52 Mich. 616 | Mich. | 1884
Curtis was, tried in the Cass county circuit court and convicted of murder in the second degree. Errors are assigned on rulings during the trial and in instructions to the jury. Macom "Wilson was the person killed.
The facts bearing on the case are these. On the 15th day of August, 1883, the respondent with many others attended a colored people’s celebration at a place called Osborn’s Grove, in .Calvin township. Clay "Wilson, a brother of deceased, had a temporary grocery on these premises near the south end, east of the north and south highway. Levi "Wilson, another brother, was in the company, as well as Ami Curtis, a brother of respondent. After the celebration was ended, and just in the edge of the evening, Levi "Wilson and Ami Curtis got into an altercation. Levi had a knife which according to some of the witnesses he used
The controversy was — -First, whether respondent shot deceased at all; and second, if he did, whether the act was-murder, manslaughter or innocent homicide. The bearing of most of the questions presented is_ towards the degree-of blame, if any. Some questions bear on the entire absence of complicity in the shooting.
A number of objections apply to the admission or exclusion of testimony as to sayings and doings of respondent and others during the earlier part of the afternoon. The testimony indicated that the crowd consisted of neighbors- and persons acquainted, and it appears that during the final quarrel there was a crowd at the place of the fight, and some noise and excitement.
The first question discussed arises out of the reception by the' court of declarations made by respondent at 2 o’clock in the afternoon on the grounds. On objection made to the question whether respondent made threats, the court remarked : “ Suppose he said he meant to kill the first person he met, and then did it, — the witness may answer.” The witness then swore — “ I heard the defendant say he was-going to knock down three men and kill one, before he left the ground.” Defendant’s counsel moved to strike out this as not referring to deceased. The court struck out what was said about knocking down, and left what was said about killing; and this threat, as the court treated it, was. made prominent in the subsequent charge of the court as. to malice.
The court allowed other evidence of defendant’s talk of ■a similar character to be shown, but refused to allow testimony that Levi Wilson was stropping his knife on his boot and trying to cut people and made threats, and that other persons made similar threats.
This difficulty was thus allowed to be shown to have had ■some connection with the previous gathering and yet evidence was only allowed as to defendant’s conduct, while that •of others was shut out. In our view all of the transactions ■of the afternoon were proper and should have been received. There is a great deal of testimony indicating more or less commotion and disturbance in the afternoon, and it is impossible not to see that many things might have been made much more intelligible, if this testimony had been let in fully instead of partially and only as it bore against the respondent. All of the Wilsons as well as some others were mixed up in the disturbance, and defendant’s conduct must be viewed in the light of ail the surroundings. This is especially true as to Levi and Macom Wilson, whose conduct was the apparent provocation to defendant’s assault, if 'he committed one, and must necessarily have a close relation to his exeusability. It was as much defendant’s right to inquire into their conduct and appearance, as if he had himself been the person assaulted instead of his brother.
It appeared on the post mortem examination that the bullet was larger than would fit the pistol which defendant ■claimed to have been in his possession. When the prosecution gave evidence that defendant had fired a revolver, and another of their witnesses testified he heard a revolver go off and saw Macom Wilson shot, but did not know who .shot him, but that he saw defendant have a revolver, the
James Byrd testified that he saw defendant at the time of the affray and that his revolver was a small one of 22 calibre, and that there were two shots fired. He testified on cross-examination that there were several persons having revolvers out, and that these were of different sizes, but he was not allowed on re-examination by defendant to tell what persons he saw with such revolvers, the court saying it was immaterial if they were not the persons engaged in this affray. As there was no claim that defendant fired two shots, and as it was certain that such a revolver, as he-was shown by witness to have had, could not have been the vreapon that killed the deceased, this testimony was of obvious importance. And it was error to shut out any of the immediate surroundings of the affray. If defendant did not do the killing it is evident some one else took a most important part in this affray, and it was important to know who it was.
Ami Curtis, the brother of respondent, gave a very full account of the difficulty, and of the conduct of the two Wilsons and the attack on himself, and among other things said he backed up from Levi Wilson when he came at witness with his knife, because witness was afraid he would cut him, as he had cut several men, and witness was afraid
The charge is objected to on several grounds most of which relate to what was said concerning the duties and liabilities of persons in such affrays. Much of the charge is based on assumptions of duty which may arise in cases where there are but two persons engaged, and there are no exciting surroundings, but which are not appropriate when there is such a riotous affray as appeared here. It is not in our judgment admissible to require of persons involved in such a tumultuous scene the possession of coolness and deliberation. It is unavoidable in such scenes for the participants to lose their self-control to some extent, and coolness would often be the strongest evidence of malice in one who commits violence under such circumstances.
The respondent was entitled and bound to take an interest' in the life and safety of his brother. There was no difference in the testimony as to his being in danger, and all the instructions which confined the right of respondent to helping him only when he was entirely without fault were
It was not, we think, proper to charge as a matter of law that the use of a deadly weapon by respondent was a strong circumstance tending to show malice. On the contrary we have had great doubt whether it was proper in this case to leave the question of malice to the jury at all. The case was one of those fights in which usually there could be no guilt worse than manslaughter in any one who acted on provocation. Neither respondent nor his brother began the affray, and we have discovered no testimony authorizing the inference that there was space for cooling time, or opportunity for withdrawal by Ami without danger. It is unreasonable to regard their reciprocal advances and retreats as creating each time new rights and duties.
Tiie court charged repeatedly that if Ami was in fault at all, respondent could not be justified, and the court told the jury that if Ami had made an insulting remark in Levi’s presence, although not sufficient to justify an assault it was so far liable to provoke as to put Ami in fault and deprive him of his rights, and put respondent in fault for defending him. This is not supported by any authority and is a dangerous doctrine. It is equivalent legally to saying that while words will not justify a dangerous assault they will preclude a person from resisting it, and in that respect the •charge was altogether inconsistent. To hold, as was here intimated, that it put a man in the wrong so as to deprive him of all defensive rights in an affray begun by the other party is entirely unwarranted.
"We do not think it desirable to go at length into the •charge, which appears to us to be throughout open to the ■criticism that it bore very heavily against respondent and ■subjected him to such restrictions and presumptions as would make it almost impossible for any one to interpose
The judgment must be reversed and a new trial ordered. The prisoner must be remanded to the custody of the sheriff of Cass county, and must be allowed bail if he desires it, in a moderate amount.