quoted that the defendant objected, and upon his exceptions to its admission he now relies.

A careful reading of the evidence has satisfied us that it was sufficient to authorize the submission of the case to the jury and to justify its verdict. We are not satisfied that the verdict was so far against the weight of evidence or against law as to justify us in granting a new trial unless the exceptions of the defendant require it. Therefore, the only questions that need be considered upon this appeal are those presented by such exceptions.

First. The appellant contends that the court erred in deciding his alleged plea of former jeopardy without submitting it to a jury, and in denying his motions based thereon for a new trial and in arrest of judgment. The facts upon which these applications were founded were obviously conceded, and the court denied them upon the ground that, as a matter of law, the facts were insufficient to sustain such applications or to prevent a further trial of the indictment. If the alleged plea appeared on its face to be wholly insufficient, the question of former jeopardy was not required to be submitted to the jury. (Abbott's Trial Brief [Crim.], sec. 127.) The validity of the appellant's exceptions to these rulings must be determined in the light of the provisions of the Code of Criminal Proce dure, as that act applies to all criminal actions and other proceedings in criminal cases from the time when it went into effect. (Code Crim. Pro., sec. 962.) Its provisions, so far as applicable to the question under consideration, are to the effect that no person shall be subjected to a second prosecution for a crime for which he has been duly convicted or acquitted; that a plea of former conviction or acquittal may be pleaded either with or without the plea of not guilty by the defendant's alleging "that he has already been convicted (or acquitted, as the case may be), of the crime charged in this indictment, by the judgment of the court," naming it and naming the place and date of such conviction. It also provides that issues of

fact shall be submitted to a jury; that questions of law shall be decided by the court, and expressly provides that "If, before the conclusion of the trial, a juror becomes sick, so as to be unable to perform his duty, the court may order him to be discharged and another jury to be then or afterwards impaneled." (Secs. 9, 332, 334, subds. 4, 355, 416, 417.) It is obvious that under these provisions of the statute, upon being satisfied that one of the jurors was sick and unable to perform his duty, the trial court was authorized to order him discharged and to then or subsequently impanel another jury to try the indictment herein. The sickness of one of the jurors originally impaneled was the sole ground upon which the jury was discharged and the trial postponed. Under these circumstances, a plea of former acquittal or conviction could not be properly interposed. A former conviction or acquittal which may be pleaded in bar is a conviction or acquittal on the merits. (Canter v. People, 1 Abb. Ct. App. Dec. 305, 308; 2 R. S. 701, secs. 24, 25; Code Crim. Pro., secs. 340, 341.)

Moreover, the alleged plea in this case was not in form or in substance as required by the Code. (Secs. 332, 334, subd. 4.) It contained no allegations either of a former conviction or of a former acquittal, and, consequently, under the requirements of the Code, no issue of fact was presented for the determination of a jury. (People v. Cignarale, 110 N. Y. 23, 29.) If the application of the defendant properly presented any question for determination by either the court or the jury, it was plainly a question of law which the court was required to decide. (Code, sec. 417.) It could not be said that the defendant had been put in jeopardy as he had not been tried, and no jury had passed upon the merits of the case. (People v. Barrett and Ward, 1 Johns. 66, 69; People v. Goodwin, 18 Johns. 187, 203; People v. Reagle, 60 Barb. 527, 544.) It has long been a part of our established jurisprudence that where a trial, before a verdict is rendered, is terminated by an order of the court either on account of the illness of a juror or for

any other sufficient cause, a new jury may be impaneled and the indictment tried, and a former partial trial thus terminated constitutes neither a conviction nor an acquittal. (People v. Casborus, 13 Johns. 351; People v. Green, 13 Wend. 57; People v. Olcott, 2 Johns. Cases, 301, 306; People v. Cignarale, 110 N. Y. 23; Commonwealth v. McCormick, 130 Mass. 61, 62.) We are, therefore, of the opinion that the court properly disposed of the defendant's applications and motions, and that its rulings in that respect constituted no error.

Second. The defendant also contends that the court erred in admitting proof of the finding of the revolver frame, that it was partially covered with black grease and emitted a smell of burning powder from the barrel, the finding of the center pin and of several cartridges on the defendant's premises containing bullets similar to the one extracted from the decedent's head, and upon the proof and the circumstances connected therewith in submitting to the jury whether they were portions of the revolver with which the crime was committed, although the cylinder was never found and there was no direct proof that there was a cylinder in the frame while it was in the possession of the defendant. We do not think this contention can be upheld. Although to prove a fact by circumstances the circumstances themselves must be established by direct proof and not left to inference, yet it does not follow that all the circumstances which were established upon the trial by direct evidence, from which it might be inferred that the defendant employed the portions of the revolver found in the commission of the offense with which he was charged, should have been entirely disregarded and withdrawn from the consideration of the jury, simply because the cylinder was not found, especially in view of the other proof in the case and of the fact that the account which the defendant gave as to the revolver and other matters relating to the homicide was shown to have been exceedingly improbable if not absolutely untrue. The absence of that proof merely affected its potency and the weight which

was to be given to it by the jury, but did not reach the question. of its competency. (People v. Neufeld, 165 N. Y. 43, 47; People v. Wennerholm, 166 N. Y. 567, 573; Greenfield v. People, 85 N. Y. 75, 82.)

Third. A witness for the prosecution testified to some of the acts and conversations of the defendant under certain conditions which arose subsequently to the homicide. Upon her cross-examination she stated that she could not remember the details of the conversation to which her attention was called, whereupon the defendant's counsel asked the following question: "At the time did his conduct seem to you to be natural and genuine?" This was objected to, the objection was sustained, and the defendant excepted. He now insists that the court erred in sustaining that objection. It may be that upon cross-examination the court might, in its discretion, have permitted the witness to answer, but was it required to do so is the question here presented. Obviously the witness was not an expert or introduced as such, so that the broad question is whether a lay witness, after partially describing the acts and conversations of a party, must be permitted to testify whether or not his conduct seemed to the witness to be natural and genuine. There may be instances where the circumstances are peculiar and such that a lay witness may be permitted to testify that in his opinion certain described acts seemed natural or otherwise, if that is the only manner in which the fact can be proved or determined and it depends upon a variety of circumstances or a combination of minute appearances, impossible to describe, so that a jury would be able to decide the question. Obviously no such question was presented by the ruling under consideration. The question objected to and excluded. did not call for an opinion as to whether any specified act or acts were natural or otherwise, but whether the general conduct of the defendant at the time, without any limitation to the acts or conversations proved, was assumed or genuine, natural or unnatural. No such question would be allowed even upon

an issue of imbecility, idiocy or insanity, where the rule has been extended to its fullest limit. Moreover, the witness was not shown to be competent to give an opinion upon that question. There was no evidence showing that she possessed any superior knowledge by reason of which she could have judged of the character of his acts any more correctly than the jury, so that under the circumstances the question in effect called for the conjecture of the witness rather than for her opinion based upon any knowledge she was shown to have possessed. Whether he was simulating pain or feigning sorrow was not a fact as to which she could testify. She was not shown to have had any previous knowledge of his habits or disposition which rendered her competent to give an opinion upon that subject. If she had been interrogated as to his usual manner, his disposition, nervousness, excitability, whether demonstrative under great or slight provocation, his mode of expression when excited, whether extravagant or otherwise, so far as they had been observed by her, all the facts within her knowledge bearing upon the question would have been placed before the jury that could have been competently established by her, The question whether at that time the general conduct of the defendant was natural and genuine did not call for proof of any fact within her knowledge or of which she was shown competent to speak. Whether his conduct was natural and genuine could be determined only by a person who had known the defendant with sufficient intimacy to become familiarly ac quainted with his natural acts and conduct, and it then involved a comparison of his conduct at the time with that which the witness had formerly observed. This witness was not shown to possess any such familiarity as to render her competent to answer the question, even if it was otherwise admissible. If she had been qualified and the question had been whether some particular act testified to by her impressed her as natural or otherwise, quite another question would have been presented. The general rule is that a witness must state facts and not