
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN McGRATH, Appellant.
    
      Bight of a person, struck by another, to beat the latter — it must be shown that the beating was neeesscvry for the defense and protection of the former.
    
    Appeal from a judgment of tbe Court of General Sessions, convicting tbe defendant of tbe crime of manslaughter in tbe second degree.
    Tbe defendant was convicted of tbe crime of manslaughter in tbe second degree, under section 193 of tbe Penal Code. Tbe offense was committed in a saloon on tbe 25th of October, 1886. Tbe defendant was of tbe age of twenty-tliree years, while John McKeagney, tbe person who was killed, was of tbe age of fifty-four years. ' Evidence was given upon tbe trial from which tbe jury could have found that McKeagney was in conversation with another person in the saloon, and made remarks in the bearing of tbe defendant which were offensive to him. He then,. without any conversation with tbe deceased, replied in a still more offensive manner to those remarks; and tbe deceased then said to him, after tbe remarks bad been repeated and tbe defendant bad approached him, “ If you say that again, old man as I am, I will strike you.” Then tbe evidence tended to show that tbe defendant opened bis mouth and McKeagney struck him with bis fist over tbe right eye. Tbe defendant testifies that be struck him twice. Tbe proof tended to show that tbe defendant immediately struck McKeagney with his band, and then turned around and bit him under tbe right jaw, knocking him down, and bis head struck upon tbe floor. He struck with so much violence as to fracture bis skull, and McKeagney became at once unconscious and remained in that condition until be died, about tbe hour of seven o’clock on tbe following morning. His death was caused by compression of tbe brain from bemorrbage.
    Tbe court at General Term said: “ It lias been earnestly contended by tbe counsel for defendant, that be was justified in striking McKeagney as be did, inasmuch as tbe latter was tbe first aggressor in tbe blows which were given. Put tbe jury could very well find from tbe evidence laid before them that there was no necessity for tbe defendant striking McKeagney, and that be invited or brought tbe occasion upon himself, which was made tbe excuse for tbe blows given by him to tbe deceased. There was no absolute disposition on bis part to strike tbe defendant, but be expressed bis intention to do so only in case tbe latter repeated tbe remark be bad previously made. There was not tbe slightest reason or necessity for that repetition. He would naturally understand from what was said, that there was no disposition to strike him unless be did repeat tbe offensive language be bad previously used. He was fully made aware of what tbe inclination of tbe deceased was, and that be was in no danger of tbe least act of violence from him unless be himself repeated tbe preceding aggravation, and in that manner invited or occasioned tbe blows be received and which were made tbe excuse for returning those inflicted upon McKeagney. What be 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 bad no reason for fear or apprehension. And if be bad not aggravated tbe deceased by opening bis mouth and in that manner showing a disposition to repeat tbe words, no striking would probably have taken place between these persons. And when tbe defendant himself may be tbe cause of tbe assault made upon him, and has intentionally provoked it, be cannot afterwards excuse himself for inflicting needless violence upon tbe person of tbe other party. What tbe law requires to justify a person beating another, as tbe defendant did McKeagney, is that tbe beating shall appear to be necessary for his own defense and protection. (EllÁott v. Brown, 2 'Wend., 497; Scribner v. Beach, 4 Denio, 448; Keyes v. D&olm, 3 E. D. Smith, 518; Shorter v. People, 2 Comst., 193; People v. Sullman, 3 Seld., 396.) There was no such occasion or necessity as these authorities require for tbe strikmg of McKeagney by tbe defendant, and as would excuse tbe act on the ground of self-defense. At least tbe case was very properly one for tbe jury, upon tbe evidence stating tbe transaction wbicb bad taken place.” * * *
    
      Adolphus D. Parpe for tbe appellant.
    
      Bwndolph B. Mtwbme, district attorney, for tbe respondent.
   Opinion by

Daniels, J.;

Tan Brunt, P. J., and Brady, J., concurred.

Judgment affirmed.  