Supreme Court. Broome General Term.

November, 1866.

*Parker, Mason, Balcom*and *Boardman,*Justices.

#### Henry Gardiner, Plaintiff in Error *v.*The People, Defendants in Error.

A judgment against a prisoner will not be reversed for a technical error which did not affect the merits of the case to his prejudice; but if any error was committed on the trial which materially affected the case to his prejudice, it is the duty of the court to grant a new trial, though there is no doubt of the prisoner’s guilt upon the evidence in the case.

To an indictment for murder, the defendant pleaded specially in bar to the jurisdiction of the court of Oyer and Terminer to try him, and on demurrer to the plea by the district attorney, judgment was given for "the prosecution, and the defendant was ordered to plead over to the indictment. He afterwards pleaded to a new indictment found for the same offense (a *nolle prosequi*having been entered on the first indictment), “ once in jeopardy,” and claimed that the judgment on the plea to the jurisdiction was a bar to any further, prosecution for the offense. On demurrer to the plea, it was adjudged bad. A decision on a plea to the jurisdiction is not a trial on the merits, and does not place the defendant in jeopardy, within the meaning of that provision of our State and national Constitutions, which protects persons against being twice put in jeopardy for the same offense.

A *nolle prosequi*or *supersedeas*is properly entered on an indictment when a subsequent indictment is presented by the grand jury for the same offense.

Where a special plea in bar is overruled, and the court requires the defend*148ant to plead over to the indictment, and he refuses to do so, the court may direct a plea of not guilty to be entered.

Chapter 210 of the Sessions Laws of 1861, requiring the county clerk to provide.an additional box for the drawing of jurors, in which shall be placed the names of jurors residing in the city or town where courts are appointed by law to he held, is applicable to criminal trials, as well as to the trials of civil suits.

The act of 1861 is neither in conflict with the provision of the Constitution of the United States, which secures the right of persons accused of crime to a trial by an impartial jury of the State and district wherein the crime shall have been committed, nor to the provision of the Constitution of this

' State, which declares that the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever.

The Legislature has power to provide for summoning jurors from any place in the county, as well as from bystanders or from the county at large, to supply a deficiency of jurors at a trial.

On a challenge to the array, when jurors to supply a deficiency are drawn under the statute of 1861, the court will presume, unless the contrary is shown, that the clerk has discharged his duty in putting into the box the names of jurors on the last list,, required by law to be made.

Elmira was a town when the jury list in and for the county of Chemung was made and filed in 1863. In 1864, the city of Elmira was erected from portions of both the towns of Elmira and Southport. *Held,*that on a trial in the court of Oyer and Terminer in the city of Elmira in April, 1866, where, on a deficiency of jurors, it became necessary to draw from the town box, under chapter 210 of the Laws of 1861, the persons returned as jurors for the town of Elmira in July, 1863, were competent to serve as jurors, and that it was no ground for challenging the array, that some . of them did not reside in the city or town of Elmira at the time of the trial.

The jurors so drawn in 1863 for the town of Elmira were competent to serve as jurors in courts held in the city of Elmirat’for three years, and until other lists were returned and filed.

The objection that one of the jurors drawn was not on the jury list of 1863, and that the box of Elmira jurors, from which his name was drawn, was made in 1860, and not after the list of jurors was made and filed in 1863, ought to have been made when the name of the juror was drawn by the clerk from the box, provided by the statute of 1861. It is too late to make such an objection after several jurors have been drawn for the trial.

Nor can such an objection he made available on error, if it appears that after the overruling of the objection on the trial the juror was challenged peremptorily, and that the defendant's counsel was subsequently informed by the court that the peremptory challenge of the juror would not be counted as one of the peremptory challenges allowed him by statute.

Where, during the empanneling of a jury, after a challenge to a juror had been overruled, the prisoner’s counsel was informed by the court that the juror who was challenged should stand aside and not sit, if he desired it, and *149. that the number of the prisoner’s peremptory challenges should not be lessened thereby, and he chose to stand mute, though told by the court that his conduct would be construed to be a consent to the juror's sitting, it was held that an objection to the juror was not available on review.

Where, on the trial, during the empanneling of a jury, it is discovered by the court that the jurors whose names are in the box were those on the list made in 1860, and that the clerk had omitted, in 1863, to take these names from the box and put in the names of the jurors drawn for that town in 1863, it is proper for the clerk, under the direction of the courts, before any other jurors are drawn, to take from the box the names put in it from the list of 1860, and to deposit in it the names of the jurors drawn for that town in 1863.

It is not necessary for the district attorney to verify his answer to a challenge to the array interposed by the defendant.

A challenge to the array will not be sustained, because the list of jurors for the town, whose names are put into the box from which the jurors are to be drawn, was dated the 24th day of July, 1863, instead of the first Monday of that month. ■ The statute is only directory, and a list is valid, though made and filed at a later date than that mentioned in the statute.

Nor will a list of jurors be void because the town clerk was absent when it was signed. The list will be valid without his signature.

A defendant has no right to impugn a list of jurors returned by the proper town officers, and filed in the office of the county clerk. Such list is conclusive upon the defendant as to its regularity.

An objection to the regularity of a panel of jurors cannot.be made available on review, when it appears that on the trial the court, with the consent of.the district attorney, informed the prisoner’s counsel that the three jurors, upon whose right to sit the question of regularity depended, should stand aside and not sit in the case, and three other jurors might be drawn in their places if the prisoner’s counsel desired it, without diminishing the number of.peremptory challenges to which the prisoner was entitled.

On a trial for murder, it is competent for the district attorney to produce in court, and show to the witnesses in the presence of the jury, articles of clothing found on the body of the man alleged to have been murdered, and articles of personal property found near the dead body or on the person of the deceased, and also to produce in court the skull of the deceased.

A physician and surgeon is competent, as an expert, to express an opinion on the point whether the fractures on the skull of the deceased, produced in court, could have been caused by blows from a gun, also shown to the witness in court.

The prisoner’s counsel asked an unprofessional witness the following question : *“*Have you discovered Mr. Gardiner, while he has been in jail, to be a man of very weak mind *1*” *Held,*that it was properly excluded as leading, immaterial, and calling for an opinion which only an expert could give.

Where the admissibility in evidence of a letter written by the defendant to the district attorney, depends upon the question whether it was voluntarily *150written, or whether it was obtained by inducements, it is in the discretion of the court to say which side shall first give evidence ón the question; and as it relates only to the order of evidence, a decision upon it is not the subject of exception. ■

Where the defendant, while in jail awaiting his trial for murder, voluntarily wrote and sent a letter to the district attorney, in which he sought to fix the charge of the murder upon another person, and made oath to the truth . of the letter, with a view of having such person arrested and prosecuted for the crime, the letter was held to be competent evidence on his trial, without reference to the question whether others were concerned with him in the conspiracy to convict such other person, or whether the substance of the letter was suggested by other persons confined in prison with the defendant.

It is not competent on a trial for murder for the defendant to prove that other prisoners broke out of the jail in which he was confined, and tried to induce him to go out, and that he would not do so.

The indictment charged that the name of the person murdered was Amasa Mulock, and the proof showed he was as well known by that name as by the name of Amsey Mulock, which was claimed to be his name. *Held,*that there was no misnomer, and that whether the name was correctly stated in the indictment, was a question for .the court to decide.

Form of a plea of *“*once put in jeopardy ” for the same alleged ofíense—of a demurrer to such plea, and joinder in demurrer—of two challenges to the array—of answer to a challenge to the array—of a record of conviction in a case of murder, and of an allowance of a writ of error with a stay execution of the sentence.

Charge of the court to the jury in a case of murder, explaining the character, and weight and application of different kinds of evidence, the law of murder and manslaughter, and the duties of the jury.

This cause came before this court by writ of error from the Chemung County Oyer and Terminer. The trial took place in April, 1866, before Mr. Justice Balcom, and the justices of the Sessions.

At the trial the counsel for the defendant interposed to the indictment a special plea in bar of “ once in jeopardy.” The plea set forth the proceedings under the indictment at the Chemung Oyer and Terminer, in September, 1865, when a plea was interposed to the jurisdiction of the court, the demurrer thereto and the adjudication thereon, as the same appear in the last case preceding this, as reported in this volume, and then concluded as follows:

“ That this defendant now arraigned is the same Henry *151Gardiner named in and arraigned and tried as aforesaid, by the determination of said issue of law upon the aforesaid indictment.

“And this the said Henry Gardiner is ready to verify. Wherefore defendant says he has been once in jeopardy upon the same indictment as aforesaid, for the same offenses against him charged, upon which the decision of the court has been duly rendered, as hereinbefore stated, and cannot, by the law of the land, be again tried thereon.

his

“HENRY M GARDINER, mark.

“ *Chemung*County, *ss:*

*“*Henry Gardiner, the defendant in the foregoing plea named, being sworn, deposes that all the allegations of fact therein contained are true.

his

“HENRY M GARDINER, mark.

“ Subscribed and sworn before > me, this 6th April, 1866. *)*

“ S. C. Tabes, *Dep. Clerk.”*

The district attorney put in the following demurrer to the plea:

CHEMUNG OYER AND TERMINER.

The People of the State of New York *v.*

Henry Gardiner.

And Erastus F. Babcock, district attorney of Chemung county, who prosecutes for the said people of .the State of New’York, as to the said plea of the said Henry Gar-diner, by him above pleaded, saith, that the same and the matters therein contained, in manner and form as the same are pleaded and set forth to the said indictment, are not sufficient in law to bar or preclude the said people of the State of New York from prosecuting the said indictment against the said Henry Gardiner, and the said people are not bound by law to answer the same, and this the said *152Erastus F. Babcock, who prosecutes as aforesaid, is willing to verify.

Wherefore, for want of a sufficient plea in this behalf, he, the said Erastus F. Babcock, for the said people, prays judgment that the said people may further prosecute him, the said Henry Gardiner, by reason of the premises in the said indictment, to which the said plea is above pleaded, and that the said Henry Gardiner may answer over to the said indictment.

'E. F. BABCOCK, *District Attorney.*

The following joinder in demurrer was then put in by the defendant:

CHEMUNG OYER AND TERMINER.

The People *)*

*v.*>

Henry Gardiner. *\*

And the said Henry Gardiner, being now here as aforesaid, in his proper person, in custody of the sheriff of Chemung county, says that the said plea by him the said Henry Gardiner above pleaded, and the matters therein contained are sufficient in law to bar the said people from further prosecuting the said Henry Gardiner, by reason of the premises in the indictment to which the said plea is above pleaded, and this he is ready to verify.

Wherefore he prays judgment that he may be dismissed this court without delay, &c.

his

HENRY H GARDINER, mark.

The demurrer was sustained by the court, and the plea adjudged insufficient, to which decision the defendant excepted.

That said defendant was then required by the court to plead over to said indictment, and on refusing to plead a plea of not guilty was entered by order of the court.

Upon the 9th day of April, 1866, the district attorney *153moved the indictment for trial, and the following proceedings were had, to wit:

Robert C. Crane, Roswell Goff, Franklin C. Bloomer, William Georgia, Henry Reynolds, Chauncey Taylor and Judah Shriver were empanneled and sworn as jurors in the case, when the panel of petit jurors for said court being exhausted, the court directed the sheriff to draw from the box provided by chapter 210 of the Laws of 1861, the names of thirty-six jurors.

To this direction of the court the prisoner’s counsel objected: 1st. That the statute does not apply to this case; and, 2d. That it is unconstitutional and void.

The objections were overruled and the prisoner excepted.

And thereupon the clerk produced said box and thirty-six names were drawn from the town of Elmira box, by the sheriff, in presence of the court and prisoner, and the court then adjourned to give the sheriff time to summon said thirty-six jurors, and upon the court’s convening at five o’clock, the sheriff returned that he has summoned all the thirty-six jurors whose names were drawn that can be found.

The counsel for the prisoner then interposed a challenge to the array of said thirty-six jurors, which was filed with the clerk, and was in the following words:

CHEMUNG OYER AND TERMINER.

The People *v.*

Henry Gardiner.

And now at this day, to wit: on the 9th April, 1866, come the people, by E. F. Babcock, the district attorney, as well as Henry Gardiner, the prisoner, and the jurors ordered by the court on this day to be drawn, arid pursuant to such order drawn from the jury box of Elmira, came also.

And hereupon the said Henry Gardiner challenges the array of the jurors so drawn from the jury box, for the *154town of Elmira as aforesaid, pursuant to the order of the court, on this day made, because he saith he is entitled by the law of the land to -be tried by a jury drawn from the body of the county, of Chemung, and not alone from the town or city of Elmira, and the said array of jurors have not been lawfully drawn. And because the act of 1861, under which the court made the order for drawing said jurors, does not authorize the drawing of jurors in this way for the trial of this indictment, and if such was the intent thereof, is unconstitutional and void; and because, .since the passage of said law and the return of the list of jurors now in' said Elmira box, and from which said list was drawn, to wit: in April, 1864, the city of Elmira has been erected by the Legislature out of a part of the town of Elmira and a part of the former town of Southport, and the jurors in said box do not include the jurors of that part of the city taken from the town of Southport, and do include the jurors of the town of Elmira, out of the limits of the city of Elmira. And because the list so drawn contains the names of jurors not now residing either in said city or town of Elmira, and they have been summoned and are in attendance as a part of said panel, and this he is ready to verify. •

. Whereupon he prayeth judgment, and that the said panel, to wit, of the jurors so drawn from the Elmira box by order of the court, on the 9th of April aforesaid, may

be quashed.

Ms

HENRY H GARDINER. . mark.

*Chemung*County, *ss:*

Henry Gardiner, defendant above named, being sworn, deposes that the matters stated in the foregoing challenge are true of his own knowledge, except as to those matters stated on information and belief, and as to those matters he believes it to be true.

Ms

HENRY H GARDINER, mark.

*155The district attorney demurred and objected that the challenge was insufficient and void.

The court overruled the challenge and sustained the demurrer, for the reasons:

1st. No such objections were made to the order for drawing the thirty-six jurors constituting the array in question.

2d. The last list of jurors in and for the county of Che-mung was made and returned in 1863, when there was no city of Elmira.

3d. The names of all persons required to be put in another box, by chapter 210 of the Laws of 1861, were duly placed in such box in 1863, according to the provisions of said chapter, when Elmira was a town and not a city, and the names of the said thirty-six jurors have been .duly drawn from said box, and no new list for said box can be made by the clerk until after the new list of jurors for said county shall be made and returned in 1866.

The prisoner’s counsel excepted.

After several jurors had been drawn from said thirty-six, examined, rejected or challenged, and rejected or excused, George W. Hudson, of Elmira, was drawn and sworn.

*The Court:*Have you any conscientious scruples against finding a verdict of guilty because the punishment is death? *A.*I have none.

Examined by Mr. Smith, counsel for the prisoner: I reside in district No. 12, town of Southport. I moved there a year ago last November. I lived in Elmira prior to that time.

This juror was challenged for principal cause, on the ground that he was not in the jury list of 1863, and that the box of Elmira jurors, from which his name was drawn, was made in 1861, and not after the new list of jurors was made and filed in 1863.

The district attorney demurred. These facts the defense *156offered to prove, that George W. Hudson did not belong to the jury list of 1863.

The district attorney objected to the right to make the issue, or to make that proof.

Challenge overruled, on the ground that the question had been already adjudicated, and also upon the further ground that a challenge cannot be made in this way or manner at this stage of the case.

The court said that the presumption was that the clerk had discharged his duty in reference to the box provided, pursuant to the law of 1861.

The prisoner’s counsel excepted to the ruling of the court.

This juror was here "challenged peremptorily by the defendant’s counsel and rejected.

Elijah B. Georgia, of Elmira, was drawn from said thirty-jurors, and sworn as a juror in the case without objection.

Ebenezer S. Lindsay, drawn from said thirty-six and sworn, said he resided in Southport. This juror was challenged by the prisoner’s counsel for principal cause, on the same grounds as the challenge to George W. Hudson,

*The Court:*Where do you reside ? *A.*Southport.

This juror was one of the thirty-six drawn from the Elmira box, as was George W, Hudson.

The challenge was overruled on the same ground that the challenge to George W. Hudson was overruled. The prisoner’s counsel excepted. Sworn as a juror.

John S. Jackson was drawn from said thirty-six, and sworn as a juror without objection.

The panel of thirty-six jurors was here exhausted, and the court took a recess.

On the re-assembling of the court, *8. C.*Taber, deputy clerk, was sworn by the court:

*Q.*Have you examined, during the. recess, to .see whether the box for the town of Elmira, from which the thirty-six names have been drawn this day, were taken from the list *157of jurors returned in 1863, or from the list of jurors returned in the year 1860? *A.*I have examined them.

*Q.*From what list were the names which were in the box this day taken ? *A.*From the list for the town of Elmira of the year 1860, and not from the list returned in 1863.

*Q.*In what year was the last list of jurors returned to the clerk’s office.? *A.*The last list of petit jurors was in 1863.

*Q.*You have a list returned for the town of Elmira in 1863 ? *A.*Yes, sir.

*Q.*And that' is the last list returned for the town or city of Elmira? • *A.*Yes, sir. No list of jurors for the city of Elmira has been returned."

The court directed that the three jurors drawn, Elijah B. Georgia, Ebenezer S. Lindsay and John S. Jackson, from said thirty-six jurors, may stand aside from the panel and not sit in the case if the prisoner desires it, and he will have all the peremptory challenges that he would have had if said thirty-six jurors had not been drawn, on the ground that they have been irregularly empanneled.

*By Defendant’s Counsel:*These three jurors have been drawn, admitted and sworn over our exception, and upon this question suggested by the court, the prisoner stands mute.

.The court then stated they would regard these three jurors as sitting upon the panel by the consent of the prisoner, and ruled that the prisoner would yet have all the peremptory challenges allowed him to which he was entitled at the time Judah Schriver was sworn as a juror, and before any of the thirty-six jurors were specially drawn. The district attorney assented to the above proposition of the court.

The prisoner’s counsel expressly,disclaimed any assent to the jurors sitting by consent of the prisoner.

The court directed that the clerk take out all the names *158remaining in the box for the town of Elmira of the list of 1860, and put in those on the list of 1863 for said town.

*8. O. Taber,*recalled by the court: *Q.*Have you the list of the jurors of the town of Elmira for the year 1863? *A.*Yes, sir.

*Defendant's Counsel:*How long have you been in the clerk’s office ? *A.*Since January 1, 1865.

*The Court:*You have compared this list, and ascertained how the lists are since the court adjourned, at the request of the court ? *A.*-I have.

*Q.*Have you the full list of the jurors for the town of Elmira, as returned by the list of 1863 ? *A.*T have.

*Q.*Have you placed all the names of them in the box ? *A.*I have.

*Q.*Have you taken out those which were previously in for 1860 ? *A.*Yes, sir.

*Q.*So there are none in the box except those taken from the list of 1863 for the town of Elmira ? *A.*There are none others in now.

*Q.*Is there any means in the clerk’s office by which you can tell in what part of the town of Elmira, or in what part of the city of Elmira, a juror resides ? *A.*Ho, sir; they are simply “Elmira.”

The sheriff was then directed by the court to draw, in the presence of the court and prisoner, from the box containing-the names on the list of jurors returned for the town of Elmira in 1863, the names of forty jurors.

The court inquired if the prisoner’s counsel had any objection to .the three jurors drawn and sworn, to wit: •Elijah B. Georgia, Ebenezer S. Lindsay and John S. Jackson, remaining as jurors in the case.

The prisoner’s counsel made no other answer than before. The court then said they would regard the prisoner as assenting to their sitting in the case.

The prisoner’s counsel protested.

The prisoner’s counsel objected to the direction to draw *159from the box of the Elmira jurors upon the ground that the act of the clerk in preparing the box, was unauthorized and void, and the act of 1861, under which the direction of the court is given, did not apply to a capital case, and that it is unconstitutional and void; also that the jurors whose names are now in the box were not resident within the limits of the present city of Elmira.

The objections are overruled by the court,, and the prisoner excepted. The sheriff , was directed to draw forty names from the box in the presence of the court and prissoner, and the sheriff drew forty names from said box in the presence of the court and prisoner, among which were Orrin H. Wheeler and James Cooper.

Court adjourned, in order to give the sheriff time to summon the forty jurors whose names were drawn. .

Upon the coming in of the court, the sheriff returned that he had summoned all of the forty jurors whose names were drawn that could be found. The defendant’s counsel interposed a challenge to this array of jurors, in the words following:

The defense claim that it is not a denial of facts, and ■should be made more specific.

*The Court:*My opinion is that the denial is sufficient. Exceptions taken by defendant.

*8. C. Taber,*sworn, as to the matters alleged in the challenge and denial: .

*Mr. Smith:*You are the deputy clerk of Chemung county? *A.*Yes, sir.

*Q.*You have been since what time? *A.*Since the first of January, 1865.

*Q.*Have you had sole charge of the clerk’s office since that time? *A.*Yes, sir.

*Q.*The clerk himself has not attended to the duties of clerk? *A.*He has not.

*Q.*Prior to that time you had resided in the village of *160Elmira? *A.*I moved from Horseheads about that time. I had previously lived in Elmira.

*Q.*You once conducted a newspaper in the city of Elmira—will you present the jury list for the town of Elmira for the year 1863? *A.*I have it with me.

The list is offered in evidence. Received, and is hereto annexed, marked “ I.”

*The Court:*There was no list of petit jurors ever made for the city of Elmira? *A. No,*sir.

*Mr. Smith:*You know James Carpenter, do you? *A.*No; I don’t know that I do; it seems to me that I do. [Objected to.] I don’t know whether he lives out of the city of Elmira.

*Q.*Refer to the name on the jury list—the residence of the person is oh the jury list, is it not? *A.*It is.

*Q.*You know, Mr. Taber, that a designation of the list as “ down the river,” was a designation out of the city? *A.*No, sir.

*Q.*You knew the designation of “river road” was a designation that he resided out of the city? *A.*I do not know it.

*Q.*Do you mean to swear that you knew the “ river road ” meant a street in the city of Elmira? *A.*I don’t know what it means; there is a road outside the limits- of the city called in common parlance the “ river road.” I so understand it.

CHEMUNG OYER AND TERMINER.

Th,e People *v.*

Henry Gardiner.

And now at this day, to wit: on the 10th day of April, 1866, come the people by E. F. Babcock, the district attorney, as well as Henry Gardiner, the prisoner, and the jurors whose names were placed in the Elmira box on the evening of 9th April, by order of the court, and from which box the court thereupon ordered forty additional *161jurors to be drawn, and who were drawn from said box pursuant to said order, come also.

And hereupon the said Henry Gardiner challenges the array of the jurors so drawn from the Elmira box, as aforesaid, pursuant to the order aforesaid, because he saith he is entitled by the law of the land to be tried by a jury drawn from the body of the county of Chemung, and not alone from the town or city of Elmira, and the said array of jurors have not been lawfully drawn. And because the act of 1861, under which the court made the order for drawing said jurors, does not authorize the drawing of jurors in this way, for the trial of this indictment, and if such was the intent thereof, is unconstitutional and void. And because, since the passage of said law and the return of said list of jurors, now in said Elmira box, and from which said list was drawn, to wit: in April, 1864, the city of Elmira, where courts were and are held for the county of Chemung, has been erected by act of the Legislature out of a part of the town of Elmira and a part of the former town of Southport, and the jurors in said box do not include the jurors in that part of the city taken from the town of Southport, and do include the jurors of the town of Elmira, out of the present limits of the city of Elmira, to the knowledge of the clerk of Chemung county, when, pursuant tó the order of the court, he put the names in the said Elmira box as aforesaid.

And the clerk had knowledge, and the Elmira jury list of 1863, on file in his office, from which he took the names to put in said box, showed, that some of the jurors so put in said box, and some of whom have been drawn with the forty jurors so ordered by the court to be drawn, did not, at the time they were so filed in said box, and were so drawn, reside within the limits of the city of Elmira, to wit: The clerk had knowledge, and the said Elmira jury list showed, that the following jurors so drawn with said forty, did not reside in the city of Elmira, to wit: *162James Carpenter, James Cooper, Isaac Terwilliger, Kelsey , Tubbs, George McCann, James C. Brooks, Benjamin Carpenter, Lyman Lowman, Darius Davis, Simeon T. Whittemore, Robert M. Warner and Alfred Searles, which said jurors, last aforesaid, as the defendant is informed and believes, have been summoned and are in attendance, pursuant to said summons.

And because some of said jurors, whose names were put in said box by said clerk, on the 9th April, to the knowledge of said clerk, did not on said 9th April reside in said county of Chemung, to wit: Lewis Eaton, John Brooks, Jesse Foster, A. B. Pierce and Sprague Coulson, wiiose name was put in said box, did not at the time reside in the town of Elmira, to the knowlege of said clerk.

And because the said jury list of the town of Elmira, from which said names were put in said box and drawn, was not made out by the town authorities on the first Monday of July, as by law required, and, not until the 24th day of July, nor within ten days thereafter, even the original or duplicate lists thereof, filed with the county or town clerk, as by law required.

And when said jury list was made, the town clerk of the town of Elmira was not present, and took no part therein, and was not notified of the meeting of said town officers for the purpose of preparing said list. '

And because the said jury box of the town of Elmira, prior to putting therein the names on said jury list for 1863, and on the 9th April, 1866, contained the names of the jurors for the town of Elmira drawn in 1860, which, were removed from said box, by the clerk without authority, after the drawing of this jury commenced. And • because, before changing the names in said box, and since the drawing of this jury commenced,' the court had ruled and decided that additional jurors would be drawn from said box, to which ruling the prisoner had excepted, and á list of thirty-six jurors had been drawn therefrom and *163summoned, and three jurors of them had heen drawn and sworn in this cause, and when the clerk was ordered by the court to empty said box of the names in the jury list of 1860, and put therein the names of the jury list of 1863, the said special panel of thirty-six jurors had not been exhausted in the formation of this jury, and one of them drawn and summoned with the said thirty-six, to wit: Freeman D. Lebar, was present in court, attending upon such summons as a juror in this cause, and was set aside by order of the court.

And because the jurors so drawn of the forty jurors aforesaid, and not now residing in the city of Elmira, have been summoned, and are in attendance as a part of said court.

And because the list of Southport jurors for 1863, on file in the Chemung county clerk’s office, contains the names of many jurors on the 9th of April residing, to the knowledge of the clerk, in the Fifth ward of the city of Elmira, none of whose names were put by said clerk into the said jury box on the 9th April aforesaid.

And this the said Henry Gardiner is ready to verify.

Wherefore, he prays judgment and that the said panel, tq wit: of the forty jurors so last drawn as aforesaid from the Elmira box, by order of the court, on the 9th April,

1866, may be quashed.

his

HENRY M GARDINER, mark.

*Chemung*County, *ss:*Henry Gardiner, the defendant above named, being sworn, deposes that the matters stated in the foregoing challenge are true to deponent’s knowledge. except as to the matters stated on his information and belief, and as to these matters, he believes it to be

true.

his

HENRY M GARDINER, mark.

Subscribed and sworn before me ?

this 10th day of April, 1866. j

¡3. C. Tabee, *Vep. Clerk.*

*164The district attorney put in the following answer to the special plea and challenge:

The People *v.*

Henry Gardiner.

And Erastus E. Babcock, district attorney for the people, answering the special plea and challenge to the array of of forty additional jurors, drawn pursuant to the order of the court of Oyer and Terminer, on the 9th day April, 1866, says that the same are legally drawn in accordance with the act of the Legislature of the State of New York, passed April 13, 1861, amending the Revised Statutes in relation to trials by jury.

And the said prosecutor denies the allegation of said special plea and challenge, that the clerk of said county put into said box any other jurors than such as were duly returned, according to law, in the year 1863.

And denies that the additional jurors, consisting of thirty-six, were not exhausted previous to the issuing the order for forty additional jurors, referred to in said special challenge; and said prosecutor denies all allegations of said plea, relative to the manner of drawing said thirty-six additional jurors, and said forty additional jurors, and denies the allegations as to the actual residence of said jurors, and that the clerk of said court knew their residences, and says that said array is, in all respects, just, correct and impartial.

E. F. BABCOCK, *District Attorney.*

The counsel for defendant objected that the answer to the plea and challenge should be verified. The court overruled the objection, and the defendant excepted.

Witnesses were then examined on the facts involved in the plea and challenge to the array last presented, at the close of which, the court decided the challenge to the array to be insufficient, and overruled it, and the defendant’s counsel excepted.

*165Many exceptions were taken by the defendant throughout the entire proceedings to obtain a jury, as well as on the examination of witnesses on the merits; but the questions raised and decided sufficiently appear in the opinion of the court.

At the close of the testimony, the prisoner’s counsel handed to the court certain requests to charge the jury, in writing, which requests the presiding judge examined, while the district attorney was summing up for the people, and the judge noted his views under each request, and then handed the same to the reporter. Such requests and views of the judge, noted under the same, are as follows:

1st. The finding the body of the deceased, with marks of violence upon it, is not alone sufficient evidence that death resulted from such violence, to found a verdict of guilty upon.

*The Court:*Correct.

2d. If the jury should find the money and watches in' Gardiner’s possession to have been.Mulock’s, that is not of itself sufficient evidence that defendant committed the homicide.

*The Court:*Correct.

3d. If the defendant robbed the body of Mulock, as the jury believe, there is no presumption arising.from *that fact*that the *intent*to rob was formed before the death of Mulock.

*The Court:*Correct.

4th. The leaving of his shoes at Davis’ house, the morning when the defendant and Mulock left the house together, is a strong circumstance to show that at that time he had no intent of taking the life of Mulock.

*The Court:*Whether this is correct, is a question for the jTM*y-

5th. The presumption of law, in favor of the deceased, when some degree of homicide is proved by the evidence, *166on which the jury may find either degree, is, that the defendant is not guilty of murder, but of some lesser degree of homicide.

*The Oourt:*Correct. .

6th.' If the jury find defendant guilty, they may, upon this proof, find defendant guilty of one of the degrees of manslaughter.

*The Oourt:*It is for the jury to determine this question.

7th. Or may find him guilty of murder in the second degree.

*The Oourt:*See charge, as made.

■ 8th. If the jury find this was Mulock’s property in Gar-diner’s possession, the presumption of law arising thereupon is overbalanced by defendant’s proof of good character, if his character is shown good.

*The Oourt:*This is a question for the jury under the charge.

9th. If the jury believe from the evidence that the confessions of defendant in evidence were not voluntary, but were made with the hppe of bettering his condition, they should lay them out of consideration in making up their verdict.

Refused, except as charged upon this point.

The court charged the jury as follows:

*Gentlemen of the Jury:*The indictment in this case charges the prisoner with the murder of Amasa Mulock, at the town of Elmira, on the 29th day of December, 1864. It is not necessary that the district attorney should prove that Mulock was murdered on the precise day stated in the indictment. If he was murdered on any day in December, 1864, or prior to the time his body was found, on the 19th of March, 1865, there is no material variance between the proof and the indictment. The next proposition to which I shall refer is one of law. It is as follows: The court rule and decide that there is no. material variance between the proof and the indictment, and that the deceased *167person named in the indictment was as well known by the name of Amasa Mulock as by the name of Amsey Mulock. The court decide this question, and that the jury have1 nothing to do with it, and the court holds, as matter of law, that the evidence shows that Amasa Mulock and Amsey Mulock were one and the same person. The first question for the jury to determine is, whether Mulock died a natural death, or was murdered or killed by some person. The last time that Mulock was seen alive was on the morning of the 29th of December, 1864,» so far as there is any' evidence in the case. So far as the evidence shows, he was not seen again by any witness until his body was found in the woods, as described by the witness called on the 19th day of March, 1865.- When seen in the morning of the 29th day of December, he was apparently in good health, for aught that appears by the evidence. When his body was found on the 19th day of March, 1865, no marks of violence or of disease, so far as the evidence shows, were discovered upon it; but according to the testimony of Dr. Wey, which is corroborated by other witnesses in the case, there were marks of violence upon his head— several of them. His skull was broken on the front part, and in one two other places. Now, gentlemen, if blows of violence, which fractured this skull, were inflicted before his death, I apprehend you will have but very little difficulty in coming to the conclusion that he was killed by some person, and that he did not die a natural death. In coming to a conclusion upon this question, it is proper for you to take into consideration the fact of his apparent good health on the morning of the 29th day of December, 1864, the position in which the body lay, the fact.that there was a broken gun lying near the body when found, the appearance of the gun, and the wounds which have been described by Dr. Wey, and mentioned by some of the other witnesses. Now, gentlemen, if you come to the conclusion that he did not die a natural death, but was killed by some person, *168the next question for you to determine will be, whether the prisoner caused the death of Mulock. It is hardly proper that I should go over the evidence in the case, repeat it to you from recollection, as it has been given on the part of the people, or the evidence which has been given on the part of the prisoner. I will say to you, gentlemen, that it is incumbent upon the district attorney, in the first place, to show to your satisfaction that the prisoner was where he could have killed Mulock; to show that he had a motive for doing the deed, and to give such other evidence in the case as satisfies you, beyond a reasonable doubt, that he is the person who caused Mulock’s death. I have been requested by the counsel for the prisoner to say to you, if you find the money and watches in the prisoner’s possession were Mulock’s, that is not, of itself, sufficient evidence that the prisoner committed the homicide, and that the presumption arising from the possession of the property and money by the prisoner is overbalanced by the proof of the good character of the prisoner, blow, gentlemen, if there were no other facts or circumstances in the case, except that the prisoner was shown to be in possession of money that belonged to Mulock, or of .the watches that were his property, and he has proved his character was good, I should say to you that the evidence would be insufficient -to justify you in coming to the conclusion that he murdered Mulock.

It is not claimed on the part of the district attorney that the bare fact that the prisoner had possession of the watches and of money that belonged to Mulock is sufficient to justify a conviction; but it is claimed that these facts, with other facts and circumstances which have been proved on the part of the people, are sufficient to satisfy you that the prisoner is actually guilty of the crime charged upon him. It is not necessary that I should call your attention in detail to the facts and circumstances which have been testified to here. They have been sufficiently alluded to by the prosecuting *169attorney, and in the summing up of the case, and by the counsel for the prisoner in summing up his side; and what facts and circumstances have been claimed to show the innocence of the prisoner, or to weaken the evidence on the part of the people, have been sufficiently commented on by the counsel for the prisoner. These facts are undoubtedly in your recollection. *If*you should find from the evidence that Mulock was killed, and that the prisoner caused his death, it is necessary that you should consider other questions in the case, to which I shall call your attention. And allow me to remark here that I shall call your attention to several legal propositions, applicable to cases of this description. Not because I suppose all of them, or many of them, are applicable to this case, but for the reason that it is the duty of the court to fully explain the law to the jury that is applicable to cases of this description, and leave it to the jury to determine whether, the prisoner is guilty of the crime charged upon him in the indictment, or of any offenses of which the jury may find him guilty under the indictment. *If*the prisoner caused Mulock’s death, you must determine whether he committed a crime in causing such death, and if so, what crime. The definition of murder which has been furnished by the Legislature is as follows: The killing of a human being without the authority of law, by poisoning, shooting, stabbing, or any other means, or in any other manner, is either murder in the first degree, murder in the second degree, manslaughter, or excusable or justifiable homicide, according to the facts and circumstances of each case.

Now, gentlemen, yon will perceive by this statute, that there is justifiable killing of one man by another. If the prisoner killed Mulock, was such killing justifiable? The prisoner had a right to Mil Mulock if it was necessary to do it to prevent Mulock from murdering him; or if it was necessary in the lawful defense of his own person, when there was a reasonable ground to apprehend that there *170was a design by Mulock to do Mm some great personal injury, and there was imminent danger of such design being accomplished. No witness or third person was present, for aught that appears in the evidence, when Mulock was killed, if he was killed by any person. Hence, gentlemen, it becomes my duty to call your attention to the law respecting justifiable homicide, and I have read to you a proposition which covers the case in question. It is proper that, as you are not lawyers, I should repeat it again. If the prisoner killed Mulock, was such killing justifiable? The prisoner had the right to kill Mulock, if it was necessary to do it to prevent Mulock from murdering Mm, or if necessary, in the lawful defense of his own person, when there was reasonable ground for him to apprehend a design by Mulock to do him some great personal injury, and there was imminent danger of such design being accomplished.

Gentlemen, is there any evidence in the case to' satisfy you that there was a justifiable Mlling of Mulock by the prisoner, if he killed him in these woods? Did Mulock attack him and render it necessary for him to slay Mulock to save Ms own life, or did he attack him in such a way as placed Mm in such imminent danger as Justified him in taMng Mulock’s life? Is there any evidence in the case to satisfy you that there was a justifiable Mlling of Mulock by the prisoner? The jury must determine this question. If the prisoner killed Mulock, was the Mlling excusable? Such Mlling is excusable if it happened “ by accident or misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, without undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.” Is there evidence in the case, gentlemen, to satisfy you that if the prisoner killed Mulock it was excusable within the rules I have stated to you? Now, gentlemen, if the prisoner killed Mulock, and if it was neither *171justifiable nor excusable, you will determine whether the killing was murder. I will repeat, if the evidence satisfies you that Mulock was killed, and that his death was caused by the prisoner, and that it was neither a justifiable nor an excusable homicide, it will become your duty to determine whether the killing was murder. The statute declares that “ such killing, unless it be manslaughter, or excusable or justifiable homicide, as hereinafter provided, shall be murder in the first degree, in the following cases : First. When perpetrated from a premeditated design to effect the death of the person killed, or of any human being. Second. When perpetrated by any act immediately dangerous to others, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual. Third. When perpetrated in committing the crime of arson in the first degree, siich killing, unless it be murder in the first degree, or manslaughter, or excusable or justifiable homicide, as hereinafter provided, or when perpetrated without any design to effect death, by a person engaged in the commission of any felony, shall be murder in the second degree.” The jury will perceive there are two degrees of murder. The prisoner is indicted and on trial for murder in the first *degree. It is*claimed that he not only feloniously killed Mulock, but that he premeditated it. That he knew that Mulock had money and the watches, and that he, by conversation with him, induced him to go to this piece of woods where Mulock’s body was found. That he designed and started to take Ms life, and that he enticed him to these woods for the purpose of taking his money and property, and that he Mlled him so that he could obtain his money and watches. Clearly, gentlemen, if this be the truth of the case, the prisoner is guilty of murder in the first degree. He is guilty of murder in the first degree, if he" felomously took Mulock’s life, although he did not form the *172intention to take it until after he entered the woods, and until, just previous to the time he did take it. If the prisoner enticed Mulock into the woods with a design to rob him, or, after he entered the woods, formed a design to take his life, for the purpose of obtaining his property or money, and he did take his life, he is guilty of murder in the first degree. All it is necessary for the prosecution to show on the subject of premeditation, is that there was a design formed, and a design to kill, prior to the fatal blow that took the life of Mulock. Now, gentlemen, is the prisoner guilty of murder in the first degree, and are there circumstances in the case which will justify you in finding him guilty of murder in the first degree? These are not questions for the court to determine, but they are questions for you to determine from the evidence, after you shall have heard all. that is to be said on the law in the case. It is my duty to go further in this case. If the evidence fails to satisfy you that the prisoner is guilty of murder, you will inquire whether he is guilty of manslaughter. There are four degrees of manslaughter defined by statute, but I shall not deem it my duty to read to you, or state to you the definitions of manslaughter in the various degrees, unless the counsel for the prisoner requests that I should do so.

The prisoner’s counsel requested that the statutes be read.

The court read the statutes.

These, gentlemen, are all the definitions of manslaughter which, I presume, the counsel desires me to state to you .in this case. I have stated to you the definition of murder in the first degree, of murder in the second degree, and the definitions of manslaughter in the several degrees, for the reason that I am not permitted to say to you as matter of law that you cannot or have not the right to find the prisoner guilty upon the evidence, of either of the particular offenses for which he may be found guilty under *173the indictment. Nor have I the right to say to you that upon this evidence the prisoner is guilty of murder in the first degree, if guilty at all; or of murder in the second degree' if guilty at‘all; or of manslaughter in any or either degree; for it is not the province of the court to construe the evidence. It is the duty of the jury to construe the evidence. It is the duty of the court to state the rules of law to the jury, and the definitions of the crimes which the prisoner may be found guilty of, if the evidence authorize his conviction under the indictment.

Among the requests which have been handed to me by the counsel for the prisoner, to charge you, is one in respect to confessions; and I am asked to charge you that a confession is not evidence unless it is voluntary. Such is the law, gentlemen. It is claimed by the prisoner’s counsel, that if the confessions of the prisoner have been proved, that you should be satisfied from the evidence that they were not voluntary, but were obtained from him by hopes of favor, and of bettering his condition, and that there were inducements held out to him to make such confession. That it should not be regarded by you as evidence, or have any weight in the case. Now, if the prisoner made ■ a confession upon his own reasoning, or upon the reasoning of other persons that were engaged in a conspiracy with him, to fasten the crime upon another, the confession is evidence against him. If he has made confessions in the case, without any inducement being held out to him, they are to be deemed voluntary, and are evidence against him.

Under what circumstances did he make these statements while in jail ? Did he make them because he knew he was guilty, and for the reason that he was desirons of involving another in it; and was he engaged with other persons in concocting a plan to fasten the crime upon another person, and put it forth with that view; or did he make any of the confessions in jail because he knew they were true *174•when he made them ? If he made them voluntarily, and you are satisfied that they were true, they are evidence in the case. If he made them by entering into a conspiracy with other persons in the jail, although they may have given him to understand that if he made these statements, * he might fasten the crime upon another, they are evidence against him in this case. There is a general rule of law, that the confessions of a prisoner are a dangerous species of evidence, and that it is the duty of a jury to scrutinize them carefully If the witness who testifies to them has a defective memory, he may give the jury an impression entirely different from the statement the prisoner made. If he is a witness who has feeling in the case, it is a very easy matter to testify in such a manner that it will not give exactly such an idea as the prisoner’s confession would. But if the witness should remember a confession and testify to it carefully, and so that it is convincing, and satisfy the jury that the prisoner actually made the confession, and that it was made because it was true, it is very strong evidence upon which the jury can rely. Thére are two views which are taken of what transpired between the prisoner and others who conversed with him in reference to the statement which he swore to, and which has been read in evidence to you. If he made the statement for the purpose of fastening the crime upon an innocent person, it is evidence for the jury that the person who concocts such a story is guilty of the crime himself. Now, gentlemen, it is not for the court to say what weight shall be given to any of these statements, or how they shall be construed by the jury. ' It is. the duty of the jury to give such a construction as they think ought to be put upon it to subserve the ends of justice. The prisoner had the right to introduce evidence of good character previous to the time it is alleged he committed the offense for which he is on trial. He has introduced witnesses upon this subject. None of • them knew him until about the time he entered the army *175in 1861. Now, does this evidence which has been adduced here satisfy you that the prisoner’s general character was good at the time that Mulock disappeared;- or should he have gone further back in his life, and called witnesses who knew him as a citizen prior to the time he'entered the army ? Gentlemen, if you are satisfied from the evidence that his general character was good at the time Mulock disappeared, and there is nothing else in the case, except the fact that he had possession of the money and the property which belonged to Mulock, the evidence would be insufficient to justify you in finding him guilty of murder. But if the evidence of his previous good character is insufficient, or if there are other facts and circumstances in the case which corroborate the inference which the district attorney claims should be drawn from the possession by the prisoner, as early as the 30th of December, 1864, of the watches and of the possession of the money at the time it was testified to by the witness—I say, gentlemen, in this connection, that if these facts and circumstances overbalance the evidence of character; and satisfy you that the evidence of character should have little or no weight in the case, it would be your duty to find upon the evidence which you may believe is true, and not base your verdict upon the evidence which is given in respect to the prisoner’s character. It is my duty to say to you, that in criminal cases, and in this case, you are to give the prisoner the benefit of doubts, and that the evidence should satisfy the jury beyond a reasonable doubt of the guilt of the prisoner. What is a reasonable doubt, gentlemen ? It is not one founded upon a speculative theory in the case, but when you have canvassed the evidence in the case, fairly and consistently, and given due weight to every fact and circumstance in it, if you still have a reasonable doubt as to the guilt of the accused, then you cannot convict, for the prisoner must have the benefit of such doubts in the case. Now, in weighing the evidence in the case, you will .take *176into consideration all the facts and circumstances, for it is seldom that a deliberate, premeditated murder is proved, except by circumstances. You will consider all the facts and circumstances which have been proven. You will consider whether the prisoner had any motive, and whether it is satisfactorily shown to your minds that he had a motive for taking Mulock’s life. If he had a motive, it was to get possession of Mulock’s money and watches. Are you satisfied from the evidence that he went off with Mulock on the 29th of December, 1864, for the purpose of getting possession of his money and property ? Are you satisfied that he carried the gun which was found by the body of Mulock, and that it was used to take the life of Mulock ? That he used the gun, and that he took his money and watches, and that this was one of the watches that he handed to Cook, the hack driver, on the 30th of December, 1864 ? Are you satisfied that the money that he paid the hackman, for taking him and the woman to Horseheads and Pine Woods, and. the money which he subsequently had in the jail—are you- satisfied, from the evidence, that this was Mulock’s money ? Are you satisfied that he obtained this money by killing Mulock, and then rifling his pockets ? Or is there reason to doubt as to how the prisoner became possessed of this property or money? Or as to whether this gun was not his, or as to whether he took this gun to1 the woods, or as to whether the act was perpetrated by the prisoner ? Look them all over. In determining this question, you will take into consideration what took place in the jail. If the prisoner voluntarily aided in concocting stories for the purpose of fastening the crime upon an innocent person, it is evidence against him. Look at the case in every way in which you think the evidence ought to be canvassed, and if you are satisfied that the evidence is insufficient to justify you in finding this prisoner guilty, you will not hesitate to find him not guilty. But, if in looking at every fact and circumstance *177in the case, you are satisfied, beyond a reasonable doubt, that the prisoner is guilty of murdering Mulock in these woods, as charged in the indictment, you cannot shrink from the duty which is imposed upon you by your oaths; but it will be your duty to find him guilty, whatever the consequences may be. But if the evidence fails to satisfy you, beyond a reasonable doubt, that he is guilty of murder in the first degree, but satisfies you he is guilty of murder in the second degree, you will find him so. But if you can, by proper construction of the evidence, find him guilty of either degree of manslaughter, you will so find. You have a very unpleasant duty to perform. It is a duty imposed upon you as citizens of Chemung county. It is imposed upon you by the law of the State. You must discharge your duty so that, when you return to your homes, you will have no cause to regret your actions here. We must all reflect in after life on duty neglected, or duty discharged. Render such a verdict in this case that you will be satisfied, when you return to your homes, that you have discharged your duty to the people and to the prisoner.

The prisoner’s counsel requested the court to charge the jury that the peculiar susceptibility of the prisoner to the influence of third persons—if the jury find it proven— and of the conspiracy in jail, to procure from him statements of his own guilt, should be taken into consideration by. the jury in making up their verdict.

*The Oourt:*I have stated all that I deem it my duty to say, except that a person of weak mind might do acts that a person of stronger mind would not do. It is not claimed that there is any evidence in the case that the prisoner is not responsible if he murdered Mulock. The weight to be given to any evidence upon this question is for you to determine.

The prisoner’s counsel asked the court to charge the jury that the fact that on this 29th day of December, or *178the night previous, there had been a fall of snow, and they could have been tracked to the woods; that in the woods there was game, and the fact that the prisoner left his shoes at Mr. Davis’ house in the morning are all questions to be taken into consideration in regard to the killing of Mulock, whether it was murder in the first degree.

*The Court:*I have not undertaken to make any argument upon the facts. The counsel have addressed you upon both sides. I have stated legal propositions, and you will find what is the truth of the case.

The district attorney asked the court to charge the- jury that a blow with the fist will not justify the use of a deadly weapon.

*The Court:*I do not think there is anything in .the case to call for a charge on that question.

Also, that the jury are at liberty to believe the confession made by the prisoner.

*The Court:*The jury are to give weight to confessions which they believe, in view of all the evidence in the case, and not to those which they do not believe, in view of all the evidence in the case.

Also, that good character is not controlling in a case otherwise free from doubt.

*The Court:*Certainly not, arid the jury will -give the evidence that weight they think it deserves.

The jury found the prisoner guilty.

The following record of conviction was made up and attached to the indictment.

CHEMUNG OVER AND TERMINER.

The People *v.*

Henry Gardiner.

And afterwards, to wit: on the 6th day of April, 1866, and in and during the same term of the said Court of Oyer and Terminer, before Ransom Balcom, one of the *179Justices of the Supreme Court, presiding justice, G. L. Smith, county judge of Chemung county, and Noble Weller and John S. Gunterman, justices of sessions of said county, duly designated as members of the said court, before the justices aforesaid, at the court house aforesaid, comes the said Henry Gardiner, in his own proper person, and being brought to the bar here in his own proper person, and arraigned upon the aforesaid indictment, and hearing the said indictment read, and being asked whether he demanded a trial upon the said indictment, refuses to plead or answer thereto, whereupon it is by this court ordered that a plea of not guilty be entered to said indictment, and therefore, for good or ill, is put upon the country.

And Erastus F. Babcock, district attorney in and for the said county'of Chemung, who prosecutes on behalf of the people of the State of New York, in their behalf doth the like, and the same proceedings were in all respects had as if the said Henry Gardiner had pleaded not guilty to the said indictment.

And afterwards, to wit: on the 9th day of April, 1866, at the said Court of Oyer and Terminer, held in and for the said county, before the same justices, the process and proceedings aforesaid, before the court aforesaid, having been continued by due course of law, being as yet of the same term of the said Court of Oyer and Terminer, held in and for the county aforesaid, on which said last mentioned day comes the said Henry Gardiner, and E. F. Babcock, Esq., district attorney for the county of Chemung, likewise comes.

Therefore, let a jury thereupon immediately come before the court last above mentioned, of free and lawful men of the said county, each of whom hath, &e., by whom the truth of the matter may be better known, and who are not of kin to the said Henry Gardiner, to recognize upon their oath whether the said Henry,Gardiner be'guilty of the *180murder and felony in the indictment aforesaid above specified, or not guilty.

And the jurors of the said jury, by Edwin W. Howell, Esq., sheriff- of the county of Chemung, for this purpose empanneled and returned, to wit: Robert 0. Crane, Roswell Goff, Franklin C. Bloomer, William Georgia, Henry Reynolds, Chauncey Taylor, Judah Shriver, Elijah B. Georgia, Ebenezef S. Lindsay, John S. Jackson, Orrin H. Wheeler, James Cooper, who, being called, come, and who, being then and there elected, tried and sworn, well and truly to try and true deliverance make, between the people of the State of New York and the said Henry Gardiner, then at the bar, whom they should have in charge upon the said indictment, and a true verdict give according to evidence, who, upon their oath aforesaid, say that the said Henry Gardiner is guilty of the murder and felony above charged in the form aforesaid, as by the said indictment aforesaid is above alleged against him.

Whereupon, a day is given to the said Henry Gardiner to hear judgment upon the said verdict, to wit: on Saturday, the 14th day of April, 1866, in the same term, to which day the proceedings afo.resaid are continued, at which day and place, before the court aforesaid, and before the justices aforesaid, come the said Henry Gardiner in his proper person, and Erastus F. Babcock, Esq., district attorney aforesaid, who thereupon moves for judgment upon the said Henry Gardiner according to law. And upon this it is demanded of the said Henry Gardiner whether he hath or knoweth anything to say wherefore the said justices and court ought not, upon the premises and verdict aforesaid, to proceed to judgment against him, who nothing further saith unless as before he had said.

Whereupon, all and singular, the premises being seen, and by the said court here fully understood, it is considered, ordered and adjudged by the said court that the said Henry Gardiner, for the murder and felony aforesaid, *181whereof he stands convicted as aforesaid, be taken hence to the county jail of Chemung county, from whence he came, and on Friday, the first day of June then next ensuing, and then and there be hanged by the neck until he be dead.

Judgment signed this 27th day of April, 1866.

RANSOM BALCOM,

*Justice of the Supreme Court.*

NOBLE WELLER,

*Justice of Sessions.*

JOHN S. GUNTERMAN, *Justice of Sessions.*

G. L. SMITH,

*Chemung County Judge.*

E. F. BABCOCK,

*District attorney.*

S. C. TABER,

*Deputy Clerk Chemung' County*

(indorsed.)

“ Filed April 27, 1866.

“ S. 0. TABER, *Dep. Clerk.”*

A writ of error was issued upon which was indorsed an allowance and stay of proceedings, in the following words:

“I do hereby allow the within writ of error, and do further order and expressly direct that the said writ of error and this allowance thereof, do operate as a stay of proceedings on the judgment upon which such writ of error is brought; and the sheriff of the county of Che-mung is therefore hereby ordered to stay the execution of the sentence pronounced against the said Henry Gardiner until the further order of the Supreme Court on this writ of error.

“ Dated May *4,*1866.

“ J. M. PARKER, *Justice Supreme Court.”*

*H. B. Smith,*for the plaintiff in error.

*Erastus F. Babcock*(District Attorney), for the people.

*By the Court,*Balcom, J.

The judgment against the prisoner should not be reversed for any technical error *182that was committed on his trial, which did not affect the merits of the case to his prejudice. *(Shorter*v. *The People,*2 *Comstock,*193; *People*v. *McCann,*16 *N. Y. Reps.,*61; *People*v. *Wiley,*3 *Hill,*194; *People*v. *Cunningham,*1 *Denio,*524; *Leven*v. *Smith et al., Id.,*571; *Willis v. People,*5 *Parker, 621; S. C.,*32 N. Y. *Rep.,,*715; *People v. Gray, 5 Wend., 289,*4 *Parker,*619; *People*v. *Ransom,*7 *Wend.,*418; *People*v. *Ferris,*1 Abb. N.S., 193.)

But if any error was committed on his trial, that materially affected the case to his prejudice, it will be the duty of this court to grant him a new trial, although there may be no doubt of his guilt upon the evidence in the case. (16 *N. Y. Rep.,*61.)

The prisoner’s special plea to the jurisdiction of the Chemung court of Oyer and Terminer to try him, because he was in the military service of the United States at the time he murdered Amasa Mulock, if he did that act, was properly overruled for reasons assigned by Justice Mason, in delivering the opinion of this court, when the case was at the general term, on the question of the jurisdiction of the Oyer and Terminer. •

The prisoner’s special plea in bar, of *“*once in jeopardy,” was properly overruled. His plea to the former indictment was to the jurisdiction of the Oyer and Terminer, to - which plea the district attorney demurred, and the court sustained the demurrer, and ordered the prisoner to plead over to the indictment; that was the situation of the proceedings on the former indictment, when the indictment in this case was found, and a *supersedeas*or *nolle prosequi*was then entered on the former indictment. The prisoner had no trial upon the merits on the former indictment, and was never in jeopardy thereon, within the meaning of the provision in our State and national Constitutions, which protect persons from being twice put in jeopardy for the same offense. *(Laws of*1847, *vol. 2, p.*386, § 6; 1 *R. S.,**183*2d ed.,p.*18, *art.*5; *2 R. S.,*702, § 25; *People*v. *Tarbox, and People*v. *Loomis,*30 *How. Pr. Rep.,*318 and 323; *Commonwealth v. Gould,*12 *Gray's Rep.,*171.)

A *nolle prosequi*or *supersedeas*was properly entered on the first indictment, when the one in this case was presented by the grand jury. (2 *R. S.,*726, § 42.)

After the prisoner’s plea to this indictment, of once in jeopardy, was overruled, he was required by the court to plead over to the indictment, and on refusing so to plead, a plea of not guilty thereto was entered on the indictment by order of the court. The court was authorized by statute to enter this plea of not guilty to the indictment. (2 *R. S.,*730, § 70.)

I shall not consider any question, raised by the district attorney, as to the regularity of the special pleas interposed to the indictment in this case, or as to the manner in which those pleas were disposed of; for I am of the opinion neither of those pleas presented a defense to the indictment, and that each was properly overruled.

Only seven jurors in the cause were obtained from the regular panel in attendance at the court. The court then directed the sheriff to draw from the box, provided by chapter 210 of the Laws of 1861, the names of thirty-six jurors *(Laws of*1861, *p.*528), to which direction the -prisoner’s counsel objected: 1. That the statute does not apply to the case. 2. That it is unconstitutional and void; which objections were properly overruled, for reasons I shall presently state. The names of thirty-six jurors were then drawn, and the jurors were summoned, according to the directions contained in the act of 1861 *(supra).*The prisoner’s counsel then interposed a challenge to the array of such jurors, in these words, to wit: “He is entitled by the law of the land to be tried by a jury drawn from the body of the county of Chemung, and not alone from the town of Elmira; and said array of jurors have not been lawfully drawn. The act of 1861, under which the court *184made the order for drawing said jurors, does not authorize the drawing of jurors in this way for the trial of this indictment; and if such was the intent thereof, it is unconstitutional and void; and because, since the passage of said law, ' and the return of the list of jurors now in said Elmira box, and from which said list was drawn, to wit: in April, 1864, the city of Elmira has been erected by the Legislature out of a part of the former town of Southport, and the jurors in said box do not include the jurors of that part of the city taken from the town of Southport, and do include the jurors of the town of Elmira out of the limits of the city of Elmira; and because the list s'* contains the Mames of jurors not now residing either in said city or town of Elmira, and they have been summoned and áre in attendance as a part of said panel, and this he is ready to verify.” The court rightfully overruled this challenge and sustained the district attorney’s demurrer to it.

I think it is clear that the act of 1861 applies to criminal cases. There was a Circuit Court that was held at the same time with the Oyer and Terminer, at which the prisoner was tried; and it is provided by statute that “ where any court of Oyer and Terminer shall be held at the same time with any Circuit Court, the jurors returned for such Circuit Court shall be the jurors for such Oyer and Terminer.” (2 *R.*S., 733, § 2.) In most cases “ the jury for the trial of any indictment shall, be drawn in the same manner as prescribed by law for the trial of issues of fact in civil cases.” (2 *R.*S., 734, § 5.) The clerk is directed by the Eevised Statutes to provide a box, and to deposit the names of all petit jurors therein. (2 *R.*S., 412, § 16.) And the act of 1861 *(supra)*is amendatory of the Eevised Statutes in relation to trials by jury. That act requires that the clerk, “in addition to the box by law now provided and kept for the purpose of containing the names of jurors drawn to serve *at any*court, shall provide another box, in which he shall deposit the names of all persons *185who have been selected and returned as suitable persons to serve as jurors, and who reside in the city or town where courts are appointed by law to be held.” *(Laws of*1861, *p. 528.)*The second section of that act shows it is applicable to all cases tried in any court of record, except- in the counties of New York and Kings. It was, therefore, applicable to this case.

The act of 1861 does not in any manner conflict with the provision in the Constitution of the United States, which secures the right to persons accused of crime to a trial “by an impartial jury of the State and district wherein-the crime shall have been committed.” (1 *R. S., 2d ed., p.*18, *art.*6.) Nor is such act repugnant to the provision in the Constitution of this State, which declares that “ the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever.” *(Laws of*1847, *vol. 2, p.*385, *art.*1, § *2.)*It is clearly within the scope of legislation to regulate such trial. *(Walter*v. *The People,*32 *N. Y. Rep.,*147.) The Legislature could, therefore, provide for summoning jurors from any place in the county, as well as from “bystanders, or from the county at large,” to supply a deficiency of jurors at any court or on any trial.

The thirty-six jurors were lawfully drawn, for aught that was shown to the court at the time the array thereof was challenged. The court had the right to presume the clerk had discharged his duty in respect to putting the names of jurors on the list for the town of Elmira in the year 1863, in the box provided under and pursuant to the act of 1861". It was for the prisoner to prove that the names in that box were taken from the list,of Elmira jurors for the year 1860, and that such names were not changed when the new list for that town was returned and filed in the year 1863.

When the jury lists in and for Chemung county were made and filed in 1863, Elmira was a town, but a portion *186of that town was incorporated into and made the city of Elmira, with certain territory taken from the town of Southport, by an act of the Legislature in 1864. *(Laws of*1864, *p.*248.) But that act declares that the city of Elmira shall be regarded as a town, under the provisions of the Revised Statutes, which declare when and how jury lists shall be made, returned and filed. *(Laws of*1864, *p.*269, § 5.) And rfo provision was made in the city charter for the return of any new list of jurors for the city or town of Elmira to the clerk of Chemung county before the time fixed in the Revised Statutes, which time had not arrived when the trial in question was had. And according to those statutes, the persons whose names were returned as jurors for the town of Elmira in July, 1863, were competent to “ serve as such for three years, *and until other lists shall be returned and filed.”*(2 *R. S.,*333, § 17.) It was therefore proper for the court to cause the names of jurors to be drawn from the box containing the names of jurors on the list returned for the town of Elmira in the year 1863. Though I do not doubt that the names on the list of jurors returned and filed for the city of Elmira in July, 1866, are those that should now be deposited in the box provided by the clerk of Chemung county, pursuant to the act of 1861. *(Supra.)*

Assuming that the thirty-six jurors, whose names were drawn as above stated, were on the list of jurors for the town of Elmira, as returned in July, 1863, the fact that some of the jurors so drawn did not reside in either the city or town of Elmira, at the time of the trial, was no ground for challenging the array of such thirty-six jurors.

Having shown that such challenge was not well taken, I shall not now examine the point made by the district attorney, that the prisoner’s counsel could not challenge the array of thirty-six jurors at the time and in the manner he challenged the same. <

The challenge to the juror, Hudson, for principal cause, *187on the ground that he was not on the jury list of 1863, and that the box of Elmira jurors, from which his name was drawn was made in 1861, and not after the new list of jurors was made and filed in 1863, was properly overruled, for the reason that that objection should have been taken when his name was drawn by the clerk from the box provided under and pursuant to the act of 1861. If that objection had then been taken, an inquiry could then have been made as to what list the names in that box were taken from. It was too late to raise that objection after several of the thirty-six jurors had been drawn as jurors for the trial, and had been examined, rejected or challenged on other grounds, *&c.*But Hudson was finally challenged peremptorily by the prisoner’s counsel, and rejected; and the case shows the prisoner was subsequently informed by the court his challenge of Hudson would not be counted as one of the peremptory challenges allowed him by statute. Hence, if the court erred in overruling the prisoner’s challenge to Hudson, the error was rendered harmless by what subsequently occurred; and it furnishes no good ground for granting the prisoner a new trial. (4 *Denio,*9; 2 *Dev. N. C. Rep., 217;*16 *N. Y.,*61; 7 *Wend.,*417; 1 *Abb. N. S.,*193.)

The challenge to the juror, Lindsay, was properly overruled, for the same reasons that the like challenge to Hudson was overruled. But if Lindsay should have been set aside, and was irregularly and erroneously empanneled as a juror in the case, the prisoner should be deemed to have subsequently consented to his sitting in the case, for he was informed by the court that Lindsay should stand aside and not sit in the case, if he desired it, and that what had occurred should not diminish his number of peremptory challenges in the case; and he chose to stand mute. I think he could not stand mute, when informed the court would construe his conduct to be a consent on his part to Lindsay’s sitting as a juror in the case, and afterwards *188have a new trial, because Lindsay did sit as a juror in the case, especially as Lindsay possessed all the requisite qualifications for a juror in any criminal case in the county of Chemung. If the court had directed Lindsay to leave the jury box, and had decided he could not sit in the case after he was sworn, such direction and ruling would have been erroneous; and it is highly probable the prisoner’s counsel would have excepted to the same. I infer he would have so excepted from what previously transpired in the case. I think the swearing of Lindsay as a juror, if irregular' and erroneous, does not render the prisoner’s conviction erroneous; and that, whatever irregularity or error was committed in admitting Lindsay to a seat as a juror in the case, was cured by what was subsequently said and done by the court and district attorney, and by the conduct of the prisoner and his counsel upon the question whether Lindsay should remain on the jury, or stand aside and not sit in the case. If Lindsay had not been summoned or drawn as a juror, but the prisoner had proposed he should be one of the jury in the case, and the district attorney and court had assented to the proposition, and he had then been sworn as a juror, his admission to a seat as a juror would not have been' erroneous. I think his situation as a juror should not be regarded as making the case any different in legal effect from what 'it would have been if he had become a juror by being first proposed as such by the prisoner, and had then been accepted and sworn in the manner above stated.

John S. Jackson was drawn from said thirty-six jurors, and sworn as a juror without objection; .and he was the last of the list of thirty-six jurors whose names had been drawn from the Elmira box, provided under the act of 1861; and down to this time in the trial, the court had no information that the clerk had omitted, in 1863, to take the names out of that box and deposit therein the names on the list of jurors returned and filed for the town of *189Elmira in that year. But the matter was investigated ■before any more jurors were drawn; and the fact was duly ascertained by the court that the clerk had omitted to change the names of jurors in the Elmira box in 1863, and before any other jurors were drawn, the clerk, by direction of the court, took the names out of such box that had been put into it from the list of 1860, and deposited therein the names of the jurors for the town of Elmira on the list returned and filed in 1863. There can be no doubt that the clerk had the right, by direction of the' court on the trial, to make the proper change of the names of the jurors in the Elmira box that the clerk should have made in 1863. *(The People*v. *Allen,*6 *Wend.,*486; 7 *Wend.,*417; 1 *Abb. N. S.,*193; 3 *Hill,*42.)

It is unnecessary to determine whether the prisoner should have moved for a new trial in the Oyer and Terminer for any of the above mentioned alleged errors or irregularities that occurred1 on his trial. *(Willis*v. *The People,*32 *N. Y. Rep.,*715.)

The objections of the prisoner’s counsel to the drawing of the names1 of forty jurors from the Elmira box, after the names on the list for the town of Elmifa in 1863 had been deposited in such box, was untenable, for reasons already assigned; and because the prisoner was asked by the court if he had any objection to the three jurors sworn, who had been drawn from the above mentioned thirty-six, and he made no objection to either of them; and he should be deemed to have assented that they should sit as jurors in the case.'

If the foregoing conclusions are correct, the prisoner’s challenge to the array of the forty jurors drawn from the Elmira box was not well taken, and was properly overruled, unless the evidence given in support of such challenge shows it should have been sustained, or unless the court erred in some ruling upon offers of evidence. upon the same. The district attorney was not obliged to verify *190Ms answer to tMs challenge; and if any answer or demal by him of the allegations in the challenge was necessary, the one he made was sufficient. It was immaterial whether either of the forty jurors resided out of the city of Elmira, if they resided in the town of Elmira when the list for that town was made and filed in 1863; and it was also immaterial, in respect to this challenge; whether either of the forty jurors had changed Ms resdence subsequent to July, 1863. The matters offered respecting the Southport list of jurors, and the residences of the forty júrors, and other rejected matters, were immaterial to the question before the court, and were correctly excluded.

The date of the list of jurors for the town of Elmira, in 1863, was immaterial. The list was dated and filed the 4th day of July, in that year. The presumption is that the proper town officers assembled on the first Monday of that month for the purpose of making the list. (2 *R. S.,*411, § 12.) The statutes as to the date of such lists, and the time they shall be filed, is directory. (2 *R. S.,*412, §§ 15, 16 *and*18; 7 *Wend.,*417; 1 *Abb. N. S.,*193.) Such lists are valid, though made and filed at later dates than these mentioned in the statute. *(Sedgwick on Stat. and Com. Law,*368 *and*372.)

The offer to prove that the town clerk was not present when the list of jurors for Elmira was signed on the 24th day of July, 1863, was immaterial. Proof that he was absent at that time, and was notified to attend a meeting of the other town officers that day, to sign the list, would not have shown he did not meet with the supervisor and assessors on the first Monday of July in that year, and assist in making such list of jurors; and the list was valid without his signature. (2 *R. S.,*411, § 12; *Id.,*412, § 15.) And I am of the opimon the prisoner "had no right to impugn the list of jurors returned by the proper town officers, and filed in the office of the county clerk. The list, as returned, was valid, on its face, and it was conclu*191sive upon the prisoner as to its regularity. *(The State*v. Brooks, 9 *Alabama Rep. N. S., p.*9; *Rafe*v. *The State of*Georgia, 20 *Georgia Rep.,*60; *Clarkson’s Case,*3 Alabama Rep., 388; *People*v. *Jewett,*3 Wend., 314; *People*v. *Ransom,*7 Id, 418; 1 Abb. N. S., 193; Cox Cr. *Cases,*395; *Forsythe*v. The State of Ohio, 6 *Hammond’s Rep.,*20; *Carey on*Juries, 85; 3 *Park. Cr. Rep.,*343; 5 Id., 310.)

That portion of this challenge which related to what occurred on the drawing or calling of the thirty-six jurors was untrue, to the knowledge of the court, which the case shows.

If any challenge to the array of jurors would lie for any irregularity in the lists of jurors, as returned by the town officers, it should have been interposed before any juror was drawn from the regular panel, which was partly made up from the Elmira list. I think it was too late to interpose a challenge to the array of the forty jurors for any such irregularity, after such jurors had been drawn and summoned.

It follows that the challenge to the array of forty jurors, drawn from the Elmira box, was properly overruled.

It is proper to say in passing, that before any juror was drawn from the forty Elmira jurors, the prisoner was informed by the court that he had the same number of peremptory challenges remaining he had before the thirty-six jurors were drawn from the Elmira box, or that he would yet have the privilege of making that number of peremptory challenges to jurors as they should be drawn for the jury in the case, to which the district attorney assented.

The foregoing views show that the challenge and objections to the juror, Cooper, who was one of the above men.tioned forty, were properly overruled; also, that the rulings of the court were correct, respecting the offers and objections upon his challenge by the prisoner.

The objection made by the prisoner’s counsel, after *192twelve jurors had been empanneled, to the prisoner being tried by such jury, on the ground that the same was illegally empanneled, was untenable; but if tenable at first, the difficulty was obviated by the statement of the court (to which the district attorney assented), that the three jurors drawn from the above mentioned thirty-six, might stand aside from the panel, and that three other jurors might be drawn in their places, if the prisoner desired it, and that he could have the same number of peremptory challenges he was entitled to before either of the thirty-six jurors was drawn; and the prisoner should be deemed to have waived any error or irregularity there was in drawing, summoning or empanneling the jury.

The twelve persons who constituted the jury that was obtained in the case, were all residents of Chemung county, and each possessed the requisite qualifications for a juror in the case; and I am of the opinion no error was committed in obtaining the jury which, can be said to have prejudiced the prisoner in the least, or that was not cured by what subsequently occurred on the trial. Great pains were taken by the court to secure an impartial jury in the case, and I think a better or more impartial jury was never empanneled in a capital case than the one in this case. It seems to me a holding that a new trial should be granted in the case, for anything that occurred in empanneling the jury, would be a confession that justice has been ensnared in technicalities, and must be thwarted by immaterial matters that did not affect the merits of the case. I think there is no such cause for reproaching the law, and that our decision upon the foregoing questions should not be such as to invite counsel to defend prisoners upon technicalities instead of the merits of cases. *(Ferris*v. *People,*31 *How. Pr. Pep.,*140.)

The court did not err in permitting the district attorney to produce in court and show to witnesses, in the presence of the jury, articles of clothing found on the dead body *193of Mulock, whom it was alleged the prisoner murdered, or in permitting the district attorney to produce in court and show to witnesses, in the presence of the jury, the hat and gun found near Mulock’s dead body, or a watch it was claimed Mulock had on his person the morning he disappeared, or any other article found on or near his dead body, or in permitting the district attorney to produce Mulock’s skull in court. *(People*v. Larned, 3 *Selden,*445; *Mulhado*v. *The Brooklyn City Railroad Co.,*30 *N. Y. Rep.,*370; *People*v. *Kennedy,*32 *Id.,*141; 5 *Cushing,*295; *Burrill on Circumstantial Evidence, 2d ed.,*135, 137, 259, 264; *Starkie on Ev. (by Sharswood),*90 *and*91; *People*v. *Salvador,*1866; *Same*v. *Gonzales, MS. Court of Appeals.)*

I think it was proper for the district attorney to show the watch to the jury, he claimed was one Mulock had upon his person at the time he disappeared, and which was subsequently disposed of by the prisoner, and identified by witnesses by marks that were on it. It was not erroneous to allow the jury to inspect the watch and judge whether it was probable that witnesses could identify it by such marks as were on it. It was. also proper, in my judgment, to allow Dr. Wey to examine the skull of Mulock in court, with" the broken gun that was found beside Mulock’s dead body, and explain the fractures in the skull and the marks on it to the jury, and to show to them how nicely parts of the gun-lock and sight on the gun fitted the indentations or fractures in the skull. *(See authorities, supra.)*

I am of the opinion the court did not err in allowing Dr. Wey to state what would cause the wounds or fractures on Mulock’s skull, or how they could be made, or in subsequently permitting the district attorney to ask him this question, viz: “Are you able to state whether the wounds upon this head (Mulock’s skull) might have been produced by blows from this musket ” (meaning the mus*194ket found near Mulock’s dead body)? His answer was: “ They might have been.” He said his reasons for this opinion were “ that certain prominences upon that musket correspond with certain fractures upon this skull.” He then described how they corresponded. Wey was a physician and surgeon, and made the *‘post mortem*examination of Mulock’s body. He was competent to give opinions,where opinions of a medical witness were admissible; aiid I think he was competent to answer the questions put to him as to what would cause the wounds or fractures found on Mulock’s skull, and that his opinions were admissible as evidence against the prisoner. (19 *Wend.,*572; 5 *Selden,*194; 31 *N.*Y. *Rep.,*320; 4 *Barbour,*615.) I am not entirely satisfied with the decision in *Wilson*v. *The People*(4 *Parker,*619). But if that case was correctly decided, it does not control this. The questions and answers in this case differ from the questions and answers in *Wilson*v. *The People.*And I think we need not overrule that case to sustain the rulings above mentioned in this case. But before I would agree that those rulings in this case were erroneous, I should vote to overrule *Wilson*v. *The People.*For I think medical witnesses are competent to testify as to the kind of an instrument or weapon that would produce a particular wound or fracture, and whether a particular wound or fracture might not be made with an instrument or weapon mentioned to the witnesses. And this was the kind of evidence Dr. Wey gave as an expert in this case. ' The question put to him, whether he was able to state the direction from which Mulock’s head received the injury, was not materially different from the others, and was therefore admissible.

The prisoner’s counsel put this question to' the witness, Howell, on his cross-examination, viz: “Have you discovered Mr. Gardiner, while he has been in jail, to be a man of very weak mind ? ” It was objected to, and the objection was sustained. I .think the. objection was correctly *195sustained. The question was not upon a point inquired about by the district attorney, and it was leading. It called for the opinion of an unprofessional witness, which no one but an expert could give, and the question called for an opinion as to a matter immaterial to the issues tried.-

The prisoner wrote a letter to the district attorney, dated the 17th day of July, 1865, which was while the prisoner was confined in jail on the charge of murdering Mulock, to which letter he made oath before a justice of the peace, on the 18th day of the same month. This letter stated, among other things, the prisoner was near Mulock when he was killed, and that one Robert Main killed him with a gun, and then took his watches and money from his pockets.

The district attorney did not ciaim the right to put this letter in evidence until he proved it was voluntarily written by the prisoner, and sent to him under circumstances that would render it admissible. He then called Ransom and other witnesses to satisfy the court the letter was competent evidence against the prisoner.

The district attorney examined Ransom, who administered the oath to the prisoner attached to the letter. He also examined the sheriff, Howell, as to the circumstances under which the prisoner signed the letter and made oath to it. He then called William Halliday, and was examining him as to his being present when the district attorney read the letter to the prisoner in the sheriff’s parlor, and as to what the prisoner said concerning it, for the purpose of showing the letter was written, signed and sworn to under such circumstances as to make it evidence in the case against the prisoner, when the court informed the witness he might tell precisely what was said between him, the district attorney and the prisoner. The prisoner’s counsel then offered to show that the repetition of the contents of the letter was made under inducements, by proof *aliunde,*that this statement was thus made by the *196prisoner; and to prove that that confession was not volun tarily made, but was extorted by inducements, which offer the court rejected, and the prisoner’s counsel excepted. The court then ruled that the district attorney had the - right to proceed in the case., and said to the witness: “ Go on.”

This was a ruling controling the order of giving evidence for the information of the court, which rested in discretion. (1 *Greenl. Ev.,*§ 219.) The question was whether the court would permit the district attorney to give evidence to show the letter was a voluntary statement of the prisoner before permitting the prisoner to attempt to prove it was not a voluntary statement; and the court had the right to permit the district attorney to give the first evidence upon the question. The court did not allow the letter to be read to the jury until the prisoner gave evidence on his part which his counsel claimed showed it was not a voluntary statement. I think this ruling, repecting which party should first give evidence, was not the subject of an exception which is reviewable. *(People*v. *Rector,*19 *Wend.,*578.)

The court clid not permit the district attorney to prove the contents of the letter by the confessions of the prisoner; and when Halliday was asked to state what the prisoner said “in relation to the facts in the case,” the prisoner’s counsel did not object to the question; and none of the evidence Halliday subsequently gave on his direct examination was objected to by the prisoner’s counsel. The questions put to'him on his direct examination, which were objected to by the prisoner’s counsel, were not answered.

If the court erred when the prisoner’s counsel was refused the privilege of asking Howell if he had discovered the prisoner, while he had been in jail, to be a man of' very weak mind, the error was cured before that branch of the case was finished, by the court ruling that the pris*197oner’s counsel might show the prisoner was an impressible man, and would do anything that was told him; and witnesses were allowed to testify to any facts, or circumstances, or peculiarities, tending to show his mind was weak or unsound, though an unprofessional witness was not permitted to give his opinion from his observation of the prisoner whether he was of sound mind, which ruling was correct.

The court, after hearing the evidence on both sides as to when and how the letter was written and verified, ruled that the letter was competent evidence for the people against the prisoner, to which ruling the prisoner’s counsel excepted. The letter and affidavit or jurat, signed by the justice who administered the oath to the prisoner, were read in evidence by the district attorney; and the prisoner’s counsel seems to regard the question, as to the admissibility of this letter, the most important one in the case. It is the only question he spent much time in arguing. He did little more than state his other points in the case.

The evidence given by persons confined in jail, charged with crime, in regard to the manner the letter was written and delivered to the district attorney, and touching the purpose for which it was put forth, was not entitled to much weight. The whole of the evidence on the question, considered together, justified the conclusion that the letter .was written, sworn to and delivered to the district attorney, with the intention of clearing the prisoner, by charging the murder he had perpetrated upon Main, who was his tent-mate at the time the murder was committed. I think the letter should be deemed the production or composition of the prisoner, whether he concocted it, or only adopted it after it was composed and writted by a fellow prisoner. It was a device of the prisoner, whether original or' second-handed, to fasten his own crime upon his innocent tent-mate. And the general rule is, that whatever falsehood a person charged with crime concocts, to avert' *198suspicion from himself, is admissible evidence against him. (3 *Greenl. Ev., §*137.) And on the same principle, whatever falsehood a person thus situated puts forth, to charge his own offense upon another who is innocent, must be competent evidence against himself.

If the prisoner’s letter should be regarded as a confession, I think it was competent evidence against him. No promise was made or inducement was held out to him to write the letter or to speak of/its contents, by any person who had anything to do with his apprehension, imprisonment or prosecution; and he voluntarily signed the letter, if he did not write the whole of it, and voluntarily sent it to the district attorney; and he was sworn to it at his own request, for the purpose of having Main arrested, and he •should be regarded as acting as complainant against Main, with the view of fastening his own crime upon him, and all he did for that purpose was voluntarily done. *(Rex*v. *Row, 1 British Crown Cases,*152; *Joy on Confessions, Law Library, 4th series, vol.*15, *pp.*22 *and*23; 1 *Greenl. Ev.,*§ 223; 3 *Id.,*§ 137; 1 *Parker,*406; *Hendrickson*v. *The People,*6 *Selden,*9.)

In *The People*v. *McMahon*(15 *N. Y. Rep.,*384), the prisoner did not testify at his own request, but he was taken before the coroner by a constable, and sworn and examined as a witness (and as I understand the case), at the request of the coroner, or on the suggestion of some per-. son who was aiding in making the investigation, as to how and in what manner the wife of the prisoner came to her death; and the Court of Appeals held his evidence, given on his examination before the coroner, was not admissible against him on his trial for the murder of his wife. That case differs widely from this, in which the prisoner, upon his own reasoning, or with the advice of some of his fellow prisoners, voluntarily prepared a letter, and voluntarily verified it on oath, with the hope of saving his own life by charging his crime upon another.

*199In *The People*v. McMahon, the prisoner was obliged to testify before the coroner, or refuse on the ground he could not testify without criminating himself, which would have been very prejudicial to him. But the prisoner in this case was not requested, by any person who had, or ever had had, any control over him, or connection with the case, to write the letter in question, or to send it out of jail; and he was not obliged to swear to. it to avoid any suspicion prejudicial to himself. His entire connection with the letter was purely voluntary; for whatever part his fellow prisoners took in the conspiracy, if there was one, to fasten the murder of Mulock upon Main, he was a principal in it. The false oath he took, when he verified the letter, was taken without the shadow of an excuse. It seems to me any court would stultify itself to hold that a statement made by a prisoner, as this letter was written, sworn to and made public, was not voluntary, or that it is not competent evidence against the author on his trial for the crime wickedly charged in it upon an innocent person, whether the statement be called a confession or not. I think the time has not come when a person, indicted for murder, can voluntarily make and publish a statement for the purpose of falsely charging such crime upon another, which fails to effect- the object intended, but through inadvertence, or for want of foresight, shows the author to be the real murderer, and have such statement excluded as evidence on his trial.

I am of the opinion the prisoner’s letter in this case, if it can properly be called a confession, was admissible as evidence against him, not for the reason that it was supposed to be entirely true, but because most of it was false, and yet showed, or strongly tended to show, the prisoner was guilty, when he intended it should have the contrary effect.

The court charged the jury that the confessions of the prisoner were not evidence against him unless they were *200voluntary; and I am of the opinion the part of the charge respecting the letter was correct.

The prisoner’s counsel offered to prove that other prisoners broke out of the jail in which he was confined after he was indicted, and that certain fellow prisoners tried to induce him to go out, and he would not do so. This offer was properly excluded upon the authority of *The People*v. *Rathbun*(21 *Wend.,*509).

Mulock was as' well known by the name of Amasa Mulock as he was by the name of Amsey Mulock, as he spelled his name and wrote it. There was, therefore, no misnomer of him in the indictment, though his name is only given therein as Amasa Mulock, The rule is, if a party or person be known by one name as well as another, he may be described by either. *(Barb. Cr. Tr.,*287; *State*v. *Gardiner, Wright's Ohio Rep.,*392.)

Whether the name of the murdered person was correctly stated in the indictment, was a question for the court to determine upon the evidence; and it was correctly decided by the court.

I am satisfied the charge to the jury was as favorable to to the prisoner as it should have been. I think none of the exceptions to it, or to the alleged refusals to charge the jury are well taken;, and I do not think it necessary or expedient to discuss any of such exceptions.

There are exceptions in the case that were taken by the. prisoner’s counsel, which I have not deemed of sufficient importance to notice in this opinion; but I have examined all of them, and I think neither of them was well taken.

The evidence leaves no reasonable doubt that the prisoner is guilty of the crime of which he has been convicted; and I am unable *to*see how he could be benefited by a new trial, unless the people should be unable to procure the attendance of their witnesses on-such trial, or this court or the Court of Appeals should hold that one of his special pleas was improperly overruled; yet I should vote for granting *201him a new trial if I were of the opinion any error, affecting the merits of the case to his prejudice, had been committed on the trial he has already had.

My conclusion is that no error affecting the merits of the case, prejudicial to the prisoner, was committed on his trial, and that the judgment against him should be affirmed and executed, according to the statute applicable to the case.

Parker, Mason and Boardman JJ., concurred.

Judgment affirmed.

Note.—The prisoner was brought before the Broome General Term in January, 1867, by *habeas corpus,*and sentenced to be hung at Elmira on the first day of March, 1867 (3 *R. S., 5th ed.,*937, §§ 23, 24), and he was executed on that day at Elmira. He made a full confession of the crime charged upon him, before he was executed, but attributed it to the influence of bad women and intoxicating liquor.