MARTIN, J. (after stating the facts).
The defendant, in his brief, presents for determination upon this appeal questions as to the validity of several exceptions taken upon the trial, and asks for a new trial upon the further ground that manifest injustice has been done. Two of these questions relate to the impaneling of the jury. The defendant’s claim is that two jurors were improperly excused by the court. John W. Bhair was summoned as a talesman, and upon examination as to his competency to serve he testified that the fact that the decedent was a white woman would have a decided influence upon him in arriving at a verdict, and that he could not decide the case according to the law and evidence where a white woman had married a colored man, and they had trouble. After giving this testimony, the court excused him. We think this evidence showed clearly that he would not have been a fair and impartial juror in the case, and that sufficient reason existed to justify the court in excusing him. But it is claimed that, as no challenge was interposed, it was error not to permit him to sit upon the trial. Section 358 of the Code of Criminal Procedure declares that the jury in a criminal case is to be formed as prescribed in the Code of Civil Procedure. When we turn to section 1166 of the latter Code, we find it provides that the first 12 persons who appear as their names are drawn and called, and are approved as indifferent between the parties, and not discharged or excused, must be sworn, and constitute the jury to try the issue. Thus, a juror who is not indifferent between the parties, and approval by the court as being indifferent, cannot actas one of the jury. The approval or determination as to his indifference and competency, when the question arises, is to be passed upon by the court. While it is doubtless true that a court cannot capriciously set aside as incompetent jurors who are clearly competent, and thus limit the selection of the jury to the jurors who may be left (Hildreth v. City of Troy, 101 N. Y. 234, 4 N. E. 559), yet, where it is obvious from the proof given upon the question that the juror whose name is called is not competent or indifferent between the parties, we think, even in the absence of a formal challenge, the court may reject or excuse him. The juror Bhair was examined as to his
qualifications to serve upon the jury in this case. .His own testimony disclosed that he was not indifferent between the parties. While the record shows no formal challenge either by the prosecution or by the defense, it is manifest that both parties understood that the examination made was for the purpose of determining if he was competent and qualified to act. We think, under such circumstances, the court was justified in excusing him, although no specific challenge was interposed by either party. Mo objection to the ruling was taken upon the ground that no challenge had been interposed. If the objection had been made on that ground, there can be no doubt that the prosecution would have interposed a formal challenge. The juror was excused for reasons which were sufficient. To hold now that this general exception to the decision of the court entitles the defendant to a reversal of the judgment would be to give effect to a pure technicality, as it is not pretended that the rejection of this juror in any way affected the substantial rights of the defendant. The determination of the court as to his competency was, in no sense, incorrect, but a reversal is sought upon the mere technical ground that no formal challenge was interposed by the prosecution. To sustain the defendant’s contention would be in direct contravention of the provisions of the Code of Criminal Procedure which declare that after hearing the appeal, the court must give judgment without regard to technical errors or defects, or 'to exceptions which do not affect the substantial rights of the parties. Section 542. Therefore we are of the opinion that the judgment in this case should not be disturbed upon that ground.
Frederick GHuckter was also summoned and upon an examination as to his competency as a juror he testified that, if the defendant killed his wife in a fit of jealousy, he would be lenient towards him for a lighter sentence; that, if she actually went with other men, it would induce him to accept a lighter sentence) no matter what the other proof might be; and that, under such circumstances, he could not conscientiously take an oath to serve as a juror, and be governed entirely by the law and evidence. He also testified that, if no such fact was proved in the case, he could then do his full duty as a juror, follow all the
instructions of the court, and decide the case fairly and impartially upon the evidence; but that, if such fact was proved, he did not think he could. The prosecution then challenged him for cause. The court inquired of the district attorney if, from his examination of the case, he anticipated the introduction of evidence tending to show that the man suspected his wife’s infidelity, to which he replied that he did, and the court then remarked that the juror ought not to sit, as jealousy did not constitute any defense in such case. To this the juror said:
“
Some man may think his honor very much affected. I guess every man thinks so.” The court replied, “I have already said to you that it does not constitute any defense in law; ” and the juror said, “I have just explained here what my opinion is.” The court then said : “ Your opinion is not justified by any law of the land, or by any moral law. You are excused.” To the exclusion of this juror the defendant took a general exception. We think this ruling was entirely justified, and that it constituted no error. It is manifest from the juror’s own statement that, if the case assumed a condition that was liable to arise on the trial, he would not be controlled by the law and evidence. That a person entertaining such views should not be permitted to serve as a juror in a case where such a question might be involved is too plain to require discussion. Moreover, it is claimed and undisputed that when the impaneling of the jury was completed, the defendant still had a number of peremptory challenges, so that he might have challenged any juror upon the panel with whom he was not satisfied. Ho juror was permitted to sit to whom the defendant made any substantial objection. Under these circumstances we are unable to find anything in the rulings of the court upon this subject which affected the substantial rights of the defendant, or which would justify a reversal.
On the trial, Martha Parnell was called as a witness for the people, and was permitted, under objection, to testify that several months before the homicide the defendant and decedent quarreled ; that in the presence of the witness the defendant took hold of a revolver that lay upon the table, and, referring to his wife, said, “ He had her medicine if she did not do as he said,” and
that the revolver he then had was the one employed when the tragedy occurred. We think there is no doubt as to the competency of 'that evidence. It showed the relation existing between the parties, and tended to show motive as well as deliberation and premeditation. The evidence of former threats is always admissible. As was said by Judge Ingraham in Jefferds v. People, 5 Parker, Cr. R. 522 : “ It is no objection to such evidence that a period of years had expired since the threats were made.
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MARTIN, J. (after stating the facts).
The defendant, in his brief, presents for determination upon this appeal questions as to the validity of several exceptions taken upon the trial, and asks for a new trial upon the further ground that manifest injustice has been done. Two of these questions relate to the impaneling of the jury. The defendant’s claim is that two jurors were improperly excused by the court. John W. Bhair was summoned as a talesman, and upon examination as to his competency to serve he testified that the fact that the decedent was a white woman would have a decided influence upon him in arriving at a verdict, and that he could not decide the case according to the law and evidence where a white woman had married a colored man, and they had trouble. After giving this testimony, the court excused him. We think this evidence showed clearly that he would not have been a fair and impartial juror in the case, and that sufficient reason existed to justify the court in excusing him. But it is claimed that, as no challenge was interposed, it was error not to permit him to sit upon the trial. Section 358 of the Code of Criminal Procedure declares that the jury in a criminal case is to be formed as prescribed in the Code of Civil Procedure. When we turn to section 1166 of the latter Code, we find it provides that the first 12 persons who appear as their names are drawn and called, and are approved as indifferent between the parties, and not discharged or excused, must be sworn, and constitute the jury to try the issue. Thus, a juror who is not indifferent between the parties, and approval by the court as being indifferent, cannot actas one of the jury. The approval or determination as to his indifference and competency, when the question arises, is to be passed upon by the court. While it is doubtless true that a court cannot capriciously set aside as incompetent jurors who are clearly competent, and thus limit the selection of the jury to the jurors who may be left (Hildreth v. City of Troy, 101 N. Y. 234, 4 N. E. 559), yet, where it is obvious from the proof given upon the question that the juror whose name is called is not competent or indifferent between the parties, we think, even in the absence of a formal challenge, the court may reject or excuse him. The juror Bhair was examined as to his
qualifications to serve upon the jury in this case. .His own testimony disclosed that he was not indifferent between the parties. While the record shows no formal challenge either by the prosecution or by the defense, it is manifest that both parties understood that the examination made was for the purpose of determining if he was competent and qualified to act. We think, under such circumstances, the court was justified in excusing him, although no specific challenge was interposed by either party. Mo objection to the ruling was taken upon the ground that no challenge had been interposed. If the objection had been made on that ground, there can be no doubt that the prosecution would have interposed a formal challenge. The juror was excused for reasons which were sufficient. To hold now that this general exception to the decision of the court entitles the defendant to a reversal of the judgment would be to give effect to a pure technicality, as it is not pretended that the rejection of this juror in any way affected the substantial rights of the defendant. The determination of the court as to his competency was, in no sense, incorrect, but a reversal is sought upon the mere technical ground that no formal challenge was interposed by the prosecution. To sustain the defendant’s contention would be in direct contravention of the provisions of the Code of Criminal Procedure which declare that after hearing the appeal, the court must give judgment without regard to technical errors or defects, or 'to exceptions which do not affect the substantial rights of the parties. Section 542. Therefore we are of the opinion that the judgment in this case should not be disturbed upon that ground.
Frederick GHuckter was also summoned and upon an examination as to his competency as a juror he testified that, if the defendant killed his wife in a fit of jealousy, he would be lenient towards him for a lighter sentence; that, if she actually went with other men, it would induce him to accept a lighter sentence) no matter what the other proof might be; and that, under such circumstances, he could not conscientiously take an oath to serve as a juror, and be governed entirely by the law and evidence. He also testified that, if no such fact was proved in the case, he could then do his full duty as a juror, follow all the
instructions of the court, and decide the case fairly and impartially upon the evidence; but that, if such fact was proved, he did not think he could. The prosecution then challenged him for cause. The court inquired of the district attorney if, from his examination of the case, he anticipated the introduction of evidence tending to show that the man suspected his wife’s infidelity, to which he replied that he did, and the court then remarked that the juror ought not to sit, as jealousy did not constitute any defense in such case. To this the juror said:
“
Some man may think his honor very much affected. I guess every man thinks so.” The court replied, “I have already said to you that it does not constitute any defense in law; ” and the juror said, “I have just explained here what my opinion is.” The court then said : “ Your opinion is not justified by any law of the land, or by any moral law. You are excused.” To the exclusion of this juror the defendant took a general exception. We think this ruling was entirely justified, and that it constituted no error. It is manifest from the juror’s own statement that, if the case assumed a condition that was liable to arise on the trial, he would not be controlled by the law and evidence. That a person entertaining such views should not be permitted to serve as a juror in a case where such a question might be involved is too plain to require discussion. Moreover, it is claimed and undisputed that when the impaneling of the jury was completed, the defendant still had a number of peremptory challenges, so that he might have challenged any juror upon the panel with whom he was not satisfied. Ho juror was permitted to sit to whom the defendant made any substantial objection. Under these circumstances we are unable to find anything in the rulings of the court upon this subject which affected the substantial rights of the defendant, or which would justify a reversal.
On the trial, Martha Parnell was called as a witness for the people, and was permitted, under objection, to testify that several months before the homicide the defendant and decedent quarreled ; that in the presence of the witness the defendant took hold of a revolver that lay upon the table, and, referring to his wife, said, “ He had her medicine if she did not do as he said,” and
that the revolver he then had was the one employed when the tragedy occurred. We think there is no doubt as to the competency of 'that evidence. It showed the relation existing between the parties, and tended to show motive as well as deliberation and premeditation. The evidence of former threats is always admissible. As was said by Judge Ingraham in Jefferds v. People, 5 Parker, Cr. R. 522 : “ It is no objection to such evidence that a period of years had expired since the threats were made. On the contrary, long continued animosity and ill will are better evidence of a state of mind which will ripen into deliberate murder than the hasty ebullition of passion. The theory of the law of murder is that it is made on premeditation, and the motives for such an act are not less powerful because they are the result of ill feelings entertained for years.” We are clearly of the opinion that this evidence was admissible, and that the court committed no error in receiving it.
At the close of the people’s case the defendant’s counsel requested the court to withdraw from the consideration of the jury the question of murder in the first degree, for the reason that' there was no proof of a deliberate and premeditated design to effect the death of the person killed. This request was refused, and the defendant’s counsel excepted. We think the proof was sufficient to make the question of premeditation and deliberation a question of fact, and to require its submission to the jury. The premeditation and deliberation necessary to constitute the crime of murder in the first degree has frequently been under consideration by this court, and the rule, as established by its decisions, is stated by Judge Earl in People v. Majone, 91 N. Y. 211, as follows : “ Under the statute, there must be, not only an intention to kill, but there must also be a deliberate and premeditated design to kill. Such design must precede the killing by some appreciable space of time. But the time need not be long. It must be sufficient for some reflection and consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. The human mind acts with celerity which it is sometimes impossible to measure, and whether a deliberate and premeditated design to kill was formed must be determined from all
the circumstances of the case." The rule there stated has been recognized and affirmed in many other cases in this court, of which the following are a few : Leighton v. People, 88 N. Y. 117; People v. Beckwith, 103 N. Y. 361, 368, 8 N. E. 662; People v. Conroy, 97 N. Y. 62, 76; People v. Hawkins, 109 N. Y. 408, 17 N. E. 371; People v. Johnson, 139 N. Y. 358, 34 N. E. 920 ; People v. Constantino, 153 N. Y. 24, 37, 47 N. E. 37. Applying this well-established rule to the facts and circumstances of this case, it is obvious that the evidence was sufficient to justify the jury in finding that the killing of the decedent was with premeditation and deliberation on the part of the defendant, and the court properly declined -to withdraw that question from the consideration of the jury. These considerations also apply to the motion of the defendant to direct the jury to acquit, and to the exception to the court’s refusal to grant a new trial after verdict.
The defendant also contends that there was no sufficient evidence of motive upon the part of the defendant. We think otherwise. The evidence of the defendant’s threats, of frequent quarrels between the parties, the admission of the defendant that he killed his wife, and the other facts and circumstances disclosed, render it manifest that the proof of motive was quite sufficient.
The only remaining ground upon which the defendant claims that he is' entitled to a new trial is that manifest injustice has been done. Section 528 of the Code of Criminal Procedure provides : “ When the judgment is of death, the court of appeals may order a new trial, if it be satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below.” Laws 1895, c. 119. This section has been several times under consideration by this court, and it has been quite uniformly held that the power conferred by it in the review of capital cases is not called into exercise by the appearance of some error which no exception pointed out, unless the substantial rights of the accused can be seen to have been affected by it, and therefore justice demands a new trial; and that, in determining whether a newr trial shall be granted under
it, it is not the province of this court to review or determine controverted questions of fact arising upon conflicting evidence, but that the jury is the ultimate tribunal in such a case, and that with its decision the court.may not interfere unless it reaches the conclusion that justice has not been done. People v. Cignarale, 110 N. Y. 23, 26, 17 N. E. 135; People v. Trezza, 125 N. Y. 740, 26 N. E. 933; People v. Kelly, 113 N. Y. 647, 21 N. E. 122; People v. Hoch, 150 N. Y. 291, 44 N. E. 976; People v. Youngs, 151 N. Y. 210, 222, 45 N. E. 460 ; People v. Constantino, 153 N. Y. 24, 35, 47 N. E. 37. Applying these rules to the facts in this case, it becomes obvious that a new trial should not be granted on that ground. The evidence can hardly be said to be even conflicting, but is of a character which justified, if it did not require, the verdict rendered. Therefore, after carefully examining all the evidence contained in the record, and the various exceptions to which our attention has been called, we have reached the conclusion that no sufficient grounds exist to justify a reversal of the conviction in this case.
The judgment of conviction should be affirmed.
All concur.
Judgment affirmed.