10 Colo. 566 | Colo. | 1887
The plaintiff in error, James Bush, was indicted for the murder of Mortimer Arbuclde. Upon the first trial the jury disagreed; upon the second the accused was found guilty of voluntary manslaughter and sentenced to eight years’ imprisonment in the penitentiary. The case is brought to this court by writ of error.
The homicide occurred on the 10th of March, 18J9, about 8 o’clock in the morning, at Leadville, in the county of Lake. It appears from the evidence that a portion of the town site of Leadvilíe had been theretofore entered as a placer claim by Stevens & Leiter, and that a patent had been issued to them therefor. This parcel of ground had been subdivided by the Leadville Improvement Com
Prior to the date of the homicide, questions appear to have arisen touching the validity of the Stevens & Leiter title, and many persons, believing, or being advised, that the Stevens & Leiter entry would or might be canceled, and that actual occupants of lots in that event would be
“ Then Sprague, Arbuckle and myself came to Harrison avenue, and to where we erected this cabin, went into the cabin, took out some tools, took them down to Heller’s cigar store; Sprague went to his work, and Ar-buckle and I walked up Harrison avenue north, on the west side of the street, past this cabin; half a block past it, or maybe further, we passed some men coming down on the west side of Harrison avenue, going south. We turned and followed them down; they turned then and crossed the street to where this cabin that we had erected was, and one of them knocked down a little board fence we put up in front of it, and one of them, a Mr. Shute, got a prop, and was going to throw the cabin off. Arbuckle asked him what he was going to do, and he
There is no material conflict of testimony except as to • what the deceased and Hopewell, just prior to the homicide, said and did.
William Bush testifies: “On the morning of the 10th of March, when I got opposite to the Clarendon Plotel, I noticed that during the night there had been a small shanty built on this lot that I owned, and I walked up the street to about Fifth street, and met Mr. Shute coming down to tell me about somebody having jumped the lot during the night, and we walked on together, and he kicked off a board from a kind of fence that had been built in front of it; the fence had been built on posts which we had on the ground before. He kicked the top board off, and stepped over on the lot. We talked about two or three seconds, and he kicked off another board, and picked up a piece of 2x4 or something of that kind
Exception is taken to the last paragraph contained in
One’s right of self-defense maybe abridged or impaired by his own wrongful act, and the court doubtless had this in view when it gave both the second and sixth instructions. Section 121, G-eneral Statutes, provides: “If a person kills another in self-defense it must appear that the danger was so urging and pressing that in order to save his own life or to prevent his receiving great bodily harm the killing of the other was absolutely necessary. And it must appear also that the person hilled was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow is given.” This section is but a re-enactment of a common-law rule, and the reasons upon which it is founded are variously stated. Sergeant Hawkins says: “Neither shall a man, in any case, justify the killing of another by the pretense of necessity, unless he were himself wholly without fault in bringing the necessity
In Stoffer v. State, 15 Ohio St. 47, it is said: “ While he who made the first assault remains in the conflict, to whatever extremity he may be reduced, he cannot be excused for taking the life of his antagonist to save his own. In such case it may be rightfully and truthfully said that he brought the necessity upon himself by his own criminal conduct.” Jn the case of Hippy v. State, 2 Head, 217, it is said: “Real or apparent necessity, brought about by the design, contrivance or fault of the defendant, is no excuse.” In the case of Adams v. State, 47 Ill. 376, the principle is stated thus: “The defendant cannot avail himself of necessary self-defense if the necessity for that defense was brought on by the deliberate, lawless act of the defendant in bantering Bostick to fight for the purpose of taking his life, or committing a deadly harm upon him, and in which he killed Bostick by the use of a deadly weapon.” In the case of State v. Neeley, 20 Iowa, 108, the court say: “What we mean is that if the prisoner, with a loaded weapon, sought the deceased with a view of provoking a difficulty, and with the intent of having an affray, and a difficulty did ensue, he cannot, without some proof of a change of conduct or action, excuse the homicide on the ground that the deceased fired the first shot.” In the case of State v. Linney, 52 Mo. 40, we find the rule stated in a case where a father had interfered in behalf of his son: “A party who seeks a difficulty cannot avail himself of the doctrine of self-defense, nor in such case would the father be justified in killing the adversary of his son, provided the son had provoked or brought on the conflict in which the son was so placed in imminent danger during the progress thereof; provided, always, that the father knew that his son had sought or brought on the difficulty.” See, also, Whart. Horn. § 432, and cases cited; Horr. & T. Oas. 220, and cases cited.
Regarding the foregoing principle as applicable, it is to be supposed the court below gave the second and sixth instructions. The question is presented: Was William Bush in the position of one who had brought on an affray by his own unlawful act, and had thereby lost, both for himself and the accused interfering in his behalf, the right to interpose as a defense the plea that the killing was necessary in order to protect his life? The court, in the second instruction, speaks of William Bush as having committed an “act which resulted in the affray,” and there is a contention as to what act the court here alludes. William Bush, in his testimony, says: “I think I did testify that way; I went there to throw that building off that was built in the night, regardless of who put it up, and who was there. * * * I expect I would have put it off; there was nobody in possession there, but I think I did intend to use physical force if necessary; I suppose if I had been interfered with I might have had a fight; I went there, probably, to get my rights — to have a fight if one should come; I was not any more prepared for it than I am now — my hands and fists; that is all I ever use. * * * I didn’t know who was there; I didn’t care; I was going to get what belonged to me — the lot; I was going to throw the cabin off; if any one had resisted me, I suppose I would have tried to throw it off anyway.”
William Bush had entered upon the lot with the intention, as he says, of protecting his rights, and of removing-the cabin therefrom. It is reasonably clear that this-was the act to which the court alluded in the second instruction. Aside from entering upon the lot, Williaim
It is clear that the homicide in this case cannot be justified on the ground that the deceased was a trespasser. Had the deceased been the owner of the lot upon which the homicide took place, and William Bush and the accused mere naked trespassers, it is equally clear that the deceased would not have been justified in taking their lives, or in assaulting either of them with that intent. In this connection, so far as we can see from the testimony, Bush was the equitable .owner of the lot, had purchased it from the legal owner, and had been put in possession, and retained possession through tenants who paid him rents.
“The general doctrine is, that while a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to disposséss him without
“ An assault and battery may be justified as inflicted in defense of one’s property. Yet, consistent with this proposition is another, that one in the defense of his property should not resort to means reasonably calculated to endanger life.” 1 Bish. Crim. Law, § 361, and cases cited. The doctrine is well stated in the case of State v. Morgan, 3 Ired. 188: “You may not kill because you cannot otherwise effect your object, although the object sought to be effected is right. * * * The purpose is, indeed, rightful, but it is not one of such paramount necessity as to justify a resort to such desperate means. So it is clear that if one man deliberately kills another to prevent trespass upon his property, whether that trespass could or could not otherwise have been prevented, he is guilty of murder. If, indeed, he had used moderate force, and this had been returned with such violence that his own life was in danger, and then he killed from necessity, it would have been excusable homicide, not because he can take life to save his property, but he might take the life of his assailant to save his own.”
Prom the authorities which we have cited it is clear that while the owner of property may not commit a homicide for the purpose of protecting it against a trespasser, he is not bound to a passive submission, which neither remonstrates nor resists. Under the condition of title as stated by Bush, both he, and Shute at his request, had a right to go to the lot and to enter upon it for the purpose of removing therefrom both the cabin and the fence erected by the deceased and Hopewell. To what extent they or either of them, if resisted, might have used force it is not necessary to say. The deceased and Hopewell appear to have arrived immediately after
Whether the accused, James Bush, had reasonable ground to believe his brother’s life was in danger, or that he was about to suffer great bodily harm at the hands of the deceased, and whether he really acted under the influence of such fears, and not in the spirit of revenge, were the principal questions presented, upon the determination of which depended the guilt or innocence of the accused. I think that these questions were fairly and correctly submitted to the jury in the first part of the second instruction, and it is to be regretted that the. concluding paragraph of the instruction, as well as the sixth instruction, practically deprived the prisoner of his rights under the law as stated, and left the jury at liberty to find him guilty upon another and entirely erroneous proposition
The judgment of the court below is reversed and the cause remanded for a new trial.
Helm, J., did not sit in this case.
Reversed.