testified in his behalf, whether from observation or from examination, they believed him to be of unsound mind and to be a paranoiac. As against the evidence thus adduced upon the question of the defendant's sanity, the People introduced other evidence, in the testimony of medical practitioners and experts, who had capacity to speak, either from acquaintance with or examination of the defendant, and in that of various lay witnesses who were acquainted or associated with him. According to the evidence of the latter class of witnesses, he had been rational in his conduct for several years prior to the date of the occurrences in question, though a hard drinker, and they had observed none of the usual epileptic manifestations, while, according to the former class, he was, in their opinion, not an epileptic and was merely shamming. In addition to the evidence directed towards showing the sanity or insanity of the defendant, the jurors had before them the evidence of his conduct prior to and immediately following the killing, from which they were warranted in concluding that he was perfectly rational and not acting under the influence of any delusion or maniacal attack. Upon the rendition of the judgment of separation and for alimony, he openly declared in court that he would "rot in jail before he would give a cent." Shortly before the killing he had declared his purpose to kill his wife in a letter and in conversation. In the evening of the day before he was in a liquor saloon and cashed a check which he had received from the sale of the furniture in his residence. Later in the evening, and until nearly 1 o'clock in the morning, he was drinking in another saloon, and in conversation with the proprietor of the saloon invited him to have the last drink he would ever have with him; talked about his mother-in-law and said he would put a bullet in her, as she had made all the trouble between him and his wife. He then went to another barroom, where he exchanged some of his money for the check of the proprietor, payable to the order of his sister. He next appeared in the

residence of his mother-in-law, where, under the circumstances already narrated, he deliberately shot her and then his wife; the testimony as to those occurrences being given by his motherin-law and the two sisters of his wife, who were present. From their testimony it was evident that his conduct in the room was that of a man intending, in cold blood, to commit murder, and comprehending fully what he was doing and was about to do. Whether, upon a consideration of all the evidence adduced, the defendant was laboring under a defect of reason or was the subject of an epileptic attack, was a question for the determination of the jurors as a disputed question of fact. Their verdict is conclusive upon us and we do not see how they could have well reached any other determination upon the case than they did.

The defendant does not present to us any exception taken upon the trial, upon which error is predicated as warranting the reversal of the judgment of conviction. He appeals to our power to order a new trial, in the absence of any exceptions, upon the ground that a review of the record shows that justice demands it. We have reviewed the record. We are satisfied that the evidence well supported the verdict of the jury; that it abundantly established the guilt and the responsibility of the defendant, and that his substantial rights have not been prejudicially affected. The power conferred upon this court in the review of capital cases is not called into exercise by the appearance of some error, which no exception pointed out and which cannot be seen to have affected the substantial rights of the accused. The demands of justice have been satisfied in the trial which has been had and, upon the whole case, we reach the conclusion that no sufficient grounds have been presented and none exists to justify a reversal of the judgment of conviction. PARKER, Ch. J., GRAY, O'BRIEN, BARTLETT, HAIGHT, MARTIN and VANN, JJ., concur.

Judgment of conviction affirmed.

Supreme Court-Appellate Division, Second Department.

October, 1903.

PEOPLE v. WILLIAM SHANNON.

1. POOL SELLING.

(87 App. Div. 32.)

Ordinarily, where an offense is alleged to have been committed on a day certain, the variance is immaterial if it be shown to have been committed upon another day or about the same time, but it is essential that all the ingredients necessary to constitute the offense shall be established with reference to the other day, and where, on the trial of a charge of selling pools, there was evidence that pools were sold on the premises July 26th, and that defendant was there present on the 24th, 25th and 28th, but utter failure of proof that pools were sold on those days, it is reversible error for the court to charge that the jury might determine whether the defendant aided, abetted and assisted in the selling of pools on the 26th, and that they might give the fact that the paraphernalia was there on the 28th, such consideration as they thought worthy in determining whether the crime was committed on the 26th, etc.

3. SAME.

It was also reversible error for the court to refuse to charge that unless the jury found that the defendant was engaged in pool selling July 26th they should not find him guilty.

APPEAL by the defendant, William Shannon, from a judg ment of the County Court of Westchester county, entered on the 11th day of February, 1903, convicting the defendant of pool selling in violation of section 351 of the Penal Code.

Benjamin Steinhardt, for the appellant.

J. Addison Young, for the respondent.

GOODRICH, P. J.: The defendant was convicted of violating section 351 of the Penal Code, on the ground that at the city of Yonkers, on July 26, 1902, outside of any trotting or race course authorized by statute, he engaged in pool selling and

selling pools upon the result of the trial and contest of speed and power of horses then taking place at Brighton Beach, N. Y. He appeals from the judgment.

The constitutionality of the Racing Law (Laws of 1895, chap. 570, as amd.) and of section 351 of the Penal Code was reaffirmed by the Court of Appeals in People v. Stedeker (175 N. Y. 57), reversing a judgment of the Appellate Division of the First Department (75 App. Div. 449), citing People ex rel. Weaver v. Van De Carr (150 N. Y. 439) and People ex rel. Sturgis v. Fallon (152 id. 1.)

The question before us is whether there was evidence sufficient to warrant the conviction of an offense committed, as alleged in the indictment, on July 26th. While there may be proof that pool selling was going on upon the premises on that date, there is no proof whatever that the defendant was then present. Again, while the evidence may be sufficient to show that the defendant was present on other days about the same time, to wit, on July 24th, 25th and 28th, there is no sufficient proof that pool selling was then going on. Ordinarily, where an offense is alleged to have been committed on a day certain the variance is immaterial if it be shown to have been committed upon another day at or about the same time, but it is essential that all the ingredients necessary to constitute the offense shall be established with reference to the other day. There was an utter failure of proof to connect the defendant with the business on the 26th unless it was proper to instruct the jury: "You will determine whether or not this defendant aided, abetted and assisted in the selling of the pools on the 26th day of July last, and I charge you that you can take into consideration, if you find the evidence satisfies you, that he was there on the 24th and the 25th, of his presence there and of what he was doing. And you may also take into consideration the fact that this paraphernalia was found there on the 28th, and give it such consideration as you think it is worthy of in

determining whether or not this crime was committed on the 26th. Of course, if this paraphernalia was not there on the 26th it wouldn't have any bearing in the case, but you may determine here, in the exercise of your judgment and discretion, whether or not the fact that that was found there on the 28th isn't evidence that it was there on the 26th."

The defendant excepted to each of these instructions, and asked the court to charge the jury that unless they found that the defendant was engaged in pool selling on the 26th, they must not find him guilty. The court refused so to charge, and the defendant excepted.

We think this charge and refusal to charge, under the evidence, constituted error which requires a reversal of the judgment.

BARTLETT, HIRSCHBERG, JENKS and HOOKER, JJ., Con

curred.

Judgment of conviction reversed and new trial ordered.

Supreme Court-Appellate Division, Second Department. October, 1903.

PEOPLE v. JEREMIAH A. McCUE.

1. POOL SELLING

(87 App. Div. 72.)

EVIDENCE NECESSARY-PENAL CODE, SEC. 351.

It is not necessary in order to convict of the crime of pool selling to prove that the entire contribution of the various betters were divided among the winners.

2. SAME TRIAL.

Where the court had charged the jury, at defendant's request, that it was incumbent upon the prosecution to prove beyond a reasonable doubt that horse races were actually taking place at the date and places named, this fact is sufficiently proved by representations to that effect contained in the printed score cards furnished to the patrons of the alleged pool room.