
    People v. Hill.
    
      (Supreme Court, General Term, Fourth Department.
    
    September, 1892.)
    1. Homicide—J ustification—Instructions.
    An instruction requiring a justification of homicide to be established beyond & reasonable doubt is erroneous, nor is the error cured by a correct instruction elsewhere in the charge.
    2. Criminal Law—Evidence at Former Trial—Death of Witness.
    Evidence of a witness in a former trial of a criminal case is admissible in a second trial, on proof of the death of such witness.
    Appeal from court of sessions, Delaware county.
    Indictment against Samuel P. Hill for murder in the second degree. Judgment of conviction, from which, and an order denying a motion for a new trial, defendant appeals. Reversed.
    It appears, by the statement of facts contained in the appellant’s brief, that he was indicted by the grand jury of Delaware county for murder in the second degree, for having killed one Robert Peasley on the 10th day of September, 1886, at the town of Sidney, in that county. To this indictment the defendant pleaded not guilty. His defense was justifiable homicide. He was subsequently tried at the Delaware sessions in March, 1887. The jury rendered a verdict of guilty of manslaughter in the second degree. The court thereupon sentenced the defendant to 10 years’ imprisonment in the state prison at Auburn. From the judgment of conviction the defendant appealed to the general term of the supreme court. The general term reversed the judgment, and granted a new trial. 3 N. Y. Supp. 564. The judgment of reversal was entered in Delaware county clerk’s office, January 8,1889. The people appealed from that judgment to the court of appeals, which affirmed the judgment of the general term. 23 N. E. Rep. 1143. Subsequently the action was sent to the oyer and terminer. The case was again tried, in the oyer and terminer, in September, 1890. The trial resulted in a verdict against the defendant of manslaughter in the second degree, and he was sentenced to imprisonment in the state prison at Auburn for the term of five years and two months. On the last trial the defendant added to his plea of not guilty the further plea of the former acquittal. The record discloses that the defendant moved for a new trial upon all the grounds mentioned in section 465 of the Code of Criminal Procedure, and especially (1) upon the ground that the court had misdirected the jury in matters of law to which the defendant had excepted; (2) on the ground that the verdict was contrary to the evidence; (3) on the ground that the verdict was clearly against the weight of evidence. This motion was denied. From the judgment and the order denying the motion for a new trial the appellant appealed to this court.
    Argued before Hardin, P. J., and Martin and Merwin, JJ.
    
      James R. Baumes, for appellant. John P. Grant, for respondent.
   Martin, J.

The material issue in this case was whether the defendant killed Robert Peasley under such circumstances as to constitute a crime, or whether such killing was justifiable. That being the principal issue in the case, the court charged: “If you shall believe that the defendant was justified in this attack, and I mean by that if you shall tie convinced by the evidence beyond reasonable doubt that he was justified in it, then your verdict shall be, ‘FTot guilty.’ ” Thus the court, in effect, instructed the jury, not only that the defendant must justify his attack, thereby casting the burden of proof upon him, but that he must bear such burden to the extent of establishing such justification beyond a reasonable doubt. Manifestly, this was error. Stokes v. People, 53 N. Y. 177; People v. Downs, 123 N. Y. 558, 25 N. E. Rep. 988; People v. Hill, (Sup.) 3 N. Y. Supp. 564; People v. Riordan, Id. 774, affirmed, 117 N. Y. 71, 22 N. E. Rep. 455. The charge being erroneous, we cannot say that the defendant was not possibly injured or prejudiced by the error, although the court correctly instructed the jury upon this question in other parts of the charge. Greene v. White, 37 N. Y. 405. For this error we think the judgment and order should be reversed,

Moreover, we are disposed to think that the trial court should have received the evidence of the witness Amasa B. Waters, taken on the former trial. ■ That such evidence was admissible, if the proof of the death of the witness was sufficient, there can be no doubt. While it may be that the proof was insufficient to establish the fact of death in ah action where it was a direct ■issue, yet, as the question arose in this case incidentally or collaterally, we think the evidence was sufficient to have justified the court in admitting the former testimony of the witness. Judgment and order reversed, and the clerk directed to enter judgment and remit a copy thereof, with the return and decision of this court, to the clerk of Delaware county, pursuant to sections 547, 548, Code Grim. Proc.

Merwin, J., concurs.

Hardin, P. J.,

(concurring.) Upon the trial the defendant offered toread the evidence of Amasa B. Waters, given upon a former trial. The testimony was important and material, tending to support the defense. It was objected to, and excluded. At the. time the evidence was given by the witness he' resided in Georgia, and was past 77 years of age. To the exclusion of the evidence an exception was taken. Prior to the evidence being offered on this trial, evidence was given tending to show that the witness had returned to the state of Georgia. We think sufficient evidence was offered tending to establish the death of the witness, and that his death was established prima facie, and that it was erroneous to exclude it. While the ruling is in some sense a matter of discretion, we think that it is reviewable. Jackson v. Waldron, 13 Wend. 199, Section 392 of the Code of Criminal Procedure provides that the rules of evidence in civil' cases are applicable also to criminal cases. People v. Murphy, 101 N. Y. 126, 4 N. E. Rep. 326, recognizes the rule laid down in the section just mentioned. It seems to be well settled that, where the question of the death of the party or witness is involved collaterally and incidentally, “resort may be had to what is commonly said and understood to be true among the immediate relatives and family connections of the party to whom the inquiry relates.” Clark v. Owens, 18 N. Y. 442; 2 Greenl Ev. p. 263, § 78; Id. p. 266, and note. In Bradley v. Mirick, 25 Hun, 272, the testimony of a witness was offered on a second trial, he having died subsequent to the first trial. An objection was taken that, inasmuch as he was not cross-examined on the first trial, his testimony ought to be excluded; it was so excluded by the trial court. We held this was error, and our decision was affirmed in the court of appeals, (91 N. Y. 293,) as appears by the opinion, although a note accompanying the syllabus erroneously states that the case was reversed. In Jackson v. Etz, 5 Cow. 319, it was said: “The fact that a soldier, or any other individual, was missing at a particular time, accompanied with a report and general belief of his death, must be, in many cases, not only the best, but the only, evidence which can be supposed to exist of his death. It is, perhaps, reasonable that it should be held prima facie sufficient. Doe v. Griffin, 15 East, 293. ” The evidence of Waters was erroneously excluded. The foregoing views, as well as those expressed in the opinion of Martin, J., lead me to vote for a reversal of the conviction.  