¶1 The deceased, James George, was an Indian, about 40 years old, engaged in the business of bottoming chairs, and from time to time was a visitor at the residence of Frank Webb. The defendant, Michael Corey, was born in the •city of Hew York, and was there known by the name of Corey; but during the summer of 1894 he had been engaged as a farm *168 laborer for one Ira Spaulding, living in the town of Stockbridgein the county of Madison, and he was there known by the nane of Kelley. About the 1st of September he stopped working for Spaulding, and entered the employment of one Frost, and engaged in picking hops. During this time he boarded with Webb. Webb-appears to have been a man in humble circumstances, living in a shanty situated in a swamp surrounded by bushes, about one-half of a mile from the public highway. The shanty contained only one room, 12 by 16 feet in size, in which the family lived, ate, and slept upon bedding lying upon the floor. There was one-window in the west side, one door in the south side, and a little-shelf or mantelpiece on the south side, just east of the door, about-as high as the head of an ordinary adult. The Webb family consisted of himself, his wife (Sarah Webb), three daughters- ( Libbie, aged 19 years; Susan, aged 16 years ; Mary, aged 9 years ), and two smaller children. On Thursday evening, September 27, 1894, there was present, beside the family, Cora Bennett, aged 19-years, James George, and the defendant. The defendant had been there during the day, and had assisted Mr. Webb in the construction of a lean-to on one side of the shanty. George had been therein the morning, had procured some material for the repair of' chairs, and had gone to the village of Morrisville. He returned about dusk, bringing with him a quantity of sausage and beef, from which Mrs. Webb cooked his supper. After awhile the defendant suggested that, in view of haviug visitors, they ought to-have some beer. Thereupon Frank Webb went to Pratt’s Hollow, where he procured a quart of beer and two pints of whisky. He returned about 8 o’clock in the evening. While he was away, George -took a pint of alcohol which he had brought with him, and, reducing it with an equal quantity of water, placed the mixture in two pint bottles, which was passed around among the company. After- the return of Webb, the beer was also passed around each drinking a little, but leaving about half; and then one of the pint bottles of whisky was passed around, after which Mr. Webb played on his violin while the company danced. George danced with Mary and Susan. The defendant danced with Mrs. Webb and Susan, and some of the other girls. After the: dance had ceased, and about half-past 10 o’clock in the evening,. *169 the defendant was sitting in his shirt sleeves on the north side of the room, near Mrs. Webb. Susie Webb was standing near the shelf, next to the door, and George stood by her side, talking to her. The defendant then stepped up to them, and says to George»
¶2 ‘ What do you talk to her for ? ’’ George says, “ Ain’t I a right to talk to this girl?" The defendant says, “Ho, you ain’t, you son of a bitch, ” and struck George with his fist. George then pushed him back against the wall, and the defendant then sprang-back again at him, striking him several times about the body, and then ran out of the door. George staggered towards a chair, but fell from it onto the floor. Webb then undertook to pick him up, but found that he was covered with blood. He then followed the-defendant out of the house, and found him in the edge of the woods, and had some conversation with him in which the defendant stated that he had cut George with the little blade of a knife, and stated that he had thrown the knife back behind the woodshed, in the bushes. He then wanted his hat, coat and vest, and Webb returned to the house, got his clothes for him, handed them to him, and he went away. Webb then returned to the house, and found George groaning and in great apparent agony. He bathed some of the wounds, discovered by him, in whisky and salt, took such care of him as he could, until it began to grow light, and then he-went to the village, and procured the attendance of Dr. Clark. The doctor arrived between 5 and 6 o’clock in the morning, and then found George suffering from a wound an inch and a half in length, penetrating the pleural cavity; two wounds penetrating-into the muscles; one over the stomach; one lower down in the abdomen, from which the omentum protruded; one near the hipbone ; one cut above the elbow joint, 2^- to 3 inches long; one in the hip, that went in about inches, and one or two small wounds, —in all, nine in number. The doctor dressed the wounds, and took charge of the case from that time until the seventh, the day when George died. The cause of death was the wound that penetrated the pleural cavity. The defendant, after leaving the residence of Webb, went to Spaulding’s, where he had formerly worked, and slept in the barn overnight. The next morning he had a talk with one or two individuals, in which he stated that he had a fight the night before with the Indian, and had stabbed him three or *170 four times. He then disappeared, and -was not heard from until the latter part of October, at which time a letter from him to Susie arrived, to which allusion will be made hereafter. The officers then found him in the hospital on Blackwell’s Island, and procured his arrest.
¶3 Upon the trial the facts were undisputed. Passing the details of the affray, the first questions that arise, requiring careful and considerate attention, are those pertaining to motive and intention, and the deliberation and premeditation with which the act was done. It appears that George was a widower, and had been giving considerable attention to the girl Susie; that the defendant was alscrenamored of her, and had asked her to become his wife; that a day or two before they had attended a circus in company with Mrs. Webb and her two daughters, Libbie and Susie, and that in returning from the circus the defendant and George had a quarrel, and were about to engage in a fight, when Mrs. Webb interfered and led the defendant away. Again, it appears that on the evening of the affray the defendant became extremely jealous of ’George, and made threats against him. A half or three-quarters ■of an hour before the final affray, Susie sat down upon the beds, which were piled up in one corner of the room, with back ■against the wall. Libbie and Cora were lying upon the bed. George sat- down upon the beds, by the side of Susie. The defendant was then sitting in a chair on the other side of the room. He then said to George: “ If you was any kind of a man about you, you would come up here and sit with the men. You wouldn’t be sitting there. ’’ To which George replied. “ Ain’t I got any right to sit here?” Thedefendantsays, “Ho. ” They then got up, and 'were preparing to fight; but the girl Susie interfered, and for a time they were quiet. The defendant, however, took a seat by the side of Mrs. Webb, to whom he remarked “that he hated that black, damned Indian, and he wanted to have his revenge on him, and he would, some time or another.” He said “he would lick him, if he could have trouble with him. ” And, again, “ he would lick him if it cost him his life to do it. ” As we have seen, about a half an hour thereafter Susie and George were again engaged in ■conversation at the mantel, at which time the final affray, already related, took place. The letter, to which allusion has already been *171 made, is set forth in the prevailing opinion. See 42 R E. 1067. This, in substance, is the evidence bearing upon the questions referred to. It will be seen that there was evidence of jealousy, which often forms one' of the stongest motives for the commission of crimes of this character, ill feeling, threats, an opportunity to deliberate and premeditate, together with the written declaration that he ment to kill. Seldom is evidence present more convincing or conclusive. It is not only sufficient to warrant the finding of the jury, but amply sustains the verdict
¶4 The only exceptions appearing in the case requiring special attention pertain to the reception in evidence of the letter above referred to. In the latter part of October, after the death of George, there arrived at Pratt’s Hollow postj office a letter addressed to Mr. Webb, care of Mr. Lewis, the postmaster, stamped, “Hew York, October 22nd," This letter was taken from the post office by the undersheriff, and taken to Mr. Webb’s house. It was opened, .and there was found inclosed the letter which we have given above, together with an envelope, with a postage stamp thereon, addressed, “Mr. Hugh Foley, 53 Bowery, Phœnix House, N. Y.” This letter was the first disclosure to the Webbs of the whereabouts of the defendant. It was taken in charge by the under-sheriff, and was subsequently produced upon the trial, after being indentified as the letter found inclosed by Webb on the occasion alluded to. Subsequently the defendant was arrested at Blackwell’s Island, and taken to the Tombs police court, in Rew York, at which place he asked Detective Patrick Lawlor if he could send a message to his brother. The detective told him he could, and gave him a piece of paper and a pencil, on which he wrote down the name, “53 Bowery, Phoenix House.” The detective then said to him, “That is where the envelope was in that letter that you spoke about to your girl, was it ? ” He says, “ Yes ; that is the letter that got me here. ” The defendant then talked a few minutes more, and again says, “ Can I play the crazy act on that letter? ” The detective says, “ Did you write it like a crazy man, when you wrote it? ” He says “Ho; does it read like crazy?” Detective O’Brien was also present, and heard some of the conversation that took place between Lawlor and the defendant. He testified that the defendant asked Lawlor “ if he thought the letter amounted to *172 anything, ” and that Lawlor said to him: “You must have been a fool, if you thought somebody would call for that letter. The letter was to be answered and called for at 53 Bowery, New York. He then said to Lawlor, “ Do you think I can play crazy on them ? ” and Lawlor replied, “You must do something better than that.’’
¶5 Upon the trial the Testament was produced by Mr. Webb, and on the outside of the fly loaf was printed in pencil the name of “Michael Kelley,” and on the inside of the same leaf was written the name “ Michael Kelley,” underneath which his age was stated. Mr. Webb and Susie Webb both testified that they saw the defendant write these names. There was a conflict between them as to whether the writing appearing upon the opposite page on the second fly leaf was in his handwriting, but as to the writing upon the first fly leaf they both agreed. They further testified that they had seen him write, knew his handwriting, and that the letter referred to was in his handwriting. Mr. Webb thought that the addresses upon the envelopes were also his, but Susie thought otherwise. On cross-examination it appeared that both Mr. Webb and Susie could read writing, but imperfectly, and that some of the words appearing upon the envelopes and in the letter they were unable to read. The Testament, letter, and envelopes were subsequently received in evidence. Objection was made to the reception in evidence of the Testament, or that portion thereof containing the handwriting of the defendant, and our attention is called to- the cases of Hall v. VanVranken, 28 Hun, 403, and Pontius v. People, 82 N. Y. 349. But these cases occurred before the statute, when the old rule was in force, which permitted comparisons only with the genuine handwriting of the person already in evidence for other purposes. The first statute upon the subject was passed in the year 1880. It was subsequently amended by chapter 555 of the Laws of 1888. It pertains to the evidence and practice on civil and criminal trials. It authorizes comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person claimed. Under this statute the genuine handwriting of a person may be admitted in evidence for the purpose of comparison. Objection was further made to the testimony of the'detectives, and the claim s now made that their testimony should have been excluded as *173 incompetent under section 395 of the Code of Criminal Proce dure. That section provides that “ a confession of a defendant, whether in the course of judicial proceedings or to a private per. son, can be given in evidence against him unless make under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney that he shall not be prosecuted therefor. …” There is no claim or pretense that the statements made by the defendant to the officers with reference to the letter were influenced by fear produced or threats made by them, or that there was any communication whatever made to him by the district attorney. So that there can be no question with reference to the competency of the evidence under this provision of the Code. The statements made by the defendant appear to have .been voluntary, and upon his own accord. Further objection was made to the reception of the letter in evidence, but we find no point made in the appellant’s brief, neither was there any question raised upon the argument, as to the letter’s having been sufficiently proven or identified. It is true that the testimony of Mr. Webb and Susie, with reference to the letter’s being in the handwriting of the defendant, was somewhat impaired by their cross-examina. tion. They were both poor readers, but it does not necessarily follow that their judgment with reference to the handwriting of the letter was worthless. Having but little correspondence, and accustomed to seeing but few writings, that which has been called to their attention may have been more carefully scrutinized and more thoroughly and intimately known for that very reason. The court, in passing upon the question as to the admissibility of a paper in evidence, only determines whether there is evidence sufficient to authorize the jury to find that it is genuine. Whether the witnesses should be believed, together with the inferences to be drawn from the facts and the circumstances, are questions for the jury. In 4 Cow. & H. Notes to Phil. Ev. p. 476, it is said that a witness who speaks of handwriting from having seen the person write is competent, though he never saw him write but once, and that where he has seen a party write, but has forgotten the character óf his hand, he may refer to that writing to retouch and strengthen his recollection. In 1 Greenl. Ev. § 577, it is stated to be sufficient for the purpose tha the witness has seen the party write *174 but once, and then only his name; that the proof in such cases may be very light, but the jury will be permitted to weigh it. In Com. v. Levy, 2 Wheeler, Cr. Cas. 245, a witness was called to-prove the handwriting of the defendant, who stated that he had seen him write his name once, and believed the signature to the letter to be his handwriting. The defendant objected to the re. ception of the letter in evidence, on the ground that there had been no legal proof of his handwriting; but it was held that there had been some evidence to prove the signature to the paper, and that whether the evidence is sufficient to establish the fact was a question for the jury, and not for the court. In Magee v. Osborn, 32 N. Y. 669, it was held that the question of the 'genuineness of the defendant’s signature, where a witness had sworn that he had seen the defendant write and that he believed the signature to be genuine, was sufficient evidence to require its submission to the jury. And in Hammond v. Varian, 54 N. Y. 398, it was held that where one has seen’ a party, whose signature is in question, write his name once, or has held his note acknowledged and conceded to be genuine, he is a competent witness as to the genuineness of the signature. Lott, C. 0., speaking with reference to the objection to the testimony that the witness had not shown himself sufficiently acquainted with the defendant’s handwriting to testify as to its genuineness, said: “The objection was not tenable. They had some means, although slight, of enabling them to judge whether the signature was that of the defendant, yet sufficient, in their belief, to express an opinion in reference thereto. The extent of their knowledge, and the weight or effect to be given to' their opinion, were proper matters for the consideration of the jury.”
¶6 We thus have a letter arriving at the post office near the residence of the Webbs, addressed as we have already stated, with a letter inclosed addressed to Susie, with a return envelope, with the postage paid thereon addressed to Hugh Foley, 53 Bowery, Phoenix House, N. Y. The letter inclosed purports to have been written by - the defendant After his arrest he asks the officer for permit to communicate with his brother. He then writes upon a paper handed him for that purpose the same address appearing upon the envelope for the return letter.. He then states to the detective, in answer to his query, that the address is the same as *175 that upon the envelope inclosed in the letter addressed to the girl, and that it was that “ letter that got me here,’’ evidently meaning that it was the information derived from the letter that enabled the officers to find him and make the arrest. He then asks about the effect of the letter, and as to whether he can play crazy with reference thereto, thus recognizing its importance, and his own acts in writing the same. In the letter he asks Susie to write him, and tells her to inclose the answer in the envelope which he had inclosed. Both Susie and Mr. Webb recognize thehand writing in the letter as that of the defendant. All these conceded and undisputed facts, taken together in connection with the inferences which the jury properly may draw from the surrounding circumstances, are most convincing, and admit of but one rational conclusion. They not only make a case for the admission of the paper to the consideration of the jury, but also furnish ample evidence to justify a finding, beyond a reasonable doubt, that the letter was his.
¶7 A question is also made with reference to the charge of the court upon the question of the intoxication of the defendant at the time of the affray, although no request was made to charge differently, or exception taken to the charge as made. It is contended that the charge is so unintelligible as to leave the jury in doubt with reference to the true rule, and that for this reason a new trial should be ordered. It is evident that the julge had a mistaken idea of the law upon the subject, for he appears to have instructed the jury to the effect that if the defendant was totally intoxicated, so as to be wholly irresponsible from the intoxication, he would be entitled to an acquittal. This is not the rule where the intoxication is voluntary, unless accompanied with mania. A man cannot escape from the natural and inevitable consequences of his acts by reason of his voluntary intoxication. But murder in the first degree requires deliberation and premeditation ; and, where a particular purpose, motive, or intent is a necessary element to constitute a particular specie or degree of crime, the fact of intoxication at the time must be taken into consideration, for the purpose of determining the motive or intent with which the act was committed. But the charge in this respect was more favorable to the defendant than it should have been, and it consequently did him no harm. The judge subsequently read to *176 the jury the provisions of section 22 of the Penal Code, which provides that: “No act committed by a person while in a state of voluntary intoxication shall be deemed less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary, element to constitute a particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purposCj motive or intent with which he committed the act.” Here we have the statute upon the subject in clear and concise language, with the attention of the' jury specifically called theretol And then,, after the reading of this provision, the judge concludes his charge upon the subject by referring to People v. Fish, 125 N. Y. 136, 26 N. E. 319, and quoting therefrom the following: “ To sustain an indictment for murder in the first degree, the people are bound to show that the defendant intentionally killed the deceased, with premeditation and deliberation. In weighing the evidence as to premeditation and deliberation, the jury is bound to take into account the condition of the defendant. If, however, it appears that the defendant, although intoxicated at time of the homicide, was sober enough to form an intent, and to deliberate and premediate the crime, his responsibility is the same as if he had been perfectly sober.” It would seem that this quotation, together with the reading of the provisions of the Code, must have made clear to the minds of the jurors the true rule upon which they were to determine the question of the intention and the deliberation and premeditation under which the defendant acted. It appears that the defendant drank from the alcohol produced by G-eorge twice; that he also drank from the whiskey purchased by Webb once or twice, together with a little of the beer. The amount taken by him at the time of the drinking does not appear. Webb states that he did not appear to be drunk. After the affray he ran out of the house, then sent for his clothes, talked about the knife, what he had done, and then went away. The next morning he talked about the transaction, told about the trouble that he had had with George, and how he had stabbed him, thus indicating that-he had a pretty clear recollection of the transaction.
¶8*177 There is nothing appearing in the evidence in reference to hia condition which, distinguishes the case from that of People v. Fish supra. This case is clearly distinguishable from that of People v. Leonardi, 143 N. Y. 360, 38 N. E. 372. In that case the homicide was committed without provocation and without motive, by a person who at the time was very much intoxicated. In that case the court charged, in substance, that if the defendant had intelligence enough to know right from wrong, that the act he committed was wrong, he was responsible, but if he was bereft of reason, sense, and judgment, and that without knowledge or intent as to the result of his act he was irresponsible, and this was all the court would say as to the intoxication, as bearing upon the defendant’s capacity to distinguish between right and wrong. Subsequently the court charged " that if the defendant was sober enough to know what he was about, that the act was wrong, then his intoxication and motive would both exist, and the one would not destroy the other; that he must be completely intoxicated, in order to be excused, etc. This charge, for obvious reasons, was held to be erroneous.
¶9 Upon the trial the defendant showed by a witness that at the time of the homicide he was sick. The witness was then asked by the district attorney to state what was the matter with him, and the witness answered, giving the character of his disease. It is now claimed that this was error, and that the answer tended to prejudice the defendant before the jury. In the first place, no exception was taken to the admission of the evidence; and, in the next place, the defendant disclosed the character of his difficulty on two occasions,—one as an excuse for his going away the morning after the homicide, and the other for the purpose of showing that he was in the hospital, and not in the prison, on Blackwell’s; Island, at the time of his arrest. It is quite apparent that at the time of the trial it did not occur to the defendant that the evidence was harmful. He then, evidently, had more confidence in the intelligence and judgment of the jurors. It is now asking too much of a court, on review, to hold that the twelve jurors, selected with the care and deliberation with which the jurors were impaneled in this case, were so weak, incompetent, and utterly unfit for the discharge of the duty assigned to them, that they found this man *178 guilty by reason of the affliction or disease from which he was suffering.
¶10 It would seem that in the presenting of this ease the impression prevailed that a murder trial is conducted under different rules and in a different manner, from ordinary trials. If such an impression prevails, it is a mistake. If improper evidence is admitted, the attention of the court should be called thereto by an ex- ’ ception. If the judge misstates the law or the evidence, his attention should be called thereto, and an exception taken while he has an opportunity to correct his instruction to the jury. To dispense with these safeguards would enable attorneys to trick the court in nearly every trial that takes place. They may sit by, keep still, and permit incompetent evidence to be 'received, by their conduct impliedly consenting to its reception, and then, after a verdict against them, insist that it was error, and the judgment should be reversed. It is provided that “ when the judgment is of death the court of appeals may order anew trial, if it be satisfied that … justice requires a new trial, whether any exceptions shall have been taken or not in the court below.” Code Or. Proc. § 527. Power is here given to the court of appeals to order a new trial when justice requires it. This power, however, should be exercised only in cases where manifest injustice has been done, and where it is apparent to the court that a different result ought to have been reached. People v. Kelly, 113 N. Y. 647, 21 N. E. 122; People v. Cignarale, 110 N. Y. 23, 17 N. E. 135; People v. Fish, 125 N. Y. 136-144; 26 N. E. 319. The judgment and con. viction should be affirmed.
¶11 O’BRIEN, BARTLETT, and VANN, J J., concur with (MARTIN, J., for reversal. ANDREWS, O. J., and GRAY, J., concur with HAIGHT, J., for affirmance.
¶12 Judgment reversed.