I favor an afiirmance of the judgment of conviction. The defendant has taken a human fife when in fact he was in full *111command of the situation. While he was not required to exercise the best judgment that the situation required of him when viewed in the light of what we know to be the facts, nevertheless I am not in favor of relaxing the wise rule laid down in People v. Kennedy (159 N. Y. 346), where the court said of the self-defense rule: “ Before a party can justify the taking of life in self-defense, he must show that there was reasonable ground for believing he was in great peril; that the killing was necessary for his escape, and that no other safe means was open to him. When one believes himself about to be attacked by another, and to receive great bodily injury, it is his duty to avoid the attack if in his power to do so, and the right of attack for the purpose of self-defense does not arise until he has done everything in his power to avoid its necessity.” (See, also, People v. Koepping, 178 N. Y. 247, 253.)
Many of our rules of justice mean injustice in some individual cases but are necessary in order that justice may prevail in the average case. They are laid down for the protection of society and if we relax them we encourage irresponsibility which is one of the faults in present-day law making and law enforcement. It may well be that the defendant believed he was in great danger but I am unable to convince myself that he did in fact act in self-defense as that act is defined in the statute and has been interpreted by the courts. According to the defendant’s own account he was too precipitate. It was only seven-thirty in an evening of early July when the days are longest. He says it was light and all the evidence in the case indicates the same thing. Other witnesses saw plainly for a distance of at least one hundred feet. The deceased was moving slowly, walking. There was no sudden movement. The defendant makes no claim that he saw anything in deceased’s hand that he believed to be a revolver. There is no foundation for the argument that defendant thought the razor was a revolver. Deceased was eight or nine feet away when he was shot. The deceased could plainly see the revolver in defendant’s hand. If the razor was in deceased’s hand the defendant could have seen it. I believe it was in his hand. It was found there. Nobody but deceased or defendant could have put it there. I cannot believe that deceased found it and grasped it after he was shot in the brain, which must have caused instant unconsciousness. I believe the fair deduction to be made is that defendant did actually see the razor and was seized with an impulse to shoot which he did; but the deceased was not within striking distance and the defendant with his revolver was in command of the situation. He could have retreated. He could have warned that he would shoot. He did not do all in his power to avoid the *112necessity of shooting and had he done what was within his power there was no imminent danger of any design to injure him being accomplished.
His flight after the shooting tends to reveal his own sense of guilt. His fear of Marzio’s friends or of the “ black hand ” is apparently an artifice since he did voluntarily return and gave himself up. The matter of his self-defense was a plain question of fact for the jury and their finding is well sustained by the evidence.
Six years or less in prison is not too great a penalty for the needless taking of a human life. Even if in an individual sense of justice to defendant, he might be exonerated for having believed himself in danger, I believe the law should be vindicated by his punishment as an object lesson to others. The law recognizes no apology for undue haste. There must be reasonable ground for believing that one is in peril and in addition there must be imminent danger of the threatened injury being accomplished. (Penal Law, § 1055.)
Having reached the conclusion that the facts do not warrant a reversal of the jury’s holding that defendant did not act in self-defense, the question raised as to his former shooting affair is not serious. The defendant’s character and reputation for being “ always peaceable ” had been put in issue by the defendant’s character witness. He was on the stand himself and was subject to cross-examination as to any vicious or criminal act of his life. (People v. Hinksman, 192 N. Y. 421, 433.) The extent to which this may be carried is discretionary with the trial court and will not be reviewed in the absence of an abuse of discretion. (People v. Webster, 139 N. Y. 73, 84, 85.) The evidence elicited showed that instead of being a peaceable citizen he had previously resorted to the use of this same deadly weapon which he had unlawfully possessed for years, to redress a personal wrong; that his explanation of his use of blank cartridges on that occasion was unsatisfactory in view of his having fled the city of Newburgh right after the shooting and that he never returned to that city. No exception was taken to the remarks of counsel in summing up and no ruling or charge was requested and no question of law is presented for review. (People v. Slover, 232 N. Y. 264, 270; People v. Cummins, 209 id. 283, 293; People v. Keller, 186 App. Div. 534, 536.) The remarks of the district attorney were not unjust to defendant. In fact, I see no reason for the application of any principle of abstract justice in behalf of this defendant. He had able counsel and a fair judge. I say this from personal knowledge of them. None but the established rules should be applied. This is not a *113death case. (Code Crim. Proc. § 528.) Errors which do not affect the substantial rights of the defendant must be disregarded. (Code Crim. Proc. § 542.) The result was just in my opinion and the sentence was most moderate.
I favor an affirmance.
Judgment of conviction reversed and new trial granted.