
    The People of the State of New York, Respondent, v. Edward Kelly, Appellant.
    A motion for arrest- of judgment in a criminal action could not, before the adoption of the Code of Criminal Procedure, and cannot now, be made, save for some defect that appears upon the record; it may not be based upon proof by affidavit of facts outside, and constituting no part of the record. (Code of Criminal Procedure, § 467.)
    Proof by affidavit that the jury on trial of such an action, after retiring to their room, sent a written communication to the presiding judge, and that he answered the same in writing, in the absence of proof as to the nature of the communication, is not sufficient to sustain a motion for a new trial.
    
      It seems, that for the purpose of presenting the question the true practice in such case is to make a statement of the facts presented by the affidavit, as part of a proposed case and exceptions, thus giving to the court an opportunity of making and incorporating in the record an explanation disclosing the character of the communications.
    Upon the trial of an indictment for an sasault with a deadly weapon with intent to kill, it appeared that, at the time of the occurrence, defendant was in pursuit of S., with, whom he had had a difficulty. S. was called as a witness for the prosecution, and on cross-examination, testified that he had collected money for and given it to the complainant. He was then asked “ When did you hand it to him ? ” This was objected to, and excluded. Held no error.
    Evidence on the part of defendant was offered and rejected as to violent acts on the part of S. at other times. Held no error.
    
      It seems, that, if it had appeared that the assault was committed in self-defense, proof as to the character of the complainant would have been competent, but as it appeared that it Was not so committed, even such evidence would have been incompetent.
    It is within the discretion of the court on a criminal trial to fix a limit upon the time to be used by counsel in summing up the case to the jury, and unless it appears that the discretion has been abused, it is not a subject for review on appeal.
    Where the time allotted to the defendants counsel was thirty minutes, and to the district attorney twenty-five, and it appeared that the former was stopped by the court at the expiration of his time, but that the latter continued his address for five minutes more than his allotted time, when he was stopped, held, that this did not tend to establish an abuse of discretion; that the,defendant’s counsel had the right to ask the court to stop the district attorney at the expiration' of his time, and not having done so, there was no ground for complaint.
    (Argued January 14, 1884 ;
    decided January 29, 1884.)
    Appeal from judgment of the General Term of the Oupreme Court, in the first judicial department, entered upon an order made December 26, 1883, which affirmed a judgment of the Court of General Sessions in and for the city and county of New York, entered upon a verdict convicting defendant of the crime of assault with a deadly weapon, with intent to kill.
    The material facts are stated in the opinion.
    
      John H. McKinley for appellant.
    The court erred in asking questions of the defendant, the answers to which might tend to criminate him without first informing him of his privilege to answer or not. (Code of Crim. Proc., § 196.) Defendant’s intent was a lawful one; he was not in the prosecution of a felony, but in the protection of his right to defend his life, and he had the right to exercise his judgment as to the extent of his jeopardy. (Pontius v. People, 82 N. Y. 339.) An injury inflicted accidentally or without primary intent to injure, upon a third party, during an altercation between several parties, has the same effect in its legal consequences as if the accused had directly inflicted the injury upon the party he intended to injure, and a prosecution against a defendant for an offense thus committed against an innocent third party is subject to all the rules of law and evidence as if the said third party was not in the contest at all. (Rex v. Jarvis, 2 M. & R. 40; Regina v. Smith, 33 Eng. Law. & Eq. 567.) The court erred in refusing to the defendant the privilege of showing the character, generally and specifically, of the party he, the defendant, was pursuing. (Wright v. State, 9 Yerg. 342; State v. Tackett, 1 Hawks, 210; Pritchell v. State, 22 Ala. 39; Harmon v. State, 3 Head, 243; State v. Patterson, 45 Vt. 314.) Self-defense is a primary law of nature, and a man is justified in defending himself even to the taking of life. (Scribner v. Beach, 4 Denio, 448.) In every case where an assault independent of battery is made, a man is instantly justified in repelling it, without waiting until he has received a corporeal injury. (Bull. N. P. 18; 2 Rolle’s Abr. 547; E. 37; Dale v. Wood, 7 Moore, 33; State v. Davis, 1 Wend. 125; State v. Patterson, 45 Vt. 323.) The nature of the wound tends to show the intent. (Rex v. Akenhead, 1 Holt’s N. P. R. 469; Stark. Ev. 691.) A defendant may testify as to his intent. (Kerrains v. People, 60 N. Y. 221.) The guilt or innocence of defendant would hinge upon the question as whether at the time of the injury he was engaged in a felony, or was acting in his own defense. (Lenahan v. People, 5 T. & C. 265; 3 Hun, 164, 716; Evers v. People, 6 T. & C. 156.) The burden of proof is on the prosecution; they must show conclusively the intent to kill. It is the intention to take life that constitutes the offense of murder in the second degree. (People v. Austin, 1 Park. Cr. 154; People v. Johnson, id. 291, 659; People v. Allen, 4 id. 619.) The court erred in permitting a view of complainant’s wounds, or in permitting the complainant to exhibit his hand to the jury. (Code of Crim. Pro., § 411.) The jury may take with them any notes of the evidence taken by themselves and by no other person. (Code of Crim. Pro. § 426.) After the jury retire, if they want any information of a point of law arising in the cause, they must require the officer to conduct them into the court, after notice to the district attorney and defendant’s counsel, and in cases of felony in the presence of the prisoner. (Code of Crim. Pro., § 427.) The court erred in not permitting defendant to show that he was in fear of his life, from his knowledge of the desperate character of the witness Straek, from his own knowledge that Strack was a man far more dangerous to fly from than to meet in open conflict. (Harmon v. State, 3 Head, 243.) The judgment should be set aside because, contrary to law, the jury held written communication with the presiding judge, pending their deliberation, the defendant not being present. (Maurer v. People, 43 N. Y. 1; People v. Perkins, 1 Wend. 91; 2 R. S. 759; State v. Patterson, 45 Vt. 308; Taylor v. Betsford, 13 Johns. 487; Hoberg v. State of Minn., 3 Minn. 262; Plunkett v. Appleton, 51 How. 469; Watertown B’k and L. Co. v. Mix, 51 N. Y. 558; 2 R. S. 760, § 21; Crabtree v. Hogenburgh, 23 Ill. 349; Fisk v. Smith, 12 id. 563.) Defendant was not bound to show affirmatively that the communication was in relation to the case. (Watertown B’k and L. Co. v. Mix, 51 N. Y. 558; Sargent v. Roberts, 1 Pick. 337; State v. Frisby, 19 La. Ann. 143; Taylor v. Betsford, 13 Johns. 487; Benson, ex rel. v. Clark, 1 Cow. 258; Moody v. Pomeroy, 4 Den. 115.) Defendant is not confined in his motion in arrest of judgment to the indictment only, but may include the whole record. (People v. Bruno, 9 Park. 657.) If a jury take out evidence read upon the trial, and also something not read, it is ground for a new trial. (Mitchel’s Case, 1 C. H., §147 ; Code of Crim. Pro., § 465.)
    
      John Vincent for respondent.
    A motion in arrest of judgment, made after verdict, based upon affidavits, had no foundation, and such an application is irregular and the action of the court thereon at trial term cannot be reviewed. (Code of Crim. Pro., §§ 231, 467.) On a motion in arrest of judgment the defendant can only avail himself of the defects appearing on the record, and the affidavits offered are no part of the record. (People v. Gaffney, 50 N. Y. 424; People v. Thompson, 41 id. 1; People v. Allen, 43 id. 28; Jacobowsky v. People, 6 Hun, 524; 64 N. Y. 659.) The limit of time in which counsel are to sum up rests in the sound discretion of the court; it is not an absolute right to the counsel to prolong his speech to the detriment of the other business of the court. (People v. Cook, 8 N. Y. 67.) The message from the jury-room to the court, and one in-reply from the court to the jury-room, does not furnish ground for an exception. (Mandeville v. Reynolds, 68 N. Y. 528; Code of Civil Procedure, §§ 465, 542.)
   Miller, J.

The defendant was tried at the Court of General Sessions in the city of New York, upon an indictment containing two counts, one charging an assault with a deadly weapon with intent to kill, and the other an assault with a dangerous weapon, with intent to do bodily harm, and was convicted on the first count. After conviction the defendant moved for a new trial, which motion was denied, and a motion was then made for an arrest of j ndgment upon the same grounds as the motion for a new trial, and also upon an affidavit setting forth that the court had communicated with the jury in the absence of the defendant and his counsel, which motion was also denied, and an exception taken. A motion in arrest of judgment must be made for some defect which appears on the face of the record, and cannot be based upon a mere affidavit showing the existence of facts outside of the record, and which do not constitute a part of the same. This was the rule which prevailed before the enactment of the Code of Criminal Procedure. Under that Code provision is made for motions of this kind. Under section 467 such a motion may be founded upon any defects in the indictment which are mentioned in # section 331. That section declares that an objection to the jurisdiction of the court over the subject of the indictment, or that the facts stated,do not constitute a crime, may be taken at the trial' under the plea of not guilty, and in arrest of judgment-The motion here was not made upon the ground of any defect appearing in the indictment, or in the record of-the proceedings upon the trial, and it cannot, therefore, be considered as a motion in arrest of judgment in accordance with the provisions of the Code already cited. The motion can only be considered as an application for a new trial made upon affidavits, and it cannot be entertained as a motion of that kind, under the Code, for it is not brought within the provisions of either of the subdivisions of section 465, which regulate motions of that character. The ground upon which the motion in arrest of judgment in this case was made, as shown by the affidavit, was that a written communication was received from the jury, after retiring to their room, by the recorder, and that such communication was answered by him in writing. The nature of the communication between the jury and the court is not disclosed, and it nowhere appears, by the record in this case, that any thing transpired, by reason of such communication, which affected the rights of the defendant, or that he was in any way injured thereby. There is no affirmative proof whatever to the effect that the correspondence had any relation to the defendant’s case. As the matter stood it is a fair assumption that, there being no improper act done within the knowledge of the court, the recorder was entirely justified in refusing to grant the motion made upon any such ground, even if there was authority for such an act in the case presented. The true practice, it seems to us, would have been to have made a statement of the facts presented by the affidavit as a part of the case and exceptions proposed, and thus furnish an opportunity to the court to make an explanation disclosing the character of the communication. This was the regular course to pursue, and in this manner all the facts relating to the alleged correspondence would have been developed and the record would have shown what actually did take place. What did take place, if it had any relation to the trial of the defendant, constituted a part and portion of the same and should have been incorporated in the record if it affected in any way the rights of the defendant. This course would have been the proper one in accordance with the decision of this court in Maurer v. The People (43 N. Y. 1), and in this manner all the facts would have been presented, and the defendant would have received the benefit if any error had been committed by the court or any wrong done to him. It may be remarked that, even if, upon the motion, the question was presented, it is by no means clear that the note or communication sent to the jury had any relation whatever to the case upon trial. The presumption is that there was no violation of duty on the part of the court. Without, however, deciding the question whether sufficient was shown, by the affidavit, to authorize the court to grant the motion in arrest of judgment, it is enough to say that that point, as the case stands, is not now presented for review. It appeared on the trial that the difficulty which resulted in the alleged assault occurred in the saloon of one Maurice Strack, that defendant was put out of the saloon by Strack, but returned with a butcher’s cleaver and made the assault. Upon the cross-examination of Strack, who was examined as a witness for the prosecution, it was proved that he had collected money for and given the same to the complainant. The question was then put, “ when did you hand it to him?” This was objected to and excluded and an exception taken. We think that this evidence was not material and that there was no error committed by the court in excluding the same. The defendant had proved all that was essential to establish the relation which existed between this witness and the complainant, and the evidence which was intended to be introduced by the question put, could not in any way affect the matter, and did not bear such a relation to the same as to render it admissible. We think there was no error committed in rejecting the testimony offered for the purpose of showing the character of the witness Strack, so far as it established violent acts on his part at other and different times. The evidence does not show that the assault was committed in self-defense ; the proof is that the defendant was pursuing Strack at the time the deed was done. If the assault had been committed in self-defense, it would have been com-potent to show the character of the complainant in justification of the assault made, but evidence as to the character of the witness Strack could have no bearing whatever on the case and was properly excluded. The claim of the defendant’s counsel that the defendant was in pursuit of Strack and not the complainant, and®that he accidentally assaulted the complainant, would not, under the circumstances presented, justify the admission of the evidence offered, or relieve the defendant from liability for the offense committed. There is, we think, no ground for the claim of the defendant that he would have been justified in taking complainant’s life as a matter of self-defense, as he was not assailed at the time or driven to the wall, so as to render such an act a matter of necessity. The question of intent was one of fact for the consideration of the jury. We can discover no error in the charge made or in the refusals to charge as requested.

It was insisted upon the argument, but not claimed in the printed points, that the court erred in limiting the defendant’s counsel to thirty minutes in his address to the jury. It appears that when the counsel for the defendant proceeded to sum up, the court decided to limit him to half an hour, and the prosecution to twenty-five minutes. This was objected to, and the counsel began his address to the jury, and at the end of thirty minutes he was called upon to stop by the court, lie stated he was not through.. The court refused to permit him to proceed, and the counsel excepted to the ruling. The counsel for the people then proceeded to address the jury and continued until five minutes more than his allotted time had expired, when he was called upon to stop. The time which counsel are to occupy in presenting a case to the consideration of a jury necessarily must be, to a great extent, a matter in the discretion of the court. Were it otherwise an unlimited period might be taken without any advantage to the client and causing great delay in the proceedings of the court and an injury to the administration of justice. The time to be used for such a purpose must, therefore, be a matter to be regulated by the presiding judge upon the trial, the same as any other proceeding during the progress of the Case. It is to bé presumed that the court will properly guard and protect the rights of parties so that justice can be administered to all, and the judge is certainly a competent and the proper person to determine as to the time which would be required for a proper discussion and presentation of the case upon trial. Hence it follows that 'the court has a right to exercise a discretion in this^respect, and unless such discretion is abused it is not the subject of review in a higher -tribunal. In the case at bar the testimony lies within a narrow compass; not many witnesses were sworn, and the questions of fact presented were not numerous. The trial was commenced and the evidence on both sides submitted the same day. The principal defense interposed by the defendant was self-defense, and some evidence was introduced tending to show that the defendant, at times, had been affected in his ■mind so as to render him irresponsible for the act done. • There was, however, no direct proof that such was the case at the time of the assault for which he was tried. Upon the whole case the testimony was not very complicated, and although 'a difference of opinion might exist among counsel and judges as to the period of time which would be required for the proper presentation of the case for the defendant, yet we think it cannot be said that the judge, upon the trial of this ease, in the exercise of his functions, and having in view the gravity of the charge and the rights of the defendant, exceeded his powers or abused the discretion with which he ivas invested. There is no ground for claiming that justice was not impartially administered or that the time allowed was not entirely sufficient to cover the case under the facts developed. The fact that the district attorney exceeded the time allowed him may have arisen from inadvertence and does not tend in any way to establish that the discretion pf the judge was improperly exercised. The counsel for the defendant had the right to ask the judge to stop him when his time had expired, and, not having made that objection, he has no real ground of complaint.

As no ground of error is manifest, the judgment should be affirmed.

All concur, except Daneorth, J.. not voting.

Judgment affirmed.  