Statement of case. a substantial compliance with the provision of said Code (§ 214), requir ing the nature of the crime to be briefly stated in a commitment; that a reference to the statutory definition of the crime showed, with sufficient clearness and precision for the purpose in view, the nature of the crime. Also, held, that it was not incumbent on the part of the People, in order to make out a prima facie case, that defendant was lawfully restrained of his liberty upon a charge of felony, to put in evidence the proceedings upon the examination of defendant; that it was sufficient to show that he was arrested upon a warrant issued by competent authority, was examined before a duly authorized magistrate upon the charge therein contained, was held to answer, and that commitment was made and delivered to the sheriff; that jurisdiction in the magistrate over the subject-matter and the person having been established, he had authority to make the commitment, and the recitals therein contained are presump tive evidence of the facts stated. Aside from proof of jurisdictional facts, the orders and precepts of courts of limited jurisdiction have the same force and are entitled to the same presumption as apply to those of courts of more extensive authority. Also, held, that as the evidence showed that the death charged was caused by the act of defendant while he was attempting to escape from jail where he was confined under said commitments, it legally tended to establish that the death occurred while defendant was attempting to commit a felony (Penal Code, § 685, 686); and so that he was guilty of the crime of murder in the first degree. (Penal Code, § 183, subd. 3.) Subsequent to the trial, a motion was made on behalf of defendant upon affidavits to set aside the verdict upon the allegation of irregularities on the part of the jury during the trial, i. e., that the jury were allowed to view the scene of the crime without having first administered to the officers attending them the oath prescribed by the Code of Criminal Procedure (§ 412), and that members of the jury, while engaged in making such view, received information from the officers as to the location of ' the cells occupied by the prisoners attempting to escape, etc. All the facts were known to the prisoner's counsel and were not brought to the attention of the court or objected to, and said counsel assented that the jury should view the scene of the crime. The motion was denied. Held, no error; that the court had authority to permit the jury to take the view; that the omission of the oath to the officers was an irregularity merely, which could be waived by defendant, and was waived by the consent of his counsel that the view should be taken, and by his omission to object or to call attention of the court to the omission of the oath. Such a motion is addressed to the sound discretion of the trial court (Code of Crim. Pro. § 465), and the exercise of that discretion is not reviewable here, unless it appears that it has been abused to the prejudice of defendant. (Argued June 6, 1888; decided June 19, 1888.) Statement of case. APPEAL from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made January 30, 1887, which affirmed a judgment of the Court of Oyer and Terminer in and for the county of Seneca, entered upon a verdict convicting the defendant of the crime of murder in the first degree. Corydon Rood for appellant. The recital in the warrant of arrest that "information upon oath having been this day laid before me," etc., was not sufficient. If the information was taken, and evidence taken under it, the papers should have been returned. (Code Criminal Pro. §§ 205, 208.) Conceding the pretended commitment to be good on its face, still the defendant should not have been found guilty of murder, the district attorney not having introduced the judgment of the Justice's Court, showing his right to commit the defendant to jail. (Code Criminal Pro. § 214.) Defendant did not escape from the jail, the sheriff having no legal right to detain him against his will. (Penal Code, § 85.) An attempt to escape prison or from an officer is not a crime. (Penal Code, § 34.) If a prisoner flees and the jailer retakes him without losing sight of him, it was not an escape. (2 Hawk. 1756.) An escape is when one who is arrested gains his liberty before he is delivered by due course of law. (1 Russ on Cr. 367.) The court erred in allowing the jury to view the place in which the crime charged against the defendant is alleged to have been committed with the officers without their being sworn as required by section 412 of the Code of Criminal Procedure. (People v. Palmer, 43 Hun, 397.) In a capital case it must affirmatively appear, on the part of the prosecution, by the clearest evidence and beyond a reasonable doubt, that no injury to the prisoner could have occurred by the irregularity complained of. (Eastwood v. People, 3 Park. Cr. R. 25.) An accused person placed on trial for a criminal offense may sit still and remain silent and require the public prosecutor to convict him on legitimate testimony in accordance with Statement of case. the forms and rules prescribed for the administration of the criminal law. (People v. Tyrrell, 3 N. Y. Crim. R. 148.) Frederick L. Manning for respondent. An ordinary common-law count is, through all the mutations of the statutes defining the crime of murder and discriminating between its different degrees, sufficient as a pleading to sustain a general verdict of guilty. (People v. Willett, 102 N. Y. 251; People v. Cox, 80 id. 500; People v. Dumar, 5 N. Y. Crim. R. 55; People v. Conroy, 97 N. Y. 62.) The defendant's challenge of the panel of jurors, as well as the additional panel ordered and drawn, for the reason that such jurors were not drawn from the body of the county of Seneca, but were drawn from a box containing only a partial list of the names of those persons designated to act as trial jurors for said county, was properly overruled. (3 R. S. [2d ed.] 110; id. 293; Code Crim. Pro. 358; Code Civ. Pro. § 3347, subd. 7.) The defendant's objection to the commitment was without merit and properly overruled. (Code Crim. Pro. § 214.) The warrant under which the defendant was arrested for the crime of burglary and larceny was in proper form. (Code Crim. Pro. §§ 151, 152; Atchinson v. Spencer, 9 Wend. 62; People v. McLeod, 1 Hill, 377.) The charge of the judge, that if a prisoner confined in a jail on a charge of felony, in attempting to escape therefrom kills another, the killing is murder in the first degree, is correct. (Penal Code, §§ 14, 85, 92, 93, 183.) An escape from prison is a crime, as defined by section 3 of the Penal Code, and a felony. (Penal Code, $5, 686; People v. Lyon, 99 N. Y. 210; People v. Van Steenburg, 1 Park. Crim. R. 39.) The viewing of the premises was properly allowed. (Code Crim. Pro. §§ 411, 412.) No irregularity was shown that could vitiate the verdict. (28 Hun, 1; People v. Draper, 1 N. Y. Crim. R. 139; People v. Carnal, 1 Park. Crim. R. 256; People v. Hartung, 4 id. 256, 319-329; Wilson v. People, id. 619; People v. Seeley, 3 N. Y. Crim. R. 225; People v. Menkin, 3 id. 233.) SICKELS-VOL. LXV. 18 Opinion of the Court, per RUGER, Ch. J. Misconduct of a juror in going to take a view of the premises is waived, if objection to continuing the trial before him is not promptly made on discovery of the fact. (Stampforke v. Steffins, 79 Ill. 303.) Irregularity on the part of the jury prejudicial to the defendant must be affirmatively shown, it will not be presumed. (People v. Hartung, 4 Park. Crim. R. 319.) The statements in the judg ment record that the prisoner came into court at the commencement of the trial, and was at the bar when the jurors were sworn, and that the case was continued by adjournment unti! the date of the rendition and entry of verdict, sufficiently indicate that the trial was continued with the incidents before described, of which the presence of the prisoner was one. (Stevens v. People, 19 N. Y. 549-552.) When facts are stated in the record sufficient to confer jurisdiction upon a court of such high attributes, the inference is that, as to its continued proceedings, omnia rite acta. (19 N. Y. 552; People v. Bradner, 107 id. 1.) The continuance of a cross-examination of the People's witnesses during the brief absence of the prisoner on the trial is not a violation of the statutory provision that no person can be tried for a felony "unless he be personally present during such trial." (People v. Bragle, 88 N. Y. 585.) RUGER, Ch. J. The defendant was jointly indicted with Edward Caldwell and Marcus Fish for the murder of John Walters on the 9th day of January, 1887. Johnson elected to have a separate trial, which was awarded to him, and took place on the 4th and 5th days of April, 1887 and resulted in his conviction of the crime of murder in the first degree. The conviction was affirmed by the General Term of the Supreme Court, and the defendant appeals from the judgment of affirmance to this court. We have carefully examined the evidence appearing in the record and are of the opinion that it fully supports the verdict of the jury. Indeed, no question is made but that Walters received a blow upon the head, inflicted by the defendant with an iron instrument called a poker or stove shaker, which fractured his skull and Opinion of the Court, per RUGER, Ch. J. occasioned his death. The only evidence given on behalf of the defendant was the testimony of one witness, to the effect that Cronin, one of the People's witnesses, had made contradictory statements in respect to the affray about which he had testified. The attempted contradiction was quite inconclusive, and left the case made by the People's evidence, substantially unaffected by opposing evidence. It is claimed, however, that certain rulings made by the court in the course of the trial and thereafter, were erroneous, and, for that reason, the judg ment should be reversed. The evidence disclosed that the defendant, at the time of the homicide, was confined in the Seneca county jail upon two commitments, one for the crime of burglary in the third degree, and the other for grand larceny in the first degree; that he, with certain other persons confined in the jail, conspired to break out therefrom by digging a hole through the walls, but being unable for want of time to accomplish their purpose in this manner, they concluded to assault their jailers when opportunity offered, and thus escape. Their plan, as expressed by Johnson, was to "slug the sheriff" and thus overcome expected obstructions to their escape. About nine o'clock P. M. of the ninth day of January, the deceased, accompanied by the sheriff and deputy jailer Cronin, proceeded in their customary manner to lock up the prisoners for the night. There were some fifteen or twenty prisoners in the jail corridor, among whom was the defendant. Cronin unlocked the inside door of the jail and swung it back into the corridor where it was seized and held open by Fisk, one of the conspirators, while Johnson and Caldwell assaulted the approaching keepers. Walters immediately stepped on to the stairs leading down into the corridor, and as he was descending them to the floor of the jail was struck on the head with an iron instrument by Johnson, which felled him to the floor. Caldwell also struck him with a wooden club or stick. Johnson and Caldwell then passed up the stairway and through the door into a narrow entry-way where they were met by the sheriff, who, after a severe and prolonged struggle, succeeded |