75 N.Y.S. 688 | N.Y. App. Div. | 1902
Lead Opinion
The defendant was indicted for the crime of manslaughter in the first degree, and upon a trial was convicted of the offense charged in the indictment and was sentenced to imprisonment in the State prison at hard labor for a term of ten years. ' The evidence, as disclosed by the present record, shows that the case-presented a fair question of fact as to whether the defendant was not justified in committing the act for which he was indicted and convicted. Under such circumstances it became the duty of the trial court to protect the defendant in every right which the law has furnished for his protection, and to see that he had the full benefit of every matter tending to show exculpation for the commission of the act. It also becomes the duty of this court, in review of the trial, to scrutinize the record with care in order that it may see that the defendant has had the full measure of benefit secured to him by the law. To this end we have carefully examined the whole of the- testimony and the proceedings had upon the trial. The act charged, constituting the crime, was the shooting of one O’Hara with a pistol on the night of the 5th of January, 1901. It was conceded upon the trial that upon that night the defendant shot O’Hara-with a pistol, inflicting, a wound from which he subsequently died. The defense. interposed was that of excuse and justification. In order that such defense should prevail it became necessary to have it appear that the act was accidental, or that it was done in self-defense, and that the circumstances were such that the defendant had reasonable ground to apprehend some great injury to his person by the deceased at the time when he committed the act resulting in death, or that he was
It was established upon the trial that the defendant conducted a pool and billiard room at No. 2630 Broadway, in the city of New York; that cigars and cigarettes were sold upon the premises, but no liquor was kept or sold in the place, and that the business was conducted in a respectable and law-abiding manner by the defendant. It was also established without dispute that on the night in question one Teatom and the deceased, O’Hara, visited the defendant’s place, arriving there about twenty minutes before twelve o’clock; that Teatom applied to the defendant for permission to play a game of pool and that the defendant refused such permission, stating that it was too near closing time, and that in obedience to a direction by the police authorities he must close his place at twelve o’clock. The defendant at this time was engaged in playing pool with another person, and he announced to those in the room, of whom there were twenty-five to thirty persons, that the game then in progress was the last that could be played. Teatom was somewhat under the influence of liquor, and instead of complying with the defendant’s refusal to permit him to play, he went to one of the tables where an open game was in progress and asked permission of the players to join in it. Permission was given, as Teatom says, by the players, and he procured a cue intending to join in the game. The defendant thereupon interfered, and attempted to eject Teatom and the deceased from the room. A contest followed in which both Teatom and the deceased participated and they inflicted upon the person of the defendant severe punishment. The proof given as to the character of this contest was in many respects somewhat contradictory and quite confusing, but it clearly appears that the defendant received severe injuries at the hands of the deceased and Teatom,
It- is clearly evident from the whole of the testimony that the defendant, at the time in question, was conducting his business in a lawful manner and was in nowise interfering with the deceased or Teatom. At the time these men entered the room the hour for closing was near at hand, and defendant did what it was his lawful right to do, refused their application to play pool and gave the reason why it could not be permitted. Disregarding this refusal and in defiance of it, they attempted to play, and the defendant, still acting within his legal right, sought to prevent their playing and to remove them from the room. lie had the right to require that they should leave, and, if they refused, to use such force, as was necessary to eject them. From all that appears, it is evident that this is what he attempted to do. The deceased and Teatom, in violation of law, resisted the commands to leave and made an unwarranted assault upon the defendant, an assault of such a character as inflicted upon him quite severe injuries. It is evident that this contest was continuous from the beginning to the end, and the jury would have been justified in finding that at the time when the fatal shot was fired the assault by Teatom and O’Hara upon -the defendant was still progressing, and that in view of - all the circumstances there was reasonable ground for apprehension that he would suffer great bodily harm unless lie did something to cause his assailants to desist from their attack. Of course upon all of the testimony the jury were authorized to find that, from all the surrounding circumstances, the defendant was at no time in such a position pf danger as would justify a belief or furnish reasonable ground therefor that he would suffer either great bodily harm or serious injury, and was, therefore, not warranted in taking human life..
In view, therefore, of the law and the rights of the defendant thereunder, it becomes necessary to examine the charge of the learned trial court upon this subject. In this respect, the court said : “ If this defendant killed Ó’Hara, as I understand from the uncontradicted evidence, as well as the admissions of the defendant’s counsel that he did, he is criminally liable for that act, unless you gentlemen come to the conclusions, from, all the evidence in the case, that he was legally justifiable or excusable'in doing it.” And again, “it-being conceded that O’Hara is dead and that this defendant killed him, was his act justified or excusable before the law %
The court then defined “justifiable homicide,” stating, so far as is presently important: “ It is an inherent right belonging to every individual, under certain circumstances, to take the law in his own hands; but the organic law steps in and says what those circumstances are which justify him in taking it. He may do it, ‘when there is reasonable ground’ — mark the words—‘when there is reasonable ground to apprehend a design on the part of the person slain to take liis life or to do him some great personal injury.’ The keystone, the keynote of- the law of self defense is necessity, real or apparent. ■ Whether there is necessity or not is the question which you gentlemen are to determine from all of the circumstances in this case. A man may repel force by force, but he must not use unnecessary force. The force must be measured by the real or apparent necessity. ■ * * * In this case, therefore, gentlemen of' the jury, it seems to me that that is a very important fact for yon to determine; whether you come to the conclusion, from all the evidence in this case, that the .defendant had reasonable ground to believe that his own life was in danger, or there was some great personal injury threatening him which was imminent of being put-
“ If you come to the conclusion from all the evidence in this case that he had a right to apprehend such a design as I have stated, and that he used no more force than was necessary in repelling the force that was brought against him, then he is clearly not guilty; but, if on the contrary you believe that he went beyond the necessities of the occasion; that he used more force than was necessary, and that he had no reasonable' ground to believe that either there was a design to take his life or to inflict serious bodily injury upon him, then he had no right to kill this person.” And again, “If you think, under all the circumstances, that he was justified in taking this man’s life, before the law, as I have defined it to you, or that he was excusable in doing so, acquit him; that ends it; but if you do not think that he was excusable in doing so or justifiable, I know that you will-perform your duty.”
Upon the subject of reasonable doubt the court charged:
“ Now, a word with reference to the question of reasonable doubt. Reasonable doubt, as I have frequently said to juries, in my judgment, is best defined by the words themselves ‘ reasonable doubt.’ The term does not mean an unreasonable doubt. It does not mean a speculative doubt. It does not mean a doubt which you can find outside of the evidence of the case. Therefore, reasonable doubt, as I always say to a jury, is a doubt which is reasonable and twelve intelligent men come to upon the evidence. The only lamp which you have to guide you, or the principal one, is the testimony in the case; and if you, gentlemen, on reviewing the evidence carefully and conscientiously, can conscientiously say, ‘ Well, I have a reasonable doubt, on the evidence, as to whether this man is guilty or innocent,’ then it is proper that he should be acquitted.”
Nothing else was said upon the question of reasonable doubt, except when the court spoke of that subject in connection with the definition of the crime of manslaughter in the first degree. The
It follows that the judgment of conviction should be reversed and a new trial granted.
Van Brunt, P. J., and O’Brien, J., concurred; Ingraham, J., dissented.
Dissenting Opinion
(dissenting):
I dissent. It is conceded that there was presented a fair question as to whether the defendant was or was not justified in killing the
Judgment reversed and new trial granted.