By the Court, Bacon, J.
It can not be necessary to expend any time upon the first three points made by the counsel for the plaintiff in error, grounded upon the exceptions therein referred to. When prisoners are j ointly indicted, *633and they elect to have separate trials, it has always been allowed to the district attorney to determine which of them he will first put upon his trial. It is purely a matter of discretion with him, and as he is by far the most competent, from his familiarity with the facts expected to-be proved, to judge in this matter, his discretion will not be interfered with by the court, and a refusal thus to interfere forms no ground of exception.
The offer of the - defendant as a witness for himself, and that of the party jointly indicted with Mm as a witness in his behalf, was-properly overruled. The common law rule always excluded co-defendants from testifying for each other, and the relaxation of the rule as to such parties, and in respect to the defendant himself, effected by the 399th section of the Code, the Court of Appeals has explicitly decided applies only to civil actions. (Williams v. The People, 33 N. Y. Rep. 688.)
The offer to show the mental grade and capacity of the prisoner was rightly rejected. The offer was, in the words of the counsel, not for the purpose of proving Mm to be non compos mentis, but the measure of Ms intellectual capacity. The law recognizes no standard of unaccountability less than that which the offer disclaimed any attempt to establisM If a low order of intellect, and great ignorance, arising either from slowness of apprehension or a neglected education, are to excuse a homicide, we shall have a rule which will give far. greater impunity to crime than it now possesses. Every man must be held accountable for thó consequences of his acts, consciously and deliberately performed, unless he can show that he. is in that condition which stamps him as an irresponsible being; and the proof indicated in the offer made no approach to this.
We come now to the exceptions founded upon the charge, and refusals to charge, which, as it seems to me, are the only matters worthy of serious consideration. In order to a clearer . apprehension of the matters charged and declined by the *634justice who presided on the trial, it may he well to recall the leading facts which the testimony, as a whole, may be said to have fairly established. Prior to the commission of the homicide, and before the appearance of the prisoner at all upon the scene of action, a general affray had been in progress in the saloon of the Woodruff House, in which citizens and soldiers had been indiscriminately engaged. Perhaps it is not important to ascertain who was most blameworthy, either for its commencement or continuance, although the weight of evidence seems clearly to establish that the soldier who is called throughout the trial “the corporal,” was the first to address rude and taunting words tending to induce a conflict, to a party on whose behalf Heal, the deceased, interposed and gave the first blow. Subsequently to this, other parties bécame implicated, and a general melee took place, in the course of which the sergeant received rough handling, and some personal injury. But all the witnesses who speak on that subject, I think without exception, concur in státing that this part of the affray was substantially over, so that when Patterson appeared upon the scene it was$ as the witness Arbuthnot states, “ after the fight was stopped,” when there was no quarrel or row, and it seemed, as he expressed it, to be “perfectly peaceful.” Speaking of tire occurrences at this point of time, the witness Downs who was introduced on behalf of the prisoner, and who gives perhaps as intelligent an account of the transaction as any witness sworn on the trial, says that it might have been three minutes after the sergeant was struck before the gun was fired; that at that time he saw no quarreling or scuffling, and that the fight appeared to be over.
In regard to the immediate or apparent occasion for the discharge of the gun, there is some discrepancy in the testimony. Some of the witnesses testify that as Patterson and another soldier, armed with the gun, came in at the door of the saloon, Heal, the deceased, had started towards the upper door of the saloon, with á tumbler in his hand *635which he had taken from the bar, when Patterson asked, “ where are the sons of bitches,” and the sergeant thereupon pointed towards Ideal, and said “ there they are; shoot them.” Others testify that the expression used by the sergeant was, “he has got a revolver, and is going to shoot.” Thereupon Patterson drew his gun to the shoulder, and pointing in the direction of Ideal, discharged it with fatal effect, the ball passing through his body and inflicting a wound from which he died in a few minutes. In regard to the manner of the discharge, one of the witnesses not engaged in the affray, but a spectator of the scene, describes Patterson as taking aim at Ideal on the right of a post he was passing on his way out, and then moving his gun so ás to bring the aim to the left of the post, and discharging it as soon as Ideal had passed the post, and came again within range. The case then presents itself as one of the deliberate shooting of a human being by a party not in hot blood, who had not been in any manner implicated in the affray, who had not been personally assaulted, or put in any jeopardy, and who only by the wildest stretch of imagination could have deemed himself to be in any bodily danger, and who would seem to have performed the act under some blind impulse, or in subserviency to some supposed authority urging him to the deed.
Such is the aspect in which the case presents itself to me, after a careful perusal of the whole testimony as it is spread out at length in the return to the writ of error; and thus viewing it, it is to my mind quite questionable whether the court was called upon to charge in any respect as demanded by the counsel for the prisoner. The provision of the Be-vised Statutes, as justly interpreted in the case of Shorter v. The People, (2 Comst. 193,) is that one who is without fault himself, when attacked by another, may kill his assailant, if the circumstances be such as to furnish reasonable ground for apprehending a design to fake his life, or to do him some great personal injury, and there is imminent danger that such design will be accomplished; and this is so although it may *636afterwards turn out that the appearances were false, arid there was in fact no such design, and do danger of its accomplishment. The judge, on the trial of Shorter, had repudiated this last qualification, and charged that the jury must be satisfied that there was in fact imminent danger that some great personal injury would be inflicted on the prisoner. This charge the Court of Appeals held to be wrong, but a . new trial was not granted, for the reason that the facts of the case did not call for ány charge upon the subject of what would be excusable or justifiable homicide, and although, there Was error in the ruling, it was one which, not being warranted by the facts of the case, could not effect any legal ' injury.
I seriously qdestion, therefore, whether it would have been error in the judge, on this trial, if he had declined giving any instructions to the jury in respect to the rule which justifies the taking of human life in self-defense. But it is not necessary to put the case upon this ground, since the charge - did present it to the jury in the most favorable aspect for the prisoner, and gave him the fullest benefit of the rule prescribed by the statute as interpreted by the courts. The charge is given at-length, in the case, and covers, as it seems to me, every point but one, called for by the special instructions of the prisoner’s counsel. The jury were told that they were to find the prisoner guilty beyond a reasonable doubt; that the question for them to meet (the killing having been established beyond controversy,) was whether it was a justifiable homicide, and if they so found, their verdict must be one of acquittal. The statute was then cited, and the jury were instructed in viqw of it, as to what were the elements of justifiable homicide; After recapitulating the leading facts, the jury were told that if the prisoner had reason to believe that the deceased meant to take his life, or commit some great violence upon him, he had a right to resort to violence, and even to take life. They were further instructed to inquire whether the circtimstances, conduct and acts of the *637deceased were such, as fairly and reasonably to induce such belief, and if they were, the prisoner was justified in acting upon those appearances, whether they were real or feigned. “The inqury is whether you are satisfied that the prisoner, when he fired the gun, had reason to believe, under the circumstances then transpiring before him, that Heal had a revolver and was going to shoot him.” A charge more, entirely unexceptionable and lenient towards the prisoner, it would be difficult to make; but the counsel for the defense, not content with this, proceeded to propound several distinct propositions upon which the court was asked to charge. Two of them the judge charged as requested, and two were declined, as I think, with entire propriety. The first was in the very words of the statute, and was so charged. The second introduced the element of impunity given to the prisoner from circumstances threatening danger, although it turned out that they were not real, and the prisoner was mistaken in his apprehension of them; but the counsel insisted on a qualification which, as the judge remarked, turned upon the operation of the prisoner’s own mind, without any regard to whether he had reason thus to believe. Whether there is any thing in this metaphysical distinction, or not, is in my judgment not important; and the introduction or omission of the words, “if the prisoner did really and in good faith” apprehend danger, did not really vary the legal proposition which was clearly put in the charge and substantially repeated in the language of the judge in responding to this request. All he objected to was the introduction of those words which added nothing to the proposition which was fairly given to the jury, that if the prisoner had reason to apprehend danger, although there was no real danger, and no design to inflict an injury, and he was entirely mistaken in his apprehension of such design, the jury should acquit.
The third proposition turned upon the supposed impunity. of the prisoner, arising from the alleged fact that he saw Iris superior officer unlawfully resisted in the performance of *638his duty, and believed'that he was ordered to fire, and did so in obedience to what he supposed a lawful command. This was declined, and properly so, because there was no state of facts proved on the trial, upon the testimony of any witness, going to establish any such condition of things as would warrant such a command, even if the officer had power to give it. There is no evidence, anywhere, to show that at the time the homicide, was perpetrated, the officer was being unlawfully resisted, or resisted at all in the performance of any duty whatever. The whole case shows that the fight was substantially at an end, comparative quiet reigned, and no one was resisted; and upon the evidence on the part of the defense, no command whatever was given to the prisoner to shoot. The proposition" was a mere abstraction, unwarranted by any facts appearing on the trial. The remark of the judge which accompanied his refusal to charge as requested, may not have been strictly correct. Cases can be conceived where an order of an officer to shoot down a man, though not on the field of battle, may h'e justified, but they do not come within drum beat of the facts existing here ; and the remark, if erroneous, did no harm, because it was a mere abstraction, having nothing to do with the matter in hand, and therefore, within a well established principle, affording no ground for reversing a judgment, or granting a new trial. The rule on this subject, it is hardly necessary to add, is the same in criminal as in civil cases.
The next proposition was charged precisely as requested by the counsel for the prisoner, and gave to him the benefit of every fact and circumstance from which the jury could be authorized to arrive at the' conclusion that he had any reason to apprehend, or did in fact apprehend, any design on the part of the deceased to put the life of the prisoner in danger, or to inflict upon him any great personal injury.
The final request to charge was, that if the jury, upon the evidence, entertained a reasonable doubt as to whether or not the prisoner had reason to apprehend personal injury, *639they should acquit. This was repeated with some variations not changing the sense; the court declining to put the proposition in this form, but stating the rule to be that the jury were to be satisfied beyond a reasonable doubt, that the prisoner had reasonable ground to believe himself in danger. Upon the general question of the defendant’s guilt the rule is, that any reasonable doubt is to be resolved in his favor, and that rule had been stated to the jury in the charge; but the request here was to instruct the jury to allow a doubt in their minds, if such should be the fact, as to the state of the prisoner’s mind, to acquit him wholly of the crime with which he stood charged; in other words,.if they doubted whether he stood in fear of his life, or his person, they should conclude that he did stand in such fear, and acquit him. No such charge as this in a capital case was ever given, according to any authority that I have yet seen, or any practice sanctioned by the courts. It constitutes no part of the definition of the crime of murder that it must be committed by one who had no reasonable fear of a felony, or of great personal injury. That forms a ground of justification, if the fact be that such reasonable ground of apprehension exists, and is for the party charged with the crime to assert and maintain. The killing in this case was proved and conceded, and there was no doubt as to the identity of the prisoner. It was for him to satisfy the jury, beyond reasonable doubt, that he did apprehend, and had reason to apprehend, that he' was in imminent danger of his life, or of the infliction of some great personal injury. It would be reversing the whole order of the trial and the burden of proof, if it devolved upon the people not only to prove the killing, but to negative any possible defense that the statute or common law affords to an alleged offender charged with crime.
We have been referred to the case of the The People v. McCann, (16 N. Y. Rep. 58,) as an authority for the proposition put forth by the counsel for the prisoner, and which *640he requested the court in this case to charge. As I understand that decision, it sustains no such doctrine.' The defense in that case was insanity; and the judge on the trial had ruled that sanity being the normal condition, insanity was not to be presumed, but must bé proved, and the jury must be satisfied of the existence of insanity, beyond a reasonable doubt, or otherwise must convict, The Court of Appeals disapproved this ruling, and held that the prisoner was entitled to the benefit of any doubt resting on the question of sanity. I confess I do not very clearly apprehend, nor quite appreciate, the course of the reasoning by which this conclusion is reached; and it is opposed to several cases cited in the opinions, and is upheld by no authority directly on the point. In the well considered case of Commonwealth v. Rogers, (7 Metc. 500,) Ch. J. Shaw laid down the rule that a person is of sound mind until the contrary appears; and in order to shield a party from criminal responsibility, the presumption must be rebutted by proof sufficient to establish the fact of insanity to the satisfaction of the jury. On an inquiry subsequently put by the jury, whether they must be satisfied beyond a doubt of the insanity of the prisoner, the chief justice repeated this instruction, and added that if the preponderance of the evidence was in favor of the insanity of the prisoner, the jury would be authorized thus to find. The propriety of this instruction is sanctioned by the case of Walter v. The People, (32 N. Y. Rep. 147,) where the court say that sanity is the presumed normal condition of the human mind, and it is never incumbent upon the prosecution to give affirmative evidence of the existence of such state, in a particular case. I know not how to reconcile the doctrine put forth in the case of McCann with this decision, and if in conflict on this point, this, as being the latest utterance of the court, must prevail.
But, assenting to the authority of The People v. McCann, it does not support the proposition of the prisoner’s counsel *641here, for the reason that the court holds that to establish sanity is a part of the case which the prosecution is to main- ‘ tain. The common law definition of murder, to wit: that it must be perpetrated by a person of “ sound memory and discrimination,” is cited and held to be still applicable to the definition of the crime, and that this must be proved to the satisfaction of the jury, as much as any part of the case. It is said plausibly, if not forcibly, that if a man is without reason at the time, the act is not his, and he is no more responsible than he would be for the act of another man; and that the defense of insanity, so far from confessing and'seeking to avoid the alleged crime, denies the existence of any capacity to incur guilt and commit crime. This is the ground on which the opinion of the court places the defense of insanity. It need hardly be said that viewing it in this light, it has no analogy to the position of a party like the prisoner in this case, who .had the capacity to commit the alleged crime, by whom- it was confessedly perpetrated, and who can only escape the consequences by showing to the satisfaction of the jury, beyond a reasonable doubt, a state of facts that furnishes a justification of the act, or mitigates it to some lower degree in the scale of crime. The instruction of the judge, therefore, seems to me entirely proper, and the conviction and judgment should, in my opinion, be affirmed.
[Onondaga General Term,
October 2, 1866.
Baeon, Foster and MMin, Justices.]