186 P. 108 | Utah | 1919
Lead Opinion
The defendant was charged by the information in two counts: (1) Assault with intent to commit murder; and (2) assault with a deadly weapon with intent to do bodily harm. A plea of not guilty was entered to each count of the information, and upon the- trial the defendant was convicted of an assault with a deadly weapon with intent to do bodily harm, and was sentenced by the court to an indeterminate term of imprisonment after denial of motion for a new trial. Defendant appeals.
The assignments of error complained of on the appeal are based entirely upon certain instructions given and the failure of the court to charge the jury as requested by the defendant. In substance, the testimony shows: That the defendant, Dennis F. Terrell, is a barber by trade, but prior to May 17, 1918,
“When I heard the first noise with the rabbits, I just raised up; must have been asleep, I guess. And then I heard one of them squeal, I got out of bed. I got out of bed, and I had an old wire fastened on the door nailed on the inside to hold it shut, to keep the wind from blowing in and keeping me awake at nights. I unwrapped the wire off the nail' and pushed the door open. I had a gun standing there in reach. I went in the open doorway and looked and saw the door of the rabbit pen open, the east hutch. I did not realize at the time whether it was the east hutch or .the second one, but I noticed one of them standing open, and when I did, I was fully convinced of the fact that some one was stealing my rabbits, and X took up my gun and looked, and I thought I saw some one moving, and when I did I shot. I pointed the gun down low intentionally. I didn’t intend to hit any person that was there in any vital part, but purposely aimed low. When I shot, there was no outcry, no noise made. I was standing with one foot in the shed and one foot out, and I heard no one after shooting, and I looked and could see no one, or hear anything, and I came to the conclusion I must have been mistaken, that I had been too slow in getting out, and they had got away, so I started to walk over toward the rabbit pens slowly, and when I got over well past the shed on the south where the ground is raised on the west end where it first starts to*319 raise, just as I had my foot on that, a voice from the ground said ‘Mister, will you please help me up?’ I looked, and I could hardly distinguish the form that was lying on the ground, but the voice when I heard it brought to me the awful fact that it was a boy. I didn’t think, I never had the least thought or any kind of intimation before that time, that it was a boy. I said to him, ‘Get up yourself.’ I really thought I had not hit anything when I shot, even after he spoke and I said, ‘Get up yourself,’ and he said, T can’t; niy knees hurt.’ I walked over to him and put my hands under his shoulder and helped the hoy up. * * * I put my left arm around him and put my gun in my right hand, and helped him to the house, and put him on a chair. When I turned on the light, I saw black socks on him that were dyed, so I took the socks down and got into my clothes, and went across the street to a neighbor’s and phoned the Emergency Hospital, and told them what I had done and to get down as quick as possible. I reported to the police department. When I went over to the pens first, the door on the east pen was open, the only one that was standing open. The latch on the next one was turned straight up and down, so it could open and that one would not stay open unless jt was held open because the hinges are heavy leather and swing shut when they are, released. The east one will stand open. When 1 got over there, there were two rabbits on the ground out of the pen. One was running along to the west, and the other one hopped across in front of me toward the chicken house. When I went to investigate the rabbits that were in the pen, there were five in one pen and four in the other. Two of them I saw on the ground. * * * In my judgment, it was necessary to shoot that night under the circumstances, not knowing who it was that was out there at the time, and the fact that I never realized, never once thought, that it was a boy that had been taking my rabbits, it became necessary to that extent that I was under the impression that there was more than one there, and that I was going up against somebody that perhaps was prepared to take a shot at'me or something, in case I let them know I was there. I didn’t think that it was a hoy that stole the rabbits the nights before April 30th, and not a man. I thought I was in physical danger at the time that I shot from the fact that somebody was stealing my property, if I should go out and say anything to them or let them know that I was there. I shot because of the fact that if I hit them they would not be able to put up much of a fight, and it would stop them from taking my property, and it would lessen my physical danger. I wanted .to be sure they didn’t take a shot at me. It was absolutely necessary for me to shoot, although, as it turned out afterwards, it would not have been necessary. I was thoroughly satisfied at the time, or at least I thought I was, not being able to distinguish who or what it was at the rabbit*320 pens. Not for a positive fact, I couldn’t see any one. There was an object of some kind moving, and I shot at it.”
Ray Cowan, tbe complaining witness, a boy twelve years of age, testified that he and a younger brother on the day of the offense complained of had been visiting with their parents at the home of an aunt residing south and west of the defendant’s premises; that upon leaving their aunt’s residence between nine and ten o ’clock in the evening they separated from their parents and taking a short cut homeward passed through the alleyway on the Terrell premises. The younger brother became frightened at some shadows, and thereupon they turned back into the 'alley. In passing through the alley over defendant’s premises the- witness, Ray Cowan, was attracted to the rabbits, and he opened the gate leading to the inclosure, passed in and to the rabbit pens, opened the doors to the easterly pens for the purpose, and was in the act of petting the rabbits, and not acting with any purpose of stealing them, when he was shot in the knees by the defendant, .from the front door of the west shed.
Other witnesses testified that the boy, after the shooting, admitted that he intended to take rabbits. The boy denied having made the admission.
After the shooting occurred and the boy had been taken to the Emergency Hospital a rabbit was found in his waistcoat, but the boy denied any knowledge as to how it came to be there.
The theory of the defense was that the shooting was justifiable under the circumstances; that the boy was engaged in the commission of a burglary, and therefore the defendant had the right to shoot to prevent him. The state contends that the boy was only a trespasser, or at most his conduct, under all the circumstances, regardless of whether or not it was his intent merely to pet the rabbits or to steal them, would not justify the defendant in shooting him.
As we read the record, there was no question raised before the trial court as to the character of the rabbit pens, not being the kind of buildings or structures that might be burglarized under the statute if broken and entered into for the purpose
“Every person who, in the night-time, forcibly breaks and enters, or without force enters an open door, window, or other aperture of any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, or any tent, vessel, water craft, or railroad car, with intent to commit larceny or any felony, is guilty of burglary in the second degree.”
In view of tbe foregoing statute, we think tbe theory on which tbe trial court proceeded in treating tbe rabbit pens as embraced witbin tbe kind of structures tbat
It was an admitted fact tbat tbe defendant shot and inflicted great bodily injury upon tbe boy, Ray Cowan. It is also conceded tflat tbe same rules of law are applicable with respect to justification in cases of assault with a deadly weapon with intent to do bodily barm as in cases of homicide. Under tbe provisions of our statute, and in so far as may be material to tbe case under consideration, subdivision 2 of section 8032, Comp. Laws 1917, provides that homicide is justifiable “when committed in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony.” The appellant invokes the foregoing statute in making bis contention tbat bis act in shooting tbe boy was justifiable; tbat the assault was made while tbe boy was in the act of committing larceny; tbat larceny committed under tbe circumstances here,' within tbe meaning of section 8259 of our statutes, quoted above, constituted tbe crime of burglary; and that burglary is a felony.
While we recognize tbe right of tbe defendant to invoke tbe foregoing statute under the circumstances that attended tbe shooting of tbe boy, yet tbe fact as to whether or
Under the common-law doctrine the rule was that there must have been an actual necessity for the act, but under the statutes and the decisions of the courts of the
“A bare fear of tbe commission of any of the offenses mentioned in subds. 2 and 3 of the preceding section [8032], to prevent which homicide may be lawfully committed,, is not sufficient to justify it. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted wholly under the influence of such fears.”
The degree of force that may be exercised in preventing the commission of an offense against property must necessarily vary according to the situation of the parties and the circumstances surrounding a given case. It is expressly provided by subdivision 2 of section 8561 that sufficient resistance may be exercised by a person “to prevent an illegal attempt by force to take or injure property in his lawful possession. ’ ’ We think this statute necessarily negatives the right to exercise any greater degree of force or resistance in any case than may be reasonably necessary to repel the offender or
“You are instructed that the taking of human life is justifiable when committed by any person in defense of property against one who manifestly intends or endeavors hy violence or surprise to commit a burglary, and you are further instructed that every assault with intent to kill and every assault with a deadly weapon with intent to commit bodily harm or any lesser assault is justifiable under the same circumstances.”
It is conceded that the foregoing request correctly states the law, but it is contended by the state that the instructions of the court given on this point were, in substance and effect, the same, and that therefore the request was properly refused.
The court charged that—
“In so far as material in this case, burglary is defined to he when any person in the night-time forcibly breaks and enters, or without force enters, an open door, window, or other aperture in any bam, stable, outhouse, or other building with intent to commit larceny.” (Italics ours.)
The court then proceeded to further charge:
“One may kill to save life or limb, or prevent a great crime, * * * but one is not justified in killing to restrain or prevent the commission of a misdemeanor.” (Italics ours.)
The court also instructed that “a felony is a crime which is or may be punishable with death or imprisonment in the state prison,” and that “every other crime is a misdemean- or.” The trial court failed to tell the jury whether or not the crime of burglary constituted a “great crime,” a felony or a misdemeanor, or whether or not burglary was punishable
We think that under the facts and circumstances as disclosed by the record in this case the instructions, unexplained, as thus given by the court, were not only erroneous, but highly prejudicial to the substantial rights of the defendant. They most certainly would tend to confuse and befog
The defendant also complains that the court erred in the refusal to instruct as follows:
“If you believe from tbe evidence that at the time tbe complaining witness, Ray Cowan, was shot, be was committing a burglary and engaged in stealing tbe defendant’s rabbits, then tbe court instructs you that under the law tbe defendant was justified in shooting tbe person so engaged in burglary.”
The foregoing instruction without any qualification is not 'the law. We have heretofore pointed out and endeavored to make clear that under our statutes the taking of life is justifiable only when reasonable necessity exists for it, to prevent the commission of the crimes enumerated in our statute with reference to justifiable homicide, that the facts and circumstances attending a particular case must govern and deter
As we view the testimony in this case, the defendant was not entitled to have the request given in form presented to the court without such a qualification that
There was some contention made on the part of the Attorney General for the state, both in the oral and in his written argument before this court, to the effect that the complaining witness, being a minor, twelve years of age, was not chargeable with the crime of burglary, and therefore from every viewpoint of the case the defense of justification on the part of the defendant should be held unavailable. The Attorney General has cited us to no authorities on the question raised, and, if we correctly understand him, he does not seriously insist that his contention in this regard is the law, but that the question is a new one and ought to be now passed
“All persons are capable of committing crimes except those belonging to the following classes:
“1. Children under the age of seven years;
“2. Children between the ages of seven years and fourteen years, in the absence of clear proof that at the time of committing the act charged against them they knew its wrongfulness.”
(Also other classes not material here.)
It will be seen that under subdivision 2 of the foregoing statute children between the ages of seven years and fourteen years are presumed to be incapable of com-initting
“ ‘Delinquent child’ shall include any child eighteen years of age or under such age, who violates any law of this state, or any city or town ordinance, or who commits an offense not punishable by death or imprisonment for life.”
As heretofore pointed out, homicide is justifiable under our statutes “when committed in defense of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise to commit a felony. ’ ’ In this class of cases the authorities are practically unanimous that the slayer need only act upon appearances, and it is sufficient if he acts in good faith and has reasonable grounds to believe, and does believe, that under the circumstances his legal rights are being feloniously invaded and the necessity exists for the force used by him in the prevention of crime. Michie on Homicide, section 116, p. 374, vol. 1; N. O. & N. E. Ry. v. Jopes, 142 U. S. 19, 12 Sup. Ct. 109, 35 L. Ed. 919.
We are of the opinion that the principles announced by the
For the reasons heretofore given, the judgment must be reversed, and the cause remanded, with instructions to the court below to grant a new trial.
It is so ordered.
Concurrence Opinion
concur with the Chief Justice in the' view that the instructions of the district court are incomplete and were thus calculated to mislead the jury to the prejudice of the defendant. I am, however, not prepared to concede that under defendant’s own version of the shooting of the little boy he, as a matter of law, was justified. Our statute (Comp. Laws Utah 1917, section 8032, subd. 2) only justifies the taking of human life when done “in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony,” etc. (Italics mine.) The statute clearly requires that in order to justify the taking of human life there must be some actual, or at least threatened, violence or surprise. Merely to imagine or suspect that another is about to steal property, when the habitation is not being assailed in any way, does not justify' the slaying of the intruder as I understand the law. Our statute is merely a declaration of the common law. See 1 East’s Pleas of the Crown, 271. The only difference between the rule at common law and the rule under statutes like ours is that the danger need not be real or actual under the statute, but need only be reasonably apparent to the slayer. It is not sufficient, however, for the slayer merely to say that the danger appeared actual or real to him. Unless it appears from all the facts and circumstances in evidence that the slayer had good or sufficient cause to believe that there was imminent
In Pond v. People, 8 Mich. 177, Mr. Justice CAMPBELL, in his usual forcible style, states the law under a statute like ours in the following words:
“Where a felonious act is not of a violent or forcible character, as in picking pockets, and crimes partaking of fraud rather than force, there is no necessity, and therefore no justification, for homicide, unless possibly in some exceptional cases. The rule extends only to cases' of felony; and in those it is lawful to resist force by-force. If any forcible attempt is made, with a felonious intent against person or property, the person resisting is not obliged to retreat, hut may pursue his adversary, if necessary, till he finds himself out of danger. Life may not properly be taken under this rule where the evil may be prevented by other means within the power of the person who interferes against the felon. Reasonable apprhension, however, is sufficient here, precisely as in all other cases.”
To the same effect is Weaver v. State, 19 Tex. App. 568, 53 Am. Rep. 389, where it is said:
“Where a felony is threatened, the party may repel it, whether leveled at him or others; ‘but the force of defense must be proportioned to the force of attack. It is but reasonable that the kind and amount of defense should be measurably proportioned to the amount and kind of danger.’ ‘A bona fide belief by the defendant that a felony is in process of commission, which can only be ar*329 rested by the death of the supposed felón, makes the killing excusable homicide.’ Whart. on Horn, section 533; Desty’s Amer. Crim. Daw, sections 125d, 126d.
“But ‘to justify the defensive destruction of human life the danger must be not problematical and remote, but evident and immediate.’ Aldrich v. Wright, 53 N. H. 398 [16 Am. Rep. 339], ‘The attempt must not be merely suspected, but (reasonably) apparent; the danger must be (apparently) imminent, and the opposing force or resistance must be necessary to avert the danger or defeat the attempt.’ * * * ‘The law holds the life of man in the highest regard. And only in extreme instances of wrongdoing, and impelled by an extreme necessity, can another take it innocently away.’ ”
In Kerr, Law of Homicide, at section 185, the law is tersely and correctly stated in tlie following words:
“Homicide in defense of property is excusable when nocessary to defeat or prevent the commission of a forcible or atrocious felony thereon, but under no other circumstance.”
In Driggers v. United States, 7 Ind. T. 761, 104 S. W. 1169, the court charged the jury as follows:
“The jury are instructed that justifiable homicide is the killing of a human being in self-defense, or in.the defense of habitation, property, or person, against one who manifestly intends or endeavors by violence or surprise to commit a felony on either. A bare fear of any of these offenses is not sufficient to justify the killing. It must appear that the circumstances, viewed from the defendant’s standpoint, as they reasonably appear to him, were sufficient to excite the fears of a reasonable man, and that the defendant acted upon these reasonable appearances of danger.”
That instruction, it was held by- tbe court, stated tbe law correctly under a statute precisely like ours. Take the defendant’s own testimony in this ease: Where is there tbe slightest evidence of force or violence exerted by tbe boy which would excite fear in any reasonable man? Again, in what way was there any surprise? The defendant was not, and could not have been, surprised so as to excite fear in him. He was actually standing guard' with a loaded gun. If any one was surprised in this case, it was the little boy who was shot. The law is not that the owner may shoot an offender merely because the owner discovers the latter in the act of taking the former’s property. Unless there is some act of violence or surprise accompanying the act, which gives the