GRAY, J.
The defendant was charged in the indictment with the crime of murder in the first degree for having with intention and deliberate design killed Minnie Ingersoll by shooting her with a rifle. Being arraigned, he interposed a plea of “not guilty, and insanity,” and, being tried upon the charge, the jury rendered a verdict of murder in the first degree. Upon this appeal from the judgment of conviction it is argued in behalf of the defendant that the evidence does not justify the verdict rendered, and that errors were committed upon the trial, which require a reversal of the judgment and the ordering of a new trial.
The foundation of the case for the people against the defendant rests in his confession, testified to by his sister and her husband as having been made to them. This was within an hour or two of the homicide; and the evidence of other witnesses concerning the defendant’s acts upon that day is so corroborative of material facts detailed in the narrative of the defendant’s confession as to evidence its truthfulness. The manner of the killing of the deceased was shown by the evidence of an elderly man, named Nicholas Strife, who was with her at the time. They were engaged in milking, upon what was known as the “ Strife .Farm,” in the evening of July 10, 1895, and, as they were passing, with
their pails full of milk, over the barn floor, and towards a passageway leading therefrom and between a box stall and the side of the barn, two shots were fired in quick succession from a window in the stall, the first of which struck deceased, and the second of which struck the witness Strife, and wounded him in the side. Upon being struck, the deceased fell instantly to the ground, and? beyond exclaiming “Oh. dearme; oh, dearme!” never uttered ■another word; and the subsequent examination by the physician, who extracted the bullet-from her spinal column, showed that its •course was such as to have been necessarily, and almost instantly, fatal.
Minnie Ingersoll, the deceased, was an unmarried girl, about ■seventeen years old, who resided with her brother, then managing the Strife farm. The defendant was a single man of about thirty-five years of age, and had been paying his attentions to Minnie, ■contrary to the wishes of her family. The shooting occurred at about half-past seven in the evening, and later, between half-past eight and nine o’clock, the defendant appeared at the house of Charles Graves, his sister’s husband, about three and one-half miles from the Strife farm, and gave to Mr. and Mrs. Graves his watch, pocketbook, and sundry other personal effects, with the remark he did not want them any more. He also went out, and brought into the house a Winchester rifle, and gave it and a handful of cartridges to Mr. Graves, keeping with him a loaded revolver. Upon being pressed by Mrs. Graves to tell what he had been doing, he said he had shot Minnie Ingersoll and an old man. He described how he had waited about the farm buildings until the departure of some, persons whom he saw there, and then how that he got into the barn, and, when he saw the deceased coming towards him with a pail of milk, had shot her. The testimony was that he said, “I calculated to shoot her twice, and I hit Mr. Strife,” or somebody whom he did not then know, and that he said “he did not calculate to shoot him; he wanted to make sure work of her, and so he shot twice.” Upon being asked why he shot her, the defendant said, “If he couldn’t marry her, 'there shouldn’t any one else have her.” The confession of the defendant that he killed the deceased is testified to by Charles Graves and his wife, who also gave in evidence statements made
to them by the defendant as to what he had done- during the day, and just as it was proved through other witnesses. He told of purchase of a Winchester rifle in the morning, and that he had hired a vehicle, and had taken and hidden the gun in the bushes. After returning the team, he went back on foot in the afternoon to some woods near the Strife barn, where he satisfied himself as to his marksmanship by practicing at a mark, before undertaking to shoot at the deceased. A man, working in the neighborhood heard two quick gunshots in the direction of the Strife buildings about 7.80 o’clock in the evening, and, going over at once, he- saw the deceased lying inanimate and bleeding upon the barn floor. Another witness heard several shots in the piece of woods between his and the Strife farm, at about seven o’clock, and some minutes later he noticed two rapid -shots in the same direction. Defendant had told the Graveses about trying to cross the gulf—alwooded ravine south of the Strife farm, called “ Roaring Brook Gulf ”—on his way to their house. The man Strife, who was wounded by the second shot in the barn, saw a man running from the barm carrying a gun, towards the gulf; in the rear or-southward of the farm. The next morning the witness found in the box-stall in the barn an empty cartridge of the description of those required by the defendant’s rifle. The defendant slept at Graves’ house the night of the killing, after being assured that he would be notified if any one came. He told the Graveses that he wanted to know of any one coming, saying, ‘‘ They won’t take me away from here alive.” The next morning, when the deputy sheriff arrived, the defendant, coming out of the house, shot himself in the forehead with his revolver, and was taken away in a vehicle, in a wounded condition. Without further adverting to the evidence, it is sufficient to say that the defendant’s confession to his sister and her husband was shown to be true in its statement of facts, and it is clear that he had intended and planned to kill the deceased; that he chose a favorable opportunity for accomplishing the deed effectually, and was conscious enough of the crime he had committed to run away through' the woods to his sister’s house, and, when threatened with arrest, to seek to put an end to his own life. The deed was not only deliberately committed, but the evidence showed it to have been premeditated from motives of revenge and
jealousy, excited by finding his attentiiims rejected by the deceased, and opposed by her family. Five days before the homicide the defendant was overheard, while saying to the deceased, as he was driving away from the Strife farm house after a call, “Minnie, it won’t do me any good to come again, will it ? ” and when she replied, “ No,” he continued, “ Minnie, you will be sorry for this, •and if you are not sorry somebody else will be.” The father of the deceased had driven with the'defendant upon the day he had called, and, replying to the inquiry as to what objection he had to his “keeping company with his daughter,” had said, “she was too young,” and that he “ didn’t think she wanted to keep 1ns company any more than he [her father] wanted to have it.” About noon of the day of the shooting the defendant drove up to where the brother of the deceased was, to inquire if she was at home, and was told he could not go with her as long as she was staying there; that “ our folks were against it.” The case is one of a man of mature years pressing his attentions upon a very young girl, and, finding them opposed by the family, and rejected by the girl, deliberately taking her life; with a very careful regard for the secrecy of his deed and of the preparations for it. There is no doubt, upon the evidence, that he was guilty of having designedly shot and killed the deceased.
The defendant did not testify in his own behalf, and the evidence in his defense consisted mainly in the attempt to prove that he was irresponsible, because of insane mind. The evidence in that respect is not, in our opinion, entitled to much weight, and that the jury did not believe the defendant to have been insane is not surprising. Members of his family testified to acts and occurrences which either seem very trivial, or were quite compatible with a morose and willful character, combined with stupidity, or a low degree of intelligence. The father described what he thought to be a fit, when his son was twelve years of age, and incidents during boyhood of a seemingly trivial nature, showing, possibly, weak health, and a dull temperament. A brother told of defendant’s falling from a horse while a boy, and striking his head upon a stone, which, however, did not cause any serious injury at the time, or necessitate a doctor’s services. He also related an instance, within a year, of seeing defendant abusing himself.
These and other members of the family also related instances of abrupt conduct in intercourse with them, and in the manner of leave taking, and of alternative habits of taciturnity and of talkativeness. Each testified to being impressed with the irrationality of defendant’s acts and appearance, and what caused such impression is stated in the evidence. There was testimony by an uncle that defendant’s father liad drunk to intoxication before and after marriage, and, during his wife’s pregnancy with defendant, had kicked her. There was very trivial, if not frivolous, evidence by others concerning defendant's conduct at various times, and the record of a former trial for assault in the first degree, in 1887, was introduced, which showed that the plea of insanity had been then interposed. He had been engaged to be married, had refused to-perform his engagement, and, after a dispute with the mother of the girl, who objected to his then going with her, he shot at and wounded her. The jury found him guilty in that case, and he serv-ed- a term of imprisonment.
Upon the trial, medical experts were examined on either side, and gave their answers to hypothetical questions as prepared and propounded. The usual conflict of opinion occurred, which is constantly seen upon1 such trials, and which tends not only to bring discredit upon a learned profession, but, more seriously, to-embarrass the search after the truth, in which the tribunal is engaged, by confusing and darkening the minds of the jurors with opinions upon the scientific questions before them, which are expressed as previously pledged to either side. The fact that the rule which permits expert testimony in such cases works, in practice, badly for the interests of justice, cannot be so much attributable to the inexactness of the science in which the witness is assumed to be skilled as to the pre-enlistment of his opinion by the party. That the procedure in such respects is defective is also true. However, the issue of sanity was submitted to the jury, who were to finally determine it upon the evidence, and whoso determination will not be interfered with where the evidence was-in fair conflict, and permitted of opposing inferences. In the absence of such elements from the case as show that the verdict was against the weight of evidence, or that it seemed to have been influenced by some mistake, error, or prejudice, it will be regarded
as conclusive here. People v. Schuyler, 106 N. Y. 298; 12 N. E. 783 ; People v. Loppy, 128 N. Y. 629; 28 N. E. 600; People v. Taylor, 138 N. Y. 398; 34 N. E. 275. In our opinion, not only were these elements absent, but it is difficult to. see how any other inference could be drawn from the evidence than that the defendant, was at all times perfectly sane and responsible for his acts, however vengeful, sullen, and peculiar may have been his conduct and' habits. I may add, in passing, that in the hypothetical questions framed and put to defendant’s medical experts several assumptions of facts of a more or less serious nature were not justified by the evidence in the case.
Errors are alleged-in the brief to have affected, the -fairness of defendant’s trial, arid they were pressed upon us during the argument. Some are quite unimportant; others are technical, but are not raised by any objection and exception; while others, again,, which seemed grave when started in the argument of ;counsel, upon an examination of the record appear in quite a different light. The defendant’s counsel- has been somewhat more ingenious than ingenuous in the presentation of his client’s case. To instance the alleged errors in the impaneling of a jury: One concerned a question to Rowsam, examined as to his qualifications as a juror, where the court confined its scope as requested by the district attorney. Not only was no exception taken, but; later on in the proceedings, and after the jury box was filled, by arrangement between the counsel, the juror Rowsam was excused. So in the case of one Adams, where the court excused him after he had stated his age to be sixty-five, there was no objection or exception,, whatever it may have been worth. Finally, in the case of Lanpher, who, after being examined as to his recollection of reading about the homicide, or the evidence taken before the coroner, was challenged by defendant for bias, there not only was no ruling by the-court, nor any exception, but, at the end of his examination, the defendant expressly accepted him as a juror. It is clear that if there was any error it was not made available by any exception, and it should be distinctly understood that, however great the latitude of power conferred upon 'this court by the statute, in the-revival of capital cases, to order new trials, that power is not called into" exercise by the appearance of some error in the conduct of
the trial 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 another trial. Code Cr. Proc. §§ 528, 542. Section 528 permits of a new trial in capital cases if this court is “ satisfied that the verdict is against the weight of evidence, or against law, or that justice requires a new trial, whether any exception shall have been taken or not ”; and section 542 requires us to “give judgment, without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the accused.” The spirit of this legislation, as is its letter, is that, if the accused has had a fair trial upon his accusation, and if this court is satisfied that the conviction is sufficiently supported by competent evidence, that conviction shall stand. We are not justified by those provisions of the Code, any more than by a true sense of justice, in reversing a conviction if the rights of the accused have not been violated, and the verdict against him was not reached by error, or by ways of passion or prejudice.
There are a number of other errors alleged to have been committed, which are not pointed out by exceptions, and they will not be noticed, both for that reason and because, if they might be re. garden as errors, they are utterly trivial, and could not affect the result. It is contended that because no order was made transferring the case from the court of oyer and terminer, in which the trial had been commenced, to the supreme court, on the first day of January, 1896, the date of the operation of the constitutional provision abolishing circuit courts and courts of oyer and terminer (section 6, art 6, Const. 1894), the proceedings thereafter were without jurisdiction. Overlooking the absence of any objection to raise the question, it is sufficient to say that'the constitutional provision expressly provided that the jurisdiction of those -courts “shall thereupon be vested in the supreme court.” What the people declared in that section of the revised constitution needs no order of the court to carry into effect. The highest authority in the state had decreed the abolition of certain courts, and the transfer of pending actions to the supreme court. Ho law, nor any order, could have added to the effective operation of the section upon the date fixed by its language. In that respect the constitutional provisión was a self-executing mandate, and it was not
intended that it should be put into operation through any inferior instrumentality.
It is urged that there was a fatal irregularity on the part of the jurors in their separation pending the trial* A juror being taken ill, the trial judge said he would put him in charge of a sworn officer, to enable him to consult a physician. Defendant’s counsel said there was no objection. Such juror remained in charge of a sworn constable over a day, the physician reporting him as too ill to come out. On the second day after, he took his seat, and the trial was proceeded with. Ho objection was made, and there was, in fact, no separation of the jury constituting the misconduct contemplated by section 465 of the Code of Criminal Procedure.. There is nothing to show that the sick juror was ever out of the charge of the officers, or that any communication was had with any person not connected with the trial. There was nothing in the incident which could have prejudiced the defendant. {
Objection was taken to a question upon the cross-examination of Dr. Crosby, who had been examined as an expert in behalf of the defendant. In the hypothetical question propounded to him by defendant it was stated that in 1887 he had shot and wounded the mother of a girl to whom he was engaged to be married; that he had been convicted and sent to prison; and that while serving his sentence he was regarded as peculiar and irrational, and was frequently found weeping without cause, and a keeper had “ reported him insane ”; and other facts concerning his conduct as a prisoner were stated. The witness answered that he might have been insane on the day of the tragedy. On cross-examination it appeared that the witness had examined the defendant for the people, while in jail, awaiting trial upon the previous charge, and he was asked to give his judgment, from his “ examination under his employment by the district attorney,” as to whether defendant was then sane or insane. Objection was made and placed upon the two grounds that the relation of physician and patient existed, and that it was not “such cross-examination as is allowed of an expert.” The court overruled the objection, and the defendant excepted. As the events of the former trial and conviction were introduced into and made a part of the hypothetical question intended to array the facts for the opinion of defendant’s insanity, it
was not incompetent, when it appeared that the witness had then examined him as to his sanity, to elicit upon his cross-examination, the facts about that earlier examination. It was a competent way to probe the witness’ mind, and to test the merits and value of the-opinion he had expressed of defendant’s insanity on the assumed state of facts. But, aside from that consideration, it appeared that the witness’ examination had not been made, as claimed in the objection, while attending the defendant as his physician, but it had been at the especial employment of the people, for the purposes-of their prosecution. He was not disclosing any information acquired in attending a patient in a professional capacity.
Dr. Sawyer was the physician in charge of Auburn Prison, and his duties had familiarized him with cases of insanity; The district attorney showed that the witness had made an examination of the defendant, for the purpose of ascertaining his mental condition, just'before and during the trial. He had observed him from day to day, and he stated just what he-bad done in examining him. He was asked whether, in his opinion, the defendant was sane or insane, and the objection to the question was overruled. The criticism of the defendant’s-counsel is that the inquiry should be' as to his condition on the day of the homicide, and not at the time of the trial. Of course, the issue turns upon the prisoner’s mental condition at the time of the homicide,—whether he was laboring under such a defect of reason as to render him incapable of knowing the nature and quality of the homicidal act, or was incapable of knowing that it was wrong. But there is no-apparent reason, and I am aware of no authority, for holding that, in addition to all the other facts, the jury may not be informed, by one competent to speak, as to the mental condition of the defendant at the time of his trial. He stands before them accused of the-crime, with a plea of insanity to shelter him from a conviction at their hands, and in their consideration of his plea for exoneration no competent evidence bearing upon his mental condition at the time of the homicide or since should be excluded; and the evidence objected to certainly cannot be said to be prejudicial to any substantial rights of the accused, or ,to contravene the demands of justice. There seems to be no force in this objection whatever. Hor is the-further criticism of counsel of importance to consider,
.—that no facts or conversations were given to the jury by the witness. The witness stated what occurred upon his examinations. No point was made by the defendant that they were insufficient, and nothing relating to the examination was excluded, as was the case with the conversations in People v. Nino, 149 N. Y. 317, 326; 43 N. E. 853.
When the counsel for the prosecution was closing his address to the jury, he used these words: “ The little mound under the snow alone knows, and the defendant will not speak.” Defendant requested that the “ court ask the jury to eliminate from their minds those words, or else that they be made a part of the record." The counsel for the prosecution said he was “ perfectly willing that they should be stricken out.'” The court not only so ruled, but, before submitting the case to the jury, charged them that it was of “ no legal consequence ” that “ the defendant did not testify in his own defense. In our country the defendant is not compellable to testify against himself on a criminal charge, * * * and our statute further provides that the fact that a person accused of crime declines to take the stand and testify in his own behalf shall not be considered against him.” Any prejudice to the accused from the improper allusion to the defendant’s silence was fully averted, not only by the action had in the presence of the jury in striking it out, but in the pointed remarks of the trial judge in submitting the issue to the jury.
No exception was taken by the defendant to the charge, and, after carefully reading and considering its language and terms, the conclusion must be reached that the jury could not have been led into error, or into any confusion of mind, by any observation of the trial judge. The defendant’s counsel, however, now, upon this appeal, indulges in various criticisms of the charge, some of which we shall answer, as briefly as possible. The trial judge is reported in the record, in defining the degrees of murder, to have read section 184 of the Penal Code, as follows: “ Such killing of a human being is murder in the first degree, when committed with the design to effect the death of the person killed, but without deliberation or premeditation." The error would be in the use of the word “first,” instead of second,”"in speaking of the degree. That he is correctly reported in simply incredible, -and the affida
vit of v.e court stenographer, since submitted upon a motion to have us correct the record, is to the effect that his notes of the testimony were incorrectly printed. As the prisoner’s counsel does not assent „o the correction, and as we have no power to change the record, we may assume that the judge may inadvertently have read “first” for “second” in the statute, and still we cannot say the error could have been prejudicial. That the judge had no such incorrect idea in mind is clear from what followed. He very fully said, and repeated, to the jury that the distinction between the degrees of murder was the existence of deliberation and premeditation in the commission of the offense. At some length he calls the attention of the jury to this distinguishing feature in the nature of crime under the statute, and sums up in this wise: “ In order to be of the highest degree, the design must be deliberate and premeditated ; but, in the second degree, the design to kill must have been formed suddenly, without premeditation or deliberation, and immediately carried into execution.” Then he proceeds to define what is premeditation and deliberation, which he accomplishes by reading from decisions of this court; and again, after doing so, repeats to the jury-the distinction in the two degrees of murder in clear and unmistakable words. So, if we can assume that his reading of the section has been correctly reported, it could not have been of the slightest consequence, in view of the clear, express, and reiterated remarks of the trial judge in explaining the provisions of the statute, and in laying down the law by which the deliberations of the jury were to be governed.
Further criticism is made that the trial judge used language which indicated in his mind the belief that the defendant killed the deceased. This arises from misconception and partial reading. He had discussed the phase of the case upon the facts which the people claimed proved the defendant’s guilt, and, having done so, said : “We are now brought to the question, is the defendant excusable for killing the deceased, and protected by statute from all criminal punishment therefor? ” and he read section 21 of the Penal Code, which excuses an idiot, imbecile, lunatic, or insane person under specified conditions. There was no expression of opinion upon the fact of the defendant’s guilt, and the charge, up
on the assumption of the defendant’s being the perpetrator of the deed, was proceeding to state the law and to review the evidence on the subject of insanity. This review was very guarded in its statements, and very fair to the accused. The j ury were instructed that, because of the evidence introduced by the defendant, “ the burden of proof was upon the people to show that his mind was at least sound enough so that he knew the nature and quality of the act which he was doing, and that he knew the act was wrong, when he shot the deceased." If they had any “doubt but that the evidence, when critically viewed and weighed, proves these propositions,” the judge remarked, “ the defendant is entitled to the benefit of that-doubt, and a-verdict of acquittal.” 'The question of insanity, as an excuse for crime, is treated at great length, in the light of many decisions, and with considerable clearness of reasoning.
Finally, the criticism is made that prejudice accrued to the accused from certain other language of the trial judge. He had remarked that “ Tlfe defendant has not given evidence on this trial himself; therefore the evidence of his former conviction cannot be regarded on any point except as you may deem it applicable on the insanity theory. It cannot be regarded as evidence of his commission of the crime at issue here.” Having said this, and forbidding any inferences as to guilt from the commission of a former crime (the evidence as to which, it will be remembered, was introduced by the defendant himself), he proceeded thus: “ I said the defendant did not testify in his own defense. Why did he not ? That is of no legal consequence. In, our country the defendant is not compellable to testify against himself on a criminal charge," and continued in words as previously given in this opinion. This was no injurious nor censorious comment upon the defendant’s refusal to testify. It was explanatory of his silence, and a statement of his legal right to remain silent as to the charge, which the people were bound to establish to be true beyond a reasonable doubt This was rather advantagenus than prejudicial to the defendant. The charge, on the whole, was eminently fair to the accused, and the portions now criticised would not have been the subject of any valid exception had the defendant’s counsel been so minded at the time.
Upon a very deliberate review of the record of this trial, and mindful of the interest at stake, our judgment must be that it was fair and impartial, and without the element of any prejudicial error. The evidence warranted the conclusion that the defendant’s confession of guilt was true, that he was actuated by a vengeful or mortified spirit, and that he studiously planned the mode and the time of the killing so as to prevent discovery. The evidence fell far short of proving an insane mind at the time of the homicide, or, indeed, at any time, and tended to show that defendant was quite conscious of the nature and quality of his act, and that he had done wrong. The judgment of conviction should be affirmed.