112 Mich. 644 | Mich. | 1897
The respondent was convicted of murder in the second degree.
1. Several assignments of error are directed to the admission and rejection of testimony. They were fully argued in the briefs of counsel and orally. We have carefully examined them, and find no error in the rulings
A Two witnesses were called by the prosecution in rebuttal. Their names were not indorsed upon the information. An order had been entered by the court excluding all the' witnesses from the court room during the trial. These two witnesses had been in the room during a part of the time while the trial was in progress. The prosecuting attorney did not anticipate or know that they would be witnesses. There was no error in the admission of this testimony.
3. Complaint is made that the court did not correctly state the rule of law as to self-defense. The court did instruct the jury as follows:
“If you find from the evidence in this case that Piper killed the deceased in self-defense, honestly believing his own life to be in jeopardy, or that he was in imminent danger of receiving serious bodily injury at the hands of the deceased, and that he used no more force than was necessary to protect himself, then it would be justifiable homicide; and under such circumstances, of course, the respondent would not be guilty.”
This is a correct statement of the law. The respondent’s counsel requested the following charge:
“I charge you, as a matter of law, that if you find, as a matter of fact, that the respondent, John Piper, actually believed that William Doston, the deceased, made a motion to draw his revolver from his hip pocket, with the intention of taking the life of John Piper, or to do him great bodily harm, by shooting him, the respondent, John Piper, had a lawful right to kill his assailant, to save his own life or prevent the intended bodily harm; and if you believe, as a matter of fact, that the respondent actually believed his life was in danger, and fired the fatal shot to save his own life, it is your duty to render a verdict of not guilty.”
At the request of the prosecution, the court also gave the following charge:
“Before a person can avail himself of the defense that he used a weapon in the defense of his life, he must satisfy the jury that that defense was necessary, that he did all he could to avoid it, and that it was necessary to protect his own life, or to protect himself from such serious bodily harm as would give him reasonable apprehension that his life was in immediate danger. Ill will of deceased, and former quarrels and affrays, could have nothing whatever to do with respondent’s peril, however hostile deceased may have been, and however many quarrels and affrays the parties may have had, if deceased, by his acts and cries, did not threaten peril to respondent. He would not be authorized by law to infer peril on account of ill will or prior contests.”
He further gave the following request of respondent:
“If you find, as a matter of fact, that the deceased, Doston, had the general reputation of a quarrelsome and dangerous man, and, further, that Doston was in the habit of carrying a revolver before and after he was a deputy sheriff, and that he had at one time made a brutal attack upon the respondent, and made threats against him, and that these threats came to the knowledge of the respondent, I charge you that, as a matter of law, you have a right to consider this testimony as bearing upon the question of whether they had an influence upon the mind of the respondent, and created fear in his mind as to the danger of receiving serious bodily injury, and whether he acted honestly and in good faith that he must fire the shot to save his own life, or to save himself from further great bodily harm.”
To this request the court added:
“You must.be satisfied, however, gentlemen, that the deceased had assailed him, or was about to assail him, and the respondent shot to protect himself.”
We think that these requests were more favorable to the respondent than he was entitled to under the facts of this case. It is very questionable whether the claim of
The conviction is affirmed.