wilful wrong of defendant, or through some risk not incident to his employment. Appeal from judgment for plaintiff, entered on verdict.

Action to recover damages for the death of plaintiff's intestate caused, as alleged, by defendant's negligence.

Deceased was employed by defendant in repairing its cars. On the day of his death there were four freight cars standing on the track together, and he was engaged in placing a draw bolt in the rear one. While he was standing on the track at the rear end of the car, other cars were kicked by an engine upon this track and precipitated against these four cars with so much violence that they were started suddenly and deceased was knocked down and killed by the wheels of the car passing over his body. The negligence charged is the failure of defendant to maintain the brakes in the cars that were kicked against the four standing cars in repair and in order. There was testimony tending to show that the brakes did not perform their office and that they were out of order, and testimony tending to establish the contrary. This was all submitted to the jury, who found a verdict for plaintiff.

During the trial defendant moved to dismiss the complaint on the ground of the absence of proof of defective machinery, and of defendant's negligence and of a fail.

ure to show that deceased exercised due care. The motion was denied.

Held, No error. As there was some proof tending to establish all

these points against defendant it became the duty of the trial judge to submit the same to the jury with appropriate instructions as he did.

Defendant asked the court to charge that in view of the services deceased was employed to perform, defendant was not bound to furnish sound or perfect cars; also, that plaintiff could not recover unless deceased was injured through gross carelessness or wilful wrong of defendant, or through some risk not incident to the employment of deceased. This was refused.

Held, No error. In the charge as delivered the duty of defendant to furnish adequate appliances and the negligence and want of care that would bring liability had been stated to the jury in a manner satisfactory to both parties. These requests then called for instructions at war with the body of the charge and hostile to well settled principles, and they were properly refused.

Judgment affirmed, with costs. Opinion by Dykman, J.; Pratt, J., concurs; Bernard, P. J., not sitting.

MURDER. PRACTICE.

N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT.

The People, respts., v. John Kelly, applt.

Decided Jan., 1885.

A charge to the jury that there is no opportunity to compromise in any respect, but it is a conviction of murder in the first degree

or an absolute acquittal; and that if they believe a certain witness, that alone is sufficient to enable them to find a verdict of

guilty; has the effect to mislead and prejudice the jury, and to take away from them the right and power to ascertain and determine, from the facts and circumstances, the existence of the intent, deliberation and premeditation, the necessary elements of the crime charged, and is there fore a material error.

In order to obviate an erroneous instruction upon a material point, the withdrawal must be absolute and in such explicit terms as to

first degree, but made no mention of the second degree or manslaughter, simply stating that it thought it would confuse to explain all the different grades of murder or homicide, and that it would exclude all other definitions of that crime which do not come within the facts embraced in the evidence. Proceeding, it charged: "There is not any opportunity,

have been influenced thereby.

It is error to instruct the jury that an alibi is a species of defense that the law looks upon generally with suspicion.

Upon the denial of a witness that he had been convicted of a certain offense, it may be proven by the record.

Where the prosecution gave evidence to show that a man of the prisoner's appearance and description was seen about a certain hour in the early morn in the vicinity of the crime, and shortly after its commission,

going towards the city; and the defense

showed that he was at several places in the city early in the morning; it is competent for the defense to show, by the testimony of a witness who walked and timed the distance, that the prisoner could not have walked from the place described by the people's witnesses so as to be at the places mentioned in the city at the time testified to by his witnesses.

Appeal from a judgment of conviction of murder in the first degree, and from an order denying motion for a new trial.

The indictment charged that the prisoner, wilfully and feloniously, and from a deliberate and premeditated design to effect the death of Jacob Lutz, did kill him. The second count charged that the deed was done while the prisoner was engaged in the commission of a felony.

The Court, in charging the jury, defined the crime of murder in the

promise this case in any respect. It is a conviction of murder in the first degree, or an absolute acquittal." Upon exception being taken, it said: "What I intended to say to you was, that a verdict in this case other than that of guilty or not guilty would not, in my judg ment, be borne out by the facts of the case. I say, however, to you that, as a matter of right and power, you can bring in a verdict of a lesser offense than murder in the first degree, and to that extent I modify my charge." The court also charged, that "If you shall believe what the deceased's son testified to, I say to you, that that alone, is sufficient to enable you to find a verdict of guilty in this case.'

Chamberlin & French, for applt. Joseph W. Taylor, Dist.-Atty., for respts.

Held. That the effect of the former and latter parts of the charge as quoted was to take from the jury that which belongs exclusively to them, the right and power to ascertain and determine from the facts and circumstances of the case, the existence of the

intent, deliberation and premeditation, the essential elements of the crime charged.

That from the charge as given, nothing being said concerning their duty in this respect, it might well have been understood by the jury as involving an opinion of the Court upon this, as well as the other elements of the crime; that it was likely to mislead and prejudice, as it virtually excluded from the jury the question as to how far the testimony against the prisoner was modified or neutralized by that produced in his favor, or what inferences should be drawn from any of it. 53 N. Y., 164; 81 id., 360; 20 W. Dig., 242. Held also, That the erroneous charge was not cured by the modified charge.

The effect of it was, that while the jury had the right and power to bring in a verdict of a lesser offense, still if they should, such a verdict could not be sustained for the reason that it was not borne out by the facts. The Court did not withdraw or substantially change the former charge. When, upou a criminal trial the judge in charging the jury lays down erroneous propositions, but, upon attention being called thereto, corrects the misdirections and lays down the correct rule, no error is presented for review. But to obviate an erroneous instruction upon a material point the withdrawal must be absolute and in such explicit terms as to preclude the inference that the jury may have been influenced thereby. 85 N.Y., 75-90; 56 id., 642; 55 id., 579.

Sindram v. People, 88 N. Y., 196-202, distinguished.

The court also charged the jury that "An alibi is a species of defense which the law looks upon generally with suspicion.” The principal defense interposed was an alibi.

Held, Error. It is natural that the guilty should seek to get away from the scene of crime and to avoid detection. True, the defense is often resorted to, and attempted to be sustained by false and perjured testimony, but the testimony given to establish the defense may or may not be suspicious, according to the circumstances and character of the witnesses. But the law does not regard the defense as a suspicious one; on the contrary, it is as honorable and, when clearly proven, as satisfactory as any other defense.

A witness for the prosecution was asked, upon cross-examination, if he had been convicted of an assault in 1875 and sent to the penitentiary, and he answered no. Thereupon defendant's counsel offered in evidence a record of conviction of the witness for said offense, which was excluded, and exception taken.

Held, Error. Code Civ. Proc., § 832; Code Crim. Proc., § 392.

The prosecution gave evidence to show that a man answering the prisoner's description was seen in the vicinity of the crime at about half-past five in the morning of the homicide, going towards the city. The prisoner gave evidence to show that he was in a saloon, barber-shop and shoe-shop at an

a construction which would make them actionable, although at the same time an innocent sense can be attributed to them, it is for the jury to determine upon all the circumstances whether they were applied to plaintiff, and in what

Judgment for defendant, on verdict.

Opinion by Childs, J.; Bradley, and Haight, JJ., concur.

NEGLIGENCE. EVIDENCE.

398.

In all civil actions, the question of libel or no libel, when it arises solely on the face of the publication, is a question of law upon which the jury must follow the direction of the court. 5 Sandf., 256; 20 Barb., 11.

The publication complained of does not by any statement therein contained or by implication, sug gest either that plaintiff was insolvent or financially embarrassed. It clearly appears, by an inspection of the circular, that the stars placed opposite his name had no other signification than as a marginal reference, and to this effect is the testimony of the witnesses called and examined by plaintiff as to the meaning of the stars. There is no ambiguity in the language here used, neither is the sense in which the words were used uncertain, and they are not capable of a construction which would make them actionable.

Therefore, the testimony offered by plaintiff, in reference to the effect the publication would have upon the mind of the witness as the creditors of plaintiff, was properly excluded by the court, and it became a question of law for the court to determine whether such publication was or was not libel

ous.

TERM. FOURTH DEPT.

Louis Bajus, respt. v. The Syracuse, Bing. & N. Y. R. R. Co. applt.

Decided Oct., 1884.

Plaintiff, while engaged in uncoupling cars in defendant's employ, caught his foot in a frog, and signalled the engineer to stop, but the engine, being defective, could not be stopped in time, and plaintiff was run over and lost his leg. There was evidence that plaintiff's superior had promised that another engine should be furnished to do the work. Held, that the questions of negligence and contributory negligence were properly submitted to the jury, and that the evidence warranted a finding that the injury was caused by the failure of defendant to furnish suitable machinery. In such an action evidence as to the condi

tion of the engine before and about the time of the injury is admissible, but evidence as to its subsequent condition is not.

Appeal from judgment in favor of plaintiff for $7,000 entered on verdict, and from order denying motion for a new trial on the minutes.

Plaintiff was employed by defendant, and on February 5, 1877, while engaged in an effort to uncouple cars, and while between two of them, was delayed by finding the pin, a square one in a round hole, unyielding to his efforts, and while making such efforts the toe of his right foot caught in a tie, and in a moment his right foot