People v. Giammarino

Appeal by defendant from judgment of conviction of manslaughter in the first degree in the Supreme Court, Saratoga county, rendered upon the verdict of a jury and the sentence imposed thereon. Appellant was indicted for murder in the first degree. He killed Alfred Francis by stabbing him with a knife after having wounded him by shooting with a shot gun. The defendant denied the shooting and stabbing. Upon the evidence the jury would have been justified in finding the defendant guilty of murder in the first degree. The only point raised on this appeal which is worthy of mention was that at the close of the charge the defendant requested and the court refused to charge with regard to excusable and justifiable homicide. The court was justified in basing such refusal *659upon the ground that at no previous time during the trial had the defendant claimed the defense of either justifiable or excusable homicide. Judgment of conviction unanimously affirmed. Present — Hill, P. J., Rhodes, McNamee, Bliss and Heffernan, JJ.