People v. . Fish

Citations

• 26 N.E. 319
• 125 N.Y. 136
• 8 N.Y. Crim. 129
• 34 N.Y. St. Rep. 840
• 80 Sickels 136
• 1891 N.Y. LEXIS 1468

Syllabus

<p>Intoxication is no excuse for crime (Penal Code, § 22). And its only materiality is upon the question of deliberation, premeditation, and intent. Hence, if while intoxicated, a defendant bad sufficient mental capacity to deliberate and premeditate the criminal act which he intentionally committed, he is guilty to the same extent as if he had been perfectly sober at the time of the commission of the offence.</p> <p>The power given to the court of appeals by § 528 of the Penal Code to order a new trial,' whether any exceptions were taken or not in the court below, if it be satisfied that the verdict was against the weight of evidence or law, or that justice requires a new trial, does not confer upon the court an arbitrary power to grant a new trial whenever it thinks that justice may require it. Its jurisdiction in such a case is to be exercised according to settled rules of law.</p> <p>Whether or not there is sufficient preliminary proof that a witness whose testimony has been taken upon the preliminary examination cannot with due diligence be found within the State, to permit the prosecution to read upon the trial his testimony taken at such preliminary examination, is a question addressed to the discretion of the trial court, and such discretion should not be lightly interfered with.</p> <p>An objection that the preliminary proof of the absence of a witness was not sufficient to justify the reading upon the trial of his deposition taken at a preliminary examination is not available for the first time on appeal.</p> <p>The intent with which a crime was committed need not be shown by direct evidence, but may be proved by the circumstances attending the act; what was said and done on the occasion by defendant, his conduct afterwards, and, in a crime committed by violence, the character of the instrument used, and the nature and force of the blow, may be considered by the jury in determing the intent with which the blow was struck.</p> <p>Where a defendant, while in