People v. Gatto

Ingraham, J.: The defendant'was indicted for assault in the second degree. The assault was committed upon one Antonio Cicillo, who testified that he had known the defendant for twenty-three years; that on the 20th day of Sovember, 1906, he met the defendant in'front of 105-J Cherry street, who' asked the witness if he had written a letter to his brother; that the complainant then said to the defendant, “ Why do you tremble?” to which the defendant answered,."This is none of your business.” The witness then charged the' defendant with haying spoken disrespectfully of the-witness’ sister-in-law'who was in Italy. Whereupon ;the defendant grabbed the witness by the' throat and struck him with an umbrella; that the witness took the umbrella from the defendant, when the defendant put his hand in his .pocket; thereupon the complainant started to run away from him, but'the defendant shot him with a pistol underneath his right arm, and that after the defendant shot the complainant he ran away. Ro pistol was found upon the complainant, and he seenas to have had no weapon, of which the defendant could have been at all .in danger. The complainant also testified that the defendant at the [82] tinie' told the complainant that he was going to kill him because the complainant’s sister-in-law had a case with the defendant’.s, father in Italy. The complainant was. corroborated by-a companion who was with him at the time. A policeman, who arrested the defendant testified that the defendant said, he shot the complainant because the complainant’s sister-in-law was annoying his father in Italy. ■ The defendant was examined as-a witness in his own behalf. He testified that the complainant had 'threatened to. kill him some- time before, this shooting; that on two occasions- the complainant had assaulted him, all based upon .this dispute in Italy; that when they-met at the time of the, shooting complainant looked at him in a. threatening manner, and that the defendant was afraid that he was going to do something to him; so he started to walk away, and then' the- complainant said to the defendant, “ Come with me,” to which-the defendant answered, “Where do you want me to come?”, that the complainant then took hold of the defendant by the lapel of the coat and hit him two or three times and threw him down on the ground ;■ that. the defendant had an umbrella in .his hand which the complainant took away and attempted to put the umbrella in the defendant’s eye; that the defendant’s companion then took hold .of.the complainant and the defendant got. up, whereupon the complainant struck him again and again the .defendant, fell ; that the Complainant then renewed liis.effort with.the umbrella, whereupon the defendant pulled a pistol out of his pocket and shot-in the air ■ to attract the attention of the police; that he got the pistol only that morning,, taking it from a boarder;-that at the'time the-defendant fired the- pistol in: the áir be believed the complainant intended, to do him-bodily harm because the complainant had something in. his band which the. defendant thought was'a razor. ... The'witness.examined ,on behalf of the defendant- testified that h.e. saw.the defendant running away and the complainant hitting' him jjuth an umbrella, and that it was after the two men got into a house that the shot was fired. -.- There is no.evidence in this case, unless it be that of the defendant, that .would'justify a. finding that the offense was< committed’in - selffdefense. There Were several people in the street at the time. Hot. fine., of .them testified to any-.'act. of the complainant: which would justify the defendant.in considering tlját he was. in danger of [83] his life or serious bodily harm. The complainant and his companion, who were in the street, testified to an unprovoked assault. The testimony of the defendant was contradictory and unsatisfactory, and was contradicted by his own witnesses. The defendant committed a dangerous assault by the use of a pistol which he was carrying in violation of law. His excuse that he fired the pistol in the air to attract the attention of the police is contradicted by defend-, ant’s witnesses; and his account as to the injuries that he received in the fracas is contradicted by the police officer who arrested him. The only question is as to the response of the court to a request to charge of the defendant. The court charged the jury in substance that if the defendant was under the apprehension that his life was in danger, even though it was not in danger, if he was under the honest belief that there was danger to his life or limb and that he was trying to escape from that danger when he shot-this man, then the jury should acquit the prisoner. This was much more favorable to the defendant than was justified. The jury were further charged that if they found that there was “ no exercise of .that defense which the law permits a man to call to his own protection in the hour of danger, then [the defendant] is guilty; if you find that beyond a reasonable doubt. But the law presumes every defendant in a criminal action to bé innocen t until the contrary is proved, and that contrary must be proved, if a conviction is to be supported, beyond a reasonable doubt; ” and, further, that if a reasonable doubt arises in the minds of the jury from a consideration of all the facts of the case, the defendant is entitled to the benefit of it; that the jury may convict,, if- they find him guilty beyond a reasonable doubt. The defendant then requested the court to charge the jury that it was not necessary for the defendant to establish the defense of self-defense beyond a reasonable doubt, to which the court responded, “ No, it is for the jury themselves to say whether there is a preponderance or én-ough to satisfy them that there really was a necessity for self-defense.” ■ All that was excepted to was an assumed refusal of the court to charge the request, when it would seem that the court did charge that it was not necessary to establish the defense beyond a reasonable doubt. There was no exception to the instructions that the court gave the jury that it was for the jury themselves to say whether there was a preponderance or enough to [84] satisfy the jury that there really was a necessity for self-defense. The attention of the court, was not called to .the distinction- now sought fo be'taken that the. burden was upon the prosecution to establish the guilt of the defendant beyond a. reasonable doubt, and the burden was not. upon the defendant to establish self-defense. ■ But, as before stated; the court had told the jury that they must find the defendant guilty beyond a reasonable doubt, and. had explained in a way that was cpiite .favorable to the defendant what would, justify the-defense of self-defense; arid reading what the court said in connection with the rest of the.-charge, I- do not think that-the observation is fairly capable of the construction that it was intended to show that there was any burden upon the defendant or that the former charge that the People must prove their case beyond a reasonable doubt, was at all modified. It is quite clear.that, this defendant was guilty; that nothing. occurred'that justified the defendant in shooting the eornplainant, and"! do not think that any error was'committed,, taking the charge as a whole, in the submission of the case to the jury that would justify a reversal of the judgment. ■ The judgment appealed from- should be affirfned. McLaughlin, Laughlin and Scott, JJ., concurred; Clarke, J., dissented.