225 F. 968 | 8th Cir. | 1915
On January 4, 1910, Webb J. McAdams, a constable and deputy sheriff, and Clay Davidson, another deputy sheriff, went to the dug-out and home of John C. Trapp with a pretended warrant for his arrest that was illegal, and, after calling him to the door, lie arose and started to the door, a colloquy arose between him and McAdams, when shooting commenced, and McAdams was killed in the affray by a shot fired by the defendant below, Malcolm Trapp, a son of John C. Trapp, about 21 years of age. At the lime of the shooting John C. Trapp, his sons Malcolm, John, a boy about 19 years of age, and three younger sons were with him in his home, and there was evidence lending to show that shots were fired into it by McAdams and Davidson," and out of it by Malcolm Trapp and John Trapp. John C. Trapp, Malcolm Trapp, and John Trapp were indicted for the murder of McAdams, were tried, and John C. Trapp and John Trapp were acquitted, and Malcolm Trapp was convicted of manslaughter and sentenced to imprisonment at hard labor for not less than five years nor more than ten years. lie has sued out a writ of error, and assigned many reasons why, in the opinion of his counsel, the Supreme Court of New Mexico should have reversed the judgment against him.
It is the general rule that on the trial for a homicide uncommunicr-ted threats are not admissible in evidence, because such threats cannot have had any influence upon the mind or intent of the defendant, hi; títere is an exception to this rule as well established as the rule itseif. It is that where the alleged crime was committed in a sudden a (tray, and there is a conflict in the evidence upon the question, and diere is doubt which party fired the first shot, made the first assault, or was the aggressor, uncommunicated threats of death or great bodily barn: to the defendant, his father, or other near relative he claims to be trying to defend, are admissible in evidence, not on account of their influence on the mind or intent of the defendant, but because they ;end to prove the probability that, he who made the threats, rather than ■iis opponent, fired the first shot, made the first assault or was the aggressor. Wiggins v. People, 93 U. S. 465, 467, 23 L. Ed. 941; Allison V. United States, 160 U. S. 203, 215, 16 Sup. Ct. 252, 40 L. Ed. 395; State v. Felker, 27 Mont. 451, 71 Pac. 668, 671; State v. Shadwell, 26 Mont. 52, 66 Pac. 508; State v. Hennessy, 29 Nev. 320, 90 Pac. 221, 125, 13 Ann. Cas. 1122; Wood v. State, 128 Ala. 27, 29 South. 557, 558, 86 Am. St. Rep. 71; Wharton’s Criminal Evidence, § 757; Stokes v. People. 53 N. Y. 164, 13 Am. Rep. 492; Campbell v. People, 16 Ill. 17, 61 Am. Dec. 49; People v. Scoggins, 37 Cal. 676; Roberts v. State, 68 Ala. 156. The evidence at the trial and the charge of the court made the issue which party fired the first shot, or made the ¡irst assault, one of the most important in the trial; and this case, wherein a young man is claiming, not without substantial evidence to support that claim, that he committed the unfortunate homicide in his own home, in defense of his father against an attack of one who had repeatedly threatened his life; is one in which the defendant ought not U> be deprived of any legal evidence presented in his favor. The rejection of the testimony of Thompson and Jump to the threats of McAdams was a fatal error in the trial of this case.
“That in considering the guilt or innocence of the defendants, and of each of them, you should view the facts and circumstances of the case as nearly as you can from their respective standpoints, and put yourself as nearly as you may in their respective places, and see and consider the situation as in your judgment it must at the time have appeared to them, and if upon so doing you cannot say from all the evidence before you that you are convinced beyond a reasonable doubt of the guilt of some one or more of the defendants, then you should find him or them of whose guilt you are not convinced not guilty.”
But the counsel for New Mexico argue that there was no prejudicial error in this refusal: (1) Because the requested instruction omits
“You are instructed that voluntary manslaughter is justifiable when committed by any person in the lawful defense of such person, or of his or her parent, brother, or child, when there shall be reasonable ground to apprehend a design on the part of the person slain, or of any one acting with him at the time of such design, to commit a felony upon, or to do some great bodily injury to, such person, parent, or brother, or child shall be at the time. Therefore, if from the evidence you have a reasonable doubt that, at the time of the killing of said Webb J. McAdams, said Malcolm Trapp had a reasonable ground to apprehend a design on the part of the deceased and said Clay Davidsón, or either of them, to commit a felony upon said John C. Trapp, or do him some great bodily harm, or to commit a felony upon or to do either of the other defendants some great bodily harm, you will acquit the defendants.”
A homicide, when committed by one in defense of himself, his parent, brother, or child, is undoubtedly justifiable, when he has reasonable ground to believe, and does believe, that the person slain is about' to kill or inflict great bodily injury upon him, his parent, brother, or child, unless he takes the course he pursues, and unless the jury is satisfied from the evidence beyond a reasonable doubt that such person committed the homicide without such belief, or without reasonable ground therefor, it is its duty to acquit. It is not clear that this was' the meaning or effect of the eleventh paragraph of this charge, and, however that may be,.that paragraph fails, apd so does the entire charge, to express the gist of the instruction requested by defendants’ counsel. It fails utterly to convey the idea that in determining the questions whether or not the defendants had reasonable ground to believe and did believe that they were in imminent danger of. the loss of life, or great bodily harm, from the deceased at the time they fired their shots, and that in order to. prevent such death or harm it was necessary for them to fire, the jury should place themselves as nearly as they could in the defendants’ situation at that time, and then consider and decide from that station, in view of all the facts and circumstances in evidence, whether or not the testimony established beyond a reasonable doubt that the defendants did not so believe, or did not have reasonable ground for such a belief. In view of this fact, the court should have given the instruction requested. Allen v. United States, 150 U. S. 551, 561, 562, 14 Sup. Ct. 196, 37 L. Ed. 1179; Hickory v. United States, 151 U. S. 303, 311, 14 Sup. Ct. 334, 38 L. Ed. 170; Wharton on Homicide (Bowlby’s 3d Ed.) pages 455-458, par. 286; Territory v. Gonzales, 11 N. M. 301, 326, 327, 328, 68 Pac. 925. In Hickory v. United States, 151 U. S. 303, 316, 14 Sup. Ct. 334, 339 (38 L. Ed. 170), the Supreme Court said :
“As was said in Allen v. United States, 150 U. S. 551 [14 Sup. Ct. 196, 37 L. Ed. 1179], we do not think that the doctrine is practicable which tests the question whether a defendant was entitled to excuse on the ground of self-*973 defense, or exceeded the Jimits of the exercise of that right, or acted upon unreasonable grounds, or in the heat of passion, by the deliberation with which a judge expounds the law to a jury, * * ® or with which judgment is entered and carried into execution.”
The conclusion of the whole matter is that there was fatal error in the trial of this ca.se, and in the decision of the Supreme Court of New Mexico affirming the judgment. Ret the judgment of the Supreme Court and that of the trial court be reversed, and let the case be remanded, with instructions to grant a new trial.