N. Y. Rep.] Opinion of the Court, per WERNER, J. had penetrated the posterior part of Hutchinson's skull, and plowed its way into the brain in such a way as to cause practically instant death. The fourth shot entered Hutchinson's body about two inches below the top of the right shoulder and was deflected by the shoulder blade so that it lodged just underneath the skin. A policeman named Grant, who had been attracted by the shooting, arrested the defendant, and found upon his person a five-chamber revolver with four shells emptied and one remaining loaded. This revolver was identified by two employees in Weaver's loan office as the one which had been sold to the two negroes at some time within an hour preceding the tragedy. The foregoing outline of the facts, extracted from the detailed testimony of eleven witnesses fully set forth in the record, is sufficiently comprehensive to show that the death of Hutchinson, and his killing by the defendant, were clearly established; the former by direct evidence, and the latter beyond a reasonable doubt. The defendant did not testify in his own behalf, nor did he call any witnesses. Upon the record thus made, the learned trial court submitted the case to the jury in a charge so clear and fair to compel the approval even of defendant's counsel, and the result was, as already stated, that the defendant was convicted. That the verdict of the jury was not only justified but demanded by the proofs, is clear to the point of demonstration. The death of Hutchinson at the hands of the defendant was conclusively established. The attendant circumstances indicate beyond a reasonable doubt that it was not justifiable homicide; neither was it an accident or an act of sudden impulse, but a deed of premeditation and deliberation. Nothing remains for us, therefore, but to search the record to see if it contains any errors that were substantially prejudicial to the defendant. Two points presented by the learned counsel for the defendant will be briefly discussed. It is urged that when the defendant was arraigned for judgment he was not Opinion of the Court, per WERNER, J. [Vol. 196. asked, as required by section 480 of the Code of Criminal Procedure, whether he had any legal cause to show why judg ment should not be pronounced against him. The record discloses that this contention is not well founded. The minutes of the trial, which are a part of the record on this appeal, show that the command of section 480 was literally and most formally complied with. By that record we are bound, notwithstanding the contrary recollection of defendant's present counsel, who, it may be said in passing, was not of counsel engaged in the trial. It is also contended that incompetent testimony was admitted to the prejudice of the defendant over the objection and exception of his counsel. In that connection the record discloses that when the mistress of the defendant was testifying as a witness for the People, she was asked by the district attorney if she had caused the arrest of Hutchinson previous to the altercation which ended in the tragedy resulting in this prosecution. The question was objected to and the objection sustained. This was immediately followed by the inquiry whether the defendant had ever caused the arrest of Hutchinson. That was also objected to generally, and not upon the ground that it was hearsay, or not the best evidence. The objection was overruled and no exception was taken. From the testimony adduced by that question, and others along the same line, it appeared that Hutchinson had previously lodged with the witness, presumably while she was living with the defendant as the latter's mistress, and that trouble had arisen over the unpaid bill of Hutchinson for that lodging. The evidence was offered, as was stated by the district attorney, for the purpose of showing ill-will on the part of the defendant toward Hutchinson, and we think it was competent. The crime of murder in the first degree involves the elements of felonious intent, deliberation and premeditation, and any evidence bearing upon either or all of these elements is admissible. This rule of evidence is so elementary that, at this late day, it needs no support in the citation of authorities. We conclude with a single observation concerning the N. Y. Rep.] Opinion of the Court, per WERner, J. criticisms of counsel for defendant upon this appeal, of the conduct of his counsel at the trial. While these criticisms. are somewhat vague and indefinite, they seem to imply that the trial was conducted without the care and deliberation commensurate with the importance and solemnity of the issue. at stake, and that the failure of counsel to call the defendant as a witness is some evidence of a neglect of professional duty. Present counsel for the defendant seems to think that more time should have been consumed in impaneling a jury and in cross-examining the witnesses for the prosecution. All that we feel called upon to say about that is, that in an age when the practice in these particulars is so much abused by over indulgence, appellate courts will be slow to criticise counsel for expedition and brevity which are usually not inconsistent with the proper administration of justice. These things should evoke commendation rather than criticism unless it affirmatively appears that a defendant's rights have been vio. lated or ignored. Much less will such criticism be made when it appears, as in the case at bar, that both court and counsel have evinced a most intelligent, discriminating and humane regard for a defendant's interests. The suggestion that defendant may have been prejudiced by the failure of his counsel to call upon him to testify may be disposed of in a sentence. Experience has shown that the failure to call as a witness in his own behalf a defendant charged with crime, so far from being evidence of neglect or lack of professional skill in counsel, is usually founded upon considerations of prudence which are too obvious to require justification. The defendant was privileged to testify if he desired. It was his right to remain silent if he chose. He adopted the latter course. We are inclined to think that the exercise of this right did him no harm. The judgment of conviction should be affirmed. CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, WILLARD BARTLETT and HISCOCK, JJ., concur. Judgment of conviction affirmed. ROBERT E. HENRY, Appellant, v. BABCOCK & WILCOX COMPANY, Respondent. Corporations - statutory right of stockholders to inspect books of corporations and make transcripts thereof. Section 53 of the Stock Corporation Law (Cons. Laws, ch. 59, § 33) recognizes an absolute right in a stockholder to inspect the books of a corporation and imposes an absolute duty upon the corporation and the custodian of the stock book to permit such inspection. The stockholder has a right to take memoranda therefrom in the course of his examination in order to assist his recollection. Henry v. Babcock & Wilcox Co., 125 App. Div. 538, reversed. (Argued October 25, 1909; decided November 9, 1909.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 30, 1908, in favor of defendant upon the submission of a controversy under section 1279 of the Code of Civil Procedure. The nature of the controversy and the facts, so far as material, are stated in the opinion. William M. Bennett for appellant. The right of the plaintiff to inspect the defendant's stock book is absolute. (L. 1892, ch. 688, § 53; Matter of Steinway, 159 N. Y. 250; Cotheal v. Brouwer, 5 N. Y. 562; People ex rel. Harriman v. Paton, 5 N. Y. S. R. 313; People ex rel. McDonald v. U. S. M. R. Co., 20 Abb. [N. C.] 192; People ex rel. Wilson. v. St. L. & S. F. R. Co., 29 Mo. App. 301; State v. S. T. & C. Assn., 29 Mo. App. 326; Mitchell v. Rubber Co., 24 Atl. Rep. 407; Lewis v. Raynard, 53 Vt. 510.) The right to inspect carries the right to copy. (Cotheal v. Brouwer, 5 N. Y. 562; People ex rel. Lorge v. C. Nat. Bank, 105 App. Div 409.) Charles J. Fay for respondent. The right of a stockholder to an inspection of the stock book required to be kept by section N. Y. Rep.] Opinion of the Court, per WILLARD BARTLETT, J. 53 is not "absolute." There are occasions when such inspection will be denied him. (Matter of Steinway, 31 App. Div. 70; Matter of Taylor, 117 App. Div. 348; Matter of Latimer v. II. T. Co., 75 App. Div. 522; People ex rel. Lorge v. C. Nat. Bank, 105 App. Div. 409; People ex rel. Callanan v. K., etc., R. R. Co., 106 App. Div. 349; People ex rel. Althause v. G. C. M. Co., 122 App. Div. 617; People ex rel. Hunter v. N. P. Bank, 122 App. Div. 635.) The inquiry which the defendant made of the plaintiff was reasonable and, on the refusal of the plaintiff to give any answer thereto, the defendant did no wrong to the plaintiff in refusing his application. (Wylde v. N. R. R. Co., 53 N. Y. 156; Matter of Randel, 158 N. Y. 216; Nutting v. K. C. El. R. R. Co., 21 App. Div. 72; People ex rel. Hunter v. Nat. Park Bank, 122 App. Div. 635; Marx v. Brogan, 188 N. Y. 431.) Section 53 of the Stock Corporation Law, which section related exclusively to foreign corporations, conferred no right on their stockholders to make extracts from the stock books kept in compliance with that section at their offices maintained in New York state. (People ex rel. Althause v. G. C. M. Co., 122 App. Div. 617.) WILLARD BARTLETT, J. The defendant is a corporation organized under the laws of New Jersey, having its main office for the transaction of business in this state at No. 85 Liberty street in the borough of Manhattan in the city of New York where it keeps its stock book. On January 17, 1908, during the usual hours of business, the plaintiff, being a resident of New York and the owner of one share of stock in said corporation, demanded of its treasurer, who was the officer having charge of the stock book, "to be allowed to inspect the said stock book and to copy therefrom the names of the persons therein set down as stockholders of the defendant together with their places of residences and the number of shares of stock held by them respectively." The treasurer asked the plaintiff his purpose in making the request. This the plaintiff declined to state, saying that he understood his |