Opinion
July 1, 1942.
Appeal from Ulster County Court.
Present — Hill, P.J., Bliss, Heffernan, Schenck and Foster, JJ.
Joseph Ballo came to his death from gunshot wounds on November 10, 1922, in the town of Plattekill, Ulster county, N.Y. The shot which killed him were fired by defendant. Following the homicide, the defendant fled, and was apprehended in Southern California in September, 1941. He was sworn as a witness in his own behalf; his testimony is that Ballo became angry at him while they were fixing a plow. He says that Ballo threatened him for stating to some relative that he was intimate with a certain woman; that he was frightened and ran, Ballo following, firing two revolver shots, one a complete miss, the other striking defendant's hat. His account of what followed is quoted: "Q. Then what happened? A. I turned around and I shoot him. Q. You turned around and you shot him? A. Yes. Q. How many shots did you fire? A. I shot two at the same time. Q. You had a double barrel shot gun? A. Yes. Q. You fired both shots at the same time? A. Yes. Q. Did you see him fall? A. Yes." There is no other evidence that Ballo was armed. The gunshot wounds were in his back, and a witness sustains the inference that he was shot in the back. The defendant, knowing that he was to meet Ballo, took the shotgun, explaining that en route to the meeting he might have a chance to kill a rabbit or some other small game. Self-defense was not established. Judgment of conviction unanimously affirmed.