
    The People, etc., Resp’ts, v. John McGrath, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 23, 1888.)
    
    'Criminal law—Manslaughter—Defense — What is necessary to JUSTIFY THE USE OF VIOLENCE.
    Upon an appeal from a judgment convicting a defendant of the crime of manslaughter in the second degree. Held, that when the defendant himself' may he the cause of the assault made upon him, and has intentionally provoked it, he cannot excuse himself for inflicting needless violence upon the person of t ;e other party. To justify him it is necessary that the beating shall appear to he necessary for his own defense.
    Appeal from a judgment of the court of general sessions convicting the defendant of the crime of manslaughter in the second degree.
    
      Adolphus D. Pape, for app’lt; Randolph B. Martinef ■district attorney, for people.
   Daniels, J.

The defendant was convicted of the crime of manslaughter in the second degree under section 193 of the Penal Code. The offense was committed in a saloon on the 25th of October, 1886. The defendant was of the age of twenty-three years, while John McKeagney, the person who was killed, was of the age of fifty-four years. Evidence was given upon the trial from which the jury could very well find that McKeagney was in conversation with another person in the saloon, and made remarks in the hearing of the defendant which were offensive to him. He then, without any conversation with the deceased, replied in a still more offensive manner to those remarks, and the deceased then said to him, after the remarks had been repeated and the defendant had approached him, “if you say that again, old man as I am, I will strike you.” Then the evidence tended to show that the defendant opened his mouth and McKeagney struck him with his fist over the right eye. The defendant testified that he struck him twice. The proof tended to show that the defendant immediately struck McKeagney with his hand, and then turned around and hit him under the right jaw, knocking him down, and his head struck upon the floor. He struck with so much violence as to fracture his skull, and became at once unconscious, and remained in that condition until he died, about the hour of seven o’clock on the following morning. His death was caused by compression of the brain from hemorrhage.

It has been earnestly contended by the counsel for the defendant that he was justified in striking McKeagney as he did, inasmuch as the latter was the first aggressor in the blows which were given. But the jury could very well find from the evidence laid before them that there was no necessity for the defendant striking McKeagney, and that he invited or brought the occasion upon himself, which was made the excuse for the blows given by him to the deceased. There was no absolute disposition on his part to strike the defendant, but he expressed his intention to do so only in case the latter repeated the remark he had previously made. There was not the slightest reason or necessity for that repetition. He would naturally understand from what was said that there was no disposition to strike him unless he did repeat the offensive language he had previously used. - He was fully made aware of what the inclination of the deceased was, and that he was in no danger of the least act of violence from him unless he, himself, repeated the preceding aggravation, and in that manner invited or occasioned the blows he received and which were made the excuse for returning those inflicted upon McKeagney. What he seems to have desired was to obtain an excuse for striking this man who was so much older than himself as probably to be an unequal match for him. He had no reason for fear or apprehension. And if he had not aggravated the deceased by opening his mouth, and in that manner showing a disposition to repeat the words, no striking would probably have taken place between these persons. And when the defendant himself may be the cause of the assault 'made upon him, and has intentionally provoked it, he cannot afterwards excuse himself for inflicting needless violence upon the person of the other party. What the law requires to justify a person beating another, as the defendant did McKeagney, is that the beating shall appear to be necessary for his own defense and protection. Elliott v. Brown, 2 Wend., 497; Scribner v. Beach, 4 Denio, 448; Pease v. Smith, 3 Lans., 438; Shorter v. People, 2 Com., 193; People v. Sullivan, 3 Seld., 396.

There was no occasion or necessity as these authorities require for the striking of McKeagney by the defendant and as would excuse the act on the ground of self-defense. At least the case was very properly one for the jury upon the evidence stating the transaction which had taken place.

Exceptions were taken to certain portions of the charge given by the judge presiding at the trial, and to refusals to charge requests presented on behalf of the defendant. The first request made was charged that words themselves create no j ustification for a personal assault. And so was the second, with the qualification well supported by the authorities, that there must have been some reasonable or apparent necessity for the blows given by the defendant, to justify them on the ground of self-defense. So was the third substantially charged, that when a man is in a corner, or at the wall, if assaulted, he may strike back, and he is not obliged to wait until he had been struck the second blow before resorting to the right of self-defense. So was the sixth request charged, that if the defendant was justified in striking the deceased he was not answerable for the accidental consequences. The request as to the presumption, of innocence was charged as the law required it to be. And so were the legal provisions of the Penal Code declaratory of the cases in which homicide may be justified on the ground of self-defense. The case Vas very fully submitted by the charge to the jury, and they were required to determine for its proper disposition whether the defendant struck the deceased without fault. And they were left at liberty to consider the relative strength and age of the parties, their relative positions, and whether there was any necessity, real or apparent, for striking the blows which resulted in the death of the deceased.

Neither one of the exceptions taken to the charge, or the refusals to charge, or of the objections depending on the charge which, in the argument, have been brought to the consideration of the court, seems to have been well taken.

In addition to these exceptions, others were taken to questions which the defendant was required to answer upon his cross-examination. He was asked whether he had ever committed any other assault, and stated that he had once or twice; and whether he had committed assaults for which the police had arrested him. This was objected to in the most general ■ words, and an exception taken to the ruling the to be answered. A similar objection and exception were taken to the question whether he had committed an assault for which Officer Loonum had arrested him, and these objections and exceptions have been relied upon as properly taken upon the trial. It has been argued on behalf of the defense that evidence of his arrest should not have been received. The court did not design to receive evidence of mere arrests, but to limit the testimony to the facts of assaults having been previously made upon other persons by the defendant, for it was stated in reference to one of the answers that the evidence given as to an arrest for the assault should be stricken out. And that probably would have been the disposition of the portion of the ' answer inquiring whether he had committed other assaults for which he had been arrested, if that had in like manner been brought to the attention of the court. But it was not. And so much of the question which was objected to as included the inquiry whether he had committed previous assaults was legally received by the court. This proposition, however, has been controverted by the defendant’s counsel, and the cases of People v. Crapo (76 N. Y., 288), and People v. Gibbs (93 N. Y., 470), have been cited as sustaining the correctness of this position of the defendant’s •counsel. But they failed to do that. In the first of these cases the inquiry was made of the defendant on his cross-examination whether he had not been arrested on a charge cf bigamy, which is essentially different from the questions which were asked the present defendant concerning the commission of these preceding assaults. In the other case, the evidence considered to be improper was proof given on behalf of the prosecution to show that the defendant had committed another assult at a different time and place and upon a different person, and that was held to be improper. But in People v. Casey (72 N. Y., 393), it was decided that the defendant, after he had been sworn and examined as a witness in his own behalf, might be interrogated as to distinct acts of misconduct and criminality on his part tending to throw discredit upon his testimony.

And that was the object with which these questions were asked and answered. And as the court announced, the answers were distinctly received for the purpose of affecting his credit as a witness. And no other use of this evidence was at any time made in the case, but in the submission of it to the jury they were directed to consider the evidence of good character produced on behalf of the defendant, and also that obtained in this manner as tending to affect his character and to exhibit it to have been bad. There was no error arising upon the trial which would justify a reversal of this judgment. And as the verdict of the jury was well supported by the evidence, both the judgment and the denial x>£ the motion for a new trial, upon the disposition of which, no order seems to have been entered, should be affirmed.

Van Brunt, Oh. J., and Brady, J., concur.  