Opinion of the Court, per ANDREWS, J. granted on the merits, this court is bound by the settled rules governing appellate courts possessing and exercising this jurisdiction. It is a cardinal principle in our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. It is no more the province of an appellate court than of the court of original instance to determine controverted questions of fact arising upon conflicting evidence. Neither can lawfully usurp the appropriate function of the jury, and neither can substitute its own judgment for that of the jury where the facts are reasonably capable of diverse or opposing inferences. But the power to grant new trials is an essential safeguard against the miscarriage of justice; and in nearly all judicial systems the courts in some form have been invested with this power as a protection against passion, prejudice, mistake, perversity or corruption on the part of jurors; and these are the matters to be considered by the court when called upon to supervise the findings of a jury. In very many, if not most, criminal cases there is a conflict of evidence upon material facts. material facts. It is primarily the province and duty of the jury to determine where the truth lies. The case may be nearly balanced. There must, according to settled principles of criminal law, be a preponderance of evidence against the defendant to authorize a conviction. It is the duty of juries to be guided by this rule. But on which side is the preponderance of evidence cannot be determined by fixed rules. It must be left, after all, to the good sense of the jury, under proper instructions as to the law, to determine the question. The court may entertain some doubt whether the fact was properly found by the jury, and in case of seri ous doubt, especially in a criminal case, it may, if in its opinion justice requires it, order a new trial. But the mere fact that there is a conflict in the evidence is not alone a ground for a new trial. The court must be able, upon a review of the proceedings, to reach the conclusion that injustice has probably been done on the trial, before it is justified in setting aside the verdict of the jury. In the nature of the inquiry the matter is not capable of exact rules or defini Opinion of the Court, per ANDREWS, J. tion, and the court must act in the exercise of a discretion, having reference to the circumstances of the particular case. The court would not, we think, be justified in granting a new trial in this case, under the act of 1887. There is much to appeal to the sympathies in the unfortunate condition of the defendant. But the evidence justified the jury in finding that in shooting her husband she acted deliberately and with premeditation, with the intention of taking his life. The defendant, before leaving her rooms on One Hundred and Twenty-fifth street, shortly before the homicide, armed herself with the pistol. According to the testimony of disinterested witnesses of the transaction, she was first seen following her husband on the avenue, and deliberately shot him from behind while he was walking ahead of her, apparently unconscious of her presence in the vicinity. The story of the defendant of the occurrences immediately preceding the shooting, not only is without any corroboration, but is irreconcilably inconsistent with the facts as observed by the other witnesses. Her story that the deceased attempted to attack her with a razor is not only inconsistent with the testimony of the other eye-witnesses of the shooting, but seems conclusively disproved by the uncontroverted evidence that the razor of the deceased was found after his death in his inside vest pocket, wrapped in paper and tied around with a string, and no other razor was found in the vicinity. Upon the whole facts, we cannot say that the verdict was against the weight and preponderance of evidence, or that justice requires a new trial. The defendant may have been driven almost to desperation by the wrongs and insults of her husband, but the circumstances of the shooting, as the jury had a right to find them, do not show that the homicide was either justifiable or that the defendant acted in the heat of passion or without an intent to kill. The remaining question arises upon the claim made by the counsel for the defendant, that on a former trial under the indictment the defendant had, by legal intendment, been acquitted of the principal offense of murder in the first Opinion of the Court, per ANDREWS, J. degree, which was a bar to a subsequent trial and conviction for that degree of homicide. The facts upon which this question depends are briefly these: On a former trial the defendant, upon arraignment, pleaded not guilty, and a jury was impanneled and sworn to try the issue. The trial proceeded and witnesses were sworn and examined in behalf of the prosecution. At the conclusion of the case on the part of the People, by mutual consent of the defendant, the district attorney and the court, the jury were discharged and the defendant withdrew her plea of not guilty and pleaded guilty of murder in the second degree, which latter plea was accepted by the court, but no sentence was pronounced. On a subsequent day the defendant, by her counsel, applied to the court to be permitted to withdraw her plea of guilty of murder in the second degree, and the district attorney consenting thereto, the court allowed the motion, and the defendant thereupon withdrew her said plea and again pleaded not guilty to the indictment. The grounds upon which the application to withdraw the former plea was made, or upon which it was granted, do not appear. The trial, from which the present appeal is taken, was thereafter had under the general plea of not guilty so interposed, which resulted in the present conviction. It is now claimed that the acceptance of the plea of guilty of murder in the second degree on the former trial, was, in law, an acquittal of the defendant of the crime of murder in the first degree, which acquittal stood in full force and unimpaired by the subsequent proceedings. It would be a complete answer to this claim, in point of law, that the defense of former acquittal must be pleaded, and that, in the absence of a plea setting it up, the question cannot be raised. This was the rule before the enactment of the Code of Criminal Procedure, and is recognized by that statute. (People v. Benjamin, 2 Park. Cr. Rep. 201; Code, §§ 332, 339; see, also, State v. Barnes, 32 Me. 530; Bishop on Crim. Pro. §§ 806, 813.) But in a capital case, if it was made to appear that there had been a former acquittal, we should deem it our duty, under the statute of 1887, to take notice of the fact, although not Opinion of the Court, per ANDREWS, J. presented by a formal plea. The contention that the acceptance of the plea of guilty of murder in the second degree on the former trial was, in law, an acquittal of the higher offense, notwithstanding its withdrawal at the instance of the defendant, is placed on the supposed analogy with those cases in which it has been held that where a defendant indicted for murder is put on his trial for that crime, a conviction of murder in the second degree, or of manslaughter, is an acquittal of any higher degree of the crime than that for which he was convicted; and that although the defendant succeeds in procuring a reversal of the judgment convicting him of the lesser offense, he does not thereby waive the benefit of the former verdict as an acquittal for the higher offense, but may insist upon it; and he cannot thereafter be tried for any higher degree of crime than that of which he was formerly convicted. The preponderating weight of authority sustains the general principle as above stated. (Slaughter v. State 6 Humph. [Tenn.] 411; State v. Ross, 29 Mo. 32; People v. Gilmore, 4 Cal. 378; State v. Hendry, 5 La. An. 588; State v. Kittle, 2 Tyler [Vt.] 472.) In this state the same doctrine is recognized in cases of inferior offenses. (People v. Guenther, 24 N. Y. 100; People v. Dowling, 84 id. 478.) The question has not arisen in this state, so far as we know, on an indictment for murder, but a fortiori, if the doctrine contended for is applicable in case of minor offenses, it is to those of the higher grade. In determining whether the principle of these decisions is applicable in the present case, the ratio decidendi is to be considered. The doctrine that a man once tried and convicted, or acquitted of a crime on a valid indictment by a court of competent jurisdiction, cannot be tried again for the same. offense has its foundation in the principles of justice and is ancient doctrine of the common law. It is embodied in that provision of the Constitution of our state (art. 1, § 6), which declares that "No person shall be subject to be twice put in jeopardy for the same offense." In the application of this constitutional principle, it is well settled that an acquittal or conviction by verdict of a jury, although not fol a very Opinion of the Court, per ANDREWS, J. lowed by judgment or sentence, is an acquittal or conviction which protects an accused person against another trial, provided there was a competent court and a lawful indictment, or, in case of conviction, so long as the judgment remains unreversed. And, whether the conviction was on confession or by verdict, the rule was the same. (Sheperd v. People, 25 N. Y. 406, and cases cited.) But in this state and, generally, elsewhere, a party convicted is permitted, in some form, to have a review for the purpose of correcting any errors of fact or law which may have been committed on the trial. And it became a settled qualification of the doctrine that a party could not be twice tried for the same offense, that by seeking and obtaining a new trial for error, he thereby waived the constitutional protection and could be again tried for the offense of which he was formerly convicted. (United States v. Keen, 1 McLean, 435; People v. Dowling, supra.) But this doctrine, in turn, was limited so as to protect a defendant, who secured a reversal and new trial, from being again put on trial for a higher grade of the same offense, or for another offense included in the same indictment, of which higher grade, or of which other offense the first conviction was, by inference, an acquittal. So it was held that a verdict of conviction of one of several offenses charged in an indictment, or of a lesser degree of a single offense, implied, although the verdict was silent on the subject, that the jury found the defendant not guilty of such other offenses, or of the higher degrees of the same offense. It was on the theory that the verdict was separate and divisible, being both a verdict of acquittal and conviction, and that there was no inconsistency between a claim that the defendant was not guilty even of that of which he was convicted, and the claim that the verdict still stood as an acquittal of the other matters charged in the indictment, that the defendant was permitted, on a new trial, to urge the former verdict as an acquittal of all the matters charged, other than that on which the conviction was had. The reason of the rule has, we think, no application to the present case. The confession of guilty of murder in the second degree having |