No. 1922 | Nev. | Oct 15, 1910
By the Court,
The appellant, S. P. Grimmett, was indicted by the grand jury of Esmeralda County, State of Nevada, for the crime of murder, for shooting and killing one Charles Edward Baker on the 24th day of October, 1909. The appellant was regularly tried before a jury in the District Court of Esmeralda County, found guilty of voluntary manslaughter, and sentenced by the court to serve a term of six years in the Nevada state penitentiary. From the judgment of conviction, and from the order of the lower court denying a motion for a new trial interposed by defendant, relief is sought by appeal in this court.
Many assignments of error are urged by the appellant, but it will be only necessary to consider one, to wit: "That the verdict of the jury is contrary to the evidence.” Before proceeding to a consideration of this assignment of error, which we believe will be sufficient for the purpose of disposing of this case on appeal, we will advert to the confession of’ error made by the attorney-general on behalf of the state in submitting this case, at which time the representative of the attorney-general’s office said: "May it please the Court: In the case of State v. Grimmett, the state concedes that fatal error exists, in that the verdict of the jury is clearly contrary to the evidence. A careful examination of the record shows that the defendant acted in self-defense; that he would have probably been killed himself if he had not shot at the time he did. The aggressive acts of Baker, the decedent, brought about his own death, and the defendant acted as any other reasonable man would have-done when so situated.” After the submission of the case the district attorney of Esmeralda County, in
An examination of the evidence, however, reveals to our mind a clear case of self-defense. The evidence introduced in behalf of the state and also of the defendant conclusively proves that Baker was the aggressor in the difficulty, which resulted in the loss of his life, and that it was necessary for the defendant to kill him in order to preserve his own. It appears on the night of the tragedy, from the testimony of witnesses for the state, that the decedent, after being asked for $7.50, which the defendant claimed the decedent owed him, became violently angry, called the defendant a "hop-head” and a "son of a bitch,” hurriedly removed his coat, threw it on a roulette wheel in the saloon, ran for a billiard cue, and rushed towards the defendant, but was intercepted and the cue taken away from him by bystanders. Whereupon the decedent immediately ran back of the bar, took a revolver from the drawer, and as he rushed to the end of the bar, revolver in hand, fired one shot at the defendant, whereupon the defendant fired two shots, killing the decedent. For some time_ prior to the killing, the participants in this fatal affray were on unfriendly térms, and the decedent had threatened to kill the defendant.
The law is well established that where a person, without voluntarily seeking, provoking, inviting, or willingly engaging in a difficulty of his own free will, is attacked by an assailant, and it is necessary for him to take the life of his assailant to protect his own, then he need not flee for safety, but has the right to stand his ground and slay his adversary. Reviewing the whole evidence, we believe the position of the attorney-general, in confessing fatal error, is supported by an overwhelming preponderance of the evidence, and that the verdict of the jury is contrary to the evidence and must be reversed.
It is so ordered.