State v. Walsworth
103 P. 516
Or.
1909
Check Treatment
Mr. Justice McBride

delivered the opinion of the court.

1. As will appear by the foregoing statement, the testimony on the trial was very conflicting. It is such as to leave little doubt that defendant, Charles H. Walsworth, originally began the affray which finally terminated in the death of James F. Mankin. There was some testimony, however, tending to show that after Charles *376H. Walsworth. had ceased from the affray and gone into the house, and thereafter returned to the door and held up his hands in token of submission, the deceased and his relatives followed up the conflict and continued firing. The whole of the testimony in detail is not before us; but the bill of exceptions shows that there was enough along the line above indicated to be submitted to a jury, and that it was, in fact, submitted to them with very careful and correct instructions as to its bearing on the case. The testimony of Norval Walsworth was: That, after the alleged renewal of the conflict by deceased and his relatives, he went into the house and found his father wounded and covered with blood, and his rifle lying on the bed; that at said time he supposed his mother was in the house; that he picked up his father’s rifle and went out of the door believing his own life and his mother’s to be in danger from deceased and his relatives, who, as he claimed, were firing at and into the house; that at the time he fired the fatal shot he. believed his own life and his mother’s to be in danger. There is nothing in the bill of exceptions that indicates any disposition on the part of Norval Walsworth to begin an affray with deceased and his relatives; but, on the contrary, as shown by the bill of exceptions, he was one of the parties who strove to allay Charles H. Walsworth’s anger, or fear, by calling out to him that Carroll Mankin had no gun, but only a cane in his hand.

2. The charge of the court admirably stated the issues to the jury, and the general charge upon the law of self-defense, so far as it related to the right of Norval and Charles H. Walsworth to defend themselves, is a model charge; but the court entirely omitted to charge the jury upon the right of defendant, Norval Walsworth, to protect his mother from danger to her life from an alleged unjustifiable attack upon the house by deceased and his brother. .If, as claimed by Norval Walsworth, his father had withdrawn from the conflict and made his submis*377sion, and after that the deceased followed up the conflict without any necessity, or apparent necessity, for so doing, and continued to shoot at or into the house where the mother of Norval was believed by him to have been at the time, he had a right to act upon appearances, and if he honestly believed that his mother was in the house; and the circumstances were such as would have led a reasonably prudent man to so believe, and at the same time the circumstances were such as induced in his mind a reasonable, honest belief that her life was in danger from a felonious and unnecessary attack by deceased upon the house, he had a right to shoot in her defense, and the refusal to so instruct the jury was error.

3. The request of the defendants for an instruction that evidence of threats against the Mankin family should not be considered as against Norval Walsworth, would have been good law if it had been confined simply to that proposition. There is no doubt that where the killing is indeliberate, and not in cool blood, previous threats made by one defendant are not evidence against a co-defendant who had no knowledge of them.

4. The requested instruction tendered by defendant went further than this, and asked the court to instruct the jury that if they were satisfied from the evidence of those who witnessed the affray, as to which party commenced it, they should not consider the evidence of threats as against either defendant. We do not understand that it is the province of the court to instruct a jury that, if one item of relevant evidence satisfies their mind upon a given point, another item of relevant evidence upon the same point should be rejected. The request was loaded down with a palpable error, and the court was not bound to give it.

Other instructions of the court are challenged in the defendants’ brief; but the criticisms are, we think, merely verbal. /

Taking the charge as a whole, we think the learned and venerable jurist who presided at the trial stated the *378law clearly and correctly, except for the omission heretofore adverted to; but, for that error, which appears to be a substantial one, the cause must be reversed, and a new trial granted. Reversed.