The People v. White.

subdivision of the statute of murder, 2 R. S. 546, § 5, by averring that the stabbing was with a premeditated design to effect the death of Fitzpatrick. This addition did not vitiate the complete charge of murder at the common law, which the count contains independent of the allegation of premeditated design. You may reject this altogether, and still a murder remains completely charged in the technical language of the common law. The averment of premeditation is mere surplusage. The form of pleading is not altered by the statute; and a common law indictment lets in the proof of any species of murder as defined by the section cited. All these were murders at the common law; and the statute is declaratory. So the court below charged; and the charge is entirely sustained by the good sense of The People v. Enoch, 13 Wendell, 159. It is the constant practice to reject the words "malice aforethought,” in the common law indictment for murder; and convict of manslaughter; even a distinct species of homicide. Mr. Phillipps says, "it is an universal principle which runs. through the whole of the criminal law, that it will be sufficient to prove so much of the indictment as charges the defendant with a substantive crime." 1 Phil. Ev. 202, 7th Lond. ed. In Mackalley's case, 9 Rep. 67, b. 1 Plowd.98, the murder was charged to have been committed in resisting a sergeant at mace, who had a precept. The evidence was that he had no precept but made the arrest ex officio; and held no variance, for the precept was but a circumstance. Phillipps says, that in an indictment for murder, the malice is but a circumstance in aggravation. Hence you may reject it, and prove a manslaughter. 1 Phil. 203, ed. before cited. On a charge of petit treason, the prisoner may be found guilty of murder. Swan & Jeffery's case, Foster's Cr. Law, 104. An indictment for killing with a dagger is sustained by proof of killing with a staff. 9 Rep. 67, a. Rex v. Clark, 1 Brod. & Bing. 473. indictment for robbery, the prisoner may be convicted of simple larceny. 2 East, P. C. 513, 515, 16; and on an indictment for burglary and stealing, he may be convicted of the latter only. Id. 513. In all these case it might have been said, with the same propriety as in the case at bar,

The People v. White.

that the crime was set out with the addition of false circumstances entering into its description, or identity. Yet such circumstances were rejected, as not necessary to be proved. The substance of the issue was proved without them; and nothing more is necessary. Admit then that the allegation of premeditation was false as indicating express malice; admit that it was a circumstance in aggrava tion, yet it may be dismissed and implied malice be substi tuted.

Mr. Chitty, after giving many instances in which the jury may divide the count, by finding only a part of it to be true, if that part constitute a complete offence, and rejecting the residue, adds: "the only exception to this rule seems to be, where the prisoner, being originally indicted for a different offence, would be deprived of any advantage which he would otherwise be entitled to claim. Thus he cannot be indicted for a felony, and found guilty of a misdemeanor ;" but the reason given is, that he would thus, among other things, be deprived of a copy of the indictment, and the right of having counsel. Vid. 1 Chit. Cr. Law, 637, 8, 9: Even this is an objection which, under our system, would be entirely inapplicable. Clear as the doctrine is on English authority, it seems to be still clearer, therefore, with us. It fully sustains the charge of the court below. The first count was substantially satisfied by proof of any offence which is made murder by the statute.

The remark of the judge, that a doubtful case should be turned in favor of a prisoner by proof of good character or a virtuous life, but that the present case wanted both, was strictly true; and a similar remark was sanctioned by this court as proper in The People v. Vane, 12 Wendell, 78. I once made a like remark, adding that probably the prisoner could not make out a good character, inferring this from his admission in conversation, that he had before been in the state prison. This court held that I had improperly let in the admission and the remark by me, in connection with the admission, was assigned as one reason why the judgment should be reversed. The People v. White, 14 Wendell, 111. That is going far enough.

Walsh v. Ostrander.

The case at bar, is but the common one of a judge pointing out to the jury a weak point in the prisoner's defence. It was merely saying "the defence is not so strong as if he had shown a good character;" unless the farther objection be available, that the expression was equivalent to telling the jury that though they should hold the case to be doubtful, yet good character was necessary to turn the scale in his favor. That would have been wrong. The whole charge is not before us, and we must therefore intend that the judge charged the direct contrary, viz: that reasonable doubt would alone entitle the prisoner to a verdict of acquittal. Saying so, we cannot hold it a fatal error to add that good character should clear all doubt in this connection. The two remarks taken together could not mislead the jury. It might, I admit, be otherwise, had it appeared in the bill that the judge withheld the usual caution in respect to reasonable doubt.

On the whole, we are clear against all the exceptions; and the law must take its course. Our order is, that the record be remitted, with directions that the court below pass sentence on the prisoner, at the next court of oyer and terminer in the city of New-York.

WALSH & MALLORY vs. OSTRANDER.

Although as a general rule a verdict and judgment in one cause, cannot be given in evidence in another cause, unless it be between the same parties and for the same matter, still in an action by A. against B., for money had and received, it is competent for the plaintiff to give in evidence a verdict and judgment in a suit by B. against A. and C., to rebut proof that the money claimed was appropriated to the demand of B. against A. and C, and to show by parol proof that in the action against A. and C., the whole demand of B. was claimed, and no credit given for the money now sought to be recovered.

Where an accountable receipt is given-by which the receiptor agrees to pay to A. the amount of a note to be collected by him—part in cash and part in goods, no demand of the goods is necessary, if the receiptor after receiving payment of the note insists upon applying the money to a deand owing to him by A. and another person.

Walsh v. Ostrander.

Although the receiptor in such case had a joint demand against A. and such third person, he was not entitled in an action by A. against him to set off the money collected on the note.

ERROR from the superior court of the city of New-York. Ostrander sued Walsh and Mallory for money had and received to his use, and on the trial of the cause proved that on the 3d December, 1836, he gave to the defendants a promissory note of one N. C. Platt, for the sum of $535, payable 12th November, 1837, for which the defendants gave him a receipt on account; and it was agreed that the plaintiff might trade out a part then, and the balance six months thereafter. The plaintiff took goods to only the amount of $358. On the 24th November, 1837, the defendants collected on the note of Platt the sum of $505, and the plaintiff brought his action to recover the balance due to him. The defendants insisted that they had the right to appropriate such balance towards satisfaction of a joint demand they held against the plaintiff and one Gould, and produced evidence to show that the balance had been thus appropriated in the books of account, of both themselves and the plaintiff; to rebut which evidence, the plaintiff produced a record of judgment in an action prosecuted by the defendants against the now plaintiff and Gould, for goods sold, in which they recovered the full amount of their demand against Ostrander and Gould, without crediting any sum whatever as received on the note of Platt; to the introduction of which record, and the proof of what transpired on the trial, the defendants objected; but the objections were overruled, and the defendants excepted. Previous to the introduction of this proof, the defendants had moved for a nonsuit, on the grounds: 1. That to sustain the action the plaintiff was bound to show a demand of goods in payment of the receipt; and 2. That as the plaintiff was indebted to the defendants jointly with Gould, the defendants had a right to apply the balance of the money received from Platt, towards satisfaction of such joint indebtednesswhich motion was overruled, and the defendants excepted. The presiding judge charged the jury that the plaintiff was entitled to recover unless they should find that there had

Walsh v. Ostrander.

been an appropriation of the balance received by the defendants on Platt's note, with the assent of the plaintiff. To which charge the defendants excepted. The jury found for the plaintiff, the amount of the balance with the interest thereof, and judgment was entered accordingly. The defendants sued out a writ of error.

H. P. Hastings, for plaintiffs in error.

S. Stevens, for the defendant in error.

By the Court, COWEN, J. The question whether the balance claimed by the plaintiff below had been extinguished by an application of it to the payment of the debt due from him and Gould jointly, was left to the jury under the proper qualifications, and they have found that it was not. There was nothing in evidence on that question to conclude the judge or jury, and the only point calling for consideration, grows out of the objection that the previous suit and proceedings in the New-York common pleas were inadmissible. As to the competency of these, the familiar ground is taken, that to be evidence in one cause, a verdict or judgment in another must have been between the same parties, as well as in respect to the same matter. The propositon is perfectly correct, but has no application to the proceedings in the common pleas, when taken in connection with the purpose for which they were offered as evidence. The proposition is confined to cases where the record in another suit is offered to prove that the question in the pending cause was decided in the other, and to infer that, as it is a thing which has before been passed upon in judgment, it therefore cannot be again examined. When used for other objects, as in deraigning a title, or to show a confession, or an act done, the reason of the rule ceases. A mere stranger to a verdict and judgment, for instance, who claims land in virtue of a purchase upon execution, may give the record in evidence. A plea of guilty to an indictment for an assault and battery may be received as evidence against the defendant in a civil action at the suit of the prosecutor; an