Herrick v. Woolverton.

that no demand of payment was necessary. Four of the remaining judges were for affirmance, but upon what ground does not appear. I think it clear that this case is no authority for holding that a note payable on demand with interest is not due until an actual demand made.

In Clarke v. Crandall, 27 Barb. 77, it was held that a note promising to pay a specified sum to the payee or bearer with use, and transferred within three days from date, was, in effect, payable upon demand, and not to be deemed due at the time of its transfer so as to subject it to a set-off against the maker. I think there is nothing in the foregoing cases, or others, requiring us to hold that a note payable upon demand with interest, is not presently due without any previous demand. I am unable to see any valid ground for making a distinction in this respect between a note so payable with or without interest, except as to an indorser as to whom it was well said in Merritt v. Todd, that he cannot complain of delay in making demand, for the reason that he was notified, by the paper itself; that it was intended that the note should be retained by the holder for interest to accrue thereon, and that his assent that it should be so retained was thereby implied. But no such reason applies when the holder offers to transfer the note. Then it is certain that he does not wish to retain it longer for any such purpose, but to realize the amount thereof. Then why not demand payment at once of the maker? is an inquiry naturally suggested to the mind of any person to whom it is offered. It is due, and the money may at once be had thereon unless some obstacle exist that would, if known, be destructive of its negotiable character in the course of business. The note is due without any demand, or it is never due until demand made, and the maker has no right to make payment in its absence; for no tender can be made upon a demand until it is due. The statute of limitations commences at its date, or it never commences until demand made, and a recovery can be had upon such a note against the representatives of a maker after the lapse of any length of time, unless they are able to prove that an actual demand was made more than six years before the commencement of the action. The non-payment of interest furnishes no presumption in favor of the defense, for that is not due until demanded, any more than the principal. Such a note does not come within the statute creating a presumption of payment, for that only applies to judgments and sealed obligations, and to these, only after the lapse

Herrick v. Woolverton.

of twenty years from the time when the money has become due thereon. In short, the doctrine contended for by the plaintiff, making such notes continuing securities, creates a class of obligations that the debtor can only discharge at the pleasure of the creditor, ever liable to instant payment at his like pleasure, and which no statute of limitations will ever bar. No such doctrine has ever as yet been held by this court, and the entire current of decisions in this state, from the earliest reports, is against it. In Howland v. Edmonds, 24 N. Y. 307, the doctrine was reiterated by this court that a note, payable by its terms upon demand, might be prosecuted immediately, no previous demand being necessary. True, it is said, as in some other cases, the suit itself being a sufficient demand. This is only saying that the note is due without any demand; for no rule is better settled than that a debt must be due at the time of the commencement of the action, or the plaintiff will be nonsuited It is likewise held in this case that the statute of limitations commences running upon such a note at its date, and it is entirely clear that the statute does not commence running until it is due. Something is said in some of the cases about a presumption of a demand having been made, arising from the lapse of time or of a proper period for the computation of interest, but no period is intimated, and any rule founded upon such presumption would be too vague for application to business transactions. Such rule should be definite and certain when possible.

To attain this result as to the admissibility of a defense of the maker against the payee or other holder against a transferee, it must be held, either that the note is matured after the lapse of sufficient time to enable the holder to make a demand by the exercise of due diligence, and the defense therefore admissible, or that when payable with interest, not mature until a demand has in fact been made. Either rule will be found certain in its application. But for some authorities to the contrary, I would prefer a rule holding in accordance with the analogies arising from the commencement of the running of the statute of limitations, and of the right immediately to commence a suit, that the note was due when given, and the defense admissible without regard to the time of the transfer by the payee. In the present case the result is the same, whether the first or third specified is the correct rule. The order of the general term can be sustained only upon the second. I am aware that either the first or third will practically destroy the negotiability of this class of paper,

The People v. Schryver.

but such has been the practical effect of all the cases in this stat except for a very brief period, except Merritt v. Todd, and this case is only applicable to questions of laches in charging indorsers. The other questions presented by the respondent's counsel in his brief, were not raised or passed upon at the trial; they cannot, therefore, be considered here. My conclusion is, that upon both principle and authority the defense was admissible against the plaintiff. The order of the general term granting a new trial should, therefore, be reversed, and judgment given for the defendant on the verdict, with costs of the appeal to this court.

LOTT and SUTHERLAND, JJ., dissented.

Order of general term reversed and judgment for defendant.

THE PEOPLE, plaintiffs in error, v. SCHRYVER.

(42 N. Y. 1.)

Criminal law-justifiable homicide-burden of proof.

In every case of homicide the people must prove the corpus delicti beyond a reasonable doubt, and if the prisioner claims a justification he must take upon himself the burden of satisfying the jury by a preponderance of evidence. But where the evidence introduced by the people tends to show that the homicide was justifiable, the prisoner may avail himself of that evidence, and has a right, without introducing affirmative proof, to have the question of justification submitted to the jury.

On the trial of an indictment for manslaughter, the court charged the jury that it was for the prisoner to satisfy the jury, "beyond a reasonable doubt," that the homicide was justifiable. Held, to be error.

ERROR to the general term of the supreme court to review the judgment of that court reversing the conviction of the defendant for manslaughter in the third degree.

The defendant in error was indicted and tried for manslaughter in the third degree, for killing one Kavanagh. On the trial the evidence on the part of people showed an affray between the deceased and the prisoner, commenced by an unjustifiable and violent assault of the deceased upon the prisoner, in or during which affray the

People v. Schryver.

prisoner stabbed the deceased with a knife and killed him. These facts were not disputed, but the dispute was as to whether, when the defendant used the knife, he had reason to believe and did believe that the deceased intended to kill him or to do him great bodily injury. The evidence of the prisoner tended to prove the affirmative of this question. The court charged the jury, among other things, as follows:

"In all criminal cases there are two fundamental rules to be borne in mind by the jury; the one is, that the prisoner is to be presumed innocent until proved guilty; the other is, that the prisoner is entitled to the benefit of any reasonable doubt. But in this case this last rule is only to be applied by you, subject to the conditions and modifications that I shall lay down to you. The killing in this case has been proved, and is conceded, and there is no doubt as to the identity of the prisoner.

"With these conceded facts, the prisoner asserts that the killing was in self-defense, and was justified by the law. It is for him to make this allegation good by proof. If the defendant has given no proof tending to show that the act was committed in self-defense, the necessary self-defense of his person, there is no question before you on this point. If he has given evidence, or if any of the evidence in the case tends to show such a defense, then the question before you is, whether such evidence is satisfactory and sufficient."

"It is for the prisoner to satisfy the jury beyond a reasonable doubt that he did apprehend, and had reason to apprehend, that he was in imminent danger of his life, or of the infliction of some great personal injury. If the evidence falls short of this, and only raises a doubt whether or not the prisoner stood in fear of his life or his person, that is not sufficient to acquit the prisoner. The evidence must go one step further and satisfy this jury beyond reasonable doubt on this point."

To each and every of which propositions the defendant then and there duly excepted.

The jury returned a verdict of guilty, and the prisoner was sentenced to imprisonment for a term of three years. This conviction was reversed by the supreme court at general term and a new tria: granted. The people then brought the case by writ of error to this court.

VOL. I.-61

People v. Schryver.

Frederick L. Westbrook, for plaintiff in error.

Wm. Lounsbury, for defendant in error.

EARL, C. J. On the trial the people endeavored to show that the killing was manslaughter in the third degree; and the prisoner, that the killing was in self-defense, and thus justifiable homicide. The court charged the jury that the prisoner was bound to prove his defense of justifiable homicide "beyond a reasonable doubt." In this I think the court erred.

The statute defining manslaughter in the third degree is as follows: "The killing of another in the heat of passion, without a design to effect death, by a dangerous weapon in any case, except such wherein the killing of another is herein declared to be justifiable or excusable, shall be deemed manslaughter in the third degree." 3 R. S., 5th ed. 940, § 12.

Homicide by any person is declared by the statute (id. p. 939 §3) to be justifiable in the following cases:

1. "When resisting any attempt to murder such person, or to commit any felony upon him, etc.; or,

2. "When committed in the lawful defense of such person, etc., when there shall be a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished."

Then it is provided by section 5, on page 940, that "whenever it shall appear to the jury on the trial of any person indicted for murder or manslaughter, that the alleged homicide was committed under circumstances or in cases, where by law such homicide was justifiable or excusable, the jury shall render a general verdict of not guilty."

Now, what is the rule of the evidence as to the burden of proof, not in a case where the prisoner is attempting to show that the homicide is manslaughter instead of murder, but in a case where he is attempting to show that an admitted homicide was justifiable under the statute? In civil cases, where the mischief of an erroneous conclusion is not deemed remediless, it is not necessary that the minds of the jurors be freed from all doubt; it is their duty to decide in favor of the party on whose side the weight of evidence preponderates, and according to the reasonable probability of truth. But in criminal cases, because of the more serious and irreparable nature of the consequences of a wrong decision, the jurors are required to be satisfied beyond any reasonable doubt of the guilt of the accused,