148 P. 562 | Nev. | 1915
By the Court,
The appellant, who will hereafter be designated the defendant, was convicted of murder in the first degree, and from a denial of the motion for a new trial and the j udgment, appeals to this court.
It appears that on the 20th of August, 1913, William Billings, the deceased, went to the town of Mountain City, and after arriving inquired where the defendant could be found. Being informed by one George Anderson that the defendant was in the house where the defendant and his mother resided, the deceased, in company with said Anderson, proceeded to the residence and made search for the defendant, and, failing to find him, went to a cabin a short distance from the house, where defendant was asleep. Deceased awoke the defendant and demanded of him payment of an alleged indebtedness of $25. Defendant insisted that he did not owe the debt; whereupon deceased struck him in the face, and took the defendant by the collar and led him to the defendant’s barn in search of a saddle which the deceased said he was going to take in payment of the indebtedness. The evidence tends to show that while in the barn the deceased again assaulted the defendant, and, not finding the saddle at that place, proceeded to the barn of one Rutherford in search of the saddle, where it was found and taken by the deceased and put into his buggy. It appears that at no time did the defendant resist the assaults of the deceased.
After having a meal and attending to some other matters, the deceased, in company with his wife and little daughter, left Mountain City, driving in the direction of his home. The defendant, shortly after the departure of the deceased, having in his possession a gun which he had prior to the time deceased left, procured a horse, and,
“The jury are instructed: That if you believe from the evidence, beyond a reasonable doubt, that the defendant armed himself with a deadly weapon for the purpose of seeking the deceased, and that the defendant then followed the deceased from Mountain City to the Stinton ranch, and that the defendant there attacked the deceased with a deadly weapon, then I instruct you that the defendant was the aggressor. And if you likewise find that the deceased thereupon made a counter attack upon the defendant which was such as to excite the fears of a reasonable man that the deceased was about to take the life of the defendant or do him great bodily harm, still the defendant must be held to remain the aggressor, unless you shall likewise find from the evidence that the defendant in good faith had declined further combat, and had fairly notified the deceased, as a reasonable man, that he had abandoned the contest. And if you should find that the circumstances were such, arising from such counter attack, that the defendant could not so notify the deceased, the danger in which the defendant then stood was brought upon himself by his own fault, and he cannot justify the killing of the
It is urged by counsel for appellant that this instruction is defective, in that it does not embody the element of the intent with which the alleged original assault was made by the defendant, claiming that, if the defendant did not intend to commit a felony in making the original attack, he was entitled to plead self-defense in killing the deceased.
The Supreme Court of Missouri, in the case of State v. Partlow, 90 Mo. 608, 4 S. W. 14, 59 Am. Rep. 31, reviews some of the cases in point which had been decided prior to the rendition of that opinion, and says:
“In all of these- cases I have cited, and I might have cited ‘a great cloud of witnesses’ to bear testimony to this well-established legal principle, the idea is made prominent that the main feature in such cases is the intent with which the accused brought on the quarrel or difficulty; if with no felonious intent, no harboring of malice, no premeditated purpose of doing great bodily harm, or killing the person assaulted or with whom the quarrel is begun, then the accused is not a murderer, let the result of the difficulty turn out as it will.”
The Supreme Court of Appeals of Virginia, in the case of Hash v. Commonwealth, 88 Va. 194, 13 S. E. 405, uses the following language:
“Horrigan and Thompson, in their cases in self-defense (page 227), in a note to Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, cited in State v. Partlow, 90 Mo. 608, 4 S. W. 14, 59 Am. Rep. 31, give an admirable summary of the authorities on this subject as follows: Tf he [the slayer] provoked the combat or produced the occásion, in order to have a pretext for killing his adversary, Or doing him great bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat. But if he provoked the combat, or produced the occasion, without any felonious intent, intending, for instance, an ordinary battery merely, the final killing in self-defense will be manslaughter only.’ Here
The Supreme Court of Tennessee, in Foutch v. State, 95 Tenn. 716, 34 S. W. 424, 45 L. R. A. 690, uses the following language:
“In order to make a man guilty of murder who is the ‘aggressor’ or ‘in. fault,’ or who ‘provokes a difficulty’ in which his adversary is killed, he must have provoked it with the intent to kill his adversary, or do him great bodily harm, or to afford him a pretext for wreaking his malice upon his adversary [citing cases]. In order to deny such party the right to rely on the plea of self-defense, it must appear that he was the ‘aggressor’ or ‘in fault,’ or ‘provoked the difficulty’ in such a way and with such intent as the law contemplates in the use of these terms. It is not every ‘aggression’ which produces a difficulty that is an unlawful one within the meaning of this phrase, nor is it every ‘fault’ which a man might commit that precludes him from defending himself when violently assaulted or menaced, nor is it every ‘provocation of a difficulty’ which robs him of the right of self-defense.”
In a case where the defendant was alleged to have been the original aggressor, the Supreme Court of Colorado uses the following language:
“If, however, the wrongful intent or act was not felonious, but merely done with the intent to commit a simple assault or a misdemaenor, and in the struggle thus brought on the defendant kills his antagonist, while it is true he would not be excused or justified — therefore not entitled to an acquittal — yet the defense may properly be interposed as legitimate, and as bearing upon the degree of the homicide, to aid the jury in determining whether it be murder or manslaughter.” (Boykin v. People, 22 Colo. 506, 45 Pac. 423.)
From the decisions cited and quoted from it appears to be the rule that, if one makes an attack upon another for the purpose of committing a felony and of wreaking his malice upon the person so attacked, and the person thus attacked makes a counter attack and is slain, the plea of self-defense is not available; but, if such attack is not made with a felonious intent, the plea of self-defense is available. We are of the opinion that the intent with which the defendant made the alleged attack upon the deceased at the Stinton ranch is material, and should have been covered by the instruction.
“Q. Now, at the time you first saw Jerry Huber, as you have testified, just what were you doing, and just what was Mr. Billings doing? A. We were just leading the horses around from the tongue; j ust turning around from the buggy.
“Q. At the time you first noticed Jerry Huber was he on his horse? A. Yes, sir.
■ “Q. Did he remain on his horse ? A. No, sir.
“Q. Where did he dismount? A. In the road.
“Q. About how far was that from where you and Mr. Billings were standing? A. About — oh, somewheres around seventeen steps, I guess. * * *
“Q. Did you notice how the defendant held that shotgun at that time ? A. Yes, sir.
“Q. How? A. Held the stock of the gun under his arm. * * *
“Q. What, if anything, did the defendant, Jerry Huber, do when he got off his horse? A. Walked a few feet in front of him.
“Q. In front of the horse do you mean ? A. Yes, sir.
“Q. Did he speak any words or make any motions, or do anything else at that time? A. Do you mean after he walked up in front of his horse ?
“Q. No; at the time he walked up there. A. At the time he was walking up, well he was walking along, and I never heard him say anything j ust then.
“Q. What, if anything, did Mr. Huber do after walking
“Q. At the time he spoke these words in what position was that gun held ? A. It was held towards us. Is that what you mean, which way it was pointing?
“Q. No; that was not the purpose of the question. That would have been the next question. I was asking what position the gun was held in by Mr. Huber. A. The stock of the gun was held under his arm down to his side.
“Q. And in what direction was the barrel pointing? A. Pointed towards Mr. Billings and myself.
“Q. Was there any reply made by Mr. Billings after those remarks addressed to him by Mr. Huber? A. Yes, sir.
“Q. What was that reply? A. He pointed over his shoulder and says: ‘There is your saddle, Jerry; there is your saddle.’
“Q. Now, at the time Jerry Huber made this request of Mr. Billings, and at the time Mr. Billings made this answer to Jerry Huber, what, if anything was Mr. Billings doing? A. Walking along by the side of me at the time Mr. Huber made the remark, and just passed in front of me as he spoke.
“Q. That is, Mr. Billings passed in front of you as he spoke to Jerry? A. Yes, sir.
“Q. Then what, if anything, did Mr. Billings do next? A. Stepped back to my left side and kept on going towards Mr. Huber.
“Q. Did he walk clear down to where Mr. Huber was ? A. He did, within a few feet.
“Q. How fast was he going? A. Well, about a medium gait.
“Q. By a medium gait do you mean a medium-gaited walk, or a medium-gaited run? A. A medium-gaited walk.
“Q. What, if anything, did Jerry Huber, the defendant, do while Mr. Billings was walking towards him? A. Demanded him to stop.
“Q. Did Mr. Billings stop. A. He did not.
“Q. What did he do? A. Kept on going down towards Mr. Huber.
“Q. After that did Jerry do anything while Mr. Billings was walking towards him ? A. He told him to stop again.
“Q. How far was Mr. Billings from Jerry when that second request was made? A. About halfway between himself and me.
“Q. Did Mr. Billings then stop ? A. He did not.
“Q. On either of these occasions did he make any reply to Jerry? A. He did not.
“Q. What did he do after this second request to stop ? A. He kept on going towards Mr. Huber.
“Q. And then what did Jerry do, if anything? A. He did nothing.
“Q. After Jerry had requested him to stop the second time, and when Mr. Billings continued on towards Jerry, what, if anything, occurred? A. When he got within a few feet of him Mr. Huber told him to stop again, and j ust as he told him to stop he made a lunge for the gun.
“Q. Who made the lunge for the gun ? A. Mr. Billings.
“Q. What, if anything, did Jerry do when Mr. Billings made the lunge for the gun ? A. He stepped back a couple of short steps.
“Q. Then what, if anything, happened? A. When Mr. Billings made the lunge for the gun he threw his right hand up, and Mr. Huber j erked it to the side slightly, and then drew it back and fired.
“Q. Jerked what to the side? A. Jerked the shotgun at the side slightly.
“Q. How many shots were fired? A. One.
“Q. How do you know that a shot was then fired? A. Because I heard it and saw the blaze.
“Q. Then what, if anything, did Mr. Billings do. A. He dropped.”
“An unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (Section 6412, Rev. Laws, 1912.)
“An assault is an attempt to offer, with force and violence, to do a corporeal hurt to another.” (1 Bac. Abr. 371.)
“An assault is an attempt with force and violence to do a corporeal hurt to another.” (Russell on Crimes, 1019.)
“An assault is an attempt to offer, with unlawful force or violence, to do a corporeal hurt to another.” (Clark & Mar. on Crimes, 2d ed. sec. 197.)
“An assault is any attempt or offer, with force or violence, to do a corporeal hurt to another, whether from ' malice or wantonness, with such circumstances as denote, at the time, an intention to do it, coupled with a present ability to carry such intent into effect.” (3 Cyc. 1020; see, also, 2 R. C. L. 525.)
“An assault is an intentional attempt to strike within striking distance, which fails of its intended effect, either by preventive interference, or by misadventure.” (Lane v. State, 85 Ala. 12, 4 South. 730.)
“An assault is made by one who in striking distance of another attempts to strike at him or hit him. An assault is an attempt to strike. The battery is the consummated act.” (Com. v. Brungess, 23 Pa. Co. Ct. R. 13, 14.)
“An assault is an apparent attempt, by violence, to do corporeal hurt to another.” (Whart. Crim. Law, 11th ed. vol. 2, sec. 797.) “It must also, to adopt the language of the late Judge Gaston, ‘amount to an attempt; for a purpose to commit violence, however fully indicated, if not accompanied by an effort to carry it into immediate execution, falls short of an actual assault. * * * It is difficult, in practice, to draw the precise line, which separates violence menaced from violence begun to be
“ ‘An assault is an attempt to offer to do another personal violence without actually accomplishing it. A menace is not an assault. * * * Holding a gun in a threatening position, without any attempt to use it, or intention to do so, unless first assaulted by the adversary, is not an assault.’ (Blackwell’s Case, 9 Ala. 79.) Drawing a pistol, without presenting or cocking it, is not an assault, as was decided in Lawson v. State, 30 Ala. 14.” (Johnson v. State, 35 Ala. 365.)
“To constitute an assault with a gun or pistol, it is necessary that the gun or pistol should be presented at the party charged to be assaulted, within the distance to which the gun or pistol may do execution. Roscoe on Criminal Evidence, top page 286, says: ‘There must be an actual presenting of the gun or pistol to make out the assault.’ ” (Tarver v. State, 43 Ala. 354.)
“In order to constitute an assault there must be something more than a mere menace. There must be violence begun to be executed.” (People v. Yslas, 27 Cal. 633.)
“An act done with intent to commit a crime, and tending but failing to accomplish it, is an attempt to commit that crime.” (Rev. Laws, sec. 6291; 12 Cyc. 177; 1 Words and Phrases, p. 622.)
This court, in State v. Lung, 21 Nev. 209, 28 Pac. 237, 37 Am. St. Rep. 505, said:
“The overt act which constitutes an attempt must be one which manifests an intention to commit the crime.”
• Let us look at the situation. Defendant got off of his horse, and walking ahead of the horse, held the stock of the. gun under his arm, and when he turned in the direction of the deceased and asked him about the saddle the stock of the gun was still under his arm and the barrel pointing in the direction of Billings and the witness. He did not, so far as the evidence shows, ever have his hand on the trigger, and certainly did not single ' out the deceased and aim the gun at him. The defendant made
We conclude from the authorities that an assault is more than a mere menace. There may be an intention to commit an assault, there may be preparation, and there may be a menace; but these are not enough. There must be an effort put forth to carry the intention into execution ; there must be an overt act. Did the defendant put forth an effort to assault the deceased before he started to walk toward the defendant ? Defendant had the loaded gun; nothing interfered to prevent defendant’s shooting; there was no misadventure. If defendant, armed as he was, had made an effort to shoot, and there being no interference or misadventure, it is clear that he could have shot. We are of the opinion that the most it can be said the defendant did, prior to the time when deceased made an effort to get the gun, was to. menace the deceased. The evidence as to the reputation of the deceased for being of a violent, turbulent, and dangerous disposition should have been admitted.
“The j ury are instructed: That, while evidence of the general reputation of the defendant in and about the neighborhood in which he lived at or about the time of the commission of the alleged offense is admissible, and is a circumstance to be considered by the j ury in connection with all the other facts in the case, the opinion or opinions of individual witnesses as to the character of the defendant are not to be considered for the purpose of proving the existence of or the character of his general reputation; and in this case evidence of the character last mentioned should not be considered by the j ury in determining any issue of this case.”
This instruction was given for the purpose of reaching
While there are numerous other assignments, we do not deem it necessary, in view of the rulings made, to pass upon them.
It is ordered that the judgment of the lower court be reversed.