29 Nev. 320 | Nev. | 1907
By the Court,
The. appellant was convicted of manslaughter in the Third Judicial Dietrict Court in and for the County of Nye, under an indictment charging him with the murder of one Frank Ganahl on or about the 27th day of January, 1906, at the Town of Clifford, in said county, and upon such conviction was sentenced to serve a term of five years and nine months in the state prison. From the judgment of conviction, and from an order denying his motion for a new trial, the defendant has appealed.
Upon the trial the defendant admitted the killing of Ganahl, but set up as a justification therefor that it was done in the defense of his own person and that of one Max Elftman. In order to better understand some of the assignments of error hereinafter considered, it will be advantageous to refer to certain facts disclosed by the testimony, and also to quote extracts from the testimony of certain witnesses for the state and on behalf of the defendant describing the immediate facts and circumstances of the killipg.
It appears from the testimony that, shortly prior to the killing of Ganahl, an association of miners was effected at Clifford for the purpose of establishing a scale of wages for the district, which association was local in its nature, and not affiliated with the Western Federation of Miners. Of this association one George A. Cole was made the presiding officer. The evidence discloses that there was considerable friction in the district growing out of this organization. The relationship existing between defendant (Hennessy), Max Elftman, upon whose lease the killing occurred, and certain of their friends, upon the one hand] and George A. Cole, Frank Ganahl, the deceased, and certain of their friends, upon the other, is testified to by certain witnesses as being, at the time of the killing, and prior thereto, anything but friendly. There is testimony to the effect that at the time the organic zation of miners was effected in the district the defendant
There is some difference in certain important particulars in the testimony of witnesses for the state and those for the defendant relative to the immediate circumstances leading up to the killing, and for the purpose of illustrating this difference we quote from the testimony of one of the principal witnesses for the state and one for the defendant.
The witness George A. Cole testified, upon the part of the state, as follows: "At about 10 o'clock that morning, Ganahl, Fancher, and myself arrived at what is known as the 'Elftman lease.' I spoke to the Italian Bosse, who was working in a cleared away space at the edge of the shaft; evidently going to set up a windlass frame, and said: 'Hello, Antone.’ He answered, 'Hello, George,’ andlasked, 'Antone, what wages are you receiving?’ He replied, 'This man
Max Elftman, a witness for the defendant, testified’relative
There were other witnesses upon the part of the state corroborating the testimony given by the witness Cole, and, likewise, other witnesses upon the part of the defendant corroborating that of the witness Elftman. The important point of difference between the testimony of witnesses for the defense and those for the state, excepting the witness Antone Bosse, was as to the question whether the assault was first made by or upon Max Elftman, a question which will hereafter be considered with reference to certain assignments of error.
The bill of exceptions in this case contains 112 assignments of error, only a few of which we deem necessary to specifically consider at this time.
The record shows that after giving the foregoing testimony the following questions, answers, objections, rulings, and exceptions transpired with reference to the testimony of this witness: "Q. What powder did he mean? A. There was about fifteen boxes of powder stored under Elftman’s house— Mr. Pittman: We make the same objection. It has nothing to do with the case at all, as to the powder under Elftman’s house, or that they brought him a bottle of whisky. We don’t care if they brought back a hundred. The Court: Objection sustained. Mr. O’Brien: Exception. * * * Q. What did Frank Ganahl tell Alex Whitman to do on the night of January 26,1906, if anything? Mr. Pittman: If the court please, I object to that question as being immaterial, incompetent, and irrelevant, what Ganahl told him to do;
The rulings of the court above quoted have been assigned as error; but, before proceeding to consider these assignmehts we will refer to another assignment of error in reference to the testimony of the defendant, as all may appropriately be considered together. The defendant, in concluding an account of the killing of Ganahl, and of facts which led up to it, continued as follows: "At this time I knew threats had been made against the life of Max Elftman. On the morning of the shooting, Yon Mohr came over to the tent, and he says: Hennessy, I want to speak with you.’ Mr. Pittman: We will object to any threats that might have been made that he knew of against Max Elftman. Mr. Hennessy is on trial, and he claims self-defense. Any threat that-might have been made against Elftman would not place him in danger and would be irrelevant and incompetent. Mr. O’Brien: It would be material for this purpose: Our defense is that he acted, not only in defense of himself, but that he acted in defense of Max Elftman. The law is that a person has the same
The rulings of the court relative to the testimony of Van Mohr and the defendant, above set forth, were error. It was competent for the witness Van Mohr to testify fully with reference to any threats made against the life of Max Elftman by Ganahl, or by Cole or Fancher in association with Ganahl, for such threats, even if uncommunicated, would be competent for the purpose of aiding the jury in determining who was the aggressor in the encounter which subsequently occurred between Ganahl and Cole on the one hand, and Elftman on the other. It was, however, of the very greatest importance to the defendant to show that these threats were communicated to him. His defense was based upon the proposition that he took the life of Ganahl, not only to save his own life, but to save that of Max Elftman. Both these defenses were before the jury for their consideration. If defendant believed as a reasonable man that Max Elftman was assaulted and was in danger of losing his life or of suffering great bodily harm at the hands of Ganahl, he had the same right to defend Elftman as the latter would have to defend himself, and.whatever would be competent evidence in Elftman’s favor, if Elftman had done the killing, would be competent in favor of the defendant. Mr. Bishop, in
Another writer uses this language: "A well-grounded belief that a felony is about to be committed will extenuate homicide committed in prevention, but not in pursuit, by a volunteer. * * * A Iona fide belief that a felony is in process of commission, which can only be arrested by the death of the supposed felon, makes the killing excusable; but the belief must be' honestly entertained, and without negligence, and, if non-negligent, it will excuse the homicide. * * * A person has a right to repel a felony threatened to be perpetrated either on himself or others. * * * The intentional infliction of death is justifiable, when it is inflicted by any person in order to defend himself or any other person from immediate and obvious danger of instant death or grievous bodily harm, if he, in good faith, and on reasonable grounds, believes it to be necessary when he inflicts it. * * * Self-defense will justify a person in defending those with whom he is associated, and in killing, if he believes life is in danger; and the right may be exercised by the servants and friends of the party assaulted, or any one present, in repelling an attempted felony.” (Desty’s American Criminal Law, 125^, 126, 126a.)
Kerr, in his work on the Law of Homicide,-discussing the same subject, says: "It is well established that what one may do in his own defense, another may do for him, if he believes life is in immediate danger, or if such danger and necessity be reasonably apparent, provided the party in whose defense he acts was not in fault. * * * And it is the duty of a man who sees a felony attempted by violence to prevent it if possible. This is an active duty, and hence he has a legal right to use the means necessary to make the resistance effectual. If A. be unlawfully assaulted by B., and his life thereby endangered, he may, by reason of not being
See, also, Stanley v. Commonwealth, 86 Ky. 440, 6 S. W. 155, 9 Am. St. Rep. 305; In re Neagle, 135 U. S. 1, 10 Sup. Ct. 658, 34 L. Ed. 55; People v. Travis, 56 Cal. 251; State v. Felker, 27 Mont. 456, 71 Pac. 668; Wharton on Homicide, 532; text and authorities cited in 21 Cyc. 826, and 21 Am. & Eng. Ency. Law, 207; Comp. Laws, 4001, 4680.
Persons acting in defense of others are upon the same plane as those acting in defense of themselves. Therefore, every fact which would be competent to establish justification in the one case would, for the same reason, be competent to establish it in the other. (4 Elliott on Evidence, note to section 3041s; State v. Felker, 27 Mont. 451, 71 Pac. 668; People v. Curtis, 52 Mich. 616, 18 N. W. 385; Wood v. State, 128 Ala. 27, 29 South. 557, 86 Am. St. Rep. 71; State v. Austin, 104 La. 409, 29 South. 23; Foster v. State, 102 Tenn. 33, 49 S. W. 747.) Had Elftman killed Ganahl in the encounter which occurred, it would have been competent for him to have shown in his defense that a conspiracy had been entered into by Ganahl and others to take his life or to do him great bodily harm, or that Ganahl alone had made threats to do such violence, and for the same reason testimony of this nature would be competent in Hennessy’s, defense; the latter claiming to have done the killing in the necessary defense of Elftman.
The record upon appeal contains numerous other assignments of error relative to rulings of the court upon the admissibility of testimony. In many instances the court
Defendant’s requested instruction No. 11, refused by the court, was as follows: "If, after a consideration of the whole case, any juror should entertain a reasonable doubt of the guilt of the defendant, it is the duty of such juror, so entertaining such doubt, not to vote for a verdict of guilty, nor to be influenced to so vote, for the single reason that a majority of the jury should be in favor of a verdict of guilty.” This instruction was, doubtless, taken from the ease of People v. Dole, 122 Cal. 495, 55 Pac. 585, 68 Am. St. Rep. 50, concerning which instruction the court in that case said: "This is a correct statement of-the duty of a juror, and should have been given. If any juror needed an instruction upon this point, it was harmful to refuse it; if no juror needed the instruction, it would have been harmless to give it.” While this requested instruction is, in the abstract, a correct statement of the duty of an individual juror, nevertheless, it does not, we think, clearly express the whole duty of a juror, and, if it were the only instruction given in this regard, might mislead some juror into the belief that it was his duty to hold strenuously to impressions or convictions which might be in fact based upon an erroneous view or a misconception of the law or the evidence in the case, and which the juror might, upon discussion with his fellows, readily see were untenable. It is the duty of each juror to consult with his fellows^ and to consider their views, to the end that each may aid in arriving at the truth. Ultimately, of eoiirse, each juror should act upon his own convictions,
The Supreme Court of California, in a comparatively recent ease, refused to reverse where this instruction was refused, holding that the jury was sufficiently instructed as to its duties in other general instructions. The court commented upon the instruction in question as follows: "Appellant contends that the refusal to give this instruction was error justifying a reversal, and relies upon People v. Pole, 122 Cal. 486, 55 Pac. 581, 68 Am. St. Rep. 50, in support of his contention. The court there says that the instruction.correctly stated the duty of a juror and should have been given, but adds: 'If any juror needed an instruction upon this point, it was harmful to refuse it; if no juror needed the instruction, it would have been harmless to give it.’ But that case was not reversed solely or principally upon the refusal to give that instruction, but mainly upon other errors of the trial court referred to in the opinion in that case. In the later case of People v. Rodley, 131 Cal. 259, 63 Pac. 358; this court says on this subject: 'Juries are impaneled for the purpose of agreeing upon verdicts, if they can conscientiously do so. They are admonished at each recess of the court not to form an opinion as to the merits of the case until it shall be finally submitted to them, and when it is so submitted it is the duty of jurors to deliberate and consult together with the view of reaching an agreement, if they can, without violence to their individual understanding of the evidence and instructions of the court. They should not be lectured by the court to make them strong and steadfast in their individual opinions; neither should they be exhorted to reach an agreement, and while it is probably true that "each juror should decide the matter for himself,” yet he should do so only after a consideration of the
The Supreme Court of Montana, discussing this same instruction, in State v. Hurst, 23 Mont. 496, 59 Pac. 915, said: "An examination of the record in this case shows that the court carefully instructed the jury as to their duties in instructions Nos. 9, 13, 17, and 38. We agree that the instruction as ashed is a correct statement of the law as to the duty of a juror, but we also think that the general instructions submitted in this ease were amply sufficient to guide the individual jurors in the performance of their duties under the law. The court had heard the individual jurors examined. It had witnessed their behavior during the progress of the trial. It was discretionary with the court to instruct the jury more specifically with reference to their individual duties, the exercise of this discretion to be determined by the observations made by the court during the examination of the jurors, and their conduct during the trial. If the court thought proper to give the instruction, it was proper to give it. On the other hand, if the court thought the jury did not require the instruction, it was not abuse of discretion to refuse to give it. There is some conflict of authority as to whether the court should instruct the jury in matters of this kind. We agree in the main with what the Supreme Court of Iowa said on the subject of such instructions in State v. Hamilton, 57 Iowa, 596, 11 N. W. 5: Of course each juror is to act upon his own judgment. He is not required to surrender his convictions unless convinced. He may be aided by his fellow-jurors in arriving at the truth, but he is not to find a verdict against his judgment, merely because the others entertain views different from his own. But a jury need not be advised of so simple a proposition. The usual method of instructing upon the measure of proof required in criminal cases is sufficient.’ ” To the same effect is State v. Howell, 26 Mont. 6, 66 Pac. 291.
Defendant’s requested instruction No. 14, refused by the
Defendant’s requested instructions Nos. 15, 16, 17, 21, 22, and 23, refused by the court, were, doubtless, offered for the purpose of applying abstract principles of law to facts as testified by witnesses for the defendant. If the jury believed the testimony of'the defendant’s witnesses, instructions of the character requested would enable the jury to more readily apply the law to the facts which such evidence might be deemed to have established. These requested instructions are indorsed "Refused” by the trial judge, without giving any reason therefor, and we are therefore at a loss to know upon what theory he acted in denying them. Counsel for the state does not question their correctness, but claims it was not error to refuse them, for the reason that other instructions covered the same points — referring to certain instructions which simply embodied abstract principles of law. It is
Error is assigned in the giving of the state’s requested instruction No. 6, which reads as follows: "The court instructs you that if you believe from the evidence that, at the time Cole, Fancher, and Ganahl went to the Elftman’ lease, they went there in an orderly and peaceable manner, for the purpose of maintaining a rate of wages, and to induce Antone Bosse, in an orderly and peaceable manner and without violence, to work for that wage, their purpose was a lawful purpose under the laws of this state.” Counsel for the state contend that this instruction stated the law and was applicable to this case because of the provisions of section 110 of the crimes and punishments act (Comp. Laws, 4751). This section defines the crime of conspiracy, but the concluding part of the section contains the following proviso: " That no part of this act shall be construed in any court of this state to restrict or prohibit the orderly and peaceably assembling or cooperation of persons employed in any profession, trade, or handicraft for the purpose of securing an advance in the rate of wages, or compensation, or for the maintenance of such rate.”
We are unable to see how the provisions of the section quoted could authorize the giving of the instruction in question in this case. It was competent to show the purpose which occasioned Ganahl, Cole, and Fancher to go upon the Elftman lease, and how they proposed to accomplish such purpose, for that would be a circumstance to be considered by the jury in a determination of the disputed question
The record contains a number of other assignments- of error relative to the refusal and allowance of instructions, but we think we have covered the main questions which have occasioned difficulty in the trial of the case. Whether or not error was committed in the matter of assignments not specifically considered, we believe the trial court will have no serious difficulty in their proper disposition when again presented.
For the reasons heretofore given, the judgment and order of the trial court are reversed, and the cause is remanded for a new trial.