
    SUPREME COURT—APP. DIVISION—FIRST DEP.
    Dec. 2, 1910.
    THE PEOPLE v. JOHN C. LUMSDEN.
    
    (141 App. Div. 158.)
    (1.) Manslaughter—First Degree.
    Appeal from a judgment convicting the defendant of manslaughter in the first degree. Evidence examined, and held, that the judgment should be affirmed.
    (2.) Same—Jury May Reject Claim of Self Defense.
    The jury may reject a claim of self-defense on the ground of its inherent improbability, or because the evidence thereof came solely from a highly interested witness and because of willful, false statements by him.
    (3.) Same—Trial—Charge to Jury.
    Charge examined, and held, that, while subject to criticism in minor respects, any technical defects were subsequently cured by charges made at the request of the defendant.
    Technical errors are no longer ground for reversal of judgment in a criminal action when the court can see that the defendant took no harm thereby.
    (4.) Same.
    Where the court in its own language has charged all that the defendant is entitled to, the judgment of conviction will not be reversed because the court refused to charge in the exact words of a request not read in the presence of the jury.
    (5.) Same—Letters Written Before Crime—Res gestae.
    Where the defendant, being without funds, started out to collect money and subsequently shot his debtor, letters previously written by him to banks stating that he inclosed money orders in payment of certain notes, but not containing any remittance, are admissible in evidence as part of the res gestee and also to show deliberation and premeditation.
    Moreover, where the defendant was convicted of manslaughter instead of murder, the admission of such letters, even if erroneous, was harmless.
    Appeal by the defendant, John C. Lumsden, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 10th day of March, 1909, convicting him of the crime of manslaughter in the first degree.
    
      Martin W. Littleton [Owen N. Brown with him on the brief], for the appellant.
    
      Robert C. Taylor of counsel [Charles S. Whitman, District .'Attorney], for the respondent.
    
      
       Reversed 201 N. Y. 264. See post.
      
    
   Clarke, J.:

The appellant was indicted for murder in the first degree for shooting one Harry B. Suydam with a pistol on December 19, 1908. Two shots were fired, causing a perforating wound in each breast, from the effect of which Suydam died on the twenty-first. Appellant was thirty-one years of age. He had lived for thirty years in Ealeigh, H. C., and Birmingham, Ala. He had been a player in an orchestra and had served in the Spanish war as a private and as a member of the band in the First Horth Carolina Volunteer Infantry. He had invented a massage vibrator,” although the patents had not been issued therefor.

In April, 1908, he was introduced to Suydam, who was a curb broker in the city of New York, by one Jacob, with whom he was having negotiations in connection with this invention. A corporation was formed under the laws of the State of New Jersey of which, at first, the appellant was made president and Jacob the treasurer. Thereafter he resigned and Jacob was made president and Suydam treasurer. Appellant assigned his rights under the patent applied for to the company. On or about June 32, 1908, he delivered to Jacob and Suydam 750 shares of his stock in the corporation for the purpose of being used as collateral for a loan and received therefor demand notes signed by Jacob for $650, the agreement being that $1,250 should be borrowed, from which he was to be paid $650, the balance to be used in the business of the company.

The appellant stated that the loan was negotiated, but that he was not paid the sum due on said notes. He demanded payment several times, threatened to take the matter to the district attorney and to the manager of the Curb, and began a suit in the Municipal Court. After the service of the summons he saw Suydam on or about October 10, 1908, told him that he had seen several people in trying to straighten out the company and had failed to do so. Suydam said, ‘ I see you have brought that action.’ I said, ‘ Tes.’ He said, ‘ Well, you stand a hell of a chance of getting a judgment.’ I said, ‘ I will see the district attorney if it becomes necessary and in any event I will collect my money.’ Suydam said, ‘If you ever come around here again with those notes you will get yourself in one hell of a fix.’ ”

On Thursday, December seventeenth, he borrowed a revolver from a friend, telling him that he was going down to Broad street to meet a man who owed him money and he had made several threats. His own revolver was then in pawn, and he did not have the two dollars and eighty cents necessary to redeem it. On Friday morning he took out of his trunk a box of cartridges which he said he had procured some time before in Birmingham, Ala., which fitted the borrowed pistol as well as his own; loaded the five chambers of the revolver and put seven loose cartridges in his vest pocket. He wrote on said day two letters, one to a savings bank in Raleigh: I enclose $50.75 in payment of note due January 15, 1909, with interest,” and the other to a national hank at the same place, “ enclosed find money order for $400 in payment of note which falls due on January 7, 1909.” These letters were found on him after the homicide, and he testified that he had no funds with which to meet those notes, and that he wrote the letters expecting to get the money from Suydam, place it in the letters and send it to the banks. On Saturday morning, December nineteenth, he went to Suydam’s office, which was located on the first floor of No. 39 Broad street, overlooking the curb market on said street, at about ten minutes of ten.

There were present in the office at the time of Mr. Collins, a man sixty-four years of age, whose only connection with Suydam was that he rented him desk room; Meyer, an office boy of seventeen years of age, and Downs, Suydam’s clerk, a young man twenty-five years of age. Suydam sat at his desk at the window in the front of the office. As appellant came in Suydam turned round in his chair and bade horn Good morning.” Appellant answered Good morning.” Suydam asked him if he would have a seat. He replied: “ I don’t wish to sit; I wish to speak to you a minute outside.”

The two immediately stepped into the hall and had five minutés’ conversation. For what occurred there we only have-appellant’s testimony. He said he showed Suydam the notes and asked him, for the money. I did not tell him that I had written those letters. * * * I did not tell him I had to have the money. I made no statement whatever to him as to my pecuniary condition or that I needed the money. * * * Q. And of course you made no threats against him? A. No, sir. I told him that if he did not pay I would go to the district attorney. That was the only threat I made. * * * Q. Did you tell him you had a revolver? A. I told him I was prepared in case he attempted to do anything. At the time that I made this statement to him he had said, You remember what I told you the last time you were down here ? ’ And that was, that I would be in a hell of a fix. He did not say whether that would be a legal fix, financial fix, or what kind of fix. Q. And all he said to you then was to remember what he last said to you? A. Tes, sir. Q. And you told him that you were prepared? A. Tes, sir. Q. What were you prepared for ? I was prepared to protect myself in case I was attacked. I had no reason to believe I was going to be attacked, except as I have stated to this jury. I didn’t know whether or not Suydam was armed. To the best of my knowledge and belief, he was not. To the best of my knowledge and belief Meyer, Collins and Downs were not armed. * * * I did not tell Suydam in the hall that I had a revolver in my pocket, and did not show it to him while there. I followed him back into the office. It was outside in the hall that he told me he would pay me the money when the market opened. * * * He said, ' Come into the office and wait until the market opens and I will get the money for you.’ ”

After returning to the office they went over to the window and Suydam stood with one foot on a chair and leaning his head on his hand. Appellant stood with his hands in his overcoat pockets. There was a little conversation about a machine. Suydam said he had sent one to a certain person to be fixed and appellant said, “Did you?” About five minutes of ten Downs came over to the window to see if the crowd was in the street. He said it was three minutes to ten. “ I am going down to get the opening.” Suydam said, “ Do you know about that order ? ” Downs said; “ Which order ? ” and walked towards him. Thereupon Suydam said: “For God’s sake help me, George, he is going to shoot, get that gun,” and threw his arms around appellant’s shoulders with his hands at the back. Downs jumped to the back of appellant who whirled his pistol out of his overcoat pocket where he had been holding it in his hand, as he testified, and before they could get hold of his hand he turned it in and fired twice, hitting Suydam under the right nipple and under the left nipple. Thereupon a scuffle took place; they all fell to the floor, Collins jumped in shook the pistol out of appellant’s hand, Downs got it and then threatened to kill him; Meyer had been ordered to get an officer who ran in; Collins took the pistol away from Downs; appellant was arrested, and Suydam was taken to the hospital in an ambulancé.

After the shooting and while still in Suydam’s office, the appellant denied that the gun was his. I can show you I had no revolver when I came here and I can show you that my revolver is in pawn; ” and he showed a pawn ticket for a re-revolver when I came here and I can show you that my revolver. He also said that he shot the man in self-defense and that he took the revolver from Suydam’s pocket.

He made a voluntary statement at police headquarters to a deputy assistant district attorney. I have been after Suydam for quite a while to get him to take up the notes. I need the money. I went there this morning and he told me—‘ I will pay you these notes when the market opens.’ That was a few minutes before ten o’clock. He and I were standing by the window, in his front room there, and without any warning he was on me and had me on the floor — got me down. There were three of them. It’s hard to describe exactly what happened because it was so quick — glass breaking and everything, all over me — two or three punching me in the face, the crowd on top of me. I thought my leg was broken and, in this mix up, a gun went off. Q. Who fired the gun? A. I don’t know whether I fired it or whether they fired it. Everybody had their hand on it. I grabbed him and he grabbed me. Q. Whose gun was it ? A. His gun. I grabbed the gun and he grabbed the gun and then we had a tussle and everybody had hold of the gun. I knew Suydam was dangerous. I knew that he had — he has told me several times — he has kind of threatened me when I would go there to collect the notes —told me I would get myself in a hell of a fix and all that sort of thing. I thought I would take my pistol there this morning. I have had it in a pawn shop up in ¡Ninth avenue. The ticket for it is in my pocketbook there that the officer has. I had a box of cartridges that I bought with the pistol several years ago in Birmingham. * * * I took enough of these cartridges to fill my gun and was going to get my gun when I went there in case there was any trouble. I hadn’t the money to get my gun out. It took two dollars and eighty cents and I didn’t have the money, so consequently I couldn’t get it. That accounts for my having the cartridges in my pocket. The rest of the box of cartridges can be found in my trunk. They have been there for several years. They can be found in my trunk at my address. Q. Did you have any kind of a weapon in your possession ? A. I had nothing but a little corn knife, used for trimming corns, that I carry in my pocket for sharpening pencils. That’s all I had. * * * About ten minutes to ten he and I were standing over by the window * * * talking and without any warning he hit me or shoved me, and I grabbed him and we went on the floor, and I grabbed this gun in his hand and the others piled on top of me. There were a half dozen hands on the gun but I had mine on it —I grabbed it. Q. When did you first catch sight of it in his hand ? A. He had it in his hand when he grabbed me. Q. Did you see the gun before he grabbed you ? A. Yes, and I grabbed it as soon as I spied it in his hand and he and I went down. * * * Q. What part of the gun did you have hold of? A. I couldn’t tell you, that’s hard to tell. Q. How was he holding the gun, if you know, when you first got sight of it? A. I presume he had it by the handle. He had taken it from his pocket — I couldn’t tell you what pocket — I was looking out of the window when I saw him move and grab it. * * * By Captain Carey: Q. How, you have told us about having the pistol in pawn and you had intended to get that pistol and take it with' you to this place. — A. (Inturrupting.) Yes, I realized the man was dangerous because he had threatened me, and I thought it would be a good idea to have it in my pocket if I should go there, to protect myself in case something should happen. I didn’t have the money to get it and didn’t take it. Q. But you intended to take it ? A. Yes. Q. And you say you didn’t take any pistol there with you? A. bic, sir. By Mr. Symonds: Q. Did you ever get your hand on the trigger of this revolver which you say Suydam had? A. I couldn’t tell whether I had my hand on the trigger or not. * * * Q. Did you have any previous dispute over the payment of these notes ? A. bic dispute, only I presented them to him and he put me off. By Captain Carey: Q. Isn’t it a fact that you had that pistol in your hand and one of the men in the office took that pistol out of your hand? A. bic, sir. The pistol, I never did see what became of it. They were yelling, ‘ get the pistol! get the pistol! ’ The officer found it some place, this man that was in here. * * * Q. Did you ever get the pistol in your possession? A. bic, sir. Q. How many shots were fired? A. Two, I think. Q. Do you know whether there was any appreciable interval between the two shots? A. Sounded right together—one right after the other. Q. Where were you at the time, at the moment — A. (Interrupting.) I was on the floor. Q. Do you know where Suydam was at the instant the shots were fired? A. bic, sir. * * * Q. If you were the custodian of that pistol when you went in that office you had better let us know now ? A. I never had that pistol in my possession; I have told you that.”

The appellant took the stand. His testimony was in direct contradiction to his statements made immediately after the shooting. He testified, as hereinbefore stated, that he had borrowed the revolver, loaded it with his own cartridges and had it with him in his overcoat pocket, holding it by the butt in his pocket, when he was in Suydam’s office; that the pistol had a safety lever at the back of the butt so that the trigger could not be pulled unless the butt was squeezed. “ I took the revolver in my overcoat pocket so it would be convenient in case I was attacked, so I could pull it quickly.” That he had turned the gun in the direction of Suydam and when he turned the gun in his direction and pulled the trigger he intended to shoot. “ Q. Was Suydam inflicting any bodily injury on you at the time you shot him ? A. Ho, sir, only trying to turn the gun on me. * * * Q. Ton know Suydam could not fire that gun unless he had hold of it the way I have got it, that it is a safety gun ? A. I know that.”

Against the positive and unshaken evidence of the three eyewitnesses that all that was done before the shooting was an attempt to disarm him, the appellant opposed only his own testimony in support of his claim of self-defense from a brutal and unprovoked assault. The jury were at liberty to reject this defense, not only from its inherent improbability and that it came solely from a highly interested witness, but also from the willful, false statements, his denial of ownership or possession of the pistol and his attempt to fasten said possession and use upon the decedent. They were entitled to reject his account of the conversation in the hall and could have found that he had undoubtedly made some threats because Suydam must have learned from him that he had the weapon in his pocket for otherwise he would not have called for help to “get that gun.” In view of the deliberate steps taken by the appellant in procuring and loading his weapon, the possession of a pocketful of extra cartridges, his pecuniary necessities, and his admission that he carried the pistol in his hand in his overcoat pocket, ready for instant use, we think the jury, in finding him guilty of manslaughter, gave him the benefit of every reasonable doubt that could be entertained upon the facts shown.

It is claimed that a fatal error was committed in the charge. The learned court charged: “ The People of the State assert that he is guilty as charged in the indictment. This he denies, and the burden of proof rests upon the People, and it is incumbent upon the prosecution to prove his guilt beyond a reasonable doubt of some one of the offenses of which it is possible to convict under this indictment, and if it has failed to make such proof beyond reasonable doubt it becomes your duty to return a verdict of not guilty. All the presumptions of law independent of evidence are in favor of innocence and every person is presumed to be innocent until he is proved guilty. This presumption is not a special shield which the law puts around a defendant. It is founded upon a wider and deeper basis than that. It is the same presumption which attends you and attends all of us in all of the transactions of life. It is the presumption that no man does wrong. It is the presumption that every man performs his duty until the contrary appears. It is a presumption that belongs to the prisoner. It is a presumption which belongs to every witness who comes upon the witness stand, equally with the prisoner. It is not a presumption that the prisoner is innocent and that every one who testifies against him in conspiring to testify against him, but the same presumption of innocence which protects him protects every person who has any connection with the decision of the cause.” The clause commencing This presumption is not a special shield,” etc., is objected to. It was unfortunately so loosely worded as to give color to the claim that the presumption that a witness speaks the truth is of the same weight as the presumption of innocence of the defendant. The court, however, was quite unnecessarily elaborating the subject of presumptions in general. The Code of Criminal Procedure (§. 389) provides that “A defendant in a criminal action is presumed to be innocent, until the contrary be proved.” That provision is precise, generally understood, based on the common law and requires as a rule no explanation. An attempt to explain the obvious often leads to confusion.

But the charge immediately proceeded: “ The burden of proving this case rests upon the People of the State and up to the standard employed in the phrase * proof beyond reasonable doubt; ’ and I wish to say to you, gentlemen of the jury, in relation to this, as I shall say in relation to every part of the case, and you will take it with you as part of every instruction in relation to any fact, that the People must satisfy you of any fact on which it relies beyond a reasonable doubt.”

After defining the different grades of murder and manslaughter and giving general instructions thereon, the court proceeded: You have heard in the consideration of the issues in this case many witnesses called both by the counsel for the People and the learned counsel for the defense. You are to lay the testimony of those witnesses alongside of your own observation and experience and determine the truth with reference to them. What is your duty, gentlemen of the jury, with reference to the consideration of the testimony of witnesses ? You are to take their testimony and if possible reconcile their conflicting statements, to make due allowance for honest errors and to accept the suggestion of perjury reluctantly and from necessity. For it is the general observation that all testimony is at the risk of imperfect knowledge and imperfect memory. Witnesses who appear equally entitled to credit may give different accounts of the same transaction, the difference going to the substance and effect and sometimes only to immaterial details. In such cases you have substantial identity and circumstantial variety. Too much importance should not be attributed to such differences to discredit a witness. You may believe that they intend to tell the truth unless the contrary is reasonably clear, and, as far as you can, seek to harmonize their testimony and discover for yourselves the substantial truth. In weighing the witnesses you must weigh them giving regard to their grade of life and their intelligence, for you are the sole judges of the weight of the testimony and the credibility of witnesses. The statements of the witnesses are to be considered by you and weighed with due regard to their relation to the case as in point of the bias or prejudice that they may have in respect to the parties or the subject-matter under investigation; to contradictions, to previous inconsistent statements, to their knowledge of the facts and their apparent disposition to make just and true disclosures, and to their known or ascertained character. A good deal of credit is due to every person who has occasion to speak in a court of justice under his oath, and a certain degree of infirmity may and often does attach. The memory may be defective, the events and dates may be confounded; witnesses, simple-minded and honest, frequently contradict themselves and each other. * * * You should take this testimony and carefully and impartially consider the evidence you have heard, in view of the consequences to the defendant at the bar and the People of the State of ¡New York. * * * I have purposely refrained from saying anything to you upon the facts here. They are for you and not for me. Whatever impressions have been made upon your minds in regard to the effect of the facts on the question involved belong to the accused and the People of the State of ¡New York, unhampered in their force by any other influences. I have been asked by the learned counsel for the defendant to charge you upon some propositions of law, as follows: 1. The defendant is presumed to be innocent until he is proved guilty. This presumption of innocence attends him throughout the entire trial, and the burden throughout the entire trial is upon the People to prove beyond a reasonable doubt that the defendant is guilty. I so charge. 2. This presumption of innocence extends to each and every item of proof during the course of the trial. And every reasonable doubt as to each point in the People’s case must be resolved in favor of the defendant. I so charge. * * * 10. The presumption of innocence is evidence in behalf of the defendant, which must be overcome by the People, and when the evidence is weighed this presumption must be cast into the scale on the defendant’s side, and unless the evidence in behalf of the People overcomes this presumption, together with the other evidence in behalf of the defendant to such an extent that the People’s case is proved beyond a reasonable doubt, the defendant must be acquitted. I so charge.”

Those three requests, so made and so charged at the close of the charge, were the last suggestions to the jury upon the subject of the presumption of innocence, and clearly cured any technical defect in the statement objected to, made at the beginning thereof. The verdict for such an error should not be overthrown, especially when it appears to the court that the jury by its verdict has given the defendant the benefit of every presumption and every reasonable doubt. Technical errors are no longer in this State ground for reversal of a criminal judgment when the court sees that the defendant took no harm thereby.

The court also charged that each juror must be convinced beyond a reasonable doubt, and if not, the defendant could not be convicted; that they were the exclusive judges of all the questions of fact in the case; that every issue of fact must be determined by them alone; when the defense of self-defense is interposed, the burden of proof is not upon defendant to satisfy the jury of the truth of that defense; the burden is upon the People throughout, and before the defendant can be convicted, the jury must be satisfied, beyond a reasonable doubt upon the whole case, that the killing was not done in self-defense, and that the defendant is guilty. If in the minds of the jury there is reasonable doubt that the killing was done in self-defense, the defendant must be acquitted. The jury may disregard any testimony which they believe to be not in accordance with the facts either by reason of the witness’ mistake or intentional misstatement. If the jury believe that the defendant was attacked by more than one man and that, as a result of this attack, he had reasonable ground to believe that he was in danger of death or great bodily harm, he was justified in shooting either or both of his assailants, and whether or not he shot the man who was doing the most of the acts which caused him to have this fear is of no consequence. He was not obliged, in the heat of this scuffle, to wait until he had an opportunity to shoot the man from whom most was to be feared. Whether or not at the time of the shooting facts existed which justified th defendant’s belief that he was in danger of great bodily harm is immaterial, so long as the defendant had reasonable grounds to form such belief and did form such belief. Whether or not at the time of the shooting facts existed which justified the defendant’s belief that he was in danger of great bodily harm is immaterial, so long as the defendant did actually have this belief.

So that the only defense set up in this case, namely, self-defense, was left to the jury in the precise language suggested by defendant’s counsel with iteration and particularity.

Objection is made that one request with regard to the reasonable doubt which might be inferred from proof of good character was not charged in the exact words requested. The court did not deny any of the requests on this subject, but charged in reference to proof of good character in its own language, embodying most of the five requests and clearly covering all that the defendant was entitled to. The particular request referred to might perhaps have been charged, but it would have added nothing to what had been said. As that request was not read in the presence of the jury, the denial thereof could have had no influence upon them. The exception is unsubstantial.

The reception in evidence of the letters was not reversible error. They were part of the res gestee, they were found on the defendant, and they here upon the question of deliberation and premeditation. But as the defendant was not found guilty of murder, they were harmless, even if improperly admitted.

We have carefully examined the whole record and considered all of the exceptions appearing therein, and are of the opinion that the defendant had a fair trial; that he was undoubtedly guilty of the crime whereof he has been convicted, and that no errors were committed sufficient to require us, in the interests of justice,,to order a new trial.

The judgment appealed from should he affirmed.

Ingeaham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Judgment affirmed. 
      See notes on self-defense. Vols. 6-119, 18-213, 19-411.
     