Opinion of the Court, per HAIGHT, J.

[Vol. 196.

wife had funds with which to purchase the place. He was advised by the warning of his sister and yet thereafter executed the deed to his infant son, thus uttering the title which he had been warned against and had reason to believe to be forged. But motive alone is not sufficient to warrant a finding of a conspiracy to commit a homicide. It is true that the body was found upon the premises occupied by him and his wife. But was it by his act? This question we have already considered, and reached the conclusion that he was not present at the commission of the act. He may, however, have arrived in time to assist in the secreting of the remains, and this may account for the tiny piece of flesh, of the size of the head of a pin, that was found upon his pants, and the hairs in the trunk. But the assisting in the secreting of the body after death would not make him a principal, but would only leave him liable as an accessory after the fact. Apparently the defendant was a man of moderate intellect and possessed fair judgment when sober, but he was given to the use of intoxicants to such an extent that on every occasion when he could get the money with which to purchase liquor, it was spent for that purpose and he had virtually become an habitual drunkard. Mrs. Farmer is described as a strong, rugged woman. She appears to have originated all of the plans that had been talked over with reference to the purchasing and acquiring of property. She carried the purse and expended the money that he had from time to time earned and he was compelled to rely upon her for whatever he had to eat or drink. That she was the ruling power, and to a large extent controlled him in his actions, is quite apparent. It was her mind that planned the scheme for getting title to the house and lot owned by Mrs. Brennan. She took the deed to a lawyer who was not acquainted with her and procured him to draw a deed to the defendant, herself impersonating Mrs. Brennan in signing and acknowledging the same. It was her mind that devised the bill of sale of the personal property, the household furniture, goods and provisions. It was she who procured the confidence of Mrs.

N. Y. Rep.] Dissenting opinion, per EDWARD T. BARTLETT, J.

Brennan who had become her daily visitor and confidant, thus enabling her to have access to Mrs. Brennan's house and papers. It was her hand that struck the blows that destroyed the life of her friend; and it was her mind that evidently planned the homicide, to the end that she, her husband and son could possess the property which she so much coveted.

It is possible that the defendant knew of her plans and her intended act. It is possible that he counseled, advised and procured her to do the act, but where is the evidence to be found. True, he had the motive; he, with her, was to gain a comfortable home; he also was her husband, living with her. But, as we have seen, motive and relationship are not sufficient to warrant a conviction. He may be guilty as a principal or an accessory in the forging of the deed; he may be guilty as an accessory in the secreting of the body. But I am not satisfied that the evidence justifies his conviction as a principal in the homicide.

The record contains many exceptions that were taken to the admission and rejection of evidence, but, in view of the conclusion that I have reached upon the merits, I do not deem it necessary to consider them.

The judgment and conviction should be reversed and a new

trial ordered.

EDWARD T. BARTLETT, J. (dissenting). I am unable to agree with the conclusion reached by Judge HAIGHT, to the effect that the conviction of the defendant, James D. Farmer, should be reversed and a new trial ordered.

I am of the opinion there is abundant evidence to establish the fact that the defendant acted as a principal with his wife, Mary Farmer, from the forgery of the deed in October, 1907, until the murder of Sarah Brennan and the discovery of her body in the trunk in April, 1908. The fact is undoubtedly established that the defendant was not present when Mary Farmer killed Mrs. Brennan, but the People submitted evidence that justified the jury in finding that he arrived on the scene less than three hours thereafter, and must have partici

Dissenting opinion, per EDWARD T. BARTLETT, J. [Vol. 196.

pated to some extent in the grew some details incident to concealing the body of the victim and removing the evidences of the crime. This degree of participation, however, is not of vital importance.

Section 29 of the Penal Code thus defines a principal: "A person concerned in the commission of a crime whether he directly commits the act constituting the offense or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal."

The murder of Mrs. Brennan was no sudden impulse that induced Mary Farmer to take her life; it was on the contrary a necessary part of a deliberate and wicked scheme originating in the forgery of the deed in October, 1907, and consummated by the murder in April, 1908. The death of Sarah Brennan was the key to the situation. Without it the actions of the defendant and his wife were purposeless and utterly without meaning; her removal by violence was the mode provided by these conspirators to place them in possession of the real estate and the personal property of the Brennans. The actions of the defendant and his wife after the homicide render it clear that such was the fact. They moved very soon into the house of the Brennans, took possession of the personal property, informed the husband of the murdered woman on his return in the evening of the fatal day that his wife had departed for the West, never to return; this story they also circulated throughout the neighborhood.

In convicting an absent principal, under the statute already quoted, of murder in the first degree, it is essential that the surrounding circumstances should weave about him a network of fact from which there is no possible escape. In my opinion the defendant, James D. Farmer, stands in that precise situation, and the judgment convicting him of murder in the first degree must be affirmed.

CULLEN, Ch. J., GRAY, VANN, WERNER and HISCOCK, JJ., concur with HAIGHT, J.; EDWARD T. BARTLETT, J., reads dissenting opinion.

Judgment of conviction reversed, etc.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BEDROS HAMPARTJOOMIAN, Appellant.

Murder - evidence examined and held sufficient to sustain conviction of defendant - when juror not disqualified because he has formed an opinion as to the guilt or innocence of defendant - when error in reception of evidence immaterial.

The evidence, upon the trial of a defen ant charged with murder, examined, and held, that the homicide was clearly proved by undisputed evidence, and all the circumstances, as well as defendant's avowal, showed that it was carefully planned and deliberately executed. The evidence tended strongly to show that defendant knew the nature and quality of the act and that it was wrong, and it is clear that the weight of evidence did not require a finding by the jury that he was insane. One may not commit a crime because he hopes or expects that good will come of it. Our laws condemn an assassin regardless of his purpose or motive, and the spirit that would aid revolution abroad by murdering peaceable citizens here should meet with stern repression. An opinion does not now disqualify a juror provided he declares on oath that he believes such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, where the court is satisfied that he does not entertain such a present opinion or impression as would influence his verdict. It is not essential that the juror should be positive on the subject. An error, if one is made in a ruling excluding evidence, is cured when the evidence subsequently given by the witness, with no intervening delay, embraces every detail called for by the question to which objection was made.

Where the argument of an appeal from a judgment of death is unreasonably delayed, no allowance will be made defendant's counsel unless a satisfactory excuse is presented to the court.

(Argued June 7, 1909; decided October 19, 1909.)

APPEAL from a judgment of the Supreme Court, rendered November 4, 1907, at a Trial Term for the county of New York, upon a verdict convicting the defendant of the crime of murder in the first degree.

The facts, so far as material, are stated in the opinion.

Harriette M. Johnston-Wood, Emmet J. Murphy and William H. Wood for appellant. The court erred in overruling defendant's challenge to the juror John E. Howe.

Opinion of the Court, per VANN, J.

[Vol. 196.

(People v. Wilmarth, 156 N. Y. 566; People v. Flaherty, 162 N. Y. 532; People v. Larubia, 140 N. Y. 87.) It was error to exclude the testimony of the witness Garabedian as to what he observed with respect to the defendant's conduct. (People v. Wood, 126 N. Y. 249; People v. Nino, 149 N. Y. 317; Cole's Trial, 7 Abb. Pr. 321; State v. Felter, 25 Iowa, 6; State v. Kelley, 27 N. II. 549; People v. Kormer, 117 App. Div. 40; 16 Am. & Eng. Ency. of Law, 614, §§ 5, 10; People v. Hoch, 150 N. Y. 291; Freeman v. People, 4 Den. 9.)

William Travers Jerome, District Attorney (Robert C. Taylor of counsel), for respondent. No error was committed in accepting the juror Howe. (Abb. Tr. Brief, Crim. Causes [2d ed.], 258; People v. Dunn, 31 App. Div. 19; 157 N. Y. 528; People v. Decker, 157 N. Y. 192.)

VANN, J. On the 31st of October, 1907, the defendant was convicted of the crime of murder in the first degree upon an indictment alleging that on the 22nd of July, 1907, in the borough of Manhattan, county of New York, he shot and killed Hovhannes Tavshanjian willfully, feloniously and of his malice aforethought. The jury deliberated but twentyfive minutes before they rendered their verdict. Judgment of death was pronounced on the fourth of November, 1907, and the appeal therefrom, although taken on the fifth of December in the same year, was not argued before us until the seventh of June, 1909. The trial occupied six days, the appeal book contains one hundred and forty-two pages and the briefs of counsel on both sides, twenty-three. So long a delay is a reproach to the administration of justice and no allowance will be made to counsel until a satisfactory excuse is presented to the court.

The case is clear and simple, but pathetic, because the crime was not committed from sordid or selfish motives, apparently, but from a perverted conception of patriotism. The defendant, a native of Armenia, was about twenty-four years of age at the time of the homicide. He is married, but has no