Laughxim, J. :
The appellant contends that the conduct of the assistant district attorney upon the trial was seriously prejudicial to him and requires a reversal'of his conviction. This claim is based upon the. remark in the opening and summing up, the substance of which is stated in the statement of facts. The remarks' concerning efforts to delay the trial and with reference to the pending election indicate that they were said in response to something said by counsel for the defendant in moving the case or during the examination of the jurors; but this does not appear. However, no exception was taken, and this incident affords no basis for a new trial.
There was evidence tending to show a material change in the attitude of the police officers, who had knowledge' of the facts on the night of the shooting, after they discovered t'hat the defendant was a fellow-officer. This not only justified, but fairly called for comment from the prosecuting officer, to enable the jury to. determine the value of their testimony. Perhaps it did not, however, justify the statement that the police department had been bolstering the defendant up; but this was made in connection with the statement of facts as to what the defendant’s fellow-officers did at the. time of his arrest, and we think that the jury must have understood that it related to the conduct of the members of the force who were [61]*61witnesses for the defendant, and not to the entire department. The district attorney as a prosecuting officer is entitled to some degree of license in commenting upon the testimony of witnesses- and the attitude and nature of the defense as disclosed by the evidence. As has been observed, there was evidence which would justify a finding that there was a marked change in the attitude of the members of the force who were present on discovering that the defendant was an officer; and shortly thereafter the defendant, who had been arrested for committing the shooting, became the aggrieved party and complainant against Cummings, whom he had shot. We discover no error prejudicial to any right of the defendant in the assistant district attorney saying to the jury, in substance, that in his opinion this was a scene appropriate for the stage, but that such things should not be permitted in real life in the city of New York. There was no charge that Devery was connected with or interested in the defense, and nothing was said to indicate that he was. He was a public character, and the press had given considerable attention to his methods while connected with the police force. The reference to him was a mere figure of speech used in commenting on the conduct of the defendant and his brother officers, and presents no error.
The defendant .also contends that the first count of the indictment, charging assault in the first degree, should have been taken from the jury. There was evidence from which the jury might infer that the shooting was with intent to kill; and this would constitute the crime of assault in the first degree. (Penal Code, § 217.)
The defendant also contends that an acquittal should have been directed and that the evidence does not warrant his conviction. We are of the opinion that the guilt of the defendant was clearly established, and that a verdict of not guilty would have been a miscarriage of justice. His story, although corroborated, is utterly impro bable and is contradicted by the uncontroverted physical facts. Even if he had been assaulted as he claimed, there was no justification or excuse for his emptying four chambers of the revolver upon his assailants, most of whom—if they were there at all — disappeared on the first shot being fired, on the theory that it was intended to frighten them away. It would have been extremely difficult, even in daylight and by special effort, for Cummings to get [62]*62in a position over the prostrate form of the defendant which would enable the latter to fire a bullet through the body of the former1 as shown by the evidence; and it is utterly incredible that this could, have occurred with the defendant in that position, while the octogenarian was striking or attempting to strike him with his cañé. It-"is extremely improbable that the defendant, a young, strong, hardened, athletic man, could have been knocked down by a blow of this light cane wielded by an old man. The evidence shows beyond any reasonable doubt that the defendant was intoxicated and ugly,, and fired these shots while in a standing attitude and without any cause or provocation.
If his guilt were not so satisfactorily established, there are exceptions in the case which would justify a new trial; but we think the1 defendant was not prejudiced by the errors which are more technical than substantial.
It is claimed that the court in charging the jury cast the burden of proof upon the defendant of showing that the shooting was legally justified or excusable. There are portions of the charge in. Which the court was discussing the defendant’s evidence and theory,, which, if taken alone, afford ground for this criticism; but the court; subsequently fairly and accurately charged the jury as to what constituted a reasonable.doubt, and instructed them that if upon all the evidence they had a reasonable doubt of the defendant’s guilt, he was entitled to the benefit of that doubt and should be acquitted and further, at the request of the counsel for the defendant, that- “ all through the case the burden of proof is on ' the prosecution,” and- that “ through the casé the defendant has the presumption of •innocence, and carries it with him all through the trial,” and “that' z the presumption of the innocence must be overcome beyond a reasonable doubt.” We are, therefore, of the opinion that the jury understood the law,- and that no error to the substantial prejudice of the appellant was committed in this regard.
The court, after adverting to the testimony of Cummings and submitting his credibility to the jury, said, “ If you come to the conclusion that Mr. Cummings is not worthy of belief, that his story is. a fabrication and that he has not told the truth, then take up the defendant’s version of the case.” The court then alluded to the evidence given by the defendant and his witnesses. At the close of [63]*63the charge, counsel for the defendant said he desired to except to so much of the charge as “ might seem to indicate that the jury were not to consider the testimony of the defendant’s witnesses or of the defendant until after they had reached the conclusion that the complainant’s story was untrue,” whereupon the court remarked, “ I have not made any such charge, and I do not think the jury understand me as making any such charge.” Counsel for the defendant then said, “We so understood your Honor’s language to run, I think; ” to which the court replied, “ No. I told them to determine the truth of either story by all the evidence.” We think the error in the main charge was inadvertent, and was corrected by what the court subsequently said, and if the defendant desired any more specific charge on the subject his counsel should have requested it.
The court said to the jury, in contrasting the testimony of the People with that of the defendant and his witnesses: “ The two stories in some respects are diametrically opposite, and I do not think that I would be uncharitable when I say that, somebody has willfully falsified in the case.
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Laughxim, J. :
The appellant contends that the conduct of the assistant district attorney upon the trial was seriously prejudicial to him and requires a reversal'of his conviction. This claim is based upon the. remark in the opening and summing up, the substance of which is stated in the statement of facts. The remarks' concerning efforts to delay the trial and with reference to the pending election indicate that they were said in response to something said by counsel for the defendant in moving the case or during the examination of the jurors; but this does not appear. However, no exception was taken, and this incident affords no basis for a new trial.
There was evidence tending to show a material change in the attitude of the police officers, who had knowledge' of the facts on the night of the shooting, after they discovered t'hat the defendant was a fellow-officer. This not only justified, but fairly called for comment from the prosecuting officer, to enable the jury to. determine the value of their testimony. Perhaps it did not, however, justify the statement that the police department had been bolstering the defendant up; but this was made in connection with the statement of facts as to what the defendant’s fellow-officers did at the. time of his arrest, and we think that the jury must have understood that it related to the conduct of the members of the force who were [61]*61witnesses for the defendant, and not to the entire department. The district attorney as a prosecuting officer is entitled to some degree of license in commenting upon the testimony of witnesses- and the attitude and nature of the defense as disclosed by the evidence. As has been observed, there was evidence which would justify a finding that there was a marked change in the attitude of the members of the force who were present on discovering that the defendant was an officer; and shortly thereafter the defendant, who had been arrested for committing the shooting, became the aggrieved party and complainant against Cummings, whom he had shot. We discover no error prejudicial to any right of the defendant in the assistant district attorney saying to the jury, in substance, that in his opinion this was a scene appropriate for the stage, but that such things should not be permitted in real life in the city of New York. There was no charge that Devery was connected with or interested in the defense, and nothing was said to indicate that he was. He was a public character, and the press had given considerable attention to his methods while connected with the police force. The reference to him was a mere figure of speech used in commenting on the conduct of the defendant and his brother officers, and presents no error.
The defendant .also contends that the first count of the indictment, charging assault in the first degree, should have been taken from the jury. There was evidence from which the jury might infer that the shooting was with intent to kill; and this would constitute the crime of assault in the first degree. (Penal Code, § 217.)
The defendant also contends that an acquittal should have been directed and that the evidence does not warrant his conviction. We are of the opinion that the guilt of the defendant was clearly established, and that a verdict of not guilty would have been a miscarriage of justice. His story, although corroborated, is utterly impro bable and is contradicted by the uncontroverted physical facts. Even if he had been assaulted as he claimed, there was no justification or excuse for his emptying four chambers of the revolver upon his assailants, most of whom—if they were there at all — disappeared on the first shot being fired, on the theory that it was intended to frighten them away. It would have been extremely difficult, even in daylight and by special effort, for Cummings to get [62]*62in a position over the prostrate form of the defendant which would enable the latter to fire a bullet through the body of the former1 as shown by the evidence; and it is utterly incredible that this could, have occurred with the defendant in that position, while the octogenarian was striking or attempting to strike him with his cañé. It-"is extremely improbable that the defendant, a young, strong, hardened, athletic man, could have been knocked down by a blow of this light cane wielded by an old man. The evidence shows beyond any reasonable doubt that the defendant was intoxicated and ugly,, and fired these shots while in a standing attitude and without any cause or provocation.
If his guilt were not so satisfactorily established, there are exceptions in the case which would justify a new trial; but we think the1 defendant was not prejudiced by the errors which are more technical than substantial.
It is claimed that the court in charging the jury cast the burden of proof upon the defendant of showing that the shooting was legally justified or excusable. There are portions of the charge in. Which the court was discussing the defendant’s evidence and theory,, which, if taken alone, afford ground for this criticism; but the court; subsequently fairly and accurately charged the jury as to what constituted a reasonable.doubt, and instructed them that if upon all the evidence they had a reasonable doubt of the defendant’s guilt, he was entitled to the benefit of that doubt and should be acquitted and further, at the request of the counsel for the defendant, that- “ all through the case the burden of proof is on ' the prosecution,” and- that “ through the casé the defendant has the presumption of •innocence, and carries it with him all through the trial,” and “that' z the presumption of the innocence must be overcome beyond a reasonable doubt.” We are, therefore, of the opinion that the jury understood the law,- and that no error to the substantial prejudice of the appellant was committed in this regard.
The court, after adverting to the testimony of Cummings and submitting his credibility to the jury, said, “ If you come to the conclusion that Mr. Cummings is not worthy of belief, that his story is. a fabrication and that he has not told the truth, then take up the defendant’s version of the case.” The court then alluded to the evidence given by the defendant and his witnesses. At the close of [63]*63the charge, counsel for the defendant said he desired to except to so much of the charge as “ might seem to indicate that the jury were not to consider the testimony of the defendant’s witnesses or of the defendant until after they had reached the conclusion that the complainant’s story was untrue,” whereupon the court remarked, “ I have not made any such charge, and I do not think the jury understand me as making any such charge.” Counsel for the defendant then said, “We so understood your Honor’s language to run, I think; ” to which the court replied, “ No. I told them to determine the truth of either story by all the evidence.” We think the error in the main charge was inadvertent, and was corrected by what the court subsequently said, and if the defendant desired any more specific charge on the subject his counsel should have requested it.
The court said to the jury, in contrasting the testimony of the People with that of the defendant and his witnesses: “ The two stories in some respects are diametrically opposite, and I do not think that I would be uncharitable when I say that, somebody has willfully falsified in the case. All the witnesses have not told the truth, for they differ too much for that, and it seems to me that it would be more than charitable to say that some have not willfully prevaricated.” This was a mere expression of opinion by the court, and was not a controlling direction. The jury were still at liberty to reconcile the testimony consistent with the truth of the witnesses, if that were possible. While it is ordinarily improper for the court to give expression to personal views as to the credibility of witnesses, we think no harm was done in this case, for no theory was suggested and none is apparent upon which the conflicting testimony could be reconciled consistent with the honesty and truthfulness of all the witnesses.
Counsel for the defendant requested the court to charge that “ if the defendant, while on the ground, after having been struck by the complainant, fired his revolver to attract attention, with no intention of hitting the complainant, and that the hitting of the complainant was a mere accident, the defendant is entitled to an acquittal.” The court had in the main charge read to the jury both sections 26 and 205 of the Penal Code, and fully and properly instructed them concerning the right of self-defense, and, upon this request being [64]*64made, said that excusable assault had not been defined to the jury because the court did not understand that the defendant made that claim, and supposed that the defendant’s contention was that the assault was justifiable. Then, evidently paraphrasing section 203 of the Penal Code, the court said to the jury: “An assault is excusable when committed by accident and misfortune, in doing any lawful act, by lawful means, with ordinary caution and without any unlawful intent.” Counsel for the defendant did not except to the omission of the court to charge as requested, but excepted to this charge ás made, and requested the court to charge “that the use or attempted use of force or violence upon or towards the person of another is not unlawful when it is necessarily committed by a public officer on the performance of a legal duty, or when necessarily committed by any person in arresting one Who has committed a felony, or when committed either by the' person about to be injured of by another person in his aid or defense, in preventing or attempting to prevent ah offense against his person or a trespass or other unlawful interference with his person or property.” The court inquired whether counsel for the defendant was reading from the Code, and on receiving an answer in the affirmative, said: “I do not intend to charge all the law in the Code. Excepting as I have already charged, I decline to charge. That which you read is good law, of course, but excepting as I have already charged, I decline to charge that proposition.” There is no evidence that the defendant was acting as a public officer in the performance of a legal duty when he shot the complainant, or that he was attempting to arrest any one who had committed a felony, or that he was aiding another person about to be injured in his person or property, or that he himself was resisting an offense against his property rights; Consequently, for the most part, the request had no application to the facts of the case; and the court evidently declined making it upon this ground, at the same time informing the jury that it was the law. We think the jury would understand from the instructions previously given that the defendant was not guilty if he shot the complainant in preventing or attempting to prevent an assault upon himself and that the shooting was necessary to prevent such offense against his person. If counsel for the defendant deemed that that was not made, clear to the jury, he should have made a specific request to that effect under sub[65]*65division 3 of section -223 of the Penal Code, which he must have understood from the remarks of the court would have been granted.
Counsel for the defendant then requested the court to charge that “ if the only purpose of the defendant in firing his revolver was to attract attention or to call or summon the police, and in so doing one or more of the shots hit the complainant, that without any intent on the part of the defendant the shots struck the complainant, he is not guilty of any offense.” Whereupon the court repeated the charge previously made as to what constituted an excusable assault and declined to charge the request, to which the defendant took an " exception. This request eliminated entirely the prerequisite that the act was done to prevent an offense against the person of the defendant, and that the force or violence used was not more than sufficient to prevent such offense; and consequently the refusal to charge it constituted no error.
We are also of opinion that the motion for a new trial on the ground of newly-discovered evidence was properly denied. It was not satisfactorily shown, that it could not have been produced upon the trial with due diligence ; and we do not think.it would have changed the verdict had it been presented.
It follows that the judgment should be affirmed.
Van Brunt, P. J., and McLaughlin, J., concurred; O’Brien and Ingraham, JJ., concurred in result.
Judgment affirmed.