40 Iowa 555 | Iowa | 1875
I. On the trial in the District Court the District Attorney offered in evidence a certain writing as the
Where dying declarations are, at the time, reduced to writing and signed by the party making them, the writing is the best, if not the only, admissible evidence. Butz v. The State, 1 Meigs., 106; Viner’s Abridgment, Title Evidence, 38; Rex v. Gray, 7 Car. & Paine, 230; 1 Greenlf. Ev., Sec. 161; and cases cited in notes; see also Wharton’s Crim. Law, 312, 3d Ed. In this case, however, the statement as written down by the magistrate was not signed by the declarant. The writing was but a memorandum of what he stated, made by the justice of the peace, and which the latter, in testifying to the declarations of the deceased, -might have been permitted to refresh his memory by the use of the written memorandum; the writing itself as the dying declarations of the deceased was not competent evidence,, and should not have been admitted. 1 Greenlf. Ev., Sec 436, and cases cited in notes thereto.
Holding the writing to have been improperly admitted for
II. The court gave to the jury the following instruction which is complained of as erroneous: ■
“9. If the defendant, by improper intimacies and adulterous intercourse with the wife of the deceased, provoked the
In this instruction the court recognizes, and correctly too, that, under the circumstances stated, the defendant retained the right of self defense, but limited the right to the actual necessity of. saving his own life. It is erroneous in, at least, two respects. It is not necessary, in order to the exercise of the right of self defense, that in fact the danger should be. such that the party can only save his life by killing his assailant; such danger need not in fact exist. It is only necessary that to the defendant’s comprehension as a reasonable man, there is actual and real danger. The State v. Collins, 32 Iowa, 37, and case cited.
Again the right of self defense is not limited to the necessity of saving the life of the party assailed. The law gives him the same right to use such force as may be reasonably necessary, under the particular circumstances, to protect himself from great bodily harm, as it does to save his life. The State v. Burk, 30 Iowa, 331, and cases cited on p. 334.
III. Complaint is also made of the giving of the 11th paragraph of the charge. It is as follows:
“ 11. If the defendant went to the house of the deceased,
IV. At the commencement of the trial, and immediately after the jury had been sworn, and the indictment read to the jury, and they informed that the defendant pleaded “not guilty,” counsel for defendant asked leave of the court to make the usual statement to the jury, of the case and the evidence to be introduced in the defense, etc. This was refused by the court, and the ruling is assigned as error. Since the judgment must be reversed, and the cause remanded for a new trial, on account of the errors already pointed out, and as the members of the court might not be entirely agreed in opinion uj>on this point, we pass it without a decision.
Other errors are also assigned which we deem it unnecessary to notice.
The judgment will be reversed, and the cause remanded for a new trial.
REVERSED.