B are also hostile towards the prisoner, and have quarrelled with him, that then they should consider these matters in weighing the de- gree of credit which is to be given to their testimonY ib 17 The statute declaring a homicide to be excusable " when committed upon a sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner," is not applicable to a case where the deceased was killed by the prisoner in a fight with fists, and in which the fight was arranged by the prisoner or his friends with his adversary some hours before the fight took place The People v Tannan, 514 18 Where, in an indictment for mur- der, it was charged that the death was caused by beating and striking, and the evidence showed that it was probably caused by injuries to the side of the deceased, occasioned by his falling upon a mound of earth when engaged in a personal combat with the prisoner, the prisoner was acquitted by the jury under the ad- vice of the courT ib 19 Where, on a trial for murder, the court, in charging the jury, submitted to them to decide whether the pri- soner was guilty of murder or man- slaughter, or whether the act in ques- tion was justifiable homicide, and after an absence of twenty' four hours, the jury, not having agreed, returned into court and asked for further in- structions on the law, when the court further charged the jury that if they believed the witnesses, the case was clearly within one of the degrees of manslaughter, and it was for the jury to say which degree, such fur- ther charge was held to be errone- ous, as withdrawing from the jury the decision of questions of facT Pfomer v The People, 558 20 In such a case it is purely a ques- tion of fact for the jury to deter- mine whether the prisoner, at the tune he slew the deceased, had rea- sonable ground to believe his own life to be in danger from the deceased 2 1 On a trial for murder, where the death occurred in a personal encoun- ter, and the defence is that the killing was justifiable, on the ground that the prisoner, at the time he slew the deceased, had reasonable ground to believe his own life to be in danger, whether it is competent for the pri- soner to prove the violent and ruf- fianly character and habits of the de- ceased, and whether such character and habits must be brought to the knowledge of the prisoner, discussed by counsel, with a full collection of the American authorities on these question S 6 22 To constitute the offence of mur- der under the first subdivision of the fifth section of the statute, enti- tled " Of crimes punishable with death" (2 R S, 667), an actual in- tention to kill must in all cases be proved Without such an intention, the act can be no more than man- slaughteR Wilson v The People, 23 Such intention may be inferred from the circumstances under which the violence was inflicted, and some- times from the act itself; but the onus of establishing it rests upon the prosecution ib 24 The " heat of passion " mentioned in the statutory definition of man- slaughter, affords the intended pro- tection to the accused, whether it was produced by acts or words, if the provocation was such as was naturally calculated to produce iT trial.

It cannot be where it aroe solely from the negligence of the moving partY The People v O'Brien, 203 2 Where the defendant had been con- victed of keeping a disorderly house, and on motion for a new trial, it appeared from his affidavits that the conviction was had solely upon evidence that his tenant of the basement kept that part of the house in a disorderly manner ; that he, the defendant, occupied the floor above, and supposing he was only required to defend, as he did, the character of the part occupied by himself, and the affidavits did not show that he had, but left the infer- ence that he had not, disclosed all the facts to his counsel, and did not show that he had discovered any material evidence not before known to him and within his reach : Held, that he was not entitled to a new trial.

16 3 It seems that the Superior Court of Buffalo has power to grant a new trial to a defendant convicted of a misdemeanor, either on the judge's minutes at the same term at which he was convicted, or on a case at the general terM ib 4 On a motion before the Court of Oyer and Terminer, in behalf of the prisoner, for a new trial, on the ground of irregularity, affidavits of counsel, as to information they have received from jurors concerning what took place in the jury room, cannot be received as any evidence of the alleged irregularitY Wilson v The People, 619 5 It is no reason for setting aside a conviction for murder, on motion for a new trial, that during a recess of the trial, one of the jurors took up and examined a piece of the skull of the person alleged to have been murdered, which was lying on the District Attorney's table, the circumstances of the case being such as to show that the juror could not have been misled thereby, and the fact of the juror having examined the said skull being known to the prisoner's counsel before they enter- ed upon the defence ib 6 Affidavits of jurors cannot be re- ceived to show that,, at the request of one of their number, a constable handed in a paper, on which were marked the several punishments fixed by law for the different degrees of manslaughteR Z> 7 'And when such fact was shown by the affidavit of the constable, the court refused to set aside the ver- dict, it appearing affirmatively that the jury could not have been misled therebY ib 1 A Court of Sessions has no power to direct a nolle prosequi to be en- tered on an indictment pending there- in for an offence not triable in that courT The People v Porter, 524 2 Nor can a nolle prosequi be entered to a part of a count of an indictment, though the court in which it is pending have jurisdiction to try the offence charged A nolle prosequi may be entered to the whole of an indictment, or to any one or more of several counts hi an indictment, ib 1 Perjury cannot be assigned of a false oath to a protest taken before a notary public, as part of the prelimi- nary proofs in case of a marine los S The oath in such a case is a voluntary and extra-judicial proceed- inG The People v Travis, 213 1 A pilot, within the meaning of chap 69 of the Laws of 1847, regu- lating Hellgate pilots, is the person piloting and directing the vessel while on board of iT It is no of- fence against the act, for the pilot of a steam tug to take a schooner through Hellgate, lashed to the side of the steam tug, the pilot of the 1 steam tug remaining on his own steamer, and making sig- nals to those on board the schooner to change their helm to conform to the movements of the steameR Francisco v The People, 139 2 It is erroneous, in such a case, to charge, that in so towing the schooner through Hellgate, the pilot of the steam tug was committing an act of pilotage ib 3 Steamboats have a right to tow vessels through Hellgate without being subject to the law relating to 1 It is no objection to an indictment that it was found while an investi- gation of the charge was pending before the committing magistrate People v fforton, 222 2 There is no rule of practice making it imperative, in criminal cases, to put over the trial, upon affidavits of a prescribed form and substance ib 3 Where an application is made by a defendant, in a criminal case, to postpone the trial, strict practice re- quires the prisoner to make in his affidavits a full disclosure of the names of his witnesses, and the facts he expects to prove by them, though such strictness may well be waived by the District Attorney or by the court, on an application made at the term when the indict- ment is found ; and where there is no appearance of ill faith, the court ought to grant a reasonable oppor- tunity to supply defects and omi S sions in the affidavits before the de- cision upon the application.

T& 4 The postponement of the trial of an indictment, on the application of the prisoner, is in no case a matter of legal right, but rests upon the discretion of the courT In resisting such a motion, the District Attorney may state facts touching the merits of the application; and the de- meanor and conduct and conversa- tion of the prisoner in the presence of the court, may properly be taken into consideration, and the minutes of the grand jury may be referred to for the purpose of ascertaining the materiality of the matters pro- posed to be proved by the absent witnesse S ib 5 In deciding upon such an applica- tion, the same credence cannot be given to the affidavit of a person indicted for felony, as to the uncon- tradicted affidavit of a party to a civil action ib 6 An order for taking the testimony of a non-resident complainant de bene esse, under the acts of 1 844 and 1846, entitled in the " Court of Gen- eral Sessions," before the finding of an indictment thereon or the offence, is irregular, and testimony taken un- der it cannot be read hi evidence on the trial of the indictment The Peo- ple v Ward, 516 1 A communication made to an attot ney at law, by a person seeking professional advice or assistance to enable him to forge a contract, is not privileged, and the attorney, when called as a witness, can be required to disclose iT People v Blakley, 1 An indictment for embezzlement and larceny was found againstW S C and M C, his wife, and, on motion, in behalf of M C, the court quashed the indictment as to her: Held, that quashing the indict- ment as to M C did not discharge it, and was no reason for quashing it as toW S C, but that he could be tried under the indictment as if originally indicted alone Coats v The People, 662 2 It is no reason for quashing an in- dictment for the embezzlement and larceny of articles of food provided for the support of a county poor house, that they are charged in the indictment as the property of the Superintendent of the Poor of th e countY ib 1 Where a prisoner is let to bail by an officer out of court, the recogni- zance taken must be filed, as requir- ed by statute, before any action can be taken upon it by the court ; and no suit can be maintained upon such a recognizance, without averring in the complaint and proving on the trial that it had been filed, or made , a record of the court in which it was returnable The People v Shaver, 45 2 It is a good defence to an action on a recognizance, that it was taken on an illegal arrest of the prisoner, for whom the defendant became bail.

3 A complaint in writing charging S with bigamy, alleged to have been committed in Albany county, was made before a justice of the peace of Fulton county, who issued his warrant for the arrest of S, under which S was arrested in Montgom- ery county, by a constable of the latter county (the warrant not hav- ing been first indorsed by a justice of Montgomery county), and brought into the county of Fulton before the justice who had issued the warrant, upon whose require- ment a recognizance was entered into to appear at the next Court of Sessions to be held in Montgomery county: Held, that the arrest was illegal, and the recognizance void for duress ; that it should have been directed to an officer of the co'unty in which the justice who issued it was a magistrate ; and that the jus- tice who issued the warrant had no authority, in a case like that before him, to take a recognizance for tho appearance of the prisoner at a Court of Sessions of any other county than that in which the justice re- sided, ib I 1 On reversing a judgment of the Oyer and Terminer, by which the prisoner was sentenced to imprison- ment in the State Prison, and order- ing a new trial therein, the Su- preme Court further ordered that the prisoner should appear at the next Court of Oyer and Terminer to be held in the county in which he had been convicted, to stand trial on the indictment, and not depart the court without its leave, and abide its orders and judgment- People v Bldkely, 176 1 Satisfactory evidence that a female is " a common prostitute and idle person," will not authorize her con- viction as a vagrant under the statute The People v Forbes, 611 2 "Common prostitutes" and "idle "persons" are not necessarily va- grants- it is only "common prosti- tutes who have no lawful employ- ment whereby to maintain them- selves," and "idle persons who, not having any visible means to main- tain themselves, live without em- ployment," that come within the vagrancy act S ib 3 These acts are constitutional, but should be construed strictly and exe- cuted carefully in favor of the liberty of the citizen ib 4 Where a person is committed as a vagrant, the record and commit- ment should set forth the grounds on which the charge of vagrancy was based ib 5 Where a conviction of vagrancy before a police justice is reviewed on habeas corpus before a judge at cham- bers, the only inquiry should be ; whether the justice had jurisdiction of the prisoner, and whether the pri- soner was committed for an offence within the statute The People v Gray, 616 6 The offence consists in being a va- grant ; and it is not necessary that the record or the commitment should state the grounds on which the charge of vagrancy was based It is enough that they show that the prisoner had been charged with being a vagrant, and was convicted of that offence 1 That a fair and impartial trial, by any means within the reach of the law, cannot be had in the county in which the venue was laid, is a suf- ficient reason for changing the place of trial in a criminal case The People v Long Island Railroad Company, 602 2 In deciding upon such an applica- tion, the court should be governed by the facts shown, and not by the mere impressions or conclusions of par- lies and witnesse S ib 3 It is not indispensable to a change of venue in a criminal case, that there should have been an ineffectual at- tempt to obtain a jury in the county where the venue was laid ib 1 Conviction of petit larceny does no* render the person convicted incom- petent to testify as a witness, within the provision 2 R S, 701 Shay v The People, 353 1 A writ of error to review in the Court of Appeals a judgment ren- dered in the Supreme Court, on an indictment for a capital offence, can" not be issued unless allowed by a Judge of the Court of Appeals, or Justice of the Supreme Court, or a County Judge, and such writ of error will not stay or delay the exe- cution of such judgment, or of the sentence thereon, unless it be ex- pressly directed in the allowance that the writ shall operate as a stay of proceeding S Stout v The People, I 132 2 Such writ ought not to be al- lowed and the proceeedings stayed; unless it is probable an error has been committed, or unless real doubt may well be entertained as to the correctness of the decisions sought to be reviewed ib 3 The return to a writ of error in a criminal case, brings up the indict- ment, the pleas interposed by the de- fendant, and the trial and judgment upon those pleas, as well as the bill of exception S On such a return, therefore, a special plea of a former trial on the same indictment, and the proceedings on such plea are pro- perly before the court for review.