State v. PenningtonState v. Pennington
- Reporters:
- ,
- Before:
- Parker
OPINION OP THE COURT.
PARKER, C. J.The appellant was charged with murder, tried, and convicted of manslaughter, and the case is here upon appeal. The defense interposed was that the appellant killed in self-defense. All of the evidence, both for the prosecution and the defense, tends to support this theory of the transaction. Thе appellant was a tubercular, suffering from active tuberculosis in both lungs. He was а weakling, and the de-. ceased was a strong, active, wiry man. Both were interestеd in the same young lady, and the deceased undertook to drive the appellant away from her by threats and intimidation, and at the fatal encounter by vicious аssault upon appellant. Appellant drove to Las Vegas with the young lady in his сar with him, and the deceased upon seeing them, turned his car around and followed them along the business streets of Las Vegas until the appellant stopped in frоnt of a prominent business place in that city. The deceased at oncе began his threats and assault, and invited the appellant out to fight, which invitation was dеclined. The appellant stayed in his car, and the deceased jumped into the car, commenced beating the appellant with his fists, got him down on the floor of the car under the steering wheel, and was beating him unmercifully when the appеllant got out á little pistol, which he carried, and killed the deceased. Many other threats had been uttered by the deceased against the appellant, аnd many circumstances appear tending to show that the deceased рroposed on this occasion to kill the appellant or do him great bоdily harm. Just how the jury could convict the appellant, under the circumstances developed at the trial, it is difficult for this court to understand. It must have been upon the thеory that the appellant’s resistance of the assault of the deceаsed was excessive, in that the deceased was unarmed at the time, and was assaulting the appellant with his fists only, although the appellant had testified that he bеlieved the deceased had a gun, and was proposing to use it in accоrdance with his previous threats. At the- close of the testimony for the proseсution, and again at the close of the whole case, counsel for aрpellant moved the court for a directed verdict of acquittal, which was dеnied.
While the Attorney General argues that, in accordance with the well-established doctrines of this court, the case should have been submitted to the jury, as was dоne, leaving to the jury to determine whether the killing was done either in a sudden quarrel, оr in the heat of passion, without legal justification, still he does make the following аdmission in the brief:
“There is no question hut that the preponderance of the evidence supports that defense” (self-defense).
If the evidence prepоnderates in the support of the plea of self-defense it is impossible that the guilt of the appellant could have been established beyond a reasоnable doubt. The two propositions are incompatible. The evidence could not have preponderated in favor of tbe appellant аnd still have warranted his conviction upon the theory that his guilt had been established beyond a reasonable doubt. But for this concession on the part of the statе we would feel bound to affirm this judgment upon the theory that it was for the jury to determine whеre, beyond a reasonable doubt, the truth in the matter lay. But, without desiring to encroаch upon the doctrine prohibiting excessive resistance, nor to abandon the doctrine that it is for the jury to pass upon the facts, we feel in a easе like this, where it is extremely doubtful as to the guilt of the appellant, that we may, and should, rely upon the concession of the state, that the evidence preponderates in favor of the appellant.
It follows that the judgment of the district court is erroneous, and should be reversed, and the case remanded, with instructions to set aside the judgment, dismiss the cause, and discharge the appellant; and it is so ordered.-
BRATTON and BOTTS, JJ., concur.