People v. Hill ( 1892 )

Martin, J.

The material issue in this case was whether the defendant killed Robert Peasley under such circumstances as to constitute a crime, or whether such killing was justifiable. That being the principal issue in the case, the court charged: “If you shall believe that the defendant was justified in this attack, and I mean by that if you shall tie convinced by the evidence beyond reasonable doubt that he was justified in it, then your verdict shall be, ‘FTot guilty.’ ” Thus the court, in effect, instructed the jury, not only that the defendant must justify his attack, thereby casting the burden of proof upon him, but that he must bear such burden to the extent of establishing such justification beyond a reasonable doubt. Manifestly, this was error. Stokes v. People, 53 N. Y. 177; People v. Downs, 123 N. Y. 558, 25 N. E. Rep. 988; People v. Hill, (Sup.) 3 N. Y. Supp. 564; People v. Riordan, Id. 774, affirmed, 117 N. Y. 71, 22 N. E. Rep. 455. The charge being erroneous, we cannot say that the defendant was not possibly injured or prejudiced by the error, although the court correctly instructed the jury upon this question in other parts of the charge. Greene v. White, 37 N. Y. 405. For this error we think the judgment and order should be reversed,

Moreover, we are disposed to think that the trial court should have received the evidence of the witness Amasa B. Waters, taken on the former trial. ■ That such evidence was admissible, if the proof of the death of the witness was sufficient, there can be no doubt. While it may be that the proof was insufficient to establish the fact of death in ah action where it was a direct ■issue, yet, as the question arose in this case incidentally or collaterally, we think the evidence was sufficient to have justified the court in admitting the former testimony of the witness. Judgment and order reversed, and the clerk directed to enter judgment and remit a copy thereof, with the return and decision of this court, to the clerk of Delaware county, pursuant to sections 547, 548, Code Grim. Proc.

Merwin, J., concurs.