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People o. Lewis.

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BY THE COURT.—GROVER, J.-Questions of law can only in this class of cases be reviewed in this court. The question whether the evidence justified the verdict of the jury, finding the defendant guilty of murder in the first degree, cannot be examined here. The evidence ottered as to the acts and declarations of the prisoner, after the perpetration of the crime, was properly excluded. Such acts and declarations were not admissible in his behalf. This is the settled rule, and requires no discussion. The real issue upon the trial was, whether the defendant designed to effect the death of the deceased. If he did, he was guilty of murder in the first degree; if he did not, he was not so guilty. The prisoner used no weapon; all he did to deceased was with his fists.

The prosecution proved that threats against the deceased had been made by the prisoner some time previous to the occurrence. The prisoner offered to prove that a few minutes before he made the attack upon the deceased, he went to the house where he lived, and where his father's family lived, and found his sister crying, and inquired as to the cause, and was informed by her that the deceased had just been there and called her mother and herself prostitutes, whereupon the prisoner went directly into the lot where the deceased was, and inquired of him why he had so done, and immediately struck him with his fist.

This evidence was excluded, and the prisoner's counsel excepted. It is clear that if the defendant designed to effect the death of the deceased, this evidence had no tendency to mitigate the crime from murder to manslaughter, and was not admissible for any such purpose. But upon the question whether he did so intend, the evidence ought to have been received. The acts of the prisoner were such as not at all likely to produce death, and upon inquiry whether such was his design, it is very important to ascertain whether he acted from deliberate malice, long entertained, or from recent provocation likely to induce such acts as the prisoner committed. In the former, the conviction that a design to effect the death of the deceased prompted the commission of the acts, would be much more readily arrived at than it would were such acts induced by a recent provocation, which would be likely to in

People ex rel. Lumley v. Lewis.

duce the prisoner to chastise the deceased. Upon this ground only, the evidence should have been received. The learned judge erred in rejecting it, and thereby leaving the jury to infer that the defendant acted from deliberate malice, long entertained. The latter conclusion would be the necessary result of excluding the evidence. Upon this ground the prisoner was entitled to a new trial, and the judgment of the supreme court awarding it must be affirmed.

Many cases were cited by the counsel for the people, where similar evidence was excluded. But these were all cases where there was no doubt as to the intention of the prisoner to effect the death of the deceased, and the only question was whether, conceding such intention, the offense was murder or manslaughter. In such cases the law is well settled that the crime cannot be mitigated from murder to manslaughter by anything that the prisoner may have heard from a third person. In such a case the law adjudges that the prisoner acted only from revenge, and this constitutes murder.

When the provocation arises in the presence of the prisoner, and the act causing death immediately follows, the inquiry is whether the provocation was such as to cause such a frenzy as for the time to deprive the prisoner of his reason, to an extent that he was not capable of deliberation. If so, he is guilty of manslaughter by effecting the death of the deceased. If otherwise, the crime is murder.

Judgment of the general term should be affirmed.

A majority of the judges concurred.
Judgment affirmed.


A proceeding upon mandamus where there has been a return, issue joined, and a trial had thereon, is not a special proceeding under the

Code, but an action.
Orders adjusting taxable costs are not appealable to this court.

On the relation of John Lumley and another, an alternative mandamus was granted by the supreme court, directed to the defendant Lewis and others, who were commissioners of

People ex rel. Lumley v. Lewis.

highways in the town of Cherry Valley, commanding them to open a certain highway, or show cause, &c. The defendant made a return to the writ, and the relators pleaded to the return. The issues were tried at circuit, and a verdict rendered in favor of the relators. The relators then applied, at special term, for final judgment, with costs, and a peremptory mandamus, and the application was granted.

Under the order thus obtained, the costs were taxed by the county judge, as in an action, under the fee bill of the Revised Statutes, but on defendants' motion a re-taxation was ordered at special term, on the ground that they should have been taxed as in a special proceeding.

The supreme court, at general term, reversed this decision, on the ground that costs should be taxed as in an action (reported in 28 How. Pr. 159), and defendants appealed to this court.

The relators moved to dismiss the appeal.

E. Countryman, for the motion.

D. C. Bates, opposed.

BY THE COURT.-DAVIES, J.-The reversal by the general term of the order of the special term, was, in effect, an affirmance of the adjustment and taxation of costs. From this order of the general term the defendants have appealed to this court, and the relators move to dismiss the appeal.

The judgment entered upon the writ of mandamus in this action is reviewable in this court, and, upon the appeal from such judgment, this court has power to review any intermediate order involving the merits, and necessarily affecting the judgment. Code of Pro. $ 11, subd. 1. The intermediate order herein referred to is any order of the character described, made in the action, after the commencement of the same, and before final judgment entered. The order appealed from in this action was made after judgment, and does not, therefore, full within the provisions of this part of the Code, neither is it embraced in subdivision 2 of the same section. It is not an order which in effect determines the action, and prevents a judgment from which an appeal might be taken to this court. It is not

People v. Moring.


a final order made in a special proceeding, for this is an action. Neither is it a finul order made upon a summary application in an action after judgment. The order appealed from, therefore, does not fall within any classification of orders appealable to this court, as defined by the Code.

But a conclusive objection to the appeal is that this court does not review questions upon the adjustment and taxation of costs. Orders made for readjustment or retaxation, or orders made affirming such adjustment and taxation, are not appealable to this court. Such has been the well-settled practice of this court. Sherman v. Daggett, 3 How. Pr. 426.*

The application should be dismissed, with costs.

A majority of the judges concurred.
Appeal dismissed, with costs.


March, 1867.

Affirming 47 Barb. 642.

The act (2 L. 1866, p. 1187, c. 547, amending L. 1846, c. 62),— by which a

duty on brokers’ sales of imported merchandise is imposed, -is not unconstitutional as in contravention of the provision of the constitution of this State, art. 7, § 13, requiring tax laws to distinctly state the tax and the object ; but it is in contravention of the provisions of the con. stitution of the United States, Art. 1, SS 8–10, giving Congress exclusive power to bay duties on and regulate foreign commerce.

Henry E. Moring was indicted in the court of general ses. sions of the peace, in New York, for selling sixty thousand bags of Java coffee as a broker, without having given the bond

* In Sherman v. Daggett, 3 How. Pr. 426, which is here referred to, the court, upon the authority of Rogers v. Holly, 18 Wend. 350, dismissed an appeal by complainants from so much of a decree in chancery, in their favor, as refused them costs. No written opinion was delivered ; but the decision was on the ground that the award of costs in such a case was discretionary. See Lansing v. Russell, 2 N. Y. (2 Comst.) 563. See also on this subject, Downing o. Marshall, 37 N. Y. 380, and Rose v. Rose, 28 Id. 184.

People v. Moring.

required by the acts of 1866 and 1846 above referred to, for the payment of duty on such sales.

The statute in question declares that “All goods, wares and merchandise, and every other species of personal property, which at any time shall be exposed to sale by public auction or offered for sale by sample or otherwise by brokers, shall be subject, each and every time that they shall be sold, to fees or duties at the following rates,” &c.

Other provisions direct the fees to be paid by the person making the sales, and forbid auctioneers and brokers engaged in selling such merchandise, to engage in such business until after having given a bond to the people of the State for the payment of the fees.

The defendant demurred to the indictment, and the court sustained the demurrer, whereupon error was brought by the People to the supreme court.

The supreme court held, that the act was not only a violation of the constitution of the United States, but also a violation of the provisions of the State constitution referred to in the opinion of HUNT, J. They accordingly afirmed the judgment.

The People brought error to this court.

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George Bliss, Jr., for plaintiffs ;-Cited L. 1784 (1 Greenl. 64), 1791 and 1792 (2 Greenl. 313, 470); L. 1806, c. 81; 1817, c. 285; Const. 1821; $ 10, art. 7; L. 1824, c. 47; 1828, 1835. C. 62; Const. 5 Amend. 1835, c. 147; L. 1838, c. 52; 1816, c. 62; 1866; Const. U. S. art. I. & 8, subd. 3; art. I. $ 10, subd. 2; Brown v. State of Marylard, 12 Wheat. 419, 441; License Case, 5 How. Pr. 504, 574, 585, 590, 610; People v. Huntington, 4 N. Y. Leg. Obs. 187; Gibbons v. Ogden, 9 Wheat. 195; 5 How. Pr. 622; Commonwealth v. Kimball, 24 Prck. 359, 360, 362; Smith v. People, 1 Park. Cr. 583; Pierce v. State, 13 N. H. 586; Nathan v. Louisiana, 8 How. Pr. 78, 80 ; Cummings v. Mayor, R. M. Charlton, 26; People v. Coleman, 4 Cal. 46, 56; People v. Supervisors of Orange, 17 N. Y. 235.

Wm. M. Evarts and Waldo Hutchins, for defendant;-Cited Const. § 13, art. 7; People v. Mayor of Brooklyn, 4 N. Y. (4

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