Sup. Ct.) PEOPLE V. BUCCUFURRI before." On cross-examination Garner admitted that he had given no testimony before the coroner as to the defendant's alleged statement as to the time of the purchase of the revolver, but explains that the omission was due to the fact that he was not asked about it, but it appears that he did state before the coroner that the defendant had said to him that the reason why he had shot Wit was that Wit had taken the bread and butter from him and that he got excited and shot him. As a part of the case of the prosecution, the coroner's physician, Hartung, described the location and nature of the wounds as disclosed by a post mortem examination. This witness said he could not tell how the deceased was standing when he received the wound in the foot, but that as to the wound in the abdomen "he was facing whoever shot him." The location of the wounds was described as follows: There "A pistol shot wound on the outer side of the left foot. was another pistol shot wound on the right side, on the outside of the upper Then there was a pistol portion-that is, by the buttocks-just a graze. shot wound three inches to the right and three inches below, one wound right in the right side of the abdomen." * * * The defendant took the stand on his own behalf and produced several witnesses who claimed to have seen the shooting, Amadeo, Valenti, and D'Angelo. These witnesses corroborated the main story of the defendant. His story of the shooting was that, when he received. notice of his discharge, Witl called him a "ruffian" and a "spy," and that he retorted in kind; that Witl thereupon struck him in the mouth, and several nearby workmen came up and separated them; that he (the defendant) announced to the bystanders that he was going down to inform the employers how workmen were treated in the shop, and that he started to the door; that Witl, with a shoe last in his hand, was between the door and himself and advanced upon him angrily; that he thereupon fired one shot into the door to frighten Witl, who still advanced upon him; and that then he fired four shots, one after the other, not to kill Witl, but to wound him in order to defend himself. He denied that he told the policeman Garner that he had bought the revolver the night before, and produced a public school teacher He testiwho testified that on the night before the homicide he (the defendant) was in attendance at night school from 8 p. m. to 10 p. m. fied that he had this revolver five years or more, but did not carry it about his person until a few months before the homicide, when he began to carry it as he had valuable jewelry and a considerable sum of money on his person and was obliged to go to and from the factory at hours when it was dark, and that he feared robbers. [1] If the jury had accepted the story of the defendant and his witnesses, they might have found a verdict of acquittal on the ground of justifiable homicide. The defendant did not "retreat," but he was not bound to retreat if such would imperil his safety the more, or if a reasonable man under the circumstances would be justified in believing that to retreat was to add to the imminent danger. People v. Jeina, 125 App. Div. 697, 110 N. Y. Supp. 83. [2] The defendant introduced evidence as to his previous good. reputation for peacefulness and quietness. The trial court in its 143 N.Y.S.-5 charge to the jury did not refer at all to this evidence or as to the permissible or possible effect of such evidence on the question of reasonable doubt as to the commission of a crime. At the close of the main charge, the court was requested to charge as follows: "Now I ask your honor-and, this is my last request-to charge the jury that the defendant has presented evidence of good character by these various foremen and other persons, and upon that question I ask your honor to charge the jury that evidence of good character is proper evidence on the question of whether the defendant is a person of peaceful habits, and it may create in this case, of itself, evidence of good character, may in this case of itself create a doubt where none would exist otherwise." To which the court replied: "Give him due consideration for his character, if you believe his character is good in passing on the evidence." The defendant then excepted. It is contended that this ruling of the court constituted fatal error. It is answered that there was in fact no evidence of good character presented by the defendant, and that therefore the request was refused properly. The defense in offering evidence as to the defendant's good reputation confined their inquiry to his reputation for "peace and quietness." Some of this evidence was given as to his reputation generally in his community, and some as to his reputation in the various shops in which he had worked. [3] In proving the good reputation of one on trial on a criminal charge, the inquiry may be directed to the particular trait which is involved in the charge itself; that is, if the charge is one of unlawful violence, evidence may be given as to reputation of the prisoner for peace and quietness. People v. Van Gaasbeck, 189 N. Y. 408, 82 N. E. 718, 22 L. R. A. (N. S.) 650, 12 Ann. Cas. 745. Hence there was evidence in the case of the good reputation of the defendant material to the issue involved in the charge. [4] While some of the evidence related to the reputation of the defendant in the various shops in which he had been employed, rather than to that in the community generally, still it was competent, as the shop life was a large part of the defendant's life and brought him under close observation by a large number of persons. [5] There was other evidence given on behalf of the defendant by various witnesses, based upon their personal observation of him and not as to general reputation; but this evidence, though admitted by the trial court, was not competent (People v. Van Gaasbeck, ut supra), and though in the case may not be considered as evidence of good reputation. There was, however, as before stated, some evidence in the case of the defendant's previous good reputation. This being so, let us consider the ruling of the trial court in this light. [6] That evidence of good reputation may in itself create a reasonable doubt even where none would otherwise exist, and that it is the duty of a trial court to so instruct a jury when requested, is the settled law of this state. People v. Bonier, 179 N. Y. 315, 72 N. E. 226, 103 Am. St. Rep. 880. It is not enough for the court to instruct the jury that they may take such evidence into consideration when passing upon the facts, but they must be instructed as to the effect which they may give to such evidence if they believe it. People v. Bonier, ut supra. It is argued that as the request used only the word "doubt." and not the words "reasonable doubt," it was refused properly. But in this particular the request was practically the same as that used in People v. Elliott, 163 N. Y. 11, 57 N. E. 103, where it was held that a refusal to so charge was fatal error which required a reversal of a judgment of conviction. This last-cited authority is referred to with approval in People v. Bonier, ut supra. True, this request was framed in a crude, inarticulate manner, yet its obvious intention was plain, and the court should have instructed the jury adequately as to the legal bearing of the question which it raised. I think there was error sufficiently serious to require a reversal of the judgment of conviction and a new trial, and I so recommend. All concur. (81 Misc. Rep. 431.) JURGENSON v. DANA et al. (Supreme Court, Special Term, Suffolk County. July, 1913.) 1. DEEDS ( 196*)-CONVEYANCE BY CHILD TO PARENT. Where a deed by child to parent is constructively fraudulent, the burden is on the person claiming under it to show affirmatively that no deception was practiced and no undue influence used, but that all was fair, open, voluntary, and well understood. [Ed. Note.—For other cases, see Deeds, Cent. Dig. §§ 587-593, 649; Dec. Dig. § 196.*] 2. DEEDS (8 72*)-DEED BY CHILD TO PARENT-FRAUD. To avoid a deed by a child to his parent, the acts of the parties claimed to be the moving cause of the conveyance must amount to a legal fraud of such character as equity and good conscience would not tolerate. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 190-199; Dec. Dig. § 72.*] 3. DEEDS (§ 72*)-CONVEYANCE BY CHILD TO PARENT-VALIDITY, A conveyance by a child to his parent may be a proper family arrangement and for the best interest of the child; but if no such considerations are found, and the conveyance has been wrongfully obtained from the child, it will be set aside in equity or the parent converted into a trustee. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 190–199; Dec. Dig. § 72.*] 4. DEEDS (8 211*)-CONVEYANCE TO PARENT-VALIDITY. Where a deed by a child to his adopting parent recited that the grantor knew that his deceased adopting mother had intended to will all her property to such father, and, no such will having been found, the grantor executed the deed of his interest in certain real estate of which his mother died seised and there was no evidence of fraud, such recitals indicated that the deed was executed under proper influences. [Ed. Note. For other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211.*] 5. WILLS (§ 781*)-DEVISE-ELECTION. Where testator, having an interest in certain real estate less than fee, a part of the property being owned by a devisee under this will, attempted to devise the entire fee in the property, the devisee owning such interest For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes was bound to elect whether he would claim the same or accept the devise in the will, but could not have both. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2013-2017; Dec. Dig. § 781.*] Partition by Kathryn Floyd Dana Jurgenson, an infant, by Edward J. Lynch, her guardian ad litem, against Richard Floyd Dana and others. Complaint dismissed on the merits as to plaintiff, and defendant Richard Floyd Dana required to elect within sixty days whether he will accept the benefits of the will of William B. Dana, deceased, or will take his interest in the property described in the complaint. George R. Bristor, of New York City, for plaintiff. Joseph W. Bristor, of New York City, for defendant, Richard Floyd Dana. Winthrop E. Dwight, of New York City (Percy L. Housel, of Riverhead, of counsel), for defendants Shepherd, Seibert & Dana. Henry M. Brigham, of New York City, guardian ad litem for infant defendant, William Shepherd Dana. JAYCOX, J. The plaintiff seeks in this action to have the premises described in the complaint divided among the owners thereof, or, if such division cannot be made, that the same be sold and the proceeds thereof divided, and alleged that the plaintiff is seised of an undivided one-third part thereof, that the defendant Richard Floyd Dana is seised of an undivided one-third part thereof, and that the defendant Ethel Dana Shepherd is seised of an undivided one-third part thereof, subject to certain rights of dower and inchoate rights of dower. Kathryn Floyd Dana was seised of these premises in her lifetime, and died so seised of them on the 6th day of April, 1886. She left her surviving her husband, William B. Dana, and adopted children hereinafter mentioned. She left a last will and testament dated August 4, 1875, duly admitted to probate by the surrogate of Suffolk county July 26, 1886, in and by which she disposed of the premises in manner following: "First. I appoint my husband William B. Dana my sole executor authorizing and empowering him to sell and convey by deed or otherwise all or any portion of the property real and person of which I may die possessed and reinvest the proceeds of such sale as he may deem best. "Second. All of the said property I give to my said husband to hold and enjoy during his life and to use the entire income therefrom for his own purposes. "Third. After the death of my said husband I give and bequeath to our adopted children John Kirkland Dana, Ethel Floyd Dana and Richard Floyd Dana all my estate then remaining and all the increase thereof, share and share alike to have and to hold forever for their own proper use and enjoyment." At the time of the death of Mrs. Dana, John Kirkland Dana, the father of the plaintiff, together with Richard Floyd Dana and Ethel Floyd Dana, lived in the home of William B. and Kathryn Floyd Dana and were treated as their children and members of the family. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes John Kirkland Dana died in Tacoma, Wash., in 1903. The plaintiff is his only child. It is conceded that the defendant Ethel Dana Shepherd owns at least one-third of the property, and the only controversy is as to the other two-thirds, Ethel Dana Shepherd claiming to own the whole of the property, and the plaintiff, Kathryn Floyd Dana Jurgenson, and the defendant Richard Floyd Dana each claiming to be the owner of one-third of said property, and it is as to these claims that this action is contested. Much that has been discussed in the briefs herein I consider it unnecessary to discuss, as I shall place my decision upon other grounds. On the 22d of April, 1886, John Kirkland Dana, one of the remaindermen in the forgeoing will, executed and delivered to William B. Dana a deed dated on that date, conveying to said William B. Dana all the right, title, and interest which the said John Kirkland Dana then had or might thereafter acquire, under the said will of Kathryn Floyd Dana, or under any other will of hers which might thereafter be found, in and to the premises affected by this action. The consideration and premises were therein recited as follows: "Whereas Katharine Floyd Dana, before her death and during the past winter did state and declare more than once in my presence that she had already willed whatever property she possessed to her husband William B. Dana and did also in my presence state and declare that she did then and there give and transfer to him the said William B. Dana, all her property real and personal of every kind and nature whatsoever. And whereas no will of the said Katharine Floyd Dana has been as yet found except a certain will purporting to be signed by her, dated August 4, 1875, by which she gives her said husband power to sell and convey all her property, real and personal and gives him all the said property, to hold and enjoy during his life and to use the entire income thereof for his own purposes and after the death of her said husband gives and bequeathes to me, together with Ethel Floyd Dana and Richard Floyd Dana, all her estate then remaining and all the increase thereof, share and share alike. And whereas, I know as aforesaid that the said will does not express the desire of the said Katharine Floyd Dana. Now therefore, I, the said party of the first part, desiring that her wishes shall in all respects be carried out, for and in consideration of the premises and of the sum of One dollar to me in hand paid, the receipt whereof is hereby acknowledged," etc. At the same time Ethel Floyd Dana, now the defendant Ethel Dana Shepherd, executed a similar deed to William B. Dana, conveying in a similar manner all her interest in the premises and reciting the same premises and consideration for the deed as the last preceding deed. If the deed made by John Kirkland Dana above recited, to William B. Dana, is valid, then the plaintiff herein has no interest in, or title to, the premises. This deed expresses an ample and sufficient consideration, and the recitals of the inducement for the transaction therein contained are binding upon the plaintiff and the defendant Caldwell, who are privies to the grantor, John Kirkland Dana. Van Winkle v. Van Winkle, 95 App. Div. 605, 89 N. Y. Supp. 26, affirmed 184 N. Y. 193, 77 N. E. 33. [1] This deed is attacked only upon the ground of constructive fraud. If it be conceded that the deed is constructively fraudulent, the burden of proof is shifted, and the transaction is presumed void. It is then incumbent upon the defendant claiming under such deed to |