#### The People of the State of New York, Resp’t, *v.*Patrick Packenham, App’lt.

*(Court of Appeals,*

*Filed June 25, 1889.)*

1. Cbiminal law—Homicide—Evidence—Condition oe accused, when MAY BE SHOWN.

Upon the trial of the defendant for murder, his condition at or about *564the time of the homicide, was under investigation. The defense was alcoholic insanity. A p dice officer testified that the accused' appeared to he sober, but “looked as though he was getting over the effects of a drunk.” The question was then put: “How, from what you saw and what you heard them say at that time, in your opinion, was he rational or ■irrational.” *Held,*that inasmuch as the question and answer related to the appearance and conduct of the defendant on the one occasion, which formed the subject of the inquiry, and what was sought was a description of that appearance and conduct, the evidence was competent.

$. Same—Challenge to panel.

Where, at the trial, the court discharges twelve jurors from the panel and excuses them from further service during the term, an objection thereto cannot be taken by a challenge to the panel.

Appeal from a judgment of the court of general sessions in •and for the county of New York, entered upon a verdict convicting the defendant of the crime of murder in the first degree.

*A.*Suydam, for app’lt; *McKenzie*Semple, for resp’t.

Finch, J.

The prisoner was convicted of murder in the first •degree, and from that judgment has brought this appeal. There is no just ground for the reversal which he seeks. That the •offense was committed, that the accused cut his wife’s throat with .a razor, almost without provocation and under circumstances of great brutality, is entirely certain. Tho defense of alcoholic in: .sanity was not at all established and we see no reason to disagree •with the verdict of the jury upon the facts.

The alleged errors of law require but a brief consideration.

A question put to officer Cairns was admitted, under exception. The condition of the accused at about the time.of the homicide was under investigation. The witness had testified that he appeared to be sober, but “ looked as though he had been getting ■over the effects of a drunk,” yet answered questions responsively. 'The question was then put: “Now from what you saw and what you heard him say at that time, in your opinion, was he rational or irrational.” The objection taken was' that the evidence was in■competent. The question and answer clearly related to the appearance and conduct of the prisoner on the one occasion which formed the subject of the inquiry, and what was sought, was a description of that appearance and conduct as rational or the reverse. The evidence was competent *People*v. Conroy, 97 N. Y., 62. The effort now is to transform the inquiry into one .as to the jirisoner’s actual mental condition which could only be given by an expert. Such was not the question, and its meaning is so entirely obvious that it could not have been misunderstood by the court and jury.

Nor did the court err in overruling the defendant’s challenge to the panel. The ground of the challenge was that the court had discharged twelve jurors from the panel, and excused them from further service during the term. The objection is not one which can be taken by a challenge to the panel. Code of Crim. Pro,, § 361; *People v.*Jackson, 111 N. Y., 369 ; 19 N. Y. State *565Rep., 506. The prisoner’s counsel conceded this, but insists nevertheless upon the objection. It is enough, for the present, to say that it was taken in no manner sufficient to present it, and there is in our minds no such doubt about the case as would •excuse or induce a disregard of the requisite legal formalities.

We have examined, also, the objections taken upon the challenges to different jurymen, but find no error in the rulings of the court.

The judgment should be affirmed

All concur.