first degree to kill a person while engaged in the perpetration of a felony. The fourth fact which the People claim is established by the evidence is this: that at the time the injury was inflicted upon the deceased the defendant and Emerson were attempting to commit a felony, namely, to escape from the prison, and that they inflicted the injuries upon McGovern to facilitate and aid their escape. The fifth fact which the People claim is established by the evidence is that the killing of the deceased was without legal justification or excuse. There is no pretense, as I understand the case, that there was any legal justification or excuse for killing McGovern."

Afterward, in summing up part of these claims, the court spoke of them as conceded, as follows: "It is a conceded fact that they were in that prison charged with committing a felony. It is conceded that McGovern came to his death from injuries inflicted by one or both of these men. It is conceded that at the time that these injuries were inflicted they were trying to escape, and finally did escape from that prison."

The charge closed with these words: "You are to determine what the facts are in this case, and, having determined what the facts are, without paying any attention, so far as the questions of fact are concerned, to anything which I may have said, take the law as I have defined it to you and if you find that the facts show that this defendant has made himself liable to the law, and is guilty of murder in the first degree, so find by your verdict. If, on the contrary, you find that, taking into consideration all the facts as you find them, he is guiltless, has committed no crime whatever, say so by your verdict."

The first criticism made in regard to the charge is that the portion relating to the trial of the murderer of President McKinley "could not operate otherwise than injuriously to the defendant's case." We think the charge is not subject to this imputation. The object of the court was to impress upon the minds of the jury that a man charged with crime is

entitled to a fair trial, and to arouse their sense of responsibility by instructing them that they were the exclusive judges of the facts. As an illustration of the care which the law takes to protect the rights of every man on trial for his life, an extreme case was referred to where the prisoner had attempted to plead guilty, but his plea could not be accepted, and he was tried with "every proper safeguard which could be thrown around a human being." Finally the jury were told that "this case should be tried just as fairly as that." Whether the remarks were in good taste is not for us to pass upon, but we think they could not have injured the defendant. Instead of tending to inflame the minds of the jurors against him, as is claimed, the natural effect was to impress upon them the duty of fairness toward him, and of deciding the case only upon the law and the evidence. They could not have inferred that because Czolgosz was guilty the defendant was guilty also.

The second criticism relating to the charge is that the court stated certain facts as conceded, whereas the record does not show that all of them were conceded, although it does show that they were not disputed, and that they were duly established by convincing evidence. The attention of the trial judge was not called to the mistake which it is claimed he made. The assertion was not challenged and no opportunity was given to correct it. Whether the defendant's counsel in summing up had made any concession does not appear. No claim was made during the trial, and none is made now, that the facts referred to as conceded were not conclusively established. They were proved by persuasive and uncontradicted evidence. They were not denied by the defendant when upon the stand, and indeed the most, if not all of them, were recognized as true by his testimony. The trial judge told the jury that they were the exclusive judges of the facts, and that they were to determine what the facts were in the case without paying any attention

to what he had said in that regard. After stating that he understood certain facts were conceded, he finally referred to them as actually conceded, but, under the circumstances, we think no harm resulted to the defendant, and that the misstatement should have been pointed out, and, if not corrected, excepted to. In dealing with the facts during an extemporaneous address slight errors are liable to creep into the charge, but it is the duty of counsel to call attention to them and have them corrected. In the absence of an exception we do not think an error of this kind would authorize us to set aside a verdict rendered upon such conclusive evidence as there was in this case. (People v. Hall, 169 N. Y. 184, 198; People v. Constantino, 153 N. Y. 24, 35; Code Cr. Pro., sec. 542.)

The defendant's counsel asked the court to charge, in substance, that the jury could not convict of murder in the first degree unless they found deliberation and premeditation, because homicide committed while perpetrating a felony was not specifically pleaded in the indictment. We have recently held otherwise and the law was well settled before.

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an indictment for murder in the first degree the prosecution may prove facts to bring the case within any of the provisions of the statute defining the crime." (People v. Sullivan, 173 N. Y. 122, 137, 141; People v. Giblin, 115 N. Y. 196.)

We have endeavored with patience and fairness to review all the questions involved in this case, even if not raised by exceptions or argued by counsel, but we find no just ground upon which a new trial can be granted. The order amending the return and the judgment of conviction should be affirmed.

PARKER, Ch. J., GRAY, O'BRIEN, BARTLETT, HAIGHT and MARTIN, JJ., concur.

Order and judgment affirmed.

Court of General Sessions--New York County.

April, 1903.

THE PEOPLE v. CHAUNCEY W. WALKER.

(40 Misc. 521.)

NEW TRIAL-NEWLY DISCOVERED EVIDENCE.

Newly discovered evidence as to the good character of the defendant is not a sufficient ground for granting a new trial.

DEFENDANT claimed to be the agent for an Illinois company engaged in the business of examining insurance policies and reporting to clients on the standing of insurance companies and as to the form and sufficiency of policies issued. He claimed also to have exclusive territorial rights in New York and New England as such agent. He sold to the complainant a territorial right for the State of New York upon assurances that it was "virgin territory" and had not been sold to other parties, but should be the exclusive territory of the complainant. It was maintained upon the trial and found by the jury that these representations were false and fraudulent, inasmuch as the territorial right for the State of New York had been sold to other parties prior to the sale to the complainant. A motion for a new trial and to set aside the verdict was denied.

Reargument and reconsideration was asked for on the ground of newly-discovered evidence, consisting chiefly of testimony as to the character of the defendant and the company employing him.

William Travers Jerome, District Attorney (Robert C. Taylor, Assistant District Attorney, of counsel), for People.

Charles E. LeBarbier, for defendant.

MCMAHON, J.: This is a motion "for a reargument and reconsideration of the motions heretofore made by the defendant for a new trial and in arrest of judgment, and to set aside the verdict of the jury, and for a new trial upon the ground of newly-discovered evidence."

The defendant was convicted of grand larceny in the second degree for obtaining a certain sum of money from the complaining witness on the false and fraudulent representation that certain territorial rights which he, as agent of a company known as the Policy Holders' National Union of Chicago, was authorized to sell and dispose of, represented "virgin territory" and had not been sold and would not be sold to any other parties, but that the complainant should have the exclusive privilege of representing and acting for said company in said territory under the conditions of a contract mutually signed. It was contended by the People and found by the jury that these representations were false and fraudulent, inasmuch as the said territory had been previously disposed of, not once, but several times.

(Code

The motion being made after judgment, it is only necessary to consider the last clause of the defendant's request. Cr. Pro., secs. 443, 446.)

After the trial application was made to the Supreme Court in another department for a certificate of reasonable doubt, which was denied by MADDOX, J. This was done presumably after full consideration of the case and the evidence presented, and after hearing argument of counsel thereon. If, therefore, it were proper on this motion to go into the case itself either to discover error in law or insufficiency of evidence, this decision of Justice MADDOX on the question of reasonable doubt would seem to make it unnecessary.

The bulk of the moving papers consists of affidavits as to the good character, not only of the defendant, but of the company whose agent he professed to be. Much of this would have been excluded if offered at the trial, because it relates to specific acts