#### The People of the State of New Yokk, Respondent, *v.*Dominico Ferrara, Appellant.

Murder — evidence examined and held to be properly received and sufficient to sustain verdict convicting defendant — questions of fact for the jury — motion for new trial on ground of newly-discovered evidence— motion properly denied when it appears that defendant’s counsel could have known of such evidénce by the exercise of reasonable diligence.

It is for the jury, and not for the court, to determine controverted questions of fact arising upon conflicting evidence, and where a jury upon such evidence has reached the conclusion that a defendant is guilty of a crime and such conclusion has been reached by the determination of which of two sets of witnesses the jurors will believe, their verdict should not be set aside unless the evidence is such as to indicate some misunderstanding by them of the questions involved or of the importance or bearing of particular facts or that the jury was affected by some bias or prejudice against the defendant.

On examination of the evidence on conviction of defendant for the crime of murder in the first degree, *held,*that there is no such apparent misunderstanding by the jury of any question of law or fact or any bias or prejudice against the defendant as to justify the court in setting aside the verdict as against evidence.

*415At the jail three days after the murder, defendant, in the presence of witnesses, was confronted with the man who was jointly indicted with him but tried separately, who, looking at defendant, said: “ That’s the man that done the cutting.” Defendant made no reply except to shrug his shoulders. The value or effect of this evidence was for the jury, but in view of the facts and circumstances surrounding the incident its admission was not error.

The fact that the defendant was separately tried in no way changes the rule that the acts and statements of co-conspirators are admissible against each other. Evidence, to the effect that the person jointly indicted with defendant sent an employee to notify a third person that he was ready to pay his rent and that such third person said he would send a man for it in the afternoon, was not improper in view of testimony that the persons jointly indicted had planned together to commit the crime.

Upon a motion for a new trial, upon the grounds of newly-discovered evidence, defendant’s counsel asserted that evidence consisting of the testimony of a policeman, as to statements made to him by deceased shortly after the homicide, and of the record of statements made by the deceased when he was admitted to the hospital, was unknown to him until it was brought out by the prosecution on the subsequent trial of the defendant’s accomplice. The fair construction of this evidence is that deceased did not know who hit him, but that the only person that he saw in the room was the other defendant. It appears that statements similar to those so testified to were published in the newspapers and were matters of common knowledge at the time, and that the statements made by the deceased to the hospital physician became a part of the public records of the hospital. *Held,*that the evidence, assuming it to be proper, could have been known to the counsel for defendant if reasonable diligence had been exercised before the trial, and that the motion for a new trial was properly denied.

(Argued October 23, 1910;

decided November 15, 1910.)

Appeal from a judgment of the Supreme Court, rendered January 11, 1910, at an Extraordinary Trial Term for the county of Albany upon a verdict convicting the defendant of the crime of murder in the first degree.

The facts, so far as material, are stated in the opinion.

*Peter A. Delaney*and *Michael D. Peilly*for appellant.

Reversible error was committed in the admission of the testimony of the People’s witnesses in reference to the action and *416statement of Vincenzo Leonardo at the Albany county jail. *(People*v. Koerner, 154 N. Y. 355; *People*v. Kennedy, 164 N. Y. 449; *People*v. *Smith,*172 N. Y. 210; *People*v. *Cascone,*185 N. Y. 317.) Appellant’s motion for a new trial upon the ground of newly-discovered evidence should have been granted, and for error denying the same the judgment appealed from should be reversed. *(Hurd*v. *People,*25 Mich. 415; *Wellar*v. *People,*30 Mich. 22; *Donaldson*v. *Comm.,*95 Penn. St. 21; *State*v. *Metcalf,*17 Mont. 417.)

*Hollín 3. Sanford, District Attorney,*and *Harold D. Alexa/nder*for respondent.

Chase, J.

On Saturday, October 2, 1909, George E. Phelps received six wounds in his head and neck, from the effects of which he died October 6, 1909. The wounds, were not self-inflicted, nor were they the result of an accident. His death was the result of a homicidal act. It appears without contradiction or dispute that the person or persons who inflicted the wounds deliberately designed to effect his death.

Vincenzo Leonardo and this defendant, Dominico Ferrara, were jointly indicted for the crime and charged with murder in the first degree. Both pleaded not guilty, and each demanded a separate trial. The jury found the defendant guilty, and it is from the judgment of conviction that this appeal is taken.

The homicide occurred in a building at the southwest corner of Broadway and Madison avenue in the city of Albany. Vincenzo Leonardo, Senior, father of the one jointly indicted with the defendant, was the tenant of the building, and the floors above the first floor were used for cheap lodgings. The first floor was occupied in part as a saloon. The barroom was in the northeast corner of the building, and to it there was an entrance from Broadway and also from Madison avenue. Adjoining the barroom on the west was a sitting room, and to such room there was an entrance from the barroom and also through a small room used as a kitchen, adjoining *417the sitting room from Madison avenue. Immediately south of the barroom and the sitting room was a hall, to which was an entrance from Broadway. At the left of the entrance was an office partially partitioned from the remaining part of the hall. Back of the office was an entrance from the hall to the barroom, and opposite the entrance to the barroom, and south of it, was an entrance to a room which is south of the hall, and which is called a storeroom. In the hall, immediately west of the doors leading therefrom to the barroom and storeroom respectively, was a stairway on the south side of the hall leading to the second floor and the lodgings, and a narrow hall leading past the stairway to another stairway, and a rear entrance, which was reached by an alley leading from a street west of the building, which street is parallel with Broadway. The storeroom had formerly been used as a poolroom, but at the time of the homicide it was partially filled with furniture, boxes, rolls of carpet and other things, and among the other things there was at the fight of the entrance from the hall a wagon, and in the northwest corner of the room, and west of the wagon, was a pile of coal. Immediately to the left of the door as one entered from the hall, and behind such door as it was opened, was a desk about two feet wide and three feet long. Leading from a doorway at the west end of the storeroom and near the south side of it was another hall, from which was a door to the alley mentioned, and further to the west and opening from such hall was a rear room, extending west beyond the other part of the building and to the street referred to as paralleling Broadway. From the storeroom double doors lead into Broadway, but at the time of the homicide one of the doors was closed and fastened and the other could not be opened from the outside, because the knob with which to turn the bolt fastening it had been broken off. It could be opened from the inside.

A short time before the homicide Leonardo, Junior (hereinafter referred to as Leonardo), obtained a saloon license for the rooms so used as a saloon. The defendant resided with *418his brother at the corner of Broadway and Herkimer streets in said city. The place where he resided is two short blocks south of the Leonardo building. The brothers occupied a three-story building also used as a cheap lodging house, except that a portion of the first fioor was occupied by them as a fruit store and another portion thereof as a kitchen and living room. The rent of the Leonardo building was payable on the first of each month. It was not paid on Friday, October 1. The price of lodgings in the Ferrara building was ten cents. The defendant’s brother divided the amount received with the defendant from time to time. The brother testified that if the defendant had any money it was very little.

On Saturday morning Leonardo'told his bartender to tell a man whom they saw on Broadway to send some one to collect his rent. He told the man as directed. The man replied that he would send some one in the afternoon. This was communicated to Leonardo. Phelps went to Leonardo’s saloon to collect the rent before 2.30 p. m. Saturday, October 2. A few minutes thereafter, and, as nearly as can be told, at 2.30 p. m., he was seen to come from said storeroom, through the hall and barroom, and pass into the street. He was covered with blood, and blood was streaming from one of his temples. Soon thereafter he was taken to the hospital, where he died a few days later. The autopsy disclosed the wounds mentioned, which the surgeon described as “stab” and “ knife ” wounds. Two of the wounds were more severe than the others, one of which was back of the right shoulder, extending to and against the spinal column; the other was in the right temple and it was about one inch, or an inch and a quarter in length and penetrated the skull and also penetrated and lacerated the brain. There was a black and blue spot covering the left eye and the region about the eye, and to a lesser extent the right lower eyelid.

The theory of the prosecution is, that Leonardo and the defendant were in need of money, and that at some time prior to the commission of the crime they planned to take the life of some American in the locality where they lived, for the *419purpose of obtaining money, and subsequently, with that end in view, word was sent by Leonardo to the landlord of the premises occupied by him and his father to send some one there for his rent; that when it was known that he would be there Saturday afternoon, the defendant in some way was made aware of the arrangement; that Phelps was sent for the rent and was taken into the unused storeroom where Leonardo and the defendant (who must have preceded Phelps into the room and temporarily concealed himself therein) made the assault upon him that resulted in his death.

The defense consists of an unqualified denial. No one was produced on the trial who testified to seeing the assault. The only direct evidence connecting the defendant with the assault was given by one Bernabie, a detective, to whom, he testifies, fhe defendant disclosed to some extent his connection with the crime.

Bernabie is an Austrian who speaks several languages, including Italian, which he speaks indifferently. He has been in this country fourteen years, and is an American citizen. For six years prior to the trial he had been employed by á private detective corporation, and actually engaged during most of that time in behalf of the New York Central *&*Hudson River Railroad Company. He testified that on December 2, while working for said corporation in behalf of the city of New York, he was ordered by the president of the corporation to go at once to Albany; that he did so that night, and arrived in Albany in the morning and went to the office of the New York Central police department; that he there saw the president of the detective corporation and talked with him, and was told what he was there for. He testified among other things that he was hired to go to jail and get evidence in this case against Dominico Ferrara; that he was not told the name of Phelps or of any other person at all, and that he was not told that a man had been stabbed or killed in Broadway, but that he was told that two Italians were locked up for murder. Soon thereafter he was taken by an officer as a common prisoner and subsequently locked in the county jail, where lie *420remained for nineteen days. He became acquainted with the defendant and was asked by him what he was in jail for, and he told him that he came down from Troy that morning and while he was getting something to eat he was arrested and searched, and that the officer found a revolver on him. He testified that the defendant and other prisoners said that he must be held on suspicion of a Green Island murder. He testified that they talked every day, but nothing was said about tliis case for four or five days. He testified that the defendant said in substance that Leonardo got a pick from his brother-in-law about a month before the crime and dug a hole where the man murdered was supposed to be put; that subsequently and on the same day Leonardo’s lawyer came to talk with him and Leonardo was taken outside of the hall at the jail and defendant said to him (Bernabic), “ Look over here, Mike; here is Leonardo and he swear he say this is the man. He is a *‘*squealer ’ he says,” and he say, “ If I ever get out of this trouble any time I won’t have nothing to do with these Sicilians any more.” I say, “Why?” “Well,” lie say, “the' Sicilians are no good ; they are squealers; if they do anything wrong like this and if there is anybody else with him in company they squeal on everybody,” and he says, “ A Calabrian is not that way; if they do any thing like that, one man what get caught,” he says, “ he puts the whole blame on himself and he won’t tell on the rest of the bunch at all.”

That on another day the defendant talked with him about his (witness) case, and the defendant asked him if he belonged to any organization in New York that would help him and said that he belonged to an organization ; that they used the name of “ Famel Murtabano; ” that it was what the people outside called “black hand,” and the witness told the defendant that he belonged to an organization in New York and that hebelonged to a bad bunch of fellers, too,” and the conversation was continued as to the manner of initiation into the societies and how they could recognize one another, the details of which are unimportant at this time. The witness testified that he wrote a letter for the defendant to a *421brother in Bocliester and. the defendant put on other sheets of paper certain letters or writings which he said could be given to the leader of his organization. The witness produced the papers, but they have not been translated and are of no ascertainable meaning. Later the witness testified that the defendant told him more in detail about the crime for which he is indicted. Among other things the witness testified: “ He say that two months ahead when this crime was committed that Vincenzo Leonardo told to Dominic Ferrara that they were going to kill some American who got a lot of money, but Dominic say at that time, ‘ I don’t know who was this American,’ and two days before the crime was committed he say, ‘ I meet Leonardo in the doorway of his saloon, which was on the corner of Broadway, and Leonardo told me that next day we are going to do this job, and he showed me his knife which he was carrying with him all the time. He say this knife was what lie call a poinard.’ I ask Dominic, ‘ What do you mean by that, poinard ? I never see such a knife before; I don’t know what kind of looking knife is it.’ He says, ‘It is a knife with a point sharp both sides.’ Then I say, ‘ The knife must be dangerous to carry like you say that Leonardo was carrying that knife with him all the time.’ ‘ Well,’ he says, ‘ this kind of knife they have some kind of cover to put the blade inside — some kind of box or something or leather, made of leather. It is not dangerous at all; he always carry it under his shirt in here (indicating). When he done this,’ he says, ‘ it was on Saturday around two o’clock in the afternoon.’ He says, ‘ When this man come in there in the saloon to collect his rent Leonardo told to him, ‘ Gro in the next room outside of the bar.’ So he did. He say, ‘ He went up there and sat down at the table so Leonardo,’ he says, ‘ come up there and he started in to count his money.’ He says, ‘He have about $120 in a handkerchief, and I stood over behind, he says, and hit this man with the old Leonardo’s stick.’ Then I ask Dominic I say, ‘ What do you mean by that, old Leonardo’s stick?’ ‘Well,’ he says, ‘ Leonardo’s father *422is an old man ; he is a lame feller; he can’t walk without a stick, so this was one of his sticks what he used when he go out,’ and he says, 61 struck this man over his head and the stick got broke, and this man started in to fight with us, and I got scared then,’ he say, *‘*and I ran axvay, and this time Leonardo pulled out his knife and he stabbed this man, and I left him over there and run away.’ ”

The witness further testified that defendant told him that after the homicide he went with his brother to pay their rent and then came back and saw Leonardo taken away by the officers, and he further testified: *“I*never was afraid of anything because Leonardo supposed to be not a squealer and I wasn’t afraid anyway because,” he says, *“*I never had no blood on me only where I have blood on my right hand and the handkerchief, and Leonardo’s clothes what he have on,” he says, “ was all covered with blood.” He says, “ I stood three days after this crime was committed in Albany; if I should know he was going to squeal on me I have plenty of time to go away,” but he says, “ I was always thinking that he won’t squeal, the same as he is not supposed to squeal. He is supposed to die and get whatever they give to him but not squeal. It was three day,” he says, “ after this crime was committed, when they locked me up. But,” he says, “I am more afraid of some woman,” of which he never mentioned any name to me, that she might do more harm to him in this case than anybody else. He says, “ I am not afraid much of Leonardo, because,” he says, *“*I think that Leonardo’s testimony against me won’t be any good at all.”

The derby hat which Phelps wore when he went to the saloon was found after the homicide a few feet back of the small table, with an indentation in it such as may have been made by a blow from a walking stick, and in the room that we have called the rear room it was found that the floor had been taken up and a hole about two feet wide, five or six feet long and four feet deep had been dug, and it remained open. The dirt had been piled upon the floor adjoining the hole. The defendant after the homicide on Saturday did go with *423his brother to their landlord, and subsequently they went up Broadway to a point near Madison avenue.

One of the women at that time living in the Ferrara house testified that on Saturday the defendant went out of the house about eleven o’clock and returned about one o’clock. She says that he changed his clothes at that time from a gray suit that he was wearing to a brown suit, and afterwards went up Broadway towards Madison avenue. We quote from her further testimony: “ He went up and he dilly-dallied around the corner; he went up to Broadway and Madison avenue and dodged back and forth behind a tree and after that he had a talk with the boys and went into the saloon on the corner of Madison Avenue and Broadway.” She testified that she next saw him at half-past two as near as she can remember near Herkimer street and that he came in the house and walked over to the sink and turned on the water; that he had a knife, the blade of which was about six inches long and the handle about four inches long; a jack knife that folded; that she noticed that there was blood on it. She further testified, *“*I asked him what made him so nervous, and he said it was all right, kid. And then he walked over to the door and I said, *‘*There is a spot of blood on your shirt.’ And he said, 6 He ver mind, kid. It is all right.’ I saw a spot of blood on the back of his shirt, right between his two shoulders. He didn’t have a coat on at that time. I asked him what was the blood on his shirt for and he said it would be all right; *‘*never mind, kid,’ it would be all right. I saw blood on his face, on the cheek (ind.). After he washed the knife he threw it up on the shelf in the kitchen.” She further testified *“*he washed his face and hands and he washed his face in a handkerchief and he threw it in a box under the counter * * * it was a red handkerchief with red border' and red stripes.” She further testified that he walked up and down the floor and used a blasphemous exclamation ; that he went upstairs and changed his clothes to the gray suit again, and then came down and went up Broadway where the crowd was that had congregated after the *424homicide. She further testified that on the following Monday she went with the defendant to a laundry where he took the shirt on which were the blood spots to have it laundered.

Another woman who lived at the Ferrara house testified that the defendant went out Saturday morning and returned and afterwards went out again. She says that she was standing in the doorway at the Ferrara house and that the defendant came down the street just as the crowd began to gather at the corner and passed her like a shot out of a gun and went into the house, and she testified to his using tire blasphemous expression and that he seemed nervous and excited. She says she did not notice any blood and did not see anything in his hand, but that she was not paying any attention.

The defendant was arrested three days after the murder and taken to the police station, where he was told that Leonardo charged him with stabbing Phelps and he denied it. After he was taken to the jail and in the presence of witnesses, including two officers, he was confronted with Leonardo and Leonardo, looking at him, said: *“*That’s the man that done the cutting.” The defendant made no reply except to shrug his shoulders.

The agent for the owner of the Leonardo building testified that Phelps was in his office about two o’clock Saturday but that he did not know what time he left. He also testified that on Thursday or Friday after the homicide he found a handkerchief in a macaroni box on a shelf on the north side of the Ferrara store. The women who testified to seeing the defendant wash his face with a handkerchief identified the handkerchief found as the one which the defendant then used, and it bears evidence of blood stains.

A young man at the time of the homicide in the employ of Ferrara testified that the defendant showed him a knife made out of a file when he was in the kitchen a few days previous to said Saturday ; that on October 6 he was with the officers when a search was made for the knife, but they did not find it. He also testified that Leonardo opened his saloon Friday night before the homicide; that he was passing the saloon *425that night with the defendant, and at his suggestion they went in ; that Leonardo said to defendant, “ Hello, Dominic,” and gave each of them a drink, and that Leonardo and defendant had a talk by themselves for a few minutes; that on Saturday morning he sat in the park nearly opposite defendant’s store with the defendant, and that defendant left him at probably eleven o’clock and went up Broadway. On October 8 an officer again searched the Ferrara house and found a knife made out of a file in defendant’s brother’s room on a mantel, behind a picture and under a paper. It is not a folding knife. Soon after the homicide officers searched the Leonardo building. In the storeroom they found the floor back of the desk covered with blood; on the floor they also found the hat with a pair of eye glasses in it; some small coins amounting to sixtvthree cents and the broken crystal of a watch. In the northwest corner of the room, on the coal pile beyond the wagon, they found a watch with blood on it — to it was attached a broken chain, and the crystal of the watch was missing. The widow of Phelps identified the watch as one that he wore. One witness testified that between two and three o’clock he went upstairs in the Leonardo house to a sitting room in the northeast corner of the second floor, and in doing so he passed through the barroom and saw Leonardo, his bartender and another man there; that about twelve or fifteen minutes after he heard wrestling and scuffling, and a man called “ Murder,” and a minute or two after he saw the man bleeding in the street.

Leonardo’s bartender testified that he never saw any business done in the storeroom; that lie saw the defendant in the saloon Friday night and that the defendant talked with Leonardo probably twenty minutes; that he, at Leonardo’s request, notified the man that he could send some one for the rent; that he left the saloon on Saturday about two o’clock and did not return until about twenty minutes of four.

A man tliat was passing the saloon saw two men struggling out of the door to the street. One was Phelps and he was covered with blood and the other one was Leonardo and he went back.

*426A car inspector who was riding on a north-bound street car came along about thirty-two minutes after two and went to Phelps’ assistance; at that time no one was with Phelps. He testified as follows : “ I raised him up and saw the wound. *I*asked him what happened to him. He said, ‘ I have been stabbed.’ I asked him, ‘ Where ? ’ He turned — he was facing north, he turned and pointed to the corner on the southwest corner. He said, ‘ In there.’ He again repeated, *‘*Get my hat.’ I said, ‘ Never mind your hat. Come over and sit down.’ The blood was coming freely. I endeavored to stop the flow of blood and get him seated: He almost refused to leave the center of the street until I would get him his hat. Finally I had to force him to that side of the street and as we were getting to the curb he took hold of his coat and he pulled it open and as he pulled it open he put his hand into his pocket (ind.) arid he said, *‘*The receipts, the receipts, the receipts are gone.’ ”

The witness says he went over to- the saloon and found it locked and returned to Phelps; that an officer was questioning him and he heard him say, “ The money is on the table.”

The defendant was sworn as a witness and testified that he had known Leonardo for five months. He further testified that he was at the Ferrara building from one o’clock on Saturday until after the homicide, and in this he was corroborated by his brother. He denied most emphatically that he had admitted to the detective that he had any participation in the crime, and he also denied the testimony of the women sworn in behalf of the prosecution so far as such testimony tended to connect him with the homicide.

Except as stated there is very little conflict in the evidence although counsel for the defendant insists that the testimony of the prosecution is contradictory and unreasonable. He also calls attention to the fact that the alleged broken stick was not found and the defendant testified that the handkerchief found .in the box was used on Monday following the homicide to quench the flowing blood which was then upon the face of a person in the house.

*427The defendant also produced a witness who testified that he went to Leonardo’s for a pail of beer Saturday afternoon; that he went into the barroom, but that when he went in there he saw no one there; that he saw Phelps come out of the hall into the barroom and pass into the street; that he saw Leonardo in the storeroom and his father was behind him; that when he first saw Leonardo he had hold of Phelps and that he was frightened and ran out and across the street.

Another witness for the defendant testified that he worked for Leonardo; that he was in the barroom Saturday afternoon when Phelps came in, and that Leonardo then sent him away on an errand; that he was gone twenty or twenty-five minutes and returned about half-past two, but found no one in the barroom; that Leonardo, Sr., was in the sitting room and he went in there and talked to him but he made no reply; that he then started to go upstairs and met Leonardo standing in the doorway leading to the storeroom; that he said to Leonardo, *“*what was the matter ” and he replied, *“*nothing; ” and that he then returned to the sitting room. He further testified as follows: *“*I wasn’t there half a minute when I heard somebody hollering; I heard them hollering *‘*Oh ’ as if he was hurt. He didn’t holler very loud. He just hollered, *‘*Oh,’ ‘ Oh ’ just as if he were getting hurt or something. The old man jumped up and he said, ‘Fight;’ and he went out in the barroom and I followed him. * * * The first thing I saw after we got into the barroom was this Phelps stagger out with blood all over him. He came from across the hall out of that poolroom. The door between the hall and the barroom was open when he came out. There wasn’t nobody with him only when Phelps staggered in the hallway the old man went past him and went in the poolroom. Vincent Leonardo, Junior, was right back of Phelps. Vince had hold of Phelps in the back, with one hand holding the bottom of the coat, and the other hand about midway up the back. * * * Phelps dragged Leonardo clear over to the Broadway door. Leonardo seen that he was getting away *428from him and he let loose of him, and Mr. Phelps went outside. * * * When Leonardo, Sr., came out of the poolroom he went upstairs. I noted that he had the money in his hand as he went upstairs. I seen a couple of bills across his hand like that (ind.), and then something tied up in a rag. At that time young Vincent Leonardo was in the back part washing the blood off his hands and face.” Leonardo, Senior, was not sworn.

At the close of the evidence on behalf of the prosecution counsel for the defendant said: *“*I now make a formal motion * * * to advise the jury to acquit on the ground that there is not sufficient evidence to warrant the submission of the case to the jury on the part of the prosecution.” The motion was denied and an exception was taken. The denial of the motion was undoubtedly right, as the evidence was such as to require the submission of the case to the jury. At the close of all the evidence no further motion to discharge the defendant was made. There was an apparent acquiescence in the course pursued by the court in leaving the question of fact to be determined by the jury. At the close of the court’s *charge to the jury the*district attorney and the counsel for the defendant each stated that he had no requests to make to the court in regard to the charge, and no exceptions were taken. At the close of the evidence, a brief statement of the material parts of which.we have' mentioned, it was the duty of the court to submit the question of the defendant’s guilt to the jury for their determination, and were it not for the rule in criminal cases (Code of Criminal Procedure, sec. 389) requiring greater certainty of proof than is required in civil cases, it probably would not be contended that the court committed an error in *denying the*defendant’s *motion for a*new trial upon the ground that the verdict was-clearly against the evidence. .

Section 181 of -the Penal Code provides: “Ho person can be convicted of murder or manslaughter unless the death of the person alleged to have been killed and the fact of the killing by the defendant, as alleged, are each established as *429independent facts; the former by direct proof and the latter beyond a reasonable doubt.”

Where a jury upon conflicting evidence has reached the conclusion that a defendant is guilty and such conclusion has been reached upon the determination of which of two sets of witnesses it will believe its verdict should not be set aside unless the evidence is such as to indicate some misunderstanding by the jury of the questions involved or of the importance or bearing of particular facts or that the jury was affected by some bias or prejudice against the defendant.

It is urged that all of the circumstances are improbable and that the verdict shocks one’s sense of justice. It is true that the fact that a crime was committed when considered in connection with the public place in which it occurred — the time of day — the bungling manner in which it was done, and the smallness of the amount of money which the perpetrator or perpetrators could have hoped to get from the victim is almost unbelievable, but that the crime was committed is conclusively established and by every one conceded. The three important witnesses for the prosecution together with the defendant and all the other witnesses were present before the jury when their testimony was given and such testimony was discussed before them at length by competent counsel, alert to show to them every inconsistency and contradiction therein. If the testimony of the three most important witnesses for the prosecution is true, the defendant is guilty beyond a reasonable doubt.

It is for the jury, and not for the court, to determine controverted questions of fact arising upon conflicting evidence. *(People*v. *Place,*157 N. Y. 584; *People v. Cascone,*185 *N.*Y. 317.)

The jury has found the defendant guilty beyond a reasonable doubt and there is no such apparent misunderstanding by them of any question of law or fact or of any bias or prejudice against the defendant that requires or would justify the court in setting aside the verdict as clearly against evidence.

*430There are bat few questions of law involved in this appeal. The defendant’s counsel objected to the testimony that was given of what was said and done when the defendant was confronted with Leonardo at the jail. The defendant had previously been told that Leonardo charged him with having stabbed Phelps and he had then denied it. It does not appear that he had ever been charged by Leonardo personally with having done the stabbing until the occasion at the jail. When Leonardo made the statement “ That’s the man that done the cutting,” he was but a few feet from the defendant and facing him. His shrug of the shoulders may have been his way of expressing that a reply would be useless, or that he was indifferent. It would seem to indicate some knowledge of what was said or being done. The extent to which the defendant understood English had been shown and he was in no way prevented from replying if he desired to do so. The value or effect of this evidence was for the jury, but in view of all the facts and circumstances surrounding the incident it was not error for the court to allow it to be received as evidence by the prosecution.

The testimony about an assault upon the defendant’s brother, about which the defendant complains, was at the close of the evidence stricken from the record on motion of the defendant’s counsel and by the consent of the district attorney.

The evidence to the effect that Leonardo told his bartender to notify a person then on Broadway that he was ready to pay his rent and that such person said he would send a man for it in the afternoon was not improper in view of the testimony of the detective that Leonardo and the defendant had planned together to commit the crime. The fact that the defendant was separately tried in no way changes the rule that the acts and statements of a co-conspirator are admissible against each. (People v. McKane, 80 Hun, 322.)

Soon after the judgment in this case Leonardo was tried upon the same indictment, and upon his trial the People produced Officer Church who had not been sworn upon this trial. *431Glmrcli testified in substance that he talked with Phelps before he was taken away in the ambulance; that Phelps said, “ The only man in the room was the young man that run the place; ” that he also said, *“*I asked him if he stabbed him and he said it must have been him, he was the only one in the room.” It was also shown on the Leonardo trial that Phelps when he entered the hospital was asked certain questions to enable them to fill out the hospital record, and that Phelps made statements that were entered upon such records as follows : “ Patient was counting money in 228 Broadway in a room off the bar; was hit in the head; does not know who hit him; says only one man who was in the room was the young man who runs the place; young man smooth face ; thinks he has no mustache. He (Phelps) pulled a knife out of his neck and dropped it, when next he remembers the young fellow had him by the coat and was trying to drag him by the coat; he says he got out of the place then.”

Counsel for the defendant asserts that the testimony by Church and the record at the hospital were entirely unknown to him at the time of the defendant’s trial. He made a motion for anew trial upon the ground that the testimony mentioned constituted newly-discovered evidence which required that.a new trial should be had. The fair construction of such evidence is that Phelps did not know who hit him,.but that the only person that he saw in the room was Leonardo. Assuming that such evidence could be received on a new trial it was evidence that could have been known to the counsel for the defendant if reasonable diligence had been exercised before the trial. The statement made by Phelps when he entered the hospital became a part of its public records and could have been seen by any one representing the defendant upon request. Officer Church arrived at the corner of Broadway and Madison avenue a few minutes after the homicide. He remained with Phelps until the arrival of the ambulance and went in the ambulance with Phelps to the hospital. It is alleged in the affidavits in opposition to the motion for a new trial that the newspapers of Albany published in great *432detail the facts as they were then ascertained in regard to the homicide and as to what occurred immediately thereafter and that one of such newspapers named Officer Church as one of the persons who was present with Phelps upon the street soon after the homicide. And such affidavits further allege that it was common knowledge in Albany that Phelps had made statements in substance similar to those given in evidence on the Leonardo trial by Officer Church and by the physician in attendance at the hospital. The motion was heard before the justice who presided at the trial and he denied the same. The facts appearing upon such motion do not require a reversal of the order.

The judgment of conviction should be affirmed.

Cullen, Ch. J., Gray, Haight, Vann and Werner, JJ.,concur.

Judgment of conviction affirmed.