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which she, in substance, stated that ( isted. But it may be said that the articles stolen, or a considerable plaintiff, supposing the return part of them, were found by her stated everything, was thereby led concealed on plaintiff's premises. to the commencement of this suit. This was objected to on the ground It does not appear that the return that the written complaint could states affirmatively thai all was not be contradicted, and that as returned. Besides it cannot be defendant, in his return to the fairly said that the omission or certiorari, had not returned the silence was for the purpose of inoral examination he was estopped Huencing the action and conduct now from showing it. The objec- of plaintiff beyond the certiorari tions were overruled. The court proceedings. The return was to charged the jury that if such oral the court, not to plaintiff. There examination was had to the effect is no evidence that plaintiff was stated defendant was justified in misled. As the case stood at the issuing the warrant.

trial, the return, so far as it apDefendant had testified on cross- peared, was to be treated simply examination that he did not return as an admission of defendant, and any of the oral examination, for the therefore not conclusive. 50 N. reason that he didn't suppose any. Y., 358. thing more was required of him The cases cited by plaintiff in than his written documents.

relation to the effect of sheriff's S. S. Morgan, for applt.

certificates in certain cases and the

conclasiveness of entries required A. C. Tennant, for respt.

by law to be made in a justice's Held, That the court did not docket do not apply. err in receiving the evidence. It Judgment and order affirmed. is difficult to see how there is any Opinion by Merwin, J.; Har. basis for an estoppel. The justice din, P. J., and Follett, J., conwas not a party to that proceeding. cur. The return was for the purpose of enabling the parties to have their

MURDER. EVIDENCE. PRAC. rights passed upon, and that pur.

TICE. pose was fully accomplished. If the return was defective no injury N. Y. COURT OF APPEALS. certainly resulted to plaintiff, for she succeeded. The ground of her

The People, applts., v. Conroy,

respt. success does not appear. The return or its correctness is not the

Decided Oct. 14, 1884. basis of this action or the founda

A non-expert witness when examined as to tion of any of the rights of the facts within his observation or knowledge plaintiff here. Plaintiff claims a tending to show soundness or jusoundness

of mind of another may characterize as rawrong was committed upon her

tional or irrational the acts and declarations long before the return and that

to which he testifies. must be determined by what ex Where an indictment consists of two counts,

95 id.,


only one of which is submitted to the jury, tending to show soundness or una reversal by the General Term of a convic

soundness of mind of another may tion thereon, on the ground of insufficiency

characterize as rational or irrational of the evidence under that count, will not be interfered with, although the evidence

the acts and declarations to which authorized a conviction under the other he testifies, but his opinion must count,

be limited to his conclusions from Where the accused, knowing the location of

the specific facts he discloses. 34 N. the deceased, drew a pistol with some difficulty from his pocket, and in spite of re

Y., 190 ; 36 id., 282; 55 id., 634 ; monstrances discharged it towards the de

316. ceased, iuflicting a mortal wound, Held, The indictment contained two That it was competent for the jury to find counts, one alleging substantially from the circumstances that the accused

that defendant discharged a pistol had a purpose, formed after more or less deliberation, to kill the deceased.

at K., resulting in his death, “ with The objection that an indictment does not deliberate and premeditated design conform to S$ 275, 276, Code Crim. Pro.,

to" effect his death. The second can only be taken by deniurrer. Affirming S. C., 19 W. Dig., 488.

count charged that defendant com

mitted the crime of murder in the Defendant was convicted of the first degree by “feloniously, willcrime of murder in the first degree. fully and with

fully and with malice aforeInsanity was set up as a defense, thought” shooting one K.; that and upon the trial one B. was said killing was done willfully, called by defendant as a witness. feloniously and of his malice aforeHe testified as to the conduct and thought and contrary to the form conversation of defendant at an in- of the statute in such case made terview with him the evening of and provided.” The court inthe murder and a short time pre- structed the jury to find a verdict ceding it. B. was then asked by of not guilty, unless they should defendant's counsel, “ Were his come to the conclusion that the acts at eight o'clock that night, in shooting was done with a delibe. your judgment, rational or irra- rate and premeditated design to tional ?” This question was ob- effect the death of K., as charged jected to and the objection sus in the first count, and that questained.

tion, with the defenses thereto, was John Vincent, for applt.

alone submitted to the jury. The William F. Howe, for respt. defendant was convicted, and the

Held, Error ; that the evidence judgment of conviction was recalled for by the question was per- versed by the General Term, on the tinent upon the question of insan- ground that the evidence was inity and the witness was competent sufficient in law to authorize a to give his opinion as to the char-conviction under the first count of acter of the conduct and conversa the indictment. tion he had observed.

Held, That even if the evidence A witness, not an expert, when anthorized a conviction under the examined as to facts within his second count of killing “by an act own knowledge and observation immediately dangerous to others,

and evincing a depraved mind re- be brought to this court for review. gardless of human life, although 73 N. Y., 136. without a premeditated design to Also held, That under the first effect the death of any individual,"count of the indictment it was esthis court could not for that reason sential that effect should be given reverse the judgment of the Gen-to the words “deliberation and eral Term, since the questions of premeditation,” as used in the fact involved have not been sub- statute. The act should be proved mitted to the jury or passed upon to have been deliberate, in the by the General Term. 51 N. Y., sense that it was not committed 93; 65 id., 596.

under the influence of sudden and Although this court cannot agree uncontrollable impulse, produced with the General Term on the ques- by a proximate cause; and pretion of the sufficiency of the evi meditated, in the sense that an indence of deliberation and premed. tention to inflict injury must have itation proved against the defend- preceded the doing of the act ant upon the trial we would hesi. which effected death. As a general tate greatly before reversing an rule all homicide is presumed to order granting a new trial upon be malicious, and of course that ground, unless it is absolutely amounting to murder, until the necessary to prevent a failure of contrary appears from circumjustice. In such cases it is the stances of alleviation, excuse or wiser and better practice on the justification, Russell on Crimes, part of the public prosecutor, un. 483; 2 Black. Com., 201 ; 34 Eng. less the determination of the court C. L., 280 ; 2 Grat., 594 ; 1 Hill, below proceed upon grounds which 436, but when the commission of must necessarily be fatal to the a homicide by the accused bas prosecution upon a new trial, to been shown it is the province of the acquiesce in the decision of the jury to say, from the facts and cirGeneral Term and proceed with the cumstances surrounding it, unless re-trial.

they clearly repel the idea of deWhere a review of questions of liberation and premeditation, what law by this court in a criminal case the character of the act really was is desired, if questions of fact aris- and the degree of crime which ing upon conflicting evidence have should be attached to it. No legal been tried and determined by the presumption arises from proof of jury, the order of the General the mere commission of a homicide Term should state that it had con which concludes a jury from findsidered the case upon the facts ing upon that evidence alone that and the result of such considera- there was not such premeditation tion. If it certifies that it finds no and deliberation as constitutes the reason for granting a new trial upon crime of murder in the first degree, the facts, and then orders a new or but that the act was justifiable trial upon a question of law exclu- or excusable. .53 N. Y., 154; 7 sively, that question may properly ' id., 393 ; 88 id., 117; 91 id., 211.


In capital as well as other cases it is the exclusive province of the it must be held that a person in- jury to pass upon the questions tends that which is the natural and involved.

involved. 60 N. Y., 331 ; 56 id., necessary consequence of an act 308. The resort to falsehood and done by him, and unless the act evasion by one accused of a crime was done under circumstances affords of itself a presumption which preclude the existence of of evil intentions, and presents such an intent the jury may find proper evidence for the considerfrom the result produced an inten- ation of the jury upon the question tion to effect it. Starkie on Evi., of the guilt or innocence of the ac848; 1 Phillips on Evi., 632 ; 50 cused. Deady, 524 ; 62 Me., N. Y., 609.

14 Gray, 55. The proof tended to show that has never been required that defendant, knowing the location of the particular intent with which the deceased, drew a pistol from his a homicide was committeil should pocket with some difficulty, as it be set forth in the indictment, but caught in the lining, and turned it has uniformly been deemed towards the deceased, and in spite sufficient to allege it to have been of the remonstrance of one of the done feloniously, with malice bystanders discharged it, the ball aforethought and contrary to the making a mortal wound.

form of the statute. 13 Wend, Held, That it was competent for 159 ; 39 id., 245 ; 37 id., 413. The the jury to find, from the circum- question as to whether the crime stances, that defendant had a pur- was committed under such cirpose, formed after more or less cumstances with reference to indeliberation, to kill the deceased. tent as to make it murder in the To infer the existence of delibera. first degree within the statutory tion and premeditation does not definition is one of evidence derequire the lapse of any special terminable by the jury. 13 Wend., period of time. If a person is un- 159; 37 N. Y., 413. disturbed by sudden and uncon It was not intended by section trollable emotions, excited by an 273 of the Code of Criminal Prounexpected and observable cause, cedure, abolishing existing forms and is in the possession of his of pleadings in criminal actions, to usual faculties, it will be presumed obliterate forms of expression, or that his actions are prompted by the judicial construction theretoreason and the result of causes op- fore given to the language emerating upon his mind and deemed ployed in such pleading Its true sufficient by him to inspire his ac. office was to abrogate the technical tion. When the inferences to be rules formerly governing the condrawn from the testimony on a struction of criminal pleadings and criminal trial are not clear and in- to substitute therefor the simpliccontrovertible, and men of ordi- ity and liberality of interpretation nary judgment and discretion presented by the new system of might differ as to its significance, 'criminal procedure.

The objection that an indictment he could not afford to put up a does not conform to the require. brick building under the terms of ments of Sections 275 and 276 of the old lease, to which appellant the Code of Criminal Procedure replied that he did not expect him can only be taken by demarrer. to do so, and expected to pay Code Crim. Pro., S321.

more, and asked how much more Judgment of General Term, re it would be ; that respondent was versing judgment of conviction and unable then to tell him, but aftergranting new trial, affirmed. wards, in November, 1880, told

Opinion by Ruger, Ch. J. All him it would be $50 a month; that concur.

appellant thought that was pretty

high, and that it was then agreed LANDLORD AND TENANT. that appellant should put in the

store fixtures at a certain cost to N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

respondent, to be applied on the

rent, and they were so put in. ApJohn B. Smith, respt., v. Abram pellant afterwards refused to pay T. Kerr, applt.

the increased rent, and this action Decided Oct., 1884.

was brought.

Ansley & Davie, for applt. If leased premises are by fire rendered unfit for occupancy the tenant may surrender

Johnson & Markham, for respt. possession and refuse to pay rent.

Held, That defendant was not A parol agreement is ineffectual to change bound to pay rent after the fire,

the amount of rent under a sealed lease for but might then quit and surrender more than one year.

the premises. Laws of 1860, Ch. Appeal from County Court 345, changing the common law judgment, affirming justice's de- rule; 3 Johns., 44; 26 N. Y., 498. termination and order in summary The surrender is to be established proceeding to recover possession by the election and action of the of real property.

tenant. 67 Barb., 66 ; 55 N. Y., On February 20, 1880, Smith 280. Such surrender is not proved demised to Kerr, by a lease under here. seal, executed by both parties, the The lease could not be substanpremises in question for a term tially modified by

by parol. 21 ending October 5, 1883, at the Wend., 628; 7 Rob., 544; 36 How. annual rental of $300, payable $25 | Pr., 275 ; 3 Rob., 7, 16; 9 J. & S., a month. The building occupied 236 ; 30 N. Y., 306–7; 72 id., 148. under the lease was destroyed by The agreement being, as we must fire September 5, 1880, and Kerr infer, for more than one year, is erected a temporary structure and void and cannot effect a surrender continued there. Smith at once of the terms of the old lease, 2 R. re-built, and Kerr went into the S., 134, $6; id., 135, $8; and new building in December, 1880. creates no rights or obligations Respondent's evidence tended to between the parties to it. 52 N. prove that he told appellant that I Y., 491; 72 id., 147. See 25 Hun,

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