331 air as to substantially render the plaintiff's property unfit for comfortable enjoyment, it was held to be a nuisance, although the acts complained of were inseparably connected with the carrying on of the business itself, and that it was not essential to a right of action that the owner should be driven from his dwelling: Bohan v. Port Jervis Gas Light Co., 122 N. Y. 18.

In Baltimore etc. R. R. Co. v. Fifth Baptist Church, 108 U. S. 317, 328, the court said: "Plainly the engine house and repair shop, as they were used by the railroad company, were a nuisance in every sense of the term. . . . . That is a nuisance which annoys and disturbs one in the possession of his property, rendering its ordinary use or occupation physically uncomfortable to him. For such annoyance and discomfort the courts of law will afford redress by giving damages against the wrongdoer, and when the cause of the annoyance and discomfort are continuous, courts of equity will interfere and restrain the nuisance. It is no answer to the action of the plaintiff that the railroad company was authorized by act of Congress to bring its track within the limits of the city of Washington, and to construct such works as were necessary and expedient for the completion and maintenance of its road, and that the enginehouse and repair shop in question were thus necessary and expedient; that they are skillfully constructed; that the chimneys of the engine-house are higher than required by the building regulations of the city, and that as little smoke and noise are caused as the nature of the business in them will permit. . . . The authority of the company to construct such works, as it might deem necessary and expedient for the completion and maintenance of its road did not authorize it to place them wherever it might think proper in the city, without reference to the property and rights of others. As well might it be contended that the act permitted it to place them immediately in front of the president's house or of the capitol, or in the most densely populated locality. Whatever the extent of the authority conferred, it was accompanied with 332 this implied qualification, that the works should not be so placed as by their use to unreasonably interfere with and disturb the peaceful and comfortable enjoyment of others in their property."

...

We close the discussion of the point under consideration by repeating the language of Judge Finch in Hill v. Mayor etc., 139 N. Y. 495, 505: "Obviously, the general doctrine which levies upon individuals forced contributions for the benefit of

the public, and denies compensation for the injury done, is vulnerable at two points. It is defeated sometimes by construing the harm inflicted into a taking of private property for which compensation must be made, and sometimes by a rigid construction of the authority claimed. Both methods indicate a lurking doubt of the equity of the general doctrine and a disposition to narrow the field of its operation."

The defendant insists that its appeal should be sustained because the trial court awarded no past damages to the plaintiff.

A court of equity has jurisdiction of an action to restrain the commission of a continuing trespass, because the injunction prevents a multiplicity of actions at law, which is a grievance to the parties and a burden upon the public: Corning v. Troy Iron etc. Factory, 40 N. Y. 191; Williams v. New York etc. R. R. Co., 16 N. Y. 97, 111; 69 Am. Dec. 651; Henderson v. New York Cent. R. R. Co., 78 N. Y. 423.

While in such an action the court may also render judgment for the damages already sustained, that relief is merely incidental and is not an essential part of the main cause of action for a permanent injunction. The party entitled to damages may waive them, if he chooses, by not furnishing evidence to enable the court to measure them in money, which is an advantage to the defendant, but does not defeat the action. If such substantial and continuous interference with the ordinary enjoyment of property is shown as would, when properly measured by evidence, enable the court to fix the amount of the damages, the injunction may be issued, although no damages are awarded. The extent of the injury is important, 333 but whether the amount is admeasured in dollars and cents is unimportant, unless there are benefits to be offset against the damages.

When, as in certain actions against elevated railroads, a wrongful appropriation of easements appurtenant to abutting property appears, but it also appears that the presence of the road has so increased the value of the property that the actual damages are only nominal, relief by way of injunction may be refused because the trespass is but technical and the real injury unsubstantial: O'Reilly v. New York Elevated R. R. Co., 148 N. Y. 347. This is upon the ground that a court of equity "is not bound to issue an injunction when it will produce great public or private mischief merely for the purpose of protecting a technical or unsubstantial right": Gray v. Manhattan Ry. Co., 128 N. Y. 499, 509.

This is not such a case, but one where the trespass was permanent, continuing, and grievous, and went to destroy the value of the property of the owner with no compensating advantages. The decision of the trial justice established the plaintiff's right, the existence of the nuisance and its injurious effect upon his property. The case was thus brought within the sound discretion of the court, and after united action by the courts below, we cannot interfere. The theory is not tolerable that, although one party to an action may be gradually demolishing the house of the other, the latter cannot have an injunction to prevent its total destruction, because the amount of the damages already sustained has not been admeasured in money.

Our conclusion is, that where strong and aggravated instances of continuing trespass are shown, which must necessarily result in substantial damages to the plaintiff's property that are in no way offset by benefits, a permanent injunction may be issued, although the amount of the damages is not fixed.

The judgment should be affirmed, with costs.

All concur, except Parker, C. J., and Haight, J., not voting.

EMINENT DOMAIN.-THE LEGISLATURE CANNOT, in the exercise of the police power, take private property for a public use without compensation, when such property can be condemned and paid for under the power of eminent domain: People v. Elk River etc. Co., 107 Cal. 221, 48 Am. St. Rep. 125; Welton v. Dickson, 38 Neb. 767, 41 Am. St. Rep. 771, and note.

RAILROADS-SPECIAL DAMAGES TO PRIVATE PROPERTY -INJUNCTION.-Where a railroad company has obtained a deed to a right of way under representations that it is to be used for main line purposes alone, and it is afterward used for sidetracks, such use will not be enjoined. The grantor is, however, entitled to recover damages for the injury sustained in excess of those which arise from the proper use of the principal line of the road: Donisthorpe v. Fremont etc. R. R. Co., 30 Neb. 142, 27 Am. St. Rep. 387, Where a statute authorizes a railroad company to take property for the purpose of running and operating its road, it may take property for depot purposes: Matter of New York etc. R. R. Co. v. Kip, 46 N. Y. 546, 7 Am. Rep. 385.

TRESPASS INJUNCTION AGAINST.-A trespass of an ordinary character will not be enjoined. But where a trespass, or a series of trespasses, operate in effect to destroy or seriously impair the exercise of a franchise, a court of equity will not hesitate to interpose to prevent the apprehended injury by the aid of injunction: Port of Mobile v. Louisville etc. R. R. Co., 84 Ala. 115, 5 Am. St. Rep. 342. See, also, Lembeck v. Nye, 47 Ohio St. 336, 21 Am. St. Rep. 828. Injunctions in cases of trespass were not granted under ancient doctrines of the court of chancery. Parties were left to their legal remedy; but the more liberal practice now prevails of allowing them where the trespass presents a case of destruction or irreparable mischief: Burnley v. Cook, 13 Tex. 586, 65 Am. Dec. 79, and note; Scudder v. Trenton etc. Co., 1 N. J. Ea. 694, 23 Am. Dec. 750.

PEOPLE V. KENNEDY.

[159 NEW YORK, 346.]

HOMICIDE-SELF-DEFENSE.-Before one can justify the taking of human life in self-defense he must show that there was reasonable ground for believing that he was in great peril, that the killing was necessary for his escape, and that no other safe means was open to him. When one believes himself about to be attacked by another, and to receive great bodily harm, it is his duty to avoid the attack, if in his power to do so; and the right of attack for the purpose of self-defense does not arise until he has done everything In his power to avoid its necessity.

HOMICIDE-MURDER-SUFFICIENCY OF EVIDENCE.If the evidence shows that, after an encounter between the deceased and the defendant, the latter obtained a knife in a spirit of revenge, and, after being warned not to return, did return with intent to kill the deceased, and thereupon killed him, the jury is justified in finding that the killing was done with premeditation and deliberation, and that the defendant is guilty of murder in the first degree.!

HOMICIDE-MURDER IN FIRST DEGREE.-A deliberate and premeditated intention to kill, followed by the killing of a hu man being, completes the crime of murder in the first degree.

HOMICIDE-MURDER-SUFFICIENCY OF PROOF.-If the proof justifies a jury in finding that the homicide was intentional and resulted from sufficient deliberation and premeditation to warrant a verdict of murder in the first degree, the appellate court will not interfere with the determination upon the facts.

HOMICIDE-MURDER-MOTIVE.-Evidence showing that there had been a personal encounter between the deceased and the defendant, and that the latter, humiliated by his defeat and inspired by a spirit of revenge, returned to the place of the first affray and made a second attack, which was fatal, is sufficient to justify the jury in finding that the defendant had a motive for the commission of the crime.

HOMICIDE-MURDER-REVIEW

OF EVIDENCE.-It is not within the province of the appellate court, in reviewing a judgment of death, to review or determine controverted questions of fact arising upon conflicting evidence. The jury is the ultimate tribunal in such cases, and with its decision the appellate court may not interfere, unless it reaches the conclusion that justice has not been done.

CRIMINAL LAW-CONFESSIONS.-TEST OF ADMISSIBILITY of the statement of a person accused of crime, whether made in the course of judicial proceedings or not, is whether it is made voluntarily, and that must be determined by its nature and the circumstances under which it is made.

CRIMINAL

LAW-CONFESSIONS-ADMISSIBILITY

OF

VOLUNTARY STATEMENTS.-Voluntary statements made by a man of ordinary intelligence and education to police officers after his arrest, not as evidence nor as the result of an examination in a judicial proceeding, although reduced to writing and verified by him, are admissible in evidence on the trial of the crime for which he was arrested, if not induced by any promise, threat, or improper influence, although he was not informed by those to whom he made the statements that they might be used against him on his subsequent trial.

CRIMINAL LAW-CONFESSIONS IMPROPERLY OBTAINED-ADMISSIBILITY.-If peace officers, by covert threats. doubtful and uncertain promises, acts of intimidation, or other questionable means, procure incriminating statements from persons under arrest, and subsequently charged with crime, they are inadmissible against them.

H. L. Taylor and H. D. Fitzgerald, for the appellant.

T. Penney, for the respondent.

348 MARTIN, J. That upon the ninth day of October, 1898, the defendant killed John Hummings by stabbing him with a dirk or claspknife was plainly established and not denied. The only question litigated upon the trial was whether the homicide was committed under such circumstances as to constitute a crime, or whether it was justifiable. The claim of the defendant was that he was attacked by the decedent, and that he killed him in the lawful defense of his own person. Upon that issue the jury found against him.

Before a party can justify the taking of life in self-defense, 849 he must show that there was reasonable ground for believing he was in great peril; that the killing was necessary for his escape, and that no other safe means was open to him. When one believes himself about to be attacked by another, and to receive great bodily injury, it is his duty to avoid the attack if in his power to do so, and the right of attack for the purpose of self-defense does not arise until he has done everything in his power to avoid its necessity: People v. Constantino, 153 N. Y. 24; People v. Johnson, 139 N. Y. 358, 363; People v. Carlton, 115 N. Y. 618, 623; People v. Sullivan, 7 N. Y. 396. Applying these rules to the proof in this case, it is evident that the defendant's claim that the homicide was committed in his own defense cannot be sustained, as it was, under the evidence, at least a question of fact, and the finding of the jury is conclusive.

The first point presented by the learned counsel for the defendant in his brief is that the evidence was insufficient to justify the jury in finding the defendant guilty of murder in the first degree, because it failed to show any intent on the part of the defendant to kill the decedent, or that the act was performed with the premeditation and deliberation required to constitute that crime. Hence, a brief epitome of the facts and circumstances disclosed by the evidence seems necessary to the proper consideration of that question.

The record discloses that the defendant is a colored man, who,