Supreme Court. New York General Term,

May, 1864.

Leonard, *Gierke*and *Welles*Justices.

#### The People *v.*John B. Holmes

On the trial of a prisoner for manslaughter, alleged to have been committed in the First ward of the city of Sew York, it was proved that the prisoner resided in that ward, and that a political meeting had been held there on the night the act was committed. On the cross-examination of a witness for the prosecution, he was asked, “Was the defendant a candidate for alderman of the First ward at this time1? ” On review, *held,*that the question was properly excluded as immaterial and irrelevant.

Where a party relies upon an exception for refusing to charge as requested, the request must be perfectly proper as an entirety; if it embraces a single idea or'view which ought not to be presented, it destroys the value of the exception, although a part of the legal proposition embraced, if detached and presented separately, might be entirely proper.

Form of an indictment for manslaughter.

The prisoner was indicted for manslaughter as follows: *City and County of New York, ss:*

The jurors of the people of the State of New York, in and for the body of the city and county of New York, upon their oath, present:

That John B. Holmes, late of the First ward, of the city of New York, in the county of New York aforesaid, on the third day of November, in the year of our Lord one thousand eight hundred and fifty-four, at the ward, city and county aforesaid, with" force and arms, in and upon one David Hourly, in the peace of the said people then being, willfully and feloniously did make an assault, and that he, the said John, with a certain knife, which he, the said John, in his right hand then and there had and held, the same being a deadly weapon, the said David, in and upon the left side of the chest of him the said David, then and there feloniously and willfully did strike and thrust, giving to the said David then and there, with the *18knife aforesaid, in and upon the aforesaid left side of the chest of him the said David one mortal wound, of the depth of six inches and of the width of two inches, of which said mortal wound the said David, on and from the said third day of November, in the year aforesaid, to and until the fifth day of the same month in the said year, did languish, and languishing did live, on which said last-mentioned day, at the ward, city and county aforesaid, he, the said David, of the mortal wound aforesaid, did die. And so the jurors aforesaid, upon their oath aforesaid, do say that the said John, him the said David, in the manner and by the means aforesaid, feloniously and willfully did kill and slay, against the form of the statute in such case made and provided, and. against the peace of the people of the State of New York and their dignity.

Upon this arraignment he pleaded not guilty.

The issue came on to be fried at a Court of Oyer and Terminer, on the 18th of January, 1864, before Mr. Justice Leonard.

It appeared in.evidence, on the part of the prosecution, that the prisoner inflicted the wound, from the effects of which the deceased died. That the prisoner was a resident of the First ward of the city of New York, at the time the offense was committed; and that on the night when it was done, there had been a political meeting in the ward. The prisoner claimed that the act was done in self-defense, and also, that he was unconscious at the time he struck the blow, from the effects of' which, the deceased died.

The statement of the prisoner given on his examination before the coroner, was given in evidence by the prosecution, and among other things contained the following statement:

“ In receiving the blow, a sudden thought passed through my brain (that now seems to me like a dream), that I thought I was killed, and I as quickly thought to myself, he should go with me. I don’t recollect anything after *19this, until I found myself in my own room. I don’t know whether I stabbed him or not. My mind was in a confused state. I don’t know what occurred after the second thought.

I am certain I did not stab any one before I received the blow on the head.”

*Jacob L. Smith*was sworn as a witness on the part of the prosecution. On his cross-examination he was asked by the counsel for the prisoner, the following question:

*Q.*Was the defendant a candidate for alderman of the • First ward at this time?

The district attorney objected to the question. The court sustained the objection, and the counsel for the prisoner excepted to the decision.

The counsel for the prisoner requested the court to charge, among other propositions, the following:

That if the prosecution rely on the declarations • of Holmes, the prisoner, they (the jury) must take all the declarations together, and that if taken together, they show that he was unconscious when he struck the blow.

The court refused to charge said proposition, and the counsel for the prisoner excepted.

The prisoner was found guilty of manslaughter in the fourth degree and the proceedings were removed into this court for review by *certiorari.*

*James M. Smith,*for the prisoner.

I. It appears there had been a political meeting on the evening of the occurrence, and, that the prisoner had received a blow before the fatal wound was given.

• The origin of the affray was an important question; any *fact*or *circumstance*that might bear upon it was competent evidence for the jury.

The question, “was the defendant a candidate for aider-man of the First ward at this time?” was pertinent.

1. It might have been followed by showing that the party who assaulted him was of the opposite faction. '

*202. It might have raised the presumption that a motive existed for the attack.

3. It was pertinent to show who the defendant was, and also show a reason why he was in the street at that hour of the night.

4. It was important as a test of the strength of the witnesses’ memory. It might have been so as to a test of his prejudices against the defendant.

To illustrate: suppose the question had been answered in the affirmative, and been followed with the question as to whether he was not the opposing candidate, and if there had not been between them bitter political strife, might not this have had an influence upon the minds of the jury as to the credit they should have given to his evidence?

*If it*might, then the question was proper. All the facts and circumstances, relating to the position of the witness regarding the party charged, that may by *possibility*influence his prejudices, his judgments or his acts, are legitimate subjects for cross-examination. (1 *Greenleaf on Ev.,*§ 446; 1 *Starkie on Ev.,*161, *and cases cited.)*

H. It is a well settled principle of evidence that where declarations are relied on for the purpose of producing conviction, the jury must take the declaration together. They cannot select a part and reject the rest. (1 *Greenleaf on Ev., if*218, 201, *and cases cited in note to last section.)*

The statement of the defendant was a material one. The refusal of the judge to charge in the language requested, was error.

The proposition submitted was in effect this: The jury cannot find from the statement that the prisoner, upon receiving the blow, thought he was killed, and that the deceased *should go with him,*and thus infer that he intended to take his life. But they must, if they *rely on that statement*alone, also find that he was unconscious when the fatal wound was given; and if unconscious then, as *matter*
      *21
      *of law,*he was not, on the state of facts presented in “ *the*statement,” responsible for his acts.

The fact that a prisoner’s statement cannot be controverted and contradicted by other evidence, is not here presented. There may be evidence to show its utter falsity, but if the statement of the prisoner is invoked by the prosecution to fix guilt upon him, while in the language of the books “ *the prosecutor can contradict any part of it, and is at liberty to do so,”*yet they must take his whole statement together.

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

I. The question put to the witness Smith was entirely irrelevant.

1. Deceased was in no wise connected with the subject matter.

2. Answered' aye or no, the question did not concern the issue.

II. The question was improper as an entirety.

1. Unless completely correct, in was to be disregarded. *(Sperry*v. *Miller,*16 *N. Y.,*407.)

2. And it was not correct, because it asked the judge to charge respecting a fact in dispute, viz, the consciousness or unconsciousness of prisoner when he struck the blow; and which was one for the jury to determine.

3. Whilst it is true that all the declarations of a prisoner were to be construed, yet those which are contradicted by other facts may be rejected by the jury. (1 *Phil, on Ev., ch.*8, § 11, *pp.*538, 540; *and note*152 *of Cowen & Hill; and cases cited fully sustaininy this practice on principle and authority.')*

*By the Court,*Welles, J.

The question put to the witness, Smith, on his cross-examination, “Was the defendant a candidate for alderman of the first ward at this time ?” was properly overruled. I can perceive no legitimate influence the fact sought to be proved could have had.

*22I think, also, the justice fell into no error in declining to charge the jury as requested. The request embraced more than the defendant was entitled to. When a party relies upon an exception for refusing to charge as requested, the request must be perfectly proper as an entirety. If it embraces a single idea or view which ought not to be presented, it destroys the value of the exception, although a part of the legal proposition embraced, if detached and presented separately, might be entirely proper. For example, if the request' had been to charge that the jury must take all the prisoner’s declarations together, it would have been proper for the justice, so to charge, and he doubtless would have done so. But the request contained the further proposition that, when the declarations were so taken together, they showed (that is, proved) that the prisoner was unconscious when he struck the blow. It was asldng what it would have been clearly improper for the justice to charge. It, in effect, would have taken the whole question of the prisoner^ guilt from the jury; at least the question of what degree of manslaughter, if any, the prisoner was guilty. The hypothesis of the request, “that if the prosecution rely on the declarations of Holmes, the prisoner,” does not relieve the request of the objections. The prosecution undoubtedly relied upon those declarations, but" only in connection with other evidence. It nowhere appears that he relied upon them alone, disconnected with other evidence, to establish any proposition in the case.

I think the conviction should be affirmed, and the proceedings remitted to the Oyer and Terminer, to the end that judgment may be passed upon the defendant in that court- ' Proceedings affirmed.