166 Mich. 1 | Mich. | 1911
The respondent was charged with making an assault with intent to kill and murder. This case was tried before a jury, and resulted in a conviction of an assault with intent to do great bodily harm, less than the crime of murder, and, upon an appeal to the Supreme Court, was reversed and sent back for a new trial. The second trial resulted in a verdict of guilty of assault and battery, and is now before this court upon exceptions before sentence. The case is reported in 156 Mich. 373 (120 N. W. 989).
The exceptions relied upon by appellant may be grouped as follows:
(1) The admission of testimony of what was said by the respondent at the boarding house, about an hour after the assault, as to what he would have done at the time of the assault if he had thought of it or could have done it, and what he would do to the complaining witness if he ever came upon the company’s premises again.
(2) The refusal to receive direct evidence of a conversation between the complaining witness and two of his own employes, some time before there had been this encounter between Klise and Keiser.
(3) Permitting the defendant to be cross-examined as to previous occasions upon which he had, under a claim of self-defense, drawn and threatened to use weapons.
(4) Objections to the charge of the court.
“We submit that the court should have instructed the jury as follows:
“ ‘ The question is not to be determined by what you believe the actual facts to have been, but what you believe from the evidence appeared to respondent at the time.’ ”
Again:
“Therefore the learned circuit judge erred when he said:
‘“If you find that the defendant did intend to kill or disable the complaining witness, and you further find that it was necessary for him to do so in order to protect himself from losing his own life or from great bodily injury, or that the circumstances appeared to the defendant at the time of the assault to be such as would lead a reasonable man to believe, and did lead the defendant to believe reasonably, that it was necessary to kill or disable the complaining witness in order to protect himself from losing his life or from great bodily injury, then your verdict should be not guilty.’”
If what counsel has quoted from the charge is read in the connection in which it was given, it will be very clear that respondent has no occasion to complain of the charge as given.
The conviction is affirmed, and the judge is directed to proceed to sentence.
Continued from Yol. 165.