Lewis, Ch. J.
At 4:30 in the morning of May 24, 1953, while Mr. and Mrs. Bay E. Horton were asleep at their home in the Town of Southport, Chemung County, New York, she was awakened by a cry from her husband — ‘ * There is a knife in me; put the light on. ’ ’ Failing to convince him that he was dreaming, Mrs. Horton turned on the light and observed him making an effort to raise himself from the bed with his right hand “twisted” behind his back. When, during that effort, she noticed he had slumped back and her closer observation had disclosed that his night clothing bore bloodstains and that a knife lay near his back, Mrs. Horton, by telephone, summoned local medical aid and notified the Sheriff’s office.
Bay E. Horton, while asleep, had suffered a stab wound in the back from which death resulted within an hour after his condition was discovered. His son, Norman, the defendant-appellant, now stands convicted of murder in the first degree upon an indictment which charged that “ * * * Norman L. Horton, in the Town of Southport, County of Chemung and State of New York, on or about the 24th day of May, 1953, willfully feloniously and of malice aforethought and from a deliberate and premeditated design to effect the death of Bay E. Horton, struck and killed Bay E. Horton with a knife, said act not being justifiable or excusable.”
At the trial of the indictment there was no proof that at the hour of the crime the defendant had been seen at or near his home; nor was there evidence of fingerprints which proved his presence there. There was evidence, however, that he had been seen at the college he was then attending — sixty miles from his home — at about 6:3Q in the evening preceding the crime, and that he was seen again in one of the college dormitories at about 7:00 on the following morning of May 24th, the day of the crime. Proof of what had occupied defendant’s time during the interval [6]*6thus unaccounted for — between 6:30 in the evening of May 23d and about 7:00 on the morning of May 24th— and of what the defendant ascribes as the reason for his return to his home during the interval of hours last mentioned above, appears of record in a detailed statement made by the defendant on June 27,1953, at a place and in circumstances presently to be described. In abbreviated form that statement is as follows:
At the time of the crime the defendant, then eighteen years of age, was about to complete his first year at college. The college year then drawing to a close had not been for him in any sense a success. His hope for fraternity membership had not been fulfilled; the friendships he had made in a few instances, and certain forms of misbehavior in which he had engaged and which he recognized as wrong, were not conducive to his being well regarded in the student body; his scholastic standing was at no time of a grade satisfactory to his father who did not withhold expressions of his disappointment in the young man — a continuation of an attitude amounting almost to scorn which the father had shown toward his son over a period of years. Thus it came about that on May 23, 1953, four days before the year’s final examinations, for which he was unprepared, the defendant was in a state of complete frustration — lonely, discouraged, with an attitude toward his father which through the years of misunderstanding between them had grown to deep hatred and in addition had finally led the son to regard his father as accountable for the plight in which he found himself. Baffled by the adverse circumstances then affecting him, and convinced that his father was accountable for his major failures, he concluded the best solution of his problem was to take his father’s life, and thus make it possible for him to reside with his mother, for whom he had a deep affection. With that project in mind and having been offered transportation in the car of an acquaintance, he left the college campus and reached the vicinity of his home about 10:30 on the night of Saturday, May 23d. After finding in his father’s garage a hammer and a pair of gloves — the gloves being necessary “ * * * because I knew they would be looking for fingerprints ” — he waited several hours until the light was out in his parents’ bedroom and the time arrived when the noise and whistle of a train due to pass nearby would muffle any noise he happened to make. When the train [7]*7whistle sounded — having previously removed his shoes — he entered the living room of the house by first forcing an outside French door and bracing it open with a white stone; then, with the hammer, he broke a lower pane in the inside French door and displaced enough glass to permit him to insert his hand, release the bolt and other door fastenings and to move back a davenport which stood inside against the door. Having thus effected an entrance, he seated himself in the living room for a period of about half an hour where he “ just sat and thought” and warmed himself after the chilling hours he had spent outside. He then went into the kitchen where he withdrew a knife from a box containing a carving set and slowly mounted the stairs leading to his parents ’ room. Upon opening the door and making his way carefully to his parents’ bedside, he stopped momentarily sensing that he was shaking “ * * * probably from fear ”, According to his statement “ I kept telling myself, ‘ You have got to do it. It is the only way out. It isn’t right but it is just circumstances that led me there and there is no way out.’ ” He then advanced to a position close to his father where, after another delay due to fright, he thrust the knife deep into his father’s back inflicting the wound which caused the latter’s death. The defendant then hurriedly left the bedroom, returning first to the kitchen where he restored the knife box to the place where it belonged, then to the dining room where he replaced a card table which had been moved. He then left the house by the door through which he had entered, retrieving the hammer he had used and his shoes as he fled. "While “ hitch-hiking ” his devious way back to the college campus he disposed of the gloves he had worn by throwing them into a field; the hammer he had used he threw into a creek.
Arriving at his dormitory room between 6:00 and 7:00 in the morning of May 24th, he had been there only a short time when there was relayed to him a telephone message informing him of his father’s death without mentioning the cause. Later in the day, while he was returning to his home with three friends of his family — who assumed his father’s death had been due to a heart attack — the defendant expressed to them surprise because, as he said, his father “ didn’t have a heart condition ”.
For a period of days after he returned home, the defendant was repeatedly questioned by State Police and members of the Dis[8]*8trict Attorney’s staff and on each occasion he denied complicity in, or knowledge of, the crime which had taken his father’s life. There came a time, however, when, after a finding by two physicians — licensed examiners in lunacy — that he was noncommitable to a State hospital, the defendant, with the consent of his mother and upon his own consent, was admitted at the Binghamton State Hospital as a volunteer patient. While there he. revealed to another voluntary patient with whom he had become acquainted, some of the details of his father’s death.
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Lewis, Ch. J.
At 4:30 in the morning of May 24, 1953, while Mr. and Mrs. Bay E. Horton were asleep at their home in the Town of Southport, Chemung County, New York, she was awakened by a cry from her husband — ‘ * There is a knife in me; put the light on. ’ ’ Failing to convince him that he was dreaming, Mrs. Horton turned on the light and observed him making an effort to raise himself from the bed with his right hand “twisted” behind his back. When, during that effort, she noticed he had slumped back and her closer observation had disclosed that his night clothing bore bloodstains and that a knife lay near his back, Mrs. Horton, by telephone, summoned local medical aid and notified the Sheriff’s office.
Bay E. Horton, while asleep, had suffered a stab wound in the back from which death resulted within an hour after his condition was discovered. His son, Norman, the defendant-appellant, now stands convicted of murder in the first degree upon an indictment which charged that “ * * * Norman L. Horton, in the Town of Southport, County of Chemung and State of New York, on or about the 24th day of May, 1953, willfully feloniously and of malice aforethought and from a deliberate and premeditated design to effect the death of Bay E. Horton, struck and killed Bay E. Horton with a knife, said act not being justifiable or excusable.”
At the trial of the indictment there was no proof that at the hour of the crime the defendant had been seen at or near his home; nor was there evidence of fingerprints which proved his presence there. There was evidence, however, that he had been seen at the college he was then attending — sixty miles from his home — at about 6:3Q in the evening preceding the crime, and that he was seen again in one of the college dormitories at about 7:00 on the following morning of May 24th, the day of the crime. Proof of what had occupied defendant’s time during the interval [6]*6thus unaccounted for — between 6:30 in the evening of May 23d and about 7:00 on the morning of May 24th— and of what the defendant ascribes as the reason for his return to his home during the interval of hours last mentioned above, appears of record in a detailed statement made by the defendant on June 27,1953, at a place and in circumstances presently to be described. In abbreviated form that statement is as follows:
At the time of the crime the defendant, then eighteen years of age, was about to complete his first year at college. The college year then drawing to a close had not been for him in any sense a success. His hope for fraternity membership had not been fulfilled; the friendships he had made in a few instances, and certain forms of misbehavior in which he had engaged and which he recognized as wrong, were not conducive to his being well regarded in the student body; his scholastic standing was at no time of a grade satisfactory to his father who did not withhold expressions of his disappointment in the young man — a continuation of an attitude amounting almost to scorn which the father had shown toward his son over a period of years. Thus it came about that on May 23, 1953, four days before the year’s final examinations, for which he was unprepared, the defendant was in a state of complete frustration — lonely, discouraged, with an attitude toward his father which through the years of misunderstanding between them had grown to deep hatred and in addition had finally led the son to regard his father as accountable for the plight in which he found himself. Baffled by the adverse circumstances then affecting him, and convinced that his father was accountable for his major failures, he concluded the best solution of his problem was to take his father’s life, and thus make it possible for him to reside with his mother, for whom he had a deep affection. With that project in mind and having been offered transportation in the car of an acquaintance, he left the college campus and reached the vicinity of his home about 10:30 on the night of Saturday, May 23d. After finding in his father’s garage a hammer and a pair of gloves — the gloves being necessary “ * * * because I knew they would be looking for fingerprints ” — he waited several hours until the light was out in his parents’ bedroom and the time arrived when the noise and whistle of a train due to pass nearby would muffle any noise he happened to make. When the train [7]*7whistle sounded — having previously removed his shoes — he entered the living room of the house by first forcing an outside French door and bracing it open with a white stone; then, with the hammer, he broke a lower pane in the inside French door and displaced enough glass to permit him to insert his hand, release the bolt and other door fastenings and to move back a davenport which stood inside against the door. Having thus effected an entrance, he seated himself in the living room for a period of about half an hour where he “ just sat and thought” and warmed himself after the chilling hours he had spent outside. He then went into the kitchen where he withdrew a knife from a box containing a carving set and slowly mounted the stairs leading to his parents ’ room. Upon opening the door and making his way carefully to his parents’ bedside, he stopped momentarily sensing that he was shaking “ * * * probably from fear ”, According to his statement “ I kept telling myself, ‘ You have got to do it. It is the only way out. It isn’t right but it is just circumstances that led me there and there is no way out.’ ” He then advanced to a position close to his father where, after another delay due to fright, he thrust the knife deep into his father’s back inflicting the wound which caused the latter’s death. The defendant then hurriedly left the bedroom, returning first to the kitchen where he restored the knife box to the place where it belonged, then to the dining room where he replaced a card table which had been moved. He then left the house by the door through which he had entered, retrieving the hammer he had used and his shoes as he fled. "While “ hitch-hiking ” his devious way back to the college campus he disposed of the gloves he had worn by throwing them into a field; the hammer he had used he threw into a creek.
Arriving at his dormitory room between 6:00 and 7:00 in the morning of May 24th, he had been there only a short time when there was relayed to him a telephone message informing him of his father’s death without mentioning the cause. Later in the day, while he was returning to his home with three friends of his family — who assumed his father’s death had been due to a heart attack — the defendant expressed to them surprise because, as he said, his father “ didn’t have a heart condition ”.
For a period of days after he returned home, the defendant was repeatedly questioned by State Police and members of the Dis[8]*8trict Attorney’s staff and on each occasion he denied complicity in, or knowledge of, the crime which had taken his father’s life. There came a time, however, when, after a finding by two physicians — licensed examiners in lunacy — that he was noncommitable to a State hospital, the defendant, with the consent of his mother and upon his own consent, was admitted at the Binghamton State Hospital as a volunteer patient. While there he. revealed to another voluntary patient with whom he had become acquainted, some of the details of his father’s death. That revelation later came to the attention of the hospital authorities and to the District Attorney and led eventually to the occasion on June 27, 1953, when, in the presence of a Supreme Court reporter, the District Attorney and counsel for the defendant, he made the statement to which reference has already been made.
Following the defendant’s arraignment upon the indictment and his plea thereto of “ Not guilty, and not guilty by reason of insanity ”, there was conducted, pursuant to court order and in accord with sections 658-662 of the Code of Criminal Procedure, an examination of the defendant by two psychiatrists, qualified as defined in the Mental Hygiene Law, to determine whether he was in such a state of insanity as to be incapable of understanding the charge made against him in the indictment, or of making his defense thereto. Thereafter a hearing was held by direction of the Trial Justice, pursuant to section 662-a id., at which hearing counsel for the defendant was afforded an opportunity to controvert findings of the examining psychiatrists and to examine them in reference thereto. Thereupon, in accord with the report of the examining psychiatrists, the court found that the defendant was not in such a state of insanity as to be incapable of understanding the charge in the indictment, or of making his defense thereto.
Although it is argued on behalf of the defendant that there is no evidentiary basis in the record which justified a finding by the jury beyond a reasonable doubt that it was the defendant who inflicted the stab wound which caused his father’s death, our renew of the facts — which we are permitted to do in a capital case (N. Y. Const., art. VI, § 7; People v. Crum, 272 N. Y. 348, 349-350) —leaves us in no doubt that the jury was justified in finding that the killing was the act of the defendant. There remains for determination the question — which was practically [9]*9the only issue at the trial — whether the jury was justified in finding, as its verdict implies, that at the time of the homicide the defendant, in a legal sense, was mentally responsible for his act.
Mindful that no act is deemed criminal or punishable in this State unless prescribed or authorized by statute (Penal Law, § 22), we turn to section 1120 of the Penal Law which prescribes in part that: “ A person is not excused from criminal liability as an idiot, imbecile, lunatic, or insane person, except upon proof that, at the time of committing the alleged criminal act, he was laboring under such a defect of reason as: 1. Not to know the nature and quality of the act he was doing; or 2. Not to know that the act was wrong. ’ ’
As to the burden cast by that statute upon the prosecution, we have recently said (per Conway, J.): “ When the defense of insanity is raised under section 1120 of the Penal Law, the People must establish on the whole case beyond a reasonable doubt both that the defendant knew the nature and quality of his act and that he knew the act was wrong. To put it in another and converse manner, the defendant is entitled to acquittal if the jury find either that he did not know the nature and quality of his act or that the act was wrong.” (People v. Kelly, 302 N. Y. 512, 515; italics in original text.) Guided by that analysis of the statutory pattern prescribed by section 1120, we turn to the record before us of proof interposed at the trial to determine whether, when the entire evidence is considered, the prosecution established beyond a reasonable doubt that, at the time the crime was committed, the defendant knew the nature and quality of his act, and knew that the act was wrong.
Prior to introducing in evidence the defendant’s statement made on June 27, 1953 — to which reference has already been made — the prosecution called witnesses whose testimony established without contradiction that at about 4:50 in the morning of May 24, 1953, Eay E. Horton died as the result of a deep stab wound in his back which had severed the victim’s liver and had caused profuse internal hemorrhage; that a carving knife — one of the items in a carving set kept in a wooden box in the Horton home — was found near the victim’s body; that there was no evidence that a struggle had taken place in which the victim was involved; that a white stone was found bracing [10]*10open the left-hand outside French door leading into the living room; that a lower window pane in one of the inside French doors had been broken, a portion of the glass had been removed and a curtain which hung on the inside of the door had been pierced and torn; that a davenport which had stood with its back against the French doors had been moved so that it stood at an angle with one end out in the room away from the door. The People also proved without contradiction that the defendant had been seen in one of the dormitories of the college he was ■attending at about 6:30 on the evening of May 23d and again on the following morning of May 24th, the day of the homicide. The prosecution then put in evidence the defendant’s statement, made on June 27, 1953, which contained not only facts which were in complete coincidence with those already proven by the People’s evidence but in addition facts which served to bring into the record in narrative form for consideration by the jury a running account of the defendant’s connection with his father’s death and the circumstances claimed by him to have brought it about.
The defendant did not take the stand as a witness in his own defense but called numerous character witnesses by whom the jury was told that, based upon the speech of people in the community in which he lived, the defendant was a well-mannered youth, reserved, and quiet; that although his scholarship in grammar school was good, it deteriorated when he reached the junior year in high school; that his deportment and “ reputation for peace and quiet ” were excellent. It also appears of record that, although the defendant graduated from high school, his scholarship in college did not meet the required grades.
In support of his defense of insanity, evidence was offered by the defendant of the following episodes, among others, which it is claimed afforded proof that at or about the time of the homicide his mind was disordered. One incident — mentioned by the defendant in his statement of June 27, 1953 — occurred at college a few days prior to the final examinations for his first year and at a time when, as he described it, “I was so far behind in my work and I had just become slack and put things off. Well, I just wasn’t doing what I should and so I just kept thinking ‘ How am I going to get out of it? ’ Of course, all this time this hate and feeling, * Well, whose fault [11]*11is it anyway that I am here? ’ kept building up and I realized it was my father’s fault.” While thus concerned with his predicament he suffered a stomach disorder which he ascribed to the following cause: “I think maybe it was a temper tantrum, that feeling of hate and the feeling of resentment and jealousy and everything else and I was conscious of what I was doing. Well, I was in bed and I couldn’t sleep. I was so uncomfortable and I took the beer mug on my desk and threw it against the wall. Well, I guess it just let out emotion that I had built up inside of me and I went over to my closet and took the glasses out and started throwing them against the wall and I really think I was throwing at my father because it was his fault. ’ ’
There was also testimony from a witness who had called upon the defendant and his mother at the Horton home before the funeral of the defendant’s father. On that occasion the defendant led the witness into the room where his father’s body lay in a casket. After commenting on the display of flowers, the defendant walked over to a piano in the same room and proceeded to play classical music.
In addition, there was introduced in behalf of the defendant testimony by a psychologist who in the month of October, 1953, had subjected him to certain psychometric examinations from which the witness concluded that the defendant at the time of those examinations was in a state of intellectual deterioration. The defense also called two physicians who had specialized in psychiatry, each of whom had examined the defendant and had read his statement of June 27,1953. Based upon such examinations and upon facts of record recited in a hypothetical question, each witness testified that at the time of the homicide on May 24, 1953, the defendant was in such a mental state that he did not know the nature and quality of the act he then committed and did not know that it was wrong.
When the defense had rested its case, the prosecution called a clinical psychologist who in December, 1953, had subjected the defendant to certain psychological tests which showed him to be a “ narcissistic ”, viz., a person given to emotional outbursts when his needs are denied. The prosecution also called two physicians who had specialized in psychiatry, each of whom had examined the defendant and had read the statement made by the defendant on June 27, 1953. In answer to a hypothetical [12]*12question which recited details of the crime and related matters, each witness gave his opinion to be that, on May 24, 1953, at the time of the killing of Raymond E. Horton, the defendant knew the nature and quality of his act and knew that it was wrong.
Thus did it come about that when the evidence was closed the issue of the defendant’s sanity had become the chief issue and, as a clear question of fact, was a proper subject for determination by the jury. As to the scope of our consideration of the jury’s verdict, if the record in its entirety presents a fair conflict in the evidence, or if conflicting inferences can properly be drawn from it, “ * * * the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence, or appears to have been influenced by passion, prejudice, mistake or corruption.” (People v. Taylor, 138 N. Y. 398, 405.) The defendant cannot be excused from criminal liability because at the time of the killing his mind may have been disordered to a degree less than that which is fixed by section 1120 of the Penal Law. " A weak or even a disordered mind is not excused from the consequences of crime ”. (People v. Farmer, 194 N. Y. 251, 265.) Under section 1120 of the Penal Law, as we have seen, the defendant was entitled to an acquittal only in the event the jury found either that, at the time he committed the act with which he is charged, he did not know the nature and quality of his act or that the act was wrong. Applying that statutory formula to the defendant’s evidence, we think that evidence falls short of exculpating him. His conduct immediately before the killing was not that of a man in frenzied haste; the crime was carefully planned by him alone and was executed deliberately in exact accord with that plan. Upon arriving at his home before his parents had retired for the night, he waited not only until their room had been darkened, but for a period of time thereafter until the noise of a passing train and the sound of its whistle would muffle any noise he might make in forcing his entry into the house. When he had accomplished an entrance into the living room, in the manner already mentioned, he did not go hurriedly about his baneful project, he “ just sat and thought ”; when he had gone slowly up the stairs to his parents’ bedroom armed with a long-bladed knife and had reached his father’s side, he paused two times — [13]*13the first because he was shaking, as to which pause his statement tells us “ I had this urge. It was something I kept telling myself, ‘ You have got to do it. It is the only way out. It isn’t right, but it is just circumstances that led me there and there is no way out.’ And I really did think about it.” He then stepped over to the bed and, as he raised the knife, a final pause occurred, which his statement describes as follows: ‘ ‘ I wanted to bring it down, but my body wouldn’t let me. I mean I just didn’t have the will power or I don’t know what you would call it, but I just couldn’t bring myself to do it. By this time I was just scared to death. I mean I just didn’t know what to do. I mean I was scared. Well, there was just no way out and so I tried it again and I took the knife and I just put it in my father’s back and the feelings were just going on.”
As apposite to the problem presented by this record, we quote a statement made for this court more than fifty years ago (per Maynard, J.): “ Eminent alienists criticise the rule of the Penal Code, because it excludes consideration of the question, whether the accused possessed suEcient power of self-restraint to forbear the commission of an act, which he clearly perceived to be criminal. They contend that it is unreasonable and unjust to punish a human being for that which he does not have the power to refrain from doing, but if such a result may follow, which we by no means admit, it is an argument to be addressed to the body which makes the law, and not to the tribunal whose sole duty it is to construe, apply and enforce it.” (People v. Taylor, supra, pp. 407-408.)
Having read and considered with care the evidence of record, and having reached the conclusion that it affords no basis for our interference with the jury’s verdict, we pass to a consideration of the defendants challenge to certain evidentiary rulings by the Trial Justice and to the legal suEciency of his charge to the jury.
During the cross-examination of one of the psychiatrists called as an expert by the defendant, the witness testified without objection that the defendant was a schizophrenic; that his behavior when he stabbed his father and during prior acts incidental thereto was his response to a delusional process and that such delusional motivation made him psychotic and “ incompetent of knowing what he was doing.” The same witness, on [14]*14direct examination, had stated his opinion to be that at the time of the homicide the defendant was " incapable of distinguishing a right from wrong ”, and later, on cross-examination, he stated his opinion to be that the defendant did not know that certain acts incidental to the stabbing of his father were wrong. In the course of the same cross-examination, repeated questions were also asked as to whether the defendant knew what he was doing when he did certain acts — which the expert termed ‘' psychotic episodes ” — leading up to the homicide. "When the witness answered “ no ” and added either a qualifying phrase or sentence, the answer, except for the word “ no was stricken by the Trial Justice upon motion by the District Attorney. "We do not think those rulings served in effect to leave with the jury — as is now claimed — an instruction that it was immaterial whether the defendant perpetrated this homicide in response to a delusional idea, and that his counsel’s theory on the subject of insanity was either incredible or irrelevant. The record shows, as pointed out above, that the witness had previously been permitted to testify, without objection, that in his opinion the defendant was a schizophrenic whose behavior — when he stabbed his father — was his response to a delusional motivation which made him psychotic and incompetent of knowing what he was doing. With that clear statement in the record of the witness’ opinion — supplementing, as it did, his stated opinion that the defendant did not know that his acts incidental to the homicide were wrong — we think the challenged rulings were well within the discretion of the Trial Justice and did not prejudice the defendant’s rights.
As to the assertion that in his charge to the jury the Trial Justice should have commented upon the evidence bearing upon the defense of insanity, we have in mind the fact that the case was submitted to the jury after seven days of testimony. The theory of insanity upon which the defense was based had been repeatedly the subject of questions propounded by counsel and answers given by experts in psychology and psychiatry called in behalf of the defendant and by the People. Believing, as we do, that at the close of the evidence the jury had been thoroughly informed of the theory of insanity upon which the defense was based and the relation of that theory to evidence descriptive of the crime, we conclude that in the circumstances disclosed by [15]*15this record the failure of the Trial Justice to make further reference to the evidence was not reversible error requiring a new trial.
It is also argued in behalf of the defendant that an error of substance, which was prejudicial to his rights before the jury, was made by the Trial Justice when, after reading correctly to the jury the text of section 1120 of the Penal Law, and on three subsequent occasions making a correct contextual application of its provisions, there came a time when the court stated: " Individuals of inferior intellect with depraved minds, individuals have morbid propensities to commit acts and whose mentality is low and unstable, are none the less answerable for their crimes if they have sufficient mental powers to know the nature and quality of the act or to know that the act was wrong.” Obviously, the use in that context of the disjunctive " or ” instead of the conjunctive " and ” was wrong. The record shows that when, at the end of his charge, the Trial Justice was apprised by counsel of his erroneous use in one instance of the disjunctive " or ” he sensed his inadvertence and was quick to give the following clear admonition to the jury: " The Court : If I made such a mistake, I was wrong. The People must prove beyond a reasonable doubt both that the defendant knew the nature and quality of his act and he knew that it was wrong. If he didn’t know the nature and quality of his act your verdict must be not guilty by reason of insanity, or if he didn’t know it was wrong. The statute reads ' or.’ It isn’t ' and.’ ” It is difficult to conceive of a clearer statement, or one more perfectly designed to set aright any misunderstanding which any juror might have gained from the misuse of one word in the original charge.
The circumstances here differ in an important respect from those in People v. Kelly (302 N. Y. 512, supra) and People v. Sherwood (271 N. Y. 427), where no admonition in such clear and unmistakable language, as is to be found in the present record, was given to the jury.
In addition to the rulings by the Trial Justice now challenged by the defendant, to which reference has already been made, we have considered with care all other matters to which the briefs of counsel direct our attention. Our conclusion is that the record contains no errors which so adversely affect the [16]*16substantial rights of the defendant as to warrant reversal of the judgment herein and a new trial.
Accordingly, the judgment of conviction should be affirmed.