Opinion
June 28, 1961
Appeal from the Erie County Court.
Present — Williams, P.J., Goldman, Halpern, McClusky and Henry, JJ.
Judgment of conviction unanimously reversed on the law and facts and new trial granted. Memorandum: Defendant was indicted for manslaughter, first degree, on the charge that he killed the deceased "in the heat of passion, such homicide not being justifiable or excusable". Defendant claims that he struck the deceased with a baseball bat in an effort to defend himself against an assault upon him by a knife which deceased had in his possession. In defining justifiable homicide the court charged a portion of section 1055 of the Penal Law but omitted the first subdivision which provides that homicide is justifiable "when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony, or do some great personal injury to the slayer, or to any such person, and there is imminent danger of such design being accomplished". Had the jury been so instructed it might have found that under all the circumstances here present the defendant had reasonable ground to apprehend a design on the part of the deceased to do him great personal injury and, therefore, had the right to act in self-defense even though there was in fact no intent on the part of the deceased to attack defendant ( Shorter v. People, 2 N.Y. 193; People v. Coleman, 7 A.D.2d 155). Notwithstanding the failure of defense counsel to except to the charge, the inadequacy of the court's charge with respect to self-defense substantially prejudiced defendant's rights, and "error so fundamental, so substantial" requires a new trial in the interests of justice ( People v. Creasy, 236 N.Y. 205, 221; Code Crim. Pro., § 527).