
    The People of the State of New York, Resp’ts, v. William McCarthy, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 2, 1888.)
    
    1. Criminal law—Manslaughter in the second degree—Burden op JUSTIFYING KILLING ON DEFENDANT.
    The defendant was a member of the police force of West Troy, and while patrolling his beat at night dressed in citizen’s clothes he fired his pistol twice at Doring with such effect as to inflict a wound and thereby cause his death. The defendant sought to explain the act by saying that he saw a man running through the streets, and called to him to stand, that he did not obey, and that after more ineffectual calls he fired shots towards the ground as he supposed. Defendant supposed Doring was one of a gang of thieves who had been operating in tnat ward, while in fact he was a good citizen returning from lawful business to his own home. Held, that the burden of proving the guilt of the defendant was upon the plaintiff, but the burden of justifying the use of a deadly weapon was on the defendant.
    3. Same—Practice—Indictment with several counts—Remedy by demurrer—Code Grim. Pro., §§ 279, 324 and 331.
    The indictment in two separate counts accused the defendant of manslaughter in the first degree, committed under different circumstances, and in a third count of manslaughter in the second degree. Held, that separate counts were proper under certain circumstances, and if more than one crime was charged except as permitted by Code Grim. Pro., § 279, the proper and only remedy was by demurrer.
    8. Same—Direction that prosecution elect discretionary.
    An application to the judge to instruct the district attorney to elect which count he would proceed on is an appeal to the discretion of the judge, and a denial of the application cannot be successfully assigned as error.
    4. Same—Verdict—Failure to find as to some counts equivalent to NOT GUILTY AS TO THEM.
    The verdict of the jury was specifically for manslaughter in the second degree, and being silent as to the other charges was equivalent to a verdict of not guilty of the crime charged in the first and second counts.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment of the court of sessions of Albany county, convicting the defendant of the crime of manslaughter in the second degree.
    
      D. Cady Herrick, for appl’t; Andrew Hamilton, assistant district attorney, for resp’ts.
    
      
       Affirming 14 N. Y. State Rep., 415.
    
   Danforth, J.

The defendant was indicted for the crime of manslaughter, in having killed one Richard F. Doring, at West-Troy. He pleaded not guilty. The issue was tried at the sessions, and it then appeared that the defendant was a member of the police force of that village, and that while patrolling his beat at night, dressed in citizen’s clothes, he fired his pistol twice at Doring, with such effect as to inflict a wound, and thereby cause his death. There was no dispute as to these facts; but the defendant, by his own testimony, sought to explain the act by saying that he saw a man running through the streets, and called to him “to-stand:” he did not obey; and after two more ineffectual calls, the defendant says, “ I pulled out a revolver and shot, as I supposed, towards the ground; he continued running; I fired another shot towards the ground, as I supposed.” He also-says, “ there was a gang of thieves operating in that ward, for the last four or five weeks; and as I saw him running, I supposed it was one of the party.” In fact Doring was a good citizen, returning from lawful business, to his own home.

The points made in support of this appeal are, 1st: Error on the part of the trial jndge in refusing to direct an acquittal at the close of the people’s case. 2d. In admitting improper evidence. 3d. In charging the jury. 4th. In refusing to charge as requested by the defendant’s counsel. The indictment in two separate counts accused the defendant of manslanghter in the first degree, committed under different, circumstances; and in a third count, of manslaughter in the second degree, viz.: by discharging his pistol “in a culpably negligent manner,” in the direction of Doring.

At the beginning of the trial the defendant’s counsel asked the court to instruct the district attorney to elect which count he would proceed on, and at the close of the evidence on the part of the people, and again upon all the-evidence, that he be directed to elect on which count a conviction was asked. Separate counts were proper under certain circumstances (Code Crim. Pro., § 279), and if more than one crime was charged, except as permitted by that-section, the proper and only remedy was by demurrer. Code Grim. Pro., §§ 324, 331. Nor had the defendant any legal right to the instruction asked for. Such an application is an appeal to the discretion of the judge, founded upon the supposition that the accusation extends to more than one charge, and might therefore embarrass the defendant in meeting it (Reg. v. Trueman, 8 C. & P., 727; Hawker v. People, 75 N. Y., 487), and a denial of the application cannot be successfully assigned _ as error. It is unnecessary to consider whether the trial judge should have directed an acquittal upon either the first or second count. The verdict of the jury was specifically for “ manslaughter in the second degree,” and being silent as to the other charges, was therefore equivalent to a verdict of not guilty of the crime charged in the first and second counts (Guenther v. People, 24 N. Y., 100; People v. Dowling, 84 id., 478), and for the commission of the same crime in any degree the defendant cannot be again tried so long as the judgment herein stands unreversed. Penal Code, § 36.

U pan the examination of Mrs. Boring, the mother of the deceased, it appeared that the defendant, following the wounded man, came to her house, and in the presence of her son had a conversation with her at the door in respect to the matter. This conversation she narrated, and said, speaking of her son, “he got up during the time I was talking with him (the defendant), and went in.” Being-subsequently recalled, the following occurred:

Q. “While you were talking with the officer your son went in? A. Yes, sir.
Q. And you went right in; did you have any conversation with him then ? A. He told me—
(Objected to. Objection overruled. Defendant excepted).
Q. What did he say ? A. He said the officer did not say anything to him until after he fired the second time.
(The defendant’s counsel moved to strike out the last statement as incompetent and improper).
Q. The officer wasn’t there at the time ? A. Ho, sir.
Q. (The Court). How long after the transaction ? A. Shortly after.
Q. (The Court). How long—ten minutes, fifteen minutes? A. Half an hour.

Motion granted.

At the time the objection was made it was not apparent that the conversation called for was not in the presence of the defendant. For aught that appeared it was a continuation of the conversation disclosed by her earlier testimony, unobjected to, and at'which he was present. The objection was not put upon the ground that he was not present. It was general, and it was only after she answered and after the defendant’s counsel moved to strike out the answer that it was made to appear that the defendant was not present at the time. When that fact did appear the motion was granted. If there was error, it was at once corrected on the defendant’s motion, and it would be going quite too far to give him a new trial upon an exception as to evidence admitted, when upon his formal request that evidence was stricken out and the plaintiff deprived of its benefit upon the trial already had. Price v. Brown, 98 N. Y., 388.

We find no error in the charge under which the case went to the jury. It seems to us impartial and that it confined the attention of the jury to the evidence and the very right of the case. The acts alleged against the defendant were committed by him while acting as a police officer and, as he claimed, while in the performance of his duty. The accusation on which he was convicted relieves him of an, intent or design to effect death but charges that he conducted the affair in hand with such culpable negligence as to kill the person he sought to arrest. If this was established the crime was complete Penal Code, § 188. The killing was not denied, and the court after stating the accusation and reading the statute to the jury, said “it is necessary for the people to establish their case beyond a reasonable doubt. It is necessary for the people to show the fact of the death, and you must find that the person alleged to have been shot and killed was actually killed and is dead, and then you must find from the facts that the defendant is guilty of the offense as charged in the indictment and as defined in the section of the Code which I have read to you.

The defendant attempts to justify the facts of killing. It is for the defendant to satisfy you that, if you find, as matter of fact, that the killing was done and that the defendant did it, that he was justified in the act.”

The counsel for the defendant excepted to the last clause and asked the court ‘ ‘in that connection to charge that the burden of proof is upon the people all through; that the defendant is not obliged to satisfy the jury of anything,” and the court so charged. The charged was correct. If an excuse existed for the taking of life or doing the act which caused death, it was to be shown to the jury. It could not be presumed, and if the fact existed the defendant was bound to show it. No doubt the burden of proving the accusation, that is the guilt of the defendant, was upon the plaintiff, and so the court charged; but the burden of justifying the use of a deadly weapon was on the defendant. Sawyer v. People, 91 N. Y., 667.

The other questions raised require no other discussion than that given to them by the learned judges of the general term. We concur in their conclusion that no error of law was committed by the trial court, of which the defendant can justly complain, and the judgment appealed from should be affirmed.

All concur.  