule or disregard it than it has any other legal rule, which the wisdom and experience-of ages has found, necessary for the protection of the inno- . cent. It may be that the prisoner has sustained no injury from the non-observance of the law in the present case. But that is not the question for this court. That question is whether the record shows that the prisoner has been convicted of murder in the first degree in the mode prescribed by law. If it does, the judgment should be affirmed and execn- ' tion done as the law requires. But if the record fails to show that he has been so convicted or that all the opportunities of showing his innocence given him by law have been given to him by the court, the judgment must be reversed and a new trial, had. It is argued by the counsel for the people that the objection is obviated by chap. 226, Laws of 1863. That chapter contains but a single section amending section 24, article 2d, title 6, chap. 2, part 4, of the Revised Statutes,, by adding the following words: Provided, however, that the-appellate court shall have power, upon any writ of error, when. it shall appear that the conviction has been legal and regular, to remit the record to the court in which such conviction was had, to pass such sentence thereon as the said appellate court shall direct. The object of this amendment was to provide for cases where it appeared that it was legal for
the court to give judgment; but that in the giving thereof error had intervened and a sentence passed different from that required by law. In such cases the amendment makes it the duty of the appellate court to reverse the judgment and remand the case with directions to pass such sentence as required by law. But that is clearly not this case. The court never gave the prisoner the opportunity of showing cause why the verdict should not be set aside or the judgment thereon arrested. It was not, therefore, legally proper to proceed to judgment. For aught that appears the prisoner may have a legal
reason
to show why judgment should not pass against him. Should this court remand the case prescribing the judgment to be rendered, the prisoner will be deprived forever of all opportunity of presenting such reason, if any, to the consideration of the court. The judgment must be reversed and a new trial ordered.
Church, Ch. J., Folger, Sapallo and Andrews, JJ., concurred.
Allen, J., read an opinion for reversal of judgment on the ground of failure to ask the prisoner if he had anything to say why sentence should not be pronounced, and remitting proceedings to Court of Oyer and Terminer to give judgment on the conviction.