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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 154 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 157 In this case we exercise, as an appellate tribunal, a peculiar jurisdiction. It was a conviction for a capital offense in the New York Court of General Sessions of the peace, and it is provided by statute that on appeal we may order a new trial, if satisfied that the verdict was against the weight of evidence, or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below. (Laws of 1855, ch. 337, § 3.) The case is, therefore, open to review upon the facts and the law, regardless of any technical omission to except to the rulings of the trial court.
1. As to the merits. Was the verdict justified by the evidence, or was it against the weight of it? There seems to be no room to claim that it did not sustain the conviction. Indeed, its tendency was in but one direction. That a woman named in the indictment, Nancy E. Vincent, was killed by the prisoner in a brothel in Centre street under circumstances of great atrocity was not denied. It was not, as it could not be claimed, that the death was unintentionally affected; and hence the theory of the defense was, that the act was committed whilst the prisoner was in a state of mental derangement. There was no proof, however, tending to show that he was, or ever had been, insane; and nothing even to raise a suspicion of mental unsoundness, unless it were the exceeding barbarity attending the perpetration of the crime. What were the antecedents, or the precise relation which the parties sustained to each other, does not appear. It is probable that they were strangers in the city, and that an intimacy had existed between them elsewhere. The evidence first discloses them together at the brothel in Centre street, on Friday evening previously to the homicide. She had then been an inmate some four weeks of this den of iniquity. That evening the prisoner visited her, and they left the place together, she remaining absent until Sunday morning, and then returning alone. On Sunday evening he was again at the house, and a quarrel ensued. He endeavored to persuade her to go away with him but she refused, and he struck her. She still persisted in staying, and finally the keeper of the house put him *Page 158 out. In a brief period, he came back with a policeman and charged her with stealing his watch. Both were taken to the station house, when the prisoner complained that she had stolen his watch, and she charged him with assaulting her. They were locked up for the night, and at an early hour on Monday morning taken before the magistrate, and, refusing to complain against against each other, were released from custody. The brothel was opposite the Tombs, and as they came out together the woman who kept it took her in, and told the prisoner if he came there she would have him arrested. At this time all vicious passion that may be supposed to have been aggravated by a debauch the night previously, had had full opportunity to subside. He went away, and the deceased got in bed with another of the girls of the house. Two or three hours elapsed when the prisoner returned. He was first met in the rear yard of the house, inquiring where the deceased was. He then went into the house, burst open the door of the room of the keeper of the house, which was next to the bar-room, and who happened at the time to be absent; and next broke in the door of the room in which his victim was sleeping. A scene then ensued of the most brutal description. Dragging his victim out of the bed, he threw her upon the floor, beating her and stabbing her with a knife. The alarm was given that "Walters was killing Lizzy," but before he could be forced off he had stabbed her in seventeen places upon her shoulders, back, neck, stomach, legs and other parts of the body. He seems not to have desisted from his violence until a girl named Riley, who came to the rescue, struck him upon the head. He then got up, dropped his knife, went into the bar-room, and from thence into the street. The deceased was placed upon the bed in a fainting condition, her wounds bleeding profusely; and the same day was taken to the city hospital, where she died seven days afterward, of the wounds thus inflicted by the prisoner. Whether the outrage was perpetrated under the excitement of stimulants, was not shown; and there was nothing in the subsequent conduct of the prisoner to indicate insanity. He seems fully to have *Page 159 appreciated what he had been about, for, on leaving the house, he went to the station house and gave himself up.
In view of these facts, there could have been but a single question for the jury, viz.: whether the malicious intent existed to kill. If it did, it was murder in the first degree. (Laws of 1862, ch. 197, §§ 5, 6.) This question was submitted with instructions as to the law entirely unexceptionable, and the jury found that the malicious purpose of the prisoner to take the life of his victim actually existed. No other conclusion could have been conscientiously reached. The evidence and circumstances attending the homicide showed, unmistakably, deliberation and malice on his part. He voluntarily sought out his victim, armed with a knife, and with fiendish spirit and intent, effected her death.
2. It remains to be seen, whether in the course of the trial, any rule of law was violated actually prejudicing the prisoner.
1. A juror was called and peremptorily set aside on a challenge by the people, the counsel for the prisoner objecting. This was not error. It is provided by statute that "on any trial for any offense punishable by death or by imprisonment in the State prison for the term of ten years, or for a longer term, the people shall be entitled peremptorily to challenge five of the persons drawn as jurors for such trial and no more." (Laws of 1858, ch. 332, § 1.) This is claimed to be an unconstitutional enactment, but with what provision of the Constitution it conflicts, is not apparent. The Constitution of 1846, it is true, preserves the trial by jury, in all cases in which it had been theretofore used (Const., art. 1, § 2), but this certainly is no limitation of, or restriction upon legislative power, except as to the right guaranteed, viz., a jury trial in all cases in which it had been used before the adoption of the instrument. I am not aware of any other constitutional provision that may be supposed to have the remotest bearing upon the question. Trial by jury cannot be dispensed with in criminal cases, but it is obviously within the scope of legislation to regulate such trial. I entertain no doubt that it is entirely competent for the legislature to declare that either the people or the accused may have their challenges without assigning *Page 160 cause, and to limit the number of them. The subject of peremptory challenge has always been under legislative control, and it is only within a comparatively recent period that the right has been extended even to the accused in a minor class of criminal offenses. Even if it were a right given by common law, it could be restrained, limited or withheld altogether at the legislative will.
2. A juror named Thompson, was challenged for principal cause, no ground of challenge being specified. He was sworn, and first interrogated by the prisoner's counsel. After answering that he had no recollection of having read or heard anything about the case, the counsel remarked, "we are content with this juror," and withdraw the challenge. The district attorney then put the question: "You have no conscientious scruples have you?" He promptly replied, "Yes, I have. I have conscientious scruples." The prisoner's counsel then inquired. "If you were sworn to render a verdict according to the evidence, you would respect your oath and do so, would you not? He answered. "I would sir, but I should not feel willing to be sworn in the case." The case states that the judge then said, "the juror objects to being sworn, I will exclude him." The prisoner's counsel objected, and the judge noted the objection. Excluding or excusing this juror, against the prisoner's objection, it is insisted was an error fatal to the validity of the conviction. I think otherwise. A challenge for principal cause had been informally interposed by the prisoner's counsel. The counsel, after a brief examination, announced that he was content with the juror, and that he would withdraw the challenge. The district attorney informally renewed it, and put to him the question, whether he had conscientious scruples, and he replied that he had. It was not specified in the question or answer to what the scruples of conscience related, but it is obvious that the juror, the court and the prisoner's counsel understood them as relating to the propriety of the death penalty in any case. Just before, and it is to be assumed in the presence and hearing of the juror, a person had been called as a juror, and questioned by the attorney for the people, as to having conscientious *Page 161 scruples against finding a verdict according to the evidence in a case where the penalty was death; and upon Thompson answering that he had conscientious scruples, the prisoner's counsel followed up the examination with the view of ascertaining whether, as a juror under the obligations of his oath, he could not overcome them. If the juror conscientiously entertained opinions that would preclude him from finding a party guilty of an offense punishable with death, it was a good ground of challenge for principal cause by the people. The statute provides that such person shall not be compelled or allowed to serve as a juror on the trial of an indictment for any offense punishable with death. (2 R.S., 734, § 12.) I think the proof sustained a challenge for principal cause, and that in this view the exclusion was not error. It is true that the juror answered when pressed, as any conscientious man would have done, that if forced to serve, and sworn to render a verdict according to evidence, he would respect his oath, but he added that he should not feel willing to be sworn in the case. This answer did not remove the objection to him. The substance of it was, that if compelled to serve he would respect his oath, but he was not willing to be sworn in a case, were the punishment following a conviction was death. It was in the nature of an objection by the juror himself to serve in the particular case. It appearing that he was one having conscientious scruples against the death penalty, he was legally incompetent as a juror, and it was the duty of the court, in the due administration of the law, with or without objection on his part, to exclude him from the panel.
3. In cross-examining the woman who kept the house in which the deceased had been an inmate for three weeks before the murder, the prisoner's counsel put this question: "For what purpose was she (the deceased) living with you?" On objection of the district attorney, the court would not allow the question to be answered. The inquiry was irrelevant and unimportant, except in its bearing upon the fanciful and wholly unproved defense attempted to be set up, that the deceased was the wife of the prisoner, who, in his absence in a *Page 162 military hospital, had been inveigled into a house of ill-fame, and there led into practices of illicit commerce with men, which, when it became known to the prisoner, so operated upon a mind long affected by insanity, that it produced an insane phrensy, and drove him to the commission of the act for which he was being tried. If, in any view, however, it was important that the jury should have been made acquainted with the fact that the deceased was a common prostitute, it was fully shown. It was conceded and proved that the witness kept a bawdy house, and that the deceased had lived with her for three or four weeks, at least, prior to her death. It was quite unnecessary, with the view of showing her to have been led into practices of illicit commerce with men, that the keeper of the vile den should have been allowed to answer the question propounded to her. It is clear, therefore, that the prisoner could not have been prejudiced by this ruling, even if it were conceded that the interrogatory was unobjectionable.
4. Three letters were produced on the part of the defense, and shown to a girl named Hogan, who was an inmate of the house in Centre street. She identified the letters as having been written by her for the deceased. Two of them purported to be addressed to "Charles H. Walter, David's Island Hospital," and the third was without any address. They were signed "Lizzie Walters," and "Elizabeth Walters." All of them concluded "Your loving wife," and the one without an address commenced, "My dear husband." The witness testified that they were written and signed just as the deceased told her to do. The prisoner's counsel offered to read these letters in evidence; but the district attorney objecting on the ground of irrelevancy, they were ruled out. The avowed purpose of the offer was to establish the relation of husband and wife, between the prisoner and the deceased, and also a variance between the indictment and the proof as to her true name; in other words, that her name was not Nancy Vincent, as the indictment alleged, but Elizabeth Walters. I do not think the court erred in excluding the evidence. Whether the relation of husband and wife existed, *Page 163 was entirely immaterial, except upon the question of variance. If the woman that he killed was the wife of the prisoner, then her name must have been Walters, and not Vincent. That she was his wife, and not his mistress, could not be proved in this way; and the fact, that at the date of the letters, she claimed among her associates at the house of prostitution to be his wife, and called her name Walters, was no evidence that they were really husband and wife, or that Vincent was not her true name. It may be here remarked, that the judge erred in the opinion, that in a case like the present, to establish the relation of husband and wife, direct proof of marriage was required; but the prisoner was in no way prejudiced by the error. There was no evidence whatever in the case of cohabitation between the parties in such a sense, as with proof of common reputation might raise a presumption of marriage. The prisoner had the benefit of all the evidence of common reputation which he could produce.
5. If Nancy Vincent was the real name of the person upon whom the prisoner committed the fatal assault, the indictment was not defective; and although she may have went by another name among her acquaintances, the jury could not acquit on the ground of variance. There can be no variance where the indictment states the name truly. Nor is there a fatal variance when the name charged is not the true one, but it is proved that the deceased was known and called among her acquaintances by the name charged. Upon the point whether the indictment stated correctly the name of the deceased, there was ample evidence to go to the jury. Indeed there was but the single fact proved, that among her associates in the house in Centre street, she published her name as Elizabeth Walters, to raise a question respecting it. In the station house, the night previously to the homicide, when the prisoner and herself were complaining against each other to the police officer, she gave her name as Nancy E. Vincent, and stated that she was not the wife of the prisoner, but that she had lived with him as his wife for two or three years. To these statements, in the presence of the prisoner, he made *Page 164 no contradiction or objection, but on the contrary was preferring a charge against her for stealing his watch. So, also, when she was taken to the City Hospital, and placed in one of the wards, a board was brought in with the name of Nancy E. Vincent upon it. The nurse asked her if that was her name, and she said "Yes; I always go by the name of Elizabeth Walters, but that is not my true name." It is true, the prisoner was not present on the latter occasion, but that was not necessary to render the proof competent. If it were, the evidence worked no prejudice to him. She but reiterated out of his presence, the name she had given in his presence, uncontradicted by him.
6. The prisoner's counsel requested the judge to charge as a proposition of law, that in a case where the defense consists in the insanity of the prisoner, it becomes incumbent upon the prosecution to prove him sane. There was not a particle of evidence in this case showing the prisoner to have been insane when he committed the homicide. The defense of insanity failed utterly. Hence, the legal proposition asked to be given to the jury was of the most abstract character, and for this reason the judge was not called upon to say anything about it. But as an abstract legal proposition, it was manifestly unsound. Sanity is presumed to be the normal state of the human mind, and it is never incumbent upon the prosecution to give affirmative evidence that such state exists in a particular case.
My conclusion is, that the judgment should be affirmed. The prisoner had a fair trial on the merits in the court below, and he was not prejudiced by the violation of any legal rules. The evidence of his guilt, and the justice of his conviction, is very clear.
Judgment affirmed, and ordered that the court below fix anew the time for the execution of the plaintiff in error. *Page 165