The direction of the general term order that | bearing a fictitious name, and from whence he the judgment be affirmed is mere surplusage, was brought back to answer the charge laid the appeal pending before that tribunal being against him in the indictment. Articles identifrom the order setting aside the verdict; and as fied as having belonged to the deceased were no judgment had been entered thereon, there found in his possession. It was also proved was none in this respect to be affirmed. that he entertained unfriendly feelings toward the latter, with whom he had unsatisfactory business relations in reference to a mine in which both were interested, and the prisoner claimed that Vandercook attempted to poison him a few days previous to the date of the killing. Mr. Howard Townsend, with Messrs. Davies & Rapallo, contra: Cited Cook v. Floating Dry Dock Co. 18 N. Y. 229; Juliand v. Rathbone, 39 N. Y. 369; Eaton v. Erie R. Co. 51 N. Y. 546; Caughey v. Smith, 47 N. Y. 244. Danforth, J., delivered the opinion of the court: Motion to dismiss appeal from the judgment and order is put upon the sole ground that this court has not jurisdiction. The contrary is well settled. 39 N. Y. 369; Beecker v. Conradt, 11 How. Pr. 181. The motion should be denied. PEOPLE of the State of New York, Respts., ሀ. Oscar F. BECKWITH, Appt. 1. To constitute manslaughter there must have been no design to kill. If such design be present, the offense is murder in one of its degrees. 2. For the existence of the deliberation required to constitute the statutory crime of murder in the first degree the time need not be long and may be short. If it furnishes room and opportunity for reflection, and the facts show that such reflection existed, and the mind was busy with its design and made the choice with full chance to choose otherwise, the condition of the statute is fulfilled. 3. In a case of homicide, held, that the facts disclosed the existence of a design to kill and of premeditation and deliberation sufficient to warrant a conviction of murder in the first degree. (Decided October 26, 1886.) It was proved that the prisoner had expressed a desire that some one would put the deceased out of the way, and that it would be to the pecuniary advantage of one to do so. The physician who examined Vandercook's remains testified that the wound inflicted with the knife was in his opinion inflicted before death occurred, inducing a possible inference that the immediate cause of death was because of the injuries inflicted with the ax. He also testified that such wound would not necessarily cause immediate death, although if not given attention it would eventually prove fatal. As bearing upon the question whether there was a struggle between the parties, as was asserted by the defendant, the physician stated that the wound with the knife was apparently made by one coming up behind, although it might have been inflicted by one in front reaching over. The defendant gave exculpatory evidence in his own behalf, to the effect, as claimed by him, that he acted simply and solely in self defense. He testified that Vandercook cane into his cabin unbidden and against his will, by actually breaking the door fastenings; that he ordered Vandercook out, saying he was afraid he would poison him again; that Vandercook expressed regret that the poison failed of its purpose; that the prisoner applied to Vandercook an opprobrious epithet, to which the latter replied, and that an altercation immediately ensued accompanied by a blow from the deceased, followed at once by a scuffle and struggle between them; that Vandercook seized a stick of wood, and there was a further struggle for its possession; that Vandercook was getting the advantage, pushed him against the wall, and seized him by the throat, whereupon he (defendant) reached out, took a butcher knife from a shelf, passed it to his other hand and APPEAL from a judgment of the Supreme used it; that this caused Vandercook to stagger a little; he added: at General Term in the Third Department, affirming a judgment of the Colum- "We then had a kind of scuffle, then a little bia Oyer and Terminer on conviction of de- and I was a little the best for him about that fendant of murder in the first degree. Affirmed. time; got him down and choked him awhile, Memorandum of decision below, 40 Hun, 638 *** I guess he did not get up very far; I The general facts of the case were as follows: don't think he did; I don't think he ever did The deceased Simon A. Vandercook ap- get up very far; I hung onto him and choked proached and entered the defendant's cabin him some time; I finally found that he was where, in a struggle with the defendant or about past recall; I let him go; I was afraid I otherwise, he was stabbed by defendant with a had killed him." knife, which wound, either of itself or with with His cross examination on this matter was as other injuries inflicted upon him by the defend- follows: Q. It is not true that Mr. Vandercook ant with an ax, caused his death. The de- started for the door and you struck him on the fendant at once proceeded to mutilate the body head with an ax? A. No sir; not then, Q. in a revolting and inhuman manner, actually When was it? A. When he fell I jammed him destroying some portions of it by burning. He over near the door perhaps two feet; I don't immediately and before the homicide was know how far from the door; about that time I known, fled and remained absent for about used the ax. Q. Where did you use it on him? A. three years, when he was discovered in Canada | On his skull; blood flew up against the door. Q. Was not he in such condition, after the| stab with the knife, that you could have handled him without this blow from the ax? A. I don't know whether it was so or not. Q. Did not stop to find out? A. No sir. Q. You could have handled him without crushing in his skull with an ax after that blow with a knife? A. I don't know. Q. You did not care? A. I did not care much about it, one way or the other; I considered I had a right. The question presented, together with other portions of the evidence, are stated in the opin Mr. L. F. Longley, for appellant: Where, as in this case, there is evidence of an altercation and attack by the deceased upon the defendant, previous expressions of ill will on the part of the defendant, even if amounting to threats, will not alone furnish evidence that the homicide was committed in pursuance of a deliberate purpose. There must be some act of defendant indicating his purpose preceding the killing. People v. Hovey, 29 Hun, 382; Sindram v. People, 88 N. Y. 196; People v. Majone, 91 N. Y. 211; People v. Cornetti, 92 N. Y. 85; Leighton v. People, 10 Abb. N. C. 261; 2 Stark. Ev. p. 948. It was held in Stokes v. People, 53 N. Y. 164, that under the statute classifying homicide, mere proof that one has been deprived of life by the act of another fails utterly to show the class to which the homicide belongs. The prisoner may, in certain instances, extenuate his crime and reduce it from murder to manslaughter, by proof that the act was committed during a transport of passion and resentment, excited by sudden provocation which for the time subdued his reason. What degree of provocation and under what circumstances, heat of blood, the furor brevis will or will not avail the defendant, is usually a question of law, arising upon the special facts of the case. Roscoe, Cr. Ev. 964. It is the nature of the provocation and not the mere effect of it on the mind of the prisoner, which the law regards; and the sufficiency of the provocation to extenuate the prisoner's guilt is a question of law. If one kill another immediately upon a grave and serious provocation, likely to excite great passion, the offense will amount to no more than manslaughter, although the defendant used a deadly weapon. Id. 965. "Where, after mutual combat, a question arises whether there has been time for excited passions to subside, the question always takes this form; whether there had been sufficient time to cool, and not whether, in point of fact, the defendant did remain in a state of anger.' People v. Sullivan, 7 N. Y. 400. "The indulgence which is shown by the law in some cases to the first transport of passion, is a condescension to the frailty of the human frame, to the furor brevis, which, while the frenzy lasts, renders a man deaf to the voice of reason." 1 Russ. Crimes, p. 513, and cases cited. 'Death in the course of mutual combat, though in some cases it amounts to murder, is generally found to constitute manslaughter only." Roscoe, Cr. Ev. 640. There is no evidence of any time for passion to cool. Id. 714; Leighton v. People, 88 N. Y. 117. There is no legal evidence of the deliberate and premeditated design required (Penal Code, § 183) in the definition of murder in the first degree, and which is an element in the People's Case necessary to be established affirmatively. If Vandercook was dead before the blow with the ax was struck, as may fairly be inferred from the defendant's testimony, when he swears that he choked the deceased until he was about past recall before striking him with the ax (on this point as on every other, he is entitled to the benefit of the doubt), this case is within section 205 of the Penal Code, defining justifiable homicide, for it will be remembered that the deceased had broken into his dwelling by violence, had refused to go out when ordered, and after striking defendant with his fist, seized a billet of wood and attacked him with that. 1 Russ, Crimes, p. 662; Roscoe, Cr. Ev. p. 710. Mr. A. B. Gardenier, Dist-Atty., for the People: The court plainly submitted to the jury the question whether the blow with the ax was necessary to the defense or protection of the life or person of the prisoner when it was administered, and they found that it was not necessary, by their verdict. The rule is that if a fatal blow be struck in self defense, the homicide is not justifiable unless the prisoner first retreated as far as possible. People v. Harper, 1 Edm. Sel. Cas. 180; Shorter v. People, 2 N. Y. 193; Foster v. People, 50 N. Y. 609. A man is presumed to intend the natural consequences of his act. Phillips, Ev. p. 632. In People v. Conroy, 2 N. Y. Crim. Rep. 582, this court held: "Where the inferences to be drawn from the testimony are not clear and incontrovertible, and men of ordinary judgment and discretion might differ as to its significance, it is the exclusive province of the jury to pass upon the question involved." Citing: Thurber v. Harlem R. R. Co. 60 N. Y. 331; Morrison v. Erie R. Co. 56 N. Y. 308. It was said by Judge Johnson in People v. Clark, 7 N. Y. 393: "If there be sufficient deliberation to form a design to take life, and to put that design into execution by destroying life, there is sufficient deliberation to constitute murder, no matter whether the design is formed at the instant of striking the fatal blow or whether it be contemplated for months." In Leighton v. People, 88 N. Y. 117, Judge Danforth says: "If the killing is not the instant effect of impulse, if there is hesitation or doubt to overcome, a choice made as the result of thought, however short the struggle between the intentions and the act, it is sufficient to characterize the crime as deliberate and premeditated murder." See also People v. Majone, 91 N. Y.211; People V. Conroy, 97 N. Y. 62-76; People v. Kiernan,4 N. Y. Crim. Rep. 88; S. C. 2 Cent. Rep. 99; People v. Jones, 3 N. Y. Crim. Rep. 252. It is submitted that the supreme court alone exercises the powers conferred by section 527 of the Code of Criminal Procedure; and unless exceptions have been regularly taken to the rulings of the trial court, claimed to be erroneous, this court will not review. People v. Donovan, 4 N. Y. Crim. Rep. 86; 8. C. 1 Cent. Rep. 802; People v. Hovey and People v. Boas, 92 N. Y. 554, 560. Finch, J., delivered the opinion of the court: That the prisoner killed the deceased by the blow of an ax he himself has testified. While the jury were not bound to believe his account of the struggle and its origin, and might well have doubted it, as in many respects improbable and unreasonable, yet, if they gave it credence, it furnished, in connection with the other evidence, sufficient ground for the verdict which they rendered. The argument before us was largely devoted to the point that the final blow was delivered at the close of a furious struggle and before sufficient time had elapsed for the prisoner's passions, engendered by the conflict, to subside and cool; and so the crime was manslaughter only. But that grade of homicide is marked by the important characteristic that there is no design to kill. If such purpose be present the offense is murder in one of its degrees. The evidence very clearly shows the existence of that design. Granting all that the prisoner says of the struggle, yet it is apparent that while the blow of the knife might have been given in the heat of the affray, and without a purpose to kill, the blow of the ax admits of no such explanation. That was struck when the struggle had ended, and the victim lay paralyzed and unresisting. The knife had penetrated the lung, and weakened him perceptibly, and the prisoner had choked him until, to use his own expression, he was "about past recall," and then, with no danger remaining, his own personal safety assured, and abundant opportunity to escape from the cabin without injury, or hand the assailant over to justice, he nevertheless "let go" of his antagonist, rendered helpless and harmless, went after and obtained his ax, and with it ended the life not yet destroyed by the blow of the knife and the choking which followed. and following it seems to have arisen an evident purpose to evade those consequences by making sure of the death of his enemy, and proceeding to mutilate and destroy the body, with a view to escape detection. And so the ax was wielded with a settled design to kill. There was some degree, also, of premeditation and deliberation. The process of reasoning which the prisoner's own words suggest shows that he deliberated. He reflected enough to be conscious that his victim was in danger of death; enough to feel an emotion of fear for the consequences to himself; enough to decide that it was safer to finally kill him than run the risk of his recovery, or his death lingering and discovered; enough to select and choose the ax as the surest weapon, instead of the knife which he had already used; and then, having inflicted death, to proceed coolly to the logical end of his deliberation by burning so much of the body as could be identified, by taking from the pockets of the dead man whatever would reveal his name, by a thoughtful preparation for flight, by escape into Canada, and concealment under a false name. When he was asked why, when further violence was unnecessary for his own defense, he persisted in the work of killing his antagonist. he answered first that he did not know what he was about, but finally said: I thought I had a right." Ordinarily we are compelled to infer the intent from the nature and surroundings of the act, and these alone in this case would furnish a sufficient answer; but the prisoner himself reveals two of the thoughts that arose in his mind, and with their aid we can quite accurately ascertain the rest. As he looked upon the result of his action, there came a consciousness of what he had done, and with that consciousness a shock that would sober almost any rage. Then arose the fear that his victim might linger and die, and he himself be detected and punished. How to avoid that result was the natural sequence of his thoughts; and then came the other reflection of which he tells us, brutal and ignorant it may be, but with which he braced his nerves and hardened his courage for the final act: that he "had a right" to kill the man, who was not yet dead, and so avoid de The weapon was selected and the blow was struck with a palpable design to effect death. No other inference is reasonable. If we as-tection and punishment. Then followed the sume, what the evidence does not show, and the prisoner does not say or pretend, that the ax was near at hand and easily and swiftly grasped, and the knife had been dropped in the struggle, which also is wholly unproved, it is still true that the conflict was at an end and the prisoner himself says: "I let him go; I was afraid I had killed him." That was a natural fear, and the presence of such an emotion, the shock of discovering that he had endangered the life of his adversary is quite inconsistent with the continuance of frenzy and rage. The passion of the fight was probably replaced by the fear of consequences naturally born of the condition of the deceased. Scarcely anything would cool the prisoner's anger more swiftly than the sight of the dying man on the floor and the consciousness of having perhaps killed him; for one strong emotion drives out another. That fear of consequences, he tells us, came into his mind choice of a weapon. The knife which he had just used would naturally come first to his mind; but he either sees or remembers his ax and choses that as the more effective weapon of the two, and possibly also because he had then in mind a mutilation of the body which would prevent identification. In all this there is very much more than impulse or an unreflecting blow. There is thought, choice and plan. The rule as to deliberation and premeditation has been stated so often as to have become familiar. The time need not be long and may be short. If it furnishes room and opportunity for reflection, and the facts show that such reflection existed, and the mind was busy with its design and made the choice with full chance to choose otherwise, the condition of the statute is fulfilled. The jury were justified in their conclusion that there was a deliberate and premeditated design to kill, even though they v. Lipman ARENSBERG, Appt. credited the prisoner's account of the affray. | PEOPLE of the State of New York, Respts., But they may have disbelieved it entirely. Why should Vandercook, on finding the cabin door barred, proceed to force an entrance? What foundation was there for an accusation of poisoning? When Beckwith made that accusation Vandercook is represented as having admitted it, and as coolly expressing his regret that it failed of its purpose because Beckwith threw it off of his stomach. If there was any quarrel between these men it was about the mine; that was their sole cause of hostility; and yet neither mentions it at all, or broaches the subject by a word. On the contrary, Beckwith calls Vandercook by an opprobrious epi thet as far away as possible from the subject of difference, and thereupon the latter, who had borne without emotion the charge of attempted murder, flames into a rage at being called a "whoremaster" and resorts to violence. In relating what occurred, as a witness, the prisoner at first on his direct examination conceals the fact of a blow with the ax given after the close of the struggle, and confesses it only when pressed by the cross examination. After that blow he admits that he cut Vandercook's throat and pulled out his tongue. The atrocity of the act is here said to indicate frenzy; but the prisoner gives a different and very strange explanation, saying that it was "same as the masons do; that is the penalty they have to inflict on one another." 1. It is essential, to create the offense oleomargarine" is or is not, in a given case, an imitation of butter, is a question of fact. (Earl, J. dissenting, discusses the constitution ality of the Act.) (Decided October 29, 1886.) APPEAL from a judgment of the Supreme Court at General Term in the Second Department, affirming a judgment of the Court of Sessions of Kings County on conviction of defendant of selling oleomargarine. Reversed. Reported below, 40 Hun, 358. Statement made by Earl, J., prefatory to his dissenting opinion: The defendant was indicted and convicted for selling oleomargarine at the City of Brooklyn, in this State, in violation of section 7 of chapter 183 of the Laws of 1885, as amended by chapter 458 of the same year. The answers that he made often had about them a tone of brutality, of cold unconcern; and the jury may very well have disbelieved Upon the trial a witness, who described himhis story of an affray and reached their conclu- self as a state dairy expert, testified as follows: sion with little trust in the prisoner's explana- that the defendant was engaged in the busition. In that view of the case they had before ness of manufacturing oleomargarine; that on them the quarrel about the ownership of the the 16th day of July, 1885, he bought of him mine which had developed in the prisoner a personally three tubs of oleomargarine; that he considerable degree of hostility; his repeated asked for oleomargarine and bought it as such, threats to put his enemy out of the way, and and that he subsequently delivered a sample of his tempting another to murder, with the sug-it to Mr. Gladding, who was also called as a gestion of the money to be gained from the man he hated; the opportunity offered by Vandercook's presence in the solitary cabin hidden in the ravine and little exposed to observation; the thrust of the knife indicating a blow struck from behind; the chopping of the body into fragments and burning whatever could be identified; the falsehood told to explain Vandercook's absence, and the final departure and flight; these facts taken together tend to the conclusion which the jury reached. The grade of the crime was a question of fact for their determination acting under proper instructions as to the law. There is no complaint of those instructions, and the verdict rendered on the question of fact it would be our duty to respect, even if it bred in us a doubt-which we do not feel. The request to discharge the juror, Neir, after he had been accepted and sworn was by the statute within the discretion of the trial judge. Code, Crim. Proc. § 371. That discretion was not at all abused, and if we were at liberty to review it, we should feel that it was not unwisely or improperly exercised. Discovering no error in the record, our duty is to affirm the conviction. witness and testified that he was a chemist; that the sample delivered to him by the previous witness was of a yellow color resembling butter; that it was composed of animal fat, or animal or vegetable oils, not produced from unadulterated cream; that he did not know the particular substance used to give it color, but that a coloring substance had been used; that he was acquainted with oleomargarine and its ingredients, and that in its pure manufacture it has a dull, pearl white color, resembling tallow. On his cross examination he testified that the article was probably made of tallow or of lard or of a mixture of both, and that it was composed of the same things as are found in milk, except that in milk they are combined with other things and in different proportions; that it contained all the ingredients found in pure butter, but in different proportions and differently combined. Another witness, a chemist, called on the part of the People, gave similar evidence. When the defendant began to call his witnesses, the trial judge announced that he would hold that any affirmative testimony on his part as to the qualities of oleomargarine or its constituent parts was inadmissible, unless he proposed to show that it was made from pure unadulterated milk or cream. The defendant called an expert chemist and asked him: "What is the difference between then he committed an offense under the law. oleomargarine and butter, if any?" The plaintiffs objected to this, and on the admission of defendant's counsel that he did not pretend that the article sold by the defendant was made of unadulterated milk or cream, the judge again stated that he should exclude all affirmative testimony on the part of the defendant as to the constituents of the oleomargarine, as to its manufacture and healthfulness or otherwise, and he excluded the question. The witness was then asked to look at the sample of oleomargarine produced by the plaint iffs and state "whether it is not butter." This was objected to by the plaintiffs and excluded. The following questions were then put to the same witness, and all, on the objection of plaintiffs' counsel, were excluded: "Look at that (Gladding's analysis of the specimen of oleomargarine), and state whether or not the ingredients which go to make up that compound are not in themselves separately and in the compound, wholesome articles of food." "State whether an article made of these separate ingredients would or would not constitute a healthful and cleanly article of food." "You have stated that the article we have spoken of as oleomargarine had been invented by a Frenchman in 1870 or 1871; will you state, if you please, whether since that time this article has been used extensively all over the world as an article of food?" "Will you state whether there is or is not in this composition, any thing which is not found in butter ?" "Is there anythng in butter which is not found in this article?" The same questions were also put to Professor Chandler, an expert chemist, and excluded. The defendant was sworn as a witness on his own behalf, and testified that he had been in the oleomargarine business for about five years; that there was a large sign with the word "Oleomargarine" thereon on the outside of his place of business, and that he had there machinery and property employed in that business. He was then asked the following questions, which, on the objection of plaintiffs' counsel, were excluded: "What was the value of that machinery and property on the 30th day of April, 1885 ?" "What would be the value of that machinery and property in case you were not allowed to use it in the manufacture of oleomargarine ?" He then offered to prove that the article in quesion "is a form of butter made otherwise than by the natural process." Plaintiffs' counsel objected to this on the ground that "the offer is not to prove that the product is made from substances other than those prohibited by section 7 of the statute," and the evidence was excluded. The counsel for the defendant requested the judge to direct the jury to acquit him, on the ground that the statute under which he was indicted was unconstitutional, and also on the ground that the statute was aimed only at fraud, and that here there was no evidence of any fraud. The judge denied the request, and then charged the jury "that this is a valid and constitutional law; that if you believe that the defendant did sell this article called oleomargarine, and that it was not a production of pure, unadulterated milk, or cream of the same, The simple question for you to decide is, Did this defendant, or did he not, sell an article known as oleomargarine ? and was that article made of pure, unadulterated milk or cream of the same? If he did so sell that article, and if it was not so made, he is guilty of the violation of this statute, which I again charge you is a valid and constitutional law." Proper exceptions were taken to this portion of the charge and to all the rulings against him. tion having been affirmed at the general term, The jury found him guilty, and his conviche appealed to this court. Mr. F. R. Coudert and Wheeler H. Peckham, for appellant: Claimed that the charge of the court, that if the defendant sold an article called oleomargarine as such and it was not manufactured from milk or cream, the defendant was guilty under the third count, was error; and also claimed that the statue under which defendant was indicted was open to the same objections as that held invalid in People v. Marx, 99 N. Y. 377. Messrs. Edward B. Thomas and W.P. Quinn, for respondents: I. The appellant was not indicted for having made or sold an article "designed to take the place of natural butter." The words, "or designed to take the place of" can be separated from the other provisions of the secsection. They do not therefore affect the validity of the balance thereof. In the amendments to the law enacted since the one under which the defendant was indicted they have been omitted. No one has ever been indicted for having made or sold an article "designed to take the place of natural butter" which was not "an imitation or semblance thereof." Village of Deposit v. Vail, 5 Hun, 313; Re De Vaucene, 31 How. Pr. 343; People v. Briggs, 50 N. Y. 566; People v. Kenney, 96 N. Y. 302; Duryee v. Mayor, 96 N. Y. 491; People v. Marx, 99 N. Y. 383; People v. Cipperly, 1 Cent. Rep. 804; Cooley, Const. Lim. 178. Without the words "or designed to take the place of," section 7 under which the appellant was convicted prohibits the manufacture from the forbidden ingredients and in the manner stated therein of any article "in imitation or semblance of natural butter produced from pure unadulterated milk or cream of the same,' it being sold, kept for sale or offered for sale, whether made in this State or elsewhere. No guilty knowledge or intent to deceive is required to constitute a violation of the section. U.S. v. Bayaud, 16 Fed. Rep. 384; Commonwealth v. Farren, 9 Allen, 489; Commonwealth v. Smith, 103 Mass. 445; Commonwealth v. Wentworth, 118 Mass. 441; note to Farrell v. State, 30 Am. Rep. 617, 620; Carroll v. State, 33 Alb. L. Jour. 9. Decisions in our courts are in accord with these authorities. Baker v. Richardson, 1 Cow. 77; Morris v. People, 3 Denio, 403; Rogers v. Jones, 1 Wend. 238; Perry v. Edwards, 44 N. Y. 225; People v. Cipperly, 37 Hun, 320, 323. II. The police power of the State Legislatures has been the subject of numerous decisions by the various courts of the United States. See New Orleans Gas Light Co. v. Louisiana |