
    THE PEOPLE against LAMB.
    
      Court of Appeals;
    
    
      January Term, 1866.
    Crbiihal Law.—Evldehce.—Charge oe the Judge.
    On a trial for murder, there being no evidence that the deceased assaulted, the prisoner, evidence of the quarrelsome character of the deceased is inadmissible.
    Where the prisoner was assaulted, it is admissible. It is fundamental to the admission of this class of testimony, that knowledge of the character of the deceased, must bo brought home to the knowledge of -the defendant himself.
    To excuse taking human life, in self-defense, the,jury must be satisfied that the accused was justified, in forming the conclusion from the facts before him, that his life was in danger.
    Good character of the accused is of value, not only in doubtful cases, but will of itself sometimes create a doubt, when none could exist without it, and should turn the scale in favor of the accused.
    If the jury have a doubt as to what degree of guilt to convict, it is their duty to convict,of the lesser degree.
    The law presumes malice from the mere act of killing, where the killing is proved to have been done by the accused, and nothing further is shown.
    Writ of error.
    Roger Lamb, the plaintiff in error, was tried and convicted of the murder of his wife, at the March term of the court of general sessions, 1865, A. D. Russel, city judge, presiding; and the prisoner was sentenced to be executed. Upon the fifth of May following, a writ of error and stay of execution was obtained, and the case carried to the court of appeals. Upon the trial, the plaintiff in error offered to prove the character of the deceased, which was excluded, and exception taken. This, with certain exceptions taken to the judge’s charge, constituted the grounds upon which a reversal of the judgment was asked upon the part of the prisoner. The facts and circumstances of the homicide, and the points npon which a new trial was ordered, will fully appear in the opinions of the court.
    
      
      A. Oakey Hall, for the people
    
      William F. Kintzing, for the prisoner.
   Davies, Ch. J.

The prisoner was indicted and convicted in the Hew York General Sessions for the murder of his wife, Joanna Lamb. The prisoner and his wife occupied a room in Sixth avenue, in that city, and at the time of the homicide there were present in the room the prisoner and his wife, Ann Kennedy, Mary Riley, Bridget Curtis, and a little girl named Joanna Clifford, who was the daughter of the deceased by a former husband, and then aged about eight years. The prisoner and his wife, according to the testimony of Kennedy, came together into the room about six or seven o’clock in the evening. The first thing the witness observed was that the prisoner applied a vile epithet to the deceased, and then made at her with his fist. The prisoner was prevented from assaulting his wife by the witness and another woman, or rather the assault intended for her was inflicted upon the witness. The prisoner then took a stick and attempted to hit his wife, but was prevented by the woman Riley. He then struck the deceased with his fist; soon the prisoner had a knife in his hand. The witness then left the room to procure some water for the deceased, which she said she wanted, and on her return she met the prisoner going out; he passed her. She found the deceased in the room, all covered with blood. Mary Riley, the little girl, and Bridget Curtis were there in the room with deceased. She testified that at this time the deceased made no attempt to strike the prisoner. She identified the knife as that of the prisoner, and there was no question made but that the prisoner inflicted the fatal wound, of which the deceased died. Mary Riley testified that the deceased came in about two minutes before the prisoner, and her statement of what occurred up to the time Ann Kennedy left the room was similar to that made by her. The prisoner, according to the witnesses’ statements, got his two hands on her chest and pitched her over against the bed, and she fell between the bed and the stove; when she arose the deceased was bleeding, and the witness said to the prisoner, “You murderer, you killed your wife.” .He made no reply, but stooped down, tied his shoes and walked out. She also testified that the deceased did not go near the prisoner at all, but he ran at her. On this night she never saw the deceased raise hand or foot against the prisoner. Bridget Curtis, the other person present in the room, as testified to by the other witnesses, was in bed, and she says asleep, and the noise of the tussle awoke her. When she awoke the deceased was bleeding, lying on the floor. The prisoner was then in the room, and did not remain, but went out.

Joanna Clifford, the other person present, testified to the same facts as the other witnesses, as to the conduct of the prisoner, and Ms assault of the deceased; and added that after he knocked Mrs. Riley down he came alongside of the deceased and stabbed her in the neck with a black-handled pocket knife; he stabbed her once; the witness was sitting on her lap at the time he stabbed the deceased.

For the defence, Mary Driscol was called, who testified that she was in this room on the evening of the homicide, and that the prisoner went out and as he went out, the deceased then flung the lid of an iron kettle after him at the door, and he came back and made a blow at her with Ms hands. She after-wards testified, that at the time she threw the lid at him, he came back in fifteen minutes and sat in the chair. The little girl, Joanna Clifford, testified that she went for officer O’Day, and he testified that when he went to the prisoner’s he found Ann Kennedy, Mrs. Riley, and Bridget Curtis there, and the little girl was there. He also testified that he did not see Mary Driscol there, and Ann Kennedy and Mary Riley both swear that Mary Driscol was not there that evening. And the same inference may be drawn from the testimony of Bridget Curtis and the little girl Joanna. I think the jury might have been warranted in finding that Mary Driscol was not present at the time of the homicide ; and even if she was, that her testimony as to any provocation having been offered by the deceased, or any assault made upon the prisoner by her, or any attempted or threatened, was wholly unsupported by any evidence, or any corroborating circumstances. The jury might well say there was not a scintilla of evidence to sustain the theory of the prisoner’s defence : namely: that when the prisoner struck the blows, which caused her death, he had reasonable ground to apprehend a design on the part of his wife to do him some great personal injury or bodily harm, and that therefore, he believed there was imminent danger of such design being accomplished.

I cannot discover, from a very careful examination of the testimony in this case, any ground upon which such theory rests. Assuming, for the sake of the argument, that Mary Driscol was present at the time of the occurrence, and that her statement of what transpired is to be credited, then this defence is equally baseless. For, according to this statement, the only ground he had to apprehend a design on the part of his wife to do him some great personal injury or bodily harm, and from which he could believe there was imminent danger of such design being-accomplished, was the circumstance, that as he was leaving the room in which the deceased was, she threw the lid of an iron kettle after him at the door. Now there was no evidence that he knew or saw this thing thrown after him, but the strong inference is that he knew nothing about it. He was going out of the room, and it was flung after him, at the door; or as I understand it, as he was passing out the door. There is no evidence it attracted his attention in any way, or that it hit him, or came near hitting him. It was not a weapon, in the hands of a woman, thus thrown, of a very deadly character, or if he had seen it or known of its being thrown, much calculated to excite an apprehension in his mind that his wife intended to do him some great personal injury or bodily harm. As it does not appear that he knew anything about it, it is an obvious and material inference that no such apprehension was excited or had any existence. Again, this occurrence was at least, according to Mary Driscol’s statement, fifteen minutes before the altercation aróse in which he inflicted the fatal wound upon the deceased. During that period he had sufficient time to cool; and as no renewed attempt was made, either by threats or acts, to inflict any injury upon him, it is not seen how this circumstance can be invoked to aid the prisoner in establishing the existence of any such apprehension at the time of the homicide. It cannot be pretended that any previous apprehension can afford any justification. It must be an apprehension existing at the time the prisoner struck the blow.

It becomes now necessary to examine-the particular evidence offered by the counsel for the prisoner, and excluded. The prisoner called a witness, not present at the time of the homicide, to speak of the general character of the deceased. Good character on the part of the prisoner has always been admitted, as it tends, when established, strongly to show that the accused could not have been guilty of the crime charged; and such good character is a leading element in establishing the innocence of the party accused. But it is certainly novel, in the administration of criminal justice, that the bad general character of the person slain can either tend to show that the party charged is not guilty of the homicide, or in any sense mitigate the crime of taking life. Equality before the law is a maxim of criminal justice, and the life of the humblest and most abandoned is equally entitled to the protection of the law as that of the most cultivated, refined, or elevated. It is not for man to say which shall be taken and which spared.

The defendant’s counsel put three questions: 1. Do you know the general character of Mrs. Lamb—that is, whether she was a fighting, vindictive, brutal nature or not ? 2. Was Mrs. Lamb of a quarrelsome, vindictive, and brutal character ? 3. What was her general character for peace and quietness ? These three questions wbre severally objected to by the counsel for the people, and the objections sustained, and the counsel for the prisoner excepted; and these exceptions present the only questions arising upon the evidence. It is conceded that such evidence can only be proper in a case where the evidence shows that there was an assault committed or threatened by deceased upon the prisoner, and a doubt was created whether the homicide was perpetrated from malice or to repel an assault, and from a principle of self-defence. Row, it has been shown, and, it is submitted, conclusively so, that no such question legitimately arose upon the evidence in this case. The deceased was not shown to have committed any assault upon the prisoner, nor did she threaten to commit any. There was no foundation, therefore, for the position that the prisoner committed the homicide in self-defence, or from any apprehension of any great or any bodily harm. The testimony could, therefore, have been properly excluded on the ground of its irrelev.tnoy ; and I cannot see. that it was admissible upon any principle, upon the facts proven upon this trial. The defense set up must be such as the facts developed will sustain, and if no assault upon the prisoner has been committed or threatened, then the defendant’s counsel concede, the evidence of character of the deceased is inadmissible. It must be an assault committed or threatened at the time of the homicide, or so immediately preceding it, or so intimately connected with it, as to justify the taking of life in self-defense, or to ward 'off great, impending and imminent danger of bodily harm. It is unnecessary to recapitulate the evidence to show that no such state of circumstances existed here.

That these views are abundantly sustained by text writers and authority, a reference to some of them will satisfactorily appear. Wharton, in his American Criminal Law, § 641, thus lays down the doctrine:—“ On the trial of an indictment for homicide, evidence to prove that the deceased was Avell known and understood generally by the accused, and others, to be a quarrelsome, riotous and savage man, is inadmissible.' In the eye of the law, to murder the vilest and most abject of the human race, is as great a crime as to murder its greatest benefactor. In one or two cases, however, while the law, as above laid down, was distinctly recognized, it has been said, that when the killing has been under such circumstances as to create a doubt as to the character of the offense committed, the general character of the deceased may sometimes be drawn in evidence; but the rule undoubtedly is,- that the character of the deceased can never be made a matter of controversy, except when involved in the res gestae,, for it is a barbarous thing to allow A to give as a reason for his killing B, that B’s disposition was savage and riotous.” Wharton, in his American Law of Homicide, also (page 249), says: “ It has already been briefly considered how far the character of the deceased for peace and order may be drawn into question, when the defense taken is, that the defendant, from all the circumstances in the case, of which the deceased’s character is one, had reason to be in fear of his life. As was then shown, there have been cases in which courts have been obliged to allow such evidence to be introduced, and it is easy to imagine cases in the future in which it would be impossible to exclude it, but as a general principle the rule continues unbroken, that evidence that the deceased was riotous, quarrelsome and savage, is inadmissible, even though such knowledge be brought home to the defendant himself j any other rule would allow a private citizen to take upon himself the province of government in the punishment of crime.”

Thus it is seen, that as a general principle, such evidence is inadmissible. But when admissible, it must be in a case where the defendant had reason to be in fear of his life, or had reasonable grounds to apprehend great bodily harm. Neither of these essential pre-requisites appeared in this case. Again, it is fundamental to the admission of this class of testimony in a proper case, that knowledge of the character of the deceased must be brought home to the knowledge of the defendant himself. It might be presumed that a man would know the character of his wife in this respect, yet I think this would not dispense with the rules, that it should affirmatively appear, that the defendant had such knowledge, before a foundation can be laid for the introduction of this testimony. The authorities cited to maintain these propositions, are :

Quesenbury v. State, 3 Stewart & Porter, 315; State v. Tackett, 1 Hawks, 210; Wright v. State, 9 Yerg., 342; State v. Jackson, 17 Mo., 544; State v. Tilley, 3 Ired., 424; State v. Fields, 14 Maine, 248; Com. v. York, 9 Metc., 110; State v. Thawley, 4 Harring., 562 ; Com. v. Hilliard, 2 Gray, 294; Oliver v. State, 17 Alabama, 687; Com. v. Siebert, Whar. Homicide, 227-228.

To these citations others may be added: Munroe v. State, 5 Geo., 85; Pritchett v. State, 22 Ala., 39; Franklin v. State, 29 Ala., 14; State v. Hicks, 27 Missouri, 588; State v. Barfield, 8 Ired., 344.

It will be profitable to advert to the facts presented in some of these cases and the point ruled as adjudicated. In Monroe y. State, the court, upon the trial of the prisoner for murder, refused to allow evidence of the violent character of the deceased. Lumpkin, J., in the opinion of the court, says: “ It is further argued that-the court erred in rejecting evidence which went to show that the deceased as a violent, rash and bloody minded man,' reckless of human life, &c. As a general rule, it is true that the slayer can derive no advantage from the character of the deceased for violence, provided the killing took place under such circumstances that showed he did not believe himself in danger. Tet, in case of doubt whether the homicide was perpetrated in malice or from a principle of self-preservation, it is proper to admit any testimony calculated to illustrate to the jury the motive by which the prisoner was actuated, and in this view we think the evidence was improperly ruled out. Reasonable fear, under our Code, repels the conclusion of malice, and has not the character of the deceased for violence much to do in determining the reasonableness or unreasonableness of the fear under which the defendant claims to have acted V’

In Prichett v. State (22 Ala., 39), the prisoner was indicted for murder. The court held, that inasmuch as defendant had not been assaulted, and the killing of the deceased by him would be murder on the testimony, however bad might have been the character of the deceased, the court below properly excluded all evidence on that subject.

Chilton, Chief Justice, in the opinion of the court, says: But however bad or desperate the character of the deceased may be, and however many threats such person may have made, he forfeits no right to his life, until by an actual attempt to execute his threats, or by some act or demonstration at the time of hilling, taken in connection with such character or threats, he induces a reasonable belief, on the point of the slayer, that it is necessary to deprive him of life, in order to save his own, or prevent some felony upon his person.”

In Franklin v. State, the court, per Walker J., says:

“ Whenever such bad character on the part of the deceased thus illustrates the circumstances attending a homicide, and the circumstances so illustrated tend to produce a reasonable belief of imminent danger in the mind of the slayer, the character as mingled with the transaction, is a part of it, and is indispensable to the correct understanding. * * * * When the conduct of the deceased, although in itself innocent, is such that, illustrated by his character, its tendency is to excite a reasonable belief of imminent peril, the evidence ought to be admitted, and the question of its effect left to the determination of the jury.

In Com. v. Siebert (supra), Judge Cunningham said to the jury, “ You may inquire, too, whether the deceased, making as is contended, the first assault, was bold, strong, and of a violent and vindictive character, and the defendant much weaker, and of a timid disposition, and therefore their power was equalized by weapons in the hands of the latter. * * * In the assault of a strong man upon a boy, or a female,—of a powerful individual upon a weaker one, the necessity of taking life in self-defense under an ordinary attack will be more easily discoverable than in an attack by one man upon another, under more equal circumstances.” In Duke v. State (supra), the court through Pebkins, J., say, “As a general rule, it is the character of the living,— the defendants on trial for the commission of crime, not of the person on whom the crime was committed, that is in issue, and as to which, therefore the evidence is admissible.”

In State v. Hicks (supra), the court, per Richardson, J., says, “ If the defendant killed Mills under circumstances that showed that he did not have reasonable cause to apprehend immediate danger of violence to himself, on the ground of vicious character of the deceased, for the law promises the same protection to all men, and it is as great a crime in the eye of the law, to kill without cause, a bad man as a good one.

In Wright v. State (supra), the prisoner was indicted for stabbing Underwood, a free man of color. Upon the trial, the defendant’s counsel offered to prove that Underwood, the prosecutor, was a turbulent, violent, saucy fellow. There was no proof in that case that he had assaulted the prisoner. The supreme court, by Tüblet, J., says : “ The second cause assigned as error is, that the court refused to hear proof to show that the prosecutor, Underwood, who is a free man of color, was a turbulent, insolent, saucy fellow. We think there was no error in this; for supposing him to have been of the character described, we cannot see how this would have extenuated the offense of stabbing him.” In State v. Tilly (supra), the prisoner was indicted for the murder of one William Q-. Martin. There was no evidence on the trial showing or tending to show that the prisoner had been assaulted by the deceased, and in this particular, the case is identical with that at bar. The prisoner’s counsel proposed to inquire of one of the witnesses, “ whether the deceased did not bear the character of being high-tempered, overbearing and oppressive towards his overseers and tenants,” but the question was objected to and excluded, and the ruling sustained. And the same doctrine was affirmed in the case of the State v. Benfield (8 Ired., 344). The prisoner was not assaulted by the deceased, nor was deceased guilty of any acts of violence whatever. The counsel for the prisoner then • offered to prove by the witness, who had formerly lived with the deceased, that his general character was that of a violent, overbearing and quarrelsome man, and that such were his domestic habits. On objection made on the part of the State, the. court rejected the evidence; this ruling was sustained. Ruffin, Ch. J., said,» the law no more allows a man of bad temper and habits of violence to be killed by another, whom he is not assaulting, than it does the most peaceable and quiet men. * * * No such principle or decision is found, as that a person may kill another because from his former course of life as a fighter, he apprehends an assault from him, though it be even a violent one. * * * It is the fact, and not the fear of an assault, that extenuates the killing, upon the supposition that it instantly rouses the resentment to an uncontrollable pitch. Tuckett’s case in 1 Hawks, the Ch. J., says, is the only instance in which, even in a case of circumstantial evidence, it was allowed.

In State v. Jackson (supra), the prisoner was indicted “for feloniously assaulting and shooting one Jonathan Mills with intent to kill him.” The testimony showed that the deceased did not assault, or attempt to assault the prisoner. The prisoner, at a distance of thirty yards from the deceased, shot him, the latter being unarmed. The court excluded the evidence. The supreme court sustained this ruling. Rylahd, J.j in the opinion, said: As to the character of the man shot (that is, Mills) for danger and desperation, it was properly excluded from the jury. There may be cases where the general character would be proper evidence before the jury; it would explain the situation of the parties, and their acts and deeds at the time.”

In Oliver v. State (supra), the prisoner was indicted for the murder of one William E. Hammond. The court held, “ that whether the circumstances are such as to create a reasonable belief, in the mind of the slayer, that a necessity exists for taking the life of another, is a question for the jury, in solution of which they may consider the condition of both parties.”

In State v. Hawley (4 Harr., 562), Booth, Ch. J., says: “ the testimony offered is the general character of the deceased as a violent man. From the fact that we cannot find any case in the books where this evidence has been admitted, nor any principle which would admit it, we fqel constrained to reject the evidence. We do not see how the character of the deceased as a quarrelsome or fighting man is in issue. The question is guilty or not guilty of murder. The homicide being made out, it lies on the defendant to reduce the offense below the grade of murder, and he must do this by evidence of facts, and not by the mere general bad character of the deceased.”

Commonwealth v. Hilliard (2 Gray, 294), was a trial before Chief Justice Shaw, and Judges Metcalf and Bigelow. On the trial of the defendant for murder, there was evidence tending to prove an assault by the deceased upon the defendant immediately before the striking’of the mortal blow; and the defendant offered in evidence that the general character and habits of the deceased were those of a quarrelsome, fighting, vindictive, and brutal man of years and strength, as a circumstance tending to show the nature of the provocation under which the defendant acted, and that he had remarkable cause to fear great bodily harm.

Clifford, objecting, cited York’s case (7 Law Rep., 507, 509).

By the Court.—-The evidence is inadmissible. If such evidence were admitted on behalf of the prisoner, it would be competent for the Commonwealth to show that the deceased was of mild and peaceable character. Such evidence is too remote and uncertain to have any legitimate bearing on the question at issue. The provocation under which the defendant acted must be judged of by the res gestm, and the evidence must be confined to the facts and circumstances attending the assault by the defendant upon the defendant.”

In York’s case, the counsel for the prisoner asked to introduce evidence to the effect that deceased was a man of notoriously quarrelsome and fighting habits, and boasted of his powers as a fighter. This was objected to as irrelevant, and the court sustained the objection. Chief Justice ¡Shaw, in pronouncing the opinion of the court, said: “ The rule unquestionably is., that the general character of neither party can be shown in evidence on trials for homicide. The prisoner has the personal privilege of showing his good character, but unless he puts it in issue, it is not so. The government cannot prove either quarrelsome habits in the prisoner, or peaceable habits in the deceased. There is no limit if we go beyond the res gestm. * * * The cases from Hawks, and from Stewart and Porter, stand alone, and are not of such authority as to require us to leave the established course of practice.

See also Cowen & Hill’s Notes to Phillips on Evidence, 764, note 205.

I think these cases abundantly and satisfactorily show the ruling upon the trial ‘in this ease, excluding the testimony offered, was correct. Indeed, I have not met with a case where such evidence was offered and insisted on, when it did not distinctly appear, that the deceased had assaulted the prisoner, and when that fact thus appeared, then the evidence is admitted upon the principle that it tends to rebut the presumption of malice, or that the killing was in self-defense, or under the reasonable apprehension of great bodily harm. But on the facts proven in this case, the principle contended for has no application. ' There was no error in the statement of the judge to the jury, that the law presumes malice from the mere act of killing, because the natural and probable 'consequence of any deliberate act, is presumed to have been intended by the author. The judge had just read the statutory definitions of murder, and the law implies malice where the killing is premeditated or deliberated. The jury could not have been misled by this remark of the judge. It is claimed also on behalf of the prisoner, that the court erred in its charge when he said to the jury: “ It is not his impressions alone—but the question is, whether those impressions, at the time he formed them, were correct. If they were correct it is a protection; if they were incorrect, then it affords him no immunity or protection.” It is well to see in what connection this language was used. The judge immediately preceding, and in this connection had said: “ the other principle of the law is, that a man is not bound if his life is in imminent peril or danger, to await until he recovers a fatal wound or has some great bodily injury inflicted on him. If he thinks his life is in imminent peril, he has a right to act upon that thought and take life; but if he does it, gentlemen, it is at the risk .of a jury saying, when all the facts are developed before them, whether he was justified in forming that opinion or not. If you are satisfied from the evidence, that the circumstances did not warrant the conclusion he arrived at, and that he took life, it was no justification, and you have a right to convict.” Then follows the sentences objected to, already quoted. It is seen on examination of them that they are only amplifications or illustrations of the previous remark. He had already told them that the justification did not consist in the fact that he concluded that his life was in danger, but that the jury must be satisfied that he was justified in forming that conclusion from the facts before him ; and he therefore, in further illustration, told them that impressions alone were not a justification, but those impressions must have facts for their basis—such facts as would warrant or authorize him in forming or entertaining these impressions; in other words, the impression must be correct. If the impression alone of the criminal that his life was in danger, when such impressions are not reasonable and have no facts for a foundation is an excuse for taking life, it is not difficult to see that every prisoner will have such an impression; if that alone is an immunity, it will be easy in all cases to be availed of.

This portion of the charge is in conformity with the rules as laid down by Bbonsox, J., in this court, in the case of Shorter v. The People (2 N. Y. [2 Comst.], 193). The prisoner in that case was indicted and convicted of the crime of murder. In that case the deceased gave the first blow. The deceased had no weapon, and struck with his naked hand. The prisoner had a knife, with which he inflicted one or more mortal wounds; and Judge Bsonsoir truly said, Where a man is struck with a naked hand, and has no reason to apprehend a design to do him any great bodily harm, he must not return the blow with a dangerous weapon. After a conflict has commenced, he must quit it, if he can do so in safety, before he kills his adversary ; and I hardly need add, that if his adversary try to escape, he must not persevere and give him fatal blows with a deadly weapon.” But upon the precise point now under consideration, Judge Beonson says: “Where.one who is without fault himself is attacked by another in such manner as to furnish reasonable ground for apprehending a design to take • away his life, or do'him some great bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, I think he may safely act upon appearance, and kill the assailant, if that be necessary to avoid the apprehended danger; and the killing will be justified, although it may afterwards turn out that the appearances were false, and there was, in fact, neither design to do him. serious injury, nor danger that it would be done. Be must decide at his peril upon the feet of the circumstances in which he is placed; for that is a matter which will be subject to judicial review. * * * ” And again, he says: “ It is not enough that the party believed himself in danger, unless the facts and circumstances were snch that the jury can say he had reasonable grounds for his belief.

In the view of the facts proven on the trial of this case, the charge of the judge was far more favorable to the prisoner, than the doctrine enunciated by this court in Shorter’s case would warrant. Here the judge told the jury, that the impressions alone were not sufficient. In Shorter’s case we said it was not enough, that the party even believed he was in danger. IBs justification must turn upon this, were the facts and circumstances such, that the jury could say, he had reasonable grounds for his belief. He must decide- at his peril, upon the force of the circumstances in which ho is placed, for his' decision must he subject to judicial review. The judge therefore committed no errors, in this portion of his charge, and if the charge now criticized was subject to exception, everything objectionable in it was removed by the judge charging as requested in the third proposition of defendant’s counsel. He certainly then explained what he understood by the language.

notwithstanding my opinion that no injustice has been done to the prisoner by any of the rulings upon his trial, I nevertheless concur with my brethren, that under the peculiar circumstances of this case, and in view of the provisions of the special statute applicable to ajipeals, in capital cases tried in the Hew York general sessions of the peace (Laws of 1855, 613, § 3), the prisoner should have another trial.

Smith, J.

The testimony in this case, carefully considered, does not, in any view, warrant the defendant’s assumption, that the killing of his wife was justifiable as a lawful and necessary act of self-defence. To maintain such claims, it was essential to show, (1) that the defendant himself was acting in no wise against law in the encounter which resulted in the homicide; (2) that at the time of giving the fatal blow he had reasonable ground to apprehend a design to him of some great personal injury ; and (3) that he also had reasonable ground to believe, that there was imminent danger of such a design being accomplished (2 Rev. Stat., 680, § 3, subd., 2; The People v. Shorter, 2 N. Y. [2 Comst.], 193; The People v. Sullivan, 7 N. Y [3 Seld.], 396).

The defence in each of these particulars, according to the testimony of Mary Driscol, the only witness relied upon by the defendant to prove his plea of self-defense, was that the defendant was the aggressor in the final encounter which terminated in the homicide. His wife had previously hit him on the hand with the poker, and had flung the lid of an iron kettle after him at the door; he stood near the door some fifteen minutes after the missile was thrown, and then advanced upon his wife and struck her with his fist; soon after, she pulled his chair from under him, and he then knocked her down with a stick of wood, and, she getting up, they had a scuffle, in which he inflicted the wound of which she died. The deceased had no weapon after she discharged the iron lid : and there were no facts or appearances justifying the belief that she designed to do him a great personal injury ; and that the danger of the accomplishment of such a design was imminent. If he believed she designed to attack him and do him such injury, he had ample opportunity to avoid the attack, and it was his duty to do so. His right of attack for the purpose of defense did not arise until he had done everything in his power to avoid its necessity (People v. Sullivan, supra).

The instruction given by the judge to the jury, on the subject of justifiable homicide, was, therefore, an abstract proposition; even if it was erroneous, it did not prejudice the defendant.

But viewing the portion of the charge relating to that subject as a whole, and not in detached fragments, it is by no means clear that, it was erroneous. The judge said a man is not bound, if his life is in imminent peril, to wait till he receives some great bodily injury. If he thinks his life is in imminent peril, he has a right to act upon that thought and take life, but if he does it, it is at the risk of a jury saying when all the facts are developed before them, whether he was justified in forming that opinion or not. If the jury are satisfied, from the evidence, that the circumstance did not warrant the conclusion that he arrived at, and that he took life, it is no justification, and they have a right to convict. Thus far the charge was quite unexceptionable. The judge, said further (and this is what is excepted to), It is not his impression alone, but the question is whether those impressions, at the time he formed them, were correct.” If correct, they are a protection, otherwise not. By fair construction, the term correct impression,” thus used, is to be read in the light of the preceding portion of the charge above cited; and it means simply impression warranted by the circumstances,” under which the defendant acted at the time of the homicide. It would be putting a forced and narrow construction upon the charge, to say that it was intended by the court or understood by tlie jury to exclude impressions based upon appearances which were after-wards shown to be false.

The fact that there was no evidence in support of the plea that the homicide was justifiable, was also a sufficient ground for rejecting the offer of the defendant’s counsel to show that the deceased was of a quarrelsome, vindictive and brutal disposition. The authority cited by the defendant’s counsel goes to show that testimony of that nature has been received only in cases where the killing took place under circumstances that afforded the slayer reasonable grounds to believe himself in peril, and then solely for the purpose of illustrating to the jury the motive which actuated him (Wharton’s American Criminal Law, § 641, 4th ed., do. Homicide, 249, and cases there cited).

When offer was made in this case, the witness Driscol had not been examined, and after her testimony was given the offer was not renewed.

Besides testimony substantially of' the character of that offered was allowed to come in, inadvertently or otherwise, in the course of the trial, so that the defendant was not prejudiced by the rejection of the offer.

But there is another branch of the case in respect to which, I think, the court erred. It became a question upon the evidence, whether the homicide was perpetrated with a premeditated design to effect death, or without such design, and in a heat of passion. If the former hypothesis was a true one, the homicide was murder; if the latter, it is one of the degrees of manslaughter.

If the nature of the homicidal act itself furnished presumptive evidence of a deadly intent, the jury were authorized to find that such presumption was overcome by the testimony of Mary Driscol, provided they thought her testimony sufficient entitled to credit.

The only evidence of a premeditated design to effect death, aside from the nature of the criminal act itself, was the testimony of Ann Kennedy, that she saw the prisoner at the door, rubbing a knife on a board, and the testimony of the little girl, the daughter of the deceased, that when Lamb approached her mother, just before he stabbed her, he said to her, “ I will hang for you.” .

The daughter was but eight years old at the time of the trial. The witness Ann Kennedy was grossly intoxicated with liquor immediately after the killing, according to the testimony of the policeman O’Day, a witness for the prosecution—so much so, that the jury would have been warranted in saying that'she was incapable of appreciating or recollecting what occurred at the time of the homicide.

Neither of these witnesses was corroborated in respect to the foregoing particulars of their testimony.

It appeared by the medical testimony introduced by the prosecution, that the wound was on the left side of the neck, and its depth was about half the length of the blade of the penknife shown in court as the weapon used, and that it entered an artery which none but a physician would be likely to find except by accident.

It was thus very doubtful on the whole evidence whether the crime was of a higher grade than manslaughter.

In this state of the testimony, the defendant gave evidence of his general good character, and it was not contradicted.

It was an important item of evidence, and the defendant was entitled to its full benefit.

The court charged the jury in respect to it as follows: “ Good character, as all judges have charged juries, is a shield and protection where it is offered, in doubtful cases, but in a clear case it affords no protection. Tet it is for you to say how far and what degree of weight, you will give to that testimony. * * If you think it entitled to any weight, you can regard it; if you do not, you can reject itIn so far as the charge left it to the discretion of the jury to utterly disregard the uncontradicted evidence of the defendant’s good character (a,nd it seems to have done so unqualifiedly), it was erroneous, and prejudicial to the defendant.

The true rule is that such evidence must in any event he considered by the jury, together with the other facts and circumstances of the case ; it is not merely of value in doubtful cases, but will of itself sometimes create a doubt, when none could exist without it, and if good character be proved to the satisfaction of the jury, it should turn the scale in favor of the defendant, even in cases where, without it, the whole evidence would slightly preponderate against him (Stephens v. The People, 4 Park. Cr., 396; Cancemi v. The People, 16 N. Y., 501; 2 Russ, on Crimes, 785-86).

This inaccurate instruction was the more damaging to the defendant in consequence of some other features of the charge, relating to the question whether the crime proved was murder or manslaughter.

The judge read the statutes defining these offences, and then said: “You perceive, gentlemen, that our law has made provision for almost every circumstance connected with homicide, reducing it down, and, in point of fact, leaving it purely to the decision of the jury, where there are doubts.” At the close of the charge, the counsel for the defendant, evidently apprehensive that this language would be understood by the jury as an intimation that if they were in doubt as to the grade of the offense proved, they could convict of either in their discretion, asked the court to charge “that if the jury have a reasonable doubt, from the evidence, as to what degree of guilt to convict, it is their duty to convict of the lesser degree.” In reply, the court said to the jury, “that is.a matter purely for your determination. If you are not satisfied that he intended the act, as I said before, you can find him guilty of either of the lesser degrees.” How, the rule which the defendant’s counsel asked to have submitted to the jury was strictly correct, and applicable to tire evidence in this case (3 Gray, 463-66; Wharton's Am. Cr. Law, § 710, 5 ed.). It would perhaps be hypercritical to say that the charge was not intended to comply with the request, but it certainly lacked that- degree of clearness and precision with which it is desirable that controlling rules of law should be laid down to the jury, especially in capital cases.

Again, the judge charged the jury that the law presumes malice from the mere act of killing. The proposition is true in the abstract, and is strictly applicable to the case where the killing is proved to have been done by the defendant, and nothing further is shown; that where circumstances of accident, of necessity, or infirmity appears, all the evidence which the jury find true is to he considered, and no excuse or justification being shown, if the jury are satisfied beyond a reasonable doubt that the homicide was perpetrated with malice, it is their duty to return a verdict of murder, otherwise of manslaughter. In this case the rule was stated without its qualification.

Lastly, the testimony of the little girl, and that of Ann Kennedy, although admissible, were to be received with very great caution, owing to the circumstances above adverted to, yet their statements were distinctively presented by the court to the jury as evidence to he considered, in determining whether the defendant acted with a premeditated design to effect death ; but no instruction was given as to the unusual degree of caution with which the testimony should be scrutinized and weighed.

These several features of the charge, although, perhaps, not amounting to errors for which a new trial would be granted in ordinary cases, were unfortunately calculated to confirm .the wrong impres-ion which the erroneous ruling in respect to the evidence of good character inevitably produced in the minds of the jury. Under the provisions of the special statutes, which give us a peculiar jurisdiction in this case (Laws of 1855, p. 613, c. 527, § 3), I think the defendant is entitled to a new trial.

I am therefore of opinion that the judgment of the supreme court, setting aside the conviction, and ordering a new trial, should be affirmed, and that the record, with the judgment of this court, should be submitted to the court of general sessions of the city and county of Hew York, to proceed therein.  