63 N.Y.S. 449 | N.Y. App. Div. | 1900
The evidence was amply sufficient to sustain the charge contained in the indictment and justified the conviction of the defendant thereunder. The shooting upon which the conviction was predicated
It is clear that the charge as made by the court, that the burden of proof was upon the defendant to show that he did commit the act in self-defense, and that he must establish such fact by a pre
The learned district attorney relies upon People v. Stone (117 N. Y. 480) ; Sawyer v. People (91 id. 667); People v. McCarthy (110 id. 309), and O'Connell v. The People (87 id. 377) as establishing a rule contrary to that announced by the foregoing authorities, his claim being that the doctrine of these cases is that the burden shifts in a case where the defense interposed is that of self-defense, and that he must establish facts sufficient to raise a reasonable doubt. It may be said in answer to this claim that the court in the body of the charge did not go even to the extent of the claim,
In O’Connell v. The People (supra) the court did not depart from the well-settled rule that upon the whole issue, including the
In People v. McCarthy (supra) the defendant was convicted of the crime of manslaughter in the second degree; the defense was justification of the act causing death. The court in charging the jury upon this subject said : “ The defendant attempts to justify the facts of killing. It is for the defendant to satisfy you that, if you find, as matter of fact, that the killing was done and that the defendant did it, that he was justified in the act.” To this charge the-defendant excepted, and requested the court, “in that connection, to charge that the burden of proof is upon the people all through that the defendant is not obliged to satisfy the jury of anything.” The court so charged, and such charge was held to be correct. In commenting upon this subject the court said : “ Ho doubt the burden of proving the accusation, that is the guilt of the defendant, was upon the plaintiff, and so the court charged, but the burden of justifying the use of a deadly weapon was on the defendant. (Sawyer v. People, 91 N. Y. 667.) ” The case cited in support of the text amply sustains the statement made by the court. This language is to be construed, when speaking of the burden to be borne by the-defendant, as meaning that his evidence must be of such character as tends to establish a defense, and, when considered with all the-other evidénce, operates to prove a defense or to create a reasonable-doubt. When the People have made a case which establishes the guilt of the defendant beyond a reasonable doubt, it may always be said that the defendant is called upon to answer, and in a sense it may be said that he is required to establish his defense. In this
It is clear that the rule established by these cases is not other or different from the rule in the first cases cited herein. They are all in harmony. The confusion arises out of the fact that the court speaks of the burden being upon the defendant; but this relates merely to the order of proof, and not to the weight which the jury may attach to the testimony. There is no shifting of the burden from the People to the 'defendant at any time; and in this respect the court fell into error in its charge in the case at bar. It is said that the error was cured. When the defendant first called the attention of the court by an exception to the charge: “ It is sufficient for the people to make out their case by a preponderance of evidence,” and then requested the court to charge that the People must' not only prove their case by a preponderance of evidence, but beyond a reasonable doubt, the court so charged. This was followed by an exception to that part of the charge wherein the court had stated that the burden shifts from the People to the defendant, and by a request to charge that the burden of proof is on the People from the beginning to the end. The court declined so to charge, to which the defendant excepted. The court, in reply to the two
We are also of opinion that error was unwittingly committed by the learned district attorney in his unauthorized statement to tlie jury, which arose upon the cross-examination of the defendant. It appeared that the district attorney had visited the jail, in the discharge of his official duties, and while _there saw the defendant. Upon the trial he asked the defendant: “ Didn’t you say you had shot this man ? A. I don’t remember. Q. Didn’t you ask me how much you were going to get? Hr. Yan Slyke: Objected to; objection overruled; exception. Q. Yes or no. Didn’t you ask me how much time you were going to get if you plead guilty ? A» Yes, sir; I did say it; you had me scared. Hr. Rawson: And Hr. Yan Slyke offered to let this man plead to assault in the second degree. Hr. Yan Slyke: I object. [Statement of district attorney is struck out.] ” This statement by the district attorney was noth
These views require a reversal of the judgment of conviction.
All concurred.
Judgment of conviction reversed and new trial ordered.