I dissent. There is substantially no dispute in the evidence in this case upon material facts. I think the prevailing opinion too favorably interprets the evidence on behalf of the cause of the State. Circumstances are more favorable to the defendant than the mere words used by the parties. Such conflicts as arise upon matters are collateral and because of different points of view. The defendant and appellant, John B. Turner, operated a restaurant at No. 17 South Third West street in Salt Lake City. On the night of July 7, 1936, the defendant, colored, had in his employ one J.E. Clark and P.G. Green, also colored. The usual closing time of the restaurant was about 9 o'clock p.m. Defendant and his help occupied sleeping quarters in the second story over the restaurant.
Shortly before midnight of July 7, 1936, Audrey Malone, Lee Howell, and Lawrence Rucker, the deceased, had been at the place of Mr. and Mrs. Brooks, all colored. They decided to go to the Turner restaurant for a meal. On arrival they found the place closed. Audrey Malone had at a previous time worked for Turner as a waitress and was familiar with the place. She went upstairs and awakened the defendant and his two helpers and requested the preparation of a meal for the five. Defendant and his two helpers arose, returned to the restaurant, and prepared the meal. The defendant remained in the kitchen doing the cooking. Green washed the dishes, while Clark was in the dining room waiting on tables.
Difficulties arose after the meal. Audrey Malone, Lee Howell, and Lawrence Rucker had dined at a separate table from Mr. and Mrs. Brooks. A question arose between Howell and Rucker as to who should pay for the meal. Rucker insisted that it was his treat. He had no money with which to pay. Rucker was under the influence of intoxicating liquor. This is testified to by most of the witnesses, and the *Page 150 defendant, testifying in his own behalf, affirmed that Rucker became so intoxicated he was afraid of him. While the trio was still at the table, Rucker called out, asking the price of the meal. Defendant, who was still in the kitchen, advised Rucker as to the price and came out to the door between the kitchen and dining room. Rucker arose from the table and said he had no money but would go out and get it. Defendant objected to his leaving without paying for the meal, saying he did not trust any one outside of his place. Some remarks were then passed back and forth between defendant and deceased. There is some variation among the witnesses as to just what was said. None of the language on either side was of a threatening character, but insulting. After these verbal passes, the deceased picked up a sauce bottle from the table where he had been served. Defendant went back into the kitchen and reappeared at the doorway between the kitchen and the dining room with a knife in his hand. There is agreement among all the witnesses that at the time the defendant appeared in the doorway with the knife in his hand they saw the sauce bottle in the deceased's hand.
The defendant explained his action by saying that when he saw the deceased, in his drunken condition, pick up the bottle, defendant went back and obtained the knife with the idea of scaring the deceased into leaving the restaurant. Defendant raised the knife as if to throw it, but lowered it and returned to the kitchen.
Reference to a diagram of the premises used by the trial court and to which reference was made by the witnesses makes the testimony and movements of the parties easier to follow: *Page 151
[EDITORS' NOTE: DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.]
Audrey Malone and Lawrence Rucker sat at the west side of the east table of the dining room. Lee Howell sat on the east side. A lunch counter ran along the major portion of the north side of the dining room. J.E. Clark, the waiter, was, at the time the shot was fired by the defendant, behind the lunch counter. About the center of the east wall of the dining room there is a doorway between the dining room *Page 152 and kitchen. Immediately behind the door from the dining room to the kitchen and crossing at right angles to this areaway, and about 2 feet distant from the doorway, is a counter with a shelf, referred to as a "deal bench." This "deal bench" prevents passage from the dining room to the kitchen or vice versa except by going around it to the south, there being a space of about 2 feet between the south end of the deal bench and the south wall of the kitchen. The stove was on the east side of the kitchen opposite the deal bench; the sink and drainboard were in the north and west corner of the deal bench, closing the areaway to the north and west of the deal bench. The bread tin, cakebox, and some cartons occupied a bench in the northeast corner of the kitchen.
After the conversation about payment for the meal and passage of remarks between defendant and deceased, and the appearance of the defendant at the door with the knife, Rucker continued to advance and the defendant returned to the kitchen, obtained a revolver from a carton in the northeast corner of the kitchen proper. Rucker advanced from the dining room, following defendant through the door, along the passageway around the deal bench, still grasping the sauce bottle in his hand. The defendant retreated to the northeast corner of the kitchen, where he secured the revolver. The evidence indicates the advance of Rucker was not rapid but continued and persistent, characterized by an air of determination. During this time the defendant warned deceased to get out of the kitchen and leave the restaurant. Rucker, however, continued to advance until he was approximately within arm's length, or striking distance, from defendant. At this point defendant fired, the bullet penetrating deceased's body. He turned, staggered back to the dining room, and fell. He was dead when the officers arrived. Defendant remained upon the premises, turned the gun over to the officers, and was taken to the police station. Without quotation, the foregoing is a delineation of what took place. *Page 153
Defendant was tried on a charge of murder in the first degree. The jury returned a verdict of voluntary manslaughter. Defendant was sentenced and appeals, making eleven assignments of error. Six of these, as stated by counsel for appellant, relate to the question of whether or not defendant established a case of self-defense. The assignments are so grouped in argument and need not be separately stated. Three of the assignments relate to the question of improperly admitted testimony; one relates to the refusal of the court to give two certain requested instructions; and one to the point that there was no evidence introduced to support a verdict of first or second degree murder or the necessary elements of such offenses as set out by the law and the instructions of the court as given. Another assignment relates to the refusal of the court to grant a new trial.
It is unnecessary in this discussion to examine the other assignments, other than those relating to self-defense. From the evidence the following ultimate facts may be stated as established: Defendant was in his own place of business. He was rendering such service as is necessarily incident to one catering to the public in the line of business in which he was engaged. The deceased was one of his customers for the time being. During the evening the deceased had been drinking intoxicating liquor. By some he was said to be drunk; by others, not so. From all the evidence and the delineation of his actions, his condition was such as to make his movements menacing. A discussion was had as to the price of the services rendered. A difference had arisen as to the deceased leaving the place, allegedly for the purpose of securing the money to pay the bill, although one of deceased's party said he had offered to pay it. Whether or not deceased was attempting a subterfuge to beat the bill or whether or not defendant thought so is not material to the issues submitted to this court. The evidence establishes that the first offensive or belligerent act on the part of deceased was the picking up of the sauce bottle from the table at which he *Page 154 was served, and starting towards the defendant. At no time did the defendant advance toward the dining room further than the door between the kitchen and the dining room — the first time when he announced the price of the meal, the second time when he appeared with the knife, from which position he retreated as Rucker got up from the table where he had been served, and, with the bottle in his right hand, advanced toward defendant. The deceased continued to move toward defendant, who retreated into the kitchen, laid the knife down and went to a carton north of the stove and took out the gun, coming back to near the middle of the kitchen.
Defendant testified that he asked deceased not to come into the kitchen. Other witnesses testified they did not hear defendant make that statement, or, "Do not come in here, Mr. Rucker." Under such circumstances, what one does not hear or see is of little or no weight against positive evidence of what might have been heard or seen had observation or attention been directed to such matters. Deceased continued to advance into the kitchen, toward defendant, with bottle in hand. When the two men were about arm's length apart, or 3 or 4 feet, as one witness put it, defendant discharged the gun, the resulting wound causing the death of Rucker. In so far as witnesses, aside from defendant himself, are concerned, none of them were able to say whether Rucker had the bottle first or defendant had the knife. They do say that when they saw one they saw the other. There is a total absence of evidence to show that defendant, from the time of his retreat from the dining room doorway up to the instant of discharging the gun, took any aggressive action. As I read the evidence, he was either retreating or entirely on the defensive side, and warning Rucker against advance or any aggressive action. In so far as any threatening action on defendant's part with the knife was concerned, that was abandoned when he returned to the kitchen and placed it upon the deal board. From this point on, with Rucker constantly advancing into the kitchen, was the defendant *Page 155 justified in arming himself to prevent further aggression? Did he withhold fire as long as a reasonable and prudent man would be required to do under such circumstances?
Under the undisputed evidence, defendant had within his own premises retreated from the door, around the deal bench and across the kitchen, during all of which time the deceased was advancing. Defendant testified that Rucker said, "You will not shoot that gun," and that he said to Rucker as he was approaching, "Do not come in here, Mr. Rucker." Witness Clark testified he heard defendant say to deceased, "Get out of this kitchen." Other witnesses said they did not hear this warning statement of defendant, but testified that just before the firing of the fatal shot they heard Rucker say, in substance, "You will not shoot," or "I will make you shoot," or "I will see if you will shoot," or "I don't believe you will shoot."
The instructions of the trial court are silent as to whether or not the bottle in the hand of deceased at the time of the shooting was or was not a deadly weapon. When practicable, the court should declare whether a particular weapon is deadly or not. This is a question of law for the court, and not of fact for the jury, especially where there is no dispute about the facts, as in the instant case. But, where the character of the weapon in such respect is doubtful, or where the question depends upon the particular manner in which it was used, the question is one for the jury under proper instructions. State of Nevada v. Davis,14 Nev. 407; 5 C.J. 793, § 336, and cases there cited.
The court instructed the jury that "under the law there was no duty on the part of this defendant to retreat or run away from the assault or advance made by Lawrence Rucker, if any there were, and you are further instructed that the law, under those circumstances, gives the defendant the right to stand his ground and use such force as is reasonably necessary to defend himself against the assailant, even to the point of taking human life." This instruction is a correct statement of the law, and it is difficult to understand why *Page 156 the court did not take the case from the jury or set aside the verdict in the light of the evidence.
The defendant testified:
"I laid the knife down there [on the deal bench], and he kept coming and I stepped over to the table where I kept the gun, and opened the box and took the gun out of there, thinking surely he would stop if I had a gun, and he kept coming, and I asked him not to come into the kitchen, and he kept coming, and when he got in the kitchen by the corner of the deal bench, he said, `You will not shoot that gun,' I said, `Don't come in here, Mr. Rucker.' He said, `You will not shoot at me,' and made an action with the bottle."
This testimony is not contradicted by any of the witnesses. Some did not hear or remember. The circumstances are in harmony with defendant's statements and corroborate him in so far as circumstances may.
The right of one to stand his ground when assailed in his own home or place of business has never been seriously questioned. The rule is practically universal that when a person is attacked in his own dwelling or place of business, he is not required to retreat and may stand his ground and, if it is apparently necessary to save his own life or protect himself from great bodily harm, he may kill his assailant. 13 R.C.L., Assault, § 135. Some might wait until they were actually struck before retaliating; some might not await the impending blow. It may not be said that one in his own domicile is rightfully required to time with strictly measured nicety the maturity of an apparently impending assault into a battery. 2 R.C.L. 551, citing State v.Hickam, 95 Mo. 322, 8 S.W. 252, 6 Am. St. Rep. 54, states the following:
"However, in the heat of conflict, or in the face of impending peril, a person cannot nicely gauge the proper quantum of force necessary to repel the assault, and he will not therefore be deemed guilty of exceeding his rights unless the force was so excessive as clearly to be vindictive under the circumstances of the case."
Under the circumstances of this case, the defendant was justified in defending himself and the homicide was justifiable. *Page 157 Defendant had a right to protect himself and avoid a threatened bodily injury or to avoid what to him appeared a necessity to avoid great bodily harm, reasonably considered in the light of the circumstances. Defendant testified he was in present fear of the deceased because he was drunk. Section 103-28-10, R.S. Utah 1933, provides:
"Homicide is also justifiable when committed by any person in either of the following cases:
"(1) When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person.
"(2) When committed in defense of habitation, property or person against one who manifestly intends or endeavors, by violence or surprise, to commit a felony; or against one who manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein."
In the case of State v. Merk, 53 Mont. 454, 164 P. 655,658, a case in which a deceased was approaching in revival of an attack, the court said:
"He might have awaited until he received great bodily harm, but if one who is attacked must restrain himself until subsequent events determine whether the attack will result fatally or in grievous bodily harm, then the right of self-defense is one in name only. This is not the law. A person assailed may act upon appearances as they present themselves to him, meet force with force, and even slay his assailant; and, though in fact he was not in any actual peril, yet if the circumstances were such that a reasonable man would be justified in acting as he did, the slayer will be held blameless."
The cases of People v. Sherman, 103 Cal. 409, 37 P. 388, and Perez v. State, 51 Okla. Crim. 180, 300 P. 428, are substantially to the same effect.
Subsection (2) of section 103-28-10, supra, was construed in the case of State v. Terrell, 55 Utah 314, 186 P. 108, 112, 25 A.L.R. 497, where, although the one assailed turned out to be a 14-year-old boy stealing rabbits, the court said:
"As heretofore pointed out, homicide is justifiable under our statutes `when committed in defense of habitation, property or person, against *Page 158 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."
Assault and Battery, 2 R.C.L., applying the rule laid down in the case of Scheuermann v. Scharfenberg, 163 Ala. 337,50 So. 335, 24 L.R.A., N.S., 369, 136 Am. St. Rep. 74, 19 Ann. Cas. 937, and note, states the following:
"A person may defend his dwelling house against the felonious acts of others to the extent of taking life when necessary, and inasmuch as a man's place of business is (pro hac vice) his dwelling, he has the same right to defend it against felonious intrusions, as he has to protect his dwelling. Applying these principles of law, the rule may be laid down that a person is not liable for injury to a burglar who while attempting to enter is shot by means of a spring gun placed in the dwelling house or store for protection against burglars."
2 R.C.L. par. 27, entitled, Self-Defense, pp. 548, 549, reads:
"The right of self-defense is founded in the first law of nature, the right of self-preservation, and it is not and cannot be superseded by the laws of society. Properly speaking, the right cannot include more than a defense of life and person. The first and essential element to the establishment of a perfect self-defense is the necessity for the exercise of the right, for if the alleged self-defender uses force against another where it is not necessary for his own protection he becomes an aggressor and violates the law. While it has been said that the necessity which will justify the use of force in self-defense can arise only where there is actual, imminent and apparent danger of injury to the person of the defender, yet the right to use force in self-defense cannot be limited to cases where there is in fact a real danger; and a person will not be held responsible civilly or criminally if he acts in self-defense, from real or honest convictions induced by reasonable evidence, although he may be mistaken as to the existence of actual danger. However, an assault and battery committed by one person on another cannot be justified on the ground of self-defense unless the person assaulted had at least done some overt act or made a hostile *Page 159 demonstration of a character to give the assailant reasonable ground to suppose himself in imminent danger. The right of self-defense exists only so long as the danger exists, and therefore as soon as the assailant desists there can be no further need of defense, and if the person defending himself pursues his assailant after the latter has given up the attack, and inflicts injury on him, he is liable both civilly and criminally. Self-defense may justify an assault where in the heat of conflict the defendant inflicts an injury on a person other than the one assailing him, under a mistake as to the identity of his assailant. An illegal arrest is nothing more than an assault and battery, and a person thus attempted to be restrained of his liberty has the right to use the same force in defending himself as he would against any other unlawful intrusion on his person or liberty."
Paragraph 28, pp. 549, 550, of 2 R.C.L., declares:
"The law does not permit a person voluntarily to seek or invite a combat, or to put himself in the way of being assaulted, so that when hard pressed he may have a pretext for injuring his assailant. The right of self-defense does not imply the right of attack, and it will not avail in any case where the difficulty is sought for and induced by a person by any wilful act of his, or where he voluntarily and of his own free will enters into it. The necessity being of his own creation will not operate to excuse him. It is true that statements are to be found that if one be the `aggressor' or be `in fault' or `provoke a difficulty' he cannot rely on a plea of self-defense. But it is not every aggression which produces a difficulty that is unlawful, within the meaning of those phrases. Nor is it every fault a man might commit that precludes him from defending himself when violently assaulted or menaced, nor every provocation of a difficulty which robs him of the right of self-defense. It is not intended that everyone shall be held to be an aggressor who says something provoking to another, which causes a difficulty, for often such an aggression is a just one, and sometimes a necessary one; but even when it is neither just nor necessary, the use of approbrious language is not, for this reason alone, an aggression, in the sense of the law. Hence if one only uses such words, and is assaulted or so menaced, he may defend himself. After all, the aggression, the fault, or the provocation depends upon its character and its intent. If it is an assault, or the menace of one by an overt act, or the provocation of a difficulty with intent to inflict death or great bodily harm in the event it is resisted, made of malice to bring about that result and enable the provoking party to wreak his malace on the other, that is an aggression or fault and a provoking of a difficulty within the legal sense and meaning of the *Page 160 terms. Where a person is himself violating the law and on account of his own wrong is placed in a situation where it becomes necessary for him to defend himself against an attack, then the law justly limits his right of self-defense, and regulates it according to the magnitude of his own wrong. Where, however, a person has in good faith abandoned his intention to inflict injury on another and is retreating, he is entitled to defend himself if pursued and attacked. The burden of proof does not rest on the defendant in establishing a plea of self-defense to show that he was free from any fault."
In 2 R.C.L. 551, we find the following statement and cases cited:
"Generally stated the force that one may use in self-defense is that which reasonably appears necessary in view of all the circumstances of the case, to prevent the impending injury.Riddle v. Brown, 20 Ala. 412, 56 Am. Dec. 202; Adams v.Waggoner, 33 Ind. 531, 5 Am. Rep. 230; Brubaker v. Paul, 7 Dana (Ky.) 428, 32 Am. Dec. 111; Morris v. Miller,83 Neb. 218, 119 N.W. 458, 20 L.R.A. (N.S.) 907, 131 Am. St. Rep. 636, 17 Ann. Cas. 1047; Stevens v. State, 84 Neb. 759, 122 N.W. 58, 19 Ann. Cas. 121; State v. Scott, 142 N.C. 582, 55 S.E. 69, 9 L.R.A. (N.S.) 1148; McQuiggan v. Ladd, 79 Vt. 90, 64 A. 503, 14 L.R.A. (N.S.) 689; Fink v. Thomas, 66 W. Va. 487,66 S.E. 650, 19 Ann. Cas. 571."
We are not at variance as to the law. The application of the evidence in the instant case, as made by the prevailing opinion, would make every case of self-defense a case for the jury. Had Mr. Rucker been advancing toward a peace officer, either in a public or a private place, who was in the performance of a duty to arrest, and had done just what defendant did, it is more than probable the cause would not have got beyond a preliminary hearing or a coroner's inquest. There may be times when it is a close question as to whether a case of self-defense has been so clearly established as to say it is an abuse of discretion to permit the cause to go to the jury or to be taken away. The line of demarcation must be maintained, otherwise, no matter how clearly the defendant establishes self-defense, if the matter that a homicide has occurred must be regarded as creating a conflict of *Page 161 evidence sufficient to take the cause to the jury, self-defense as a matter of law ceases to exist.
I am of the opinion that defendant established a case of self-defense, and the court, under the law applicable to the case and in view of the evidence submitted, should have taken the cause from the jury, or, not having done so, a new trial should have been granted.