Opinion by BOCKES, J. district-attorney to elect, at the commencement of the trial, under which count of the indictment he would proceed. The indictment contained two counts. In the first the prisoner was charged with feloniously killing one Lucy A. McLaughlin ; and in the second with feloniously killing one Kate Smith. After the jury was empanelled, the prisoner's counsel requested the Court to direct the district-attorney to elect on which count he would proceed. The Court thereupon stated that the motion would be reserved, and thereafter decided. No exception was taken at the time to this disposition of the motion, and the trial proceeded. The evidence showed that the deceased was known by the name of Kate Smith. She was generally, if not always, called by that name. One witness testified that she once told her that her name was Lucy Ann, and that she once wrote it on a box Lucy Ann McLaughlin. At the close of the evidence the Court alluded to the motion made at the opening of the case, and required the district-attorney then to elect under which count he would claim a conviction. The district-attorney elected to hold the second count, in which the prisoner was charged with killing Kate Smith, and a nolle prosequi was thereupon entered by order of the Court to the first count. The counsel for the prisoner then moved that all the evidence referring to Lucy McLaughlin, or to the party under the name of Lucy McLaughlin, be stricken from the record, which motion was granted. Indeed there was no In all this the record discloses no error. exception taken on which error could be predicated. The course adopted by the Court in reserving the decision seems to have been acquiesced in at the time; and when a ruling was made, it in all respects was as full and extensive as the prisoner's counsel desired. It is true that, under the Act of 1855, the prisoner may have a new trial, even though no exception be interposed; but before he can claim the benefit of that act, it must be made to appear to the Court that the verdict was against the weight of evidence, or against law, or that justice requires a new trial. Here was no error of law, and the evidence of guilt is certainly overwhelming. Opinion by BoCKES, J. If every paragraph of the evidence in which the name of Lucy Ann McLaughlin occurs be stricken out, as it was in fact, there is proof abundant remaining to convict the prisoner of the murder of Kate Smith. Nor could the admission of the evidence which was afterward stricken out have operated to the injury of the prisoner. It did not tend to prove him guilty of any other or different offence than that of which he was convicted, for Lucy Ann McLaughlin was the same person called and known as Kate Smith, whose tragic death alone was the subject of examination. Most clearly the prisoner has no cause of complaint as regards this branch of the case. It is urged that the letter produced and read on the trial was not sufficiently identified as the one sent to the deceased by the prisoner. This position is wholly unsupported by the facts. It was proved clearly that he wrote or originated it. A witness swore that he delivered a letter to the deceased, at his request, shortly before the fatal occurrence, and that she returned an answer. It was picked up in the house, and in or near her room, soon after, and being read in the prisoner's presence, he admitted its authenticity. More direct and satisfactory evidence of its identity can hardly be conceived. No other subject remains for our examination. The defence relied on was insanity or moral irresponsibility. It was insisted on the trial that the prisoner was at the time laboring under an attack of delirium tremens. An unprofessional witness, a printer by trade, testified that he saw him about twelve or one o'clock of the day of the homicide; that he had a wild vacant look about his eyes; was fidgety and uneasy; spoke in a husky tone of voice. The counsel for the prisoner then proposed to prove him insane or delirious, by the opinion of the witness. One of the questions propounded was as follows: "Was he or not, in your opinion, insane or delirious?" The question was excluded. The Court remarked that the witness was at liberty to state the facts within his knowledge, but could not be permitted to give his opinion. The ruling of the Court was manifestly correct, according to numerous decisions, both in the Supreme Court and in this Opinion by BOCKES, J. Court. It was laid down in Dewitt v. Barley (9 N. Y. 371), that "The opinions of witnesses, other than those who are specially qualified by scientific knowledge to judge of such matters, are not competent evidence of soundness or unsoundness of mind," except in cases of subscribing witnesses to wills or deeds. (See also The People v. Lake, 12 N. Y. 358; and Clapp v. Fullerton, 34 N. Y.190.) The true rule and line of distinction, as regards professional and non-professional witnesses, were laid down with clearness and precision by Porter, J., in Clapp v. Fullerton. As there stated, a layman, when examined as to facts within his own knowledge bearing on the question of sanity, may be permitted to characterize the acts to which he testifies as rational or irrational. He may testify to the impression produced by what he witnessed; but he is not legally competent to express an opinion on the general question whether the mind of the individual be sound or unsound. We adhere to the rule on this subject laid down in the case cited. The Court was not in error in excluding the opinion of the witness on the subject of the prisoner's sanity or insanity. Nor was there any error in the charge of the judge on submitting the case to the jury. He defined the crime of murder correctly, as declared by the statute and by the common law; drew the attention of the jury to the leading and controlling facts of the case, and distinctly and intelligently instructed them on the subject of the meditated design. In regard to the alleged defence of insanity, he stated that, to be effectual as a defence, it must be made to appear that the prisoner was, at the time of the homicide, laboring under such a defect of reason as to be unconscious of the nature, character, and consequence of his acts; that voluntary intoxication was no excuse for crime; but that actual insanity, even when brought on by long-continued, vicious or improper indulgence, would furnish immunity from punishment for acts which, under other circumstances, would be criminal. This was sound law, just in its application to the conscious offender, yet recognizing the exemption due to those bereft of the power to discern between right and wrong (31 N. Y. 330, and cases there Opinion by BOCKES, J. cited). I am not so well satisfied with what occurred when the jury returned into Court for further instruction. A juror inquired as follows: "Is a person under delirium tremens of sound mind, in the meaning of the statute?" If the facts in proof were such as to make the inquiry material or essential to the decision of the case by the jury, they were entitled to a direct and explicit answer from the judge. This was not given. The jury were left without that clear and explicit instruction called for by the inquiry. The judge read to them the law applicable to a condition of drunkenness, in which a paragraph occurred bearing on the subject, in regard to which information was desired, and which, with some amplification, would have met the question. The paragraph was this-that if reason be perverted or destroyed by fixed disease, though brought on by a person's own vices, the law holds him not accountable. I think the question was not fully and clearly answered by this observation, which incidentally occurred where another subject was more directly under consideration. Had the facts proved made the question put by the juror apposite to the case, the Court should have answered that delirium tremens was actual insanity, and irresponsibility was the result, if the alleged offence was committed while the individual was deprived of reason by such settled or fixed disease. But the case did not call for any instruction on the subject. There was no evidence of insanity or moral irresponsibility. There was no evidence that the prisoner was laboring under the disease known as delirium tremens. On the contrary, the evidence was unmistakable that the prisoner was governed by a responsible will and motive. Even if the statement of Dr. Shier be accepted, as proving the fact that about a week prior to the commission of the homicide the prisoner was suffering from an incipient attack of the delirium tremens, there is no evidence that it culminated to an extent producing insanity. The evidence is clearly to the contrary. The letter he wrote or dictated, and sent to the deceased, immediately prior to the affray, evidences the existence of memory, reason, will, and purpose, and consequent moral and intellectual power and responsi Opinion by BOCKES, J. bility. So also his remarks at the time of, and immediately succeeding the occurrence. No witness speaks of anything remarkable or unreasonable in his conversation or acts. Indeed, there is a total absence of all evidence showing that he committed the act under any delusion or condition of irresponsibility such as may be urged by way of exculpation. On the contrary, it stands proved that, in the full exercise of his faculties, and governed by a wicked impulse which the law denounces and the good abhor, the prisoner deliberately sought out and slew his victim, in brutal disregard of her supplications and entreaties to be spared her life. The question put by the juror had no pertinency to the case made by the evidence, and more precise and elaborate instructions on the subject of delirium tremens were needless. After a careful examination of the case, we are of the opinion that the record discloses no error of law, nor is the evidence of guilt at all doubtful, or such its character or degree as to induce us to grant a new trial, on the ground that substantial justice demands it. We must hold that the conviction of murder in the first degree was right, and that the judgment which the law directs in such case must be carried into effect. Conviction affirmed. JOEL TIFFANY, |