We find the evidence sufficient to sustain the conviction. After the beginning of the altercation described in the prevailing opinion, the defendant went into the kitchen, an adjoining room, and procured a kitchen knife and returned and stabbed and killed the decedent. When she left the kitchen she was only a few steps from a side door through which she could have left the house. *181However, she chose to return and to attack the decedent with a dangerous weapon. Before that time some of the members of the party had endeavored to induce the defendant to leave by the front door, but she had resisted and refused to do so. There was ample evidence upon which the jury was justified in finding that the defendant was the aggressor throughout.
We cannot agree with the view expressed in the prevailing opinion that the finding implicit in the jury’s verdict that the homicide had not been committed in self-defense was against the weight of the evidence. Section 42 of the Penal Law provides that “ An act, otherwise criminal, is justifiable when it is done to protect the person committing it * * * from inevitable and irreparable personal injury, and the injury could only be prevented by the act, nothing more being done than is necessary to prevent the injury”. A finding of self-defense would clearly have been contrary to the evidence under this rule. Even if the decedent had been the aggressor in the initial altercation, the defendant was under a duty of retreating before using force likely to cause death or serious bodily injury. (People v. Kennedy, 159 N. Y. 346.)
It appears that the stenographer was not available at the time the jury requested the reading of certain testimony, and the testimony was read from the notes of the stenographer by another stenographer. Subsequently, the first stenographer transcribed the testimony. A comparison of the testimony as read to the jury and the testimony as it was originally given discloses that there were very few discrepancies, all of a negligible character. The defendant suffered no prejudice because of this unfortunate incident.
We would affirm the judgment of conviction.
Bastow, Goldman and McClusky, JJ., concur in Per Curiam opinion; Williams, P. J., and Halpeen, J., dissent and vote to affirm in an opinion.
Judgment of conviction and order reversed on the law and facts and a new trial granted.