While the evidence in this case was sufficient to warrant a conviction as charged in the indictment, the questions of fact presented to the jury were not free from doubt. The case seems particularly close as between murder, second degree, and manslaughter, first degree. Under such circumstances it is peculiarly important that incompetent evidence, prejudicial to the defendant, should not have been received and that the jury should have been accurately instructed.
*453On cross-examination the defendant was interrogated as to a conviction on or about May 30, 1920, for carrying a concealed weapon. He admitted the conviction. The record then contains the following questions and answers: “ Q. * * *; now that trouble that happened was that you were in a crap game at the corner of Ashley and Krupp street — A. I was not in any crap game. * * * Q. And you had an argument with a bunch of fellows; you went across the street and fired into the crowd of fellows, with this revolver — * * * A. I got witnesses here to testify I wasn’t in that crap game. * * * Q. You fired into that bunch of fellows with that revolver that were shooting craps? A. No, sir. * * * Q. You didn’t know any of those fellows you fired that revolver at, did you? A. I didn’t fire any revolver at anybody.” This was proper cross-examination as the district attorney was entitled to inquire as to any vicious or criminal act in the defendant’s life. (People v. Webster, 139 N. Y. 73.)
On the rebuttal, however, the People swore a probation officer in respect to this occurrence and the record of his examination is in part as follows: “ Q. Now will you tell us if he [the defendant] told you anything about firing that revolver at that time, and the circumstances under which it was given? [Defendant’s Counsel]: Just a minute, I object to that upon the ground that that is incompetent, irrelevant and immaterial at this time. The Court: Overruled. [Defendant’s Counsel]: Exception.” After this the witness said: “ The defendant told me he was on his way to church that Sunday of May thirty-first, and he was attacked by a crowd of rough fellows on Peck street, near his home and that one other boy that was with him was assaulted and they tried to beat up this boy; he ran back to the house and got his gun, came back and they chased him again, and that they chased him as far as Krupp and Ashley street and he turned around and fired a shot.” This evidence was clearly incompetent. (People v. DeGarmo, 179 N. Y. 130; People v. Greenwall, 108 id. 296; People v. Sharp, 107 id. 427; People v. Grutz, 212 id. 72; Wigm. Ev. § 1003 et seq.) The error becomes more glaring in view of what occurred on the summing up of the district attorney where, in spite of the objection of defendant’s counsel, the court refused to confine the use of this evidence to the question of the credibility of the defendant as a witness. It is apparent that the district attorney in introducing this evidence and in using it in his argument to the jury deemed it effective against the defendant and I am unable to agree with the majority in holding it merely technical.
The defendant’s counsel requested the court to charge as follows: “ I ask your Honor to charge the jury that the burden is upon the *454People to prove beyond a reasonable doubt * * * that the defendant did not believe that they were in imminent danger of great bodily harm at the time they fired that gun at the defendant [evidently meaning the deceased]. The Court: No, I think I’ll let the charge stand as it is. [Defendant’s Counsel]: Give me an exception.” The request (with the obvious verbal error corrected) properly embodied the rule as to the burden of proof and should have been granted unless previously covered in the charge. (People v. Stern, 201 App. Div. 687; People v. Riordan, 117 N. Y. 71.) In the main charge the learned court instructed the jury in these words: “ Now it is your duty to take this case; view it in the light of the evidence that has been presented, and if the evidence convinces you beyond a reasonable doubt as reasonable and fair minded men, beyond a reasonable doubt as I have defined it to you, that this defendant killed Dixie and that he shot at him with an intent to kill him, and that he was not in imminent danger of irreparable injury to himself and his mother, then your verdict should be guilty of murder in the second degree, as charged in the indictment.” But, almost immediately afterwards, the court restated this proposition in such a way as to imply that the burden of proving the imminent danger was on the defendant, in these words: “And, if on the other hand the evidence of the People fails to satisfy your mind on either of those two crimes, and you are satisfied that the defendant was in real and actual and imminent danger, and that he only did what was necessary to protect himself, under the cases your verdict should be not guilty.”
Previously in the charge the court had also stated the proposition in such a way as to leave the impression that the burden of proving self-defense was upon the defendant: “ He has not any right to attack for the purpose of self-defense until he has done everything in his power to avoid its necessity. He must show that there was some reasonable ground for the belief that he was in great peril and that no other safe means of escape was open to him.”
Under these circumstances, it was error to decline to charge definitely that the burden of proving that the defendant did not believe that he was in imminent danger of serious bodily injury at the time he fired the gun was with the People.
For these reasons, in my opinion, the judgment of conviction should be reversed and a new trial granted.
Herons, P. J., concurs.
Judgment of conviction affirmed.