57 Kan. 420 | Kan. | 1896
I. The homicide being admitted and the only defense thereto being that it was justifiable, instruction 24 was of paramount importance. There was no evidence that the defendant went before any magistrate with a view of having Mullen bound over to keep the peace, although he probably had abundant' opportunity of doing so during the course of the afternoon and after the difficulty at the billiard hall. He did apply to a constable and a police officer for protection, but this was insufficient according to this instruction. We have been unable to find any authority introducing this element into the law of self-defense. Counsel for the State cite several cases in support of the instruction, and we have examined them all but find in them no justification of the State's contention. Section 9 of the Crimes Act (¶ 2130 Gen. Stat. 1889) is itself a definition of justifiable homicide in this State, and it contains no such element as that required by instruction 24. Instruction 29 further impressed upon the jury the duty of the defendant to go before a justice of the peace
II. Instruction 25 was also erroneous and material. The doctrine that a party unlawfully attacked must “retreat to the wall” before he can be justified in taking the life of his assailant in self-defense does not obtain in this State. The State v. Reed, 53 Kan. 767. Where the defendant is in the wrong and commences the affray, even with no intent to kill or inflict great bodily harm, and the other party being thus provoked makes a deadly assault, then it is the duty of the defendant to retreat as far as the fierceness of the assault will permit him to do without danger of great personal injury to himself before slaying his antagonist. The State v. Rogers, 18 Kan. 78. In the present case it -was for the jury to determine from the evidence whether Hatch of Mullen was in the wrong in commencing the affray at Second and Main streets, which resulted in the death of Mullen. The Court should not assume that one party or the other was first or chiefly in fault when that fact is in issue, but should instruct the jury on the theory of the defendant as well as that of the State, provided each theory finds some support in the evidence as in this case.
Instruction 15 defining murder at the common law is subject to the criticism that it omits the word unlawfully ; but in connection with other instructions we think it could not have been prejudicial to the defendant, although it should be corrected on a retrial. Evidence touching the declarations of Mullen during the afternoon while armed with the shotgun should not have been admitted ; but they were scarcely prejudicial to the defendant, and the judgment would not be reversed on these grounds alone.