The failure of the prosecution to produce- any witnesses to show' what took place immediately preceding the shooting, left the question as to whether it was or was not. done in self-defense to be determined by the jury from the version given by the defendant and his six witnesses. Unless they were entirely unreliable and unworthy of belief, or their testimony on its face bore the inherent marks of improbability, there was seemingly a clear preponderance of evidence to support the plea of self-defense. According to the testimony of these witnesses, which is uncontradicted, it would appear that the defendant, while standing upon a public street, was suddenly accosted by the deceased, who with a razor in a case, or partly open, approached him in a threatening manner and, after spitting in his face, told him in effect that he intended to take his life ; that the deceased was a stranger to the prisoner, and that the latter believed that this unprovoked attack was the carrying out of a threat which had been made by one Dorso, with whom the prisoner had had a quarrel that morning, and who had likewise threatened that he would compass the prisoner’s death. Having been informed that the deceased was looking for him, he had some grounds for believing, from the attitude and manner, accompanied by the acts as testified to, with which the deceased approached him, that unless he could escape his life was in danger. He endeavored to pacify the deceased by saying that he did not know him and had no difference with him; *392but this, instead of quieting, seemed to increase the anger of the deceased, which was not mitigated even by the attempt of a third person to interfere and separate them and to dissuade the deceased from carrying oiit his repeated threat to take the life of the prisoner. The latter was near to the house, and the deceased was between him and the street,-and the change of- the defendant’s position with a view to running away, or removing his eyes from watching what, the deceased was attempting to do with the razor, might have given the deceased the opportunity to do the very thing which the prisoner wished to prevent. Failing to accomplish his purpose with the razor, because interfered with, the deceased placed his hand on his right hip pocket, wherein it was subsequently found that he had a revolver, and it was at that moment that the defendant, believing, as he says that unless he protected himself he would be shot by the deceased, reached for his own pocket, in which he also had a revolver, and, being quicker than the deceased, fired the first shot and then ran into the street, where, according to one of the witnesses for the People and some of the- defendant’s witnesses, the deceased followed him, and, fearing that he would be overtaken, he turned and fired the second and fatal shot.
It will thus be seen that the great preponderance of evidence seemingly supported the defendant’s version, that he endeavored to avert a quarrel, and upon failing in this and unable to find a means of escape, he in self-defense fired the first shot, and upon then running and being pursued by the deceased, he turned, actuated by the same motive of protecting his life, and fired the second time.
There was no attempt made to show that any of the persons produced by the defendant were not credible witnesses; and while they do not all agre.e exactly in the details as to just what was said, and vary somewhat in their versions as to the positions, occupied by the prisoner and the deceased respectively during their preliminary quarrel, they all agree on the substantial points that, without provocation, the deceased was the aggressor, provoking a quarrel, and approaching the defendant in a manner and in an attitude which was .some ground for his belief that it was necessary to defend himself. For do we find any inherent improbability in the defendant's version. -As conceded, the deceased and the defendant were utter strangers to each other, and we are, therefore, to assume that, upon the deceased’s *393' approaching the defendant or moving in his direction, the defendant was guilty of a wanton, unprovoked and causeless murder, or we must assume that it was preceded by-a- quarrel such as has been detailed and which led up to the shooting. In addition, we have the fact, which is entitled to some weight, that the defendant was a man of peaceable character, while the deceased was a man of violent and quarrelsome disposition; and being a large, strong, well-preserved man in appearance, he was not a person whom one would be likely, without cause, to incite to a quarrel.
The defendant’s version, moreover, is not only probable, but it alone furnishes some reasonable motive for the shooting, which otherwise is absent. For the prosecution concedes that it is unable to assign any motive for the killing, and has been unable to produce any witnesses directly assailing the defense.- It is true that where all the elements of a crime are made out it is not necessary to show motive. And so when the People rested, after having proved that the deceased was shot by the defendant, the learned judge very properly held that, without proof of motive, the defendant was put to his defense. But in determining the truth of different versions connected with an alleged crime, motive has an important bearing, and should always be considered. Because our experience' tells us that people do not ordinarily cheat or steal or murder without a motive, and our first impulse when we hear or read of a crime is naturally to seek for a motive. These considerations, however weighty, still left the question of whether the plea of self-defense was made out, one for the jury. . . .
The weight of evidence where there is a conflict, the character of the witnesses, and their credibility, are questions clearly within the province of- the jury; and though the prosecution was outweighed in the number of witnesses, this would not justify our interference with the verdict if reached after legal instructions which preserved the prisoner’s-rights. As said in People v. Cignarale (110 N. Y. 27): “ It is a cardinal principle in our jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. It is no more the province of an appellate court than of the court of original instance to determine controverted -questions of fact arising upon conflicting evidence. ¡Neither can lawfully usurp the appropriate function of the jury, and neither *394can substitute its own judgment for that of the jury where the facts are reasonably capable of diverse or opposing inferences;” We should not, therefore, upon the ground that the verdict is against the weight of evidence, set it aside. ■
Where, however, the defense was so strongly supported and the question of guilt so close, we cannot conclude that errors in the charge or in rulings upon ■ evidence were harmless. Among others assigned as errors, our attention is called by the appellant to that part of the record where the learned trial judge, in commenting upon the defendant’s testimony that he (defendant) saw a man trying to grab the deceased, said i£ That man has not been produced here. There is no evidence whatever, excepting the defendant’s statements, regarding that man. The defendant testified: ‘ I saw the man get hold of Barcia to separate him,’ and he said: 1 Let go that man; he never did anything to you;’ and Barcia said: ‘ No, that —:--got to die to-day ; he don’t go home any more.’ Of course if the man who interfered — if he did interfere, and if there was such a man — was brought forward and was put on the witness stand, and if he told the jury what has been testified to here by the defendant, it would aid you very much in arriving at a determination of this case, and would very' much enlighten your understanding of the circumstances, because if there was such a man, and if he tried to separate the defendant and the deceased, and said, ‘ Let go that man; he never did anything to you,’ why it follows, gentlemen, that some third party came in between this defendant and the deceased, and this defendant having heard the threat of the deceased, and having seen the deceased armed with a dangerous weapon, a razor, and this defendant having testified that he had knowledge of his reputation for violence, it is for you to say whether this defendant, being innocent of any quarrel with the deceased, being innocent of any wrong himself, being without evil himself, believed his life to be in danger, and that danger could not be avoided, I charge you that if this third person were present, and he interfered in behalf of defendant, and expostulated with Barcia, and that then, on a public street, an opportunity was presented to this defendant to avoid a quarrel, or to discontinue a quarrel, and to retreat and escape, or go away from the scene with safety to him> self, he was bound to do so.”
*395From this instruction the jury could not but have been impressed with the view which the learned trial judge undoubtedly entertained, that there was no evidence, other than that of the defendant himself, that a third man interfered between the defendant and the deceased, or of the defendant’s having endeavored to retreat to avoid the quarrel. He evidently had forgotten for the moment the testimony of Franzone that he interfered between the parties, as well as that of the witness Locacio, who states that he saw Franzone endeavoring to separate them. And, in addition to defendant’s testimony, we have the evidence of two witnesses that the deceased had driven the defendant up. against the wall, and that at the time further retreat was impossible, and that when the opportunity was present, and before firing the second or final shot, he endeavored, by running away, to escape the deceased. Whether credible or not, the defendant was entitled to the benefit of the testimony adduced, and its value was entirely a question for the jury. While it is no doubt the right and duty of the trial judge to summarize the testimony and endeavor to present it in such form to the jury that its bearing upon the questions for their determination is indicated, yet a statement by him in effect that there was no evidence but the defendant’s upon two salient questions, when such in fact existed, could hot but be prejudicial to the prisoner.
That the defendant had any quarrel with or grievance against the deceased was not shown, and there was, therefore, an absence of proof of motive upon the defendant’s part to kill Barcia; and, the fact of the killing being conceded, if the other ingredients of the crime were established, as already said, motive was unimportant. But the defense to what otherwise would appear to have been a wanton, unprovoked killing, was attempted to be furnished by the defendant’s testimony and that of his other witneses, as to the manner in which he was assaulted, and the belief he was under as to the reason which actuated the deceased in making the attack, namely, the belief that Dorso had incited the deceased to kill him; and after testimony showing that, on the day of the killing, he had been informed that the deceased was looking for him, the defendant endeavored to show what occurred between himself and Dorso, which, in addition to other circumstances detailed, induced his belief in the deceased’s *396murderous intent. Notwithstanding the exclusion of the evidence thus offered of what occurred between the defendant and Dorso, the learned trial judge thus commented upon the absence of testimony on this point: “ There is absolutely no evidence that there was any. connection between Dorso and Barcia, the deceased, or that Barcia and Dorso had any communication about this defendant. There is absolutely no evidence of that, nor is there any evidence whatever to show on what grounds this defendant based his belief that Dorso had sent Barcia to kill him ; and I charge you, that the mere statement, the arbitrary statement of a defendant, pleading justifiable homicide as a defense for the taking of human life, that he believed that the deceased was going to kill him, is not sufficient before a jury, unless he assigns some grounds upon which to rest his belief, and upon which a jury can pass as to whether they be reasonable or unreasonable.”
While great latitude and discretion must necessarily rest with the trial judge in commenting upon evidence in his charge to the jury, the rule as stated in Sindram v. People (88 N. Y. 196) has been often cited with approval, that “ it is desirable that the court should refrain, as far as possible, from saying anything to the jury which might influence them either way in passing upon controverted questions of fact, and perhaps comments on the evidence might be carried so far as to afford ground for assigning error.”
It would serve no useful 'purpose, to quote further from the instructions given to the jury, because, read as a whole, they could not but have impressed the jury with the court’s view that the defense was shallow, suspicious -and ■ unreliable. And this course, we think, should always be avoided, because it is likely to prevent the jury from determining, as is their province, upon their own responsibility, controverted questions of fact.
But passing from the facts to the law, in speaking of reasonable doubt, the learned trial judge said: “You must hold the scales fairly and evenly, and you must bear in mind that, of the two men engaged in that transaction, one of them speaks for himself while the other’s voice is stilled in death, that that death was caused by this defendant, and it is for this defendant to show, and to satisfy you, beyond a reasonable doubt, that the act was justifiable, under the rules of law which you have heard.”
*397It is a settled rule of law that the burden of proof in a criminal case never shifts, and the People are bound to make out. a case against the prisoner beyond a reasonable doubt. In People v. Riordan (117 N. Y. 71), Andrew's, J,, writing the opinion of the Court of Appeals, said: “ The rule that. in criminal cases the defendant is entitled to the benefit of a reasonable doubt applies not only to the case as mad¿ by the prosecution, but to any defense interposed.”
And in the same case, at General Term (7 N. Y. Crim. Rep. 10), Mr. Justice'Martin, writing the opinion, ■ said: “It seems to us quite clear that by this the jury were led to understand that the burden of proof rested upon the defendant to establish the fact that he killed the deceased while acting in self-defense, and that he was required to establish that fact beyond a reasonable doubt, or at least by a fair preponderance of evidence. The tendency, and we think the natural result, of this portion of the charge was to inspire in the minds of the jury the belief that when the People had established a prima faoie case by proving the killing of the deceased, that the law then imposed upon the defendant the burden of satisfying them affirmatively that he acted in self-defense. The vice of this charge rests in the fact that by it the obligation of showing affirmatively that the homicide was committed under such circumstances as to excuse or justify it was imposed upon the defendant, while under the authorities in "this State the burden of proving not only that a human being has been killed, but also that the killing was perjpetrated under such circumstances as constituted the crime charged, is imposed upon the prosecution, and the burden of establishing and maintaining those facts remains with the prosecution throughout the case.”
And in People v. Hill (49 Hun, 432) it was said: “The burden of' proving that the act complained of was committed under such circumstances as to constitute a crime is never changed. It always rests upon the prosecution, and if, upon the whole evidence upon both sides, a reasonable doubt exists as to the guilt of the defendant, lie is entitled to the benefit of it.” We think the charge of the learned judge in this case is directly in conflict with the rule just stated, and that for such error the judgment and conviction in this case must be reversed.
*398• Without discussing the other exceptions relied upon, we think, upon an examination of the entire record, that the defendant is entitled to a new trial, and the judgment of' conviction is accordingly reversed and a new trial ordered.
Van Bront, P. J., Barrett and Rumsey, JJ., concurred; Ingraham, J., concurred in result.
Judgment reversed and new trial ordered.