People v. Rugg — 98 N.Y. 537

Majority

p. 537

The People of the State of New York, Respondent, v. Charles H. Rugg, Appellant.

(Argued March 6, 1885;

decided March 27, 1885.)

Headnote

The provision of the Code of Criminal Procedure (§ 336), providing that a grand jury may be drawn “for every other Court of Sessions” than those specified in the preceding section (§ 335), was intended to provide for a grand jury when no designation has been made by the county judge in pursuance of the provision of said Code (§ 45), authorizing him to designate the terms of that court in his county, at which a grand jury is required to attend, or when special circumstances exist requiring a grand jury, aside from those provided for in that section.

Where, therefore, the terms of said court, and the ones at which a grand jury is required to attend have been designated by the county judge, an order of-the court or of the board of supervisors is not essential to legalize the summoning and drawing of a grand jury at a court so designated.

The provisions of said Code (§§ 373, 375) abolishing all previously-existing forms of pleading in criminal actions, and providing that an indictment shall contain “ a plain and concise statement of the act constituting the crime, without unnecessary repetition,” does not prohibit the charging of the offense in different forms in different counts; and such an indictment is not subject to the objection that it charges more than one crime.

Upon the trial of an indictment charging murder in the first degree, a gen- ' eral verdict of guilty is proper. The provision of the Penal Code (§ 10) providing that when “ a crime is distinguished into degrees, the jury, if they convict the prisoner, must find the degree of the crime,” must be construed with, and is qualified and restricted by, the provisions of the Code of Criminal Procedure (§§ 436, 437) authorizing a general verdict of “ guilty,” or “ not guilty,” and declaring that such a verdict “ imports a conviction or acquittal of the offense charged.”

The finding of the degree of the crime is only essential where the jury find the defendant guilty of a degree other than that charged in the indictment. v

p. 538

Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made December 9, 1884, which affirmed a judgment of the Court of Oyer and Terminer of the county of Queens, entered upon a verdict, convicting defendant of the crime of murder in the first degree.

The following is a copy of the indictment:

“The grand jury of the county of Queens by this indictment accuse Charles H. Bugg • of the crime of murder in the first degree, committed as follows:

“ The said Charles H. Bugg, late of the town of Oyster Bay in the county of Queens aforesaid, on the 17th day of November, in the year of our Lord 1883, at the town and in the county aforesaid, with force and arms in and upon one Ann E. Maybee, in the peace of God and of the people of the State of New York, then and there' being willfully, feloniously, of malice aforethought, and with a willful, deliberate, and premeditated design to effect the death of the said Ann E. May-bee, did make an assault, and that he, the said Charles H. Bugg, with both his hands about the throat and neck and over the mouth and nose of her the said Ann E. Maybee, then and there feloniously, willfully, of malice aforethought, and with a deliberate and premeditated design to effect the death of the said Ann E. Maybee, did choke, strangle and suffocate her, the said Ann E. Maybee, of which said choking, strangling and suffocating she, the said Ann E. Maybee, then and there instantly died, and the grand jury aforesaid do say that che said Charles H. Bugg the said Ann E. Maybee in the manner and form and by the means aforesaid, at the town and county aforesaid, on the day and in the year aforesaid, willfully, feloniously, of malice aforethought, and with a deliberate and premeditated design to effect the death of her, the said Ann E. Maybee, did kill and murder 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.

“ Second count. And the grand jury aforesaid by this indictment further accuse the said Charles H. Bugg of the crime of

p. 539

murder in the first degree, committed as follows: While he was engaged in the commission of a felony, to-wit, the crime of murder committed as follows: the said Charles H. Bugg, late of the town of Oyster Bay, in the county of Queens aforesaid, on the 17th day of November, in the year of our Lord 1883, at the town of Oyster Bay and county of Queens aforesaid, with force and arms in and upon one Lydia -Maybee, in the peace of God and of the people of the State of New York, then and there being willfully, feloniously, maliciously and with a design to effect the, death of the said Lydia Maybee, did make an assault, and that he, the said Charles II. Bugg, with both his hands about the throat and neck and over the mouth and nose of her, the said Lydia Maybee, then and there feloniously, willfully, maliciously, and with design to effect the death of the said Lydia Maybee, did choke, strangle and suffocate, of which said choking, strangling and suffocating, she, the said Lydia May-bee, then and there instantly died; and that the said Charles H. Bugg, in the manner, at the place and time, and by the means aforesaid, did kill and murder the said Lydia Maybee 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, and that the said Charles II. Bugg, late of the town and county aforesaid, on the said 17th day of November, in the year of our Lord 1883, at the town and county aforesaid, while he, the said Charles II. Bugg, was engaged in the commission of said felony above described, to-wit, the murder of one Lydia Maybee, in the manner, by the means, and at the time and place aforesaid, with force and arms in and upon one Ann E. Maybee, in the peace of God and of the people of the-State of New York, then and there being willfully, feloniously, maliciously, did make an assault, and that he, the said Charles II. Bugg, with both his hands about the throat and neck and over the mouth and nose of her, the said Ann E. Maybee, then and there feloniously, willfully, maliciously did choke, strangle and suffocate her, the said Ann E. Maybee, of which said choking, strangling and suffocating, she, the said Ann E. Maybee, then and there instantly died. And

p. 540

the grand jurors aforesaid do say that the said Charles IT. Rugg, the said Ann E. Maybee, in the manner and form, and by the means aforesaid, at the town and county aforesaid, on the day and in the year aforesaid, while engaged in the commission of the felony aforesaid, to-wit: the murder of one Lydia Maybee, in the manner, by the means and at the time and place aforesaid, willfully, feloniously, maliciously, did kill and murder, 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.

Third count. The grand jury of the county of Queens, by this indictment, further accuse the said Charles IT. Rugg of the crime of murder in the first degree, committed as follows, while he was engaged in the commission of a felony, to-wit, the crime of grand larceny, as follows:

The said Charles H. Rugg, late of the town of Oyster Bay, in the county of Queens aforesaid, on the 17th day of November, in the year of our Lord 1883, at the town of Oyster Bay, and in the county of Queens aforesaid, with force and arms, one gold watch of the value of $30, one gold chain of the value of $5, one cameo breast pin of the value of $5, and $90 of United States money, consisting of bank notes and United States legal tenders of a kind and denomination unknown to the jurors aforesaid, and a more definite description of which cannot now be given, of the value in all, of $130, of the goods, chattels and property of Lydia Maybee, then and there being found, feloniously did steal, take and carry away, 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; and that the said Charles H. Rugg, late of the town and county aforesaid, on the said 17th day of November, in the year oi our Lord 1883, at the town and county aforesaid, while he, the said Charles H. Rugg; was engaged in the commission of said felony above described, to-wit: the crime of grand larceny committed in the manner, by the means, and at the time and place aforesaid, with force and arms, in and upon one Ann E. Maybee, in the peace of God, and of the people of

p. 541

the State of New York, then and there being willfully, feloniously and maliciously did make an assault, and that he, the said Charles H. Eugg, with both his hands about the throat, neck and over the mouth and nose of her, the said Ann E. Maybee, then and there, feloniously, willfully, maliciously, did choke, strangle and suffocate her, the said Ann E. Maybee, of which said choking, strangling and suffocating, she, the said Ann E. Maybee, then and there instantly died, and the grand jurors, aforesaid, do say that the said Charles H. Eugg, the said Ann E. Maybee, in the manner and form, and by the means aforesaid, at the time and county aforesaid, on the day and in the year aforesaid, while engaged in the commission of the felony aforesaid, to-wit: the crime of grand larceny, committed in the manner, by the means and at the time and place aforesaid, willfully, feloniously and maliciously did kill and murder, 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.

Fourth count. And the grand jury aforesaid, by this indictment, further accuse the said Charles H. Eugg of the crime of murder in the first degree, committed as follows:

While he, the said Charles H. Eugg, was engaged in the commission of a felony, to-wit: the crime of grand larceny, as follows: The said Charles H. Eugg, late of the town of Oyster Bay, in the county of Queens aforesaid, on the 17th day of November, in the year of our Lord 1883, at the town of Oyster Bay, and in the county of Queens aforesaid, with force and arms, $90 of United States money, consisting of bank bills and United States legal tenders of a kind and denomination unknown to the jurors aforesaid, and a more definite description of which cannot now be given, of the value in all of $90, of the goods, chattels and property of one G-arrit Maybee, then and there being found, feloniously did steal, take and carry away, to the great damage of the said Garrit Maybee, and 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. And that the said Charles H. Eugg, late of

p. 542

the town and county aforesaid, on the said 17th day of November, in the year of our Lord 1883, at the town and county aforesaid, while he, the said Charles H. Rugg, was engaged in the commission of said felony above described, to-wit: the crime of grand larceny, committed in the manner, by the means, at the time and place aforesaid, with force and arms, in and upon one Ann E. Maybee, in the peace of God; and of the people of the State of New York, then and there being willfully, feloniously and maliciously did make an assault, and that he, the said Charles H. Rugg, with both his hands about the throat, neck and over the mouth and nose of her, the said Ann E. Maybee, then and there, feloniously, willfully, maliciously did choke, strangle and suffocate her, the said Ann E. Maybee, of which said choking, strangling and suffocating, she, the said Ann E. Maybee, then and there instantly died; and the grand jurors aforesaid, do say that the said Charles II. Rugg, the said Ann E. Maybee, in the manner and form, and by the means aforesaid, at the town and county aforesaid, on the day and in the year aforesaid, while engaged in the commission of the felony aforesaid, to-wit, the crime of grand larceny, committed in the manner and by the means and at the time and place aforesaid, willfully, feloniously and maliciously did kill and murder 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.”

The facts, so far as material to the questions discussed, are stated in the opinion.

jRichard Busteed for appellant.

The indictment was not found by a legally organized grand jury. (Code of Crim. Pro., chap. 2, § 227.) The demurrer to the indictment should have been allowed. The indictment charges more than one crime, and this is prohibited. (Code of Crim. Pro., § 278.) The law only allows separate counts to be resorted to for the purpose of charging the crime to have been .committed in a different manner or by different means than is alleged in the first count. (Code of Crim. Pro., § 279.) The trial judge

p. 543

erred in not compelling the district attorney to elect on which of the four counts of the indictment he would proceed. (Armstrong v. People, 70 N. Y. 38 .) If the jury intended to find the defendant guilty of murder in either degree, it was their duty to find in which of the degrees he was guilty. (Penal Code, § 10.)

John Fleming, district attorney, for respondent.

The grand jury that indicted the defendant was properly summoned. and drawn. (Cypher v. People, 31 N. Y. 373 ; Code of Crim. Pro., §§ 45, 46.) In the absence of any suggestion of fraud, or of injury to the accused, the neglect of the officers to pursue the direction of the statute in the mode of drawing and summoning jurors is not available. (Friery v. People, 2 Abb. Ct. App. Dec. 216 ; Dolan v. People, 64 N. Y. 494 ; Cox v. People, 80 id. 511 ; Code of Crim. Pro., § 228.) The plea that the grand jury was not properly summoned, etc., is not one of the causes for demurrer. (Code of Crim. Pro., § 323.) The indictment was properly signed by the foreman and by the district attorney. No valid objection lies against it upon the ground that further designation was necessary. (Code of Crim. Pro., §§ 285, 286; Wharton’s Crim. Law [8th ed.], §§ 354, 369; Brotherton v. People, 75 N. Y. 162 .) The indictment is not obnoxious to section 275 of Code; the Code not being intended to abolish existing forms of pleadings, or to obliterate existing forms of expression. (People v. Conroy, Ct. of App. not yet reported; People v. Dolan, 64 N. Y. 496 ; People v. Cox, 80 id. 514 .) The indictment does not charge more than one crime and in one form, except as same is permitted. (Code of Crim. Pro., § 279 ; Dolan v. People, 64 N. Y. 496 ; Cox v. People, 80 id. 515 ; People v. McGloin, 91 id. 254; Duel v. People, 78 id. 492; Penal Code, § 183, defining murder.) The verdict of “guilty” by the jury was regular; the indictment charging but one crime “ Murder in the first degree.” (People v. Hawker, 75 N. Y. 487 ; Code of Crim. Pro., § 279; Penal Code, § 11.) The defendant having acquiesced in the manner in which

p. 544

the jury were directed to conclude upon their verdict, no possible wrong was done him. (People v. Dunn, 90 N. Y. 109 ; People v. Bork, 96 id. 196 .) He acquiesced in the verdict as rendered by failing to except to it, or to move in arrest of judgment. (People v. D'Argencourt, 95 N. Y. 631 ).

The defendant was indicted for murder in the first degree in killing one Ann E. Maybee, in the town of Oyster Bay, Queens county, on the 17th day of November, 1883, and was tried and convicted of the offense in the Court of Oyer and Terminer held in said county on the 14th day of April, 1884. The jury rendered a general verdict of “guilty ” without designating the degree of the crime.

Yarious questions were raised upon the trial and are now presented on this appeal, and, so far as they affect the legality of the proceedings and the conviction of the defendant, will receive due consideration.

The first question presented upon the argument relates to the organization of the grand jury which found the bill of indictment against the defendant, and it is insisted that the court erred in refusing to set aside the indictment on the ground that it was not found by a legally organized grand jury. This question was raised by a motion to quash the indictment, which was based upon the affidavit of the defendant’s attorney wherein he set forth that he had made diligent search in the clerk’s office of Queens county .for a copy of the order of the court or board of supervisors, summoning the grand jury for the term of the Court of Sessions at which the alleged indictment against the defendant was found, which should have been filed as required by statute, and that there was no record of any order by the court or board of supervisors, summoning a grand jury for the said term, and that the summoning and impaneling of the said alleged grand jury was irregular and without warrant of law. In opposition to this affidavit the record from the county clerk’s office was produced, showing the appointment by the county judge of Queens county of thetirnes and place of holding terms of the County Court and

p. 545

Court of Sessions, and designating those terms at which a grand jury should be summoned, as required by law, among which was the one at which the indictment against the defendant was found ; also proof of the publication of the notice for the holding of courts in the county of Queens as before mentioned in accordance with the statute.

The claim of the defendant’s counsel is that section 45 of the Code of Criminal Procedure, under which the notice and publication referred to were made, has no. relation to the formation of grand juries, and that the main object of that section is to provide for the holding of Courts of Sessions in counties other than New York and Kings, and that the provision in it respecting grand and petit juries is only an incident. The point urged is that the grand jury by whom the defendant was indicted, was not directed to be summoned by the court or board of supervisors in pursuance of sections 225 and 226 of the Code of Criminal Procedure, and that they were drawn in violation of section 227 of said Code, and, therefore, no authority existed for the drawing of the grand jury in •question. The question presented requires the examination of the various sections of the Code referred to, and any other that bears upon the subject. By section 45 it is declared, “ a Court of Sessions must be held at such times as the county judge of the county, by order, designates, and at the place where the County Courts are held for the trial of issues of fact by a jury. Such order must' designate the terms at which a grand or petit j ury, or both, or neither, is required to attend; and neither a grand jury nor a petit jury is required to be drawn, or summoned to attend a term thus designated to be held without a j ury. The order must be published in a newspaper printed in the county, for four successive weeks previous to the time of holding the first term under such order.” This section is a part of chapter 2, title 5, part 1, of the Code of Criminal Procedure, which relates to Courts of Sessions in counties other than New York and Kings. Under this section, as we have seen, an order was made designating the times when and

p. 546

place at which Courts of Sessions in said county should be held, and the terms when a grand jury would be required to be summoned; and due notice was given of the same as the law required. By section 46 provision is made for the drawing and summoning of a grand jury where a .county judge omits to designate the terms in accordance with section 45, and in case of such neglect, grand juries are to be drawn and summoned for each of the terms mentioned in the order provided in section 45.

It is quite manifest, we think, that the grand jury which found the bill of indictment against the defendant was lawfully drawn and summoned in pursuance of section 45 above cited. As the terms were named, in the order of the county judge, at which grand juries were to be drawn and summoned, he provisions of section 46 have no application.

A lawful' grand jury having been drawn and summoned, and the indictment in question found by them in accordance with the provisions cited, such indictment must be held to be valid, unless it is made to appear that the proceeding was in conflict with the other provisions of the Criminal Code already referred to. Such, we think, was not the case, and the provisions of the Code relied on by the defendant are in entire harmony with sections 45 and 46 (supra), and constitute a part of a system by which grand juries may be drawn and summoned to meet exigencies under all circumstances, as will be seen by an examination of’ these provisions. Section 225 declares that grand juries must be drawn for Courts of Oyer and Terminer, except in the city and county of Hew York, and "the county of Kings, and except for extraordinary or adjourned terms; for the Court of General Sessions of the city and county of Hew York, and the Court of Sessions of the county of Kings; and the City Courts whenever an indictment can be there found. It will be observed that no provision is made in this section for the drawing of grand juries for Courts of Sessions in any county except Hew York and Kings, and it has no application to any county in the State except to those named. As we have seen, grand juries for the Courts of Ses

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sions of such other counties are expressly provided for by sections 45 and 46 already cited.

Section 226 provides that a grand jury may be drawn for every other Court of Sessions (not named in the preceding section), when specially ordered by the court or by the board of supervisors. This section was intended to provide for the drawing of a grand jury when no designation had been made by the county judge in pursuance of the provision of section 45, or where special circumstances existed which required that a grand jury be drawn and summoned independent of those which were provided for by the sections of the Code already cited. There is no absolute requirement that a grand jury must be drawn, but merely a declaration that it may be, thusD leaving it a matter of discretion to be exercised as circumstances might demand. Section 227 is as follows : “ If made by the court or a judge thereof, the order for a grand jury must be entered upon its minutes, and a copy thereof filed with the county clerk at least twenty days before the term- for which the jury is ordered. If made by the board of supervisors, a copy thereof, certified by the clerk of the board, must be filed with the county clerk at least twenty days before the term; and when so filed, is conclusive evidence of the authority for drawing the jury.” The difference between the cases last provided for and that contained in section 45 is very apparent. In section 45 the publication of the order must be for four weeks before the holding of the first term under the order, while in section 227 it is to be filed in the county clerk’s office at least twenty days before the term. These various provisions are not inconsistent but essential to complete a system by means of which grand juries may be drawn and summoned as occasion may require.

The designation by the county judge of the terms of court at which Courts of Sessions shall be held is an order of that officer made in pursuance of the statute, which alone authorizes the holding of such courts, and it specially designates those courts at which grand and petit juries shall attend, and a direction and notice to' the county clerk to draw said jurors and

p. 548

to the proper officer to summon them to attend. This is manifest from the provision contained in the same section (§ 45) that11 neither a grand or a petit jury is required to be drawn, or summoned to attend a term thus designated to be held without a jury.” There is no ground for claiming that the order is not effective because section 45 does not require that it should be filed in the office of the county clerk, and no reason exists why the publication of the order, of itself, should not be a notice to the county clerk, as it is to other persons, of the holding of the courts therein mentioned. It is the duty of the county clerk to take notice of the holding of courts required by law; to give the proper notice of the drawing of the panel of jurors, and, in connection with the proper officers whom the law designates, to draw the same. (Code of Civ. Pro., §§ 1042, 1043,1044.) When this duty is performed, the panel is perfect and complete, and a grand jury thus drawn constitutes a body duly authorized to find bills of indictment.

As there is a distinct enactment by section 45 (supra), under which grand juries may be drawn and summoned for Courts of Sessions in the different counties of the State generally, and as the grand jury which indicted the defendant was organized in accordance with these provisions, there is no ground for claiming that it was illegally constituted and had no authority to find the indictment in question.

Upon the trial the defendant interposed a demurrer to the indictment against him upon various grounds which the court overruled, and the defendant excepted to the decision. It is urged that this was erroneous for the reasons which will presently be considered.

It is said that the indictment was drawn in defiance of sections 273 and 275 of the Code of Criminal Procedure.

By section 273, all forms of pleading in criminal actions, heretofore existing, are abolished, and the forms provided by the Code substituted in their place. Section 275 provides for the form of the indictment, and declares what it shall contain, and among other things, a plain and concise statement of the act constituting the crime, without unnecessary repetition.

p. 549

The claim that the provisions of this section have been violated cannot be upheld, nor can it be said that the phraseology employed in the indictment is so uncertain and difficult as not to be comprehended upon a perusal of the same, or that it does not intelligibly and fairly present, in language sufficiently plain and concise, the real character of the offense intended to be charged against the defendant. We are unable to perceive any such deviation from the rule prescribed by the statute, as would justify the conclusion that the indictment is demurrable on that account. The indictment contains four different counts, charging the commission of the offense in somewhat different forms. While to some extent it follows the old form prior to the enactment of the Code of Criminal Procedure, it cannot be said that it contains useless and unnecessary words which violate its provisions. In view of the circumstances connected with the crime with which defendant was charged, it contained a plain and concise statement of the crime alleged within the spirit and meaning of the Criminal Code. It is not pointed out to us, nor are we able to discover any language in the indictment which evinces a disregard of the provisions of the Code, or a deviation from the principle intended to be established thereby.

Nor is there any ground for the claim that the indictment charges more than one crime. Although it contains different counts, it merely states the commission of the same offense in different forms, so as to meet the evidence which might be presented upon the trial. As there was no direct proof, by an eye-witness, of the commission of thé offense charged, and as it was connected with the commission of other crimes, it was entirely competent for the pleader to allege in different counts such facts as might, by possibility, be presented upon the trial, and as the proof as to these could not be anticipated with exactness, such allegations were proper and within the provisions of the Criminal Code. There is nothing in these provisions which compels the pleader to confine the indictment to a single statement of the facts where the proof is uncertain. The object of the pleading is to inform the defendant of the crime alleged

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against him, and when, this is done, without needless repetition, it cannot be urged that he has not been fully advised of the character of the crime for which he is indicted,

Wor can it be said that each of the counts charges the crime to have been committed in precisely the same manner and by precisely the same means. On the contrary, the indictment contains allegations in each of the counts showing a somewhat different state of facts and varying the circumstances under which the crime is alleged to have been committed. This is in strict accordance with the provisions of the Code of Criminal Procedure, and furnishes no ground for a demurrer, and there was no error committed by the judge in overruling the same. The trial judge did not err in receiving the general verdict of guilty. The indictment contained four counts, each of which charged the commission of the crime of murder in the first degree, and the judge, in charging the jury, stated to them that the indictment was for murder in the first degree, and that under it, they could convict the defendant of any of the degrees of murder or manslaughter which under our statute made up the general designation of the crime of homicide. At the close of his charge the defendant’s counsel asked the judge to charge that, if the jury should convict the defendant under the indictment, they must, in their verdict, find the degree of the crime of which he is guilty. In response to this request the judge charged that they might find him guilty, or if they found him guilty of .any thing but murder in the first degree, they must then specify what the crime is. Wo exception was taken to this portion of the charge. The jury having retired, returned into court and rendered a verdict of “ guilty.” Defendant’s counsel then moved for a new trial, but no exception was taken to the verdict as rendered, nor does it appear that any motion was made in arrest of judgment on the ground that it was erroneous. It would thus seem that the defendant’s counsel acquiesced in the submission of the case to the jury in the form in which it was presented in reference to the rendition of the verdict and to the form of the verdict as rendered without interposing any objection whatever to the same. With

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out, however, determining the question whether the defendant’s counsel waived his right to interpose an objection, upon appeal, to the verdict, we think no error was committed either in the submission to the jury or in receiving the general verdict of guilty.

Section 10 of the Penal Code provides, “ whenever a crime is distinguished into degrees, the jury, if they convict the prisoner, must find the degree of the crime of which he is guilty.” This provision must be interpreted in connection with others which have a bearing upon the subject, as will be seen by reference to the same. By section 436 of the Code of Criminal Procedure, “ the jury may either render a general verdict, or when they are in doubt as to the legal effect of the facts proved, they may, except upon an "indictment for libel, find a special verdict.” By section 437, “ a general verdict upon a plea of not guilty is either ‘ guilty ’ or ‘ not guilty ’; which imports a conviction or acquittal of the offense charged in the indictment. Upon a plea of a former conviction or acquittal of the same offense, it is either ‘for the people’ or ‘for the defendant.’ ” Taking these provisions together it is apparent that section 10 of the Penal Code must be construed with the qualifications and restrictions contained in sections 436 and 437, supra, of the Code of Criminal Procedure, and where, as in this case, the indictment charges the degree of the crime and the verdict is the general one “ guilty,” it is not essential that such degree should be specified in the verdict. Any other interpretation would render the provisions contained in the last two sections cited inoperative and of no avail. The object and intention of section 10 of the Penal Code evidently was to guard and protect the rights of the defendant so that the court in inflicting the punishment might be advised of the exact nature of the crime of which he was convicted. That object is fully accomplished where the indictment specifies the degree of the offense charged and the verdict is a general one of “ guilty.” The finding of the jury of the general verdict of “guilty” was, under the circumstances, equivalent to and in fact a verdict of guilty of murder in the first degree in view of the fact, es

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pecially, of the instruction of the court that if they found the defendant guilty of any other degree they should so state in their verdict. It follows that the verdict of the jury as rendered furnishes no ground for a reversal of the judgment.

There are no other questions presented in the case that require an extended discussion.

Numerous questions were raised on the trial upon the impaneling of the jury in reference to the evidence given on the examination of some of the jurors as to their qualification to act as such. After a careful examination of the various questions raised we are satisfied that within well-settled rules, sustained and upheld by the decisions of this court, no error was committed by the judge in any of his rulings, and that all of the jurors who were sworn were legally qualified to act as such, and we do not deem it necessary to discuss at length the objections urged in regard to this branch of the case.

The claim that the trial court failed in its duty in not admonishing the jury as required by section 415 of the Code of Criminal Procedure has no merit. We are not referred to any portion of the record from which it appears distinctly that this was not done. No question appears to have been made on the subject, and no exception is presented which raises any such point.

We have examined the other points which have been urged upon our attention by the defendant’s counsel and we do not find that in any of the rulings upon the questions referred to, any error was committed by the judge upon the trial.

The charge against the defendant involved the murder of two persons, and was connected with a burglarious entrance into the house where they lived and a violent assault upon a blind and infirm old man, and also a felonious taking of property and money from the premises. The trial was conducted with entire fairness, the defendant was defended by able counsel and the verdict of the jury was fully sanctioned by the evidence. A careful examination of the whole case leads to the conclusion that no error has been committed to the prejudice of the defendant.

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The judgment of conviction should be affirmed and the record remitted to the Supreme Court with directions to proceed according to law.

All concur.

J udgment affirmed.

Cases cited

Armstrong v. People 70 N. Y. 38 N.Y. 1877-06-05 p. 543
Cyphers v. People 31 N. Y. 373 N.Y. p. 543
Hawker v. People 75 N. Y. 487 N.Y. 1878-12-17 p. 543