#### GEORGE SHUFFLIN, Plaintiff in Error, *v.*THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

*Witness*— *Turn may be i/mpeaahed—Leading question*— *Indictment*— *what evidence admissible under*— *Genei'al demeanor of deceased ■—when immaterial*— *Laws of*1862, *chap.*197, § 6 — *mwrder in the first degree.*

The plaintiff in error was tried and convicted for the murder of his wife, by means of an assault upon her person. The mother of the plaintiff in error was called as a witness, and testified that the assault was by no means a serious one. Upon her cross-examination she denied that she had told one Mary McGinn, on the morning after the murder, that she was in great trouble ; that her son had been raising a great disturbance. Mary McGinn was called to contradict her, and asked whether she saw old Mrs. Shufflin that morning, to which question the prisoner objected as incompetent and leading. *Held*(1), that the evidence was admissible to impeach the testimony of Mrs. Shufflin; (3), that the question was proper in form.

The indictment charged that the death was occasioned by an assault, but did not aver that it was in any way produced by means of a knife. Upon the trial, a policeman testified that a knife, covered with blood, was found on the premises, and was then asked whether a knife, produced in court, was the one so found. The question was objected to as leading. *Held*(1), that the court could allow leading questions in its discretion; (3), that as the objection was put upon that ground, it could not now be insisted that the evidence was not admissible under the indictment.

A question, on the part of the defense, as to what the general demeanor of the deceased was when intoxicated, was excluded. *Held,*that this was proper; what her demeanor was on any other occasion than that of the homicide, or immediately preceding it, was immaterial.

This court has no authority over questions arising on the trial of an indictment, except such as is given by statute; in order to present the point,.relied upon as error, an exception must be taken; without it the court has no power to set aside a verdict because it is unsupported by the evidence.

The court was requested to charge, in effect, that if the prisoner detected the deceased committing adultery, and thereupon instantly struck her, and from the effects of such blow she died, the killing was manslaughter, although the blow was given with intent to kill. *Held,*that the charge was properly refused; that such killing would be murder in the first degree.

Writ of error to the New York Court of Oyer and Terminer, _ to review the conviction of the plaintiff in error of murder in the second degree.

*Benjamin K. Phelps,*for the defendants in error.

*17*Charles W. Brooke,*for the plaintiff in error.

If the provocation, caused by meeting her paramour at the threshold of her bedroom, followed by the immediate discovery of his wife upon the bed in a nude condition, was great, and such as to excite strong indignation and passion, and under such provocation he billed her, he is guilty only of manslaughter, and that in the lowest degree. (Foster, 296; *State*v. *Samuels,*3 Jones’ Law, 74; 1 Hale P. C., 486; Wharton on Hom., 177, 178; 1 Hawk. P. C., chap. 31, § 36; *Wilson*v. *The People,*4 Parker, 609 ; Wharton on Crim. Law, § 987; *People*v. *Johnson,*1 Parker, 291; *Darrey*v. *The People,*10 N. Y., 157, 161, 162.) The indictment charged, as the means of death, an assault made with the hands and feet of the defendant upon the person of the deceased; the judge erred in admitting evidence in relation to the knife. *(Jackson's case,*9 State Trials, 715; *State*v. *Fox,*1 Dutch., 566 ; *State*v. *Smith,*32 Me., 369; *Rex*v. *Grunsell,*7 C. & P., 788, Parke, B.) If a person be convicted of one species of killing, as by poisoning, he cannot be convicted by evidence of á species of death entirely different, as by shooting, starving or strangling. (1 East P. C., chap. 5, § 107, p. 341; 2 Hawk. P. C., chap. 23, § 84; 2 Hale P. C., 185, 186; 2 Inst., 319; *Mackally’s case,*9 Co., 67; *Rex*v. *Martin,*5 C. & P., 128; Wharton on Hom., 261; *R.*v. *Briggs,*1 Mood. C. C., 318; *R.*v. *Thomson,*id., 139; *R.*v. *Kelly,*id., 113; *R.*v. *Bird,*15 Jur., 193.)

Daniels, J.:

The prisoner was convicted for the murder of his wife, by means of an assault upon her person, committed on the 14th of January, 1873. Their relations had previously been of a rather unfriendly nature, and both seemed to indulge in the use of intoxicating liquors. On the night when the homicide was perpetrated, he returned to his house, under the influence of liquor, and beat his wife, leaving her on the floor of one of the rooms occupied by them, where she was found dead in the morning, with severe wounds about her head. The evidence tended to show that those wounds had caused her death. The statement made by the prisoner, after the homicide was discovered, as well as his testimony given upon the trial, tended to show that he discovered his wife, when he first saw her on the evening of the assault, under circumstances indi*18eating that she had been guilty of adultery with a person issu,ing from her bedroom, and immediately assaulted her for that reason. But other evidence was given upon the trial, tending to discredit his statements and evidence, in this as well as other respects.

The theory of the defense was, that she cut her head in falling against the stove in the room, in an effort made by her to rise from the floor. And the evidence given by the prisoner’s mother asserted that to be the case, and that the assault committed by the prisoner was by no means serious in its nature. Upon her cross-examination, she was asked whether she knew Mary McGinn, and whether she did not meet her in the yard the next morning, near the hydrant, and tell her that she had great trouble — that her son had been raising a great disturbance — in answer to an inquiry as to what was the matter. She gave a negative answer to these inquiries. And after the defense was through, Mary McGinn was put upon the stand to contradict her, by proving that she did, at that time and place, make those statements. The first inquiry* made of her was, whether she saw Mrs. Shufflin that morning. This was objected to as incompetent and leading. The objection was overruled, and the prisoner’s counsel excepted; and that exception is now urged as having been well taken. It is quite clear that the objection was not well founded. ■ The statement which it was proposed by the prosecution to prove, was competent by way of impeaching the witness referred to. According to her evidence, the prisoner had done but little if anything more than take his wife from the bedroom, and lay her on the floor of the "next room, and give her one slap on the side of the face. The statement inquired after, if it were made, was inconsistent with that evidence, because it tended to show that serious trouble and disturbance had been caused by the prisoner. And it would be a material contradiction relating to the important fact involved in the case, and it was admissible for the purpose of discrediting her evidence, and for that, it was received without objection on the part of the ■prisoner’s counsel. It could not well be proved without first showing that the witness, by whom it was proposed to make the proof, had seen the witness whom it was expected to contradict, on the occasion when the interview was supposed to have taken place. The *19answer was both necessary and proper for that purpose. And the approved mode of securing the response, was by a direct question embodying what the preceding witness had denied. *

It appeared by the evidence of one of the policemen, that a knife was found on the premises with blood upon it, in the morning, when the prisoner’s wife was found dead, and that he asked the prisoner if he knew anything about how that knife had got such blood on it. He replied that he did not. The knife was produced, and the witness was asked if he saw that knife on the premises. This question was objected to only as leading. The objection was overruled, and the prisoner’s counsel excepted. The- witness answered that he did, and that there was blood upon it. It is now urged in the prisoner’s behalf, that this evidence was improper because the indictment contained no averment that the homicide was in any way produced by means of a knife. But that objection was not made to the evidence offered. The objection was as specific as it could well have been made, and put upon the sole reason that the question was leading. By its form it substantially conceded that the answer would be proper if the question were differently framed, and that virtually surrendered the position now taken. The objection which was in fact taken is not now insisted upon, and it could not be with any degree of propriety, because the court in its discretion could allow leading questions to be propounded to the witness.

A witness, sworn on the prisoner’s behalf, gave evidence tending to show that the deceased was in the habit of becoming intoxicated, and he was then asked what her demeanor was when she was in that condition. This was objected to by the prosecution, and excluded by the court, and the counsel for the prisoner excepted. It could not have been material what her demeanor was, on other occasions than that existing at the time of, or immediately preceding the homicide. Besides that, if her demeanor at other times had been in any respect important, the facts themselves should have been offered, not the conclusion which the witness might have drawn from those transpiring within his knowledge, † The prisoner can derive no benefit from this exception.

*20The homicide was committed while the act of 1862 was in existence. That divided the crime of murder into two degrees: the first, where the homicide was perpetrated with a premeditated design to effect the death of the person killed; the second, where it was caused, without any design to effe.ct death, by a person engaged in the commission of a felony.* The evidence .in no way tended to prove that the homicide was committed in the commission of any felony. The prisoner’s crime, if murder at all, was murder in the first degree. But the court instructed the jury that they had the right under the evidence, if they believed him guilty, to convict him of murder in either of its degrees, or of manslaughter in any degree below the first. There was no exception taken to any part of this direction. And for that reason, even though there was nothing in the case warranting a conviction of murder in the second degree, this court cannot interfere with the determination which was made of it. The only authority which this court has over questions arising on the trial of an indictment, is that given by statute. And that requires an exception, in order to present the point relied upon as error.† Without an exception, this court has no power to set aside the verdict rendered because it may be unsupported by the evidence. ‡ The court charged the jury that the prisoner’s crime was murder in the first degree, if the homicide was caused by him with the intent to take the life of his wife. This was strictly in conformity to the construction placed upon the provision contained in the statute, by which that offense was at that time defined. § The attention of the jury was then called to the provisions of the statute defining manslaughter in the second, third and fourth degrees. And they were left at liberty to convict the prisoner of either, if, under the evidence given in the case, they deemed him guilty of an offense less than murder. What was 'said upon the subject of murder in the first degree and manslaughter, was entirely free from exception, and no objection was made to it. Neither was any exception taken to the statement that the jury had *21the right to convict of murder in the second degree. But at the close of the case, the court was requested to charge that if the prisoner deteéted the deceased committing adultery, and thereupon instantly struck her, and from the effects of such blow she died, the killing could only be manslaughter. There was no evidence in the case, in any manner tending to show that he detected his wife committing adultery, and thereupon instantly struck her. This proposition was properly refused for that reason.

The court was then requested to charge that the law regards adultery as so great a provocation, and makes such allowance for the passion which its discovery excites, that it absolutely reduces the grade of the offense of killing to manslaughter, and that, in the lowest degree. This was also refused, and an exception taken to the refusal. Whether the provocation mentioned, would reduce the killing to the lowest degree of manslaughter, could not have been properly held as a legal proposition in the case; that depended upon the circumstances to be found from the evidence, and determined by the jury.

It was not claimed that the homicide, if produced at all by the prisoner, was either justifiable or excusable. And the court had charged, that, if perpetrated without any design to take life, it was no more than manslaughter. More than that must therefore have been intended and understood by each of these requests, and no more could have been intended or understood by them, unless they included the fact of an intent on the part of the prisoner to take the life of his wife. If they did not include that' circumstance, then the jury had been fully instructed on the subject, by the direction that the offense could be no more than manslaughter, without a design to take life, and the court was not bound to repeat the instruction. By including the intent to take life, both requests were rendered improper, for the statute in that case rendered the act murder. At common law, it may have been different, and undoubtedly was so. But that seems to have been changed by the statutory codification on the subject of homicide in this State, when felonious in any sense, that rendered the crime murder or manslaughter in one of its degrees. Intentional homicide, when felonious, was declared to be murder; but, when unintentional, the absence of intent reduced the offense to manslaughter. Under that *22provision of the statute, if the prisoner caused the death of his wife with what it has denominated a premeditated design to effect it, that was sufficient to constitute the crime of murder, and the circumstances mentioned in the requests, could not then reduce it to either of the degrees of manslaughter. For the purpose of rendering it an offense of that character, the design to take life should not have been an element in the propositions presented to the court. Under the circumstances, they could not be construed as omitting that attribute. The terms in which they were expressed were inconsistent with any such understanding", and if there was no intent to take life, the prisoner already had all the benefit which these propositions claimed for him, by the charge the court had actually given. Neither of the points presented on the prisoner’s behalf, will justify a reversal of the judgment pronounced upon him. The control of the court over the case is limited by the exceptions which were taken upon the trial, as long as no objection has been made either to the indictment or the judgment, and as neither of the exceptions can be sustained, the judgment should be affirmed.

Davis, P. J., concurred.

Judgment affirmed.

*

 Sloan v. N. Y. Central R. R. Co., 45 N. Y., 125.

†

 Messner v. People, 45 N. Y., 1.

*

 Laws of 1862, chap. 197, § 6.

†

 3 R. S. (5th ed.), 1028, § 23.

‡

**People v. Thompson, 41 N. Y., 1; Gaffney v. People, 50 id., 417, 425; Wilke v. People, 53 id., 525.

§

 People v. Clark, 3 Seld., 385; People v. Austin, 1 Parker, 154; Wilson v. People, 4 id., 619.