Supreme Court. New York General Term,

May, 1864.

*Leonard, Gierke*and *Welles,*Justices.

#### Charles H. Walters, plaintiff in error, *v.*The People, defendants in error.

The act of the Legislature (Laws of 1858, ch. 332, § 1) allowing peremptory challenges to jurors, on the part of the People, in certain criminal cases, is not unconstitutional.

Where a person called as a juror in a capital case, on being challenged by the public prosecutor, testified that he had conscientious scruples as to the propriety of the death penalty in any case, and, on cross-examination, said that if he was sworn to render a verdict according to the evidence he would respect his oath and do so, but added, that he would not feel willing to be a juror in the case, *held,*that he was properly excluded.

A correct decision will not be revered because it was put by the court below, upon an insufficient ground.

On the trial of an indictment for murder, after it had been proved that on Monday, the 30th November, 1863, the prisoner came to a house of ill-fame where the deceased was staying,broke openthedoor of her room, threw her *8upon the floor and stabbed her with a knife a great many times, of which wounds she died a few days after, it was held to be competent, on the part of the prosecution, to prove that on the night of the day previous to the stabbing, the prisoner came to the house where tbe homicide occurred and asked the deceased to go out with him away from the house, and that she refused; that the prisoner then struck her and bit her hand and she still refused to go; that the prisoner then went out and brought in an officer and said that she had stolen his watch and that the officer then took both to the station-house and kept them locked up there all night; that they were next morning let out and the deceased went back to bed, when the prisoner made the attack on her which resulted in the homicide, such evidence being proper for the purpose of showing deliberation and malice.

The indictment chárged the name of the deceased to be Nancy Elizabeth Vincent; the evidence shewed she went by the name of Lizzie Walters— that she sometimes went by the name of Elizabeth—that she called her name Nancy E. Vincent and that, when brought before the officer charged with having stolen the prisoner’s watch, she stated, in the presence of the prisoner, that she was not his wife, that her name was Nancy Vincent and that the prisoner made no objection to her statement, *held,*that it was not erroneous in the court below to exclude as evidence letters addressed to the prisoner which had been written at the request of the deceased and which were signed Lizzie Walters or Elizabeth Walters, some of them commencing “ My dear husband” and concluding “ Tour loving wife,” such letters being offered for the purpose of proving a variance between the indictment and the evidence.

In an indictment for murder, where the true name of the deceased is charged in the indictment and proved on the trial, there is no variance, though it also appears that the deceased went by another name; and where the name charged in the indictment is not the true name, yet if it is proved that • the. deceased was called by the name charged it is sufficient and there is no variance.

On the question of premeditation and malice, the court charged the jury that if the prisoner went to the house with the intent to kill the deceased, or if he went there without intending to kill ker, but at the time he got hold of her and pulled her out of bed, a minute before the blow was struck, he conceived the intent to take her life, then he was guilty of murder, *held,*that the charge was not erroneous.

Writ of error to the Court of General Sessions of the Peace, in and for the city and county of New York.

The plaintiff in error wasdndicted in the court below in December, 1863, for the murder of Nancy Elizabeth Vincent, on the 30th day of November in the same year. At a term of said court, held on the 9th day of February, *91864, the plaintiff in error was brought to trial upon the indictment, and was convicted of murder in the first degree, and judgment of death pronounced upon him, to be executed on the 15th day of April, 1864. Upon that judgment the present writ of error was brought.

*S. H. Stuart,*for plaintiff in error.

*A. Oakey Hall*(District Attorney), for the people.

*' 'By the Court,*Welles, J.

Upon the trial in the court ■ below, a number of questions arose upon objections by the prisoner’s counsel and the rulings and decisions of the court thereon; also upon the charge of the court to the jury, and refusals to charge as requested by the prisoner’s counsel.

I shall proceed to consider these questions in the order in which they are presented by the case and bill of exceptions; and, 1st, in the course of empanneling the petit jury, Benjamin Bentiet was called as a juror, and set aside on a peremptory challenge by the district attorney; to which the counsel for the prisoner objected. It is now insisted that the act of the Legislature allowing peremptory challenges on the part of the People is unconstitutional and void. *(Laws of.*1858, *ch.*332, § 1, *p.*557.) That statute provides that on any trial for any offense punishable by death, or by imprisonment in the State prison for the term of ten years, or for a longer term, the People shall be entitled peremptorily to. challenge five of the persons drawn as jurors for such trial, and no more. The challenge under consideration was the only peremptory one interposed by the prosecuting counsel. The enactment seems to be within the plain and obvious scope of legislative power, and is not in conflict with any provision of the Constitution. We think the objection was not well founded.

*102d. Robert C. Thompson was drawn as a juror, and was challenged by the defendant’s counsel for principal cause. ISTo fact appears to have been stated when the challenge was interposed, as the cause for which it was made. The juror was then duly sworn, as the case states, but does not state what was the form or substance of the oath administered to him, when the following examination of the juror and proceeding -upon the challenge took place:

*Question by the Prisoner’s Counsel.*What is your business, and how long have you resided in the city? *Answer.*An engineer; I have lived in the city twenty-seven years.

*Question.*Do you recollect to have read or heard anything about this case? *Answer.*I do not; I know nothing of the prisoner or the case.

The prisoner’s counsel then said: “We are content with the juror, and withdraw the challenge.”

*Question by the District Attorney.*You have no conscientious scruples, have you? *Answer.*Yes; I have, sir; I have conscientious scruples.

*Question by the Prisoner’s Counsel.*If you were sworn to render a verdict according to the evidence, you would respect your oath, and so do, would you not? *Answer.*I would, sir; but I should not feel willing to be sworn in the case.

*By the Court.*The juror objects to being sworn. I will exclude him. The prisoner’s counsel objected, and the court w' jd the objection.

The question in regard to the exclusion of this juror may be summed up in few words. The challenge by the prisoner’s counsel had been withdrawn; when the counsel for the People proved by the juror that he had conscientious scruples. These scruples evidently related to the propriety of the death penalty in any case. It was not so specified in the question to the juror, nor in his answer, but it was obviously so understood by him, as the question put to one of the persons called as a juror, and examined *11just before, contained the specification, and this juror must be presumed, in the- absence of evidence to the contrary, to have been present and heard it. It is true he testified that he would respect his oath and render his verdict according to the evidence, but added he should not feel willing to be sworn in the case. He was set aside by the court, who specified no other ground or reason for the exclusion than the feeling of unwillingness of the juror to be sworn in the case. If, however, we can see that it was the duty of the court to exclude him as legally incompetent, we should not reverse the judgment for the reason' that the exclusion was put upon an insufficient ground, assuming that such was the fact. A man who honestly believes that government has not the right to take life as a penalty for crime in any case, which is confessedly the foundation for such scruples of conscience by persons called as jurors in capital cases, is clearly not a competent juror for the trial of an indictment, where a conviction involves the death penalty. However faithfully he may intend to render a verdict in strict accordance with the evidence, and no matter how firmly he may believe he will be able to do so, such is the character of the human mind, so self-deceiving in its operations and their results, that an unbiased verdict could scarcely be expected from a juror thus affected. The more sincere and honest his scruples,' the greater the danger of their going with him into the jury box and contaminating his verdict. The firm, independent and impartial administration of public justice is too important to be left exposed to such improper influences, and such uncertain consequences.

We think the juror was properly excluded.

Several other questions arose upon objections by the prisoner’s counsel in the course of empannelling the jury. They are all, however, disposed of by the views already stated, in considering the objection to the ruling of the court in excluding Thompson as a juror.

*123d. It was proved on the part of the people that on a certain Monday morning, the deceased was in bed with another woman at a house of ill-fame in Centre street, in the city of New York, when the prisoner broke open the door of the room where they were, entered the room, seized the deceased, dragged her out of the bed, threw her upon the floor, took hold of her head, “ made her head go up and down a great many times,” as one of the witnesses expressed it, and stabbed her with a knife a great many times in her shoulders, back, neck, stomach, legs, and in various other parts of her body; that he was then forced to leave her, and went into the street. This, as it appears by the evidence, was on the 30th day of November, ■ 1863. She was soon after, and on the same day, taken by the police officers to the city hospital, where she lingered until the 7th day of December, 1863, when she died of the wounds thus inflicted by the prisoner.

The counsel for the people then proposed to prove by a witness on the stand an occurence between the prisoner and the deceased on the Sunday night previous to the murder, for the purpose of showing the intent of the prisoner. To this the counsel for the prisoner objected, and the objection was overruled by the court. The witness then stated substantially as follows: That the prisoner, on the night before the morning of the homicide, at the house where the homicide occurred, wanted the deceased to go out with him away from the house, and she would not go. That he then struck her and bit her hand, and yet she would not go. He then went out and brought in an officer, and said she had stolen his watch. That the officer took both to the station house, where they were locked up all night, and both were let out on Monday morning. That the deceased came back to the house and went to bed. Some time' after, the prisoner followed her to the house and committed the outrages above described. This evidence was entirely proper for the purpose of showing delibera*13tion and malice on the part of the prisoner, and was properly received by the court.

4th. One of the prisoner’s grounds of defense was an alleged variance between the indictment and the evidence, in respect to the name of the deceased, the indictment charging it to be Nancy Elizabeth Vincent, and the evidence showing that she went by the name of Lizzie Walters. The prisoner’s counsel proved, and offered to read in evidence a number of letters addressed to the prisoner under various dates and signed some of them Lizzie Walters, and others Elizabeth Walters, and proved to have been written for and at the request of the deceased. The reading of these letters was objected to by the counsel for the people, and the' objection was sustained by the court. This decision of the court is now urged as a ground for reversing the judgment. Copies of, the letters are annexed to the bill of exceptions, and upon inspection, their contents are found to be entirely immaterial to the question of variance, or, indeed, to any other question involved in the trial, except only the signatures, which showed that at the dates of the letters she called her name Walters. That she called her name Walters, and went by that name, among her associates at the house of prostitution referred to, was proved by .all the witnesses introduced on the part of the people called to prove the homicide and its perpetrator and was not questioned by the public prosecutor. None of these witnesses professed to know what her real name was. Some of these letters in their commencements and conclusions seemed to indicate that the deceased was the wife of the prisoner; for example, they commenced “ My dear husband,” and concluded “Your loving wife,” &c. And it was for the purpose of proving that she was in fact his wife, and therefore her name must have been Walters, and not Vincent, that the letters were offered in evidence. On. objection by the counsel for the people, the letters were excluded. I entertain no doubt of the correctness *14of this decision. A marriage in fact cannot be thus proved, and so far as common reputation was concerned the prisoner had the benefit of all the evidence which he could produce. There was no evidence of cohabitation between the parties, in such a sense, as with the evidence of common reputation in some cases raises the presumption of marriage. The prosecution had proved' that when the prisoner and the deceased were at the station house together, the evening before the commission of the homicide, the deceased stated in the presence of the prisoner, in answer to questions put to her by the officer who was investigating the prisoner’s charge against her for stealing his watch, that she was not his wife, and that her name was Nancy Vincent. It elsewhere appeared that she called her name Nancy E. Vincent, and that she sometimes went by the name of Elizabeth. When she denied in presence of the prisoner that she was his wife, and stated her name to be Nancy Vincent, he made no objection to her statements. The rule, as I understand it, in a case like the present, is, that where the deceased went, and was called among her acquaintances by a name different from . his dr her true name the district attorney may state the true name in the indictment, and if the true name is proved on the trial, there is no variance, although it also appears that the deceased went by another name. So also, if the. name charged in the indictment is not the true, name, yet if it is proved that the deceased went and was called among his or her acquaintances by the name charged, it is sufficient, and there is no variance. Here the deceased declared, the evening before the murder, that'her name was Vincent, and that she was not the wife of the prisoner. The prisoner was present and made no objection. He was at the same time charging her with stealing his watch, which was impossible, if she was his wife. This was quite sufficient to go to the jury, and for them to find that her true name was Nancy E. Vincent.

*155th. There was an attempt madé on behalf of the prisoner to prove that at the time he committed the homicide he was laboring under a state of mental derangement, but the testimony did not approximate to even *prima fade evidence*of the fact. Such as it was, it was fairly submitted by the court to the jury, as was also the question of the variance before considered.

6th. After the evidence was closed, and the case summed up to the jury by the counsel for the prisoner and the district attorney respectively, the prisoner’s counsel requested the court to charge three several propositions of law to the jury as follows:

1st. Premeditated malice canno^be inferred from the manner of the killing, nor the means employed, however cruel the one, or dangerous the other.

2d. That a case like the present where the defense consists in the insanity of the prisoner, it becomes incumbent upon the prosecution to prove him sane.

3d. That if Nancy E. Vincent was not the name of the deceased, and she was known by and among her acquaintances, and in the community in which she lived, and Elizabeth Walters was the name by which she was so known, the jury must acquit. .

The court refused to charge as requested except so far as the propositions were embraced in the charge he was about to make. The court then charged the jury upon the various questions arising upon the evidence ; in the course of which he said to them: “ You must be satisfied that the prisoner committed the murder, and intended at the time to take the life of the deceased. The intent must be completely made out, otherwise you cannot convict of murder. The law presumes malice from the mere act of killing, because the natural and probable consequences of any deliberate act is presumed to have been intended by the author. If the prisoner went to the house with the intent to kill the deceased, or if he went there without intending to kill her *16but at the time he got hold of her and pulled her out of bed, a minute before the blow was struck, he conceived the intent to take her life, then he is guilty of murder. But if you are of the opinion, from all the evidence, that he did not intend to take life, but that the blow was struck in the heat of passion, then you can convict of manslaughter in one of the degrees. * * * You must look, gentleman, at the evidence, in order to gather the intent, or what is termed the malice of the act.”

I am prepared to endorse the law as thus stated by the court. It substantially answers the counsel’s first request to charge. The jury were to judge from all the evidence and the circumstances attending the homicide, whether the prisoner intended to take the life of the deceased, and in looking at those circumstances it was proper for them to take into view the manner of the killing and the means employed ; and from them all taken together they would determine the question of the malice aforethought.

Upon the other two propositions I think the charge was correct. Upon that one which relates to the defense of insanity, the only evidence on the subject was Dr. Banney’s letter to the district attorney, read in evidence to the jury by consent, which is an utter failure to prove the prisoner insane. Indeed it proves directly the contrary. The whole matter was submitted to the jury with great fairness, and quite as favorably to the prisoner as he had a right to require.

On the subject of the misnomer, which I have already considered, the charge, I think, is unexceptionable. It covered the whole ground of the request, and the whole question was fairly submitted to the jury.

It seems to me the prisoner has had a fair trial upon the merits, and that in the course of it, no rule of law has been violated. The evidence of his guilt is clear and con vincing. I think the judgment of the court below should be affirmed. Judgment affirmed.: