Opinion
10-31-1895
STATE v. BURTON.
Isaac Burton was indicted for pointing a pistol at another. Verdict of not guilty.
This was an indictment, under the statute, for pointing a pistol at Lorenzo B. Hearne. At the trial the defendant, having testified in his own behalf, under the statute, was asked by Nicholson, attorney general, on cross-examination, the following question: "Haveyou ever been convicted for pointing a pistol at a man?"
The question was objected to by Mr. White, for defendant, on the ground that it was immaterial.
Atty. Gen. Nicholson, for the State, contended that it was admissible. It is settled that a witness might be cross-examined as to specific facts tending to disgrace him for the purpose of impairing his credibility, though said facts be purely irrelevant and collateral to the main issue. Steph. Dig. Ev. 225. This general rule applies to parties when they become witnesses (People v. Casey, 72 N. Y. 393); and, in a trial for an assault, the question whether he had not committed an assault upon the person at another time was allowed to be asked of the defendant (People v. Irving, 95 N. Y. 541).
MARVEL, J. The general rule cited by the attorney general is the law, but it does not apply in this case. A conviction under this statute would not necessarily disgrace or degrade the defendant or have any tendency to impair his credibility. The offense under the statute might or might not be an assault, as the statute provides that the intentional pointing in jest or otherwise shall constitute the offense. The case of conviction of an assault is therefore not parallel. We rule the question out.
MARVEL. J. (charging jury). Isaac Burton stands charged in this indictment with pointing a pistol at Lorenzo B. Hearne, under the provision of the statute which is as follows: "It shall be unlawful for any person, in jest or otherwise, intentionally to point a gun, pistol or other firearm at or towards any other person at any time or place." The question you are to decide is whether Mr. Burton at the time charged intentionally pointed a pistol at the prosecuting witness, Lorenzo T. Hearne. It is attempted to justify upon the ground of resisting force that was used against him. We would say to you, gentlemen, that he had the right to protect his person by whatever force was necessary, but he could only use so much force as was necessary to resist the force that was actually used against him; and, if he used more than was necessary, he is liable. He cannot at every small resistance or attack upon him or his property justify resorting to the use of a deadly weapon; but can only resist force that is offered against him by that which is necessary to defend himself and his property. If he should intentionally point a gun or pistol or other firearm at or towards another person at any time or place, the statute says he shall be liable. If Mr. Burton pointed a pistol towards the prosecuting witness, and from the evidence you believe it was not necessary, that there was no excess of force or threats against his person to justify him in resorting to the use of a deadly weapon, and he did use it and pointed it at Lorenzo T. Hearne, as has been charged In the indictment, then you should find him guilty in manner and form as he stands indicted; otherwise, your verdict should be, "Not guilty." If you have any doubt as to the guilt of the defendant, you should give him the benefit of that doubt.
Verdict, "Not guilty."