State v. Blee

Mar 13, 1907

Reporters:: ,
Before:: Bishop

Bishop, J.

The killing by defendant of his half-brother, Isaac Bailor, is not disputed. Self-defense was relied upon to secure a verdict of acquittal. The parties resided upon adjoining farms‘; the defendant, with his wife, whom he had married about a year previous, living with his mother. It seems that trouble arose soon after the marriage of defendant, and was connected in some way with the right or supposed right of defendant to longer remain at the moth*727er’s home. This was followed by a contention as to the right of defendant to a passageway over a portion of the farm of the deceased as a means of access to a remote part of the mother’s farm. On the day of the tragedy, the defendant had been to snch remote fiеld — to salt some stock and to hunt, as he says — and on his return he traveled over the disputed way to reach a lane leading to the highway. As he passed by the outbuildings of deceased, carrying his shotgun, the latter with his young son twelve years of age were about the yards and buildings at work, and each saw the other. The immediate circumstances of the tragedy are in dispute. They were known only to the defendant, and the young boy, as the shooting of Bailor was instantly fatal. It is the story of the boy as told on the witness stand that, after defendant, reached a gate leading into the lane, “ he called my father down. I walked along down that way w.ith my father, and then he asked him what he had set that post in that gate for. Father said: ‘ Because I wanted to.’ Jim said: ‘You set it there to keep me from going through, didn’t you?’ Father said: ‘You are not going through there tracking up my land.’ Jim said: ‘ If you stop me from going over through here, I will stop you from going over that lane.’ Father said: ‘ I have paid for that lane, and I have a right to travel it.’ Jim said: ‘ Ike, I have got a contract to go through here.’ Father said: ‘ I never gave you a contract i-n my life.’ Jim said-: ‘ Dоn’t you say that again, that you are going-over that road.’ Father said: ‘ I will.’ Jim then took the gun off his shoulder and pointed it at him, and said: ‘ Don’t you say it again that you are going’ through there.’ Father said: ‘ I will.’ Then father said: ‘ God bless my children.’ And then Jim shot.” The boy further says that, when the shot was fired, his father’s hands were hanging at his side, and that he had a pair of cloth mittens on. It is the defendant’s version that, as he аpproached the gate, the deceased called to him “ and wanted to know what in hell I was doing in there. *728He was, perhaps, 125 feet behind me, and the little boy still behind him. I asked him if I didn’t have a right to go through there, and he said: £ No, God damn you, you haven’t.’ And I asked him who set that post down there, and he said: ‘By‘God, I set it there.’ And he kept coming on, and I stopped, and he kept сoming after me, and he used an oath and told me to get out of there or he would fix me, and I went on toward the gate. When I got over the gate, he was within 16 or 18 feet of me. He had then pulled off his mitten, and he says: ‘ God damn you, I will kill you’ — and reached back for his revolver. I was standing right in front of him, and when he reached back for his revolver-1 shot him.”

1. Murder: seifdence. I. The defendant, as a witness, testified thаt, on an occasion a short time before the tragedy, he met the two brothers, Isaac and William Bailor, when an altercation of words and blows took place. “ I had been to a neighbor’s, and when I came Dhck I saw Ike at a small brush pile just west of- our house. It was dark the first part of the evening, but in the latter part it commenced to snow and-got lighter. This was prоbably a hundred feet from the house. The first I noticed he stepped out in front of me.” Being asked what was said and done by Isaac, the state objected, on the ground that a recitation of the details of the affray was not competent, and the objection was sustained. Counsel for defendant then stated it to be their purpose to show as circumstancеs of the meeting that the affray began by Isaac cursing the defendant, and by at once following this up with a physical assault. To this the court responded by saying, in substance, that the fact of the altercation was alone material, not the particulars or merits thereof, “ or even to show who was the aggressor, or the circumstances surrounding it.” This ruling was subsequently modified to permit the introduction of “ any matter in connection with it in the nature of a threat against the defendant.” It is no part *729of the contention for error that defendant was entitled’ to go into the specific details or merits of the affray. The complaint is that he was not allowed to- show generally who was the aggressor. We thint‘the contention for error thns made shоuld be sustained. It is quite universal doctrine that-,- in cases of homicide, where the killing is admitted and self-defense is relied upon as a justification, the state of the previous relations between the parties may be inquired into, and this for two purposes: as bearing upon the question who was the aggressor in the fatal affray, and as tending to thrpw light upon the mental attitude of thе defendant when he fired the fatal shot. And to the státe of the law as thus far stated, counsel for the state and defendant are agreed.

.Addressing -ourselves to the phase of the subject first above stated, it must be manifest that it was a matter of prime importance to determine who was the aggressor in the fatal affray. But two witnesses could speak from personаl knowledge on the subject, and in their testimony they were diametrically opposed to each other. -If the boy was to be believed, the killing was unjustifiable. If the defendant was to be believed, he might well be acquitted; his asserted belief of imminent peril being credited. Now, the mere fact that previously a state of enmity had existed between the parties, or that they had been more or less frequently involved in affrays, without more, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍could not in the very’ nature of things have effect to throw light upon the controverted fact as thus made in the case. The fact of the occurrence of an affray takes on importance only when it is known who was the aggressor therein. The parties might have mutually agreed to fight, or, on the other hand, one of the participants may have been wholly innocent of offense. To bring forward the bare fact that an affray had taken place, cutting off all inquiry into the attitude of the participants at the outset might well result in a perversion of the course of justice, and therefore altogether indefensible. It is the fact of an assault, and not the mere fact of an *730affray, that is -material. And, it being known who made the assault, the effect, as we think, is to- lend corroboration to the claim that the one making the assault was also the aggressor in the fatal affray. It is clearly within the bounds of reason to say that the claim by one party to an affray that in ‘respect thereof the initiative was taken by the other may be strengthened by proof of the fact that such other had on former occasions threatened to, or had in fact assaulted or attacked, beat, waylaid, or shot at him — this, of course, where, as in the case before us, there had been no intermediate reconciliation. Stating the-proposition in another way, where one is shown to have сommitted an unprovoked, assault on yesterday, it is not altogether improbable that he will repeat it to-day or to-morrow, if the occasion shall bring the object of his wrath within his reach, and the fire of passion is still burning. Of course, the corroborative weight to be given the evidence of a previous assault or threat to assault is matter’ for the consideration of the -jury. As directly supporting our conclusion thus expressed, see 21 Cyc. 962, citing the following, among, other, cases: Bell v. State, 69 Ark. 188 (61 S. W. 918, 86 Am. St. Rep. 188) ; Monroe v. State, 5 Ga. 85; Coxwell v. State, 66 Ga. 309; State v. Scott, 24 Kan. 68; Gunter v. State, 111 Ala. 23 (20 South. 632, 56 Am. St. Rep. 17) ; State v. Schleagel, 50 Kan. 325 (31 Pac. 1105); Glennewinkel v. State (Tex. Cr. App.) 61 S. W. 123; State v. Graham, 61 Iowa, 608. See, also, State v. Helm, 92 Iowa, 540, wherein it is said that, if it be uncertain who was the aggressor, even threats by the deceased which had never been communicated to his slayer are admissible as tending to show that in the fatal encounter the deceased was seeking to carry his threаts into execution.

The Attorney General brings to- our attention many cases — and we need not cite them — holding that the details or merits of the previous affray cannot be inquired into. We have no need to dispute the authority of such cases, even *731if we were so disposed, which we are not. It could serve no useful purpose to know how an affray, oncе started, was waged from beginning to end, or, in respect of the subject matter lying back, and which brought on the quarrel, which one of the contending parties was in the right, and which one in the wrong. As already stated, it is the fact of the assault, and who made it, that is material. By what it was followed, or how it terminated, and whether prompted by a real or fancied grievance, are matters altogether beside the subject of .present inquiry. We do not understand the cases relied upon by the state to go farther than to hold that evidence addressed to such matters of detail or‘merits is inadmissible.

Going, now, to the remaining phase of the subject in hand, we think the question who made the previous assault was material to be considered in determining what wаs the mental attitude of defendant at the time he fired the fatal shot. Certainly, proof of a previous threat by the deceased to assault defendant would tend “ to throw light upon defendant’s motive, and show whether in killing deceased he was actuated by malice, or acted in the belief that it was necessary for him to take the life of the. deceased in оrder to preserve his own life.” 21 Cyc. 963. And we perceive no good reason for denying to the fact of an assault actually committed evidential value to the same end; it being conceded that the state of enmity continued. The one is a verbal act of hostility, and the other a physical act of hostility. As far as either tends to make clear the attitudе of defendant, and to show that he had cause to fear the result of a farther hostile demonstration on the part of the deceased, it is competent.

2. Examination of witnesses: discretion. II. Complaint is made of numerous other rulings made by the court in the course of the introduction of the evidence. We shall notice ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍only those that . ....... have some appearance of merit, and are likely to arise upon a further trial of the case. On cross-ex-*732animation of Brank Bailor, the young son of the deceased, he stated that a meeting of the Bailor family was held before the trial at which one of the attorneys, for the state was present. He was then interrogated in regard to what was said by different ones as to what their testimony would be. After proceeding to some length, the state objected, and the court ruled that the subject had been gone into far enough. The matter was in the discretion of the court, and there was no error.

3. Evidence of conveesations. One Welshons, a witness for defendant, testified to a conversation between himself and the two brothers, Isaac and William Bailor; that therein the brothers were discuss-mg the matter of their enmity towards def enciaiIj; a¿¿ giving expression to threats against him. On cross-examination the witness answered that he could not tell what was said by Isaac, and what was said by William, and, on motion of the state, the evidence was stricken out as a whole. In this there was no error. The obvious purpose in calling the witness was to prove threats made by Isaaс Bailor, and, if the witness could not identify any language as having been spoken by him, the whole was incompetent.

4. hearsay evidence. It was made to appear that William Bailor, brother of the deceased, was on the ground almost immediately after the shooting. One Bowers also came after the body had been removed to the house. William gave Bowers a revolver, which thе latter kept for a few hours, and then returned it to William. Defendant called Bowers as a witness, and sought to show by him what was said by William on such occasions. The evidence was> refused as hearsay, and properly so. As far as appears, William had not been a witness, and there had been no evidence that a revolver was found on the person of the dеceased.

*733e. Evidence: . seif-defense. *732Defendant sought to go into the question of the merits of the property differences existing between himself and the *733deceased. The refusal on the part of the court to permit this was not error. Simply stated, the situa- - tion that defendant was accused by the deceased of being a trespasser. Whether he was such or not could not in any sense have been material to the case. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍There is no pretense that he acted in defense of his possession. It is his claim that he shot in defense of his person, and, in making out this defense, it was not necessary to prosecute any inquiry into the contract or property rights of the parties.

6. Evidence: un- ’ communicated threats. III. Evidence tending to show threats made by the deceased against thе defendant was admitted in evidence. Some of such threats were confessedly not communicated to the defendant prior to the • homicide. The . , . . _ court instructed the. jury that imcommunicated threats could be’ considered for no purpose save as an aid in determining who was the aggressor in the fatal encounter. This instruction is denounced by counsel for appellant as error; and it is the argument that the uncommunicated threats had bearing, not only to show who began the affray, but to corroborate the evidence of communicated threats, and also to show the attitude of the deceased toward defendant. The precise question is now before this court for the first time. However, it has arisen and been passed upon by the courts of sister States with more or less frequency, and almost without exception, as far as we have been able to discover the rule as here contended for by appellant has been adopted. In Levy v. State, 28 Tex. App. 203 (12 S. W. 596, 19 Am. St. Rep. 826), it is said: “ Such uncommunicated threats would be admissible and proper evidence for the purpose of showing that in all probаbility the deceased made such attack, and his motive in so doing. Such evidence has also been held admissible to corroborate evidence of communicated threats previously admitted” — citing Holler v. State, 37 Ind. 57 (10 Am. Rep. 74); Cornelius v. Com., 15 B. Mon. (Ky.) 539; *734Horrigan & Thompson on Self-Defense. In Cornelius v. Com. it was said: “We think that this testimony should, under the circumstances in this case, have been admitted. It tended to confirm the other еvidence that Hopson had made threats against the prisoner, and to counteract a presumption of fabrication by the witnesses who gave their testimony. Besides, Hopson’s intention to make an attack on the accused was an important matter, as well as the belief of the existence of such an intention on the part of the prisoner.” And this rule was expressly approved in Holler v. State. In State v. Williams, 40 La. Ann. 168 (3 South. 629), it was said: “We think that reason and authority concur in establishing their [uncommunicated threats] admissibility, under the circumstances, as corroborating the evidence as to the uncommunicated threats, as indicating their meaning and seriousness, as establishing the purpose with which the deceased provoked the encounter, and throwing light upon his acts in connection therewith.” In State v. Turpin, 77 N. C. 473 (24 Am. St. 455), it was said:” “ This evidence [uncommunicated threats] was competent, and should have been admitted .for several reasons: First, the uncommunicated threats were admissible for the purpose of corroborating ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the evidence of the threats which had already been given; second, they were admissible to show the state of feeling of the deceased toward the prisoner; third, for ascertaining who began the affray.” In State v. Brown, 22 Kan. 230, in speaking of uncommunicated threats, the court said: “Again, a rejection of these threats was error, as evidence of communicated threats had already been admitted, and in such cases it is competent, for the purpose оf corroborating this testimony, to introduce evidence of uncommunicated threats ” — citing authorities. In Roberts v. State, 68 Ala. 156, in speaking of uncommunicated threats in cases where self-defense is relied upon, it was said that such threats “ recently made, are admissible for the purpose of showing the quo animo of such demonstration or attack. *735So uncommunicated threats are frequently admitted for the purpose of corroborating those that are communicated and which have already been admitted; and, likewise, where it is doubtful from the testimony which party commenced the affray, threats of this character are admissible as in the nature of facts to show who was properly the assailant.” In Territory v. Hall. 10 N. M. 545 (62 Pac. 1083), this question received very thorough consideration at the hands of the court, аnd the following conclusions were announced: “ There are a few eases which hold that uncommunicated threats, to be admissible for any cause, must be shown to have been communicated to the accused, and others which hold that imcommunicated threats are not admissible, unless they constitute a part of the res gestee; but the more modern and better reasоned cases favor the admission of such evidence in the following instances: (a) To show who began the affray; (b) to corroborate evidence of communicated threats; and (c) to show the attitude of the deceased.” To our minds each of the cases thus cited is exactly in point, and we think the rule therein announced should ibe adopted for this- Stаte. From this it follows that the instruction complained of must be condemned.

But a word will be required to dispose of the further contention of appellant that the instruction we have just been considering was erroneous, in that it excluded the uncommunicated threats from consideration as evidence bearing on the attitude of the deceased. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍This criticism is without merit. The question of the attitude of the deceased was bound up in the question whether or not he was the aggressor. And, as an aid to reaching a conclusion on that question, the instruction authorized consideration of the threats.

For the errors pointed out in this opinion, the defendant must be awarded a new trial, and the case will be remanded for that purpose.— Reversed.