71 Mich. 298 | Mich. | 1888
Lennon was convicted in the circuit court for the county of Mackinac of an assault upon one Herbert Ryerse, with intent to do said Ryerse great bodily harm less than the crime of murder. There was another count in the information filed against him, charging him with an assault with intent to commit the crime of murder. By the verdict he was acquitted upon this count. The errors assigned relate to the charge of the court.
The court charged the jury upon the subject of self-defense, among other things, as follows:
*300 “And if you believe, from tbe evidence in this case, that at the time of the alleged assault the defendant, Lennon was first attacked by the complaining witness, ■and that the circumstances, as they then appeared to him, were such as in reason would and did justify or induce in his mind a probability of a belief that he was to receive from Ryerse some great bodily harm, and in doing what he did he was acting under the instincts of self-preservation, he would not be guilty of the offenses charged in •this case.
“But in that connection you ought to remember that human life is not to be lightly regarded. A man cannot .avail himself of this fact in order to escape the penalty of such acts as were provoked by his own unlawful act. And if a man kills or attempts to kill him, or unlawfully attacks or injures another, through mere cowardice, ■or under circumstances not warranted to induce in his mind a reasonable fear of injury, and which would be ■considered to arise from a want of courage, or an unwarrantable cowardice under the circumstances, situated as the party attacked was, and as the circumstances then presented themselves to him, the law of self-defense would not apply, and would not justify such an act."
I do not think it proper that a jury should be authorized to determine the standard of courage in a case of •self-defense, or whether the party attacked, in what he ■did in his defense, acted cowardly, and therefore without warrant. There is no question of courage or cowardice in the case. I am aware that the rule laid down by the trial court has been sustained in some cases, collected •and reported in Horrigan & Thompson's Cases of Self-defense ; but the doctrine, or the reason given for it, is not in accord with the principles of self-defense, as now almost universally held and enunciated by the courts of this country.
The question to be determined is, did the accused, under all the circumstances of the assault, as it appeared to him, honestly believe that he was in danger of his life, or great bodily harm, and that it was necessary to ■do what he did in order to save himself from such appar
Upon the argument I was inclined to the belief that the error committed was not a prejudicial one, as from a hasty perusal of the record I had formed the impression that the respondent, in his own statement, did not claim to act in self-defense, but that he fired the pistol in the air purposely with the intention of scaring Eyerse away, and not with any idea of hitting him. But a careful examination of the record discloses that the claim of self-defense was made and relied upon by the defendant and his counsel.
On the evening of July 4, it is admitted and undisputed that he stopped in front of respondent's residence in company with a squaw prostitute, and then deliberately and .grossly insulted Lennon in the presence of his family by remarks in a loud tone to the prosititute, using language unfit to be here repeated. Most men would have felt justified in chastising such an obscene brute at the time, and the infraction of the law in so doing would have been satisfied by a light penalty.
There was testimony tending to show that there had been trouble for some time between the Ryerse family and Lennon. Lennon claimed that for a long time he had been the subject of many indignities and outrages on -the part of Ryerse and his father, and others who were in league with them. This last insult' was too much, and Lennon felt that he could no longer submit to such treatment. He therefore, on the morning of July 5, ■stopped Ryerse as he was passing his house, and expostulated with him; asked him, “ How long are you going
The judgment and sentence against him is vacated and set aside, and he will be forthwith discharged from any further custody or restraint in this case.