
    The People, App’lts, v. John D. Riordan, Resp't.
    
    
      (Court of Appeals,
    
    
      Filed October 15, 1889.)
    
    1. Criminal law — Evidence—Burden of proof — Plea of self-defense.
    The rule that in criminal cases the defendant is entitled to the benefit of a reasonable doubt applies not only to the case as made by the prosecution, but to any defense interposed.
    
      % Same — Trial—Charge to jury.
    Where, on a trial for homicide, the court first charged correctly, and then, to a request of the district attorney that he charge that the burden was on the prisoner, answered: “I think I have already charged that,” and also, charged that “where a plea of self-defense is set up * * * the burden of proof is upon the defendant to establish his defense beyond a reasonable doubt,” and refused to withdraw it at the request of the district attorney, but later withdrew “ that portion of the charge made at the request of the district attorney," and said: “ He must make his defense appear to the jury, availing himself of all the evidence in the case on either side,” Held, error. That even if the court intended to withdraw the erroneous part of this charge, the language was equivocal and might easily have been misunderstood by the jury, but that it was clear that it did not intend to do so by its refusal to charge correctly.
    Appeal from judgment of supreme court, general term, fourth. department, setting aside conviction for error in charge of judge.
    
      
      Irving R. Devendorf, dist. atty., for app’lts; A. M. Mills, for resp’t.
    
      
       Affirming 19 N. Y. State Rep., 35.
    
   Andrews, J.

The conviction in this case cannot be disturbed unless there was error in the charge. The rule that in criminal cases the defendant is entitled to the benefit of a reasonable doubt, applies, not only to the case as made by the prosecution, but to any defense interposed. Stokes v. People, 53 N. Y., 164; Brotherton v. People, 75 id., 159; O'Connell v. People, 87 id., 377; People v. McCann, 16 id., 58. The defendant on the trial sought to establish that the homicide was committed in self-defense. This issue was tried and submitted to the jury as a material issue in the case. This court cannot say that there was an absence of any evidence to support it.

The court, in its charge, instructed the jury that “ the defendant in a criminal action is always presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.” If the matter had been left here there would have been no error. The charge covered the point that a reasonable doubt upon any material issue was to operate in favor of the defendant. But on the conclusion of the main charge the district attorney asked the court to charge “ that where the defendant makes a claim of self-defense, that the homicide was committed in self-defense, the burden of establishing the necessary facts to avail himself of that defense is upon the defendant,” and the court replied, “ I think I have already charged that,” and the defendant excepted to the proposition presented by the prosecution and acceded to by the court. The court then said: “ I charge that where a defense of self-defense is set up, in the legal term the burden of proof is upon the defendant to establish his defense beyond a reasonable doubt. ”

The district attorney then said: “ I ask the court to withdraw that charge. We do not claim that the burden of proof is upon the defendant to establish the defense of self-defense beyond a reasonable doubt.” The court replied : “I think I will leave it as it is.” Some time later in the proceedings the court said: With regard to that portion of the charge which was made at the request of the district attorney, the court will withdraw what it said to the jury on that subject and will charge this: “ He must make his defense appear to the jury, availing himself of all the evidence in the case on either side,” and to this also the defendant excepted. It is claimed that by this the court withdrew the prior instruction that the defendant must establish his defense beyond a reasonable doubt.

It will be observed that the court withdrew what had been charged, “at the request” of the prosecution, and that request related only to the burden of proof on the issue of self-defense, and not to the question whether such defense must be established beyond a reasonable doubt. If the court intended to go further and withdraw what had been said on that subject, the language was equivocal and might easily have been misunderstood by the jury. But the subsequent refusal of the court to charge a proposition submitted by the defendant, seems to make it clear that the court did not intend to withdraw what had been said on the subject of reasonable doubt The court was asked to charge “ that if on all the evidence there is reasonable doubt as to whether at the time when the defendant fired the shots he was in danger of great bodily harm and as to whether there was reasonable ground to apprehend such injury that the defendant is entitled to the benefit of the doubt,” and the court “declined to charge in that form,” and the defendant excepted.

There had been no charge upon this subject except as before stated.

We concur in the opinion of the general term that for the error of the charge the conviction should be set aside.

Judgment affirmed.

All concur, except Ruger, Ch. J., not voting, and Danforth, J., dissenting.  