
    The People of the State of New York, Respondent, v. Nicola Pagnotta, Appellant.
    Second Department,
    April 21, 1911.
    Crime — assault — self-defense — charge.
    In a criminal prosecution for assault it is error to charge that if the defendant willfully participated in a quarrel he cannot claim self-defense. This, because, although one may willfully take part in a quarrel; he has a right to defend himself against death or serious bodily injury.
    Appeal by the defendant, Nicola Pagnotta, from a judgment of the County Court of Westchester county, rendered on the 26th day of January; 1910, convicting the defendant of the crime of assault in the second degree.
    
      George C. Andrews, for the appellant.
    
      Francis A. Winslow, District Attorney, for the respondent.
   Woodward, J.:

The defendant was indicted for assault in the first degree, alleged to have been committed in the city of Yonkers on the 23d day of April, 1909, by shooting one Joseph Castriogiovanni with a revolver. Upon .the trial the evidence was. to the effect that on the evening of the day in question the complaining witness was present in .his brother’s store in Yonkers, as was-his custom, with the defendant and others' playing cards and partaking of refreshments; that the defendant suggested the organization of a pleasure club, with dues at twenty-five cents per week; that the witness declined, saying that he could not afford the dues; that defendant offered to pay the witness’ dues, and that the latter took offense, and a quarrel followed; that in the course of the altercation the defendant drew a revolver, declaring, “if I missed! you once before I will not miss you now, ” and then shot the complaining witness in the shoulder, doing serious bodily harin. The learned court in its charge to the jury correctly laid down the few, explaining the degrees of assault,, and the verdict 'of assault in the second degree is, no doubt, fully sustained by the evidence.

At the close of the charge the defendant’s counsel made several requests to charge; which were granted, and then the assistant district attorney asked the court to charge “ that if this jury find that at the time this defendant fired the shot which struck the complaining witness, he was willingly participating in a quarrel, that he cannot claim self-defense,” and this request was granted. This was excepted to in behalf of the defendant, and this is the only question of importance presented by this appeal. It is scarcely open to question that this charge does not state the law in reference to self-defense; the mere, fact that a man may have voluntarily or willingly taken part in a quarrel; that lie may be willingly quarreling at the time of an assault, does pot deprive him of the right to defend himself against death or serious bodily injury. The fact of the quarrel is to bé considered-by the jury in arriving at its verdict, as a part of the history of the transaction, but if the law is as stated in the charge, then any man who willingly enters into a quarrel is estopped to assert the right of self-defense, as that term is used and. understood in the law, no matter what the danger he is called upon to confront; he is practically outlawed. Clearly, • that is not the law, and because of the error the judgment must he reversed.

The judgment" appealed from should be reversed.

Jenks., P. J., Hirschberg, Burr and Rich, JJ., concurred.

Judgment of conviction of the County Court of Westchester county reversed and new trial ordered.  