Daniels, J.
The defendant was indicted for the crime of murder in the first degree, in taking the life of Maria Williams, [424]*424by means of a pistol in his possession, and discharged by him, which inflicted a mortal wound upon her of which she soon afterwards died. The proof was such as to leave no doubt that the pistol was so discharged, and that her death was caused by the wound which the defendant thereby inflicted. The important and controverted subject was, whether her death was caused with that degree of premeditation and deliberation which has been required by section 183 of the Penal Code, to create the crime of murder in the first degree. The evidence, however, was such as to render that inquiry strictly an appropriate one for the decision of the jury, and it was submitted to them by a very clear and impartial charge by the Recorder, who presided at the trial. As to the rules of law required to be observed for the decision of the case, there is no reason for supposing that the jury could by any possibility have been involved in the least misunderstanding. Before the charge was delivered, certain requests were presented by the learned counsel' representing the prisoner, which the court in terms declined to submit to the jury. - But no error can be predicated of such refusals, for in the charge itself great care was taken to define the law as the jury were required to observe it. And that fully and clearly presented the case to them, within the limits of the evidence taken upon the trial. After the jury had devoted several hours to the consideration of the case, they returned into court, and presented a further inquiry to the Recorder concerning the legal requirements to create the crime of murder in the first degree, and they, were fully answered by reading or stating to the jury, what had previously been said upon'this subject by Mr. Justice Davis, presiding over the trial of Walworth, and by the courts upon careful and mature deliberation, as to the signification of the language employed in the statute. There was no room for any misapprehension on the part of the jury, and they are to be presumed to have disposed of the case from a careful examination of the evidence and as that warranted its disposition.
It has, however, been further urged that evidence was improperly received against the defendant in the course of the trial. This in part consisted of his own statements, made first to the officer by whom he ivas arrested, and afterwards to the [425]*425police sergeant before whom he was taken. But neither of these statements was induced by means of any threat made to the defendant, or any promise, or intimation that he could by any possibility be benefited by making a confession. He was, on the contrary, warned by the officer who arrested him, that whatever he might say would be used against him, but that he was at liberty to speak about the occurrence, if he wanted to do so, and under the impression produced by that information and his own inclination to speak, the statements were made, which were used against him upon the trial. The only circumstance, therefore, upon which the statements could be resisted, or objected to, as evidence, was the fact that he was in the custody of an officer when these statements were made. And that, it has been settled, before the enactment of the Code of Criminal Procedure, would not be sufficient to justify the court in excluding the evidence of his statements. The rule, on the other hand, is, that all he may have said which was in any manner relevant to the inquiries required to be made upon the trial, was admissible as evidence against him. Hendrickson v. People, 10 N. Y. 13, 21; People v. Rogers, 18 N. Y. 9; Teachout v. People, 41 N. Y. 7.
And by section 395 of the Code of Criminal Procedure it has been enacted that, “ a confession of a defendant, whether in the course of judicial - proceedings, or to a private person, can be given in evidence against him unless made under the influence of fear produced by threats, or unless made úpon a stipulation of the district attorney that he shall not be prosecuted therefor.” Under this provision, as well as the preceding rule of evidence, the statements made by the defendant concerning the fact of his commission of the homicide were legal evidence against him.
In the course of the cross-examination of the witness Williams, who was the husband of the deceased woman, he was repeatedly asked whether he had any other reason for saying that the third shot was fired at his wife except that he himself moved in his position. The witness was finally required to answer this question yes, or no, but he failed to do that, and his answer was that: “ The only reasons I could give is that he has threatened to take the life, and that was his only opportun[426]*426ity, and he fired at her.” This answer was not responsive to the question put to the witness, or within the limits to which he had been subjected for giving his answer. And the counsel thereupon moved to strike it out, but without particularly bringing this objection to the notice of the court, and it was allowed to stand, to which the counsel then took an exception. But it was entirely evident, from the manner in which the witness proceeded to give his answer to this final question, that he was not about to answer the question by a yes, or no. _ That was at once observable by the manner in which he commenced to answer the question, and if the counsel still designed to restrict him to a categorical answer', he should at once have interposed to arrest the answer which the witness was in the act of giving, and which was clearly not of that description. But he failed to do that, and permitted the witness to go on with the answer in a'different form, and strictly not within the question which had been propounded, and it was only after the answer had in this manner been completed that the application was made to strike it out. This the counsel had no right to do. As the witness was evidently not disposed to answer the question in the manner in which the counsel had propounded it, he should at once, when that became evident, have interposed his objection, as he well might, for he had a sufficient opportunity to do so, and prevented the witness from answering as he was inclined to answer, and which he may have done from a misapprehension of the question itself. He could not sit quietly by and allow the witness to answer the question in a different manner from that which he had been required to observe, and then, when the answer proved to be unsatisfactory, move to strike out the evidence. This was considered in Quin v. Lloyd, 41 N. Y. 349, where it was said by Woodruff, J., that, “ A party, against whom a witness is called and examined, cannot lie by and speculate on-the chances, first learning what the witness testifies, and then, when he finds the testimony unsatisfactory, objecting either to the competency of the witness, or to the form or substance of the testimony.” Id. 355. By taking this course, which seems to have been followed at the trial, the counsel deprived himself of the right to move to strike out the evidence. Beyond that, the answer in no manner could [427]*427have prejudiced the defendant, for before it was given the witness had stated the same thing, and if this particular answer had been stricken out, it would not have relieved the case from the statement. In both instances, the motion made by the counsel was to strike out this particular answer, and no other, while before the question was propounded to which the answer was made, the same statement had been made by the witness.
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Daniels, J.
The defendant was indicted for the crime of murder in the first degree, in taking the life of Maria Williams, [424]*424by means of a pistol in his possession, and discharged by him, which inflicted a mortal wound upon her of which she soon afterwards died. The proof was such as to leave no doubt that the pistol was so discharged, and that her death was caused by the wound which the defendant thereby inflicted. The important and controverted subject was, whether her death was caused with that degree of premeditation and deliberation which has been required by section 183 of the Penal Code, to create the crime of murder in the first degree. The evidence, however, was such as to render that inquiry strictly an appropriate one for the decision of the jury, and it was submitted to them by a very clear and impartial charge by the Recorder, who presided at the trial. As to the rules of law required to be observed for the decision of the case, there is no reason for supposing that the jury could by any possibility have been involved in the least misunderstanding. Before the charge was delivered, certain requests were presented by the learned counsel' representing the prisoner, which the court in terms declined to submit to the jury. - But no error can be predicated of such refusals, for in the charge itself great care was taken to define the law as the jury were required to observe it. And that fully and clearly presented the case to them, within the limits of the evidence taken upon the trial. After the jury had devoted several hours to the consideration of the case, they returned into court, and presented a further inquiry to the Recorder concerning the legal requirements to create the crime of murder in the first degree, and they, were fully answered by reading or stating to the jury, what had previously been said upon'this subject by Mr. Justice Davis, presiding over the trial of Walworth, and by the courts upon careful and mature deliberation, as to the signification of the language employed in the statute. There was no room for any misapprehension on the part of the jury, and they are to be presumed to have disposed of the case from a careful examination of the evidence and as that warranted its disposition.
It has, however, been further urged that evidence was improperly received against the defendant in the course of the trial. This in part consisted of his own statements, made first to the officer by whom he ivas arrested, and afterwards to the [425]*425police sergeant before whom he was taken. But neither of these statements was induced by means of any threat made to the defendant, or any promise, or intimation that he could by any possibility be benefited by making a confession. He was, on the contrary, warned by the officer who arrested him, that whatever he might say would be used against him, but that he was at liberty to speak about the occurrence, if he wanted to do so, and under the impression produced by that information and his own inclination to speak, the statements were made, which were used against him upon the trial. The only circumstance, therefore, upon which the statements could be resisted, or objected to, as evidence, was the fact that he was in the custody of an officer when these statements were made. And that, it has been settled, before the enactment of the Code of Criminal Procedure, would not be sufficient to justify the court in excluding the evidence of his statements. The rule, on the other hand, is, that all he may have said which was in any manner relevant to the inquiries required to be made upon the trial, was admissible as evidence against him. Hendrickson v. People, 10 N. Y. 13, 21; People v. Rogers, 18 N. Y. 9; Teachout v. People, 41 N. Y. 7.
And by section 395 of the Code of Criminal Procedure it has been enacted that, “ a confession of a defendant, whether in the course of judicial - proceedings, or to a private person, can be given in evidence against him unless made under the influence of fear produced by threats, or unless made úpon a stipulation of the district attorney that he shall not be prosecuted therefor.” Under this provision, as well as the preceding rule of evidence, the statements made by the defendant concerning the fact of his commission of the homicide were legal evidence against him.
In the course of the cross-examination of the witness Williams, who was the husband of the deceased woman, he was repeatedly asked whether he had any other reason for saying that the third shot was fired at his wife except that he himself moved in his position. The witness was finally required to answer this question yes, or no, but he failed to do that, and his answer was that: “ The only reasons I could give is that he has threatened to take the life, and that was his only opportun[426]*426ity, and he fired at her.” This answer was not responsive to the question put to the witness, or within the limits to which he had been subjected for giving his answer. And the counsel thereupon moved to strike it out, but without particularly bringing this objection to the notice of the court, and it was allowed to stand, to which the counsel then took an exception. But it was entirely evident, from the manner in which the witness proceeded to give his answer to this final question, that he was not about to answer the question by a yes, or no. _ That was at once observable by the manner in which he commenced to answer the question, and if the counsel still designed to restrict him to a categorical answer', he should at once have interposed to arrest the answer which the witness was in the act of giving, and which was clearly not of that description. But he failed to do that, and permitted the witness to go on with the answer in a'different form, and strictly not within the question which had been propounded, and it was only after the answer had in this manner been completed that the application was made to strike it out. This the counsel had no right to do. As the witness was evidently not disposed to answer the question in the manner in which the counsel had propounded it, he should at once, when that became evident, have interposed his objection, as he well might, for he had a sufficient opportunity to do so, and prevented the witness from answering as he was inclined to answer, and which he may have done from a misapprehension of the question itself. He could not sit quietly by and allow the witness to answer the question in a different manner from that which he had been required to observe, and then, when the answer proved to be unsatisfactory, move to strike out the evidence. This was considered in Quin v. Lloyd, 41 N. Y. 349, where it was said by Woodruff, J., that, “ A party, against whom a witness is called and examined, cannot lie by and speculate on-the chances, first learning what the witness testifies, and then, when he finds the testimony unsatisfactory, objecting either to the competency of the witness, or to the form or substance of the testimony.” Id. 355. By taking this course, which seems to have been followed at the trial, the counsel deprived himself of the right to move to strike out the evidence. Beyond that, the answer in no manner could [427]*427have prejudiced the defendant, for before it was given the witness had stated the same thing, and if this particular answer had been stricken out, it would not have relieved the case from the statement. In both instances, the motion made by the counsel was to strike out this particular answer, and no other, while before the question was propounded to which the answer was made, the same statement had been made by the witness. That statement preceded all controversy between the counsel and the witness, and all effort on the part of the former to so shape the answer as to obtain a more categorical reply. In the uninterrupted course of the cross-examination, the counsel had before asked the witness this question: “ Have you any other reason for saying to the jury that that last shot was tired at your wife, except you got a little out of the way ?” “Ho reason, more than he had threatened to kill her, and that was his only opportunity.” There was no motion at any time to strike out this answer, but the question was again substantially repeated, and the answer then given by the witness was not inserted in the case, but it was stricken out by the Court. A further examination of the witness followed, in which the answer finally moved to be stricken out was given. Striking it out under these circumstances would have been no benefit whatever to the defendant, for the first answer, including the statement of this threat, would still have remained in the case to be considered and acted upon by the jury.
After the motion to strike out the final answer was denied, the witness was further asked whether he had ever heard the defendant make any such threat, and his answer was, “ not in my presence.” He had previously twice answered in the same manner, and his answers on the application of the defendant’s counsel were stricken out, but this third answer was retained by the court and the defendant excepted to the ruling by which it was permitted to stand. This answer was a qualified response to the question which was put to the witness, not strictly responsive, but sufficiently so to entitle the court to retain it. But if that was not so, retaining it in the case could not in any manner have prejudiced the defendant. It was rather a benefit to him, for, to a certain extent, it tended to impair the weight of the statement made that the defendant had threat[428]*428ened to kill this woman. For if the threat was not made in the presence of the witness it might well be argued to the jury and considered by them, that the witness had not been stating the fact according to his own knowledge, and therefore his statement of the threat would be unreliable. To have stricken out this answer would have deprived the defendant of the benefit of this argument, and that the court was not required to do, even though the application for it was made by his own counsel. No further examination was made of the witness. He was not asked to state how he was able to say that the defendant had threatened to kill his wife, as long as the threat was not made in his presence, or when, or under what circumstances it was made; but the counsel voluntarily left the case in this position without endeavoring to clear it up, either for the benefit, or at the risk of the defendant. That may have been the most judicious course, to be adopted, inasmuch as the answer finally received had some tendency to render it probable that the witness at no time heard the defendant threaten to take the life of his wife.
A witness was asked by a juror, “ If Maria Williams had been in her room at the time of the shooting, would not you have seen her there ?” The answer was, “ Certainly.” The defendant’s counsel moved to strike this answer out. The court refused, and an exception on behalf of the defendant was taken. This witness was asked for no matter of judgment or opinion, but as to a strict matter of fact, whether she would or would not have seen Maria Williams if she - had been in her room at the time of the shooting. It was a question to be. answered as the result of observation and of the attention of the witness to what at the time was transpiring and whether Maria W illiams was then present or not. It was an inquiry as to her ability to answer, and to answer with certainty, and the response given by her was entitled to be retained to be considered by the jury in the weight they might regard her testimony as deserving.
The evidence was such as very clearly to warrant the jury-in concluding that the defendant had taken the life of the deceased woman with a deliberate and premeditated design to cause her death. Their verdict, consequently, being so sus[429]*429tained, could not legally be interfered with by the court, bio point has been presented upon which can be determined that the disposition made of the case at the trial was in any respect different from what it should legally have been.
The judgment, as well as the order denying the motion for a new trial, should be affirmed.