the party, and the deceased and Decicco went with him to his apartments in One Hundred and Fifteenth street, where they met Angelo Testa. There they played cards and drank beer. Between 7 and 8 o'clock in the evening all these persons went out of the house and stood on the sidewalk at the corner of One Hundred and Fifteenth street and First avenue, listening to music given at a political meeting in that vicinity. While there Marotta passed by on his way to a saloon to get beer. The deceased stepped away from his companions and spoke to Marotta and at this time the defendant approached him and inflicted the fatal wound. The occurrence was of the briefest duration, but as to its details there is the sharpest conflict between the witnesses. The three companions of the deceased (Decicco, Testa and De Feo) testified that the defendant approached the deceased and stabbed him in the abdomen. without warning or altercation. The defendant and Marotta testified that the deceased seized the defendant by the coat and drew a revolver, and that thereupon the defendant struck him with the knife. The defendant testified that he was afraid of the deceased, and that when he saw the latter he opened his knife and put it opened into his pocket. After striking the blow the defendant ran away through the hallway and up the stairs of an adjacent house, to the roof, where he was apprehended by a police officer, who there found the knife which the defendant had thrown away. No revolver was found on the deceased and his companions testified that he had none. defendant was brought into the presence of the deceased, who identified him as the man who had inflicted the wound. The deceased died the following day.

The

From this summary of the evidence it will be seen that the case presented a clear and well-defined question of fact to be determined by the jury and that question has been resolved against the defendant. If the testimony of the companions of the deceased was believed-that the defendant stabbed the deceased without altercation or anything occurring at the time

to excite passion or anger-it cannot be denied that the jury could justly infer the premeditation and deliberation necessary to constitute murder in the first degree under our statute. (Leighton v. People, 88 N. Y. 117; People v. Majone, 91 N. Y. 211; People v. Conroy, 97 N. Y. 62.) In the Conroy case it is said: "If a person is undisturbed by sudden and uncontrollable emotions, excited by an unexpected and observable cause, and is in the possession of his usual faculties, it will be presumed that his actions are prompted by reason and are the result of causes operating upon his mind and deemed sufficient by him to inspire his action. A sane person, meeting a stranger upon the street, and in the absence of a sudden impulse produced by an observable cause, without words of explanation or warning, immediately drawing a deadly weapon and therewith causing death, unquestionably brings himself within then penalties prescribed for the punishment of the crime of murder in the first degree." It is true that if the testimony of the defendant himself and of Marotta was credited the affray bore an entirely different aspect and the jury might have found that the homicide was either justifiable or constituted manslaughter only. But the question of which set of witnesses told the truth, those for the People or those for the defendant, was pre-eminently one for the jury. The jurors saw the witnesses and heard them testify, and from their ap pearance, demeanor and manner of testifying was in no small measure to be determined the credibility which should properly be accorded them. In such a case the finding of a jury should not be set aside unless we see that error has been committed or injustice done. Section 528 of the Code of Criminal Procedure provides: "When the judgment is of death, the Court of Appeals may order a new trial, if it be satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exception. shall have been taken or not in the court below." But it is the settled law "that in determining whether a new trial shall be

granted under it, it is not the province of this court to review or determine controverted questions of fact arising upon conflicting evidence, but that the jury is the ultimate tribunal in such a case, and that with its decision the court may not interfere unless it reaches the conclusion that justice has not been done." (People v. Decker, 157 N. Y. 186.) It is further to be observed that there are several circumstances which tend to largely discredit the defendant's version of the affray. No pistol was found on the deceased. It is singular that if the deceased drew a pistol in Marotta's apartments, Marotta should have removed the defendant from the apartment and shut him up in another room and have accompanied the deceased to the street, and remained there apparently in amicable intercourse with him. The defendant admits that before he reached the deceased he opened his knife and had it opened in his pocket. The fact that the weapon used by the defendant was only a pocket knife was doubtless a circumstance to be considered in his favor, but opening it in advance of the affray militates against him. In the light of the evidence we cannot say that the verdict of the jury was wrong or that justice requires that a new trial shall begranted.

It is contended that the trial court erred in its instructions to the jury. At the request of the prosecution the court charged: "To establish the defense of justifiable homicide it is the duty of one engaged in a quarrel to avoid an attack and not become the aggressor unless other means are unavailable, and if you find that the defendant in this case having, on the afternoon of the 22d of October, been engaged in a quarrel with the deceased, and desiring to continue that quarrel, descended from the house of Bernardino Marotta to the street, and knew that the deceased was in the street, and with the intention of continuing that quarrel, and for the purpose of making his quarrel effective, took with him a dangerous. weapon, and if under those circumstances the defendant sought out the deceased in the public street and entered upon

the quarrel which had been interrupted, even though the deceased, under such circumstances, merely drew a revolver, the defendant may be regarded as the assailant and the wrongdoer, and his action in stabbing the deceased is not justifiable homicide," to which the defendant duly excepted. It is urged that the charge was erroneous, in that it ignored the consideration that to deprive a person who commences a quarrel of the right to self-defense the quarrel must be brought on or the assault committed with a felonious intent either to kill or inflict grievous bodily harm on his antagonist. What are the rights and what are the responsibilities of the original aggressor who takes life in a quarrel have been the subject of much discussion by the text-writers and in judicial opinions. The strict rule has been stated in England that "No man shall justify the killing of another by pretense of necessity unless he were himself without fault in bringing that necessity upon himself.” (1 Hawkins P. C. 82, 83; see, also, 1 East P. C. 278.) This extreme doctrine has not been accepted in the later cases in this country. It has been held that if the defendant withdraw from the quarrel which he has provoked and this is made known to his antagonist and after such withdrawal his antagonist assails him with intent to take his life or inflict grievous bodily harm, he may lawfully defend himself. (Stoffer v. State, 15 Ohio St. 47.) The doctrine has been further limited even where the original aggressor has not entirely withdrawn from the quarrel, but the quarrel was commenced with no intention to either take the life of the opposite party or inflict upon him grievous bodily harm. (Wallace v. U. S., 162 U. S. 466; see Adams v. People, 47 Ill. 376; Reed v. State, 11 Tex. App. 509.) In the Wallace case it is said: "Where a difficulty is intentionally brought on for the purpose of killing the deceased, the fact of imminent danger to the accused constitutes no defense; but where the accused embarks in a quarrel with no felonious intent, or malice, or premeditated purpose of doing bodily harm or killing, and under reasonable belief

of imminent danger he inflicts a fatal wound, it is not murder." But this must not be construed as implying the proposition that under the circumstances last stated the killing would be justifiable homicide. In the case then before the court the prisoner had been convicted of murder and the question under review was the exclusion of certain testimony, which it was claimed tended to reduce the crime from murder to manslaughter, and the statement quoted was made with reference to that question. This appears from the fact that the Illinois case and the Texas case cited are quoted with approval. The doctrine of these cases is very plain. In the Illinois case the court said: "That where the accused sought a difficulty with the deceased for the purpose of killing him, and in the fight did kill him, in pursuance of his malicious intention, he would be guilty of murder; but that if the jury found that the accused voluntarily got into the difficulty or fight with the deceased, not intending to kill at the time, but not declining further fighting before the mortal blow was struck, and finally drew his knife and with it killed the deceased, the accused would be guilty of manslaughter, although the cutting and killing were done in order to prevent an assault upon him by the deceased or to prevent the deceased from getting the advantage of him in the fight." In the Texas case the court said of selfdefense: "It may be divided into two general classes, to wit, perfect and imperfect right of self-defense. A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however, he was in the wrong-if he was himself violating or in the act of violating the law-and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself which was superinduced or created by his own wrong, then the law justly limits his right of selfdefense and regulates it according to the magnitude of his