Lahdou, J.
The prisoner was convicted of murder in the first degree. The indictment charged that Simon A. Vandercook was the person murdered. We are confronted upon the threshold of our examination with the objection that the statute requires direct proof of the death of the person alleged to have been billed, and it is alleged that there is no direct proof that Simon A. Vandercook, the person here alleged to have been killed is dead. There is ■direct proof that a man in many respects resembling Simon A. Vandercook is dead; there is circumstantial evidence sufficient to satisfy the mind beyond a reasonable doubt that such person was Simon A. Vandercook; but the question remains, is there such direct proof of his death as the ■statute requires ?
Section 181 of the Penal Code provides: “ FTo person [148]*148can be convicted of murder or manslaughter, unless the death of the person alleged to have been killed, and the fact of the killing by the defendant as alleged are established as independent facts; the former by direct proof , am,d the latter beyond a reasonable doubt. This section of the Penal Code, as enacted in 1881, did not contain the words, which we have placed in italics; these were added by amendment in 1882.
This homicide was committed on the 10th day of January, 1882. The Penal Code, although passed July 26, 1881, did not, according to its last section (727) take effect until the first day of December, 1882, and when it took effect, section 181 had already been amended in the particular mentioned. But section 2 provides that “ Any act or omission begun prior to that day (Dec. 1, 1882) may be inquired of, prosecuted and punished in the same manner as if this, code had not been passed.” The identity of the dead body as tlie body of Vandercook might, therefore, be established as at common law.
The commissioners, in framing the section as it was enacted in 1881, as we learn from the note appended to-section 238 of their draft of the Penal Code, as published in 1864, intended to state the rule as announced in Ruloff’s case (18 N. Y. 179). But it is manifest that they failed to-do so. The rule in E-uloff’s case was announced to be that a conviction of murder cannot be permitted “ without direct proof of the death, or of the violence of other act of the defendant which is alleged to have produced death.” This direct proof of the death was declared to be either the production of the dead body or direct proof of the violence which caused the death and also caused the destruction or disappearance of the body, so that it could not be produced, as in the case of sinking the body in the sea, or consuming it by fire.
But section 181 really permitted proof of the death by circumstantial evidence, because circumstantial evidence, if sufficient and convincing, is competent, unless the statute [149]*149forbids, to prove any fact beyond a reasonable doubt. It was obviously intended by the amendment of 1882 to make the section actually conform to the rule, with respect to death, which is announced in Ruloff’s case. But the section, as it now stands, requires direct proof, not only of the death, but also of the identification of the dead body found or produced with the person named in the indictment as the person killed.
Ruloff was convicted of the murder of his child. The dead body of his child was never found, and there was no direct evidence of his murderous violence to the child, or •of his destruction of, or secreting its body. But there was indirect or circumstantial evidence sufficient to satisfy the jury that he first murdered his child, placed it in a box and put iron enough in the box to make it sink in the water, •and sunk it in the deep water of a lake. But the Court of Appeals reversed the conviction, holding that until direct proof of death was adduced either by proof of finding the dead body, or of the violence which caused its death, there was no occasion to inquire into the guilty agency of the prisoner.
The question of the identification of a dead body with a person named in the indictment as having been killed did not arise in the case. Such a question, however, did arise in Dr. Webster’s case (5 Cush. 295), and circumstantial •evidence or indirect proof was resorted to, to establish the identity of the nearly-consumed remains of Parkman, the man alleged to have been murdered. Also in People v. Wilson (3 Park. 199); Regina v. Cheverton (2 Foster & F. 833); Greenleaf on Evidence (vol. 3) states the rule •thus: “ Sec. 133. But though it is necessary that the body ■of the deceased be satisfactorily identified, it is not necessary that this be proved by direct and positive evidence, if the circumstances be such as to leave no reasonable doubt of the fact.”
The identity of the dead body of Simon A. Vandercook was, by the evidence adduced, established beyond a reason[150]*150able doubt. As the homicide was committed before the Penal Code took effect, we think it was competent to establish the identity by presumptive proof, that is, by facts and circumstances tending to establish the identity, and sufficiently convincing to exclude all reasonable doubt. • But if the case should be governed by section 181 of the Penal Code, we do not- think direct proof of identity should be held to exclude the points and features of resemblance, and circumstances tending to establish identity.
Here the head of the dead body had been consumed by fire. One of Vandercook’s hands and one of his feet had peculiar marks as of some in jury. The corresponding hand and foot of this dead body had also been consumed. Witnesses to whom the head and hand were familiar, might well hesitate to testify directly “ this is the body of Vandercook,” and yet be able to give direct evidence of facts and circumstances amounting to what we usually call presumptive or circumstantial proof of identity, and which might be sufficiently convincing to satisfy the mind beyond all reasonable doubt. Indeed, one witness might give one fact, and another witness another, and the sum of the facts might make a much stronger case for the jury than some witnesses, would need to enable them to say, “ this is the dead body of Vandercook.” In whatever form stated, proof of identity in such cases is a matter of opinion based upon the witnesses’ impression of the sameness of, or resemblance between the body seen, and his mental picture of the person alleged to have been killed. However directly he may testify, lie-gives but an opinion or impression induced by the facts upon his mind. When he says, “this body is Vandercook,” he means, “I think it is; I believe it is,” and strictly speaking we have only direct proof of what he thinks and what he believes, not what the fact actually sought is. Hence we think when the legislature required direct proof of the identity, they could not have intended to require any higher-proof than the nature of the case would admit of. Such [151]*151proof was given in this case, and we think justified the finding of the fact of the identity.
It is objected, that conceding that the defendant killed "Vandercook, there is no evidence of the “ deliberate and premeditated design to effect his death” requred by the statute (Penal Code, § 183), or, if any, not sufficient to justify a conviction of murder in the first degree.
The defendant lived alone in a small cabin on a mountain near what he supposed to be a gold mine which he had discovered. A company had been formed which obtained the title to the mine and land about it.
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Lahdou, J.
The prisoner was convicted of murder in the first degree. The indictment charged that Simon A. Vandercook was the person murdered. We are confronted upon the threshold of our examination with the objection that the statute requires direct proof of the death of the person alleged to have been billed, and it is alleged that there is no direct proof that Simon A. Vandercook, the person here alleged to have been killed is dead. There is ■direct proof that a man in many respects resembling Simon A. Vandercook is dead; there is circumstantial evidence sufficient to satisfy the mind beyond a reasonable doubt that such person was Simon A. Vandercook; but the question remains, is there such direct proof of his death as the ■statute requires ?
Section 181 of the Penal Code provides: “ FTo person [148]*148can be convicted of murder or manslaughter, unless the death of the person alleged to have been killed, and the fact of the killing by the defendant as alleged are established as independent facts; the former by direct proof , am,d the latter beyond a reasonable doubt. This section of the Penal Code, as enacted in 1881, did not contain the words, which we have placed in italics; these were added by amendment in 1882.
This homicide was committed on the 10th day of January, 1882. The Penal Code, although passed July 26, 1881, did not, according to its last section (727) take effect until the first day of December, 1882, and when it took effect, section 181 had already been amended in the particular mentioned. But section 2 provides that “ Any act or omission begun prior to that day (Dec. 1, 1882) may be inquired of, prosecuted and punished in the same manner as if this, code had not been passed.” The identity of the dead body as tlie body of Vandercook might, therefore, be established as at common law.
The commissioners, in framing the section as it was enacted in 1881, as we learn from the note appended to-section 238 of their draft of the Penal Code, as published in 1864, intended to state the rule as announced in Ruloff’s case (18 N. Y. 179). But it is manifest that they failed to-do so. The rule in E-uloff’s case was announced to be that a conviction of murder cannot be permitted “ without direct proof of the death, or of the violence of other act of the defendant which is alleged to have produced death.” This direct proof of the death was declared to be either the production of the dead body or direct proof of the violence which caused the death and also caused the destruction or disappearance of the body, so that it could not be produced, as in the case of sinking the body in the sea, or consuming it by fire.
But section 181 really permitted proof of the death by circumstantial evidence, because circumstantial evidence, if sufficient and convincing, is competent, unless the statute [149]*149forbids, to prove any fact beyond a reasonable doubt. It was obviously intended by the amendment of 1882 to make the section actually conform to the rule, with respect to death, which is announced in Ruloff’s case. But the section, as it now stands, requires direct proof, not only of the death, but also of the identification of the dead body found or produced with the person named in the indictment as the person killed.
Ruloff was convicted of the murder of his child. The dead body of his child was never found, and there was no direct evidence of his murderous violence to the child, or •of his destruction of, or secreting its body. But there was indirect or circumstantial evidence sufficient to satisfy the jury that he first murdered his child, placed it in a box and put iron enough in the box to make it sink in the water, •and sunk it in the deep water of a lake. But the Court of Appeals reversed the conviction, holding that until direct proof of death was adduced either by proof of finding the dead body, or of the violence which caused its death, there was no occasion to inquire into the guilty agency of the prisoner.
The question of the identification of a dead body with a person named in the indictment as having been killed did not arise in the case. Such a question, however, did arise in Dr. Webster’s case (5 Cush. 295), and circumstantial •evidence or indirect proof was resorted to, to establish the identity of the nearly-consumed remains of Parkman, the man alleged to have been murdered. Also in People v. Wilson (3 Park. 199); Regina v. Cheverton (2 Foster & F. 833); Greenleaf on Evidence (vol. 3) states the rule •thus: “ Sec. 133. But though it is necessary that the body ■of the deceased be satisfactorily identified, it is not necessary that this be proved by direct and positive evidence, if the circumstances be such as to leave no reasonable doubt of the fact.”
The identity of the dead body of Simon A. Vandercook was, by the evidence adduced, established beyond a reason[150]*150able doubt. As the homicide was committed before the Penal Code took effect, we think it was competent to establish the identity by presumptive proof, that is, by facts and circumstances tending to establish the identity, and sufficiently convincing to exclude all reasonable doubt. • But if the case should be governed by section 181 of the Penal Code, we do not- think direct proof of identity should be held to exclude the points and features of resemblance, and circumstances tending to establish identity.
Here the head of the dead body had been consumed by fire. One of Vandercook’s hands and one of his feet had peculiar marks as of some in jury. The corresponding hand and foot of this dead body had also been consumed. Witnesses to whom the head and hand were familiar, might well hesitate to testify directly “ this is the body of Vandercook,” and yet be able to give direct evidence of facts and circumstances amounting to what we usually call presumptive or circumstantial proof of identity, and which might be sufficiently convincing to satisfy the mind beyond all reasonable doubt. Indeed, one witness might give one fact, and another witness another, and the sum of the facts might make a much stronger case for the jury than some witnesses, would need to enable them to say, “ this is the dead body of Vandercook.” In whatever form stated, proof of identity in such cases is a matter of opinion based upon the witnesses’ impression of the sameness of, or resemblance between the body seen, and his mental picture of the person alleged to have been killed. However directly he may testify, lie-gives but an opinion or impression induced by the facts upon his mind. When he says, “this body is Vandercook,” he means, “I think it is; I believe it is,” and strictly speaking we have only direct proof of what he thinks and what he believes, not what the fact actually sought is. Hence we think when the legislature required direct proof of the identity, they could not have intended to require any higher-proof than the nature of the case would admit of. Such [151]*151proof was given in this case, and we think justified the finding of the fact of the identity.
It is objected, that conceding that the defendant killed "Vandercook, there is no evidence of the “ deliberate and premeditated design to effect his death” requred by the statute (Penal Code, § 183), or, if any, not sufficient to justify a conviction of murder in the first degree.
The defendant lived alone in a small cabin on a mountain near what he supposed to be a gold mine which he had discovered. A company had been formed which obtained the title to the mine and land about it. Vandercook became the manager of the mine, and the defendant either was, or supposed he was, excluded from any interest in it. Vandercook boarded in the family of Harrison Calkins, who lived about half a mile away. He had boarded there about three years before the homicide. Hot much work had been done in the mine, but Vandercook cut off the wood from the lot, and used the proceeds. The defendant became dissatisfied and had said to others regarding Vandercook that he would like to put him out of the way and suck his heart’s blood; that he would like to get some one to do it; that any one who knocked Vandercook over would get two or three hundred dollars. Some of these statements were repeatedly made. Vandercook was last seen alive at about eleven o’clock in the forenoon on January 10, 1882, near the cabin of the defendant. ' Two days later some neighbors broke into this cabin and found there Vandercook’s dead body, with the exception of his head, left hand, one foot, and part of his spinal column. The body had been cut into lengths or pieces apparently to fit them to be burned in the stove which was in the cabin. The examination of the ashes in the stove disclosed charred fragments of bones, apparently those of the missing parts of the body, also woolen clothing. About four o’clock of the afternoon of. the 10th of January, Beckwith called at the house of Mr. Calkins, and stated to Mrs. Calkins that Vandercook had gone away with a man from Green River to get up a stock company, and would [152]*152not be back until March. Mr. Calkins visited the defendant in his cabin that evening. As he approached it he perceived an unusual odor as of something burning. When he entered the cabin he found the stove red hot, and heard something frying or crackling within it, and, upon asking defendant the cause, the defendant answered that he was burning pork rinds. Calkins went away, and the defendant was not again seen in that neighborhood. It subsequently transpired that he went to Canada and lived there under the name of White. When he was arrested, some small articles, identified as Vandercook’s, were found in his possession. The examination -of the body of Vandercook disclosed a cut, as of a knife, ■entering the back beneath the shoulder blade and penetrating to the right lung. The physician testified that the ecchymosed condition of the lung indicated that Vandercook was alive when he received this cut; that it would greatly shock and weaken, but would not instantly kill him. Two axes were found in the cabin, one much covei'ed with flesh; on the head of the other were a few short gray hairs. Vandercook’s hair was short and gray. The defendant, being in jail, stated to some visitors that Vandercook came to his cabin ; that they had a tussle, and that Vandercook got the worst of it; that Vandercook got killed in his house; that he knew who did it, but he did not; that he got chopped up. With respect to the defendant’s statement it is proper feo say that while the law requires all of it to be considered, it is powerless to compel a jury to believe the portions of it that they discredit.
Vandercook was a much larger, stronger and more active man than the defendant. The jury obviously came to the conclusion that the threats of the defendant indicated his hostile feeling towards Vandercook, that the idea of killing him was often presented to his mind, and was much deliberated upon by him. That when Vandercook came to his cabin, whether an altercation or tussle occurred between them or not, the defendant took his opportunity to stab him in the back ; that this wound was not sufficient to kill him [153]*153instantly, and that he completed the homicide by striking him on the head with one of his axes. The other eircum•stances of the case no doubt strengthened their conviction of the capacity of the defendant to commit such a crime and that he did it with premeditation or deliberation. The statement of these circumstances seems to carry its own argument, and discussion is not useful. We think the evidence justifies the verdict.
Harrison Calkins was a material witness on behalf of the prosecution. On his cross-examination he testified that the relations between Vandercook and defendant were friendly so far as he knew. He was asked if he did not state to Dr. Hulette upon the highway, in the presence of Mrs. Hulette, that they (meaning himself and Vandercook) were not •doing anything with the mine now, that that half-crazy Beckwith was bothering them, and they could not do anything with it. He answered that he did not remember any .such remark. Mrs. Hulette was called by the defendant’s counsel and asked, in substance, if Galkins did not say so? •Objection being made it was sustained, and we think properly. It was competent for the prisoner’s counsel to prove by the witness, by way of discrediting him, that he made a ■statement out of court contrary to his testimony in. If the witness should deny or testify that he did not remember making such contradictory statement, it would be competent to prove it by another witness. The prisoner’s counsel here ■did not seek to prove, either by the witness Calkins or by Mrs. Hulette, any statement that Vandercook and defendant’s relations were unfriendly, but that Calkins had said ■that that half-crazy Beckwith was bothering them, and they would not do anything with the mine—a statement, which, if made, was expressive of Calkins’ estimate of the defendant and his conduct, but not proving that his sworn statement was opposed to his conversational one.
Whether Cálkins had made the latter statement was immaterial and not the proper subject of an issue (Carpenter v. Ward, 30 N. Y. 243. The motion in arrest of judg[154]*154ment upon the ground of irregularity does not appear to be supported by proof of the irregularity alleged.
We think the conviction and judgment should be affirmed.
■Bocees, J., concurred.