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on both sides excepting and reserving from | sented by this ownership he is at liberty to the grant the right to the use of the water use on the east side, where it belongs, unless of the river." The learned counsel for the in instances where he bought with covenants appellant says as a comment: "All that I con- to the contrary. It is claimed that he so cede; but it is not this case. He then ar- purchased the 11 shares of Silas O. Smith gues that the result is changed when there is in the Ely and Peck transfers to the first and superadded to the ownership on both sides second group of Brown's race proprietors. I the agreements for use on the west side and suppose those shares were not included in the the force of the partition decree, to which I findings above referred to. Smith is not shall hereafter refer. My answer to that named among those whose rights under the criticism has already been made, and perhaps Ely purchase Whitney acquired, and such may be repeated in a somewhat different form. shares may not have been embraced in the The water-power of the east-side lots was a forty-four sixty-eighths of the Peck purchase. part of the land. Such part of the land could Those 11 shares passed from Smith to Buell not be severed from the other and remaining and from Buell to Whitney expressly subject part except by deed. No such deed working to the agreement of 1833, and with a covenant a severance was made. What was done was on the part of the grantees not to use the merely a personal agreement of the owners to water-power appertaining on the east side. use a part of their property capable of physi- So far Whitney is bound by his covenant, cal transfer on the west side; but it continued but that affects only the interest bought of to be an integral part of the east-side water Smith, and not the defendants' other ownerEach west-side proprietor owned also ship. It is said, however, that he is estopped his proportion of east-side power by force of by a later deed from Smith's executors. That his title to the east-side lots, and had cove- was made in 1874, and quitclaims Smith's innanted to use his east-side power on the west terest in certain property on Water and St. side; but if he sold his east-side land to one Paul streets, derived from Buell in 1851, exnot bound by the covenant, the grantee was cepting and reserving Smith's right at his free to restore the use of power to the land death "to the use of water originally belongpurchased and to which it belonged. ing to land on the east side of the river, but transferred and made appurtenant to land on the west side of said river, without prejudice. to any rights which the said Whitney now has." I do not see what meaning belongs to the last clause, unless it be that the grantee, by accepting the deed with the exception in it as described, is not thereby to be prejudiced as to any of his existing rights. The grantors chose their own terms and description of what they reserved. The grantee did not admit the grantor's title or right to the thing excepted, or the truth or accuracy of its description, but was left with his existing rights unprejudiced and unaffected. I do not think the acceptance of the deed amounts even to an admission.

The question next arises whether Whitney became such grantee, and involves the transfers of land and water-rights on both sides, and the alleged estoppels asserted against Whitney by the appellants. We have seen that the Bissell purchase, which was lots C, D, 18, and A, became vested in the first group of Brown's race proprietors. Their deeds of west-side lots on that race with the water-rights thereunto belonging would convey none of the "surplus" or east-side water, unless by some added and specific grant of that right, or of the east-side land, of which, as matter of law, it formed a part. The present plaintiffs are the successors of the first group of west-side owners as to the west-side lots, but do not, as I understand the facts, claim to have any separate or specific grant of the east-side water, except by force of their west-side grants. In the view I have taken of the case, they are not owners of the water-right belonging to lots C, D, 18, and A, and that fact alone would seem to be decisive of their claim against Whitney, for they cannot restrain the use by him of water which they do not own. On the other hand, Whitney has become the owner of almost all of the east-side lots, and of the water-power pertaining to them by force of their extension to the thread of the stream. The findings are that he has become the legal owner of the undivided half which passed from Bissell to Ely, and has acquired the interests of all the purchasers of that half from Ely, except three or four. It is also found that he had obtained the legal title of the Peck half, and was the owner in fee of forty-four sixty-eighths of the beneficial interest which passed to the second group of Brown's race proprietors. The power repre

The other grounds of estoppel alleged relate to lot 17, and are based upon the deed of Parsons and the judgment in Pool v. Connolly, which was founded upon that deed, and the acts of the parties. If that should be conceded, it would affect only the waterright appertaining to lot 17, and not alter the necessity of affirining the judgment appealed from. It may be, as the respondent claims, that a partition was sought of the land merely without the water-right of lot 17, and that there was no jurisdiction in the court to adjudge what had become of those water-rights, by declaring that they had been diverted to the west-side lots; but it seems unnecessary to pass on that question. Whitney bought under the decree of partition, and was himself a party to the action, and concededly acquired by that purchase only the land of lot 17, and if he has restored to it its water power, it has been by some other conveyances than the partition deed. I have thus sought to explain my own views of this complicated controversy, which are in general accord

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with those expressed by the trial judge and the general term. I think it will be seen, at least it so seems to me, that there are fundamental difficulties in the way of the appellants' essential and pivotal proposition asserting the transfer of the water flowing over the east-side lots to the titles and ownership of the west-side lots. I have been unable to see how owners in severalty on one side of a stream possessing water lots in common on the other side could have an easement in their own lands on the other side; or how a covenant for use could run with lands not at the same time granted or conveyed. Of course, in the confusion of a great multitude of titles it has not been easy to obtain an accurate mastery of the situation, but its main and essential facts lead me to the conclusion that the case has been correctly decided; and as to the defendants other than Whitney, for the reasons assigned by the general term, the judgment should be affirmed, with costs. All concur.

(115 N. Y. 520)

PEOPLE V. GREENWALL.
(Court of Appeals of New York. Oct. 8, 1889.)
HOMICIDE WHILE PERPETRATING A FELONY-RE-
MARKS OF COUNSEL.

1. Pen. Code N. Y. § 183, subd. 3, declares that the killing of a human being "without a design to effect death, by a person engaged in the commission of, or in an attempt to commit, a felony, either upon or affecting the person killed, or otherwise, " is murder in the first degree. Held, that a killing while engaged in the commission of any felony, whether affecting any person or property only, is murder in the first degree. The words "or otherwise" cannot be construed to mean only "or an

fendant to one of his criminal associates, and the other evidence, was ample to identify him, beyond a reasonable doubt, as the author of the crime.

The indictment contains two counts. In the first count the defendant is charged with killing Mr. Weeks from a deliberate and premeditated design to effect his death; and in the second count he is charged with killing him while engaged in the commission of a felony, to-wit, the crime of burglary. The evidence was sufficient to warrant a verdict of guilty under either count, and the jury were instructed that they might, as they should view the evidence, convict under either count. It appears, however, from the charge of the trial judge that the prosecution mainly relied upon the second count, and the jury found the defendant guilty of murder in the first degree under that count. No objection was made, upon the trial, or upon the motion subsequently made for a new trial, to the indictment. But upon the argument of this appeal the objection was for the first time made that the second count in the indictment does not charge the crime of murder in the first degree. It is provided by subdivision 3 of section 183 of the Penal Code that the killing of a human being "without a design to effect death, by a person engaged in the commission of, or in an attempt to commit, a felony, either upon or affecting the person killed The defendant's counsel contends that the or otherwise," is murder in the first degree. words "or otherwise," mean "or another," and that therefore the second count does not charge murder in the first degree, because it does not allege that the defendant killed Mr. Weeks while engaged in the commission of or attempt to commit a felony either upon or affecting him or some other person. think it is entirely clear that it was intended to make the killing of any human being while engaged in the commission of any felony murder in the first degree, whether the felony was committed upon or affects any person, or concerns property only. No intelligent draughtsman of an act would use the inappropriate word "otherwise" in the sense of "another." Such an absurd use of language cannot be supposed. In the Revised Statutes, (volume 2, p. 657, § 5, subd. 3,) it was provided that such killing, "when perpetrated without any design to effect death, by a person engaged in the commission of any felony," was murder. By the act, chapter 410 of the Laws of 1860, the crime of murder was divided into the first EARL, J. This is the same case which was and second degrees, and the degrees were dehere upon a prior appeal. 108 N. Y. 296, 15 fined as follows: "All murder which shall be N. E. Rep. 404. The new trial has again re- perpetrated by means of poison, or by lying sulted in the defendant's conviction. A care-in wait, or by any other kind of willful, deful scrutiny of the record satisfies us that there was ample evidence to justify the verdict of the jury. There was no dispute that Mr. Weeks was murdered by some person while engaged in a burglary in the night-time at his house, and upon the trial the only disputed question of fact was as to the identity of the criminal. The confessions of the de

other."

2. The fact that subdivision 4 of the act declares the killing to be murder in the first degree "when perpetrated in committing the crime of arson in the first degree," does not qualify the prior subdivision so as to make the felony therein referred to mean only felonies affecting the person killed or some other person.

3. Intemperate remarks of the prosecuting attorney and reference to a former conviction, in violation of Code Crim. Proc. § 484, will not be held grounds for reversal where the record does not show the circumstances under which the language was used, nor the context, and where it appears that the judge emphatically charged the jury that they must base their verdict exclusively upon the law and the evidence, and the appellate court are not satisfied that justice requires a new trial.

Appeal from court of sessions, Kings county.

Christopher F. Kinsley, for appellant. James W. Ridgway, Dist. Atty., for the People.

We

liberate, and premeditated killing, or which shall be committed in the perpetration, or the attempt to perpetrate, any arson, rape, robbery, or burglary, or in any attempt to escape from imprisonment, shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree." Under this act the particular crimes.

while in the commission of any felony, not upon or affecting the person of some human being, except the crime of arson in the first degree, would not be murder in any degree, and such has never been the law in this state, and it was not the common law. In People v. Johnson, 110 N. Y. 134, 17 N. E. Rep. 684, the killing took place while the defendant was attempting to escape from jail under such circumstances as to make his attempt a felony, and the conviction was affirmed. The point, however, which we have been considering, was not taken in that case, and yet if the point is well taken the defendant there ought not to have been convicted. We are satisfied that it is not well taken.

in which the criminal may be engaged at the | the killing of a human being, without delibtime of the killing, in order to constitute erate and premeditated design to effect death, murder in the first degree, are specified; and if the killing was perpetrated while the criminal was engaged in the commission of a crime not specified it was murder in the second degree. The act of 1860 was repealed by the act, chapter 197 of the Laws of 1862; and by that act section 5 of the Revised Statutes, above quoted, was re-enacted down to subdivision 3 thereof, and that was amended so as to read as follows: "Third. When perpetrated while committing the crime of arson in the first degree." Under that act it was only when the killing was perpetrated in committing the crime of arson in the first degree that the crime was made murder in the first degree, and the killing of a human being, while engaged in any other felony, was murder only in the second degree. By the act, chapter 644 of the Laws of 1873, the act of 1862 was amended so that subdivision 3 of section 5 of the Revised Statutes again took its original form. By the act, chapter 333 of the Laws of 1876, the act of 1873 was amended so as to make subdivision 3 of section 5 of the Revised Statutes read as follows: "Third. When perpetrated by a person engaged in the commission of any felony." The words "without any design to effect death," before in the section, were omitted. While the section was in this form, a question was raised whether it was murder in the first degree to kill a human being while engaged in an assault upon the person killed, but without any premeditated design to effect the death of such person. Buel v. People, 18 Hun, 487, 78 N. Y. 492. Section 183 of the Penal Code was draughted before that question was put at rest by the decisions cited, and hence the phraseology of subdivision 3 was again changed, as we may infer, to make it certain that the killing should be murder in the first degree, whether the felony was committed upon or affected the person killed or was any other kind of felony.

The defendant was a witness upon his own behalf, and during his cross-examination the district attorney said, in the presence and hearing of the jury: "I convicted the defendant before, and I will do it again." The defendant's counsel immediately arose, and, addressing the court, said "that reference to the former conviction is a violation of law, and I ask it become a matter of record in this court." This the court then declined, but it was subsequently made part of the record. In his address to the jury, the district attorney used the following language: "Ask Butch Miller, the man who is jointly indicted with the defendant for the murder of Mr. Weeks, where he was on the night of the 15th of March, 1887, and see if he won't tell you he was on De Kalb avenue, and opposite the Weeks house. Ask Butch Miller if he was not in the saloon where Dr. Atwood said he saw them both. Ask Butch Miller if he did not take the car of which Dickerson was the conductor, and ride to the ferry after twelve o'clock on the night in question. Ask Miller if he did not cross the ferry at the time and place as testified to by Mr. Chamberlain. The gentleman on the other side used him as a witness, and profited by the But in the Code a further subdivision is add- experience. Miller was not a witness upon ed as follows: "When perpetrated in commit- this trial, but seems to have been a witness ting the crime of arson in the first degree." for the defendant upon the former trial. For It is claimed that this language must be the use of the language quoted, and upon read in connection with the prior subdivision, other grounds, the defendant before judgand that it qualifies it, and shows that the ment moved for a new trial, which was defelony there referred to means only felonies nied. The language of the district attorney upon or affecting the person killed, or some first quoted was improper, and it may have other person; and that the only other felony been a technical violation of section 464 of intended is arson in the first degree. Why the Code of Criminal Procedure, which prosubdivision 4 was added cannot certainly be vides that, upon the new trial after the reperceived. Its grammatical structure is versal of a former conviction, "the former such as to lead us to suppose that it was verdict cannot be used or referred to, either added by some one after the prior portions of in evidence or on argument." But we do the section had been draughted and completed not know under what precise circumstances by another. The draughtsman of subdivision the language was used, nor what prompted 4 clearly did not have a clear comprehension it. So the words used by the district attorof the force and effect of the prior subdi- ney in his summing up should not have been vision. It may have been intended to make spoken. But the attention of the court was the crime murder in the first degree in case a human being was burned to death in consequence of the crime of arson in the first degree. Under the construction contended for,

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not called to them, and no objection was made to them at the time. The whole address of the district attorney is not given, and thus we have not before us the context,

and are unable to see how, if at all, the words were qualified. The judge very emphatically charged the jury that they must base their verdict exclusively upon the law and the evidence, and, if the charge was not sufficiently explicit in this respect, it would undoubtedly have been made so if he had been properly requested. If the intemperate remarks of the prosecuting attorney in criminal cases, made in the heat and excitement of the trial, and sometimes under the provocation of language used by counsel for the defendant, may always be the foundation for a new trial, the administration of criminal justice will become very uncertain. The district attorney representing the majesty of the people, and having no responsibility except fairly to discharge his duty, should put himself under proper restraint, and should not, in his remarks in the hearing of the jury, go beyond the evidence, or the bounds of a reasonable moderation. The presiding judge can, however, control intemperate language, or so guide the minds of the jury that it may not have injurious effect. If, however, this court can see that the defendant has been prejudiced by such language, it has power, under sections 527 and 528 of the Code of Criminal Procedure, to order a new trial. But before a new trial should be ordered upon such a ground the court should be satisfied that justice requires it. Here the trial judge, who heard all that was said and done upon the trial, refused to grant a new trial, and we are satisfied that justice does not require a new trial, and the defendant has no absolute right to a new trial. Two juries, upon substantially the same evidence, have passed upon his case with the same result. There can be no reasonable doubt of his guilt, and the judgment should be affirmed. All

concur.

(115 N. Y. 475)

PEOPLE v. BARBER.

(Court of Appeals of New York. Oct. 8, 1889.) HOMICIDE-INSANITY.

struck the old man again, and the latter crept under a bureau, and commenced to beg defendant to leave the house. After some little time had elapsed defendant set on fire a cushion and rug, which he had saturated with kerosene, and threw them on the old man. The latter kicked them away, and dehim to go away so that he could come out from fendant placed them on a table. The old man asked under the bureau, or he would be burned up, and the defendant left the house, which took fire and burned down, and the remains of deceased were found in the ruins, and the old man was found in an outhouse. Defendant was shortly afterwards arrested, and when asked about the crime answered that he did not remember it. There was some evidence of an attempted flight by defendant, prior to his arrest. It appeared that defendant was one of a family of nine children, all of whom were the victims of epilepsy; that he himself had had 400 fits up to the age of nine years, but had had ents' relatives had had epilepsy, and that all were none since, so far as known; that many of his parmore or less violent when attacked, and that the attacks were sudden and of brief duration. Dedisease of a very irritable character, and was said fendant, shortly before the killing, had had a skin to have been nervous and haggard; and circumstances were shown which indicated that he had suffered from nocturnal epilepsy. No apparent motive was shown for the crime. On the trial the court's charge as to the effect of the absence of evidence of motive was not very distinct, and questions were asked the expert witnesses by the facts which ought to have been left for the jury. prosecution which called for inferences from the Held, that a conviction of murder in the first degree would be set aside, and a new trial granted.

2. It is error to permit experts to be asked questions which call for inferences to be drawn from the particular facts referred to in the questions, and as to the effect of certain facts upon defendant's guilt or innocence, and of the mental operations of defendant, as these are matters for the jury.

Appeal from court of oyer and terminer, Tompkins county.

This is an appeal by the defendant from a conviction for the murder of Ann Mason at the town of Ulysses, Tompkins county, on the night of March 16, 1888. The defense was insanity, the claim being that the defendant was an epileptic, and that the alleged crime was committed while the defendant was in a condition of epileptic furor. The defendant, Richard Barber, was 27 years of age, born in Billingsborough, England; came 1. Defendant was 27 years of age and came to to this country at the age of 19, and became this country at the age of 19. He was employed a resident of the town of Ulysses, where a as a farm laborer, and up to the time of the killing married aunt, the sister of his mother, had rehe was a quiet, industrious, and amiable man, of unblemished moral character, and perfectly tem- sided for many years. His employment was perate habits. The deceased and her husband that of a farm laborer. The evidence is unwere old people, without children, who lived on a disputed that he was a quiet, industrious, small farm near where defendant was employed. They were distantly related to him, and he often amiable man, of unblemished moral characvisited them, and spoke of them as his "best friends ter, and perfectly temperate habits, and was the accordion for the amusement of deceased, and, in his manner. in America." He was in the habit of playing on frugal and saving of his means, and reserved The only witness of the being about to leave the neighborhood, he had bought for her a music-box, so that in his absence homicide was Richard Mason, the husband of she would still have some amusement. On the Ann Mason. The Masons were old people, night of the killing he went to the farm-house, over 70 years of age, without children, who shortly after deceased had retired, and on the invitation of the husband sat down by the fire and occupied a small farm about one and a half commenced eating apples. After talking for a miles from the village of Trumansburgh, livwhile, pleasantly as usual, he suddenly picked up ing alone in the house upon the farm, the a stick of wood or kindling, lying beside the fire-scene of the tragedy. The Masons were displace, and struck the husband two or three blows on the head, knocking him senseless to the floor. When the husband got up he asked defendant if he had struck him, and he said, "No." He again knocked the old man down, and went into the room where the deceased was in bed, and struck her over the head several times. Ón returning, he

tantly related to the husband of Barber's aunt, and Mason was also an Englishman. Barber became acquainted with the Masons soon after he came to this country, and there existed the most friendly relations between

them. He visited them from time to time them in the tin in the room where he was. when working in the vicinity, and spoke of I set them down, and he took an apple, and them as his "best friends in America." The I took and pared an apple, and ate it. I went Masons had an accordion, upon which Barber, across the room where I was to sit down, and when at their house, would play for the when I passed by him he struck me on the amusement of Mrs. Mason; and shortly be- back of the head three or four times, and fore the homicide he purchased a music-box knocked me down, and cut my head with to give to her, so that she could make her something; I did not see what it was. He own music by, as he said, "turning a crank." knocked me senseless on the floor. It seems It appears that at about 7 o'clock on Friday to me I got up and turned around to him and evening, the night of the homicide, Barber said, 'Did you strike me?' and he said, 'No, left the house of Thomas Donahue, for whom I did not,' just as calm as could be, and I did he had worked several seasons, and which he not know where the blow came from. I did made his home when out of work, and walked not see anybody else. There was not anyalong the road towards Trumansburgh. body else there. Then he struck me three Donahue lived about a mile and a half east or four times, and I fell in the opposite direcof Trumansburgh, and about three miles tion. Then he went into the room where my from the Masons, the village lying between their residences. On his way to Trumansburgh, Barber met one Robertson, for whose sister Barber had engaged to work the ensuing season. Some conversation on this subject was had between them, and it was agreed that they should go together to the house of Robertson's sister, a distance of about 19 miles, on the following Sunday, when Barber should commence work. There is no evidence that Barber was seen by any other person before reaching Mason's house.

The evidence of Richard Mason was taken by deposition before the trial, and read to the jury. It was as follows: "Richard Mason, sworn for the people, examined by Mr. Dean. Question by David M. Dean, Esq., attorney: Question. Your name is Richard Mason, and your residence is in Ulysses, Tompkins county, N. Y.? Answer. Yes, sir. Q. How old are you? A. Seventy-four. Q. What was your wife's name? A. Ann Mason. Q. In March, 1888, was you and your wife all your family? A. Yes, sir. Q. Do you know the defendant, Richard Barber? A. Yes, sir; I know him to my sorrow. Q. Do you remember the night of the 16th of March, 1888? A. I do, and always shall. Q. Did you see Barber on that night? A. Yes, sir. Q. Where did you see him? A. I first saw him at the well-carb, at the back of the house, near the back door of the house, about nine o'clock in the evening. Q. What occurred after that? A. I walked in with the lantern, and asked him to come in, and Barber came in with me. Q. After he came in what then occurred? A. He sat down in a chair, and I asked him where he had been so late; and he said, Up the road a bit.' I asked him if he was going to Thomas Donahue's, and he said he guessed I told him he had better stay all night; the roads were so rough, and he could stay as well as not. He said he guessed not. I asked him if he would have any supper, and he said, No, he guessed not. I knew he was fond of apples, and I asked him if he would have some apples, and he said he guessed he would. I fetched a tin of apples out of the pantry, and he ate one, and I said they were rather poor, and if you will wait I will get you some better.' I went down stairs, and got five or six apples, and put

6

wife was, and struck her with something across the head, and she screamed. He beat her two or three times after she did scream, as she lay on the bed; and then I recovered a little from my blows. I turned in the direction in which she was, and he struck me again, and knocked me down on the other side of the house. Then I crept under a bureau the corner of the room. There I lay bleeding, and my wife screaming, and I wanted him to go away and take the light, and I will follow you to see my wife;' and he said, You come and take the light, and go and see her.' I said, 'If I do come out from under this table you will hit me.' He says, I won't;' and I started to come out, and he struck me, and I went back again under the table. Then I wanted him to take the lamp and go, so I could look at my wife and get a pistol from the drawer of the bureau. He watched me so close, and kept so close to me, that I could not get it. Then I went back under the bureau. I begged and prayed him not to strike me again. Then he did not strike me. I kept under there a half an hour or three-quarters, I could not tell. He stood there all the while, and said nothing, and then I asked him why he came there to knock me and my wife in the head for. I told him I haven't got nothing worth knocking us in the head for, for what little he could get. He stood there a little while, and I asked him, Why don't you leave the house and go away.' Then he didn't go, and then he picked the cushion out of the chair, and he put the cushion and hearth-rug on my leg, and put kerosene on them, and set them on fire. Then I kicked the rug and cushion off my leg, and then he picked up the cushion and rug and accordion, and put them on the table in the corner of the room, and he took the little lamp and poured oil on them, and set fire to them. Then he had the door-knob in his hand, and he kept looking out north and south to see if he saw anybody coming. Then he kept watching the fire. When it got up to a pretty good headway, and in a few minutes, I said, Why don't you go away? I can't get out of here. I shall lie here and perish, and burn up with my wife.' That is the last time I have seen or heard him at that house. My wife lay in the room during all

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