People v. Cantor

The defendant was indicted for the crime of manslaughter in the first degree, and upon a trial was convicted of the offense charged in the indictment and was sentenced to imprisonment in the State prison at hard labor for a term of ten years. The evidence, as disclosed by the present record, shows that the ease presented a fair question of fact as to whether the defendant was not justified in committing the act for which he was indicted and convicted. Hnder snob circumstances it became the duty of the trial court to protect the defendant in every right which the law has furnished, for his protection, and to see that he had the full benefit of every matter tending to show exculpation for the commission of the act. It also becomes the duty of this court, in review of the trial, to scrutinize the record with care in order that it may see that the defendant has had the full measure of benefit secured to him by the law. To this end we have carefully examined the whole of the testimony and the proceedings had upon the trial. The act charged, constituting the crime, was the shooting of one O’Hara with a pistol on the night of the 5th of January, 1901. It was conceded upon the trial that upon that night the defendant shot O’Hara with a pistol,'inflicting a wound from which he subsequently died. The de

It was established upon the trial that the defendant conducted a pool and billiard room at Eo. 2630 Broadway, in the city of Eew York; that cigars and cigarettes were sold upon the premises, but no liquor was kept or sold in the place, and that the business was conducted in a respectable and law-abiding manner by the defendant. It was also established without dispute that on the night in question one Teatom and the deceased, O’Hara, visited the defendant’s place, arriving there about twenty minutes before twelve o’clock; that Teatom applied to the defendant for permission to play a game of pool and that the defendant refused such permission, stating that it Was too near closing time, and that in obedience to a direction by the police authorities he must close his place at twelve o’clock. The defendant at this time was engaged in playing pool with another person, and he announced to those in the room, of whom there were twenty-five to- thirty persons, that the game then in progress was the last that could be played.

It is clearly evident from the whole of the testimony that the defendant, at the time in question, was conducting his business in a lawful manner and was in nowise interfering with the deceased or Teatom. At the time these men entered the room the hour for closing was near at hand, and defendant did what it, was his lawful right to do, refused their application to play pool and gave the reason why it could not be permitted. Disregarding this refusal, and in defiance of it, they attempted to play, and the defendant, still acting within his legal right, sought to prevent their playing and to remove them from the

In view, however, of the fact that up to the time of the shooting the defendant had acted clearly within his legal right, and that Teatom and O’Hara were guilty of an unlawful act and were the aggressors throughout the whole proceeding, the defendant becomes entitled to have his acts scrutinized with care and to be given the benefit of every circumstance and reasonable doubt of which the case permits. And if, upon all the testimony, a reasonable doubt is presented of his right to believe that he was in great danger of bodily harm, he was entitled to the benefit of such doubt and to have the same clearly, fully and accurately presented for consideration by the jury. We are quite aware that the taking of human life is a matter of such serious import that there must always exist full justification for the act, but it is equally true that a person taking human life, which may be justified dependent upon how such cir

In view, therefore, of the law and the rights of the defendant thereunder, it becomes necessary to examine the charge of the learned trial court upon this subject. In this respect, the court said: “ If this defendant killed O’Hara, as I understand from the'uncontradicted evidence, as well as the admissions of the defendant’s counsel that he did, he is criminally liable for that act, unless you gentlemen come to the conclusion, from all the evidence in the case, that he was legally justifiable or excusable in doing it.” And again, “ it being conceded that O’Hara is dead and that this defendant killed him, was his act justified or excusable before the law ? If you come to the conclusion that he was neither legally justifiable nor excusable, he is then guilty of a criminal homicide.” After defining manslaughter in the first and second degrees the court said: “ If you should conclude that he is guilty, upon the evidence, beyond a reasonable doubt, of manslaughter in the first degree, your verdict will be guilty as charged in the indictment. . . . How, as I said before, gentlemen of the jury, if this defendant, before the law, was not excusable or justifiable in killing the

The court then defined to the jury the question of excusable and justifiable homicide, saying: “ How we come to justifiable homicide, which you have frequently heard alluded to during this trial, and which counsel for tiie defendant, if I remember correctly, stated was their defense. In other words; the defendant says , yes, I did kill the deceased, and before the law I was justified in killing him.’ Therefore, you must understand that you are the judges as to whether he was justifiable or not. You are the ultimate judges to listen to all the evidence, and you are to determine as to whether or not he was justified before the law in taking this human life.”

The court then defined “ justifiable homicide,” stating, so far as is presently important: “ It is an inherent right belonging to every individual, under certain circumstances, to take the law in his own hands; but the organic law steps in and says what those circumstances are which justify him in taking it. He may do it, ‘ when there is reasonable ground ’—mark the words—‘when there is reasonable ground to apprehend a design on the part of the person slain to take his life or to do him some great personal injury.’ The keystone, the keynote, of the law of self-defense is necessity, real or apparent. Whether there is necessity or not is the question which you gentlemen are to determine from all of the circumstances in this case. A man may repel force by force, but he must not use unnecessary force. The force must be measured by the real or apparent necessity. ... In this case, therefore, gentlemen of the jury, it seems to me that that is a very important fact for you to determine; whether you come to the conclusion, from all the evidence in this case, that the defendant had reasonable ground to believe that his own life was in danger, or there was some great personal injury threatening him which was imminent of being put to immediate execution. . . . You are the ultimate judges of the necessity, and the

“ If you come to the conclusion from all the evidence in this case that he had a right to apprehend such a design as I have stated, and that he used no more force than was necessary in repelling the force that was brought against him, then he is clearly not guilty; but, if on the contrary, you believe that he went beyond the necessities of the occasion; that he used more force than was necessary, and that he had no reasonable ground to believe that either there was á design' to take his life or to inflict serious bodily injury upon him, then he had no right to kill this person.” And again, “ If you think, under all the circumstances, that he was justified in taking this man’s life, before the law, as I have defined it to you, or that he was excusable in doing so, acquit him; that ends it; but if you do- not think that he was excusable in doing so or justifiable, I know that you will perform your duty.”

Upon the subject of reasonable doubt the court charged:

“ Now, a word with reference to the question of reasonable doubt. Reasonable doubt, as I have frequently said to juries, in my judgment, 'is best defined by the words themselves ‘ reasonable doubt-’ The term does not mean an unreasonable doubt. It does not mean a speculative doubt. It does not mean a doubt which you can find outside of the evidence of the case. Therefore, reasonable doubt, as I always say to a jury, is a doubt which is reasonable and twelve intelligent men come to upon the evidepce. The only lamp which you have to guide you, or the principal one, is the testimony in the case; and if you, gentlemen, on reviewing the evidence carefully and conscientiously, can conscientiously say, ‘ Well, I have a reason

Nothing else was said upon the question of reasonable doubt, except when the court spoke of that subject in connection with the definition of the crime of manslaughter in the first degree. The court in its charge called attention many times to justifiable and excusable homicide and all of the substantive parts upon that subject we have quoted. There was not a syllable in the charge of the learned court upon this subject which explained or intimated to the jury what might be the effect of the evidence given to establish the defense which the defendant interposed to the indictment, even though it failed to satisfy the jury affirmatively. Under the evidence, as we have seen, and the law applicable thereto, the burden of establishing the guilt of the accused of the crime charged in every essential aspect, rested upon the People. They bore that burden from the beginning to the end of the trial. We think it impossible to read this charge and fail in concluding that the jury must have received the impression that the burden of justifying the act rested upon the defendant and that it was not sufficient that the defense raised a reasonable doubt of the guilt of the defendant of the crime charged. The personal pronoun was used in almost every instance “ Was he justified, not, whether the People had established to the satisfaction of the jury beyond a reasonable doubt that the defendant was guilty of the crime charged. To this charge the defendant was clearly entitled; and not only so entitled, but the evidence clearly justified; and not only justified, but required, that the jury should be made fully to understand the obligation that rested upon the People to establish, beyond a reasonable doubt, that he was guilty of the crime charged. We cannot escape the conclusion that there was conveyed to the minds of the jury the impression that the defendant must establish to their satisfaction that the act was either justifiable or excusable. Such impression was distinctly prejudicial to the defendant and could scarcely have resulted

It follows that the judgment of conviction should be reversed and a new trial granted.

Van Brunt, P. J., and O’ Brien, J., concurred; Ingraham, J., dissented.

I dissent. It is conceded that there was presented a fair question as to whether the defendant was or was not justified in. killing the deceased. As I understand the prevailing opinion, it is also conceded that there was no error in the charge of the court as delivered. There was no exception to the charge, and no request to charge that the court refused. The judgment is reversed because it is claimed that the court failed to explicitly charge that if there was upon the whole case a reasonable doubt as to whether the defendant was justified in taking life, the defendant was entitled to the benefit of that doubt. The court charged that if the jury should conclude that the defendant was guilty upon the evidence, beyond a reasonable doubt, of manslaughter in the first degree, their verdict should be guilty as charged in the indictment. That if the jury “ can conscientiously say, ‘ Well, I have a reasonable doubt, on the evidence, as to whether this man is guilty or innocent/ then it is' proper that he should be acquitted.” If the defendant was justified in taking the life of the deceased, he was not guilty as charged in the indictment, and so the jury were told in express terms, and I think the charge of the court covered the position taken in the prevailing opinion, that if there was a reasonable doubt as to whether or

Judgment reversed and new trial granted.