27 Cal. 69 | Cal. | 1864
Lead Opinion
The defendant was indicted by the Grand Jury of the City and County of San Francisco, for the crime of manslaughter in the killing of Edward Perkins at the Farallone Islands, on the 4th of June, 1863. The defendant pleaded not guilty, and was afterward tried and convicted and sentenced to be imprisoned in the State Prison for one year. From this conviction and judgment he has brought the case to this Court upon a statement embodying all the testimony produced on the trial, in which is contained the charge of the Court to the jury, and also certain requested instructions on the part of the defendant, which the Court refused to give to the jury, together with the exceptions taken hy the defendant to various rulings during the progress of the trial.
The evidence discloses that on the 3d of June, 1863, the defendant and some twelve or fifteen other persons repaired in vessels to the anchorage adjacent to the principal of the Farallone Islands, situated about thirty miles westward from the City of San Francisco, and there remained during the night of that day; that on the morning of the next day, between six and seven o’clock, a portion of this party attempted
The object which the defendant and his companions had in visiting the Farallone Islands was to gather the eggs deposited there in great abundance by wild sea fowls. Before the time of the collision which resulted in the death of Perkins and another, a number of persons known as the Farallone Egg Company had been engaged in procuring the eggs deposited by the wild sea birds upon this island and selling the same in the San Francisco market; and the shore party, of whom Perkins was one, were in the employment of this egg company. It appears from the testimony of some of the persons composing the shore party that their chief business was to guard the island for the, benefit of the egg company, against the ingress of any other persons who might desire to visit it for the purpose of gathering eggs there. The egg company, it seems, claimed the exclusive right of gathering wild birds’ eggs upon the island, as the prior occupants of it for that pur
When a person is accused of a criminal homicide, and in his defense undertakes to justify himself on the ground that the person slain was the agressor, and that his death was the result of force used in the necessary defense of the person of the accused, then the character of the conduct of the deceased, with the concomitant circumstances, as well as that of the accused, is a proper subject of investigation. While Courts and juries should be extremely cautious how they excuse the slayer of his fellow upon the pretext that the act was the result of a necessity, they should be equally careful not to find the accused guilty if it appears that the homicide was committed in the necessary defense of himself, or in the defense of those whom he is bound by/natural law to protect and defend.
In charging the jury the Court left it to them to determine from the evidence whether the deceased and those acting with him were, at the time of the fatal rencounter, in the actual possession of the place where the defendant and his party attempted to land, and whether the defendant and his party had actual notice of such possession, and also whether he of they attempted at the time to forcibly enter and intrude into and upon such possession.
■ We have examined the evidence in the record with care and have not been able to find anything therein from which it could be inferred even, that the deceased and those engaged with him in resisting the landing of the defendant and his
The Court was requested, on behalf of the defendant, to give certain instructions to the jury, some of which were given and others refused. Of those refused was the following among others, which is in these words:
“ The fact that the defendant and others were armed with guns at the time of landing on said island did not of itself render the landing unlawful or justify the deceased and others in resisting such landing or attacking them while so landing. Therefore, if the jury find from the evidence that defendant and others armed with guns, while landing on said island were attacked by deceased and others with deadly weapons, and their lives placed in immediate danger, and that the fatal shot was fired by one of the party with defendant, under such circumstances and in necessary self-defense, it is justifiable homicide, and the jury ought to acquit.”
The evidence in the case did not show who fired the shot by which Perkins was killed, and the Court in its general charge to the jury instructed them that in order to convict the defendant it was not necessary that the evidence should show that the deceased was killed by a deadly weapon or gun discharged by the accused, but that it was enough if the evidence showed him to be an accessory to the unlawful killing; and in connection with this the Court clearly and accurately defined the character of an accessory. The requested instruction here set forth in lime verba proceeded upon the hypothesis that the fatal shot was fired, not by the defendant himself, but by one of his party after being attacked by the deceased and those with him, and that the deceased was slain in necessary self-defense.
The act of bearing arms did not of itself affect the right of the defendant and his companions to land upon the island, nor justify the resistance and attack of the shore guard. The law justifies the individual who slays his adversary in his own necessary self-defense. The instruction as requested states as a postulate the true rule of law as applied to certain facts and circumstances assumed to have existed, and then declares fur
The defendant also requested the Court to charge the jury in the following words: “ The fact that defendant and those with him on the occasion of the alleged homicide, were armed with guns at the time of landing on said island (if the jury should be satisfied of such fact from the evidence) does not render the act of landing illegal, nor justify the deceased and those on the island with him in resisting such landing, or in attacking them while landing. Therefore, if the jury shall find from the evidence that defendant and those who were with Mm while attempting to land on the island on the occasion of the homicide, were attacked with deadly weapons and murderous intent by the deceased, and his life placed in immediate danger, he was not obliged to retreat, but might stand Ms ground, and, if need be, kill his assailant.”
This requested instruction which was refused, as the one before considered, states as a basis a legal proposition exonerating the defendant and his party from the charge of an infraction of the law by the simple act of seeking to land on the island armed as they were, and at the same time involves the shore guard in the commission of a wrong in resisting such landing and in attacking the defendant and his party while attempting to land, and then proceeds to inform the jury if they should find that the defendant and Ms companions were attacked with deadly weapons and murderous intent by the deceased, by .which the defendant’s life was placed in instant peril, he was not obliged to retreat, but might at once act in Ms own defense, and if necessary slay his assailant.
Before the defendant had requested the Court to so charge the jury, they had been correctly instructed as to the law respecting justifiable homicide. The Court had informed them that in order to make the killing of a human being jus
The requested instruction last set forth comprehends the essential circumstances on which the right of self-defense, in the given instance, arose and depended, viz: defense of the person of the accused against the attack of the deceased, having at the time the means in hand, which he was using with murderous intent against the defendant. If the jury had been instructed to find as to these facts, and had found them to be true, and also that by means of the attack the life of the defendant was in immediate danger, or, in other words, that the danger was urgent and pressing, it would have appeared that these circumstances were sufficient to excite the fears of a reasonable person, and the jury, in such event, would have been bound to have inferred, as a sequence legitimately deducible from these constituent elements, the absolute necessity of the defense which resulted in the homicide committed.
Many other instructions were requested on the part of the defendant which the Court refused to give to the jury. These it is not necessary to notice in detail, as what we have said is sufficiently comprehensive to embrace the various propositions embodied in the proposed instructions.
The judgment is reversed and a new trial ordered.
Dissenting Opinion
I do not think the right of possession of the Farallone Island, or the right to gather the eggs deposited thereon by wild birds, was in question in this case. The right might have been to some extent in question had a party in possession been indicted for slaying one of a party seeking to enter with violence against his will. But men have no right to go with arms and enter with force, even upon their own land, against other parties already there, armed and violently, though wrongfully, resisting. In a contest arising under such circumstances both parties are in the wrong,, and if it results in the loss of life, caused while the contest actually continues,
In this instance I think the Judge stated the law correctly, and submitted the case fully and fairly to the jury. The charge covered all the points necessary to enable the jury to consider the case intelligently and render a just verdict. I think there was no error in refusing the charges asked on the part of the defendant, and refused. I suppose it may be fairly assumed that the two instructions selected and commented on in the prevailing opinion as the grounds of reversal, are those least objectionable among the large number refused, and the ones which should have been given, if any. Yet, in my judgment, these instructions, without qualification, must necessarily have misled the jury. They wholly omit to bring to the notice of the jury the question as to whether the defendant’s party prepared with arms to overcome resistance, were entering in a violent and hostile manner, knowing they would be resisted by men also armed for that purpose. The unlawful act of the shore party was not the only element to be considered, for the approaching party might also be seeking to enter in an unlawful manner, and the evidence tended strongly to show that they were. This element, as well as the unlawful act of the shore party, should also have been taken into account, as the foundation of the legal proposition with which the instruction asked terminates. It cannot be said, as a legal proposition, under the circumstances of the landing shown by the evidence, that “ the- fact that defendant, and those with him on the occasion of the alleged homicide, were armed with guns at the time of landing on said island, does not render the act of landing illegal.” ' And the instruction must be considered in the light of the testimony to which it was to be applied. Thus considered, the jury would be in effect instructed that the defendant, up to the time of firing the fatal shot, was
In other respects, also, the instructions are framed in such a manner as to make them liable to be misapprehended. The