"The above instrument was subscribed by the said James Conway in our presence, and acknowledged by him to each of us, and he at the same time declared the above instrument so subscribed to be his last will and testament, and we, at his request, have signed our names as witnesses hereto in his presence, and in the presence of each other, and written opposite our names our respective places of residence.

"DANIEL L. TOLAND, Portageville, N. Y., Wyoming Co., N. Y. "JOHN H. CARROLL, Town Genesee Falls, Wyoming, N. Y.

"In addition to the foregoing, I find the following facts, viz.: That said will was and is written upon one-half sheet of paper of the ordinary size of legal cap paper.

"That all of said will, from the beginning of it down to, and including these words in brackets, viz.: (Carried to back of will),' where they occur in said will, as herein before set forth, was writ ten on, and is upon the first or front page and side of said half sheet of paper.

"That the word '(Continued)' immediately following in said will these words in brackets [Carried to back of will], where they occur in said will, as hereinbefore set forth, down to, and including these words in quotation marks in said will, viz.; 'Signature on face of the will,' is written on, and is upon the back side and second page of said half sheet of paper.

That all the rest, residue and remainder of said will, including the appointment of the executor, the signature of the witnesses, the attestation clause signed by the witnesses, and the signature of the witnesses, is written, and is immediately after these words, 'Signature on face of the will,' and was written on, and is upon the first page of said half sheet of paper, and is on the front side of said half sheet.

"That after the testator executed and subscribed said will, and after the witnesses signed said will, and the testator published and declared it as aforesaid, the testator died.

"From the foregoing, I find that the said will was duly executed in all respects so as to pass real and personal property, and that the same is duly proved and entitled to be admitted to probate as a will valid to pass real and personal property.

There is no substantial controversy as to the findings being warranted by the proofs.

The appellant's contention is that the will was not subscribed at the end thereof.

*

Section 40 of article 3 of chap. 6, pt. 2, R. S. (eighth ed.), provides "First. It shall be subscribed by the testator at the end of the will. * *Fourth. There shall be at least two attesting witnesses, each of whom shall sign his name as a witness at the end of the will."

The learned counsel for the appellant cites in support of his position, Matter of Probate of Will of Hewitt, 91 N. Y., 261. The judge delivering the opinion says at page 264, "here the signatures of the witnesses are followed by an important provision of the will disposing of property to his brother. They are not

written at the end of the will, but manifestly near the middle thereof, and hence, plainly from an inspection of the will, the statute was not complied with."

He also cites Matter of the Will of O'Neil, 91 N. Y., 516, where the instrument was manifestly not signed at the end of the will.

An inspection of the will, a copy of which accompanies the appeal papers, shows that it was written on both sides of a half sheet blank. The form of the blank assumes there was room on the first page to write the whole will, for printed forms for the signatures and attestation appear at the foot of the page, and the other side of the half sheet before written upon was entirely blank. There is a clause at the end of the written matter on the first page stating in baackets, "Carried to back of the will." On the back of the will the word "Continued" appears, after which all of the balance of the disposing part of the will was written. Then comes the signature and attestation.

It is obvious that the writing on the back part of the half sheet was because of want of room on the first side, and a mere continuance, and the person drafting the will takes pain in substance so to state. The signature and attestation clause are where they would and ought to have been if there had been room enough to write the will on the first side. Whereas the will on its face shows that the writing was continued on the other half, then subscribed and witnessed. No reason is seen why this is not a signing and subscribing at the end of the will.

The findings of the learned surrogate are clearly warranted by the testimony. A substantial compliance is all the statute requires. Jackson v. Jackson, 39 N. Y., 153; Tonnele v. Hall, 4 Coms., 140; Hitchcock v. Thompson, 6 Hun, 279; Kelly's Case, 67 N. Y., 416.

There are numerous other cases to the same effect. The authorities cited by the learned counsel for the appellant do not conflict with the above cases.

The conclusion of the surrogate was right, and the decree must be affirmed.

DWIGHT, P. J., and MACOMBER, J., concur.

THE PEOPLE, Resp'ts, v. NATHAN TERRELL, App'lt. (Supreme Court, General Term, Fifth Department, Filed October 23, 1890.) 1. ASSAULT-INTENT.

To authorize a conviction of assault in the second degree an intention coupled with present ability of using actual violence against the person must be shown.

2. SAME-CHARGE.

On the trial of an indictment for assault the court charged that "in such a case there is no intent about it; no question of intent, of assault in the second degree; if they assault a person with an instrument likely to do griev ous bodily harm, they are guilty of an offense of assault in the second degree, regardless of intent to injure." This being excepted to, the court charged that there must be an intent to do something wrong, but no intent to kill; that there should not be an intent to kill in order to constitute an assault in the second degree. Held, that the error in the charge as given was not cured by the following instructions.

APPEAL by the defendant from the judgment of the court of sessions of Steuben county, convicting him of assault in the second degree.

Francis A. Williams, for appl't; Frank II. Robinson, for resp'ts.

CORLETT, J.-In September, 1889, an indictment was found against the defendant, containing two counts. The first charged in substance that on the 30th day of May, 1889, he committed an assault in the first degree upon Alice E. Young, and the second count charged him with assault in the second degree. He was tried at a court of sessions in Steuben county on the 7th day of February, 1890, before the county judge and a jury. The trial resulted in a verdict of guilty of assault in the second degree, upon which judgment was entered, and the defendant appealed to this

court.

The parties had lived neighbors in the town of Lindley, Steuben county, many years, and had always been on friendly terms, exchanging visits, until about a year before, when differences arose growing out of the trial of one Patterson, who was a brother of Alice E. Young, for homicide. After that there was no friendly intercourse between the families. There was a bridge over Ryers creek, crossing the highway between the residences of the parties. On the 30th of May, 1889, the defendant on returning home found that the location of this bridge had been changed. The defendant then took it up and placed it on the old foundation. While he was tearing up the bridge, the complainant and other members of her family stood in front of her house about sixteen rods away, watching him. After tearing up the bridge he took from his pocket a revolver, fired it in the air, making exultant demonstrations. After shooting, he replaced the revolver and returned to the barn. The complainant started to cross the road and the defendant returned from his barn to the north abutment of the bridge. The evidence on the part of the people tended to show that he fired a bullet at Mrs. Young, and that it whizzed near her, although she was not hit. The evidence on the part of the defendant tended to show that he only fired in the air for the purpose of frightening the complainant.

The evidence on the part of the people also tended to show that the defendant applied to Mrs. Young opprobious epithets, which is denied on the part of the defence. It appeared that the location of this bridge was a matter of feeling and controversy between the families, it being claimed on the part of Mrs. Young that her husband placed the bridge which the defendant removed by order of the highway commissioner. On the part of the defendant it was claimed that the act of the person changing the location of the bridge was unauthorized, and it appears that he had obtained. an injunction to prevent it.

Assault in the second degree is a felony. Penal Code, § 5. The punishment is imprisonment not less than two years nor more than five; also, there may be a fine imposed of not more than $1,000. Section 221.

N. Y. STATE REP., VOL. XXXIII.

47

The county judge sentenced the defendant to four years and ten months imprisonment.

Section 217 of the Penal Code defines assault in the first degree as an assault with intent to kill by the means therein specified. Subdivision 4 of § 218 defines assault in the second degree, so far as applicable in this case, as follows: "Willfully and wrongfully assaults another by the use of a weapon or other instrument or thing likely to produce grievous bodily harm."

The central contention on this appeal is that the learned county judge erred in charging the jury. The portions of the charge excepted to are as follows: "In such a case there is no intent about it; no question of intent, of assault in the second degree; if they assault a person with an instrument likely to do grievous bodily harm, they are guilty of an offense of assault in the second degree, regardless of intent, regardless of intent to injure." The learned judge had already charged that to find him guilty of assault in the first degree, the jury must find an intent to kill.

At the close of the charge the defendant's counsel excepted to the portion above quoted on the question of intent. Thereupon the learned district attorney stated: "I did not understand the court to charge that no intent whatever is necessary to constitute the crime of assault in the second degree, but understood the court to say there must be an intent to kill to constitute a crime of assault in the first degree. Of course, I understand that it is necessary there should be an intent to do bodily harm, to commit a wrong, not an accidental shooting, but the absence of an intent to kill?"

The learned judge then stated, in reply to the district attorney's remarks: "There must be an intent to do something wrong; an intent to commit a crime, but there is no intent to kill. This is the distinction between the first and second degrees of assault."

The court further stated: "There must be an intent to kill in assault of the first degree, but there shouldn't be an intent to kill in order to constitute an assault of the second degree."

It will be observed that the learned district attorney saw that the court had fallen into an error in the charge as originally made, and his remarks were intended to induce the court to so modify the charge as to obviate the force of the exception taken by the prisoner's counsel. The charge as originally given, as a whole, distinctly states, and was well calculated to convey the impression to the jury, that it was not necessary to find any intent on the part of the prisoner in order to authorize conviction in the second degree.

In People v. Sullivan, 4 N. Y. Crim. 197, Justice Bradley states the rule as follows: "One, and an important element of crime is intent. To constitute a criminal assault an intent to do bodily harm or by violence to insult is requisite. That is a proper question for the jury under proper instructions from the court, and it is no less so when it is involved in the use of a weapon."

This was always the rule; there must be an intention, coupled

with the present ability of using actual violence against the person. Hays v. People, 1 Hill, 351; People v. Ryan, 55 Hun, 214216; 27 N. Y. State Rep., 916.

The learned district attorney cites People v. Connor, 53 Hun, 352; 25 N. Y. State Rep., 138, as an authority in support of the charge in this case. The only real question in that case was whether the proof was sufficient to sustain the allegations in the indictment. It cannot be inferred from the prevailing and dissenting opinions that there need be no intention to inflict grievous bodily harm in order to constitute an assault in the second degree. It is a familiar rule that in order to obviate an erroneous charge to the jury upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it. Chapman v. Erie Railway Co., 55

N. Y., 579.

་་

In Stokes v. People, 53 N. Y., 164-184, the rule is stated thus: "It is impossible that we should know whether those instructions effectually eradicated from the minds of the jury the erroneous impression calculated to be produced by the previous portion of the charge; and we cannot, therefore, pronounce as a conclusion of law that it had no influence upon the verdict."

These suggestions apply to the charge in this case. Its modification was obviously caused by the suggestion of the district attorney, and all parts of the erroneous charge were not distinctly withdrawn. The portion quoted may have produced a strong impression upon the minds of the jury which the modification, under the circumstances, did not entirely remove.

The counsel for the appellant argues that other material errors occurred on the trial, but in view of the conclusion reached, it is not necessary to consider them. They may not appear on another trial.

The judgment should be reversed, and a new trial granted.
DWIGHT, P. J., and MACOMBER, J., concur.

THE LAKE ONTARIO NATIONAL BANK, Resp't, v. DAVID H. JUDSON and GEORGE L. MONROE, App'lts.

(Court of Appeals, Second Division, Filed October 7, 1890.)

1. TRIAL-AFFIRMATIVE OF ISSUE.

The pleadings should determine which party has the duty to introduce evidence and the right to close the summing up.

2. SAME.

The party alleging as a fact that which the other side dispute has the burden and the right of introducing the proof to sustain the disputed fact. and the right of introducing rebutting proof to overcome that introduced by the other side in disproof of the alleged facts, and the right to the close of the summing up.

3. SAME-PLEADINGS-ADMISSIONS.

Admissions, in terms, of facts alleged in a pleading must be distinct and disconnected with any other defensive matter. Otherwise the party is not bound to accept the admission, but may prove his allegations.

1 Affirming 45 Hun, 595, mem.