endeavored to give the impression that the deceased was killed by one Boland, a member of the Ross party. Held, on a review of the whole case upon the merits, under the statute (Code Crim. Pro. § 528), that the verdict should be sustained.

5. CRIMINAL TRIAL EVIDENCE OF ANOTHER OFFENSE - MURDER REPEATING IN VOTING. On the trial, the court admitted, under the defendant's objection and exception, evidence of repeating in voting, committed in the presence and under the supervision of the defendant, at the polling place at which the killing with which the defendant was charged occurred, and at others in the same ward, immediately preceding the killing, which evidence disclosed a systematic plan of repeating on the part of the defendant and his associates, which was o posed by the deceased. Held, that the evidence was properly admitted as tending to show that the defendant's act in killing the deceased was deliberate and constituted murder in the first degree.

6. INDICTMENT - OMISSION OF NAMES OF WITNESSES. When some names of the witnesses who were examined before the grand jury are indorsed upon the indictment, but not all as required by section 271 of the Code of Criminal Procedure, and in the course of the trial it appears that there were witnesses whose names were omitted, the defendant will not be entitled, on motion after conviction, to a new trial by reason of such omission; at all events, not where he suffered no prejudice by the omission, or it does not appear that the omitted witnesses were of such a character that the defendant was prejudiced by the reception of their evidence, while he had not had the time or means to show their true character, or that their particular testimony was false.

(Argued June 12, 1895; decided October 8, 1895.)

APPEAL from judgment of the Court of Oyer and Terminer of the county of Rensselaer, entered upon a verdict rendered July 4, 1894, convicting defendant of the crime of murder in the first degree in killing one Robert Ross.

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

John T. Norton and Galen R. Hitt for appellant. The order and designation of the governor, made on the 25th day of April, 1894, designating an extraordinary Court of Oyer and Terminer, was without warrant or authority in law. (Code Civ. Pro. §§ 232, 234; Const. art. 6, §7; Quimbo Appo v. People, 20 N. Y. 531; People v. Allen, 57 Barb. 187; 43 N. Y. 28; Cancemi Case, 18 N. Y. 129; People v. McGuire, 2 Park. 148; Code Crim. Pro. § 528.) The motion to dismiss

the indictment should have been granted. (People v. Brickner, 8 N. Y. Cr. Rep. 222; People v. Haines, 6 N. Y. Cr. Rep. 100.) The prosecution offered evidence to prove that the defendant had committed other crimes, of which he was not accused, and asked the jury to infer that he must have committed the offense charged because he was guilty of the other offenses. Evidence tending to prove other criminal acts on the part of the accused, in order to support the probabilities of the evidence that he committed the particular act charged, is incompetent. (People v. Crapo, 76 N. Y. 291; Coleman v. People, 55 N. Y. 81; People v. Sharp, 107 N. Y. 427, 460, 461; Roscoe's Crim. Ev. 137; Hutchins v. Hutchins, 98 N. Y. 56; Anderson v. R., W. & O. R. R. Co., 54 N. Y. 334; V. R. R. Co. v. O'Brien, 119 U. S. 99; Greene v. White, 37 N. Y. 305; Greene v. Disbrow, 56 N. Y. 334; Alexander v. Dutcher, 7 Hun, 439; Carroll v. Deimel, 95 N. Y. 252; People v. Greenwall, 108 N. Y. 296, 301; Copperman v. People, 56 N. Y. 593; Corbin v. People, 56 N. Y. 363; 2 Russell on Crimes [6th ed.], 776; People v. Gibson, 21 N. Y. S. R. 59; People v. Larubia, 140 N. Y. 87.) The defendant should not on the evidence have been convicted of a crime higher than manslaughter in the first degree. (Penal Code, § 189; Leighton v. People, 88 N. Y. 120; People v. Conroy, 97 N. Y. 62, 75; People v. Majone, 91 N. Y. 212; People v. Stokes, 53 N. Y. 164.) It was an error for the prosecution not to have the names of all the witnesses sworn before the grand jury on the indictment. (Code Crim. Pro. § 271; Mandeville v. Reynolds, 68 N. Y. 528.) The case at bar is pre-eminently a case in which the power of the court to grant a new trial should be exercised. (Code Crim. Pro. § 528.)

No

Thomas S. Fagan and George Raines for respondent. error was committed in the rulings of the court upon challenges to the jurors, and none of defendant's exceptions are well taken. (People v. Welch, 1 N. Y. Cr. Rep. 486; People v. Cornetti, 92 N. Y. 85; People v. Casey, 96 N. Y. 115, 122;

People v. Crowley, 102 N. Y. 237; People v. Otto, 38 Hun, 97; 101 N. Y. 690; People v. Willson, 109 N. Y. 345, 352; Guetig v. State, 66 Ind. 94; Thomas v. People, 67 N. Y. 218; People v. Clark, 102 N. Y. 735; Balbo v. People, 80 N. Y. 484; Abbott v. People, 86 N. Y. 468; Cox v. People, 80 N. Y. 512; People v. Martell, 138 N. Y. 595; Code Crim. Pro. § 376, sub. 2; People v. McQuade, 110 N. Y. 284, 297; People v. MeGonegal, 136 N. Y. 70; Greenfield v. People, 74 N. Y. 277; Code Civ. Pro. § 1027, sub. 5; Code Crim. Pro. §§ 358, 375, sub. 2; People v. Beckwith, 103 N. Y. 369; Code Crim. Pro. § 377, sub. 8; People v. Carolin, 115 N. Y. 658; People v. Fanshawe, 50 N. Y. S. R. 4; Walter v. People, 32 N. Y. 147; Gordon v. People, 33 N. Y. 511; O'Brien v. People, 36 N. Y. 276; People v. Wood, 131 N. Y. 619; People v. Damon, 13 Wend. 351; People v. Hughes, 137 N. Y. 29; People v. Rogers, 13 Abb. Pr. [N. S.] 371; U. S. v. Morris, 1 Curtis C. C. [U. S.] 23; McFadden v. Com., 11 Harris [Pa.], 12; 23 Pa. St. 23; People v. Bodine, 1 Edm. Sel. Cases, 36; Tooel v. Com., 11 Leigh [Va.], 714; Com. v. Twombly, 10 Pick. 480.) Νο error was committed on the trial in rulings on the admission or rejection of evidence. (People v. McKane, 143 N. Y. 455; People v. Dimick, 107 N. Y. 32; People v. Sharp, 107 N. Y. 466; State v. Lapage, 57 N. H. 245–295; People v. Shulman, 80 N. Y. 376; Mayer v. People, 80 N. Y. 364; Pierson v. People, 79 N. Y. 424; People v. Wood, 3 Park. Cr. Rep. 681; Stout v. People, 4 Park. Cr. Rep. 132; Comm. v. Tuckerman, 10 Gray, 173; Comm. v. McCarthy, 119 Mass. 354; Comm. v. Bradford, 126 Mass. 42; Comm. v. Merriam, 14 Pick. 518; Levy v. People, 80 N. Y. 327; McKown v. Hunter, 30 N. Y. 628; Kerrains v. People, 60 N. Y. 221, 229; 1 Whart. Ev. [3d ed.] §§ 482, 508, 955; Starin v. Kelly, 15 J. & S. 290; Bayliss v. Cockroft, 81 N. Y. 371; Osborn v. Robbins, 36 N. Y. 375; Hardt v. Schulting, 13 Hun, 538; Babcock v. People, 15 Hun, 355; Hubbell v. Alden, 4 Lans. 228; Thurston v. Cornell, 38 N. Y. 287; Newman v. Cordell, 43 Barb. 449; Seymour v. Wilson, 14 N. Y. 567; Forbes

v. Waller, 25 N. Y. 430, 439; Griffin v. Marquardt, 21 N. Y. 121; Crook v. Rindskopf, 8 N. Y. S. R. 68; 105 N. Y. 482; Cook v. People, 2 T. & C. 409; Fiedler v. Darrin, 50 N. Y. 443; Bennett v. Smith, 23 Hun, 54; McGuire v. People, 3 Hun, 213; People v. Casey, 72 N. Y. 393; People v. Noelke, 94 N. Y. 137; People v. Irving, 95 N. Y. 541; Greenfield v. People, 13 Hun, 242, 244; 74 N. Y. 277; Leighton v. People, 88 N. Y. 117; O'Connell v. People, 87 N. Y. 377; Casey v. People, 31 Hun, 158, 162; 96 N. Y. 115; People v. Rector, 19 Wend. 569; Carpenter v. Ward, 30 N. Y. 243, 245; Plato v. Reynolds, 27 N. Y. 586; Trustees v. B. F. Ins. Co., 28 N. Y. 153; Chapman v. Brooks, 31 N. Y. 75, 87; Stokes v. People, 53 N. Y. 164, 175, 176; Shultz v. T. A. R. R. Co., 89 N. Y. 248; People v. Ware, 29 Hun, 473; 92 N. Y. 652; Pontius v. People, 82 N. Y. 347; Marks v. King, 64 N. Y. 628; Platner v. Platner, 78 N. Y. 90.) The Court of Oyer and Terminer is not a part of the Supreme Court, need not necessarily be held at the same time and place with a Circuit Court, and, except the requirement that it must be presided over by a justice of the Supreme Court, it is subject to the control of the legislature. (Smith v. People, 47 N. Y. 330; Quimbo Appo v. People, 20 N. Y. 531; Ostrander v. People, 29 Hun, 513, 517; People v. 96 N. Y. 198; People v. Petrea, 92 N. Y. 128, 143; Code Crim. Pro. §§ 21, 22, 23, 24, 25, 40; People v. Hooghkerk, 96 N. Y. 159; Nelson v. People, 23 N. Y. 296; People v. Bork, 31 Hun, 369; Moett v. People, 85 N. Y. 383; Code Civ. Pro. §§ 89, 232, 234; People v. McKané, 80 Hun, 326; 143 N. Y. 461; People v. Naughton, 7 Abb. Pr. [N. S.] 421.) The motion to dismiss indictment was properly denied. (Code Crim. Pro. $ 239, 313; People v. Petrea, 92 N. Y. 144; People v. Hooghkerk, 96 N. Y. 158.) There was no case made by the defendant for the postponement of his trial. (Code Crim. Pro. § 257; Eighmy v. People, 79 N. Y. 554.) The defendant's motion to set aside the verdict and for a new trial was properly denied. (People v. Menken, 36 Hun, 99; People v. Draper, 28 Hun, 6; People v. Johnson, 110 N. Y. 134,

Bork,

144; People v. Lane, 31 Hun, 15; People v. Kelly, 94 N. Y. 531; People v. Osterhout, 34 Hun, 262: People v. Buddensieck, 103 N. Y. 487; People v. Meakin, 133 N. Y. 219; Code Crim. Pro. § 527; People v. Boas, 92 N. Y. 564; People v. Donovan, 101 N. Y. 632; People v. Ilovey, 92 N. Y. 554; People v. Brooks, 131 N. Y. 329; People v. Tice, 131 N. Y. 654; People v. Cignarale, 110 N. Y. 26; People v. Driscoll, 107 N. Y. 417; People v. Stone, 117 N. Y. 485; People v. Trezza, 125 N. Y. 740; People v. Fish, 125 N. Y. 136; People v. Loppy, 128 N. Y. 630; People v. Taylor, 138 N. Y. 398, 405; People v. Kelly, 31 Hun, 226; 94 N. Y. 531; Code Crim. Pro. §§ 271, 272, 313, 314, 315, 463; People v. Dawson, 25 N. Y. 399; 3 Mass. 232; 6 Wend. 486; 6 Hill, 42; 6 Hill, 646; 3 Den. 526; 9 Paige, 17; 2 N. Y. 134; 1 Burr, 447; Smith's Com. on Stat. §§ 670680; Bishop on Crim. Pro. § 126; Penal Code of California, 943; 22 Cal. 348; 26 Cal. 112; 54 Cal. 400; State v. O'Day, 89 Mo. 559; Eighmy v. People, 79 N. Y. 560; Code Crim. Pro. $ 285, 542, 684, 764; People v. Dimick, 107 N. Y. 13, 34; People v. Williams, 18 N. Y. S. R. 405; Willet v. People, 27 Hun, 461, 471; People v. Tower, 42 N. Y. S. R. 164, 166; People v. Gilman, 125 N. Y. 375; People v. Lawrence, 137 N. Y. 522; People v. Hagan, 37 N. Y. S. R. 661; People v. McQuaid, 110 N. Y. 284; People v. Wentworth, 4 N. Y. Cr. Rep. 214; People v. Johnson, 104 N. Y. 213; People v. Weldon, 111 N. Y. 575; Cox v. People, 80 N. Y. 500; People v. Flack, 57 Hun, 96; People v. Petrea, 92 N. Y. 128; Leighton v. People, 88 N. Y. 117; People v. Rose, 52 Hun, 30; People v. Hughes, 137 N. Y. 29; State v. Kimbrough, 2 Dev. [N. C.] 431; State v. Seaborn, 4 Dev. [N. C.] 305.) The defendant's motion in arrest of judgment was properly denied. (People v. Menken, 36 Hun, 99; People v. Kelly, 94 N. Y. 526; People v. Osterhout, 34 Hun, 262; People v. Buddensieck, 103 N. Y. 496; Code Civ. Pro. § 528; People v. Driscoll, 107 N. Y. 417; People v. Fish, 125 N. Y. 135; People v. Trezza, 125 N. Y. 740; People v. Cignarale, 110 N. Y. 23; People v. Kelly,