64 P. 421 | Ariz. | 1901
The appellant, Wiley M. Morgan, was indicted and tried in the court below for the murder of one John Duncan. The indictment charged murder in the first degree, but he was convicted of murder in the second degree, and sentenced to twenty years’, imprisonment in the penitentiary. Defendant moved the trial court for a new trial, which was refused, and from this ruling he appeals to this court.
The court, in its charge, gave the statutory definition of murder, and, as well, of the two degrees of murder. Following this definition, the court charged as follows: “If you believe from the evidence, beyond a reasonable doubt, that the
A number of other errors are assigned, based upon the refusal of the trial court to give specific instructions asked for by the defendant. It is urged that these instructions should have been given, for the reason that they properly charged the law, and were needed in order to supplement the charge given by the court. A number of these pertain to the burden of proof and the degree of proof necessary to establish the guilt of the defendant sj as to warrant a conviction. Examination of the. charge given by the court discloses no omission to charge the law fully upon the latter point, and the requests, therefore, were properly denied by the trial court. The defense was that of justifiable, homicide, upon the ground that the defendant’s life was in danger and the killing of the deceased was necessary for his self-protection. It is urged that the court’s instruction upon this point was erroneous, in that it contained the following language: “The right of self-defense is a right recognized by the statute, and the conditions under which it may be asserted, to make homicide justifiable, are well settled. They are: First, that the slayer is not himself the assailant or aggressor, or that if he was the aggressor, that he. had in good faith sought to decline any further struggle before the fatal shot was fired; and, second, that the killing of the other was necessary in order to prevent the infliction upon himself of great bodily injury or loss of his life.” It is charged that the second condition laid down by
■ Counsel for the defendant requested the trial court to give the following instruction: “If you believe from the evidence that the defendant had reasonable, ground to apprehend a design on the part of deceased to commit a felony or to do some great bodily injury, and that there was imminent danger
Street, C. J., and Doan, J., concur.