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necessary to constitute a perfect firming judgment for defendant, contract are sometimes upheld as affirmed. such, it is necessary that the lan Opinion by Miller, J.
All conguage employed should contain cur, except Rapallo, J., absent. indications from which may be fairly inferred what was the actual intention of the parties as to the MURDER. JUROR. EVI. contract.
DENCE. Also held, That it was proper to
N. Y, SUPREME COURT. GENERAL receive the parol evidence given
TERM. FIFTH DEPT. by defendant. 81 N. Y., 454 ; 60 id., 397; 65 id., 13; 75 id., 580; The people, respt., v. Franz 92 id., 535; 9 id., 531 ; 55 id., 228; Joseph Petmecky, applt. 58 id., 203; 61 id., 635.
Decided Oct., 1884. Even though a contract is made out, if any ambiguity arises in
A juror being questioned as to his fitness to reference to any portion of it, try the case, said that he had formed an the question presented is one for
opinion, but that he thought his opinion
would not influence his verdict. The court the consideration of the law upon
then said: “You reflected, I suppose, that such testimony, either in writing
you do not find a verdict in a criminal case or oral, as the parties are able to upon the balance of the evidence, but that present. 81 N. Y., 460; 47 id.,
the evidence must be such as to remove 223 ; 55 id., 133.
every reasonable doubt of guilt?" Held,
That there was nothing improper in the Plaintiff proved that it was its judge's remark, and the juror not having custom and habit not to take notes, finally sat on the trial the question whether but envelopes like the one in
there was error in his examination is not
brought up by appeal. question for the purpose of avoid
A defendant's wife is a competent witness ing the use of revenue stamps and
against him in a murder trial. that the use of such envelopes was Evidence of defendant's proposal to a fellowcommon at the time.
prisoner of a plan to overcome the sheriff Held, That this evidence cannot
and escape is competent.
Letters from defendant to his wife are comaffect the character of the indorse
petent evidence against him. ment upon the envelope. Its in- It is not error for the trial judge in his charge terpreta tion must be determined to define the degrees of murder in the infrom the language employed and
verse order of their enumeration in the the circumstances connected with
statute, referring finally to the first degree
of the crime, and then discussing evidence its use as proved upon the trial tending to show that defendant was guilty and cannot be altered by proof of
of murder in the first degree. The existence of a
It is not error to charge that if the jury should
find that defendant had knowingly testified custom cannot overrule the terms
falsely in respect to a material fact, then his of a contract ambiguous on its testimony is entitled to credit only so far as face and the explanation by parol
the jury shall find it to be consistent with evidence showing what the parties
the established facts, or corroborated by the really intended.
testimony of others.
It is not error to charge: “If the prisoner at Judgment of General Term, af the bar is to be found guilty of murder in
the second degree or of any less offence, it while engaged in the felonions is because you find that there is a reasonable taking, was murder in the first dedoubt that he committed this act from a deliberate and premeditated design, and
gree, Penal Code, $ 183, and in also that there is a reasonable doubt that he both of these aspects the case was committed it while engaged in the commis- submitted to the jury. sion of the crime of grand larceny in the One Treat was called as a juror second degree."
and challenged by defendant for Appeal from judgment of Court principal canse. The juror having of Oyer and Terminer upon con- answered defendant's counsel, that viction of murder in the first de- he had read and talked about the gree.
case and formed an opinion reDefendant was admittedly the specting it which would require author of the homicide. He claim- evidence to remove, also said he ed that he acted in self-defence. thought he could try the cause un
John W.O'Brien and Lewis New- biased by that opinion. He was gass, for applt.
then asked : “ If the evidence was Robert L. Drummond, Dist. pretty nearly balanced, would Atty., for respts.
your opinion influence your verHeld, As we may order a new dict?” He answered: “I don't trial if we are satisfied that the think it would." The court then verdict is against the evidence or said: “You reflected, I suppose, against law, or that justice requires that you do not find a verdict in a a new trial, Code Cr. Proc., $ 527, criminal case upon the balance of as amended, Laws of 1882, Ch. 360, the evidence, but that the evidence p. 499, we have examined the testi- must be such as to remove every mony carefully and somewhat reasonable doubt of guilt.” The minutely. The credit of the de.juror answered : “Yes.” No exfendant as a witness was seriously ception was taken to the judge's impaired by his self-contradic. remark, and the juror did not sit, tions, and if the jury disbelieved he having been challenged peremphis version of what occurred, so torily by defendant. It does not far as it was uncorroborated, as appear that defendant's perempthey properly might, the evidence tory challenges were exhausted. fully warranted their verdict. Giv Held, That there was nothing in ing defendant the benefit of every the remark improper or that could reasonable doubt, the jury wereau. prejudice defendant. Besides, the thorized to find either that the juror not having been of the deliberate and premeditated pur- panel, the question whether there pose of defendant was to take the was error in his examination is not life of his victim, or that it was to brought up by this appeal. Code plunder the house where the homi- of Cr. Proc., $ 517, 485, Subd. 3; cide occurred, in which latter case, id., $ 455. as the value of the property taken Also held, That defendant's wife by him was shown to exceed $25, was not compelled to disclose any the homicide, if committed by him confidential communication pass
ing between her and her husband of the charge relating to the credit during their marriage, and within to be given to defendant's testithat limitation she was a compe- mony. 5 Cow., 243 ; 40 N. Y., 1; tent witness against him. Penal 74 id., 501. Code, $ 715. The case of People The charge gave defendant the v. Hovey, 29 Hun, 382, cited for benefit of any reasonable doubt as appellant, arose before the Penal to the grade of the crime arising Code took effect.
upon the entire evidence.
The Also held, That evidence of de- judge had previously charged that fendant's proposal to his fellow- in order to find defendant guilty prisoner of a plan of escape from of murder in the first degree they jail was competent. The fact that must be satisfied beyond a reason. the plan involved the commission able doubt that he committed the of a criminal offence other than act of taking this life with a dethat for which defendant' was in liberate and premeditated design, dicted did not render the evidence or that he committed it while enany less competent.
gaged in the act or the attempt of Also held, That letters written committing the felony of taking by defendant to his wife were com- this property from the house." petent evidence against him. They The case of Stokes, 53 N. Y., 164, were not within the probibition of cited for appellant, does not sus$ 715 of the Penal Code. See 1 tain his possition. Greenl. Ev., $ 254, a. At any rate, Judgment and conviction affirmthere was no error in permitting ed, and the Court of Oyer and defendant to be examined as to the Terminer directed to fix another dates and signatures alone, which day for execution of the sentence. was all that was done here.
Opinion by Smith, P. J.; Haight The judge, in his charge, defined and Bradley, JJ., concur. Barkthe degrees of murder in the in-er, J., dissents, lie being of the verse order of their enumeration in opinion that the exception to the Statute, referred finally to the the part of the charge as to the first degree of the crime, and then credit to be given to defendant's discussed the evidence tending to testimony was well taken. show that the killing was done while defendant was engaged in
INFANTS. committing a felony
Held, That the mere order of N. Y. SUPREME COURT. GENERAL arrangement was a matter wholly
TERM. FIFTH DEPT. within the judge's discretion and is not subject to review, nor are
Derr, applt., v. we to presnme that the jury drew Alonzo B. Cooley et al., respts. an improper inference therefrom Decided Oct., 1884. and allowed it to influence their
A mother, in contemplation of death, converdict.
signed her child to Mrs. D., with the assent There was no error in the part of the latter's husband, to be brought up
There was no adoption of the judgment as holds that plaintiff is child by Mrs. D. or her husband, and no
not entitled to compensation is rerelinquishment by the father of his right to the custody and care of the child. Held, versed. On the latter point the D. has no right to the custody of the child
referee received much evidence as against the father; but, prima facie, he is consisting of proof of declarations entitled to compensation for the care of the
of Mrs. D. respecting the terms of child, bestowed by his wife at his home; and declarations by the wife that she, with
agreement between herself and her husband's permission, agreed to render Mrs. Cooley. Those declarations the services gratuitously, are mere hearsay were incompetent as against plainas against him.
tiff. Presumptively the services Appeal from judgment on ref- of his wife in his own household eree's report.
were not rendered on her separate Plaintiff seeks a judgment en account, and in rendering them she titling him to the possession, care bore to him the common law relaand control of defendant Mabel, tion. 25 Hun, 239; 93 N. Y., 17. an infant daughter of defendant The questions whether plaintiff Alonzo B. Cooley, or, if that relief is entitled to compensation, and if be denied, a judgment entitling so, whether he is entitled to an achim to compensation out of said counting by the father as guardian, infant's estate for her care and and to have compensation out of support while she lived in his the estate of the infant, will be family.
open for investigation on the new Shortly before her death, and in trial, which is ordered before ancontemplation of it, Mrs. Cooley other referee, costs of this appeal consigned Mabel to Mrs. D. to and of new trial to abide event. bring up and care for as her own Costs of the action prior to bring. 'till she was old enough to choose ing this appeal to defendants. for herself, or until she came of Opinion by Smith, P. J.; Barkage,
her father to furnish her er, Haight and Bradley, JJ., conclothing and education, which he cur. . did. Mrs. D. took the child and cared for her until her own death, when Cooley reclaimed his daugh- ASSIGNMENT OF JUDGMENT. ter and took her to his own home,
EVIDENCE, where she has since lived, Cooley N. Y. SUPREME COURT. GENERAL having taken a second wife who is
TERM. FIRST DEPT. a very suitable person to have the care of a female child.
Howard Potter, as executor, &c., A. J. Abbott, for applt.
respt., v. Anton Weidman, imJames Wood, for respts.
pleaded, &c., applt. Held, That so much of the ref.
Decided Oct. 8, 1884. eree's judgment as denies plaintiff's right to the custody of the If a judgment creditor who has assigned his
judgmentcovenanting that he will not rechild can hardly be questioneů,
ceive or collect nor release nor discharge and is affirmed. So much of the the same, satisfies it of record, and if the
judgment debtor is responsible, and the estate could not be proved in that judgment could have been collected, he is
way. liable to his assignee for the amount due
Held, That as the fact was only upon the judgment. In an action to recover such amount the judgment debtor incidentally in issue in the case, will be allowed to testify that he owned its existence might be proved by real estate out of which the judgment the witness who bad knowledge of could have been collected. It is not neces
it. That his deeds were not so insary that such ownership should be proved by the production of the deeds.
volved in the controversy as to require that they should be
proAppeal from a judgment re- duced as the best evidence of the covered on the verdict of a jury. fact.
The defendants, who were judg. Judgment affirmed. ment creditors of F. and C., had Opinion by Daniels, J.; Davis, assigned their judgment to plain- | P. J., and Brady, J., concur. tiff's testator, covenanting that a certain amount was due thereon, and that they would not collect or
PUBLIC SALE. PRIVILEGED receive the same, nor release nor
COMMUNICATIONS. discharge the judgment; subse- N. Y. SUPREME COURT. GENERAL quently, however, they executed
TERM. FIFTH DEPT. a satisfaction of the judgment upon which it was discharged of
Alexander Meyers v. Stephen record. This discharge was valid Doeman. against the testator, inasmuch as
Decided Oct., 1884. the judgment debtors had no notice of the assignment.
An agreement made by parties having liens
upon property about to be sold at public proved upon the trial by C., one
sale, to refrain from bidding at the sale is of the judgment debtors, that he not against public policy as preventing was responsible, and that the competition at such sale, provided it was judgment could have been col. fairly made to protect the lien of the par
ties. lected from him.
Such an agreement is sufficient consideration John J. Townsend, for applt.
to support a contract,
Communications which may fairly be said to John B. Whiting, for respt. have been induced by the previous relationHeld, That these facts were
ship of attorney and client are privileged. sufficient to render the defendants Motion by defendant for a new liable to the plaintiff for the trial on exceptions taken at Ciramount due upon the assigned cuit and ordered heard at General judgment, together with interest. Term in first instance. 50 N. Y., 396.
On May 12, 1876, plaintiff, deDuring the progress of the trial fendant and T., each recovered C. was permitted to state that he judgment against J. D. and on owned certain real and personal the same day issued executions property. This was objected to thereon. The sheriff already held on the ground that title to real executions on prior judgments,