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K. Henry Rosenberg, for appellant.
Robert C. Taylor, for respondent.

MCLAUGHLIN, J. The defendant was indicted for the crime of murder in the first degree; the indictment charging that on the 23d day of September, 1896, he willfully and feloniously killed one Rose A. Redgate. There have been two trials. The first resulted in a conviction of the crime charged in the indictment, but on appeal the judgment was reversed and a new trial ordered, upon the ground that error was committed in admitting certain evidence against the defendant's objection. People v. Koerner, 154 N. Y. 355, 48 N. E. 730. The second resulted in a conviction of murder in the second degree, and the defendant again appeals, challenging the validity of his conviction upon various grounds, but principally that errors were.committed in the reception and rejection of evidence, and in considering them it is only necessary to refer briefly to some of the evidence set out in the voluminous record before us.

The fact that Rose A. Redgate, at the time stated in the indictment, was shot with a pistol in the hands of the defendant, and as a result of the injuries inflicted died within a short time thereafter, is not disputed by the defendant. He, however, does claim that the evidence adduced at the trial fairly established that the shooting was accidental; that his purpose was to commit suicide, and in endeavoring to do so he placed the pistol against his temple, when, to prevent his carrying out his intent, the decedent grasped the pistol and it was accidentally discharged. He also claims that when the shooting took place he was laboring under such a defect of reason as not to know the nature or quality of his act or that it was wrong. The evidence on the part of the people tended to establish that on the day the shooting took place the defendant went to the decedent's place of business, 27 Pine street, waited until she was through with her work, between 5 and 6 o'clock in the afternoon, and then went with her to Fourteenth street, between Sixth and Seventh avenues; that he there shot her three times, and two of the shots were fatal; that he had been acquainted with the decedent for some time, and their relations were of an affectionate character; that at one time they were engaged to be married, but that the engagement at the time of the shooting had been broken by reason of the opposition of her father to the marriage; that by reason of this opposition the defendant had told the father, if he did not marry the decedent, nobody else should; and that the shooting was the deliberate, willful, and intentional act of the defendant.

There was some evidence offered by the defendant to the effect that the pistol was discharged in decedent's attempt to wrest it from his hands; but, when all of this evidence is considered, I do not think it established or would have justified a finding that the shooting was accidental. The number of shots, the location of the wound, the position in which the deceased fell, and other facts surrounding the shooting, indicate to the contrary, and show that the pistol was intentionally discharged by the defendant. Much evidence was givenand, indeed, the defendant seems to have directed his attention prin

cipally to establishing the claim-that at the time the shooting took place he was laboring under such a defect of reason as not to know the nature or quality of his act, or that what he did was wrong. The evidence bearing on this subject tended to show that some of his relatives on both sides of the family had been afflicted with insanity and confined in asylums or sanitariums; that he himself, when two years of age, was injured upon the head; that when he was five years of age he had scarlet fever, when eight years of age typhoid fever, and several years later received an injury which destroyed the sight of one eye; that for some time immediately preceding the shooting he had acted in an irrational way; that on the afternoon of the shooting he drank a pint of whisky and took 40 grains of phenacetine, in two 20grain doses; that he wrote a letter to his landlady, indicating that he intended to commit suicide, and immediately following the shooting the defendant sank to the sidewalk in an unconscious condition, and so remained until after he had been taken to the hospital and restoratives applied.

At the conclusion of the trial the evidence on the part of the people tended to establish the defendant's guilt of the crime charged in the indictment and required the submission of that question to the jury, and, had it found a verdict of murder in the first degree, would have been sufficient to sustain the same, while that offered by the defendant, bearing on his mental condition at the time the shooting occurred, was such as to possibly justify the jury in finding that the defendant. did not intentionally shoot the decedent. There being a sharp conflict in the evidence, therefore, as to the mental condition of the defendant at the time the shots were fired, it requires an examination of the various errors alleged, for the purpose of ascertaining whether or not substantial justice has been done.

First, it is claimed the defendant's constitutional and statutory rights were invaded, in that he was denied the right of counsel to fully participate in the trial. The record will be searched in vain to find any justification for the claim. After the jury had been out a long time, and had returned and requested the court to inform them whether "one juror can legally and conscientiously, if he believes in one degree, for the purpose of agreeing with the other jurors, in order to bring in a verdict, change his vote from a greater to a lesser degree," and the court had responded that the verdict of the jury should express the true and conscientious belief of each juror, the defendant's counsel requested the court to inquire whether the jury could possibly agree upon a verdict, which the court declined to do, and defendant excepted. The ruling was proper. The jury had not in any way signified, up to this time, that they would be unable to agree, nor had they made any request to be discharged; on the contrary, the question propounded would seem to indicate that 11 of the jurors had already agreed, and the twelfth had not agreed because he was in favor of a verdict in the first degree, while the others were in favor of a verdict in the second.

When the court declined to make the inquiry requested by defendant's counsel, he then moved to discharge the jury and was about 102 N.Y.S.-7

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to state the grounds, when the court interrupted and refused to hear him, to which he excepted. The court very properly refused to hear defendant's counsel. The case was being considered by the jury. It had been summed up by the district attorney and defendant's counsel, and thereafter remarks by either, under the guise of a motion, would have been highly improper. And for the same reason the court properly refused, when the jury returned with its verdict, to hear defendant's counsel before the verdict had been received. If counsel had any just complaint that the verdict, when rendered, was improper, then he had an ample remedy to protect all the rights of the defendant. Code Crim. Proc. §§ 462-166. The protection of such rights were not necessary, nor did they justify acts which would prevent, in a measure at least, the orderly procedure of a trial. People v. Conlon (not yet officially reported) 101 N. Y. Supp. 597; People ex rel. Chanler v. Newburger, 98 App. Div. 92, 90 N. Y. Supp. 740. Next it is claimed the jury was coerced into bringing in a verdict. The case was submitted to the jury at 4 p. m. March 9, 1898. They returned with their verdict at 1:40 a. m. March 12th, having deliberated a little over 57 hours. The trial had been a long one, and, while the jury had been out a considerable time, it must be borne in mind that they had not in any way intimated, until just a few hours before they finally rendered their verdict, that they could not agree. There is absolutely nothing to indicate that the court coerced the jury into finding their verdict. All that can be said is that they were out about 57 hours, and they had, a few hours before, intimated they would be unable to agree, and the court, with appropriate instructions, had requested them to make a further endeavor to reconcile their differences. This, under the circumstances, was eminently proper. Indeed, how long the jury should have been kept together rested in the sound discretion of the trial court. People v. Sheldon, 156 N. Y. 268, 50 N. E. 840, 41 L. R. A. 644, 66 Am. St. Rep. 564. In addition to this, the reason already suggested why the jury did not sooner agree is deserving of consideration. They did not agree because one of their number evidently refused to vote for anything less than murder in the first degree.

It is also claimed that the court erred in striking out of its own motion, and instructing the jury to disregard, a portion of the testimony given by the defendant's witness Caroe and proceedings in connection therewith. While the witness Caroe was testifying, the learned recorder discovered, or supposed he did, some one in the courtroom was indicating to the witness the manner in which he should answer the questions put to him, and he thereupon directed the district attorney to make an investigation of the matter by asking the witness certain questions. It undoubtedly would have been much better practice had the recorder directed the jury to retire while such questions were asked, and I am of the opinion he should have done so, lest the jury might possibly be unduly influenced by the recorder's action when they came to consider and weigh the testimony of the witness. But this was a matter resting largely in the discretion of the recorder; he taking into consideration what had occurred and the atmosphere

of the trial. However, it seems to me clear, from what took place the following day, when the testimony was stricken out and the jury instructed, in language so plain they could not fail to understand it, that they were to disregard what had happened the day preceding, so far as the incident in question was concerned, that the defendant could not have been injured, and the action of the recorder does not constitute reversible error. People v. Smith, 180 N. Y. 125, 72 N. E. 931; People v. Buchanan, 145 N. Y. 1, 39 N. E. 846; People v. Hayes, 140 N. Y. 484, 35 N. E. 951, 23 L. R. A. 830, 37 Am. St. Rep. 572.

Error is also claimed in the court permitting the people's witness Dr. Bayard to testify as to what symptoms are manifested by a person shamming unconsciousness. The testimony given by this witness bearing on this subject ought to have been excluded, but it could not possibly have injured the defendant. The question was:

"What are the symptoms manifested by a man who is shamming unconsciousness?"

The answer was:

"Probably will not speak, or give evidence of hearing the question, when he is spoken to. He usually does not move. He may. If he is insensible to pain, he will not move when the stimulus to elicit pain is applied. For the most part he would appear as though asleep. I don't recall any more general symptoms than that."

It may be borne in mind that Drs. Harrison and Donovan, who had examined the defendant immediately after the homicide, had testified as to what symptoms were present, and each had stated that the defendant, in his opinion, was shamming. When Dr. Bayard answered the question above quoted, it amounted to nothing which had not already been made to appear. The answer, indeed, proved nothing. It was at most a mere expression of what a person "might" do, and would be doing violence to the intelligence of a jury to assume that they were misled by such answer, and thereby rendered an erroneous verdict. People v. Mullen, 163 N. Y. 312, 57 N. E. 473; People v. Sutherland, 154 N. Y. 345, 48 N. E. 518; People v. Carpenter, 102 N. Y. 238, 6 N. E. 584.

It is also claimed that error was committed by permitting two lay witnesses, Kenneally and Osborne, to testify as to the rationality of the defendant. Kenneally was connected with a newspaper published in the city of New York, to whom the defendant, a short time prior to the homicide, had submitted a poem for publication, entitled "Pisen Pete." He had frequently seen the defendant; but, while he could not state precisely the time when the article was submitted, he did remember the fact that the defendant submitted it to him, at the same time stating that he wrote it. Under such circumstances, it was competent for the witness to state whether the acts and conversation of the defendant impressed him as being rational or irrational. As to the witness Osborne, he was one of the official stenographers of the Court of General Sessions. The defendant, some time prior to the homicide, had been instrumental in instituting proceedings to punish certain persons for violations of the excise law, during the course of which his testimony was taken by the witness Osborne acting in his official

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capacity. While he testified that he had no personal acquaintance with the defendant, and had no recollection, independent of his minutes, of the manner in which he had given his testimony, nevertheless it was proper for him to state whether or not the defendant's answers to the questions propounded impressed him as rational or irrational. Besides, if this could by any possibility have been error, it is insufficient, when the whole record is considered, to justify a reversal. People v. Silverman, 181 N. Y. 235, 73 N. Y. 980.

It is further claimed that the court erred in permitting Dr. Newton to express his opinion as to the responsibility of the defendant. An examination of the record shows that Dr. Newton first testified to his own examination, as a result of which he pronounced the defendant sane. A hypothetical question was then put to him, in answer to which he again pronounced the defendant sane. He was then asked whether he had heard all the testimony given at the trial. This was objected to, and the objection overruled, and he was permitted to state that he had. He was not then asked to give an opinion based upon the testimony which he had heard; but it was whether, assuming that testimony be true, as stated in the hypothetical question, as well as his own examination of the defendant, he would pronounce him sane or insane. The objection to the question, and the exception taken to the adverse ruling thereto, as to whether he had heard all the testimony given at the trial, is unavailing. A similar question was asked in People v. Osmond, 138 N. Y. 80, 33 N. E. 739, and was held harmless. Then came the following question.

"Q. Now, assuming that testimony to be true, as I have stated in the hypothetical question, and assuming, also, your own examinations of this defendant, made in the Tombs, in your opinion, was he sane or insane? mean the explanation as you have detailed them here to-day."

I

The question was objected to, the objection overruled, an exception taken, and the witness answered: "I believe he's sane." It is clear the witness, in answering the question, did not base his answer upon the .truth of testimony given during the trial, but only upon the truth of testimony as stated in the hypothetical question; that is, he assumed that the facts stated in the hypothetical question were true. This seems necessarily to follow when, in answer to a question put to him on crossexamination, he stated:

"In answering this hypothetical question put to me by Mr. Osborne, my answer is based upon the facts as he stated them to me."

In People v. Truck, 170 N. Y. 203, 63 N. E. 281 a question somewhat similar was held to be proper. The witness was required to, and did, give his opinion upon specific facts which were detailed, and there was, therefore, no necessity for repeating the hypothetical question at length. People v. Krist, 168 N. Y. 19, 60 N. E. 1057.

Error is also alleged to have been committed in permitting Drs. Newton and Hamilton to testify, against objection and exception, to the several examinations of the defendant made by them intermediate the homicide and the trial. No error was committed in this respect. The defendant did not dispute the fact that the deceased came to her death from a bullet wound received from a pistol which he held. What he