43 Cal. 447 | Cal. | 1872
By the Court,
The prisoner was convicted of the crime of manslaughter, in killing one Atwill, and from the judgment and an order denying him a new trial he has prosecuted this appeal:
1. The challenge interposed to the juror Fowler “ for im
2. It is insisted that the Court erred in its charge to the jury, and in the refusal to give to the jury certain instructions asked for by the prisoner, and refused by the Court.
The shooting was not denied, but was claimed by the. prisoner to have b'een excusable under the circumstances. The prisoner was the clerk in charge at Coulter’s Hotel, in Snelling, at which hotel the deceased was a boarder, but not a lodger, and about two o’clock in the morning saw a man, who proved to be the deceased, seemingly in the act of getting into or out of a window of one of the rooms on the ground floor of the hotel. The man appeared to be'balauced upon the sill of the window, with his feet hanging out; and the prisoner seems to have fired at him from another window of the same hotel. The ball entered the upper portion of the left thigh of the deceased, lodging in the right leg, between the knee and ankle. Tetanus subsequently set in, causing death in a few days. The evidence for the prisoner, he having been sworn upon his own behalf, was to the effect that, hearing a noise about two o’clock in the morning, seemingly a striking against the sash of a window, he jumped up—had a revolver in his hand—and seeing by a faint moonlight the legs of a man hanging out of the window of the room occupied by the children of Mr. Strong, the proprietor of the hotel, he fired, without knowing who the person in the window was, and without warning him, or inquiring of his business there. Hpon the other hand, the evidence upon the part of the prosecution tended to show that the prisoner was not ignorant of who the deceased was when he fired at him; that he knew well that it was Atwill in the window; that in the room into which the window opened was a woman, in charge of the children of Strong, "the landlord, and that for the favors of this woman the deceased and the prisoner were rivals; that the deceased, as he expressed it
The Court refused to instruct the jury that if they believed “ that the defendant, having charge of the house, had reason to believe that the person trying to enter the house by the window, at the midnight hour, did so for the purpose of committing a felony or other unlawful act, then the jury will acquit.” It is clear that the instruction, as thus asked, is not the law. The phrase unlawful act, as contained in the instructions asked, goes beyond the provisions of section twenty-nine of the Act concerning crimes and punishments, with reference to which the instruction was apparently drawn. Under the provisions of that section the killing would be justified only when the entry into a habitation is being made in a violent, riotous, or tumultuous manner, for the purpose of assaulting or offering violence to some person dwelling or being therein, or for the purpose of committing a felony by violence or injury. The statute also provides that a bare fear of any of these' offenses is not sufficient to justify the killing, but that it must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the in
At the instance of the prisoner the Court instructed the jury as follows: “ A man is not authorized to fire a pistol on every intrusion or invasion of his house. He ought, if he has a reasonable opportunity, to endeavor to remove the intruder without having recourse to the last extremity; but the making an attack upon a dwelling, and especially at night, the law regards as equivalent to an assault upon a-man’s person, for a man’s house is his castle.” There was no error in refusing an instruction subsequently asked, to the effect that if the prisoner did not have a reasonable opportunity of removing the deceased, then he was justified in shooting him, and should be acquitted. “A reasonable opportunity” is too vague an expression in this connection; besides, the facts appearing at the trial did not warrant the instruction as asked. The shot was fired without calling to the deceased to desist, or inquiring of him as to his purpose in being in the window of the hotel. There were no circumstances calculated to arouse the fears of a reasonable man,
We discover no error in the action of the Court in giving or refusing to give instructions to the jury upon points involved in the shooting of the deceased. We will not consider the errors, or supposed errors, of the Court below upon merely abstract propositions of law, but will only look to see that no misdirection or refusal to give proper instructions upon the points actually arising, or which, from the nature of the accusation, must have necessarily arisen in the case, has occurred.
The question as to whether or not the death of the deceased resulted from the wound inflicted upon him by the prisoner or from other causes, was fairly submitted to the jury under the instructions; and the objection to the giving in evidence of the dying declarations of the deceased was properly overruled. In fact, the record discloses no error of which the prisoner can be heard to complain, or by which his substantial rights were prejudiced at the trial.
Judgment and order denying a new trial affirmed.
Mr. Justice Crockett did not participate in this decision.