Without repeating facts descriptive of the homicide, which are accurately stated in the prevailing opinion, I have reached the conclusion that as to the defendant Panaro the record of proof is not sufficient to establish beyond a reasonable doubt that he aided, abetted or participated in the killing of Nicholas Cosaluzzo. His conviction should be reversed and the indictment, as to him, should be dismissed. *Page 319
As to the defendant Ligouri — I find ample proof of his guilt of the crime of which he stands convicted. In the circumstances which surrounded the tragedy the conceded fact that nine bullets were discharged into the body of Cosaluzzo from two revolvers in the hands of Ligouri, three of which bullets entered the back of the deceased, was sufficient to belie Ligouri's claim that he acted in lawful self-defense.
Passing to Ligouri's challenge to that portion of the court's charge relating to the law of self-defense, "The test is always whether the jury, hearing the whole charge, would gather from its language the correct rules which should be applied in arriving at decision" (People v. Russell, 266 N.Y. 147, 153). I believe the rules applicable to the facts here involved were correctly charged. When the evidence closed Ligouri had testified that just prior to the homicide, Cosaluzzo, "pulled out his gun and put it towards me," and that thereupon "I pulled out my guns, the two of them * * * I just put it up and shot once and kept on shooting." The court charged the jury that the act of the deceased Cosaluzzo constituted a felonious assault upon Ligouri. There was thereupon submitted for the jury's determination the question whether in the circumstances surrounding this incident the defendant could justify his act under the law of self-defense. Upon that subject the jury was instructed: "The defendant Ligouri claims that while he discharged these revolvers, what he did was done in self-defense. As I have already said, the law is that an act otherwise criminal is justified when done to protect the person committing it, or another whom he is bound to protect, from inevitable and irreparable personal injury, and the injury could only have been prevented by the act, nothing more being done than is necessary to prevent the injury. A person who is attacked, before he can resort to acts which result in death, is bound to retreat and to avoid the attack, unless the circumstances be such that he believes that he is in such imminent danger of irreparable injury, and the only thing he could do to protect himself *Page 320 and prevent that injury being inflicted upon him, would be to act as he did, and to do no more to prevent it than was necessary * * *. If you believe that Nick unexpectedly pulled this gun and snapped it on him, and under those circumstances he felt the only thing for him to do was to do what he did, discharge and empty both of his guns into him, even though death resulted, that would be justifiable under the law, but he could not do more than necessary, more than what an ordinarily prudent man under the same circumstances would be justified in doing." At a later point the court charged: "If a person kills another whom he claims assaults him, he is under an obligation to retreat as far as possible, unless the circumstances are such that unless he acted as he did he would be the recipient of irreparable and grievous bodily harm."
Believing this charge to be in accord with applicable law (Penal Law, § 1055; People v. Governale, 193 N.Y. 581, 588;People v. Kennedy, 159 N.Y. 346, 348; People v.Constantino, 153 N.Y. 24, 31; People v. Johnson, 139 N.Y. 358,363), I conclude that the conviction of the defendant Ligouri should be affirmed.
LEHMAN, Ch. J., LOUGHRAN and RIPPEY, JJ., concur with SEARS, J.; LEWIS, J., dissents in opinion in which FINCH, J., concurs as to Ligouri but concurs in the grant of a new trial to Panaro; CONWAY, J., concurs in the opinion of LEWIS, J., as to Ligouri but votes to affirm as to both defendants.
Judgments reversed, etc. *Page 321