| Ill. | Sep 15, 1878
delivered the opinion of the Court:
This was an indictment for an assault with an intent to commit murder, made upon John Hetherington. The defendant was convicted and sentenced to the penitentiary for the term of two years. He sued out this writ of error to reverse the judgment.
The first assignment of error is in overruling the motion to quash the second and third counts of the indictment. The alleged defect in the counts is, that they do not show in what State the grand jury convened, nor in what State the alleged offence was committed.
The language of each count, in these particulars, is this: “And the grand jurors aforesaid, chosen, selected and sworn in and for the county of Lee, in the name and by the authority, etc., do further present that James Hanrahan, late of said county, on, etc., at and within the county of Lee, aforesaid,” etc. The indictment is preceded by the proper venue clause in the margin, "State of Illinois, Lee county, ss.” The county of Lee mentioned in the body of the indictment is to be construed to refer to the county of Lee named in the margin, which appears there to be in the State of Illinois. The indictment is sufficient in this respect.
The court below gave five instructions on behalf of the people, the giving of each of which is assigned for error.
The first was to the effect, that the jury should convict if they found that the defendant shot at the complaining witness, Hetherington, with a shot gun, pistol or revolver, with intent unlawfully, willfully, feloniously, and of his malice aforethought, either expressed or implied, to kill him. This would have clearly made the defendant guilty of an assault with an intent to commit murder, as charged in the indictment, the statutory definition of murder being, the unlawful killing of a human being in the peace of the people, with malice aforethought, either expressed or implied.
The second instruction was, that the intent with which defendant shot at Hetherington, if he did shoot, might be established by circumstantial evidence, and that in determining defendant’s intent in shooting, they should take into consideration all the circumstances in evidence surrounding and attending the act. It is objected that the instruction assumes that the defendant did shoot. But this was no disputed fact. All the witnesses, including defendant himself, testified that he did shoot. It is said the jury might have well understood,' from the instruction, that they need consider only the circumstantial evidence. We do not consider it as open to such objection.
The third instruction was:
“To justify the use of fire arms in self-defence, the defendant in this case must show that the danger to his person or to the person of some member of his family, or of some person upon his premises, was so urgent and pressing that a reasonable man would suppose, from the words, acts and conduct of Hetherington, at defendant’s house, that it was necessary to shoot to save life or prevent great bodily harm, and that defendant, in shooting, believed, in good faith, that such urgent and pressing danger then existed.”
The same objection is repeated to this instruction—that it assumes the defendant shot. The further objection taken to it is, that it required defendant to show that the facts justifying bis shooting existed, whereas a reasonable doubt as to whether they existed should have acquitted. The instruction was upon the subject of what would justify the use of fire arms in self-defence, and did not profess to state anything upon the subject of the amount of the evidence with which the case of self-defence should be made out, or how fully the jury should be satisfied in respect to it. It was not inconsistent with the idea of acquittal, if there was a reasonable doubt as to the existence of the facts. And on behalf of the defendant, the jury were expressly instructed upon this very point, that if they entertained a reasonable doubt as to whether or not the shooting was done in self-defence, then they should acquit. We see no substantial error in this third instruction.
The fourth instruction was as follows:
“ If the jury believe, from the evidence, that after the shooting at the door of defendant’s house, (if the jury believe, from the evidence, there was any shooting at the door of defendant’s house,) Hetherington drove away, and when at or near the fence on the public road he stopped his horse, and was then and there doing no violence and threatening no violence against the person, property, house or family of defendant, and that while said Hetherington was sitting there in his buggy the defendant shot at him from a window in his, defendant’s, house, with intent then and there unlawfully, willfully, feloniously, and of his malice aforethought, either expressed or implied, to kill said Hetherington, then the jury should find defendant guilty.”
It is objected to this instruction, that it violates the rule which has been laid down by this court that portions of the testimony should not receive undue prominence in this manner in an instruction. Though seemingly somewhat open to this objection, we do not regard it as fatally so, under the circumstances here.
There was a reason for thus distinguishing, as the instruction did, between the two different occasions of shooting, from the fact that it was upon the first occasion alone, where all the alleged circumstances occurred which are claimed as justifying any shooting in self-defence. It is said there is no evidence iu the record that after the shooting at the door “ Hetherington drove away, and when at or near the fence on the public road he stopped bis horse.” As we understand it there was evidence to such effect. All the witnesses agree that at the time of the shooting at the door of the house, Hetherington was inside the yard of the house, and that after that he turned away, a witness on one side saying he stopped by the fence, and one on the other side that Hetherington was outside the fence at the time of the shooting from the window. It is further said that the instruction directs a conviction upon a mere preponderance of evidence, ignoring the question of a reasonable doubt. All the foundation for this is, the omission of the words “beyond a reasonable doubt” after the words “If the jury believe from the evidence.” By the tenth of defendant’s instructions the jury were told that in a criminal case the law requires that the jury shall be convinced, by the evidence, of the defendant’s guilt, beyond a reasonable doubt, before they can convict him, and if not thus convinced it was their duty to find him not guilty. In Peri v. The People, 65 Ill. 19, it was held that such an omission of these words in one of the people’s instructions would not be error where such an instruction as that above was given in behalf of the defendant.
The fifth instruction for the people bears upon the question of presumption as to intent, and correctly states the law in that regard, that every man is presumed to intend the natural and probable consequences of his act, unless a different intent be proven.
• The refusing of the eleventh and twelfth instructions asked by the defendant is assigned for error. The jury were the judges of the credibility of the witnesses, and to have told the jury, as asked by such eleventh instruction, that if two witnesses for the prosecution swore to a particular fact, in which they were contradicted by the defendant and two other witnesses whose credibility was not affected by any evidence in the case, then the jury would not be justified in finding the fact in favor of the prosecution, would have invaded the province of the jury and been improper.
Two certain witnesses had testified to statements made by the defendant, and such twelfth instruction was to the effect that the jury had no right to reject any portion of the statement made by the defendant.
While it is the rule that where the declarations of a party are given in evidence against him, the whole statement is to be received in evidence, it does not follow that the jury are bound to believe the entire statement if they believe any part of it, as the instruction was calculated to lead the jury to understand. If a part of such statement is disproved or contradicted by other witnesses the jury have the right to give effect to the contradictory evidence and reject such part of the statement as not entitled to credence if they so find, while they may accept as true the rest of the statement. The jury were fairly and fully instructed upon the law of the case, and we find nothing in respect of the instructions, either in giving or refusing them, which should cause a reversal of the judgment.
As regards the question of fact, it is true that the evidence is contradictory. It was the province of the jury to judge of the credibility of the witnesses. If they believed the witnesses in behalf of the prosecution, their finding was justified by the evidence. They had the better opportunity to judge of the credibility and weight to be attached to the testimony of the several witnesses. Upon consideration of the testimony we can not say that this is a case which calls for the interference of the court with the verdict of the jury upon the ground of its not being warranted by the evidence.
The judgment must, therefore, be affirmed.
Judgment affirmed..