The Plaintiff in Error was convicted, in tlie General Sessions of New York city, of the murder of his wife in that city, on the 26th day of March, 1867. The conviction was of murder in the first degree.
The indictment contained three counts, alleging, severally, a killing with an axe, with a knife, and by beating and choking. After the evidence was in, the prisoner moved that the People be required to elect upon which of these counts they would go to the jury, which was refused by the Court, and the prisoner excepted.
A witness for the People, George Cram, testified that on the day of the killing, at about one o’clock in the afternoon, he accompanied the prisoner home; that the latter was very much intoxicated; that as he entered the room where his wife was he staggered against her and “ went to strike her; ” that witness and the wife both remonstrated, and the prisoner staggered over into a rocking-chair, and went to sleep; that witness then advised the wife, who was not sober, to go into the adjoining room and lie down, and upon her doing so, told her he must go to his work; that the woman thereupon begged him not to go, and asked him. *85 “Do you think he will kill me?” To which witness replied, “ No; what humbug! ” That, at the time of this conversation,. the prisoner was in the adjoining room, the connecting door being open, the prisoner in the chair, asleep “ sound and solid; ” that he was asleep as soon as he struck the chair, and that witness shortly afterwards shook him in the chair, and knew he was unconscious. The prisoner’s counsel objected to the evidence of the conversation between Cram and the deceased, under the circumstances above narrated; the objection wus overruled, and the prisoner excepted.
After verdict the prisoner moved the Court for a new trial, on the ground that the verdict was against the law and the evidence ; the Court refused to entertain the motion, deciding that it had no power to grant a new trial, the .Recorder at the same time remarking: “ I am quite sure that no argument of counsel would induce me to grant a new trial, either upon errors of law or of fact.” And the prisoner excepted to the refusal to entertain a motion for a new trial.
One other’ alleged error was relied upon by the Plaintiff in Error, viz., the refusal of the Court to charge “ that in order to constitute murder in the-first degree, the premeditation must have existed prior to the immediate occurrence which resulted in death.”
But the whole question here involved, including the construction of the act of 1862, defining degrees of murder, was disposed of in the case of Eitzgerrold v. The People, decided at the January Term of this Court, and will not be reconsidered here.
The evidence showed that the prisoner had always been a quiet and peaceable man, and, so far as appears, had lived pleasantly with his wife down to about the time of her deaththat on St. Patrick’s day — nine days before that event — the prisoner and his wife had both commenced to drink, and had continued under the influence of liquor down to the hour of the catastrophe.
There is no evidence of any motive for the commission of the crime.
The first objection raised by the Plaintiff in Error, viz., to the *86 refusal of the Court to require the People to elect on which count of the indictment they must ask for a conviction, is untenable. As was said by Chancellor Walworth, in Kane v. The People (8 Wend. 203): “ It is every day’s practice to charge a felony in different ways in several counts, for the purpose of meeting the evidence'as it .may come out upon the trial;” . . . and, “if the different counts are inserted in good faith, for the purpose of meeting a single charge, the Court will not even compel the prosecutor to elect.”
I am not aware that the correctness of this practice has ever since that time been questioned.
The second objection, viz., that the Court erred in admitting the testimony of the witness Cram to the convei’sation between himself and the prisoner’s wife, I think is well taken. That conversation could be evidence only on the theory that it took place in the presence of the accused, aud that not merely in his bodily presence, but in his hearing and understanding. A declaration made in the presence of one unconscious from sleep or stupor, cannot be evidence against him; and that seems- to have been the condition of the prisoner here. The learned Judge below thought it was for the jury to say whether he was wholly unconscious or not; but the evidence on that point was uncon-tradicted, and, to my mind, seems positive.
The witness says that the prisoner was very much intoxicated; that immediately upon coming into the room he staggered over into a rocking-chair and went to sleep; that he appeared to be asleep sound, solid; that as soon as he struck the chair he was gone; that about the same time witness shook him in the chair, and was satisfied he was unconscious.
It is true the witness testifies that shortly after the conversation he told the prisoner to go to bed, and that he did get to bed, with the assistance of the witness; but I have no doubt it was then that he shook him in his chair, and found such means necessary to rouse him sufficiently to be got to bed.
But, aside from this condition of the prisoner, and whatever the degree of his stupor, the conversation was not even in his bodily *87 presence. The fact, apparently overlooked by the learned Judge below, is, that the prisoner was in one room, and the interlocutors —the witness and the deceased — in an adjoining room. Cram-liad induced the deceased to go into his room, adjoining that in which the prisoner and his wife lived, and lie down; he had gone in with her, and it was when he was about to leave her that the conversation took place. It is true he testified that the door between the rooms was open, but there is no evidence of the position of the several parties relative to the door, nor of their distance from it, nor whether the tone of voice used was such as could have been heard from one room to the other.
Since, therefore, this conversation was not in any sense in the presence of the accused, it was clearly inadmissible, and unless it appears that it cannot, in any degree, have operated to the prejudice of the prisoner, its admission is good ground for anew trial. Upon this point it seems to me there can be no question. The evidence of the prisoner’s guilt was wholly circumstantial. Both the fact of killing, and the design to effect death, were required to be inferred from the circumstances, mainly, of opportunity and of the conduct of the prisoner before and after the event.
Prominent among these was the fact of some threats uttered by the prisoner on the same day of the killing, though not in the presence of the deceased; and the evidence of the conversation with Cram certainly tended to show that the prisoner had previously made similar threats to the deceased herself, or had in some other way impressed her with a fear of fatal violence at his hands.
Her language to Oram clearly indicated an apprehension in her mind that the prisoner entertained a murderous purpose towards her, and it is not only impossible to say that this proof cannot have influenced the minds of the jury, to the prejudice of the accused, but it is difficult to see how it can have failed to do so. In my opinion the admission of this testimony was an error fatal to the 'trial.
The remaining objection of the Plaintiff in Error which I shall consider is, that the Recorder erred in refusing to entertain a *88 motion for a new trial. In tbe opinion below it is said, “ the [Recorder denied this motion on its merits.” But surely it is not possible to decide such a motion on its merits without entertaining it; and in this case the Recorder distinctly refused to entertain the motion, on the ground that he had no power to grant it, although he added, that- if he had the power he would not exercise it.
There can be no doubt that the Recorder was wrong in his opinion on the question of the power of his Court to grant a new trial.
The act of 1859 (Laws of 1859, chap. 339, § 4) provides : “ The Courts of Sessions of the several counties in this State shall have power to grant new trials upon the merits, or for irregularity, or on the ground of newly-discovered evidence, in all cases tried before them.” It is difficult to see how this provision could have been understood not to include the “ Court of General Sessions of the Peace in and for the City and County of New York.” And this Court, in the case of Lowenburg v. The People (27 N. Y. 336), held that substantially the same language, in another act, did include that Court.
The question in that case arose under chap. 208 of the laws of the same year (Laws of 1859, chap. 208, § 1), which provides: “ It shall be lawful for the Court of Sessions of any county in this State to continue its sittings at any term thereof so long as it may be necessary,” &c.; and the opinion in that case, which, upon this point, seems to have been concurred in by the whole Court, holds the following language: “ The Court of General Sessions of the Peace in and for the City and County of New York is hut a Court of Sessions of the County of New York, and is designated in the act of 1859-, by the words, the Court of Sessions of any county of this State.’ ”
There can be no question but that the designation in chap. 339 is equally inclusive with that in chap. 208, and, consequently, no question but that the Court of General Sessions of New York has the power to grant a new trial on the merits. Such being the case, I cannot avoid the conclusion that a substantial right wás *89 denied tbe prisoner in tbis case, viz., tbe right to bave bis motion for a new trial beard by tbe Court wbicb tried bim.
I cannot tbink that tbis motion was decided upon its merits. Tbe remark of tbe Becorder about not being induced to grant the motion seems to have been a hasty declaration, made without bearing counsel, and coupled in tbe same breath with tbe decisive announcement that he had no power to entertain tbe motion. Nor am I prepared to say, as is said in tbe opinion below, that if tbe Becorder bad granted a new trial, it would bave been an error. I do not tbink an Appellate Court can decide what effect a.review of tbe case might bave bad upon tbe Judge who tried it, and who beard and saw all tbe witnesses on tbe stand.
If tbe prisoner bad a right to move for a new trial, he had a right to have that motion beard and considered. That right was denied him, and, in my opinion, that denial was error.
‘If tbe views which I bave expressed upon tbe second and third objections of the Plaintiff in Error, as enumerated above, are correct, it.follows that tbe judgment of the General Term of tbe Supreme Court, and that of tbe General Sessions, should be re- ■ versed, and a new trial granted.
Beversed — on tbe ground of error in admitting evidence,
JOEL TIFFANY,
State Beporter.