110 N.Y.S. 83 | N.Y. App. Div. | 1908
The defendant appeals from a judgment convicting him of the crime of murder in the second degree. The only question presented by the record, requii-ing consideration, is whether the judgment is suppported by the evidence. It is undisputed that on the 13tli day of August, 1906, the defendant shot and killed one Antonio Gambardello. The defense was that the homicide was justifiable.
The defendant and the deceased were longshoremen employed on one of the South Brooklyn docks near the intersection of Conover and Pioneer streets. Their foreman was one Salvatora. "Richighi, the defendant’s prospective brother-in-law. It was the custom of the longshoremen to gather on the dock, and the foreman selected such as he wanted and assigned them to work. Some time previous to the day of the homicide, said foreman had discharged a brother of the deceased and had compelled him to leave the dock. Shortly before one o’clock on said day a crowd of men variously estimated from one hundred and fifty to three or four hundred were gathered about the gate opening upon the dock, and while said foreman was-selecting men to work he got into an altercation with the deceased. The People’s witnesses do not explain the cause of the quarrel, but according to the testimony of two witnesses called by the defense, it was begun by the deceased, who threatened said foreman because the latter refused to assign him work; at any rate a scuffle between them ensued, and the defendant, who was standing nearby, fired three shots from a pistol, two of which entered the left breast of the deceased, inflicting mortal wounds. The only witness called by
Section 205 of the Penal Code provides : “ Homicide is also justifiable when committed, either 1. In the lawful defense of the slayer, or of his or her husband, wife, parent, child, brother, sister, master or servant, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished.”
The principal question for the jury to determine was whether when the first shot was fired the defendant had reasonable ground to apprehend a design on the part of the deceased to do great personal injury to Richighi, and that there was imminent danger of such design being accomplished, and whether when the shot inflicting the mortal wound was fired he had reasonable ground to apprehend a design to do great personal injury to himself, and that there was imminent danger of its being accomplished. Of course the appearances and his belief when the first shot was fired are only important as showing how his connection with the affair began, and as shedding light on his motive and belief when the fatal shot was fired, and as bearing upon the rule that the defendant was not justified in shooting until he had done everything in his power to avoid the necessity. It is evident that the principal question litigated on the trial was whether the deceased had the knife. The testimony of the brother of the deceased is so clearly at variance with the established facts of the case that it is entitled to but little weight. The other negative testimony on this point is clearly overcome by the positive testimony of the defendant’s witnesses, corroborated by one, witness called by the People, and by the very strong circumstance of the finding of the open knife under the body of the deceased. We may start then with the proposition that the credible evidence establishes the fact that the deceased had an open knife in his hand when shot. It is likewise established that he started the quarrel
The judgment of conviction should be reversed and a new trial ordered.
Jeeks, Hooker, Gayecr and Bich, JJ., concurred.
Judgment of conviction reversed and new trial ordered.