102 P. 583 | Mont. | 1909
Lead Opinion
delivered the opinion of the court.
The above-named defendant was charged with murder, and convicted of manslaughter, in the district court of Silver Bow county. He appeals from the judgment and an order denying a new trial.
1. The first error assigned by the defendant relates to the action of the court in overruling a challenge to the panel of jurors in attendance upon the court. This challenge was interposed after a trial jury had been accepted Uy both parties, and just after the court had ordered that the jurors so accepted should be sworn. The three grounds of the challenge will be considered in the order in which they were interposed.
(a) It appears from the record that the judges of departments Nos. 2 and 3 of the district court of Silver Bow county, sitting together, made the order for the drawing of jurors for the two departments. This cause was afterward tried in department No. 3. We do not regard the fact that the judge of department No. 2 sat with the judge of department No. 3 when the order was made, and that the order related to jurors for both departments of the court, as being of any importance. There is but one district court in Silver Bow county. The portion of the challenge relating to this feature was properly overruled by the court.
(b) At the time said order was made, the court appointed three members of the bar of Silver Bow county to supervise the drawing of jurors. Defendant’s counsel now contend that this
(c) The third ground of the challenge to the panel was that one M. Meyer was on the panel, whereas in fact the venire for the jury contained the name of “F. Meyer,” and the sheriff’s return shows that “Ed. Meyer” was served. We do not regard this as any reason why the whole array or panel should be set aside by the court. The record shows that no challenge was interposed to M. Meyer as an individual juror; he was examined for cause and passed. The defendant failed to exhaust all of his peremptory challenges, and accepted the jury while M. Meyer was in the box. The examination of M. Meyer shows that he possessed the necessary qualifications to sit as a juror. The record also discloses'’that the original slip drawn from the jury-box bore his name; that he was personally served by the sheriff, and responded to the summons. The original juror’s slip bore the inscription “Meyer, M., 211 W. Park,” which was the proper name and residence of the juror in the box. The only reasonable conclusion is therefore that the names “F. Meyer” -and “Ed. Meyer” were clerical errors, and nothing more.
2. The second ground of complaint is that the court instructed the jury that: “The law does not require demonstration; that is, such a degree of proof as, excluding possibility of error, produces absolute certainty, because such proof is rarely possible. Moral certainty is only required, or that degree of proof which produces conviction in an unprejudiced mind.” We think this instruction was properly given. It is an exact copy of section 7847, Revised Code?, and is found under the title, “General Definitions of Evidence,” and is properly ap
3. Again it is contended that the court erred in giving instruction No. 17 to the jury. The instruction reads in part as follows: “The court instructs the jury that the right to defend one’s self against danger, not of his own seeking, is a right which the law not only concedes, but guarantees, to all men. The defendant may therefore have killed deceased, and still be innocent of any offense against the law. If, at the time he cut deceased (if you find from the evidence, beyond a reasonable doubt, that he did so), he had a reasonable cause to apprehend on the part of the deceased a design to do him some great personal injury, and there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and to avert such apprehended danger, he cut or stabbed deceased, and at the time he did so he had reasonable cause to believe it necessary for him to use his knife in the way he did to protect himself from such apprehended danger, then, and in that case, the cutting was not felonious, but was justifiable, and you ought to acquit him on the ground of necessary self-defense. It is not necessary to this defense that the danger should have been actual or real, or that the danger should have been impending and immediately about to fall. All that is necessary is that the defendant had reasonable cause to believe, and did believe, these facts. But, before you acquit on the ground of self-defense, you ought to believe that defendant’s cause of apprehension was reasonable. Whether the facts constituting such reasonable cause have been established by the evidence you are to determine; and, unless the facts constituting such reasonable cause have been established by the evidence in the cause, you cannot acquit in such cause, on the ground of self-defense, even though you may believe that defendant really thought he was in danger. * * # ” o
The gist of the argument is that this instruction “placed the burden of proof upon the appellant of establishing by evidence
4. Instruction No. 21 is complained of for the reason, as it is contended, that the instruction tells the jury “that manslaughter may be committed upon a sudden passion.” A careful reading of the instruction convinces us that this construction may not reasonably be placed upon the instruction.
5. Again it is urged that it was error for the court to refuse to give appellant’s requested instruction No. 73. The instruction reads as follows:
“In deciding what force may be necessary to use when resisting an attempt to commit a felony on one’s person, or to
“The right of self-defense is not limited or confined to those cases where the attack or assault is unexpected. When the attack is actually made, one has a right to repel it, no matter for how long a time he may have anticipated it. If you believe from all the evidence that Michael C. White attempted to commit a felony, or to do some great bodily injury upon the person of the accused, and the accused so believed at the time, it was not incumbent upon the defendant to retreat or fly for safety, but he was justified in standing his ground and defending himself, and killing his adversary.”
The first paragraph of the instruction eliminates from the consideration of the jury the question of what a reasonable person would apprehend under all the circumstances. But it is contended that this defendant was confronted, not by appearances from which different men might draw different conclusions, but by actual facts and circumstances of which there could be no doubt under the testimony, to-wit, that deceased was attempting to commit a felony, or to do some great bodily injury upon the person of the accused. The defendant was the only witness who testified that White assaulted him. This testimony was not only not directly corroborated, but there were facts and circumstances from which the jury might have determined that it was not true. Under these conditions the court properly allowed the jury to decide how much, if any, of defendant’s testimony they would believe.
6. The defendant requested instruction No. 74, as follows: “The court instructs you, gentlemen of the jury, that- each individual juror must render his verdict according to the law as defined by the court in these instructions, and according to the evidence legally produced in this case. You must disre
7. The defendant requested the court to instruct the jury that “the physical power and strength of the defendant and the deceased are matters to be considered by you in arriving at your verdict.” We think there was no necessity for giving this instruction. Jurors naturally take such matters into consideration, and the subject matter of the instruction might properly be argued to them. What has just been said applies also to requested instruction No. 76, which the court refused.
8. It is contended that there is a fatal variance between the allegations of the information and the proof. The information alleges that the deceased (White) was killed on the 14th of June, 1907, and the proof was that he was assaulted on June 14, and died on June 16, 1907. Murder was properly charged by the information. (See State v. Hayes, 38 Mont. 219, 99 Pac. 434; State v. Nielson, 38 Mont. 451, 100 Pac. 229.) We hold that it is not necessary, in Montana, to allege in an information for murder the date upon which the death occurred as distinguished from the date of assault. All that is necessary in order to constitute the crime of murder, the other requisite facts being proven, is that the death of the party occurred within a year and a day after the stroke received or the cause of death administered. (Revised Codes, sec. 8297.)
Affirmed.
Dissenting Opinion
I dissent. In my judgment, instruction No. 17 is erroneous, and, if given any consideration whatever by the jury, it must have been prejudicial to the defendant. That portion of the instruction which is particularly erroneous is as follows: “But before you acquit on the ground of self-defense, you ought to believe that defendant’s cause of apprehension was reasonable. Whether the facts constituting such reasonable cause have been established by the evidence you are to determine; and, unless the facts constituting such reasonable cause have been established by the evidence in the cause, you cannot acquit in such cause, on the ground of self-defense, even though you may believe that defendant really thought he was in danger.” Since it was not incumbent upon the state to establish the facts showing that defendant’s apprehension was a reasonable one, the jury must have understood that the burden of proving those facts rested upon the defendant. In my judgment, by the use of the term establish, as employed here by the court, the jury could not have understood that the only burden east upon the defendant was to introduce evidence sufficient only to raise a reasonable doubt of his guilt. There is not any substantial difference, in principle, between this instruction and instruction No. 30, given in State v. Crowe, ante, p. 174, 102 Pac. 579, and held to be prejudicially erroneous. The word “establish” means: “To make stable or firm; to fix immovably, or firmly; to settle; to confirm.” (Webster’s International Dictionary.)
The record discloses that seventy-one instructions were given in this case. Ten instructions, each plainly stating a rule of law applicable to the facts, would have been of some service to the jury; but the mass of instructions submitted could not