
    Supreme Court—Appellate Division—First Department.
    May, 1905.
    THE PEOPLE v. GAETANO FUCARINO.
    (104 App. Div. 437.)
    1. Mubdeb in the Second Degree.
    The deceased was engaged in a quarrel in the street. The defendant, who was not concerned in the quarrel, and who was- in a place of safety on the opposite side of the street, fired, without provocation, at the deceased, and struck him in the forearm. The deceased then pursued the defendant and as the defendant was about to be overtaken he turned and fired two shots at the deceased, one of which • proved fatal. There was conflicting evidence as to whether, during the pursuit, the deceased was armed with a club or not. Held, that the evidence justified a verdict of murder in the second degree.
    2. Self-Defense—Defendant the Aggbessob.
    Though the defendant at the time of firing the last shot may have been in some danger of receiving punishment, yet he had brought it on himself by his own felonious act, and there was no justification.
    3. Self-Defense—Requests to Charge—Omitting Element of Necessity.
    Requests analyzed and held to be correctly refused, because the jury had already been substantially instructed, and, also because each request omitted the element of necessity.
    Appeal by the defendant, Gaetano Fucarino, from a judgment of the Court of General Sessions of the Peace in and for the city and county of Hew York in favor of the plaintiff, entered on the 11th day of February, 1903, upon the verdict of a jury convicting the defendant of the crime of murder in the second degree, and also from two orders denying, respectively, the defendant’s motions for a new trial and in arrest of judgment.
    Asa Bird Gardiner, for the appellant.
    Robert C. Taylor, for the respondent.
   Laug-hltn, J.:

The first point- made by the appellant is that the verdict is against the weight of the evidence. The undisputed evidence shows that about six o’clock in the evening of the 23d day of August, 1902, the defendant fired three shots from a thirty-two calibre revolver, two of which lodged in the body of Daniel Murphy, one in the right forearm and the other in the left groin, from each of which blood poisoning ensued resulting in his death. The defendant claims that the shots were fired in self-defense. Evidence was offered in his behalf tending to show that Murphy, who was a foreman of ■ truck drivers, and a truck driver in the employ of one Fitzgerald, a contractor, whose barn was at bios. 537 and 539 West Thirty-fifth street in the city of blew York, came upon the street from the premises occupied by Fitzgerald and attacked the defendant without cause or provocation with a club about .three feet ■ in length and three inches in diameter, described as a bale stick, hitting him over the head and felling him to his knees (some of the evidence indicates that the defendant was felled twice on Thirty-fifth street) ; that the defendant, somewhat dazed, while endeavoring to regain his feet and while Murphy was in a threatening attitude in the act of inflicting another blow, fired the revolver in the air and then ran west to Eleventh avenue and down that avenue to the corner of Thirty-fourth street closely pursued by Murphy with the club, the latter gradually gaining on the defendant and overtaking him just as he turned into Thirty-fourth street toward Tenth avenue and there inflicting one or two more blows upon the defendant, again felling him to the pavement upon his knees, and that the defendant while in this position with Murphy standing over him in a threatening attitude and in the act of striking again, fired two more shots, whereupon Murphy sank or fell to the pavement and ceased his attack and pursuit. It is undisputed that Murphy came upon the street, from his employer’s premises with such a club in his hand.

The People however, gave evidence tending to show that at the time of his doing so some four Italians, including the defendant, were assembled in the street in front of the entrance to Fitzgerald’s premises having an animated discussion in the Italian language; that the defendant was not an employee of Fitzgerald’s but one or more of the others was, and one of them who had money coming to him on the next pay day had demanded his pay of Murphy shortly before, although this was not pay day, and that another of them after Murphy’s refusal to make the payment demanded had appeared at the entrance to Fitzgerald’s premises flourishing a knife and “ jabbering in Italianthat shortly, after Murphy went upon the street he was observed to be in an altercation with four Italians in the middle of the street, Murphy haying hold of one end of the stick pushing off the Italian with the knife who had hold of the other end with the knife in his hand, and.the other three, including the defendant, behind Murphy beating him with their fists; that thereupon another employee of Fitzgerald’s came to Murphy’s rescue and struck the Italian who had hold of the club a blow which released his grasp upon the club and knocked him down; that at about this time a pistol shot was fired and immediately thereafter the defendant was seen standing at the curb on the opposite side of the street facing Murphy with the revolver smoking in his hand; that as soon as the shot was fired Murphy and his companion who had come to his rescue started towards Fitzgerald’s premises and that Murphy turned and apparently saw the defendant and started after him; that as Murphy turned and before starting after the defendant, blood was observed trickling from his right forearm; that when Murphy started after him the defendant started and ran down the street on the course already described; that Murphy did not at this time or thereafter have the club or any weapon in either hand; that when the defendant reached the corner of Thirty-fourth street and was turning to the left into that street Murphy was gaining on him but was still ten or fifteen feet behind and not within reaching or striking distance and that the defendant then turned and pointed the revolver at Murphy and fired two shots in rapid succession, one of which took effect in the groin as stated and the other missed its aim.

It thus appears that there is a sharp conflict between the testimony of the witnesses called on behalf of the prosecution and those called by the defendant, and that, according to the evidence presented by the People, if the jury believed it, as their verdict indicates, the first shot took effect in Murphy’s- forearm and when the defendant fired it his life was not in danger nor was he in a position to apprehend that great bodily harm would be inflicted upon him. The same is true of his position, according to the testimony of the witnesses for the People^ when he fired the other shots. At the time of firing the last shot he may have been in some danger of receiving punishment at the hands of Murphy, who was unarmed, but he had brought it upon himself by his own felonious act in wounding Murphy by the first revolver shot and that was not sufficient justification for taking Murphy’s life. Many witnesses were called upon either side. It would unduly and unnecessarily lengthen the opinion to analyze their testimony. Suffice it to say that the evidence not only presented a fair question of fact for the consideration of the jury, but the,testimony of many of the witnesses for the defense was in some respects quite improbable. A careful examination of the evidence convinces us that the verdict of the jury is fairly sustained and warranted.

At the close of the charge, counsel for the defendant requested the court to instruct the jury that “if the jury find that the defendant was pursued or assaulted by the deceased in such a way as to induce in him a'reasonable and well-grounded belief that he was actually in danger of losing his life or suffering great bodily harm, when acting under the influence of such apprehension, he was justified in defending himself whether the danger was real or only apparent,” and an exception was taken to the refusal of the court to so charge. The learned trial justice had quite clearly and impartially instructed the jury upon the law, and upon this point had already said, quoting from a decision, that homicide is justifiable when necessarily committed for the preservation of one’s life or his protection from great bodily injury; that- an accused is justified in using force only when force is necessary for those purposes; that the danger must be either actual or apprehended upon reasonable grounds, and that whether the necessity for taking the decedent’s life existed for the protection of the defendant’s life or to prevent great bodily harm to him was a question for the jury, and that it was the duty of the defendant to avoid the danger without taking life if it could be done. After refusing to charge as requested, the court, at the request of counsel for the defendant, instructed the jury “ that one, without fault, if attacked by another, may kill his assailant if the circumstances be such as furnish reasonable ground of design to take his life or do him great bodily harm, although in point of fact he is mistaken.” It thus appears that the jury had already been instructed substantially as requested and, if not, they were subsequently correctly instructed on every material and proper element of the request which was refused. The request as an abstract proposition of law was not correct. It wholly omits the element of necessity upon which the judge had properly charged the jury.

Counsel for the defendant also requested the court to charge that “where a person is pursued or assaulted by another in such a way as to induce in him a reasonable and well-grounded belief that he is actually in danger of losing his life or suffering great bodily harm, he need not wait until his adversary gets advantage over him in defending himself from the threatened attack.” This request was also refused and an exception taken by the defendant. The court thereafter instructed the jury at the request of counsel for the defendant, “ That if one is attacked with a dangerous weapon, it is incumbent upon him to avoid the assault by retreat, if retreat is open to him, but if this prove unavailing, the law will hold him harmless if, in defending himself, he kills his assailant.” The instruction given was a correct proposition of law and it embraced the element of necessity. This was omitted from the request refused and justified the ruling of the court thereon. The jury could not have failed to understand from the clear instructions of the court that if necessary for the preservation of the defendant’s life or to prevent the infliction upon him of great bodily injury, or if a reasonable man situated as he was would be justified in inferring such necessity, that then he was at liberty to "protect his life and prevent the infliction of great bodily harm without waiting until the assailant obtained such advantage over him as would render this impossible,. The court, however, properly refused to charge as requested for the reason that the request did not embrace this essential element of necessity to take the life of the decedent for the defense of those rights of the defendant in the protection of which the law justifies a homicide. These are the only points presented by the appellant and our views thereon lead to an affirmance.

It follows that the judgment and order should he affirmed.

Van Brunt, P. J,; Patterson, Ingraham and McLaughlin, J"J., concurred.

Judgment and order affirmed.

SELF-DEFENSE; DEFENDANT THE AGGRESSOR.

If the defendant is the real aggressor, as in the Fucarino case, supra, he cannot be heard to claim self-defense.

In the Abbott case there was an altercation between the defendant and a fellow convict, R.; R. reached for an iron wrench; defendant, who was about 19 feet distant, seized an iron bar and rushed up to R., who had not yet turned around, and struck him three times on the head. Held, no ground for claiming self-defense. (Abbott v. People, 86 N. Y. 460.)

In the Johnson ease a convict, who had been disorderly, was being taken down stairs by keepers. He broke away and rushed into a room full of convicts brandishing a knife. The convicts, apprehending harm, closed in on him and in the melee he killed two and wounded others. Held, no “ necessity ” and no basis for self-defense.- (People v. Johnson, 139 N. Y. 358; 10 N. Y. Crim. 531.)

For other authorities see People v. McGrath, 6 N. Y. Crim. 151, s. c. 47 Hun. 325, incomplete; also note to McGrath ease in 6 N. Y. Crim. 121.

In the recent Filippelli case the rule is reiterated. Cullen, J., there points out an humane exception, recognized in the United States, but not in England; that if the aggressor starts a quarrel in which he has no intent to kill or to inflict bodily harm, he has then a so-called “ imperfect ” right of self-defense, and his crime is reduced from murder to manslaughter. (People v. Filippelli, 173 N. Y. 509; 17 N. Y. Crim. 242.) 
      
       See two self-defense eases where it was held that requests were properly refused; one, because the request omitted the element that the defendant was bound to retreat if he could (People v. Johnson, 139 N. Y. 358, 362; 10 N. Y. Crim. 531, 535) ; and the other, because the request omitted the element that there was imminent danger that the design would be accomplished. (People v. Rodawald, 177 N. Y. 408, 427; 18 N. Y. Crim. 142, 164.)
     