
    The People of the State of New York, Respondent, v. William O’Connor, Appellant.
    
      Policeman charged, with an assault—summing up by the district attorney —a statement as to the New York police force “ It out Bevery's Bevery ” held to be a mere figure of speech—expression by the court as to the credibility of witnesses.
    
    Upon the trial of an indictment charging the defendant, a policeman in the city of New York, with having, while in citizen’s clothes, committed the crime of assault in the first degree by shooting a man on the street, the People offered evidence tending to show that the defendant was arrested immediately after the shooting, and that before the police learned that he was a policeman they treated him very unceremoniously; that upon learning that fact their attitude towards him changed; that he was taken to a station house and placed in a waiting room thereof instead of in a cell; that no charge was made against him, and that after he had remained in the waiting room three-quarters of an hour he was taken to the desk where he preferred a charge of assault against the man whom he had shot.
    The district attorney, in commenting upon the changed attitude of the police towards the defendant on discovering that he was an officer, said, “ Gentlemen, I tell you that that is a scene for comic opera, not for the great city of New York. It out Devery’s Devery.”
    The court, upon the defendant objecting to this remark, stated that perhaps Devery had nothing to do with it and that it was highly improper for the dis- . trict’attorney to inject Devery into the case, and instructed the latter to refrain from any such comments:
    
      Held, that the remark of the district attorney was a mere figure of speech and did not constitute prejudicial error.
    Where, upon such a trial, it appears that the testimony of the witnesses for the People and that of the defendant’s witnesses is conflicting and no theory consistent with the honesty and truthfulness of all the witnesses is suggested or apparent upon which the conflicting testimony can be reconciled, it is not improper for the court to charge, “The two stories in some respects are diametrically opposite, and I do not think that I would be uncharitable when I say that somebody has willfully falsified in the case. All the witnesses have not told the truth, for they differ too much for that, and it seems to me that it would be more than charitable to say that some have not willfully prevaricated.” Semlle, that it is ordinarily improper for the trial judge to give expression to his views as to the credibility of witnesses.
    Appeal by the defendant, William O’Connor, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, entered on the 12th day of November, 1901, convicting the defendant of the crime of assault in the first degree; also from an order entered on the 14th day of April, 1902, denying the defendant’s motion for a new trial upon the ground of newly-discovered evidence, and also from an order entered on the 1th day of May, 1902, denying the defendant’s motion for a resettlement of said order denying the motion for a new trial.
    The alleged assault occurred February 16, 1901, and the indictment charges in two separate counts an assault in the first and second degree respectively. The defendant pleaded not guilty and was brought to trial October 28, 1901.
    In opening the case to the jury the assistant district attorney who conducted the prosecution, stated that the case was not moved at that time because of the then pending “ momentous political struggle,” but because of the “ strenuous efforts ” to delay it “ until after the first of January probably.” Counsel for the defendant interrupted and denied any attempt on the part of the defendant to inject politics into the case or any effort to delay it, and asserted a desire to have the case tried on the facts only; whereupon the court declared that the case would be tried on the evidence only. The assistant district attorney then stated that when the assault occurred the defendant was in citizen’s clothes and that the police who were attracted to the scene did not recognize him as a patrolman at first nor until he had been taken over to a saloon across the street on the southeasterly corner of Fifteenth street and Seventh avenue and laid upon the floor, but that as soon as it became known that he was an “ officer ” he was put on a chair and bolstered up, and the “ Police Department of the City of New York have been bolstering him up ever since.” Defendant’s counsel again interrupted with an objection to this statement, whereupon the court directed counsel for the People to “ keep within the bounds of the opening,” and said that the statements could not be proved and should not have been made. Counsel for the People replied that he intended to prove the statement. No exception was taken and no request to instruct the jury concerning these matters was made.
    The People gave evidence tending to show that shortly after midnight on the morning of February 16, 1901, the complaining witness, Lorenzo D. Cummings, popularly known as “ Dad ” Cummings, a man over eighty years of age, left Slavin’s saloon or hotel on the southwest corner of Fourteenth street and Seventh avenue, and proceeded north on the westerly side of the avenue on the way to his home at 162 West Fifteenth street; that when about midway between Fourteenth and Fifteenth streets the defendant, who evidently came up from behind, seized him by the collar and whirled him around; that he told the defendant to let go, but the defendant said nothing; that he pushed defendant’s hand off and started on, whereupon defendant again seized him violently and whirled him around; that. he remonstrated, but that defendant still remained mute; that he again pushed off defendant’s hand ; that defendant then struck him on the side of the head, knocking his cigarholder out of his mouth and his hat off; that he stepped back, and defendant attempted to strike him again, whereupon he hit defendant across the face with a light malacca cane with which he was walking, and which was exhibited to the jury; that each then stepped back from the other, and the defendant drew a pistol and fired three or four shots at Cummings, one of which struck him a little below the heart and passed directly through the body to the back, where it lodged; another struck him on the elbow and passed up his arm, and lodged somewhere at the back of the upper arm or shoulder ; that the defendant then started to run, but slipped and fell, and an officer came up and took the pistol away from him ; that Cummings then started' across the street and fell unconscious on the opposite sidewalk, his. cane having broken as he fell; that he was taken into the saloon into which the defendant was taken, and, after regaining consciousness, he recognized the defendant as the man who shot him; that defendant was then, or soon after, recognized as a policeman off duty and in citizen’s clothes; that Cummings was taken to a hospital, and the defendant, who was extremely intoxicated, was taken to the station house and into a waiting room in the rear, where the injuries which he had received were dressed, and he was then taken to the desk and made a charge of assault against. Cummings. The physician who examined him in the waiting room testified that the only injury or bruise on his face was a flesh wound or cut on the left eyebrow. There was evidence from which, if believed, it might be inferred that the officer who took the pistol from defendant struck him with his club. There was also evidence tending 'to show that the police handled the defendant unceremoniously, and laid him on the floor of the saloon with his head on the bar foot-rail before he was known to be an officer, and that afterwards he was placed upon a chair.
    The defendant testified in his own behalf and called other witnesses, who, if believed, corroborate his version of the affair. The evidence on behalf of the defendant tended to show that he was a policeman attached to the eighteenth precinct, generally known as the “ Steamboat Squad ; ” that he lived at 97 Seventh avenue, which was at or near the corner of Fifteenth street; that he had to report for duty at one o’clock; that he would have to leave his house at twenty-two or twenty-three minutes before one in order to get to his station house at the Battery by one o’clock; that he was in citizen’s clothes and sober; that he got off a crosstown car at the corner of Fourteenth street and Seventh avenue and walked rapidly along the west side of the avenue towards his house; that as he approached the corner of Fifteenth street he overtook five or six men walking abreast and taking up nearly the whole sidewalk; that as he passed them he was near the curb and hit against the old man, Cummings; that he turned around and tried to excuse himself; that the old man struck him with his stick on the left forehead, knocking him down; that as he fell he struck the back of his head on the paving stones, becoming unconscious for a few moments; that as he came to he found the whole crowd kicking and beating him; that he caught one man by the coat and tried to get up, but was knocked down again; that he drew his revolver and fired in the air to attract attention, but not to hit anybody; that the next thing he knew a policeman had him by the hand, and that he told the policeman he had been assaulted by a' “ gang; ” that he was taken to the saloon and stood up in front of Cummings, who said that defendant was the man that shot him. Defendant further testified that he was injured in a number of respects besides the cut on his left forehead.
    The defendant’s pistol was produced in court. It was a five-chambered revolver. The officer who took it from the defendant testified that the defendant held it in his hand and that one loaded cartridge and three or four empty shells were in it when he took it.
    The People also introduced evidence tending to show that some time after the occurrence the defendant admitted that he had been drinking and knew nothing about what took place, and was willing to settle with Cummings, and suggested the payment of $800. This evidence was received without objection or exception, but evidence was offered by the defendant tending to refute it.
    In rebuttal, Cummings testified that he was alone, and that he saw no one else on the block at the time of the occurrence.
    At the close of the evidence the defendant’s counsel asked that the court direct an acquittal; also that the court take away from the jury the first count in the indictment, for assault in the first degree. Both motions were denied and exceptions taken.
    In summing up, counsel for the People commented on the change of attitude of the police on discovering that defendant was an officer, and in taking him to the station house but not charging him with a crime, taking him into a room and, after three-quarters of an hour when he became well enough, walking him out in front of the desk as a complainant against old Mr. Cummings, whom he had shot. He then continued: “ Gentlemen, I tell you that that is a scene for comic opera, not for the great city of New York. It out Devery’s Devery.” Counsel for ' defendant objected, asserting that it was an improper remark, in the midst of a political campaign, and asked that the court take notice of it. The court stated that perhaps Devery had nothing to do with it, and agreed with counsel for the defendant that it was highly improper- for the district attorney • to inject “ him (Devery) into this case,” and directed him to “ refrain from any such comments.”
    The exceptions and alleged errors relating to the charge will be stated and discussed in the opinion.
    
      Bartow S. Weeks, for the appellant.
    . Howard 8. Bans, for the respondent.
   Laughxim, J. :

The appellant contends that the conduct of the assistant district attorney upon the trial was seriously prejudicial to him and requires a reversal'of his conviction. This claim is based upon the. remark in the opening and summing up, the substance of which is stated in the statement of facts. The remarks' concerning efforts to delay the trial and with reference to the pending election indicate that they were said in response to something said by counsel for the defendant in moving the case or during the examination of the jurors; but this does not appear. However, no exception was taken, and this incident affords no basis for a new trial.

There was evidence tending to show a material change in the attitude of the police officers, who had knowledge' of the facts on the night of the shooting, after they discovered t'hat the defendant was a fellow-officer. This not only justified, but fairly called for comment from the prosecuting officer, to enable the jury to. determine the value of their testimony. Perhaps it did not, however, justify the statement that the police department had been bolstering the defendant up; but this was made in connection with the statement of facts as to what the defendant’s fellow-officers did at the. time of his arrest, and we think that the jury must have understood that it related to the conduct of the members of the force who were witnesses for the defendant, and not to the entire department. The district attorney as a prosecuting officer is entitled to some degree of license in commenting upon the testimony of witnesses- and the attitude and nature of the defense as disclosed by the evidence. As has been observed, there was evidence which would justify a finding that there was a marked change in the attitude of the members of the force who were present on discovering that the defendant was an officer; and shortly thereafter the defendant, who had been arrested for committing the shooting, became the aggrieved party and complainant against Cummings, whom he had shot. We discover no error prejudicial to any right of the defendant in the assistant district attorney saying to the jury, in substance, that in his opinion this was a scene appropriate for the stage, but that such things should not be permitted in real life in the city of New York. There was no charge that Devery was connected with or interested in the defense, and nothing was said to indicate that he was. He was a public character, and the press had given considerable attention to his methods while connected with the police force. The reference to him was a mere figure of speech used in commenting on the conduct of the defendant and his brother officers, and presents no error.

The defendant .also contends that the first count of the indictment, charging assault in the first degree, should have been taken from the jury. There was evidence from which the jury might infer that the shooting was with intent to kill; and this would constitute the crime of assault in the first degree. (Penal Code, § 217.)

The defendant also contends that an acquittal should have been directed and that the evidence does not warrant his conviction. We are of the opinion that the guilt of the defendant was clearly established, and that a verdict of not guilty would have been a miscarriage of justice. His story, although corroborated, is utterly impro bable and is contradicted by the uncontroverted physical facts. Even if he had been assaulted as he claimed, there was no justification or excuse for his emptying four chambers of the revolver upon his assailants, most of whom—if they were there at all — disappeared on the first shot being fired, on the theory that it was intended to frighten them away. It would have been extremely difficult, even in daylight and by special effort, for Cummings to get in a position over the prostrate form of the defendant which would enable the latter to fire a bullet through the body of the former1 as shown by the evidence; and it is utterly incredible that this could, have occurred with the defendant in that position, while the octogenarian was striking or attempting to strike him with his cañé. It-"is extremely improbable that the defendant, a young, strong, hardened, athletic man, could have been knocked down by a blow of this light cane wielded by an old man. The evidence shows beyond any reasonable doubt that the defendant was intoxicated and ugly,, and fired these shots while in a standing attitude and without any cause or provocation.

If his guilt were not so satisfactorily established, there are exceptions in the case which would justify a new trial; but we think the1 defendant was not prejudiced by the errors which are more technical than substantial.

It is claimed that the court in charging the jury cast the burden of proof upon the defendant of showing that the shooting was legally justified or excusable. There are portions of the charge in. Which the court was discussing the defendant’s evidence and theory,, which, if taken alone, afford ground for this criticism; but the court; subsequently fairly and accurately charged the jury as to what constituted a reasonable.doubt, and instructed them that if upon all the evidence they had a reasonable doubt of the defendant’s guilt, he was entitled to the benefit of that doubt and should be acquitted and further, at the request of the counsel for the defendant, that- “ all through the case the burden of proof is on ' the prosecution,” and- that “ through the casé the defendant has the presumption of •innocence, and carries it with him all through the trial,” and “that' z the presumption of the innocence must be overcome beyond a reasonable doubt.” We are, therefore, of the opinion that the jury understood the law,- and that no error to the substantial prejudice of the appellant was committed in this regard.

The court, after adverting to the testimony of Cummings and submitting his credibility to the jury, said, “ If you come to the conclusion that Mr. Cummings is not worthy of belief, that his story is. a fabrication and that he has not told the truth, then take up the defendant’s version of the case.” The court then alluded to the evidence given by the defendant and his witnesses. At the close of the charge, counsel for the defendant said he desired to except to so much of the charge as “ might seem to indicate that the jury were not to consider the testimony of the defendant’s witnesses or of the defendant until after they had reached the conclusion that the complainant’s story was untrue,” whereupon the court remarked, “ I have not made any such charge, and I do not think the jury understand me as making any such charge.” Counsel for the defendant then said, “We so understood your Honor’s language to run, I think; ” to which the court replied, “ No. I told them to determine the truth of either story by all the evidence.” We think the error in the main charge was inadvertent, and was corrected by what the court subsequently said, and if the defendant desired any more specific charge on the subject his counsel should have requested it.

The court said to the jury, in contrasting the testimony of the People with that of the defendant and his witnesses: “ The two stories in some respects are diametrically opposite, and I do not think that I would be uncharitable when I say that, somebody has willfully falsified in the case. All the witnesses have not told the truth, for they differ too much for that, and it seems to me that it would be more than charitable to say that some have not willfully prevaricated.” This was a mere expression of opinion by the court, and was not a controlling direction. The jury were still at liberty to reconcile the testimony consistent with the truth of the witnesses, if that were possible. While it is ordinarily improper for the court to give expression to personal views as to the credibility of witnesses, we think no harm was done in this case, for no theory was suggested and none is apparent upon which the conflicting testimony could be reconciled consistent with the honesty and truthfulness of all the witnesses.

Counsel for the defendant requested the court to charge that “ if the defendant, while on the ground, after having been struck by the complainant, fired his revolver to attract attention, with no intention of hitting the complainant, and that the hitting of the complainant was a mere accident, the defendant is entitled to an acquittal.” The court had in the main charge read to the jury both sections 26 and 205 of the Penal Code, and fully and properly instructed them concerning the right of self-defense, and, upon this request being made, said that excusable assault had not been defined to the jury because the court did not understand that the defendant made that claim, and supposed that the defendant’s contention was that the assault was justifiable. Then, evidently paraphrasing section 203 of the Penal Code, the court said to the jury: “An assault is excusable when committed by accident and misfortune, in doing any lawful act, by lawful means, with ordinary caution and without any unlawful intent.” Counsel for the defendant did not except to the omission of the court to charge as requested, but excepted to this charge ás made, and requested the court to charge “that the use or attempted use of force or violence upon or towards the person of another is not unlawful when it is necessarily committed by a public officer on the performance of a legal duty, or when necessarily committed by any person in arresting one Who has committed a felony, or when committed either by the' person about to be injured of by another person in his aid or defense, in preventing or attempting to prevent ah offense against his person or a trespass or other unlawful interference with his person or property.” The court inquired whether counsel for the defendant was reading from the Code, and on receiving an answer in the affirmative, said: “I do not intend to charge all the law in the Code. Excepting as I have already charged, I decline to charge. That which you read is good law, of course, but excepting as I have already charged, I decline to charge that proposition.” There is no evidence that the defendant was acting as a public officer in the performance of a legal duty when he shot the complainant, or that he was attempting to arrest any one who had committed a felony, or that he was aiding another person about to be injured in his person or property, or that he himself was resisting an offense against his property rights; Consequently, for the most part, the request had no application to the facts of the case; and the court evidently declined making it upon this ground, at the same time informing the jury that it was the law. We think the jury would understand from the instructions previously given that the defendant was not guilty if he shot the complainant in preventing or attempting to prevent an assault upon himself and that the shooting was necessary to prevent such offense against his person. If counsel for the defendant deemed that that was not made, clear to the jury, he should have made a specific request to that effect under subdivision 3 of section -223 of the Penal Code, which he must have understood from the remarks of the court would have been granted.

Counsel for the defendant then requested the court to charge that “ if the only purpose of the defendant in firing his revolver was to attract attention or to call or summon the police, and in so doing one or more of the shots hit the complainant, that without any intent on the part of the defendant the shots struck the complainant, he is not guilty of any offense.” Whereupon the court repeated the charge previously made as to what constituted an excusable assault and declined to charge the request, to which the defendant took an " exception. This request eliminated entirely the prerequisite that the act was done to prevent an offense against the person of the defendant, and that the force or violence used was not more than sufficient to prevent such offense; and consequently the refusal to charge it constituted no error.

We are also of opinion that the motion for a new trial on the ground of newly-discovered evidence was properly denied. It was not satisfactorily shown, that it could not have been produced upon the trial with due diligence ; and we do not think.it would have changed the verdict had it been presented.

It follows that the judgment should be affirmed.

Van Brunt, P. J., and McLaughlin, J., concurred; O’Brien and Ingraham, JJ., concurred in result.

Judgment affirmed.  