66 P. 633 | Kan. | 1901
The opinion of the court was delivered by
Further along the accused testified that when he fired the fatal shot he thought his life was in danger ; that when Hoffman entered the restaurant he made a motion of his right hand as if to draw a revolver ; that he put all the circumstances that had happened together and could n’t see how he coúld avoid taking Hoffman’s life ; that he considered and weighed the conversations held between them and came to the conclusion that Hoffman intended to kill him. The following questions, and the action of the court thereon, appear in the record :
“Ques. Mr. Burton, at any time were any other threats made by Fred. Hoffman conveyed to you ? Ans. At any time ?
“Q. Prior to that time. A. Yes, sir.
“Q. When were they conveyed to you? A. Saturday evening. (Counsel for the state objects to the witness stating that threats were conveyed to him as incompetent and immaterial.)
“By the court: Sustained. (To which ruling the defendant excepts.)
“Q. I will ask you if you was told that Fred. Hoff*607 man made a statement at that cake-walk that if he could find you he would do you up ? (Objected to by the state as incompetent.)
"By the court: At this time the objection is sustained. (The defendant excepts.)”
It appears that the first question propounded was in fact answered by the witness, but immediately afterward an objection was made by the state that it was incompetent and immaterial, and the court sustained the objection on those grounds. The court instructed the jury as follows :
"Any evidence which has been admitted by the court should be considered by you in making up your verdict; and when any evidence heard by you has been afterwards struck out by the court, you should absolutely and entirely disregard and give it no consideration. Your verdict should be based alone upon the evidence which the court has permitted to stand, and upon the law as stated to you in these instructions.”
It is quite apparent that the court did not intend that the answer of the witness should be considered by the jury, and we regard it as having been stricken out.
The court refused to permit the defendant to answer the following questions :
“ Q. I will ask you if, at the time of this tragedy, you had ascertained and knew the reputation of Fred. Hoffman for being a violent and turbulent man, and for carrying a gun ?
“ Q. I will ask you, Mr. Burton, if you knew what Fred. Hoffman’s reputation was at the time of the tragedy as a violent and turbulent man?”
If the defendant was justified in acting on the ap
In the case of State v. Lull, 48 Vt. 581, 586, 11 L. R. A. 75, a prison-keeper was indicted for assault and battery on a prisoner. The latter had a hammer in his hand and appeared nervous and excited, though he made no attempt to strike, but the keeper .expected and feared a blow from him. It was held that the accused might show that the sheriff who committed the prisoner informed him that he- was dangerous and desperate. The court said :
“We think that the court erred in excluding the testimony offered to be shown by Mr. Tripp as to what he told the respondent at the time he delivered Kefoe to him at the state prison in respect to his being a violent and desperate man. It was an offer to show that Tripp told the respondent what the character of Kefoe was in respect to his being a violent and desperate man. The form of the words used is not so material as the idea conveyed. This evidence we think was fairly within the rule that the court laid*610 down as governing the kind of testimony that was admissible, not particular acts of violence, but the character of the man in that respect. Such evidence would be material in determining how far the respondent was justified in inflicting the blow which he did, taken in connection with the surrounding circumstances and the evidence exhibited by Kefoe of an intention at the time to make an attack upon the respondent ; and such evidence is always admissible as bearing upon the question as to whether a respondent had good reason to fear an attack upon himself, and acted in self-defense.” ( See, also, People v. Powell, 87 Cal. 348, 25 Pac. 481, 11 L. R. A. 75.)
The judgment of the court below will be reversed ' and a new trial ordered.