Judgment unanimously reversed on the law and facts and indictment dismissed. Memorandum: Defendant had been charged with assault in the third degree resulting from an altercation which occurred on premises in which he lived. After certain proceedings were held in the Court of Special Sessions defendant was adjudged not guilty and the ease was dismissed upon the ground that he acted in self-defense with cause and provocation. Thereafter the victim who participated in the altercation died and defendant was indicted for manslaughter in the first degree and two counts of assault in the second degree. Before trial the court dismissed the assault counts on the ground of double jeopardy. Upon the trial of the manslaughter charge the jury rendered a verdict of guilty of manslaughter in the second degree. We conclude that the record does not support beyond a reasonable doubt the finding implicit in the jury’s verdict that defendant’s act was not justifiable. (See Shorter v. People, 2 N. Y. 193.) In the light of this conclusion we do not reach the question whether defendant was placed in double jeopardy by being required to stand trial for manslaughter. (Appeal from judgment of Orleans County Court convicting defendant of manslaughter, second degree.)
Present — Bastow, J. P., Goldman, Henry, Del Vecchio and Marsh, JJ.