“Gentlemen, what I intended to say to you was, that a verdict in this case other than that of guilty or of' not guilty, would not, in my judgment, be borne out by the facts of the case. I say, however, to you, as a matter of right and power, you can bring in a verdict of a lesser offense under an indictment, charging murder in the first degree, and to that extent I modify my charge.”
Chamberlam, & French, for defendant, appellant.
Joseph W. Taylor, district attorney, for the people.
Haight, J.The indictment charges that John Kelly, on the 21st day of October in the year 1883, at the town of Chili in the county of Monroe, willfully and feloniously, and from a deliberate and premeditated design to effect the death of Jacob Lutz, did make an assault upon and kill him. The indictment further charges in another count, that at the same time and place, said John Kelly, feloniously, and by means of force *39and violence, upon the person of Jacob Lutz, did kill him, whilst he, the said John Kelly, was engaged in the commission of a felony, etc. The deceased, and his son, Jacob Lutz, Jr., a boy seventeen years of age, lived together in the town of Chili, about four miles south of the court house in the city of Rochester, in a frame dwelling-house near Genesee Valley Canal railroad. The deceased and his son were both employed by E. B. Chapin in the phosphate factory located near by, up to the time of the alleged murder. At the close of the day’s work on the 20th of October the deceased was paid'ten dollars for his and his son’s wages for the week ending that day. The money paid consisted of four two-dollar bills and two one-dollar bills. The defendant worked for the same man and at the same factory in company with the deceased and son. He was paid the sum of two dollars, being the balance due him for his weeks wages. The testimony of Jacob Lutz, Jr., given on the part of the prosecution, is in substance that he and his father went home that night and went to bed about eight o’clock; that at about one o’clock in the morning the defendant Kelly rapped upon their door and his father let him in ; that Kelly said that he had knocked a man down up in the city, and a policeman had chased him, and he wanted to stay all night with them, and that they all got into bed together. He then testified that he was awakened about three o’clock in the morning by hearing his father scream; that he raised up in bed himself, and received a blow upon his head; that the defendant Kelly was standing by the bedside striking the witness and his father alternately, on their heads, with some implement; that he finally got out of bed and dressed, the defendant assisting him ; that the- defendant told him that two men had been in the house and assaulted them; that he then started to go to a neighbor’s; that the defendant followed him out to the railroad track, and there the defendant knocked him down by a telegraph pole; that he left him lying there for a time and then took him by the feet and dragged him into the woodshed ; that he was kicked and choked, and then the defendant left him and went into the house again; that he heard his father scream again ; that the defendant came back to him, kicked him, felt of his feet and then went away ; that after the defendant left and went away he crawled into the house v and *40sat on a chair until he was found he witness Baker. Evidence was also given on behalf of the prosecution, by John Baker and numerous other witnesses who visited the house the next morning, which tended to show that the old man Lutz was found dead in bed, having nine wounds upon the head, apparently made by some blunt instrument, some of which had fractured the skull so that the brain was oozing forth. The bed was saturated with blood which had apparently flowed from the wounds. One of the boots standing by the bedside had blood upon the heel, with hair that resembled the hair upon the head of the deceased. The leg of the boot was crumpled up as if it had been clutched in the hand. The boy sat in a chair by the stove having three wounds upon his head, from which the blood had flowed down his face and neck, saturating his clothes, he was apparently in a dazed condition, and when he rose to walk was unable to do so. On an examination of the clothes of the deceased only ten cents was found. An examination of the ground near the telegraph pole showed a pool of blood, with some spatters upon the pole and fence. The ground also bore marks of some substance having been dragged over it from the telegraph pole to the woodshed. At the woodshed another pool of blood was found upon the floor. A coat was found at the house, which the boy identified as the one that he had on at the time, which was covered with blood and dirt. In the pigpen a hat was found which the boy identified as the one which he worn at the time, the inside of which was saturated with blood. Subsequently, a piece of iron pipe was found in the glue racks near by, with blood-stains and hair upon it. The defendant was arrested that morning at 11:30 o’clock. There was found in his possession $8.82 ; two two-dollar bills, two one-dollar bills, two silver dollars and the balance in change. He had his hair cut that morning and paid a barber a two-dollar bill, receiving back a silver dollar and seventy-five cents in change. He had also paid a shoemaker for mending his boots a two-dollar bill, receiving in change a silver dollar and a ten-cent piece. There were blood-spots on his coat near the shoulder, and on one of the buttons. Also on the knees of his pants, and on the bottom of the legs on the under-side of the lap. The officer who arrested him testified that in answer to the question as to what *41he arrested him for, he told him that there was a murder committed in the town of Chili; that Kelly asked him how he knew; that he answered that the son told him; that thereupon Kelly answered and said, ‘ I was not up to old Lutz’s house at all last night.’ The officer testified that he had not mentioned the name of Lutz at all at that time. Other circumstances were given in evidence on the part of the people, with the evidence of the officers as to the conversations had with him on the morning of his arrest.
The defendant testified that he remained in the city of Rochester during the entire night; was not at Lutz’s at all, and did not commit the crime. The testimony of several witnesses was taken, showing that he was in saloons on St. Paul street, the night before, until about half past eleven o’clock. Other evidence was given tending to show that he was in another saloon kept by one Maher, on St. Paul street, about five o’clock the next morning. He testifies that he slept in a lumber yard during the intervening time. Other evidence was given tending to show that the deceased and his son had frequent quarrels ; that the deceased was in the habit of drinking to excess, and when intoxicated was quarrelsome. We have carefully read and considered all the evidence appearing in the appeal book. The evidence is of that character which makes it purely a question of fact for the jury to determine. There is evidence to sustain the verdict, and this court cannot as a matter of law say that the verdict is against the weight of evidence. If the judgment is to be reversed it must, therefore, be upon errors appearing upon the trial.
The court, in its charge to the jury, defined the crime of murder in the first degree as the killing of one human being by another, when committed from deliberate and premeditated design to effect the death of the person killed; or when the killing is committed without any design to effect the death of the person killed by a person engaged in the commission of, or in an attempt to commit a felony, either upon or effecting the person killed, or otherwise. The court made no mention of the crime of murder in the second degree or manslaughter, but it stated that it thought it would confuse, if the court should explain all the different grades of murder or homicide which fall under *42the general term of homicide, and that it should exclude all other definitions of that crime which do not come under the facts embraced in the evidence. It then proceeded to charge as follows : “ There is not any opportunity, gentlemen, for you or me to compromise this case in any repect. It is a conviction of murder in the first degree, or an absolute acquittal.” At the conclusion of the charge the defendant’s counsel took exception to this charge, and subsequently the court charged as follows : “ What I intended to say to yon was, that a verdict in this case, other than that of guilty or not guilty, would not, in my judgment, be borne out by the facts of case. I say, however, to you, that as a matter of right and power yon can bring in a verdict of a lesser offense, under an indictment charging murder in the first degree, and to that extent I modify my charge.” The court charged the jury as follows: “ If you shall say that you believe what Jacob Lutz says, [ say to you that that alone is sufficient to enable you to find a verdict of guilty this case.” The charge was also excepted to by the prisoner’s counsel.
We are of the opinion that both of those charges were erroneous. The evidence of young Lutz is to the effect that the defendant was admitted into the house by the deceased ; that he went to bed with the father and son, with their consent; that the ten dollars that was missing the next morning, the deceased had in his pocket of his vest which hung up in the bed-room. The larceny of the money would, therefore, not amount to a felony. We consequently fail to see upon what theory a conviction could be had upon the ground that the killing took place whilst he was engaged in the commission of a felony. If the killing was actually done by the defendant, and the killing was for the purpose of putting the deceased out of the way so that he could subsequently commit the larceny, then the case would fall within the definition of a deliberate and premeditated design to effect death, and the larceny would be the motive for the crime. If, therefore, the conviction is to be sustained, it should be upon the ground that the killing was intentional and with a deliberate and premeditated design to effect death. The court in its charge said: “ There is not any'opportunity for the jury to compromise this case in any respect. It is a conviction of murder in the first degree *43or an absolute acquittal.” This, in effect,takes from the jury that which belongs exclusively to them, the right and power to determine the intent, the deliberation and premeditation. And this is equally true in reference to the charge that in case they believed the testimony of young Lutz, that that alone was sufficient to enable them to find a verdict of guilty. In the case of Stokes v. People, 53 N. Y. 164, it was held that the charge of the court in substance, that the legal implication from the fact of the killing was, that the act was murder, was error; that under the statutes classifying homicide, mere proof that one has been deprived of life by the act of another, fails utterly to show the class to which the homicide belongs. In the case of McKenna v. People, 81 N. Y. 360, the plaintiff in error was upon trial of an indictment for murder, where the evidence was conflicting. The court charged the jury that if they believed the evidence offered on behalf the people to be true, they would be justified in finding the prisoner guilty of murder in the second degree. This was held error, on the ground that the existence of the intent to kill, which is the necessary ingredient of the crime, was a question to be determined by the jury from all the facts and circumstances ; 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 on the part of the prosecution was modified or neutralized by that produced by the defendant, or what inferences should be drawn from any part of it. It appears to us that this case is in point, and must be controlling upon the question here presented. Murder in the second degree is the intentional killing of a human being without deliberation and premeditation. The intention, deliberation and premeditation are operations of the mind and necessary elements of the crime, and their existence must be determined from the facts and circumstances of the case and can only be determined by the jury. People v. Conroy, 2 N. Y. Crim. Rep. 565.
Again, we are of the opinion that the charge was not cured by the modified charge. It is true that the court said that the *44jury, as a matter of right and power, could bring in a verdict of a lesser offense, but in the same connection it was stated “ that a verdict in this case, other than that of guilty or not guilty, would not, in my judgment, be borne out by the facts of the case.” If the verdict of a jury is not borne out by the facts of the case, it becomes the duty of the court to set it aside as against the evidence. It appears to us that the effect of that charge was that whilst 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 in the modified charge does not withdraw or substantially change the former charge made upon the subject. When upon a criminal trial the judge in charging the jury lays down erroneous propositions, but, upon his attention being called thereto by objections, 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 might have been influenced thereby. Greenfield v. People, 85 N. Y. 75, 90 ; Eggler v. People, 56 N. Y. 642; Chapman v. Erie Railway Company, 55 N. Y. 579.* The case of Sindram v. People, 88 N. Y. 196, 202, is clearly distinguishable. The judge charged that “ there is no doubt about the assassination,” but immediately added thereto ‘‘that the deceased person was killed ;” in other words, the court only meant and was understood to charge that there was no question raised in reference to the killing, that being a conceded fact upon the trial, there was no error. Upon an exception being taken to the charge of the court that “ the testimony seems to be overwhelming in favor of his having uttered the expression that ‘ He would return on Wednesday and make a bloody row,’ ” the judge changed the expression and stated that he was only expressing an opinion, and that he left all the questions of fact to the jury; that there *45was to be no thirteenth juror in the box, etc. It was held that the court had sufficiently withdrawn the erroneous charge. In the case of Buel v. People, 78 N. Y. 492, the plaintiff in error was on trial charged with murder, whilst engaged in the commission of the crime of rape. The court instructed the jury as to the provisions of the statute where the killing takes place whilst a person is engaged in the commission of a felony, and omitted to instruct the jury as to the provisions of the other statutes defining murder in the second degree and manslaughter. The defendant made no request of the court to instruct the jury upon those statutes. The court held that it was not error; that the defendant, in case he thought the evidence brought the crime within the definitions of murder in the second degree or manslaughter, should have asked the court for the proper instructions. But this case is clearly distinguishable. In the crime charged, killing whilst engaged in the commission of a felony, deliberation, premeditation or intent to kill is not a necessary ingredient of the crime. And again, the charge was not to the effect that they must convict of murder in the first degree or else acquit. It simply instructed the jury as to what constituted the crime of murder in the second degree, and then left it for the jury.
The court also charged the jury that “ an alibi is a species of defense which the law looks upon generally with great suspicion.” The chief defense interposed by the defendant was an alibi. It is but natural that a person who has committed crime should seek to get away from the scenes of his crime and to avoid detection. It is undoubtedly true that the defense is often resorted to, and at times attempted to be sustained by false and perjured testimony. The testimony given to establish the defense, may or may not be suspicious, depending largely upon the circumstances and the character of the witnesses giving it. It is proper for the jury to scan with care the testimony given for the purpose of determining whether it is true or false, but we do not understand that the law regards the defense as a suspicious one. On the contrary, the defense is as honorable, and when clearly proved, as satisfactory as any defense which the law permits. If a person is charged with the commission of a crime in the city of Rochester, and the person *46charged can satisfactorily show that at the time the crime was committed he was absent in the city'of New York, surely such a defense is a meritorious one, and if acquitted he should not be subjected to the charge that he was acquitted upon a suspicious defense.
Upon the trial, one Grottlied Nodecker was sworn on behalf of the people, and gave material testimony. On the cross-examination by the prisoner’s counsel he was asked if he had been convicted of an assault and battery in 1875, and sent to the penitentiary for two months; he answered that he had not. Thereupon the prisoner’s counsel offered in evidence a record of conviction of Grottlied Nodeclcer for an assault and battery, dated June 1, 1875. The district attorney objected. The objection was sustained and exception was taken. Section 832 of the Code of Civil Procedure provides: “ A person who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness in a civil or criminal action or special proceeding ; but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining him is not concluded by his answer to such a question.” Section 392 of the Code of Criminal Procedure provides, ‘ ‘ That the rules of evidence in civil cases are applicable to criminal cases except as otherwise provided in this Code.” it appears to us that this evidence was competent under these provisions of the Code.
Alfred J. DeLacy was sworn on behalf of the defense; testified that he lived in the city of Rochester and knew where Chapin’s bone works were situated ; that he went there to walk the distance and see what time it would take. The question was then asked: “ You may state when you left here and what time you reached there ?” This was objected to by the district attorney. Objection sustained and exception taken. Defendant’s counsel then offered to show the time that it takes a man to walk the distance, and asked the further question : “ At what gait did you walk ?” This was objected to. Objection sustained and exception taken. The prosecution had given evidence on the part of the engineer and fireman that were run*47ning an engine out on the morning of the homicide, who testified that they saw a man on the railroad track going toward the city at about half-past five o’clock in the morning, and this was in the vicinity of the switch near the house of the deceased. They described his gait as a shuffling, shambling gait, with quick step. They also described his coat and hat. Other evidence was given on the part of the prosecution tending to show that the defenant’s walk was peculiar, that he had a shuffling, shambling gait, quick step, etc., and that the prisoner’s coat and hat were similar to those described by the engineer and fireman. This evidence was introduced on the part of the prosecution for the purpose of showing that the defendant was in the vicinity of the crime at that hour in the morning, and that his story that he had remained in a lumber yard in the city over night was not true. The defense had given evidence tending to show that he was in Mahar’s saloon on St.Paul street, the barber shop and shoe shop at an early hour in the morning, and, for the purpose of showing that he could not have been the individual seen by the engineer and fireman, approaching the city on the railroad track, the defendant sought to show that he could not have walked from the place described by them to the city so as to have been at Mahar’s and the barber shop at the time described? by the witnesses who testified to seeing him there. If DeLacy had walked the distance and timed himself, whilst walking it, it appears to us that the testimony would have been competent and material. There are numerous other exceptions taken to the admission and rejection of evidence, but none which we think it necessary to consider. For the reasons stated, we are of the opinion that the judgment must be reversed and a new trial ordered ; and for that purpose the proceedings should be remitted to the court of Oyer and Terminer of Monroe county.
So ordered.
Bradley and Childs, JJ., concur.
Note.—In considering the authorities on instructions to the jury, in trials for ofíense consisting of several grades, the existence is to be *48observed of statutes authorizing the jury to bring in a verdict of a different grade than that charged.
In People v. Langton, 32 Hun, 461, the court held, that on a trial for robbery the judge having charged that the jury might find the defendant guilty of robbery but had nothing to do with the crime of larceny, the conviction was reversed on this ground among others.
On the trial of an indictment for murder, the judge refused to charge that the jury “ could convict of murder in the first degree, murder in the second degree, or any of the degrees of manslaughter, and in his charge restricted the jury, in the event of a conviction, to murder in the first degree, or manslaughter in the third degree: Held, that unless there was an entire absence of evidence to prove the commission of any other crime than murder in the first degree or manslaughter in the third degree, it was error to charge as the judge did charge, and to refuse to charge as requested.
The right rule would have been to say to the jury that under the indictment, a conviction of the principal offense, or of any less degree, was allowable, and then leave it to the jury to apply the facts to the definitions of the various .grades of the crime, and say which they thought was sustained. McNevins v. People, 61 Barb. 307.
When one part of a charge clearly qualifies an instruction given, which standing alone would be misleading, the charge is not objectionable People v. Pearsall, 50 Mich. 233.
Where on a trial for rape, the defendant might have been convicted of an assault with intent, &c., he was entitled to instructions as to both offenses. Bethel v. Commonwealth, 80 Ky. 526.
If one part of a charge misstates the law upon a material point, such error will not be cured by another part which states the law correctly, because the jury would be left in doubt which was correct. Wasson v. Palmer, 13 Nev. 376.
The true meaning and intent of instructions are not to be determined by the selection of detached parts thereof, but by considering all of what was said on each particular branch of the case. Murphy v. State (Nev.), 19 N. W. Rep. 489; Maas v. Chatfield, 12 Week. Dig. 268.
The correct rule is, that to relieve the trial judge of the duty of charging upon the lower degrees of culpable homicide, the evidence must establish the highest degree; for if there be reasonable doubt it must be solved by the jury, and by the court. This rule applies to all cases where the greater include the lower degrees of culpability. Benevides v. State, 14 Tex. App. 378.
The commission of a criminal offense implies of course the presence of the defendant at the necessary time and place. Proof of an alibi is therefore as much a traverse of the crime charged as any other defense, and proof tending to establish it may nevertheless with the other facts of the case raise doubts enough to produce an acquittal. A reasonable doubt of the defendant’s presence at the time and place necessary for the *49commission of the crime, would seem necessarily to raise a reasonable doubt of his commission of it. Proof tending to establish an alibi although insufficient of itself to establish that fact, is not to be excluded from the case. Whatever doubt, if any, such testimony may raise in the minds of the jurors, is for their consideration; and if its weight, alone or added to that of other evidence in the case, be sufficient to reduce belief in their minds as to the defendant’s guilt to a reasonable doubt they should acquit; for in every criminal case when all the proof is in, the final question for the jury is, “ Are all the essential averments of the indictment proved beyond a reasonable doubt ?” People v. Fong Ah Sing 64 Cal. 253.
On a trial for murder the judge said to the jury: “Under the circumstances, I see no ground to warrant you in finding manslaughter : Held, error. People v. Quin, 1 Park. 340.
Where the defense was an alibi, as to which there was conflicting evidence, the judge charged the jury that the issue upon this point was to be determined by them; that it was undoubtedly true that the defense of an alibi is not unfrequently the felon’s plea ; that when a prisoner finds himself surrounded by facts and circumstances which threaten to overwhelm him and establish Ms guilt, he not unfrequently resorts to this defense and seeks to maintain it by personal witnesses, and that it was the remark of an eminent judge in England, that in his opinion, more perjury had been committed in defenses of this description than in all other defenses interposed in criminal trials. This was held not to be error calling for a reversal. People v. Larned, 7 N. Y. 445, 449.
It is not necessary that the jury should be fully satisfied of the truth of an alibi, but the evidence of it must preponderate. State v. Kline, 54 Iowa, 186; State v. Reed, 62 Id. 40; State v. Heinrich, Id. 4l4.
An instruction that “ an alibi is a species of defense often set up in criminal cases, and one which seems to figure in this case,” is erroneous as intimating to the jury that such defense was a pretence. Walker v. State, 37 Texas, 368.
“In the ordinary case of an alibi, when a party charged with a crime attempts to prove that he was in another place at the time, all the evidence tending to prove that he committed the offense, tends in the same degree to prove that he was at the place when it was committed. If, therefore, the proof of the alibi does not outweigh the proof that he was at the place when the offense was committed, it is not sufficient.” Commonwealth v. Webster, 5 Cush. 295; 52 Am. Dec. 711.
See also Murray v. Commonwealth, 79 Pa. St. 311; Mockey v. People, 2 Cols. 13; Meyer v. Clark, 45 N. Y. 285; Waton v. Wise, 47 Super. 315; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Canfield v. Balt. & Ohio R. R. Co., 46 Super. 238.