. The defendant was convicted of the crime of assault in- the second degree in' shooting one Antonio Oicillo with a pistol. . The complainant and the-defendant are Italians, and had been acquaintances in Italy. The complainant testified -that he -met the defendant .upon the' street, each in company with a friend, and that, after some preliminary conversation,. “ 1. said to the defendant Gatto, ‘Ton told somebody that you called my sister-in-law. a-my. sister-in-law. who is in Italy.’ He grabbed me by the throat^ and had an umbrella-in his other hand, and he struck me with the umbrella. ' I took aVvay the umbrella from his hand. When I took the umbrella away from him he put his hand in his inside epat pocket; and I started to run away from him and-lie shot meiright underneath the right arm. As soon- as I received the shot I turned around and saw the defendant Gatto running away; While he .was running I saw the pistol *85in his hand. * * * The defendant had an umbrella with him that morning. When he grabbed me by the throat and lifted the umbrella and struck me, I took it away from him ; I had it in my hand. I did not go to strike him with it. I used force to take it away because he had me by the throat.”
Pitello, a witness for the People, testified : “ I saw the two were getting hold of each other, Gatto and the complainant; we attempted, • de Stefano and I, to separate the two, and at that moment'the defendant Gatto, put his hand in his coat pocket, inside coat pocket, and drew a revolver, and the' complaining witness had Gatto’s umbrella in his hand, When the defendant, Gatto, got the pistol out of his pocket, Oicillo, the .complainant, hit the defendant with the umbrella. He hit him' on the arm where the fellow had the revolver. Gatto then shot the complainant, and when Gatto shot the complainant he, Gatto, ran in the yard. * "x" * I do not know who struck the first blow. * * * As soor. as he pulled the pistol out of his pocket, the complainant hit the defendant on the hand with the umbrella.”
The defendant took the stand in his own behalf, and testified that while he and the complainant had formerly been friendly, they had ceased to be so from the time that Oicillo received a letter from Italy, stating that defendant’s father had sued Cici'llo’s sister in Italy ; that after that Oicillo had threatened to kill him ; that he kicked him two of three times on -me occasion, after which he was sick for five months ; that upon another occasion he had punched him seven or eight times, saying, “ That pig of a father of ¡ yours is making a lot of trouble in Italy and I am going to have revenge here; ” that upon the morning in question, as he was going out of the house with a friend, he encountered the complainant and that de Stefano and Oicillo began to speak together. “ When these two men started to talk, Oicillo * * * looked at me in a threatening manner and 1 was afraid that he was going to do something to me again. So I started to walk away from him towards my house. .Then the complainant said to me, ‘ Come with me,’ and I answered, 6 Where do you want me to come % ’ Then the complainant got hold of me by the lapel of the coat and he hit me three or four times and threw me down on the ground. I had an umbrella in my hand and when 1 fell down the complainant took the umbrella away. *86from me and was trying to stick tlie end of the umbrella in my'' eye. : Antonio de Stefano- * * * was also on top of me and * *■ ■* was holding tlie complainant, preventing him from hitting me. As I was getting up from the. ground, de Stefano let goof the complainant and the complainant went at me again and. I again fell. Then he attempted to strike me again with his umbrella and I pulled the pistol out of my pocket and shot in the air to attract the attention of the police. He hit me two or three times with the umbrella. * * * Q. At the time you fired'the .pistol in the air, as you say,-did you believe the complainant intended to do you bodily harm ? A. Tes, because he had something in his hand which I thought was a razor and that he wanted to cut me.” “ When I pulled out the revolver I was on the ground. When 1 told you that I pulled out the revolver when 1 was -running, away X mean by that that I took the pistol out of my pocket while I was on the ground and then.I got up and started to run away.” “He blackened both my eyes before he took .the umbrella away from 'me. When I was lying on the ground there, the three .of them, Stefano, Pitello and Cicillo were on top of me, the otlier'two-were trying to get Cicillo off, I believe. * * * He cut my eye with the umbrella; it left, a mark there on the right ■ eye.” The. mark ! was shown to the jury, and .a policó'officer testified'that shortly after the arrest he saw á cut on the defendant’s nose appearing to- be ' about a half hour old. One Lopez testified that the complainant, hit the defendant first. ■
•' Thére was presented upon contradictory evidence a question of fact for the determination, of the jury, and there was sufficient" evidence, if believed, to warrant the verdict arrived at, and upon the facts I see no -reason to interfere with that verdict.
There- was presented, however, evidence tending to show prior threats and assaults by the complainant upon the defendant; an ■ altercation upon the‘street, in which the complainant took away the. defendant’s 'umbrella, strnok -Him with it, blackened his eyes', cut • his face, - threw him down and continued to assault him until the ’ shot which the' defendant swore he fired wlien in fear of grievous bodily harm. There was thus presented evidence, which, if believed, might have been sufficient to have raised -a question of reasonable . doubt in the minds of the jury or some members thereof, as to " *87-whether the defendant was -guilty of the crime of assault in the second degree, namely, willfully and wrongfully assaulting another by the use of a weapon or other instrument or thing likely to produce grievous bodily harm. In other words', there was presented upon the evidence the defense of self-defense, and the learned court, in its charge, presented the question of self-defense as one of the issues to be determined by the jury. At the close of the main charge counsel for the defense said: “ I ask your. Honor to charge the jury that it is not necessary for the defendant to establish the defense of self-defense beyond a reasonable doubt. The Court: Ho, it is for the jury themselves to say whether there is a preponderance or enough to satisfy them that there really was a necessity for self-defense: [Counsel for the defense] : I except to your Honors*refusal to charge as requested.” There was thus presented the only question in the case which seems to be necessary to consider. '
It is settled beyond controversy that the burden rests upon the People from the beginning to the end of a criminal case to establish the defendant’s guilt beyond a reasonable doubt. It is also settled that although the People have made, a prima facie case and the defense of self-defense is offered, the burden does not shift and the defendant is neither obliged to establish that defense beyond a reasonable doubt, nor by a preponderance of the evidence.
In People v. Riordan (7 N. Y. Cr. Rep. 10) Mr. Justice Mabtin 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 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 perpetrated 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.” In the same case the *88Court of Appeals (117 N. Y. 71) said-: “ The rule that in criminal cases the defendant is entitled to the benefit óf a reasonable doubt ■ applies not' only to the case as made by the. prosecution, but to any defense interposed;” and concurred in the opinion of the General Term.
The rule was stated in People v. Hill (49 Hun, 432), as follows : “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,, .he is entitled to the benefit of it.”
In People v. Shanley (49 App. Div. 56) t'he trial court had charged : “But where a defendant comes into court, and sets up self-defense as a plea then' the-rulé of law is changed, for the reason that the burden of proof is upon the defendant to show that he did commit the act in self-defense. Therefore, if you consider his defense as being one entitled to serious consideration you must, find that this defendant has established it on his paid by a. preponderance of evidence.” The Appellate Division said: “ It is clear that the charge as made by the court, that the burden of proof was upon the defendant to show that he did commit the act in self-defense and- that, he must establish such fact by á preponderance." of evidence was error,” and upon a careful review of the.cases reversed the conviction. -
In People v. Epaski (57 App. Div. 91), where the defense of self-defense was interposed, the-trial court had charged, “But that in this.case, if you find that the., defendant admits the killing then you are to say" whether he has established to your satisfaction that he was justified in killing; ” the Appellate Division said, “ That the charge was erroneous, .requires no special discussion^” and reversed-the conviction. v 1
As- the learned court in the case at bar had not referred" to the matter made the subject of the request, it was the clear legal right of .the defendant to have the jury instructed as.-requested, said" ■request being proper in form and substan.ee. ■ Instead of charging it, the court said: “ Ho, it is for the jury themsélves'to say whether there is a .preponderance or enough to satisfy them that there really was a necessity for self-defense.” Giving to this the construction *89most favorable to the prosecution it was an instruction to the jury that the defense need not be made out beyond a reasonable doubt, but that it must-be by a preponderance or enough to satisfy them that there really was a nécessity for self-defense. This was an unwarrantable shifting of the burden and it is no answer to this error that the jury have determined the question of fact against the defendant and that the provisions of section 542 of the Code of Criminal Procedure should be applied. I do not Understand that an error of law in the charge, duly excepted to, which shifts the burden of proof in a criminal case is such an error as we are justified in overlooking under the provisions of said section. There was enough, as it seems to me, in the evidence of -previous threats, assaults and the altercation itself, if believed, to have raised the question of reasonable doubt, a matter solely for the jury and each member thereof, and the fact that finder this charge the jury' have not given weight to said evidence is no answer, because it may have been on account of the charge that the verdict, which we are now called upon to review, was rendered.
It follows, therefore, that the judgment should be reversed and a new trial ordered.
Judgment aifirnled. -