jury whether sufficient time had elapsed for the exicted passions of the defendant to cool. Shorter v. People, 2 N .Y. 193; People v. Sullivan, 7 id. 396; People v. Kelly, 113 id. 647; 22 St. Rep. 969; People v. Carlton, 115 N. Y. 618; 26 St. Rep. 434.

It may be true that the defendant left the saloon, procured the pistol, returned and fired the fatal shot while smarting and angered by reason of the insults and blows of the deceased, but these facts constitute in law no excuse or justification for the killing. So long as there was time and opportunity for reason to assume its sway and the passions to cool the law holds the defendant responsible for his acts. It may be that the language and conduct of the deceased provoked the original quarrel in the saloon, but after that difficulty had terminated the defendant returned to renew it, and, instead of avoiding further trouble, as was his duty, deliberately sought out the deceased and shot him, as the jury found from motives of revenge. It is not now within the province of the court to disturb the verdict of the jury on the ground that the deceased was the aggressor in the beginning. The courts, in the administration of criminal justice, are bound by settled legal rules. If the effort and operation should be mitigated in a particular case by reason of special facts or circumstances, that power rests with the executive department of the government and not with the judicial tribunals. There are some features of this case that deserve, and doubtless will receive, careful consideration in that department. People v. Fish, 125 N. Y. 136; 34 St. Rep. 840.

There are no other questions disclosed by the record that call for further discussion, or that would justify a new trial, and the judgment of conviction must, therefore, be affirmed.

All concur.

Judgment affirmed.

July 26, 1895.

Supreme Court-General Term-Second Department.

PEOPLE v. THOMAS JONES.

LOTTERIES-CHARGE.

(69 St. Rep. 273.)

Where a statute recognizes a distinction between lottery policies and lottery tickets, but fails to state in what it consists, it is error, upon the trial of an indictment for selling a lottery polcy, to charge that it was not a lottery ticket.

Appeal from a judgment of conviction for selling a lottery policy.

James &Thomas H. Troy, for appellant.

James W. Ridgway, Dist. Atty. of Kings county, for People. PRATT, J.—I r gret to express the conviction that the learn ed trial judge erred in telling the jury that the paper in ques tion was not a lottery ticket. True, the defendant was indicted for selling lottery policies, and, in one sense, it may be said that it was immaterial what the paper was, so long as it was not a lottery policy. But the trouble is precisely this: The statute recognizes a distinction between lottery policies and lottery tickets, but does not state in what it consists. It assumes that somebody knows, and that the distinction is susceptible of proof, and that courts and juries must have proof on that subject before they can convict. There was proof here that the paper in question was what is commonly known as a lottery policy. The court, notwithstanding this proof, submitted that question of fact to the jury, accompanied by the statement that it was not a ticket. This was apparently a ruling of law, the tendency of which was to help prevent the jury from entertaining a reasonable doubt whether or not the paper was a lottery policy. Non constat, since the question was submitted to them, the jury might otherwise have entertained a reasonable doubt whether this paper was a ticket or a policy. I am not able to say that this ruling did not prejudice defendant on the other questions.

A new trial, should, therefore, be granted.

DYKMAN, J., concurs. BROWN, P. J., dissents.

INDEX.

1. Evidence.

ABORTION.

On the trial of an indictment for abortion, it is not erroneous
to take proof of the death of the girl from miscarriage. People
v. Van Zile (Sup. Ct.), 87.

2. In such action, any testimony respecting the effect of the
medicine prescribed by the defendant is relevant. Id.

1. Charge.

2.

3.

4.

'APPEAL.

A charge that there is no presumption to be taken against
the defendant because he does not go on the witness stand;
that he has the right to say to the prosecution, "It is my judg-
ment that the situation is such that I am not bound to take the
witness stand, and the law gives me that right," is no error.
People v. Hayes (Ct. App.), 24.

An instruction that, if the jury are convinced, beyond a
reasonable doubt, of the guilt of the defendant, they may con-
vict, no matter what opinion they have as to the testimony of
a certain named witness, is not erroneous. People v. Spiegel
(Sup. Ct.), 60.

Where the proofs of loss furnished are, by their terms, neces-
sarily intended to constitute a claim for indemnity, the refusal
of a request to charge, based upon the assumption that it had
not been intended to present a claim, is correct. Id.

Error cannot be predicated upon a refusal to present addi-
tional requests to charge, to which no exception was taken. Id.

VOL, IX-71

5.

6.

Where the judge lays down erroneous propositions in his
charge, but, upon objection, corrects the misdirection and lays
down the proper rule, no error is presented for review.
People v. Wilson (Ct. App.), 93.

On a trial for manslaughter, the reference of the court to
the statement of a child, made to a third person out of court,
as testimony is not prejudicial error, where the jury know
that the child had not been examined and are not likely to be
led by such mistake. People v. Derringer (Sup. Ct.), 116.
7. An erroneous charge is not reversible error, where specific
requests to charge upon same point were granted in the very
language of the requests. Id.

8.

Where the instructions to the jury entirely eliminates the
question of criminal intent, upon the trial of an indictment for
forgery the refusal of a request to charge such intent is error.
People v. Wiman (Sup. Ct.), 490.

9. Court of appeals.

10.

The court of appeal has power, in a capital case, to review
the facts and to grant a new trial when satisfied that the
accused has not had a fair trial, or when injustice has been done,
but it must observe the rules and principles which apply to
all tribunals exercising appellate jurisdiction. People v.
Kerrigan (Ct. App.), 555.

When the jury has once determined, upon evidence which
is sufficient, even though capable of diverse or opposing in-
ferences, the questions of fact, the court of appeals has no
more right than the trial court to substitute its own judgment
in the place of that of the jury or to usurp its legitimate func-
tions. Id.

11. Court of appeals-Criminal cases.

In the absence of exceptions, unless the record shows that
the ends of justice really require a new trial, it will not be
granted under section 528 of the Penal Code, even though

some legal or material error may have occurred upon the trial.
People v. Leonardi (Sup. Ct.), 318.

12. Criminal law.

A judgment of conviction, in a criminal action, will be
reversed on appeal, where the circumstances, though strongly
suspicious, do not exclude every hypothesis except the guilt
of defendant. People v. Maxwell (Sup. Ct.), 524.

13. Evidence.

The court may, on its own motion on a criminal trial, strike
out improper evidence and instruct the jury to disregard it,
and it will be assumed that they obeyed. People v. Wilson
(Ct. App.), 93.

14. The statement of inadmissible testimony, not called for by
any question of the prosecution, is not error in the absence of
a motion to strike it out. People v. McKane (Ct. App.), 379.

15. Finding.

Upon the trial of an indictment for larceny, a finding as to
the value of the goods stolen, for the purpose of fixing the
degree of the crime, will not be disturbed on appeal, where the
evidence introduced on the part of the people was that the
value of the undisputed articles exceeded twenty-five dollars,
and the court charged that the jury were not bound by the tes-
timony of the people's witnesses, but could judge of the value
for themselves, and at the same time directed their attention
to the importance of such determination to the defendant.
People v. Alexander (Sup. Ct.), 512.

16. Harmless.

On a trial of an indictment for printing circulars advertis-
ing counterfeit money, evidence that the circulars were of
a kind used by counterfeiters is not prejudicial to defendant,
where the object of the circulars appears upon their face.
People v. Marvin (Sup. Ct.), 247.