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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 228 It is a felony, by statute, to "administer, or cause and procure to be administered, any poison to any human being, with intent to kill such being, and which shall have been actually taken by such being." (2 R.S., 666, § 37.) The plaintiff in error was indicted for administering, or causing and procuring to be administered, to one Julius Denny, a deadly poison, with intent to kill, and was tried and convicted of the offense at the St. Lawrence Oyer and Terminer, in February, 1865. The indictment contained four counts; and the prisoner's counsel, assuming that different offenses were charged, and that one count was bad for duplicity, moved that the public prosecutor be compelled to elect upon which count or offense charged in the indictment he should proceed to try the prisoner, and that the fourth count be stricken out for duplicity. The motion was denied, and an exception taken, but was not pressed on the argument at bar. The motion, undoubtedly, was properly disposed of. All the counts charged substantially the same statutory offense, and neither was bad for duplicity.
A principal point is now made that obviously we cannot consider, viz.: that the prisoner was convicted of the offense charged against him upon insufficient evidence. To constitute anadministering, within the meaning of the statute, it is insisted that something must be done or said beyond the single act of mingling poison with food, which may be taken by a human being, and that although there was some evidence tending to the conclusion that the prisoner poisoned the food given to Denny, there was none whatever showing that he handed the food so poisoned to him, or that he advised, suggested, did or said anything to induce him to partake of it. We cannot entertain any question in *Page 229 respect to the sufficiency or strength of the evidence that produced the conviction; nor is the question as to what constitutes an administering, within the act, before us. There was no allusion to the point on the trial; a construction of the statute was not sought; and as no ruling on the subject was requested, and no exception taken to the charge to the jury, it is to be assumed that they were rightly instructed as to the law of the case; at least the plaintiff in error is not in a position to allege aught to the contrary.
It was proved by Mrs. Denny, that a short time before the administration of the poison, the prisoner was engaged in covering a leaden ball with leather, which he said was a "slung shot," and upon her inquiring what he was going to do with it, he replied, "it was going through Julius' head." A leaden ball, covered with leather, was then produced, and identified by the witness as the instrument which she saw in the possession of the prisoner, and which he called a "slung shot." It was produced and identified, under objection of his counsel, and this is now claimed to have been error. I think otherwise. The state of the prisoner's mind toward Denny was a fact of some significance. Evidence tending to show that he was at enmity with Denny, and entertained toward him a malicious intent, and a purpose to do him personal injury, was clearly competent. It cannot be doubted, that if the prisoner had declared that he had a slung shot that he was going to put through Denny's head, proof of the threat would have been admissible. Here he was shown to have been in possession of an instrument which he called a "slung shot," and which he declared, on being inquired of as to the use he intended to make of it, that "it was going through Julius' head." If this evidence of a malicious purpose to injure Denny was competent at all (and I do not doubt its competency), the production and identification of the instrument by which the threatened personal injury was intended to be effected, was unobjectionable.
In the course of the cross-examination of Mrs. Denny, she was asked: 1st. Whether she was in the habit of having sexual connection with other men than her husband, before *Page 230 she had it with La Beau? and 2d. Whether it was not her constant habit of having it with four men (naming them) for the past four years? The witness interposed no claim of privilege, but on objection of the district attorney, the court excluded the questions, and the prisoner's counsel alleges this ruling as error, for which the conviction should be reversed. I am of a different opinion. There is no pretense that the inquiries were material or relevant to the issue, but on the contrary, were wholly immaterial and foreign to it. Their exclusion, therefore, was no infringement of a legal right of the prisoner. He could not complain that an objection was sustained to an offer of evidence, wholly irrelevant to the issue being tried. But it is claimed that collateral evidence is allowable from the witness himself, tending to discredit and disgrace him; and that the asking of questions disparaging to the character of a witness, is a matter of right to a party on cross-examination. This is not so. The extent of the cross-examination of a witness upon matters immaterial to the issue, is in the discretion of the judge before whom the trial is conducted. Inquiries on irrelevant topics to discredit the witness, and to what extent a course of irrelevant inquiry may be pursued, are matters, in this State and in England, committed to the sound discretion of the trial court; and this is the rule as regards the right of inquiry into all matters wholly collateral and immaterial to the issue. The court in which the trial is conducted may permit disparaging inquiries on matters irrelevant to the issue, where the ends of justice would seem to demand it, and may exclude them without infringing upon any legal right of the parties; and the exercise of this discretion is not the subject of review, except in cases of plain abuse and injustice. These points were distinctly settled by this court, in the case of the Great Western Turnpike Co. v.Loomis (32 N.Y., 127). In that case the judgment of the plaintiffs was reversed by the county court, on the ground that the defendant was not permitted, on the cross-examination of the principal witness, to put questions irrelevant to the issue, but tending to degrade the witness; the avowed purpose of the inquiries *Page 231 being to show that he was unworthy of credit. The questions, as in this case, were excluded as irrelevant, on the objection of the plaintiff, without any claim of privilege by the witness. We affirmed the original judgment, holding that the court in which the cause is tried, in the exercise of its discretion, on objection of the party, without putting the witness to his claim of privilege, may exclude disparaging questions not relevant to the issue on the cross-examination of a witness, though put for the avowed purpose of impairing his general credit; and that decisions of this nature, involving mere questions of practice, order and decorum, are not subject to review on appeal, unless there be a plain abuse of discretion.
In the present case, it cannot be claimed that the prisoner's counsel was unjustly or illiberally restricted in the cross-examination of the witness. Indeed, the utmost latitude was given for irrelevant crimination. Questions calling for answers disparaging to the character of the witness, were permitted to be put and answered, until it appeared from her own statement, and admissions on the witness stand, that her moral character was most disreputable and odious. If the questions excluded had been allowed and answered in the affirmative, it would not have given a deeper stain to it, or have affected, in the least degree, the credit to be given to her testimony, whilst it would have needlessly involved the character of the persons named. For the latter reason, if no other, it was a proper exercise of discretion in the court to exclude the question. It would have been manifest injustice to have permitted the character of those persons to be assailed needlessly without the right, on their part, to speak in their own defense.
I am of the opinion that there was no error committed on the trial, prejudicial to the plaintiff in error, and that the judgment of the Supreme Court should be affirmed.