21 Mont. 582 | Mont. | 1898
— In the month of April of this year the defendant was tried in the district court of Park county, under an information charging him with the crime of murder, in the
The evidence is presented in the record, but there is no contention that it does not authorize or support the verdict. The evidence is incorporated in the record for the purpose of illustrating errors assigned in the giving of instructions by the court. We shall therefore only refer to the evidence when necessary in the treatment of the case.
The counsel for appellant contends that the court erred in the giving of instructions to the jury. The instructions complained of are as follows: Instruction 6: “Before a person is justified in taking the life of 'his assailant, the slayer must not only exhaust all other reasonable means within his power consistent with his safety to prevent the homicide, but it must clearly appear that the person slain not only had at the time the apparent present ability, as well as the apparent intention, to kill or seriously injure the slayer, but that the deceased was then and there apparently in the act of carrying out his purpose to-wit, the intention of destroying the slayer, or of inflicting upon him serious bodily injury; and even then the law will not justify the slayer in the use of any more force than is actually necessary at the time to prevent the deceased from immediately carrying into effect such unlawful purpose. By this instruction the jury will understand that the right to take life is limited to the apparent actual and present necessities then suddenly precipitated by the assailant, under such circumstances as then appear to the slayer, as a reasonable man, to place the life or person of the slayer in such peril as to admit of no other reasonable alternative than the killing of the assailant; and even then the slayer’s right to employ force against the assailant is limited to the force necessary to repel the violence then being offered, and place himself beyond the reach of immediate danger. ’ ’
Instruction 9: “You are further instructed that, before a person can justify the taking of human life on the ground of self-defense, he must, when attacked, employ all reasonable
Instruction 10: “You are further instructed that if you are satisfied from the evidence, beyond a reasonable doubt, that the defendant armed himself with a deadly weapon, and intentionally brought about the fatal meeting, or contributed thereto with the purpose of using his weapon in case of emergency, then the defendant would not be justified upon the grounds of self-defense, and you will bring in your verdict of guilty.”
Instruction 11: “You are further instructed that if you find and believe from the evidence, beyond a reasonable doubt, that the defendant shot and killed Servius Córtese, as charged in the information, and that the killing was the result of a sudden, violent impulse or passion, caused by serious and highly provoking injury inflicted upon the defendant at the time by the deceased, which was sufficient in the minds of the jury to cause an irresistible passion in a reasonable person, and the interval of time between the provocation and the killing was not sufficient for the passion to cool, and the voice of reason and humanity to be heard, then the killing was manslaughter, not murder. But if you find from the evidence that a sufficient time had elapsed after the infliction of the injury or insult for the passion to cool, and the voice of reason and humanity to be heard, then the killing was murder. ’ ’
Instruction 12: “The bare fear of the offense to prevent which the homicide is alleged to have been committed shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of such fears, and not with a spirit of revenge. ’ ’
Instruction numbered 6 is complained of by counsel as being especially objectionable. It is contended that this instruction goes too far in imposing the obligation upon the accused to “exhaust all other reasonable means within his power consistent with his safety” to prevent the homicide before taking life. Counsel says this instruction required the accused to re
In Rowe v. U. S., 164 U. S. 546, 17 Sup. Ct. 172, a case involving the principle under discussion, Mr. Justice Harlan, speaking for the court, says: “The accused was entitled, so far as his right to resist the attack was concerned, to remain where he was, and to do whatever was necessary, or what he had reasonable grounds to believe at the time was necessary, to save his life or to protect himself from great bodily harm. And, under the circumstances, it was error to make the case depend in whole or in part upon the inquiry whether the accused could, by stepping aside, have avoided the attack, or could have so carefully aimed his pistol as to paralyze the arm
In our opinion, the most serious objection to instruction No. 6 is that part or it which says: “By giving this instruction the jury will understand that the right to take life is limited to the apparent actual and present necessities then suddenly precipitated by the assailant, under such circumstances, as then appear to the slayer, as a reasonable man, to place the-life or person of the slayer in such peril as to admit of no. other reasonable alternative than the killing of the assailant. ‘ ’ We think this instruction ignores the right of the accused to-act upon what appeared to him at the time, as a reasonable person, necessary to do to prevent death or receiving great-bodily harm from the deceased. If it appeared to the accused at the time of the homicide, as a reasonable person, that it was-necessary for him to slay his assailant in order to save his own life or prevent receiving great bodily harm, he had a right to. act upon such appearances, and slay his assailant, although he was in no actual danger. The right of self-defense is not confined to cases of ‘ ‘apparent actual and present necessities then suddenly precipitated,” etc. (People v. Gonzales, supra.) Such an instruction is misleading, ambiguous and contradictory.
What has been said above is applicable to the other instructions (they being so similar in terms) in so far as they transgress the views expressed in treating instruction No. 6.
The appellant contends that instruction No. 11, in relation to manslaughter, is defective, as it does not properly distinguish manslaughter from self-defense. If there is any error or defect in this instruction, it may be remedied on a new trial by the court following and using the language of the statute defining manslaughter.
The counsel for appellant assigns as error the refusal of the court to require the prosecuting attorney to place upon the stand certain eyewitnesses of the homicide. The prosecuting attorney placed several of. the eyewitnesses on the stand, but declined to put others on who had witnessed the tragedy, one or more of whose names were indorsed on the information. Section 2082 of the Penal Code reads as follows: “Upon a trial for murder or manslaughter it is not necessary for the state to call as witnesses all persons who are shown to have been present at the homicide, but the court may require all of such witnesses to be sworn and examined. ’ ’ Counsel contends
If the prosecuting attorney in the case quoted from had made some satisfactory explanation of his refusal to place the eyewitness on the stand, it might have altered the case very materially.
In State v. Russell, 13 Mont. 164, 32 Pac. 854, this court said that the witness in question was not shown to be an eyewitness. We also said that the rule involved had been extended far enough in the Hanna case. In the case of State v. Metcalf, 17 Mont. 417, 43 Pac. 182, we said the opinion of the prosecuting attorney that a witness present at the homicide was at that time stupidly drunk was not a sufficient reason for not placing him on the stand. We held that under- the circumstances, he being the only witness present, it was the duty
We.do not think the statute cited above makes it imperative that all the witnesses to a homicide should always be introduced by the state. It gives the court power to require it, if, in its judgment, such course should be pursued.
In State v. Barrett, 54 Pac. 807, a case involving this question, very recently decided by the supreme court of Oregon, that court said: “It is true, the prosecuting officer is supposed to be, and should be, wholly without bias or prejudice. His sole duty is to see that the laws are enforced, and the guilty punished. He is as much bound, as the law officer of the state, to protect the innocent as to punish the guilty; and if, therefore, at any time, he should, unmindful of his duty, endeavor to suppress evidence, the trial court would be justified in requiring the production by him of the evidence sought to be suppressed, although it might be more favorable to the defense than to the state; and a refusal to exercise such discretion would probably be ground for reversal. But no such question is presented here. There is no claim that the district attorney was endeavoring to suppress testimony, or to prevent any or all witnesses present at the time of the
Tüe circumstances and facts of the case at bar with reference to the action of the prosecuting attorney and the court, .and the introduction of the witnesses in question by the defendant after the action of the court, are precisely like those ■of the Barrett case. We think the action of the court in such case is largely a matter of discretion, especially under Section 2082 of the Penal Code. We think, if a-proper case were ■made requiring the production of all the eye-witnesses to a homicide, and the court should abuse its discretion by refusing to order such witnesses placed upon the stand, it would be reversible error, as stated in the Oregon case, as well as under the section of the penal code quoted above. But, as in the Oregon case, we see no abuse of discretion in the case at bar. It is not pretended that the prosecuting attorney acted unfairly or in bad faith in the matter. Nor do we see how the accused could have been prejudiced by the action of the court, as the witnesses in question were introduced and fully ■examined on his behalf. What advantage could have accrued to the accused by a cross-examination of these witnesses that he did not obtain by examining them as his own does not appear to us.
We think the judgment should be reversed on account of the errors of the court in giving the instructions, and it is so ordered. The case is remanded for new trial.
Reversed and remanded.