
    The People of the State of New York, Respondent, v. Francesco Veltri, Appellant.
    Second Department,
    June 12, 1908.
    Crime — homicide — self-defense.
    Evidence given on a prosecution for murder in the second degree examined, and held, insufficient to establish justification for the homicide.
    Jerks, J., dissented:
    Appeal by the defendant, Francesco. Yeltri, from a judgment of the County Court of Kings county, rendered on the 24th -day of May, 1907, convicting the defendant of the crime of manslaughter in the first degree.
    
      Martin T. Manton, for the appellant.
    
      Peter P. Smith [John F. Clarke with him on the brief], for the respondent.
   Hooker, J.:

The indictment is for murder in the second degree. Defendant was Convicted of manslaughter in the first degree. Of the fact that defendant killed the deceased there is no doubt or question. The People’s proof was of a quarrel over a game of cards; that the defendant left the saloon, the deceased followed him to the sidewalk ; that the latter was seen to raise his arm as if to.' strike the defendant; that the deceased came back into the saloon after a few moments with a knife wound in the groin, from the loss of blood from which he died within five or ten minutes, and that the defendant voluntarily when arrested stated that the deceased kicked him and he killed him. The defendant testified to facts which he says justified the homicide ; he says that deceased attacked him and lie tried to get away, but was held, and that when deceased reached into his inside coat pocket as if for a gun or knife,, defendant drew his “little penknife” and opéning it with his teeth used it to “scare” deceased away. Even the evidence of the defendant made out justifiable homicide but poorly; this was far from a retreat to the wall, and beyond that it appears inferentially' at least that defendant was physical master of the situation, otherwise why was it necessary to use his teeth to open the little penknife ? The jury were amply justified in disbelieving the defense.

The error, if any, in excluding the question put to defendant what his aunt said to him about running away was cured at once, for without objection, he testified a few moments later that his aunt told him officers were after him and advised him to run away.

The conviction must be affirmed.

Woodward, Rich and Miller, JJ., concurred; Jenks, J., dissented. . '

Judgment of the County Court of Kings county affirmed.'  