3 Indian Terr. 604 | Ct. App. Ind. Terr. | 1901
At the trial it was proven by the government that shortly after the killing the defendant fled the country. To explain the reasons for his flight, the defendant recalled a government witness by the name of E. J. Horn, .and asked him the following question. “Q. I will ask you this question: If you did not tell Lish Bradburn [the defendant], in the presence of Tom Norman, ‘You had better leave the country, on account of the friends and kinsfolk of this man; that they may hurt you?” To which the witness answered: “I couldn’t answer whether I did or not. * * * I don’t remember.” Afterwards the said Tom Norman was put upon the stand by the defendant, who testified that shortly after the killing, on the same day, and immediately before the flight of defendant, he saw the defendant in company with Horn at his (Horn’s) house. The record then shows the following questions by Mr. Merrill Johnson, one of the counsel for defendant: “Q. I will ask you if you heard a conversation between Mr. Horn and Mr. Bradburn that day with regard to this case. "A. Yes, sir. Q. I will ask you if in that conversation, if Mr. Horn didn’t
The fourth specification of error is as follows: “Fourth. The court erred in refusing to give the following instruction to the jury as requested by the defendant: ‘If the defendant used only such means as were apparently necessary to repel the force used by the deceased and protect himself from apparently bodily harm, this he had the right to do; and if, in the exercise of such apparently necessary self-defense, death resulted from the use of a weapon not ordinarily a deadly weapon, from inadvertence or acci
The fifth specification of error is as follows: “The court erred in instructing the jury as follows: ‘You are instructed that two persons cannot engage in a mortal combat, and each be acting in self-defense. You are further instructed that deceased had the same right to act upon the appearance of danger as had the defendant’.” In point of fact, as well as matter of law, it is not correct to say that two persons cannot engage in mortal combat, and each be acting in self-defense. Many cases could be imagined, and doubtless have occurred, where two persons might, reasonably judging from appearances of danger as presented to them, fight to the death for their lives, and both be acting within the law of self-defense. The case put by counsel for
The sixth and last specification of error is: “The court erred in not sustaining appellant’s objections to, and in not withdrawing from the jury, the following remarks made by counsel for the government in his closing argument to the jury: ‘Gentlemen of the jury, that rooster (pointing to defendant) has been stealing cattle and fighting deputy marshals until he has become a desperate dare-devil, and he did not care what he did’. ” The record shows the following in relation to this matter: “During the closing argument for the government, Mr. Reynolds told the jury, in substance, as follows: ‘Gentlemen of the jury, that rooster (pointing to £he defendant) has been stealing cattle and fighting the deputy marshals until he has become a desperate dare-devil,