People v. Regan

O’BRIEN, P. J.

I concur in the result, but not in the reasoning of the opinion. The facts warranted the submission of the question as to whether or not the shooting was justifiable, and, had the jury found for defendant, I should not have regarded the verdict as against the weight-of evidence. The defendant was engaged in protecting his sister. Whilst so engaged he was attacked at the theater on the very evening in question by the deceased, who had with him and who attempted to use a revolver, which defendant, in the struggle, wrested from him. After the theater, on reaching the city, the deceased had collected some stones, and began throwing them at defendant. Was he to run away and leave his sister unprotected, or was he not justified in believing that if he remained the deceased might not, with another revolver which he had or might have procured, be intent on using it, as earlier in the evening he had attempted to do with the one which the defendant had wrested from him? These were questions for the jury. It was within their right and province to determine these questions, and, having resolved them so as to find the defendant guilty of murder in the second degree, I can find no legal ground for assailing this verdict; but had the jury, as intimated in the opinion, found for the higher degree of murder, I am strongly of the opinion that such a verdict could not, on the facts, be sustained.