b. Effect of, as a bar. A person cannot be convicted and punished for two distinct felonies growing out of the same identical act, and where one is a necessary ingredient of the other, and the state has selected and prosecuted one to conviction, it presents a proper case for the interposition of the principle that a man shall not be twice put in jeopardy for the same cause; so that, when a person has been convicted of the crime of arson, he may plead that conviction in bar of an indictment for murder committed in the same burning, by the burning to death of a person in the building burned. State v. Cooper, 13 N. J. L. 361, 25 Am. Dec. 490. The proper practice in such a case is to indiet and try for the higher crime, and if the part of the offense which is peculiar to that is not proved, and all that is necessary to constitute the inferior one is, the verdict should convict of the inferior feiony, and acquit as to the residue of the charge. Ibid. But a prosecution for the murder of one person in an attempt to perpetrate a robbery is not barred by the conviction of the same person for an assault with intent to rob upon another person, though the transaction is the same. Keaton v. State, 41 Tex. Crim. Rep. 621, 57 S. W. 1125. And an acquittal, on a count in an indictment, charging the defendant with killing another purposely and with premeditated malice, does not work an acquittal upon another count in the same indictment, charging the killing to have been done in the perpetration of a burglary, so as to overturn a conviction upon a verdiet of guilty on the second count. Bissot v. State, 53 Ind. 408. XVI. Conclusion. Homicide in the commission, or attempted commission, of an unlawful act was murder or manslaughter at common law according to the nature and turpitude of the unlawful act, though there was neither malice nor intent to kill; it was murder if committed in the perpetration of, or attempt to perpetrate, a felony, or in the perpetration of a criminal act naturally tending to destroy life; and it was manslaughter if committed in the perpetration of, or attempt to perpetrate, a misdemeanor, or a crime not amounting to a felony, and not naturally tending to destroy life. murder in the first degree, which is punishable either capitally or by imprisonment in state prison, and the statutes apply to new felonies created by statute when the act was not previously felonious, as well as to the commonlaw felonies; and the doctrine is well supported that the rule applies to all the enumerated felonies known to the law, including intentional violence toward the person killed, though there is a strong holding that the felony must constitute an independent, substantive crime, and not be an ingredient of the killing. Where the particular felonies in the perpetration of which a killing would be murder in the first degree are named in the statute, however, the general rule is that they alone are included, and a killing in the perpetration of, or attempt to perpetrate, any other felony would at most be only murder in the second degree. It is likewise necessary that there should have been such a legal relation between the felony and the killing that it may be said that the killing occurred by reason of and as a part of the felony. It is not enough that the killing occurred soon after the felony was attempted or committed; it must have been done within the res gesta of the felony, and an attempt to commit a felony within the rule must have been something more than a mere intent to commit it, or than a mere preparation. There must have been some act done in pursuance of the intent to do the specific act constituting the felony, and forming one of the natural series of acts necessary to its full completion. Killing perpetrated by a criminal act immediately dangerous to others, evincing a depraved mind regardless of human life, although without premeditated design to effect the death of any particular person, is also declared to be murder by the statutes of many of the states, and malice may be implied from criminal acts dangerous to life at common law. This is known as universal malice. As a general rule, however, such murder is murder of the second degree, and not of the first. If an act is unlawful, but not a felony, and sufficiently dangerous to fall under the condemnation of the law, but not directly so, and death unintended results from it, the homicide all homicides below the grade of murder which is involuntary manslaughter,-which includes are neither justifiable nor excusable, and which are the accidental result of some unlawful act; and, though the statutory provisions existing in nearly, if not all, the states, differ in form, a definition generally applicable under such statutes is, that it consists of the killing of a In most of the United States statutes have been enacted on the subject, some of which make a killing in the perpetration of, or attempt to perpetrate, a felony, murder in the first degree, and some of which make a killing in the perpretation of, or attempt to perpetrate, certain named felonies such as arson, rape, robbery, and burglary, murder in the first degree. These statutes have not changed the rules of the common law as to what constitutes murder; they merely divide the crime of murder into degrees, and provide what kinds of murder shall be murder in the first degree. And a kill-guished from acts malum prohibitum, which are ing at least where the statute provides for "murder" in the perpetration of a felony, as distinguished from "killing" in the perpetration of a felony-cannot fall within their provisions and be murder in the first degree, unless it would have been murder at common law. Any criminal act is a felony at common law, and within the meaning of general statutes making a killing in the commission of a felony human being without any intention to do so, in the commission of an unlawful act, or of a lawful act which might probably produce such a consequence, in an unlawful manner. To render one guilty of involuntary manslaughter for a killing without design while in the commission of an unlawful act, however, the act must have been malum in se as distin merely prohibited by law, but not otherwise wrong; since such acts do not supply the criminal intent necessary to render one punishable for the killing. And the rule that the preliminary criminal act must have been one other than personal violence to the person killed is well supported; though the theory that the statute is expressly applicable to all crimes or misdemeanors, not amounting to a felony, in cluding intentional violence to the person killed, is gaining ground. The rule that the killing must have occurred as a part of and by reason of the unlawful act in order to render the unlawful act effectual to characterize the crime of killing applicable to killing in the commission of a felony, is also applicable to involuntary manslaughter in the commission of an unlawful act. An abandonment of the unlawful act, however, where a subsequent accidental killing oc curs, relieves from criminal responsibility either for murder or manslaughter; but the abandonment must have been before the act was put in process of final execution, and there must have been no outside cause prompting it. A murder in the commission of a felony may be charged in an indictment therefor in the same manner as an ordinary murder with malice aforethought, since the felony and the killing together constitute the crime; but it is not improper to set forth the felony in terms, and an indictment for involuntary manslaughter in the commission of an unlawful act should allege the unlawful act, though it is usually deemed sufficient to describe it in the language of the statute. The evidence and instructions in such cases are governed by general rules of criminal evidence and procedure applied to the peculiar facts in hand, though the general rule prohibiting evidence of other crimes does not render inadmissible evidence of the felony, or unlawful act; and a lower degree of murder or involuntary manslaughter may be found in a prosecution for murder for a homicide in the commission of an uniawful act; and involuntary manslaughter may be found in a prosecution for voluntary manslaughter. But a conviction for a lower grade of homicide than that charged cannot be had when the crime involved in the lower grade contains elements not involved in the higher grade, so that the indictment for the higher crime would not give notice that such elements would be proved. A conviction of either the felony or the homicide is a bar to a subsequent prosecution for the other, on the theory that a man cannot be convicted and punished for two distinct crimes growing out of the same act; but the determination on a charge of the commission of an unlawful act against one has no efect upon a prosecution for the killing of another in the commission of the same unlawful act; and an acquittal on an ordinary count does not effect an acquittal under another count in the same indictment for homicide in the commission of a felony. F. H. B. 2. tion of the constitutional provision protecting one against unreasonable searches and seizures does not prevent their being used in evidence against him if he is placed on trial upon a criminal charge. The use of private property illegally seized by the police officers against one accused of crime does not violate the constitutional provision that no one shall in any criminal case be compelled to be a witness against himself. 3. A statute making it an offense knowingly to have in possession any papers used in playing policy does not deprive one of his property without due process of law. 4. The legislature may impose upon one in whose possession papers used in playing policy are found the burden of showing that such possession was not with knowledge and in vioiation of a statute making it a penal offense. 5. A statute exempting police officers from the presumption that possession of papers used in playing policy was with knowledge and in violation of law is not unconstitutional as class legislation upon the ground that officers whose duty did not require possession of such papers might thereby be exempted from the operation of the statute, since the statute will be construed to further its objects. Statement by Bartlett, J.: Albert J. Adams was convicted of the crime of knowingly having possession of a writing, paper, and document representing and being a record of a chance, share, and PEOPLE of the State of New York, Respts., interest in numbers sold in a gambling game v. commonly called "policy," and of knowingly having possession of papers and devices such as are commonly used in carrying on and playing the game called "policy," in violation of § 344a of the Penal Code, and ap inal use, see State v. Lewis, 20 L. R. A. 52, and note; Mon Luck v. Sears, 32 L. R. A. 738; and Ford v. State, 41 L. R. A. 551. As to validity of law providing for indeterminate sentences, see Miller v. State, 40 L. R. A. 109, and Murphy v. Com. 43 L. R. A. 154. peals from an order of the appellate division | ant's private papers seized in the raid of affirming the judgment. December 12th, 1901, which had no relaThe sections of the Penal Code under tion whatsoever to the game of policy, the which conviction was had, read as follows: defendant's constitutional right to be secure "Sec. 344a. A person who keeps, occupies, in his person, papers, and effects against unor uses, or permits to be kept, occupied, or reasonable searches and seizures was vioused, a place, building, room, table, estab-lated. lishment, or apparatus for policy playing or Boyd v. United States, 116 U. S. 616, 29 for the sale of what are commonly called | L. ed. 746, 6 Sup. Ct. Rep. 524; Counselman 'lottery policies,' or who delivers or receives v. Hitchcock, 142 U. S. 547, 35 L. ed. 1110, money or other valuable consideration in 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. playing policy, or in aiding in the playing 195; Ex parte Jackson, 96 U. S. 727, 24 L. thereof, or for what is commonly called a ed. 877; United States v. Wong Quong 'lottery policy,' or for any writing, paper, Wong, 94 Fed. 832; Hoover v. McChesney, or document in the nature of a bet, wager, 81 Fed. 472; Re Pacific Railway Commisor insurance upon the drawing or drawn sion, 32 Fed. 241; Lester v. People, 150 Ill. numbers of any public or private lottery; 408, 41 Am. St. Rep. 375, 23 N. E. 387, 37 or who shall have in his possession, know- N. E. 1004; Newberry v. Carpenter, 107 ingly, any writing, paper, or document, rep- Mich. 567, 31 L. R. A. 163, 61 Am. St. Rep. resenting or being a record of any chance, 346, 65 N. W. 530; State V. Davis, share, or interest in numbers sold, drawn, or 108 Mo. 666, 32 Am. St. Rep. 640, to be drawn, or in what is commonly called 18 S. W. 894; State v. Simmons Hard'policy,' or in the nature of a bet, wager, or ware Co. 109 Mo. 118, 15 L. R. A. 676, 18 insurance, upon the drawing or drawn num- S. W. 1125; Cooper v. State, 86 Ala. 610, bers of any public or private lottery; or any 4 L. R. A. 766, 11 Am. St. Rep. 84, 6 So. paper, print, writing, numbers, device, pol-110; Cooley, Const. Lim. 6th ed. pp. 263icy slip, or article of any kind such as is 367. commonly used in carrying on, promoting, or playing the game commonly called 'pol icy; or who is the owner, agent, superintendent, janitor, or caretaker of any place, building, or room where policy playing or the sale of what are commonly called 'lot tery policies' is carried on with his knowledge or after notification that the premises are so used, permits such use to be continued, or who aids, assists, or abets in any manner, in any of the offenses, acts, or matters herein named,--is a common gambler; and punishable by imprisonment for not more than two years, and, in the discretion of the court, by a fine not exceeding $1,000, or both. "§ 344b. The possession, by any person other than a public officer, of any writing, paper, or document representing or being a record of any chance, share, or interest in numbers sold, drawn, or to be drawn, or in what is commonly called 'policy,' or in the nature of a bet, wager, or insurance upon the drawing or drawn numbers of any public or private lottery, or any paper, print, writing, numbers, or device, policy slip, or article of any kind, such as is commonly used in carrying on, promoting, or playing the game commonly called 'policy,' is presumptive evidence of possession thereof knowingly and in violation of the provisions of § 344a.” The facts, so far as material, are stated in the opinion. The protection of the constitutional provision is directed, not only against the unlawful seizure, but against the unlawful use after seizure. There are ample ways to prove a person charged with crime guilty of the offense without the invasion and ransacking of his private papers. People v. Restell, 3 Hill, 289; Re Nielsen, 131 U. S. 176, 33 L. ed. 118, 9 Sup. Ct. Rep. 672. The statutes, §§ 344a and 344b, under which the indictment was found and the conviction was had, are unconstitutional and void in that thereby the defendant has been deprived of his liberty and property "without due process of law" in violation of both the Federal and the state Constitutions. The statute is wholly arbitrary because it makes an entirely innocent act, viz., the possession of harmless bits of paper, a highly penal offense. Colon v. Lisk, 153 N. Y. 188, 60 Am. St. Rep. 609, 47 N. E. 302. The statutes are unconstitutional because they deny to persons accused the equal protection of the laws. Cooley, Const. Lim. 6th ed. pp. 481-483. The statutes also deprive persons accused, except public officers, of their liberty and property "without due process of law.” People v. Lyon, 27 Hun, 180; State v. Kartz, 13 K. I. 528. The statute under which the defendant was sentenced to imprisonment for a term, Messrs. L. Laflin Kellogg and Alfred the minimum of which shall not be less than C. Pette, for appellant: one year and the maximum of which shall By the reception in evidence of the defend- not be more than one year and nine months (§687a of the Penal Code), is unconstitu- Atty. Gen. v. Peters, 43 Ohio St. 629. 4 N. tional and void. People ex rel. Clark v. Warden of Sing Sing Prison, 39 Misc. 113, 78 N. Y. Supp. 907; People ex rel. Abrams v. Fox, 77 App. Div. 245, 79 N. Y. Supp. 56. Mr. Howard S. Gans, with Mr. William Travers Jerome, for respondents: Ever. if it be assumed that some of the papers introduced in evidence were illegally taken from the possession of the defendant, the introduction of those papers in evidence would constitute no.ground of error. People v. Gardner, 144 N. Y. 119, 28 L. R. A. 699, 43 Am. St. Rep. 741, 38 N. E. 1003; People v. Van Wormer, 175 N. Y. 188, 67 N. E. 299; 1 Greenl. Ev. § 254a; Gindrut v. People, 138 Ill. 103, 27 N. E. 1085; Com. v. Tibbetts, 157 Mass. 519, 32 N. E. 910; State v. Van Tassel, 103 Iowa, 6, 72 N. W. 497; Chastang v. State, 83 Ala. 29, 3 So. 304; Starchman v. State, 62 Ark. 538, 36 S. W. 940; State v. Flynn, 36 N. H. 64; Shields v. State, 104 Ala. 35, 53 Am. St. Rep. 17, 16 So. 85; State v. Atkinson, 40 S. C. 363, 42 Am. St. Rep. 877, 18 S. E. 1021; Williams v. State, 100 Ga. 511, 39 L. R. A. 269, 28 S. E. 624; State v. Kaub, 15 Mo. App. 433; Ruloff v. People, 45 N. Y. 213. The provision of law under which the defendant has been convicted is constitutional. Phelps v. Racey, 60 N. Y. 10, 19 Am. Rep. 140; People v. Buffalo Fish Co. 164 N. Y. 93, 52 L. R. A. 803, 79 Am. St. Rep. 622, 58 N. E. 34. The provision that proof of possesseion constitutes prima facie evidence that the possession was conscious is constitutional. People v. Cannon, 139 N. Y. 32, 36 Am. St. Rep. 668, 34 N. E. 759; Cooley, Const. Lim. pp. 367–369; State v. Cunningham, 25 Conn. 195; Wooten v. State, 24 Fla. 335, 1 L. R. A. 819, 5 So. 39; Com. v. Williams, 6 Gray, 1; State v. Hurley, 54 Me. 562; State v. Higgins, 13 R. I. 330; State v. Mellor, 13 R. I. 666; Com. v. Kelly, 10 Cush. 69; Meadowcroft v. People, 163 Ill. 56, 35 L. R. A. 176, 54 Am. St. Rep. 447, 45 N. E. 303; State v. Buck, 120 Mo. 479, 25 S. W. 573; State v. Beach, 147 Ind. 74, 36 L. R. A. 179, 46 N. E. 145; Morgan v. State, 117 Ind. 569, 19 N. E. 154. E. 81; People ex rel. Bradley v. Illinois State Reformatory, 148 Ill. 413, 23 L. R. A. 139, 36 N. E. 76; George v. People, 167 Ill. 447, 47 N. E. 741; Miller v. State, 149 Ind. 607, 40 L. R. A. 109, 49 N. E. 894; Com. v. Brown, 167 Mass. 144, 45 N. E. 1; Oliver v. Oliver, 169 Mass. 592, 48 N. E. 843; Murphy v. Com. 172 Mass. 264, 43 L. R. A. 154, 70 Am. St. Rep. 266, 52 N. E. 505; Dreyer v. Illinois, 187 U. S. 71, 47 L. ed. 79, 23 Sup. Ct. Rep. 28. Bartlett, J., delivered the opinion of the court: As this is a unanimous decision of the appellate division of the supreme court that there is evidence supporting or tending to sustain the verdict of the jury, it is only necessary to consider the facts sufficiently to determine the questions of law presented by this appeal. It appears that the defendant occupied an office in the city of New York, wherein were his desk, trunk, tin boxes, and other articles of personal property. On a certain occasion when the defendant was in his office, the officers of the law appeared and stated that they had a search warrant. The defendant replied, in substance, before they proceeded to execute the same, that it was not his office, and that they would proceed at their peril. The officers thereupon placed the defendant under arrest and searched the premises. A large amount of papers was seized, which may be divided into two classes: (1) The papers referred to in the section of the Penal Code under which this indictment was found; (2) and papers relating to the private affairs of defendant. The evidence discloses in detail the manner of conducting the gambling game known as "policy," from which it appears that certain papers are sent to a central point from different offices or places in the city where the game is conducted, known as "manifold sheets." Among the papers seized in defendant's oflice were 3,500 of these manifold sheets, upon some of which were indorsements and entries in his handwriting. At the trial these manifold sheets were introduced in evidence as papers described in § 344a of the Penal Code. The private papers Section 3446 does not provide for class of the defendant were introduced in evidence legislation. People v. Cannon, 139 N. Y. 32, 36 Am. St. Rep. 668, 34 N. E. 759; People v. Stedeker, 175 N. Y. 57, 67 N. E. 132; People Noelke, 29 Hun, 461, 94 N. Y. 137, 46 Am. Rep. 128. for the double purpose of furnishing standards of his handwriting, and also tending to prove that the office in which the papers rev.lating to the game of policy were found was occupied by him. There were also other books and papers put in evidence, in the The indeterminate sentence law is con- handwriting of the defendant, relating to stitutional. People ex rel. Abrams v. Fox, 77 App. Div. 245. 79 N. Y. Supp. 56; State ex rel. the entries on the manifold sheets, that need not be more particularly described. The first point made by the learned coun Articles 4 and 5 of the Amendments to the Constitution of the United States do not apply to actions in the state courts. sel for the appellant is that by reason of the 349; 1 Greenl. Ev. §§ 229, 254a; 1 Taylor, seizure of defendant's papers, as in the man- Ev. § 922; 1 Bishop, Crim. Proc. 3d ed. § ner described, the defendant's constitutional 246." In this state the same principle has right to be secure in his person, papers, and been recognized in Ruloff v. People, 45 N. effects against unreasonable searches and Y. 213, and a kindred principle in People seizures was violated, and he was also there- v. Van Wormer, 175 N. Y. 188, 195, 67 N. E. by compelled to be a witness against him- 299. The underlying principle obviously is self in contravention of the 4th, 5th, and that the court, when engaged in trying a 14th articles of the Amendments to the criminal cause, will not take notice of the Constitution of the United States, and arti- manner in which witnesses have possessed cle 1, § 6, of the Constitution of the state of themselves of papers or other articles of New York, and § 11 of the Bill of Rights of personal property which are material and this state. properly offered in evidence. In the case before us, if there has been any illegal invasion of the rights of this defendant by reason of alleged unlawful searches and seizures of private papers, his remedy is in an independent proceeding, not necessary to be considered at this time. We do not wish to be understood as expressing an opinion in regard to the seizure of defendant's private papers. When the officers entered the defendant's office, he assured them he did not occupy it, and that they would proceed at their peril. It is beyond dispute that There were two classes of papers seized the question as to who occupied the office at the time the search warrant was exe- was most material in connecting the defendcuted. The legality of the seizure of the ant with the manifold sheets and other papers described in the section of the Penal papers seized, relating to the game of policy, Code under which the indictment was found and that the private papers were important cannot be successfully challenged. It there- in this connection. The same may be said fore remains to consider the effect of seizing as to the standards of defendant's handthe private papers of the defendant. In writing. This first point, as stated, involves two distinct propositions, that must be separated in considering them. The first is an alleged violation of the Bill of Rights, which protects a citizen against unreasonable searches and seizures, and the other is an alleged violation of the Constitution by compelling a person in a criminal case to be a witness against himself. 1 Greenleaf on Evidence, § 254a, the learned author says: "It may be mentioned in this place that, though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question." In Com. v. Tibbetts, 157 Mass. 519, 32 N. E. 910, it was held as follows: "Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular or even an illegal manner. A trespasser may testify to pertinent facts observed by him, or may put in evidence pertinent articles or papers found by him while trespassing. For the trespass he may be held responsible civilly, and perhaps criminally, but his testimony is not thereby rendered incompetent. Com. v. Dana, Met. 329, 337; Com. ex rel. Parker v. Certain Lottery Tickets, 5 Cush. 369, 374; Com. v. Certain Intoxicating Liquors, 4 Allen, 593, 600; Com. v. Welsh, 110 Mass. 359; Com. v. Taylor, 132 Mass. 261; Com. v. Keenan, 148 Mass. 470, 20 N. E. 101. See also Com. v. Ryan, 157 Mass. 403, 32 N. E. 2 The next question is whether this defendant was compelled to be a witness against himself, in violation of the Constitution of this state (art. 1, § 6). The appellant's counsel places great reliance upon the case of Boyd v. United States, 116 U. S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524, holding that an act of Congress which authorizes a court of the United States, in revenue cases, on motion of the government attorney, to require the defendant or claimant to produce in court his private books, invoices, and papers, or else the allegations of the attorney be taken as confessed, was unconstitutional, being repugnant to the 4th and 5th articles of the Amendments to the Constitution of the United States. Article 4 deals with searches and seizures, and article 5 contains language identical with our state Constitution, already quoted, to the effect that no person."shall be compelled in any criminal case to be a witness against himself." in the case at bar the defendant was not sworn as a witness, nor was he required to produce any books or papers. So far as this case is concerned, as already pointed out, the manner in which the witnesses for the people became possessed of the documentary evi dence is a matter of no importance. We are of the opinion, therefore, that the defendant was not, in any legal sense, called upon to |