qualifications of Mrs. Northrop come fully up to these requisitions?

In Goodright v. Moss, Cowp. 591, the declarations of parents were held admissible, after their decease, to prove that their son was born before their marriage and was therefore illegitimate; and this case is not questioned on this point in Berkley Peerage case, 4 Camp. 401.

In Vowles V. Young, supra, a new trial was granted because the declarations of a husband, that his wife was illegitimate, were rejected.

from tracing their birth to a source which is deemed criminal by law." Cooley v. Dewey, 4 Pick. 95. Heuce bastards were said by the common law to be the "children of nobody," and could not transmit by descent except to their own offspring 1 Bl. Com. 459; 2 Kent Com. (12th ed.) 212-13; Hughes v. Decker, 38 Me. 153, 160. And such was the law in this State until 1838, when the Legislature, as have the legislatures of several other States, ameliorated the rights of illegitimate children. "This relaxation in the laws in so

many States," says Chancellor Kent, "of the severity of the common law, rests upon the principle that the

So where the question was whether the plaintiff's mother was the legitimate child of the ancestor, whose land was in dispute and the record showed the latter's marriage at a certain date, the ancestor's declaration -that "unless he made a will, Louisa (plaintiff's mother) could get nothing," was held competent to go to the jury on the question of her illegitimacy. Viall v. Smith, 6 R. I. 417. See also Barnum v. Barnum, 42 Md. 251, 304.

It would seem therefore that the declarations of the intestate would be admissible to show that the appellant was her illegitimate son; and if the mother's declarations would be, why would not be those of the mother's sister, in whose family the child was born and brought up, and in which the mother lived at the time and for years after?

It is urged that there are some English; authorities which somewhat tend otherwise.

In Bamford v. Barton, 2 Moo. & R. 28, where one K. died seised of land, leaving none but illegitimate children, to whom he willed for life his property with remainder to his own lawful heirs, who brought ejectment claiming the devisees for life to be dead; and to prove it, offered the declarations of one of them, who had since died, to prove the decease of the other, Patterson, J., at nisi prius, held the declarations inadmissible on the ground that the declarant was not, in point of law, a member of the family of his reputed father. We also entertain the same opinion, and for the same reason.

In Crispin v. Doglioni, 2 S. & Tr. 493, decided in the Probate Court in England in 1863, the plaintiff claimed to be the natural son of the intestate. To prove it he tendered the declarations of a deceased brother of the intestate. Sir C. Creswell, after remarking there was no case in point, held the declarations inadmissible, saying: The admissibility of hearsay evidence is exceptional, and ought not to be carried further than the decisions in the books, for it is a departure from the first rule of evidence. I can well understand that when a matter is likely to be discussed and well known in a family, a member of the family may be allowed to gire evidence of it; but in this case the plaintiff, according to his own account, is filius nullius, by our law. The question is whether a declaration of one brother may be admitted as to another brother having had intercourse with a woman, and having had a child by her; I think it ought to be excluded." We cannot perceive any objection to this ruling. No one can pretend that it comes within the exception admitting hearsay, for the putative father has no relationship with his bastard son, and hence the case is not applicable to the case at bar. Moreover the case is especially sound in England, and it might there be considered as applicable to a case having the same facts as in the case at bar. For by the common law, in order to "render odious illicit commerce between the sexes and to stamp disgrace on the fruits of it, notwithstanding the punishment usually fell upon the innocent, it was thought wise to prohibit the offspring

happy case, in all its native and binding force, ought to produce the ordinary consequence of consanguinity." 2 Kent Com. (12th ed.) 214. By the statutes of this State, an illegitimate child is the heir of his mother," and "his estate descends to his mother when he dies intestate without issue." R. S., ch. 75, §§ 3 & 4.

We are of the opinion therefore that inasmuch as the relationship of sister existed between the intestate and the declarant, and by force of the statute, that of mother and son between the intestate and the appellant, the declarations came literally within the exception and are consequently admissible; and that the jury should be allowed to pass upon their weight, if they find they were ever made in connection with the other testimony in the case.

Exceptions sustained. Peters, C. J., Walton, Danforth, Symonds and Emery, JJ., concurred.

[See Swink v. French, 11 Lea, 78; S. C., 47 Am. Rep. 277.]

Ratcliff & Fletcher, for plaintiff.

Clark & Williams, for defendant.

CALDWELL, J. This suit is founded on a promissory note, of which the defendant is the maker and the plaintiff the payee. The defense is that the note was executed on the Lord's day. The proof shows that the note was executed on that day in the State of Tennessee, where the parties to it then resided, for the consideration of a valid pre-existing debt due from the defendant to the plaintiff. There is no place of payment fixed in the note.

In Tucker v West, 29 Ark. 386, a note executed in this State on the Lord's day was held to be void under the statute. This court takes judicial notice of the laws of the several States. Owings v. Hull, 9 Pet. 607; Railroad Co. v. Bank of Ashland, 12 Wall. 226.

By the law of Tennessee, where the note was executed, it is a valid obligation. In Amis v. Kyle, 2 Yerg. 31, the Supreme Court held that the statute of that State only prohibited labor and business in the "ordinary calling" of the parties; and that isolated private contracts, made by parties outside of their ordinary calling, are not invalidated. This rule was carried to a great length in the case cited. An obliga

*S. C., 21 Fcd. Rep. 239.

tion, to be discharged in horses, was made payable on the Lord's day, and the court held the contract valid, aud that a tender of the horses, to have the effect of discharging the obligation, must be made on that day. This was held upon the ground that the sale and delivery of horses was not the ordinary calling of either of the parties. The attention of the court has not been called to any later exposition of the law of that State than is contained in this decision, and it will be assumed that there is none.

Under the rule established in Amis v. Kyle, it is obvious the note, which is the foundation of this suit, was valid in Tennessee. The execution of a note for a pre-existing debt was probably not the ordinary calling of either of the parties. If it was, the burden of proof was on the defendant to show it. Roys v. Johnson, Gray, 162; Bloxsome v. Williams, 3 Barn. & C. 232.

The doctrine of the Supreme Court of Tennessee is the doctrine of the early English cases under the statute of 29 Chas. II, ch. 7, which prohibited labor only in the " ordinary calling" of the parties. Drury v. Defontaine, 1 Taunt, 131; Bloxsome v. Williams, supra; Rex v. Whitnash, 7 Barn. & C. 596; Fennell v. Ridler, 5 id. 406; Rex v. Brotherton, 2 Strange, 702. It is also the doctrine of some of the American cases. Hellams v. Abercrombie, 15 S. C. 110; Bloom v. Richards, 2 Ohio St. 387; George v. George, 47 N. H. 27; Hazard v. Day, 14 Allen, 487. Of course the law of this State has no extraterritorial operation, and cannot affect the validity of contracts executed elsewhere on the Lord's day. And the general rule is that a contract valid by the law of the place where it is made is valid everywhere, and will be enforced by the courts of every other country. But there are exceptions to this general rule, and among them contracts against good morals, and that tend to promote vice and crime, and contracts against the settled public policy of the State will not be enforced, although they may be valid by the law of the place where they are made. Story Coufl. Laws, 244; Westl. Int. Law, § 196; Whart. Confil. Laws, § 490.

The contention of the learned counsel for the defendant is that a court of this State ought not to enforce a contract made on the Lord's day in another State, though valid by the law of that State, because the contract is the result of an immoral and irreligious act, and its enforcement here would shock the moral sense of the community and violate the public policy of the State. Assuming, but not deciding, that the determination of this question must be the same in this court that it would be in a court of the State, we will proceed to inquire whether there is any principle upon which a court of the State could refuse to enforce the contract in suit.

The common law made no distinction between the Lord's day and any other day. Contracts entered into on that day were as valid as those made on any other day. The contract in suit was voluntarily entered into between parties capable of contracting, for a lawful and valuable consideration. It had relation to a subject-matter about which it was lawful to contract, and was a valid contract when and where it was made. No court ought to refuse its aid to enforce such a contract on doubtful and uncertain grounds. The burden is on the defendant to show that its enforcement would be in violation of the settled public policy of this State, or injurious to the morals of its people. Vague surmises and flippant assertions as to what is the public policy of the State, or what would be shocking to the moral sense of its people, are not to be indulged in. The law points out the sources of information to which courts must appeal to determine the public policy of a State. The term, as it is often

popularly used and defined, makes it an unknown and variable quantity-much too indefinite and uncertain to be made the foundation of a judgment. The only authentic and admissible evidence of the public policy of a State on any given subject are its Constitution, laws and judicial decisions. The public policy of a State, of which courts take notice, and to which they give effect, must be deduced from these sources.

In Vidal v. Girard's Ex'rs, 2 How. 127, 198, it was objected by Mr. Webster that the foundation of the Girard College, upon the principles prescribed by the testator, was derogatory and hostile to the Christian religion, and so is void as being against the common law and public policy of Pennsylvania." In replying to this argument the court said:

"Nor are we at liberty to look at general considerations of the supposed public interests and policy of Pennsylvania upon this subject, beyond what its Constitution and laws and judicial decisions make known to us. * * * ."

What is there, then, in the Constitution, laws and decisions of this State evincing a public policy hostile to the enforcement of contracts lawfully made in other States on the Lord's day? The Constitution of the State declares:

"No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given by law to any religious establishment, denominatiou or mode of worship above any other. * ** No religious test shall ever be required of any person as a qualification to vote or hold office; nor shall any person be rendered incompetent to be a witness on account of his religious belief." Const. 1874, §§ 24, 26.

So much of the statute of the State as has any bear. ing on the question reads as follows:

*

"Sec. 1614. Every person who shall, on the Sabbath or Sunday, be found laboring,, or shall compel his apprentice or servaut to labor or perform other services than customary household duties of daily necessity, comfort or charity, on conviction thereof shall be fined one dollar for each separate offense. * * • Sec. 1617. Persons who are members of any religious society, who observe as Sabbath any other day of the week than the Christian Sabbath or Sunday, shall not be subject to the penalties of this act, so that they observe one day in seven, agreeably to the faith and practice of their church or society."

It is obvious the statute does not attempt to compel the observance of the first day of the week as a day of rest as a religious duty. It would be a nullity if it did so.

In Bloom v. Richards, 2 Ohio St. 387, the court Thurman, J., delivering the opinion said: "Thus the statute upon which the defendant relies, prohibiting common labor on the Sabbath, could not stand for a moment as a law of this State, if its sole foundation was the Christian duty of keeping that day holy, and its sole motive to enforce the observance of that duty."

And see, to the same effect, Specht v. Com., 8 Barr. 312; City Council of Charleston v. Benjamin, 2 Strobh. 508.

In this country legislative authority is limited strictly to temporal affairs by written Constitutions. Under these Constitutions there can be no mingling of the affairs of church and State by legislative authority. All religions are tolerated, and none is established. Each has an equal right to the protection of the law, whether Christians, Jews or infidels. Andrew v. Bible Society, 4 Sandf. (N. Y.) 182; Ayres v. Methodist Church, 3 id. 377, Cooley Const. Lim. 472. No citizen can be required by law to do, or refrain from doing, any act upon the sole ground that it is a

religious duty. The old idea that religious faith and practice can be, and should be, propagated by physical force and penal statutes has no place in the American doctrine of government. Force can only affect external observances; whereas religion consists in a temper of heart and conscious faith which force can neither implant nor efface. History records the mischievous consequences of all efforts to propagate religion, or alter man's relations to his Maker, by penal statutes. In religion no man is his neighbor's keeper, and no more is the State the keeper of the religious conscience of the people. The State protects all religions, but espouses none. Every man is individually answerable to his God for his faith and his works, and must therefore be left free to imbibe and practice any faith he chooses, so long as he does not interfere with the rights of his neighbor. The statute then is not a religious regulation, but is the result of a legitimate exercise of the police power, and is itself a police regulation. Slaughter-house cases, 16 Wall. 36, 62, and cases cited; Bloom v. Richards, supra; Specht v. Com. supra; City of Charleston v. Benjamin, supra.

Experience has shown the wisdom and necessity of having at stated intervals a day of rest from customary toil and labor for man and beast. It renews flagging energies, prevents premature decay, promotes the social virtues, tends to repress vice, aids and encourages religious teachings and practice, and affords an opportunity for innocent and healthful amusement and recreation. Neither man nor beast can stand the strain of constant and unremitting toil. Such a day, when designated by the State, is a civil and not a religious institution. No merely religious duty is enjoined. The statute does not require attendance on church any more than it requires attendance to hear a lecture in support of infidelity. In point of lawfulness there is no difference between an orthodox sermon and such a lecture on the Lord's day in this State. The Legislature might have required all persons to abstain from labor on the first or any other day of the week, without reference to their religious preferences or practices in that regard. But the statute of that State does not go to that length. While the law does not enforce religious duties and obligations as such, it has a tender regard for the conscience and convenience of every citizen in all matters relating to his religious faith and practice. The statute is catholic in its spirit, and accommodates itself to the varying religious faiths and practices of the people. In legal effect it declares every person must observe one day out of seven as a day of rest. But it does not attempt to bind all to the observance of the same day. Such a requirement would have the effect to compel many to observe two days of rest in each week-the statutory day and the day which their religious faith constrained them to observe. The statute designates the first day of the week as the day of rest for all who do not by reason of their religious faith and practice observe some other day. Christians, who regard the first day of the week as a sacred day; infidels, who regard no day as holy; and Friends, who hold there is no more holiness in one day than another, but that all are to be kept holy, are by the statute constrained to desist from labor on the first day of the week. On the other hand, Jews and Seventh-day Baptists may pursue their ordinary callings on that day, if they observe the seventh day of the week according to their faith; aud Mohammedaus may labor on the first if they observe the sixth day of the week according to their faith. The statute grants to all persons, who in the exercise of their religious faith and practice, observe one day in the week as a day of rest, the liberty of working on every other day of the week, without qualification or Imitation. In this respect there is a pronounced dif

ference between the law of this and some of the other States.

In many other States but slight regard is shown to those who observe any other than the first day of the week as a day of rest. The New York statute provides:

"Nor shall there be any servile working or laboring on that day, excepting works of necessity and charity, unless done by some person who uniformly keeps the last day of the week, called Saturday, as holy time, and does not labor or work on that day, and whose labor shall not disturb other persons in their observance of the first day of the week as holy time."

The New Jersey statute provides that it shall be a sufficient defense for working on the Sabbath day, that the defendant keeps the seventh day as the Sabbath; "provided always that the work or labor for which such person is informed against is done and performed in his or her dwelling-house or workshop, or on his or her premises or plantation, and that such work or labor has not disturbed other persons in the observance of the first day of the week as the Sabbath." And it has been held that whatever draws the attention of others from the appropriate duties of the Lord's day disturbs them. And where one purchased a horse and gave his note for the same, in his own house in the presence of his wife, the seller, and one other person, whose religious feelings were not at all shocked, and who made no complaint, it was held to be "to the disturbance of others." Varney v. French, 19 N. H. 233.

But the statute of this State draws no such invidious distinctions between those Christians who observe the first and those-be they Christians, Jews, or Mohammedans-who observe "any other day of the week, ** ** agreebly to the faith and practice of their church or society."

It is not true therefore that all contracts made in this State on the Lord's day are void. A large number of the citizens of the State may lawfully labor and make contracts on that day. There can be no doubt of the validity of a note executed in this State on the Lord's day, when the parties to it refrain from labor on "any other day of the week, ** * * agreeably to the faith and practice of their church or society." The validity of contracts made in this State on that day depends therefore on whether the parties to them conscientiously observe some other day of the week as a day of rest. If they do, their contracts made on the Lord's day are valid. Such contracts the courts of the State would be bound to enforce. If then it would be the duty of the courts of the State to enforce contracts made in the State between its own citizens on the Lord's day, having no relation to "household duties of daily necessity, comfort, or charity," how can it be said that the public policy of the State forbids the enforcement of such contracts made in another State, and valid by the law of that State? A court cannot declare that the public policy of the State evinces such a high regard for the sacredness of the Lord's day as to forbid it to enforce a contract lawfully made on that day in another State, when it is bound by law to enforce contracts made on that day in its own State. It may be justifiable in private life to "assume a virtue, though you have it not;" but courts, in the impartial administration of justice, are forbidden to assume a higher regard for the holiness of the Lord's day than is found in the Constitution and laws of the State. To do so would deprive suitors of their rights without law and would besides be in the highest degree Pharisaical. And if the courts of the State would enforce contracts made on that day in the State between certain classes of her own citizens, how can the moral sense of

the people of the State be said to be shocked by enforcing such contracts lawfully entered into elsewhere? No court is at liberty to impeach the Constitution and laws under which it derives its jurisdiction and authority as a court, by assuming that what is lawful under them is shocking to the moral sense of the people who enacted them. But if no contracts made on that day in the State could be enforced, there would still be nothing in the objection that their enforcement would be too shocking to the moral sense of the community to be tolerated, for reasons forcibly stated by Judge Redfield, in delivering the opinion of the court in Adams v. Gay, 19 Vt. 358, 367:

"And before we could determine that any given cause shocked the moral feelings of the community, we must be able to find but one pervading feeling upon that subject; so much so that a contrary feeling, in an individual, would denominate him either insane, or diseased in his moral perceptions. Now nothing is more absurd, to my mind, than to argue the existence of any such universal moral sentiment in regard to the observance of Sunday. It is in no just sense a moral sentiment at all which impels us to the observance of Sunday, for religious purposes, more than any other day. It is but education and habit, in the main, certainly. Moral feeling might dictate the devotion of a portion of our time to religious rites aud solemnities, but could never indicate any particular time above all others."

It is believed the moral sense of the community would esteem it a morally dishonest act for a debtor to refuse to pay a just debt because the evidence of it was executed on the Lord's day. Christians vary in their opinions of the manner in which the Lord's day ought to be kept. In continental Europe, sports, games, and practices are freely indulged in on that day, with the approval of the church, which the larger number of Protestant churches of England and this country do not approve.

The large emigration from Europe to this country is having a marked influence on public opinion, particularly in towns and cities, as to how the Lord's day ought to be kept. The Puritan view of the question has undergone some modifications through this influence. As a result of less restricted views on the subject, in this city, in the shadow of the capitol there are more than half a hundred places where spirituous liquors are sold on Sunday, the same as any other day in the week, without molestation from the State or city authorities. It would be downright hypocrisy for a court to affect to believe that the moral sense of the community, which supports this condition of things, would be shocked by compelling a man to pay a note given for an honest debt because it was executed on the Lord's day. There may be a good many individuals who would feel so, but they do not constitute the community in the legal sense of that term.

It is an error to suppose that the Supreme Court of the State, in Tucker v. West, supra, held Lord's day contracts void on religious or moral grounds. That is not the ground upon which they are held void by any of the courts. The court held that the execution by the maker and the receipt by the payee of a promis. sory note was 'labor," within the meaning of that word as used in the statute.

It of course follows that the parties to a note exe. cuted on the Lord's day incur the penalty of the statute against those who labor on that day, viz., a fine of one dollar. By reference to the statute it will be observed that it does not in terms prohibit labor, or declare contracts void. It simply denounces a penalty against those "found laboring.' Here two familiar

and established rules of decision come into play. One of these is, that a penalty implies a prohibition of the

thing itself, on the doing of which the penalty is to accrue, though there are no prohibitory words in the statute; and the other is, that a court of justice will give no assistance to the enforcement of contracts which the law of the land has interdicted.

"The ground upon which courts have refused to maintain actions on contracts made in contravention of statutes for the observance of the Lord's day, is the elementary principle that one who has himself participated in a violation of law cannot be permitted to assert in a court of justice any right founded upon or growing out of the illegal transaction." Cranson v. Goss, 107 Mass. 439; Holman v. Johnson, Cowp. 341; Gibbs & Sterrett Manfg. Co. v. Brucker, 111 U. S. 597. There have been vigorous protests from time to time against the application of these principles to Lord 8 day contracts, upon the ground that they inflicted penalties, by judicial construction, out of all proportion to the offense, and not contemplated by the act (Bloom v. Richards, supra; and see remarks of Grier, J., in Philadelphia, W. & B. R. Co. v. Philadelphia & Havre de Grace S. B. Co., 23 How. 218); but the great weight of authority is that a contract made in violation of the Lord's day acts is void, like any other illegal and prohibited contract, and upon no other or different ground. And the reason that a contract made in this State on the Lord's day between persous "who observe as Sabbath any other day of the week" is not void, is that the statute expressly declares they "shall not be subject to the penalties of this act," and as there is no prohibition in terms in the statute, it results that there is neither penalty nor prohibition against such persons making contracts or performing any other kind of labor on the Lord's day. But if by the statute all contracts made in this State on the Lord's day were void, it is believed that the result in the case at bar would not be different.

There is often great difficulty in practice in drawing the line between the foreign contracts which may and may not be enforced. The rules defining the comity of States in this regard are necessarily general in their terms, and the adjudged cases are not quite uniform. No case has been cited, and it is believed none can be found, holding that a contract made on the Lord's day in a State where such contracts are valid will not be enforced by the courts of another State, by the laws of which such contracts are void. But there is one case at least (there may be others which our limited examination failed to discover) that holds that in such case the contract will be enforced. The case is entitled to consideration, no less on account of the uniform high character of the decisions of the court than the acknowledged learning and ability of the judge who delivered the opinion.

In Adams v. Gay, supra, the precise question arose. A contract which, if it had been made in Vermont, would have been void under the Lord's day act of that State, was made in New Hampshire on the Lord's day. In a suit arising upon that contract in Vermont, the question arose whether the courts of that State would give it effect. The court refused to take judicial notice of the law of New Hampshire, and did not indulge the presumption that it was the same as that of Vermont. The court, Judge Redfield delivering the opinion, said:

"The law of New Hampshire then being out of the case, on account of its not having been proved at the trial, the contract between the parties is valid, unless it is void upon general principles of public policy, as being of evil example to our own citizens to see such a contract enforced in a court of justice."

And after a full discussion of the subject, the court,

on the assumption that the contract was valid in New Hampshire, held it valid in Vermont.

It has been decided that contracts for the purchase of lottery tickets, if valid where made, will be treated as valid and enforced in the courts of a State by the laws of which such contracts are illegal. McIntyre v. Parks, 3 Metc. 207 (in Websler v. Munger, 8 Gray, 587, Thomas, J., expresses the opinion that McIntyre v. Parks was not rightly decided); Kentucky v. Bassford, 6 Hill, 526. And the same doctrine has been maintained with reference to gambling contracts. Whart. Conf. Laws, §§ 487, 492. [See, contra, Flagg v. Baldwin, 38 N. J. Eq. 219; S. C., 48 Am. Rep. 308, as to contracts for speculating in stocks on margins.-ED.]

This court is not to be understood as expressing any opinion as to the soundness of the doctrine of the cases last cited. They carry the doctrine of comity further than it is necessary to go to uphold the action in the case at bar. Lottery and gambling contracts are very generally regarded as inherently vicious and immoral, and wanting in a meritorious consideration, whenever and wherever made. Whereas the contract in suit was not only obligatory where made, but was made for a valuable and meritorious consideration; and the ouly objection to its validity is that it was executed ou an inappropriate day of the week, a circumstance in which it would seem a State, other than that in which the contract was made, could have, very little

concern.

It has been held that when the law of the State where the contract was made, and the law of the State where the suit is brought, are the same, and a contract made ou the Lord's day is void by the laws of both States, it will not be enforced and that in the absence of proof to the contrary, the law will be presumed to be the same in both States. Hill v. Wilker, 41 Ga. 449; Sayre v. Wheeler, 32 Iowa, 559.

NEW YORK COURT OF APPEALS ABSTRACT.

CODE

CRIMINAL LAW-INSANITY — NON-EXPERT CRIM. PROC., §§ 275, 284-PREMEDITATION-INTENT— QUESTION FOR JURY-GUILT-EVASION AND FALSEHOOD.-(1) Upon trial of an indictment for murder, wherein insanity was set up as a defense, a witness for defendant, who had testified as to, and gave the details of an interview with him on the same evening, and a short time prior to the homicide, was asked: "Were his acts at eight o'clock that night rational or irrational?" This was objected to, and objection sustained. Held error; that the witness was competent to give his opinion as to the character of the conduct and conversation which he had observed. The rule regulating the admissibility of the opinions of nonexpert witnesses upon questions affecting the mental condition of individuals is well stated in the opinion of Judge Porter in Clapp v. Fullerton, 34 N.Y. 190. He says: "When a layman is examined as to facts within his own knowledge and observation, tending to show the soundness or unsoundness of the testator's mind, he may characterize as rational or irrational the acts and declarations to which he testifies." "But to render his opinion admissible, even to this extent, it must be limited to his conclusions from the specific facts he discloses. The rule thus expressed was followed and approved in the cases of Brien v. People, 46 N. Y. 282, and Hewlett v. Wood, 55 id. 634. This question was recently examined and discussed in this court in the case of Holcomb v. Holcomb, 95 N. Y. 316, and the rule as above stated was approved, and our conclusion upon this question leads to an affirmance of the General Term order. (2) In an indictment under the Code Crim. Proc. for murder in the first degree it is not necessary that the particular intent with which

the homicide was commented shall be set forth; it is sufficient to allege that it was done feloniously, with malice aforethought, and contrary to the form of the statute. Code Crim. Pro., §§ 275, 284; People v. Enoch, 13 Wend. 159; People v. Kennedy, 32 N. Y. 141; People v. Fitzgerrold, 37 id. 413. (3) On the trial of an indictment for murder in the first degree where the homicide is charged to have been committed "from a deliberate and premeditated design to effect the death of the person killed" (Penal Code, § 183, subd. 1), while the prosecution is required to prove deliberation and premeditation, and while there is no legal presumption arising from proof of the mere commission of the homicide by the defendant which concludes the jury from finding upon that evidence alone that such facts were not established, yet they may be inferred from the perpetration of the act, the jury are authorized to find them unless the circumstances surrounding the homicide clearly repel the idea of deliberation and premeditation. It is a general rule that all homicide is presumed to be malicious, and of course amounting to murder until the contrary appears from circumstances of alleviation, excuse or justification. Russell Crimes, 483; 2 Blackst. Com. 201; Rex v. Greenacre, 34 Eug. C. L. Rep. 280; Hill's case, 2 Gratt. 594; People v. McLeod, 1 Hill, 436. But see People v. Stokes, 53 N. Y. 164; People v. Clark, id. 393; People v. Leighton, 88 id. 117. In People v. Majone, 91 N. Y. 211, Judge Earl says: "Under the statute there must not be only an intention to kill, but there must also be a deliberate and premeditated design to kill. Such design must precede the killing by some appreciable space of time. But the time need not be long. It must be sufficient for some reflection or consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. The human mind acts with celerity, which it is sometimes imposible to measure, and whether a deliberate or premeditated design to kill was formed must be determined from all of the circumstances of the case." (4) On the trial the testimony tended to show that the defendant, knowing the location of the deceased, drew a pistol from his pocket, with some difficulty, as it caught in the lining, and spite of the appeals of another person not to fire, turned toward the deceased, pointed the pistol in his direction and fired, causing his death. Held, that the evidence was sufficient to authorize the jury to find premeditated and deliberate design to cause the death, and this although no motive for the killing was shown. In Starkie on Evidence it is said, "that a rational agent must be taken to contemplate and intend the natural and immediate consequences of his own act, is a presumption so cogent as to constitute rather a rule of law than of mere evidence" (p. 848). "There is a general presumption in criminal matters that a person intends whatever is the natural and probable consequences of his own actions." 1 Phillips' Ev. 632. It was said by Judge Andrews, that "it is a fundamental rule of evidence of very general application, founded upon observation and experience, that a man is presumed to intend the natural consequences of his acts." Foster v. People, 50 N. Y. 609. (5) When the inferences to be drawn from the testimony are not clear and incontrovertible, and men of ordinary judgment and discretion might differ as to its significance, it is the exclusive province of the jury to pass upon the questions involved. Thurber v. Harlem R. Co., 60 N. Y. 331; Morrison v. Erie R. Co., 56 id. 308. (6) The resort to falsehood and evasion by one accused of a crime affords of itself a presumption of evil intentions, and has always been considered proper evidence to present to a jury upon the question of the guilt or in nocence of the person accused. United States v. Randall, Deady, 524; State v. Reed, 62 Me. 129; Common