State v. PaxtonState v. Paxton
— I. There was no error in modifying instruction number 4 asked by defendants, by striking out the words indicated in brackets. Neither State v. Vansant,
II. Defendants urge that error occurred in giving instruction 5a on behalf of the state, stating that there is no evidence on which to base it. The evidence 'already set forth affords* ample ground for such an instruction. No one can read thаt evidence with any degree of attention without reaching the conclusion that defendants hаd been dogging Quigg’s footsteps that day, and, when he was about to start home, stationed themselves so that they could conveniently watch his movements, and be ready to take any advantage of him that might offer. John W. Paxton had evidently prepared for the occasion, for, a few momеnts before, he
III. But it is insisted that Theodore had no connection with the difficulty except “his getting knocked down by Quigg.” Thе record, however, is to the contrary, as already seen. Besides that, one witness for the state, and two for the defense, were of the impression that Theodore fired upon Quigg that day; two of the witnesses for the defense testifying that while the fight was in progress, they saw puffs of smoke issuing from wherе Theodore was standing, as if he was firing on Quigg. But whether he actually fired on Quigg or not, is quite immaterial, if he aided in bringing on the difficulty to the end that Quigg might be killed.
Furthermore, Theodore Paxton went upon the witness stand, and, while he testified that he had no weapon that day, yet he did not deny that he used insulting gestures and languаge to Quigg, and the statements of the witnesses respecting such matters, under the ruling in Musick’s case,
IY. Contention is also made that the trial court, having given instruction 5a, should have defined what a conspiracy was. There is nо merit in this contention, and if there were, that merit is destroyed by reason of
While it is the undoubted duty of the trial court to instruct the jury as above indicated, in compliance with the fourth subdivision of -section 4208, yet, if there should be an oversight in this matter, it is but fair to thе trial court that counsel for the defense should call attention to the fact, at least in general terms, and, then, if all needful and proper instructions are not given, to save an exception and preserve it in the motion for a new trial. Cantlin’s case, supra.
The like line of remark applies to the failure of the lower court to instruct upon a lower grade of homicide than murder in the second degree. On the point, however, as to whether the court should have so instructed, no ruling is made.
V. Another contention of the defendants is that instruction 5a, given at the state’s instance, is “in flat contradiction” of instructions given for the defendants. But, when the instructions are read together, no such repugnancy will be seen to exist. Under our former rulings, beginning with Partlow’s case, supra, if the difficulty was brought on with Quigg by defendants with a view tо murder him, etc., then there was no self-defense in the case, no matter to what extremity they werе driven during the self-sought combat.
VI. Instructions 9, 10 and» 11, refused defendants, were only amplifications of thosе already given, or else were properly refused. The evidence disclosed the relаtionship of the defendants to each other, and the chief difference between the rеfused instruction 11 and instruction 6 given for defendants consisted in such
VII. It is lastly insisted that attorneys for the prosecution were permitted tо go out of the record and make certain appeals to the jury. If this occurred, it has not been preserved in the bill of exceptions, and we have iterated and reiterated аgain and again that a mere recital in the motion for a new trial that certain statements wеre made by attorneys is no evidence whatever of the fact of such statements having been made.. Some day, perhаps, the attorneys of this state will grasp and comprehend this point; but, if not, we will have to continuе to decide it, term after term.
In conclusion, the defendants were fairly tried; there was abundant evidence of their guilt, and we affirm the judgment of the circuit court and direct that the sentence pronounced be executed. R. S. 1889, sec. 4286.