People v. Rosino

168 A.D. 920, 152 N.Y.S. 623

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 15, 1915
• Status: Published

Opinion

Per Curiam:

An examination of the proofs leads to the view that defendant had a fair trial, and that the verdict of conviction is supported by the testimony. No error appears in the court’s rulings as to evidence. His charge was a correct statement of the law as to such a homicide. The reversal in People v. Tomlins (213 N. Y. 240), rendered over two years after this trial, moves appellant’s counsel now to urge that as this shooting was in defendant’s own apartment the court should have told the jury that one so attacked in his home had the right to stand his ground. No question of the duty to retreat arose on the trial, or was touched upon in the charge. The court correctly held that one has no right to attack for the purpose of self-defense until he has done everything in his power to avoid its necessity. He must show that there was reasonable ground for him to believe he was in great peril, and that no other safe means of escape was open to him. In the absence of requests for further instructions, we think this gave the jury the proper rule as to shooting an assailant in the situation which the evidence disclosed. The judgment of conviction should be affirmed. Jenks, P. J., Burr, Carr, Rich and Putnam, JJ., concurred. Judgment of conviction of the County Court of Nassau county affirmed.