21 S.D. 500 | S.D. | 1907
Upon an information duly filed by the state’s attorney of Lake county, charging the defendant with the commission of the crime of murder, she was'tried and found guilty of manslaughter in the first degree, and sentenced to imprisonment in the state penitentiary for the term of four years. The case is now before us upon a writ of error to the circuit court of Lake county.
It is disclosed by the record that the plaintiff in error, whom we shall hereafter designate the defendant, .and the deceased, were husband and wife, and at the time of the homicide were engaged in the businiess of keeping a house of ill fame. The deceased was killed by the defendant by shooting him with a revolver between n and 12 o’clock at night on the 8th of February, 1906, in their bedroom in the house where they resided. No person was present in the bedroom at the time of the shooting, except the defendant and the deceased. The shooting by the defendant was admitted b)' her, but she claimed that it was done in self-defense. There were three girls occupying rooms in the house, all of whom testified that they heard three shots, two of which were in quick succession, and the last after an interval of a second or two. Very soon after the shooting the defendant was seen by one of the girls to come out of the bedroom, closely followed by the deceased, who fell near the door of the bedroom and expired in a very few minutes after he came from the room. It is further disclosed by the record that early in the morning of February 9th the sheriff of the county was notified, and he, with the coroner, proceeded to the house and there found the body of the deceased on the floor as he had fallen after the shooting, and that the defendant gave him twol revolvere, one of which she. admitted toi have beén used by her in the shooting. Numerous errors were assigned
The defendant as witness on her own behalf, in describing the shooting and the cause for the same, testified as follows: “I went back into my bedroom and laid down on the lounge. I was then scared to death of him, and excited for fear he would kill me which he said he would do that night. I had been afraid of him ever since he had the delirium tremens. I did not undress when I went into my bedroom. Ordinarily I had been in the habit of sitting up. I went to bed every night, but got up in the night and watched him. When I 'laid on the lounge, my head was to the south and to the rise of the lounge. Joe came in in about half an hour.- He shut the door and latched it. He sat down and talked to me, and accused me of .being in town to see other men. I told him I was not. He got raving mad. He pulled me down to the foot of the lounge and had his knee on my cbcst. He said: ‘You ain’t going to holler this time for help! I will fix you so you won’t.’ He had his hand on my throat and one knee on my chest and he was pounding me with the other hand on the head and side of the head. He made marks upon me. He made me excited and scared to death. I was afraid that he would kill me. I realty thought he would kill me. I tried to- scream. I made some noise, but he choked me so I could not holler. Then I reached under the lounge, and got this gun, and fired two shots. The gun had been taken away from him a week before by two men, and I hid it under the lounge. He owned two other guns beside that. One I put in the commode, and one was out in the kitchen. I thought he had it all the while. After I reached under there and got hold o-f the gun, I fired off two shots to' scare him. I did not aim at him. I held it down. Then he got up quick.
The principal question presented therefore, is: Was the defendant justified, under the circumstances, in believing that the defendant intended to kill her, or to do her some great bodily injury, atibe time of the shooting, and that there was eminent danger of such design being accomplished ? Section 268 of the Revised Penal Code provides: “Homicide is also' justifiable when committed by any person in either of the following cases: (2) When committed in the lawful defense of such person * * * when there is a reasonable ground to apprehend a design to commit a felony-, or to do some great personal injury, and imminent danger of such design being accomplished.” It will be observed by the language of this subdivision of this section that the taking of the life of another is justifiable when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury to the accused, and imminent danger of such design being accomplished. In order to* constitute this defense, it is not necessary that the danger actually exists, but only that there shall be reasonable grounds to' apprehend the existence of such danger; and a party may therefore act upon appearances of an assault being made upon him or her.'
After a careful examination of all the evidence in .the case
The judgment of the court below, and order denying a new trial, are reversed, and a new trial ordered.