The case made by the testimony of the witnesses on the part of the people in this case, was the case of an affray between the deceased and the prisoner, commenced by a most unjustifiable and violent assault of the deceased upon the prisoner, in or during which affray, the prisoner stabbed the deceased with a knife, and killed him.
I think on the case made by the testimony of the witnesses for the people alone, the prisoner, without being sworn and testifying himself, and without calling a witness, had the right to have the question, whether the homicide was, under the circumstances, justifiable, submitted to the jury in a proper way.
The case made by the evidence on the part of the people, relieved the prisoner from the burden of showing, on his part, that the fatal wound was given, during or in an affray, and under circumstances which gave him the right to have the question as to the justifiableness of the homicide submitted to the jury.
It is not necessary, therefore, in this case, to determine whether the charge of the court to the jury would have been right, had the burden been on the prisoner to show, that the homicide was committed in an affray, and under circumstances which gave him the right to have the question of justifiableness submitted to the jury.
It is clear, taking the case made by the evidence on the part of the people, that the following part of the charge, to wit.: "The killing in this case, has been proved, and is conceded, and there is no doubt as to the identity of the prisoner. With these conceded facts the prisoner asserts that the killing was in self-defence, and justified by the law. It is for him to makethis allegation good by proof. If the defendant has given no proof, tending to show that the act was committed in self-defence, the necessary self-defence of his person, there is no question before you on this point," c., was erroneous, and was likely to have, and probably did have a very unjust and improper influence with the jury, and in producing their verdict. *Page 11
The charge tended to deprive the prisoner of the benefit of the circumstances under which the homicide was committed, as shown even by the testimony on the part of the people.
The judgment of the General Term of the Supreme Court, reversing the judgment of the Court of Sessions, should be affirmed.
All the judges concurring for affirmance, except INGALLS, J., who did not sit.
Judgment affirmed.