18 Kan. 78 | Kan. | 1877
The appellant was charged by information with murder in the first degree in killing John Leggett, and upon trial was found guilty of murder in the second degree, and sentenced to the penitentiary for ten years. From that conviction and sentence he has appealed to this court. The single error assigned is the refusal of the court below to give the following instructions:
“If the jury find from the evidence that the defendant, in an altercation between them, commenced by the defendant, struck the said Leggett with his hand, with no purpose or design to kill or cause great bodily injury to said Leggett, said Leggett had no right to repel such assault with a deadly weapon; and if he did so, and after he had shot and wounded the defendant, and had retreated behind a wall, and the defendant had ceased to follow him, (if the jury so find,) said Leggett again shot or attempted to shoot at defendant, the defendant was justified in defending his own life, even to the taking of the life of said Leggett.”
Two inquiries are suggested in the case presented to us for consideration. First, was there evidence before the jury which rendered it necessary or proper, supposing the instruction requested to contain a correct statement of the law in the abstract, to give it to the jury? and second, is it objectionable as a statement of law? We first recur to the evidence. Louis Bruno testified that on the morning of 5th May 1876, he was in Phillips’ saloon in Abilene, Dickinson county; “that Rogers was there, and Leggett was tending the bar; that Rogers asked for a glass of whisky for himself and partner; Leggett said he could not have any; Rogers asked why. Leggett told him he had done everything he could do against the house, besides, he had stolen some checks, silver spoons, and cards. Rogers said he was a damned liar — that he had not taken those things. Leggett told him he could prove it by a man that was sitting in the house, then. Leggett called on me to prove it, and Rogers asked me if I had seen him take the checks or spoons, and I told him I had not. Rogers said to Leggett, ‘ You have accused me of taking those
The court in its general charge instructed the jury on the state of the evidence as claimed by the prosecution, that, “It is for the jury to decide from the evidence whether the defendant had reasonable cause to apprehend danger to his life, or some great personal injury, and whether at the time he fired the shot he was in immediate danger of his life or some great bodily harm or injury from the deceased, from which he reasonably supposed he could not escape except by disabling the deceased, or by taking his life. In such a case he would be entitled to acquittal. But when a party claims a justification for killing his adversary, it must not be in a combat of his own seeking; nor when he provokes another to commence an affray for the purpose of having a pretext to take the life of his assailant. And if a man for the purpose of bringing another into a quarrel provokes him so that an affray is commenced, and the person causing the quarrel is over-matched, and to save himself from apparent danger kills his adversary, he would not be justifiable; because the necessity being of his own creating shall not operate in his excuse.” At the instance of the defendant the court also instructed the jury that, “If the jury find from the evidence that in an altercation of words between the defendant and the deceased, said Leggett made an assault on the defendant with a deadly weapon or loaded pistol, and shot at and wounded the defendant, and that while the said Leggett was endeavoring to, shoot defendant again, he shot said Leggett and caused a wound which produced the death of said Leggett, the defendant acted in self-defense, and was justifiable.”
But if we have mistaken in any way the evidence presented
What acts have been held so far to abridge a man’s right of defense, that if he thereupon kill another, he cannot be acquitted of all crime, see State v. Starr, 38 Mo. 270; State v. Hill, 4 Dev. Bot. 491; Vaiden v. Commonwealth, 12 Gratt. 717; Adams v. The People, 47 Ill. 376; Haynes v. The State, 17 Ga. 465; Commonwealth v. Drum, 58 Pa. St. 9; Staffer v. State, 15 Ohio St. 47; Stuart v. State, 1 Ohio St. 66. The authorities uniformly hold that the person who first commences a malicious assault, then continues to advance as the assailed retreats, or does not in good faith attempt, so far as he can, to withdraw from the combat, and abandon the conflict, cannot justify taking the life of his adversary, however necessary it may be to save his own, and must be deemed to have brought upon himself the necessity of killing his fellow-man. We see no reason from the authorities cited by counsel, or the argument presented in behalf of the appellant, in any way, to loosen these well-settled principles so salutary to prevent altercations, and to save human life. The mere striking of one person by another with the intention to commit only a personal chastisement, is almost sure to be followed by a dangerous, if not deadly result, where the parties are armed with deadly weapons, as in this case; and while the carrying of the pistol loaded for use cannot be too severely censured, too strongly condemned, it is unfortunately a too prevalent custom fo be wholly ignored, or to suppose that an encounter between two persons hostile to each other will only result, after a blow is given by the first, in a combat with fists. The blow from the one is often followed by the pistol-shot from the other. The assailant places himself in peril when he makes the assault; and when he is in fault, and calls down upon himself the vengeance of the assailed, he cannot be jus
Under the instructions refused, a person armed with a deadly weapon, who commences an altercation, commits a personal chastisement on another, advances as the other retreats, and only ceases to follow in order to watch the acts of his adversary, and anticipating the shot of his opponent, kills the assailed by the quickness of his movements, is freed from all blame, and stands justified, because his antagonist in his retreat too fiercély returns the assault, and, having succeeded by flight to reach a door or partition from behind which he-seeks to defend himself while he has reasonable grounds of apprehension that he is in imminent danger. Such is not the' law. The instruction not given does not place the appellant in a fitting position at the time he gave the mortal wound for the- law to say he was remitted to his right of self-defense.
The judgment of the court below must be affirmed.