McKenna v. People

Headnote

Trial for homicide — character of deceased for violence — how proved.

Writ of Error to the Court of General Sessions in the city and county of New York, to review the conviction of the relator of the crime of manslaughter in the third degree.

The death of the deceased was caused by a wound, which the evidence tended to show was produced by the discharge of a pistol in the hands of the prisoner.

The court at General Term said: “ During the progress of the trial the prisoner’s counsel inquired of a witness, who was a member of the police foi-ce, whether he had ever arrested the deceased ? This was objected to; and the prisoner’s counsel replied that he deshed to show the character of the deceased for violence, and that he had placed the prisoner in a position of self-defence, and while it was claimed that neither shot the deceased, it was still insisted that the prisoner had a right to show his character for violence. Whether the prisoner had this right or not, as the controversy was narrowed in this case, was not determined by the court, but the ruling was made simply and solely as to the question propounded to the witness. That question was overruled, and the prisoner’s counsel excepted. The court made no further ruling at this time, and did not hold that the prisoner could not show what the character or disposition of the deceased for violence had been, and the point was not again presented for consideration. The ruling, resting as it did exclusively upon the question which was asked, was proper. If the fact would have

bad any relevancy at all to the case it would simply tend to prove an isolated act of misconduct on the part of the deceased, and that could not be shown in a case of this description to prove his disposition. Particular instances of misconduct of the deceased, in no way comiected with the accused, could not be proved for the mere purpose of showing a violent disposition on his part. The appropriate and proper mode of establishing that, if it be the fact, is by general evidence showing the character and disposition of the person who has been killed. (Eggler v. The People, 56 N. Y., 642 ; Thomas v. People, 67 id., 219, 223; Jackson v. Osborn, 2 Wend., 555 , 558.) Where the character of the deceased for violence may properly be proved in the case, general evidence is all that can be given, and that in certain cases may be appropriate and proper. (.People v. Lamb, 2 Keyes, 360; Wharton’^ Criminal Law [4th ed.J, section 641.)”