
    The People of the State of New York, Respondent, v. Myrtle C. Byars, Appellant.
    Third Department,
    May 3, 1950.
    
      
      Ralph S. Cramer, District Attorney, for respondent.
    
      J. R. Hoover for appellant.
   Heffernan, J.

Defendant was indicted by the Grand Jury of Chemung County for the crime of murder in the second degree. The indictment charged that on the 14th day of August, 1948, she shot and killed her husband with a .22 caliber rifle.

After a trial in the Chemung County Court she was convicted of the crime of manslaughter in the second degree and was thereupon sentenced to be confined in the State prison for women at Bedford Hills for a term of not less than five years nor more than ten years.

Thereafter defendant obtained a certificate of reasonable doubt from Mr. Justice Heath and was enlarged on bail. From the judgment of conviction she has come to this court.

The record before us presents a sordid picture. Defendant and deceased intermarried at Ottawa, Kansas, in 1940. After residing there for several years they removed to this State and after living at various places they finally located in Chemung County.

During their marital career the conduct of deceased toward defendant was most reprehensible. For practically the entire time he was addicted to the excessive use of intoxicating liquors. Rarely indeed, was he temperate. When he abstained from intoxicants defendant said: “ He was grand. He was just like a husband should be.” In his drunken orgies he was the personification of viciousness and brutality. In his fits of rage he not only tortured defendant mentally but frequently assaulted her violently. Again and again he threatened her life. Not content merely with resorting to threats on several occasions he attempted to execute them. No one reading this record can escape the conviction that during his periods of debauchery this wife lived in mortal fear of her husband.

On the evening of the homicide defendant and deceased were invited to the home of mutual friends and the invitation was accepted. Before, during and after the social call, deceased consumed large quantities of alcohol. Upon returning to their home defendant was preparing to retire. She was disrobing in the bathroom and without warning deceased entered that room and said: I am going to close your mouth for good.” Whereupon he struck her a violent blow on the head which knocked her into an adjoining closet. The rifle in question was in this closet. Defendant in her frenzied and distraught condition picked up the weapon and meanwhile decedent had gone to the kitchen. When she left the bathroom with the gun in her hand and while standing at the kitchen door she testified deceased made a motion to strike her either with a beer bottle or some other object and she said: “ I just fired the gun and I don’t remember anything else. I thought he” was going to kill me.” Surely defendant at that time had every reason to believe that she was in grave danger of injury or death at the hands of decedent.

Defendant made no attempt to conceal or cover up the fatal occurrence. She immediately called for assistance and a physician and the State police were summoned. The doctor testified that when he arrived on the scene defendant was extremely emotional, crying a great deal and upset.” Instead of promptly arraigning her before a magistrate and permitting her to secure counsel defendant was interrogated by the police authorities for many hours continuously at the conclusion of which they obtained from her a written statement describing in detail the events which we have sketched and which substantially accords with her testimony at the trial.

In submitting the ease to the jury the court correctly defined murder in the second degree and manslaughter in the first and second degrees and also excusable and justifiable homicide.

In discussing the elements of justifiable homicide we think the court erred as a matter of law to the prejudice of defendant and thereby misled the jury. In its instructions on this subject the court said: “ Before a party can justify the taking of life in self defense, he must show that there was reasonable ground for believing he was in great peril; that the hilling was necessary for his escape, and that no other safe means was open to Mm. * * * If you find that the killing was necessary under all the circumstances of the case as I have instructed you, you may find that she killed in self defense and she should be acquitted, but if that necessity is lacking, if any other safe means were open to her, she cannot justify the taking of her husband’s life in self defense.” (Italics supplied.) Defendant’s counsel requested the court to charge that “ there was no duty on the part of this defendant to avail herself of any avenue of escape, if such there should be.” The court refused to so charge and defendant excepted.

That the jury was confused by the court’s charge and its refusal to accede to defendant’s quoted request is apparent from what subsequently happened. After considering the case for six hours the jury returned for further instructions on the subject of self defense. In response to the request the court said: Before a party can justify the taking of life in self defense, he must show that there was reasonable ground for believing he was in great peril; that the hilling was necessary for his escape, and that no other safe means was open to him. When one believes himself about to be attacked by another, and to receive great bodily injury, it is his duty to avoid the attack if in his power to do so, and the right of attack for the purpose of self defense does not arise until he has done everytMng in his power to avoid its necessity. So in considering her danger, was the danger so imminent that the hilling was necessary for her escape, and no other safe means were open to her? If you find that the Mlling was necessary under all the circumstances of the case as I have instructed you, you may find that she Mlled in self defense and she should be acquitted, but if that necessity is lacking, if any other safe means were open to her, she cannot justify the taking of her husband’s life in self defense.” (Italics supplied.) What the court meant by the phrase that the killing was necessary for her escape ” must remain a mystery. There was no duty on the part of defendant to flee from her own home. She was justified in believing that she was in imminent danger. Under such circumstances she had a lawful right to defend herself (People v. Tomlins, 213 N. Y. 240).

We are also convinced that the court seriously erred in its charge on the subject of good character. Defendant called many witnesses who testified to her good character. The prosecution made no attempt to impeach or contradict them. In its •main charge in commenting on this aspect of the case the court said: The defendant has introduced evidence tending to show the good character of the defendant for truth and veracity. If, in the present case, the good character of the defendant in this respect is proved to your satisfaction, then such fact is to be kept in view by you in all your deliberations, and it is to be considered by you in connection with the other facts in the case; and if after a consideration of all the evidence in the case, including that bearing upon the good character of the defendant, the jury entertain a reasonable doubt as to defendant’s guilt, then I charge you it is your duty to acquit here. ’ ’

Evidently the jury failed to comprehend what the court meant to convey by the language which it used, because when its members returned for further enlightenment on this subject the court repeated the portion of the charge which we have quoted and then made this statement: “ That does not mean that you can take good character by itself and eliminate all other evidence as if there were no other evidence, but it means that standing by itself it is sufficient to raise a reasonable doubt, if you believe it.” (Italics supplied.)

The following colloquy between the court and the District Attorney then occurred.

‘ ‘ By Mr. Reynolds: I am not sure, your honor, that the right instruction has been given as to character evidence. The last sentence that you gave was to the effect that good character standing alone was sufficient to warrant the jury in acquitting her on that ground. I am sure that is not what you meant.

“ By the Court: Taken with all the other evidence in the case. That is what I have said two or three times and I thought it was clear.

“By Mr. Reynolds: You ended up saying good character was sufficient for acquittal, but you didn’t mean that.

“ By the court: No, taking all the evidence into consideration.” (Italics supplied.)

Bearing in mind the charge of the court in connection with its responses to the contentions of the District Attorney, the jurors would have to be endowed with the gift of divination to understand just what weight they should give to the evidence on the question of defendant’s good character. Evidence of good character is a matter of substance, not of form, in criminal cases, and must be considered by the jury as bearing upon the issue of guilt, even when the evidence against the defendant may be very convincing (People v. Colantone, 243 N. Y. 134).

The jury should have been told in plain and concise language that when the evidence of good character raises a reasonable doubt as to the guilt of a person accused of crime she is entitled to an acquittal although without such evidence no doubt as to her guilt would exist (People v. Conrow, 200 N. Y. 356). Under the facts in this record the jury, if properly instructed, might very well give the defendant the benefit of the presumption of innocence that arises from good character, no matter how conclusive the other testimony appeared to be.

Defendant’s counsel has made no assignment of error in respect to the court’s charge on this subject nor did he except thereto. The absence of an exception is not fatal. Under our broad powers of review we may grant a new trial when satisfied that the verdict is against the evidence on the law or that justice requires it whether any exception shall have been taken in the court below or not (Code Crim. Pro., § 527; People v. Viscio, 241 App. Div. 499).

The judgment appealed from should be reversed on the law and facts and a new trial granted.

Brewster, J.

(dissenting). The primary facts which brought about the conviction are not in dispute. That defendant shot and killed her husband with a .22 caliber rifle while they were alone in their home on the evening of August 14, 1948, was freely admitted by the defendant and clearly proven.

The immediate circumstances which led to the homicide were related by the defendant herself on two occasions shortly after its commission and before her arrest. There are no serious contradictions between her two recitals or between them and her testimony at the trial. No issue is raised as to the admissibility of her statements, and the law applicable to their competency and probative effect was correctly declared to the jury, and in such manner that there neither is nor can be any complaint about that matter. The defendant, at the trial, in effect, admitted the voluntary character of her prior statements. Those statements and her testimony at the trial are replete with recitals concerning the unfortunate drinking habits of the deceased resulting in alcoholism, and of the discomfitures and sufferings they had occasioned her. These recitals covered their marital history as well as the incidents which shortly preceded and precipitated her homicidal act. Defendant’s statements made prior to her arrest and her amplifications thereof at the trial, present the deceased with a Jekyll and Hyde characterization; as an alcoholic who, when in that character, ofttimes misbehaved, plagued and abused her in divers ways, but when sober she was wholly contented with him. The evidence is that with the exception of one brief interval she had never found it necessary or desirable to interrupt their marital relationship although she was continuously capable of self-support and partly self-supporting. The history of her marital life, covering a period of some eight years, as detailed in her voluntary statements, shows no instance of an attempt upon the part of deceased to kill or seriously harm her.

In the afternoon and evening of the homicide deceased was somewhat intoxicated. Earlier that evening they paid a social visit at the home of mutual friends. While there unpleasantness ensued. A prior quarrel which had arisen a few hours before, continued and was augmented by deceased’s misbehavior. Upon their return home the defendant insisted upon retiring for the night. Deceased, having had no food that evening, repeatedly requested that defendant prepare some and she refused. The quarreling, provoked by the deceased and participated in by his wife, continued. During its progress defendant’s testimony is that the deceased struck her with his hand while she was in the bathroom preparing to retire and knocked her from off a stool and to the floor. Admittedly he then left her, went out from the bathroom, then through another room and into their kitchen where he sat down in a chair at a table, and he was in that place and position, with a bottle of beer before him, when the defendant, having possessed herself of the loaded rifle, came to the kitchen doorway and shot him in the back. In her first statement she answered as follows:

Q. When you fired the gun where was your husband? A. He was sitting there at the table in the kitchen.” And as to that there has been no denial by her.

In my opinion the proof overwhelmingly supports the verdict and would have, supported one for the higher crime charged. Defendant’s lethal weapon was a bolt action rifle. It had been stored away with other things in a cupboard closet off the bathroom. The bolt had to be manipulated in order for the weapon to be loaded for firing and to be reloaded after each shot. The evidence is ample that at the time in question the defendant fired it at her husband three times, one of which shots killed him. She admitted firing three times, and this was corroborated by the two bullet holes in the wall of the kitchen and the finding of three empty cartridge shells on the floor in the dining room. There is ample evidence that after she possessed herself of the rifle by sorting it out and taking it from the cupboard closet off the bathroom, that she loaded it from a box of loaded cartridges kept in a drawer in the dining room.

It seems to me that the argument that the verdict was against the evidence is a mere plea that the jury should somehow have exonerated her from any crime because of her prior treatment by the deceased, and of her upset condition at the time she committed her murderous act.

Speaking of the charge generally, it seems to me that it may not be read without receiving an impression of its utter fairness both to the People and to the defendant. It was orderly arranged, fully extensive in covering all of the defendant’s rights and so plainly and simply phrased as to admirably instruct the jury in what I consider to be all the applicable rules of law.

Appellant’s real contention comes down to that part of the charge which related to justifiable homicide. There her counsel takes an excerpt from Judge Cabdozo’s opinion in People v. Tomlins (213 N. Y. 240) and by an endeavor to make its application to this case render the charge erroneous in its treatment of the law as to justifiable homicide. The excerpt relied upon stems from the premise of one being attached in his own home: In such a case he may lawfully stand Ms ground in self defense — he is not obliged to leave his home when thus attacked and seek shelter elsewhere. There is no evidence in this case that when defendant possessed herself of the loaded rifle and went to the kitchen doorway and shot her husband, she was under any attack by Mm. Thus the trial court in its main charge did not specifically state the rule as embodied in the excerpt from the Tomlins case (supra), and earlier authorities. The evidence here all points to the fact that at the time of the homicide the very worst that confronted the security of the defendant was an apprehension on her part that her husband might resume his prior misbehavior toward her. But this apprehension, under any view of the evidence, could have come to her only during an appreciable interim wherein their quarreling had ceased and when they were separate and apart and in different rooms in the house — she in the bathroom and he out in the kitchen. Thus the rule relied upon from the Tomlins case (supra) seems to me to have been without any evidence which brought forth its relevancy or application. Bather, it was a further rule therein stated, which applied to the factual situation, viz.: “A man who is himself the aggressor or who needlessly resumes the fight, gains no immumty because he kills in Ms own dwelling.” (People v. Tomlins, supra, p. 245.) In no possible view of the evidence did defendant commit her homicidal act in ‘ ‘ actual resistance ” of an attack upon her by deceased. (Penal Law, § 1055, second par., el. 2.j At the time she prepared for her act and when she executed it, any possible apprehension by her of a design by her husband to do her great personal injury was, under any view of the evidence, unaccompanied by such a then imminent danger of the accomplishment of that design (Penal Law, § 1055, second par., cl. 1), as to call forth an express charge as to her freedom from the duty of avoidance of further conflict. Therefore, the charge as given upon justifiable homicide had, I believe, complete sanction in People v. Constantino (153 N. Y. 24, 31-32) and in People v. Kennedy (159 N. Y. 346, 348-349). Thus it is that I feel no error was committed by the omission in the main charge to specifically instruct the jury as to one’s freedom from duty to retreat or escape when in danger of attack in his own home. However, I believe all contention about this matter should fail when it is noted that defendant’s counsel requested such a charge and that such a charge was given; and again where, after the jury had asked for further instructions and defendant’s counsel referred to the matter by saying, “ It was not made clear that the defendant was under no duty to retire or flee from her home ”, the court said, “ I will make that clear now, and I will charge accordingly, as I did originally.” There referring, of course, to the granting of the request to charge in that particular.

It thus appears to me that the real point urged by appellant is the omission of a rule of law from the main charge which was expressly given later by the request of counsel and a rule to which, it seems to me, the defendant was not entitled.

In my view of the matter the trial court correctly charged the law as to the evidence of defendant’s good character. There is no rule of law of which I am aware that the probative effect of such evidence is to be exclusively considered. I regard as nonprejudicial and inconsequential any defect in the charge upon evidence of good character as founded upon the colloquy between the District Attorney and the court. Here the defendant had admitted her homicide.

The judgment of conviction should be affirmed.

Postee, P. J., Beegan and Coon, JJ., concur with Heeeeeetae-, J.; Bbewsteb, J., dissents, in an opinion.

Judgment appealed from reversed, on the law and facts, and a new trial granted.  