author: By the court, Clerke, J.

text:
    Supreme Court. New York General Term,
    May, 1863.
    Sutherland, Barnard and Gierke, Justices.
    James Rhodihan, plaintiff in error, v. The People, defendants in error.
    Where a person is tried on an indictment charging him with stealing, from the person property of more than twenty-five dollars in value, and it is proved on the trial that the property stolen from the person was of less than twenty-five dollars in value, it is erroneous for the court to refuse to charge that the defendant can be found guilty of petit larceny only, and to charge that, if the defendant stole from the person the sum of eighteen dollars only, he may be found guilty of the offense charged in the indictment.
    It is the duty of the court, in such a case, to instruct the jury to find whether the property stolen from the person was worth more or less than twenty-five dollars.

    The defendant was indicted, charged with having, on the 31st day of January, 1862, at the city of New York, stolen certain moneys, &c., to an amount exceeding twenty-five dollars, from the person of Sarah Sidney, and pleaded not guilty.
    The indictment was brought on for trial, in the Court of General Sessions of New York, in March, 1862, before John H. MqCunn, city judge, and a-jury.
    On the trial, it was proved by'the prosecution that the defend-: ant stole from the person of Sarah Sidney, on or about the 30th day of January, 1862, twenty-three dollars and thirty-one • cents, whilst said Sarah Sidney was in a stage in Grand street, in said city.
    No evidence was given, proving, or tending to prove, that the defendant stole any other or greater sum than above specified. ' >
    No evidence was given on behalf of the defense. The district attorney asked for a verdict of guilty under the indictment.

      Counsel for the defendant asked the court to charge the jury that they could only find the defendant guilty of petit larceny.
    The court refused so to charge, to which the ¿ounsel for defendant excepted.
    The court then charged the jury, that, if they found the defendant stole from the person of Sarah Sidney the sum of eighteen dollars, they might render a verdict of guilty under the indictment; to which thé counsel for defendant excepted.
    The jury returned a verdict of “ guilty ” on the whole indictment, and the prisoner was sentenced to imprisonment in the penitentiary for the term of two years.
    A writ of error was then brought to this court.

      Henry L. Clinton, for the plaintiff in error.
    The court below erred in charging the jury, “ that if they found that defendant stole from the person of Sarah Sydney the sum of eighteen dollars, they might render a verdict of guilty under the indictment;”
    The court charged the jury that they might convict of grand larceny from the person, upon a state of facts constituting petit larceny from the person.
    The statute {Session Laws 1860, p. 1016, § 33), under which the prisoner was convicted, provides in substance that whoever shall, in the city and county of Hew York, steal from the person of another, “may be punished as for grand larceny (not convicted of grand larceny), although the value of the property taken shall be less than twenty-five dollars.” The Court of Appeals accordingly held, in Williams v. The People (24 N. Y. R., 405), that a charge precisely like the one excepted to in the case at bar, was erroneous, and granted a new trial on that ground.
    In Williams v. The People, the court below charged the jury “ that if they found that the defendant stole from the person of Eliza Denike the sum of seven dollars, they might render a verdict of guilty under the indictment.” (p. 406.) The charge of the court below, in the case at bar, was in the very words of the charge in the case of Williams v. The People, the only difference being that the sum specified in the one case was seven dollars, and the other'was eighteen dollars. This amount however, is immaterial, as long as the sum in neither case was over twenty-five dollars, that being the dividing line between petit and grand larceny. In Williams' case, the court held that the words, “ may punish as for grand larceny,” did not mean “ shall punish as for grand larceny,” but that it was discretionary with the court whether to punish as for a grand or petit larceny. Upon conviction for grand larceny, the sentence could not be for less than two years’ imprisonment.
    The only statutory provisions relative to the punishment for grand larceny, whether from the person or otherwise, are the following:
    “ Every person who shall be convicted of the felonious taking and carrying away the personal property of another, of the value of more than twenty-five dollars, shall be adjudged guilty of grand larceny, and shall be imprisoned in a State prison for a term not exceeding five years.” (3 R. S., 958, § 65, 5th ed.)

    “ Whenever any person, under the age of twenty-one, and above the age of sixteen years, shall be convicted of an offense punishable with imprisonment in the State prison, in either of the judicial districts of the State, having a penitentiary within said judicial district, the court, before which such conviction shall be had, may, in its discretion, sentence the person so convicted to imprisonment in the penitentiary situated in that judicial district.” (Laws 1856, p. 251, § 1.)
    It will be perceived that upon the general verdict of guilty, on the indictment in the case at bar, the court below was compelled to sentence the prisoner for not less than two nor more than five years’ imprisonment. The law of 1856 did not lessen the term, but merely gave the court power, in its discretion, to select a different place of imprisonment when the convicts were between certain ages. The conviction, under the charge of the court for grand larceny from the person, instead of petit larceny from the person, was fatal to the legal right of the prisoner in this case, as in the case of Williams v. The People

      '{supra). From the fact that Ehodihan was sentenced to “the penitentiary of the city of New York for the term of two years,” instead of the State prison, the presumption is, that the court below ascertained that he was between the ages of sixteen and twenty-one; but this consideration does not take away from the prisoner his legal right, specifically adjudicated in the case of Williams v. The People, to have a verdict of petit larceny from the person; because, upon the rendition of such a verdict the court might, in its discretion, award to him only the punishment prescribed by statute for one “adjudged guilty of petit larceny,” which is, that he “ shall be punished by imprisonment in a county jail not exceeding six months, or by a fine not exceeding one hundred dollars, or by both such fine and imprisonment. (3 B. 8.. 971, § 1, 5th ed.)

    In Williams v. The People (24 N. Y. R., 409), Denio, J., in delivering the unanimous opinion of the court, says: “If the amount' stolen had béen truly stated in the verdict, the judgment might, notwithstanding the statute, have been that annexed by law to a simple petit larceny. As the judge who tried the issue was also to pronounce the sentence, it is altogether improbable that the error in form, which I suppose to have been committed, has at all prejudiced the defendant. But it is very plain to my mind that an accused person has an absolute right to have such instructions on matters of law-given to the jury as will shield him from a verdict for a different and. higher offense from that of which he is proved guilty.” Upon this precise point the Court of Appeals unanimously granted a new trial.
    • In the case at" bar, Ehodihan was proved guilty of one offense, and the court, by charging the jury that they “might render a verdict of guilty under the indictment,” charged them in substance that they might render “ a verdict for a different and higher offense from that of which he was proved guilty.” This was clear and unmistakable error.

      A. Oakey Hall (District Attorney); for the People.
    The record shows.that'the plaintiff in error was convicted, hot by a general verdict of guilty “of the felony above charged in the form aforesaid, as by the indictment aforesaid is above alleged against her ” (which was the record in the Williams case), but was “ in due form of law tried and convicted by a jury on an indictment for larceny from the person of one Sarah Sydney, the personal property of one John J. Sydney.”
    Therefore, the conviction of this plaintiff in error was one in accordance with the statute, and is distinguishable from the Williams precedent.
    1. The Court of Appeals, in the Williams case (pp. 408, 409), emphasize the “ general verdict of guilty ” as the matter injuring the prisoner.
    And that court so disposed of the questions of unconstitutionality and petit larceny that they cannot be argued now.
    2. In the error book before the court the evidence of the sums stolen, in connection with the verdict, shows conclusively that it was not a conviction for grand larceny, but for petit larceny from the person.

      a. True, the record says simply “ larceny; ” but it adds, “ from the person.” How, there can be grand larceny from the person only when it is stolen in the night time (§ 65, R. S., on Larceny). And the indictment does not allege such a season for the larceny.
    • Thus, a verdict' guilty of larceny from the person would point to the “ petit ” species of larceny from the person.
    Unless the adjective grand is prefixed, the presumption is (in favorem libertatis) that the word larceny means “ petit.”
    3. The direction of the court in Williams’ case was that they might render a general verdict of guilty.

      a. The Court of Appeals, in People v. Guenther (24 N. Y. R., 100), have shown a liberal disposition in construing a verdict, when the record and the evidence together become explanatory of the verdict

      b. Although the bill of exceptions interpolates “ verdict of guilty on the whole indictment,” nevertheless it cannot contradict the record, which states the verdict.
    4. The conviction should be affirmed, and, if the prisoner relies upon the entry of verdict as in bill of exceptions, and the court think it material, he should be put to allegation of diminution of record, and again bring the point before the court.

       Note. — The 33d section of chap. 608 of 1860, under which this indictment was found, was applicable only to the city of New York; but, by the 2d section of chap. 374 of 1862, the same law is made applicable to the entire State.

   By the court, Clerke, J.

I confess I am unable to distinguish this case from that of The People v. Williams (24 N. Y. R., 405). In that case, the counsel for the defendant asked the court to charge the jury that they could only find the defendant guilty of petit larceny; but the court refused, and the. counsel excepted. The court thereupon charged the jury that, if they found that the defendant stole from the person of Eliza Denike the sum of seven dollars, they might render a general .verdict of guilty under the indictment; to which the defendant’s counsel excepted. In this case, in precisely the same words,.the counsel for the defendant asked the court to charge' the jury that they could only find the defendant guilty of petit larceny; the court refused, and the defendant’s counsel excepted. The court then charged the jury that, if they found the defendant stole from the person of Sarah Sidney the sum of eighteen dollars, they might render' a verdict of guilty under the indictment; to which the counsel for the defendant excepted. The only difference between this part of the charge in this case and the corresponding part in the Williams case, is the omission of the word “general’’ before the word verdict in the former; which, of course, is an unessential difference.

The counsel for the People, however, insists that, by the record, the conviction is essentially different in this case from that in the Williams case. In this case the record says that the defendant was, in due form of law, tried and convicted by a jury on an indictment for larceny from the person of one Sarah Sidney, &c.; whereas, in the Williams case, “the defendant was found guilty of the felony above charged, in the form aforesaid, as by the indictment aforesaid is above alleged against Mm.” The words are somewhat different; but I cannot find any essential difference in these records of conviction. In both cases, the indictments charge the defendants with crimes constituting grand larceny—in the one case of stealing property exceeding the value of twenty-five dollars from the person of Sarah Sidney; in the other, of stealing property exceeding that amount from the person of Eliza Denyke. The convicion, then, as it appears on the record, is a conviction in both cases of grand larceny; which is not the crime of which either was actually guilty, although made liable by the act of 1860 to the punishment attached to grand larceny. Although liable to this punishment, still it is settled by the Court of Appeals that the court is not compelled to award it; but the judgment might, notwithstanding the statute, have been that annexed by law to -a simple petit larceny, if the court deemed such a mitigation of punishment advisable. As the conviction, however, is recorded in this case, the court had no discretion as to the period of the punishment. This conviction, under charge of the court, for grand larceny from the person, instead of petit larceny from the person, compromised the rights of the defendant, as the conviction of a general verdict of guilty compromised the right of Williams in the case to which I have adverted.

The judgment should be reversed, and a new trial ordered.


source: Caselaw Access Project

author: By the Court, Leonard, J.

license: Public Domain

text:
    Supreme Court. New York General Term,
    September, 1863.

      Sutherland, Ingraham, and Leonard, Justices.
    The People v. John Riley.
    Bonn of a certiorari to a Court of Special Sessions and of a return thereto, and, also, of the complaint taken before the magistrate, and of the recognizance taken to appear before the Court of Special Sessions.
    Where a person arrested and brought before a magistrate in the city of New York, under a charge of petit larceny, presented to a magistrate a writing, signed by him, in which he waived a jury and demanded to be tried before a Court of Special Sessions, it was held that he waived thereby his right, when subsequently brought before the Court of Special Sessions, to demand a jury, and to Have his case removed to the General Sessions, and also his right of appeal to the General Sessions, under 2 B. S., IIS, § 26.

      This case came up on certiorari to a Court of Special Ses1 sions.
    On a petition of John Riley, verified by his counsel, W. F, Howe, the following writ of certiorari was allowed:

      .The People of the State of New York, to Richard Kelly, James R. Steers and James H. Welsh, Ksquires, Police Justices of the city and county of New York, Greeting : '
    We having been informed that John Rilev,. of said city, was lately in a Court of Special Sessions of the Peace, held before you, convicted of petit larceny, and being willing for certain causes, to be certified of said conviction, and of the complaint, proceedings and judgment against said John Riley, do command you that the original complaint, the proceedings, testimony and judgment, with .all things •touching the same, by whatsoever name the party may be called therein, you send to the justices of our Supreme Court in and for the city and county of Hew York, distinctly and plainly, under your hands and seals; and that you cause this writ, and the affidavit delivered to you therewith, and your return thereto, to be filed in the .office of our Supreme Court of Judicature, at the city hall, in the city of Hew York, on the first Monday of September, 1863.
    Witness, Honorable George G. Barnard, one of the justices of our Supreme Court, at the city hall, in the city of Hew York, this 1st day of August, 1863.
    [seal.] H. W. GENET, Clerk.

    W. E. HOWE, Attorney.

    (Indorsed.) “ I hereby allow the within writ.
    1st August, 1863. GEOEGE GOULD.”
    To which the following return was made by the Court of Special Sessions.

      City and County of New York, ss:

    The undersigned, police justices in and for the city and county of Hew York, and justices of the Court of Special Sessions in said county, named in the annexed writ, certify and return to the Supreme Court, that on the 7th day of July, 1863, John Eiley was brought before Joseph Dowling, Esq., one of the police justices in and for the city of New York, charged with petit larceny, upon the complaint, on oath and in writing, of George W. Barnett (a copy of which is annexed, marked A), and the said. Eiley thereupon (as appears by the paper annexed, marked B) elected and required to be tried for said alleged offense, by the Court of Special Sessions in said county, and also entered into a recognizance with surety, conditioned for his appearance at said court, to answer the complaint aforesaid (a copy of which recognizance is annexed, marked C).
    The undersigned further return, that on the 30th day of July, 1863, they were, at the halls of justice in said city, duly associated and convened as a Court of Special Sessions for the trial of misdemeanors. And the said court having met, caused the said John Eiley to be brought before them for trial for the offense specified in the said complaint; and the charge was then and there distinctly read to him, and he was required to plead thereto. By advice of counsel, the defendant refused to plead, and asked to have the case removed to the General Sessions, and demanded to be tried by a jury, which motion was denied by the court, and the court thereupon directed the clerk to enter and record a plea of not guilty. The said plea of not guilty was accordingly entered in the minutes of the court.
    The court thereupon proceeded to try the said issue, and called to the stand Géorge W. Barnett, the complaining witness, who, after being duly sworn by the clerk, testified as follows:

      George W. Barnett: This person, the prisoner, came in and asked if he could have some pictures, and asked if he could sit in the afternoon; I asked him to take his chance, and said it would be better to have his address, and his turn would come the sooner; he asked for pen, ink and paper to write; I took him tó the desk, and as I was suspicious of him, I sat at the opposite side of the desk, and I noticed the drawer open; the clerk saw it too, and asked if he should arrest him; I said no, wait till he gets through; after that I told the clerk to go for an officer; he went and found an officer, and I mentioned to the policeman the bills the prisoner had stolen before he was searched; on searching him wé found the two bills I had described; one was on the Tompkins County Bank, and the other was on the Park Bank; they were both $5 bills; they belonged to John Barnett; I told the officer the bills and denominations previous tó his finding them; they had been received by me a few minutes before this; that was the reason I recollected them.

      The court to the prisoner: Have you any questions to ask this witness ?

      Counsel: I decline to examine him.

      John E. Sparrow was next called, and after being duly sworn, testified as follows:

      Q. State what you know in relation to this matter?

      A. The complainant came out to me, and I went in; he then told me the circumstances about this young man, and I arrested him; and he wished me to search him; I did so, and found two $5 bills concealed in his sock; I told him to take his shoes off, and then his socks; when I arrested him he was at Ho. 585 Broadway, on the second floor; complainant identified the bills; he told me the names of the banks before I found the bills, and also the denomination of the bills; they were the same as he described.

      The court to prisoner: Young man, have you any witness?
    Prisoner makes no answer.
    After having heard the proofs and allegations in the case as above, the court found and determined that the said John Riley was guilty of the offense charged in the said complaint, and adjudged that he should be imprisoned in the penitentiary of the city of Hew York for the term of six months. A copy of the record of said conviction and judgment of the court is annexed, marked D.

      Given under our hands and seals this thirty-first day of August, 1833.
    RICHARD KELLEY, [seal] JAMES R. STEERS, [seal.] JAMES B. WELSH, [seal]
    (A.)
    POLICE COURT, HALLS OE JUSTICE.

      Oity and county óf New York, ss:

      George W. Barnett, of No. 585 Broadway street, being duly sworn, deposeth and saith, that on the 7th day of July, 1863, at the ward of the oity of New York, in the county of
    New York, was feloniously taken, stolen and carried away from the possession of deponent the following property, viz.: Two bank bills, of the value and denomination of five dollars each—$10 — the property of John Barnett, and that this deponent has probable cause to suspect, and does suspect, that the said property was feloniously taken, stolen and carried away by John Riley, now present, from the fact that said bills, which are now produced and identified by deponent, were in a drawer in said store; deponent saw said Riley open said drawer.
    Deponent is informed that said bills were found on the person of said Riley.
    GEORGE W. BARNETT.
    Sworn before me, this 7th) day of July, 1863, )
    Joseph Dowling, Police Justice.

      Oity and county of New York, ss:

      John N. Sparrow, of the 28th precinct, being duly sworn, says, that on this day deponent found the two bank bills now produced and identified by George W. Barnett, in the stocking of John Riley, now present
    JOHNS. SPARROW.
    Sworn before me, >
    July 7th, 1863, $
    Joseph Dowling, Police Justice.

      _ (B.)
    The People v.

    John Riley.
    On complaint of John Barnett for petit larceny.
    After being informed of my rights under the law, I hereby waive a trial by jury, on -this complaint, and demand a trial at the Court of Special Sessions of the Peace, to be holden in and for the city and county of New York.
    Dated July 8th, 1863. • JOHN BILEY.
    (C.)

      City and County of New York, ss:

    Be it remembered that on the 8th day of July, in the year of our Lord, 1863, John Riley of No.---street, in the city of New York, and Theodore Allen, of No. 79 Mercer street, in the said city, personally came before the undersigned, one of the police justices in the city of New York, and acknowledged themselves to owe to the People of the State of New York, that is to say: the said John, the sum of five (5) hundred dollars, and the said Theodore, the sum of five (5) hundred dollars, separately, of good and lawful money of the State of New York, to be levied and made of their respective goods and chattels, lands and tenements, to the use of said people, if default should be made in the condition following, viz:
    Whereas, the said John was charged, before the undersigned police justice as aforesaid, on the oath of George W.Barnett, with misdemeanor, for having, on the 7th day of July, 1863, in the city and county of New York aforesaid, taken, stolen and carried away from the possession of complainant, two bank bills of the value of ten dollars, property of John Barnett.
    And whereas, he has been brought before said justice to answer said, charge, and upon the examination of the whole matter, pursuant to statute, .it appearing to said justice that said offense has been committed, and that there is probable cause.to believe said accused to be guilty thereof; and the said accused having elected to have his case heard and determined by the Court of Special Sessions in said city and county and the said offense being bailable by said justice, he did thereupon order the said accused to find sufficient bail in the sum of five (5) hundred dollars, for his appearance at the Court of Special Sessions in said city and county, to answer to the complaint preferred against him for said offense.
    Mow, therefore, the condition of this recognizance is such that, if the above named John shall personally appear at the Court of Special Sessions, to be held at the Halls of Justice in said city and county, on the 16th day of July, 1863, to answer to the complaint preferred against him, for said offense, and abide the order of the said court, and not depart therefrom without leave, then this recognizance to be void; otherwise, to remain in full force.
    JOHN RILEY, THEODORE ALLEN.
    Taken and acknowledged before me, ( the day and year aforesaid, J
    Joseph Dowling, Police Justice.

      City and County of New York, ss:

    Theodore Allen, the within named bail, being duly sworn says, that he is a householder in said city, and is worth five (5) hundred dollars, over and above the amount of all his debts and liabilities; and that his property consists of stock of liquor store, at Mo. 79 Mercer street, in said city.
    THEODORE ALLEN.
    Sworn before me, this )
    8th day of July, 1863, f
    Joseph Dowling, Police Justice.

    (D.)
    At a Court of Special Sessions of the peace, holden in and for the city and. county of Mew York, at the Halls of Justice of the said city, on Thursday, the 30th day of July, in the year of our Lord one thousand eight hundred and sixty-three.
    Present—The Honorable Richard Kelly, James H. Welsh and James R. Steers, Justices of the said Court. Police Justices of the city of Mew York. ,

      The People of the State of New York v.

    John Riley.
    On conviction, by the oath of a credible witness, of petit larceny, goods, Sc., of John Barnett.
    Whereupon it is ordered and adjudged by the court, that the said John Riley, for the misdemeanor aforesaid, whereof he is convicted, be imprisoned in the penitentiary of the city of Hew York for the term of six months.
    (A true extract from the minutes.)
    ROBERT H. JOHNSTON, Clerk

      W. F. Howe, for the prisoner.

      A. OaTcey Hall (District Attorney), for the People.
    I. The prisoner demanded a trial at the Special Sessions according to the provisions of the Revised Statutes, and, therefore, that court had exclusive jurisdiction.
    II. . The court had a discretion to send to the General Sessions the complaint for trial, &c., but it refused so to exercise its discretion.
    III. There is no right of appeal when there has been a demand for trial at Special Sessions, and the court properly declined to enter the appeal if demand was made, which does not appear by the return, and only by the petition. (3 R. S., 5th ed., p. 1009, p. 52.)
    IV. These provisions, giving the Special Sessions jurisdiction to try without a jury, are salutary, because thereby the higher courts are kept free for more important cases.
    1. The Constitution provides for trials of petit larceny without a jury.
    . 2. The statute gives a prisoner ■ the right, however, to demand a- trial by jury if he chooses so to do.
    3. When he makes his election, it is binding, subject to an after discretion of the court

      Y. There is nothing in the return or record to show that prisoner below was misled or defrauded of his rights, or that he made his waiver unduly. Therefore, the judgment of the court below should be affirmed.
   By the Court, Leonard, J.

The defendant was- arrested on a charge of petit larceny, and, on being brought before a magistrate, demanded, in writing, to be tried by the Court of Special Sessions. When arraigned afterwards before that court for trial, he insisted upon being tried by the Court of General Sessions, and refused to plead. The Court of Special- Sessions entered a plea of not guilty, and proceeded with the trial; and after hearing the evidence offered by the People, the prisoner still refusing to offer any evidence, or to cross-examine the witnesses who had testified against him, the Court of Special Sessions sentenced the prisoner to the penitentiary for six months. The case is now brought before this court on certiorari for review.

Counsel for the defendant insists that he has been deprived of a trial by jury, in violation of the provisions of the Constitution securing to every person the right of trial by jury in all cases in which it has been heretofore used. (Const, of N. Y., §2.)

Courts of Special Sessions are held, and minor offenses are there tried and judgment rendered without the intervention of a jury.

It is only necessary to refer to the statutes of this State to ascertain that petit larceny, first offense, was triable before the Special Sessions, when the accused demanded such trial, long before the adoption of the present Constitution. (2 R. L., 507, 508.)

While the State of Hew York was still a colony, petit larceny and other offenses under grand larceny were triable before the justices of the quorum, without a jury. This was the law at the time of the Eevolution; and no Constitution of this State has ever interfered with the validity of laws authorizing the trial of offenses of a minor character before the Special Sessions without a jury.

The student is referred, for a more complete history of trials in the Special Sessions without a jury, to the case of Miirphy v. The People (2 Cow. R., 815), and the opinion of Judge Walworth, in the case of Jackson ex dem. Wood v. Wood, to be found in the same volume, in an extended note to the case of Murphy.. The same question .was there raised and fully discussed.

' The statutes of this State do, however, secure to the accused a trial by jury, unless he demands to be tried before the Court of Special Sessions, or omits, for twenty-four hours, to enter into the proper recognizances to entitle him to be discharged from close custody. (3 R. S., 1008, 1009, §§ 48, 49, 5th ed.) And the right to obtain a jury trial is further secured by statute even at the time of trial and sentence, if the prisoner • has not demanded a trial at the Special Sessions. (§ 52.)

. It is quite clear from these provisions that the right to appeal or to demand a trial at the General Sessions, is gone when the accused has demanded in writing a trial at the Special Sessions.

The judgment must be affirmed.


author: By the Court, Clerks, J.

text:
    Supreme Court. New York General Term,
    February, 1863.
    Ingraham, Gierke and Barnard, Justices.
    Albert Uhl, plaintiff in error, v. The People, defendants in error.
    On a trial for murder, the court charged the jury that if they found that the prisoner was justified in defending himself, and carried that protection further than was necessary for his defense, then he was guilty of manslaughter in some one of the four degrees. This, being unexplained by any other part of the charge, was held to be erroneous, inasmuch as it denied to the prisoner the right the law gave him to slay Ms assailant, if he was attacked under such circumstances as furnished him reasonable ground for apprehending a design to take Ms life, or to do him some great personal injury.
    The plaintiff in error was tried in the Hew York General Sessions in December, 1861, for the murder of one Lee, on the 5th of August of that year. The prisoner was barkeeper for Louis Bleyart, at a liquor store kept by him. on the corner of West and Morris streets, in the city of ISTew York. The deceased, in company with several others, came to Bleyart’s place, and had several glasses of liquor, when a difficulty arose in regard to paying for them. During the fracas the prisoner struck one of the party with a club; after this the deceased seized a large pewter pitcher, filled with water and ice, and was in the act of striking the prisoner with it, when the latter drew a pistol and shot the deceased, who soon after died.
    It was proved on the trial that the pitcher was a deadly weapon.
    It was contended that the prisoner acted in self defense, and that the homicide of the deceased was justifiable.
    Among other things, the court below charged the jury that if they found that the prisoner was justified in defending himself, and carried that protection farther than was necessary for his defense, then he is guilty of manslaughter in some of the four degrees.
    To this the prisoner’s counsel excepted.
    The prisoner Was found guilty, and after judgment a writ of error was brought to remove the record to this court.

      Henry L. Clinton, for the plaintiff in error.
    The court below erred in charging, “If you (the jury) find that the prisoner was justified in defending himself, and carried that protection further than was necessary for his defense, then he is guilty of manslaughter in some of the four degrees.”

      William Kelly, a witness for the prosecution, testified that “ Lee (deceased) went over to the bar, and was in the act of taking the pitcher, and hitting defendant, when defendant shot him"

    Another William Kelly, also a witness for the prosecution, • testified that he was an eye witness to the homicide, and that “ to the best of my (his) opinion, he (deceased) 1 hove ’ the pitcher.”

      It should be borne in mind that the principal ground of defense was, that the homicide was justifiable, inasmuch as the prisoner had reasonable ground to believe himself in danger of loss of life, or, in the language of the statute, “ of great personal injury.” (3 R. S., 939, §3, sub. 2, 5th ed.) The prisoner was assailed by the deceased with a deadly weapon. Dr. Morton testified that the pitcher was a deadly weapon, and “it would be likely to kill.”
    In Shorter v. The People (2 Comst., 193), it was held by the Court of Appeals, that where one is assailed under such circumstances as to furnish him reasonable ground for apprehending a design to take away his life, or do him some great bodily harm, the law gives the party assailed the right, in his own defense, to slay his assailant, even though, in the language of Justice Bronson (p. 197), “it may afterwards turn out that the appearances were false, and there was, in fact, neither design to do him serious injury, nor danger that it would be done.”
    This doctrine was reaffirmed by the Court of Appeals, in the case of The People v. Sullivan (3 Seld. R., 396). The court, per Johnson, J., say: “ It was contended on the argument that this charge required the jury to find whether imminent danger actually existed, and not merely whether Sullivan had reasonable ground to believe that it existed. If this construction of the charge was correct, the case of Shorter v. The People (2 Comst. R., 197), would show it to be erroneous ; but we do not so understand the charge.”
    It will be perceived that the test is, whether the prisoner “ had reasonable ground to believe ” himself in danger of great bodily harm, or loss of life, and not whether such “ danger actually existed.”
    The charge of the city judge, in the case at bar, was directly in violation of the two decisions of the Court of Appeals above cited. The city judge charged, that if the prisoner “ carried that protection (self defense) farther than was necessary for his defense, then he is (was) guilty of manslaughter,” thus charging that unless the danger “ actually ” existed, the prisoner should be deprived of his defense, which, if sustained by the evidence (and that was a question of fact for the jury), would entitle him to an acquittal.

      A. Oakey Sail (District Attorney), for defendants in error.
    The theory of the defense being that the homicide was committed in self defense, the charges of the judge conformed to the law relating to justifiable homicide, as established by the Court of Appeals. (People v. Shorter, 2 N. Y. R. [2 Comst.], 193; Whart. Cr. L., §§ 1020, 1021.)
   By the Court, Clerks, J.

The exceptions taken by the prisoner’s counsel to .the evidence are untenable; but I think the exception to the judge’s charge is well taken. The language of the charge is: “If you (the jury) find that the prisoner was justified in defending himself, and carried that protection further than was necessary for his defense, then he is guilty of manslaughter in some (meaning some one) of the four degrees.” This is a positive and unqualified instruction to the jury on a relevant and important point. I do not find it limited, qualified or explained in any other part of the charge. It tells the jury, in substance, that they have to determine whether, at the time of the fatal blow, the prisoner carried the means of defending himself further than was necessary for his defense. But this is not the question for the jury, but whether the prisoner was assailed under such circumstances as to furnish him reasonable ground for apprehending a design to take away his life. (See Shorter v. The People, 2 Comst. R., 193.) The question, I repeat, is, whether the prisoner had reasonable ground to believe himself in danger of great bodily harm or loss of life, and not whether such danger actually existed.

The judgment should be reversed, and a new trial ordered.

Barnard, J., dissented.

Judgment reversed, and new- trial ordered.