The appellant was accused of the crime of murder in the first degree. It was alleged that on the 15th day of March, *Page 208 1943, in the County of Salt Lake, State of Utah, he murdered Martin Bruce Bogarte. Upon the trial concluded on April 21, 1943, at the close of the State's evidence, the appellant rested his case and requested the trial court to direct the jury to return a verdict of acquittal. The request was denied. The case went to the jury, and a verdict was returned finding the appellant guilty of voluntary manslaughter.
The defendant's motion, so made at the close of the State's case, was made upon the ground that from all the evidence and without contradiction, it appeared that the homicide complained of was justifiable or excusable, and that the jury should find a verdict of acquittal.
The question is also raised that the verdict of the jury and judgment are not supported by, but are contrary to the evidence. There is but one question presented for answer. Does the evidence show that as a matter of law the homicide was excusable or justifiable? The evidence was all produced by the State. There is no contradiction.
Five witnesses testified. The facts as shown by the record are: Dr. C.R. Openshaw examined the body of deceased and said death was caused by a knife wound that severed the femoral artery; that deceased bled to death. William Y. Tipton, of the City Engineer's Office, identified a plan sketch of a space on the second floor of the Regis Hotel, the site of the homicide. Fred Kingston identified the pocket knife which he received from the witness Powers. J.W. Spencer told of the arrest and the condition of the clothing of defendant at the time of the arrest, that it was bloody, manifestly from the wound inflicted on Bogarte while Bogarte was still on top of Law. Charles D. Powers was the only witness who testified to the details of the attack made by Bogarte upon Law.
Shortly before 6:30 on Monday morning, March 15, 1943, the defendant David Law with the State's witness Charles D. Powers and a man by the name of Jack Allred were sitting in what is referred to as the "foyer" or lobby. This is a space on the second floor. In this space there was a writing desk, a table, a divan and two large chairs. The diagram *Page 209 prepared by Tipton is here reproduced. It is not claimed that the diagram shows the location of the furniture at the time Bogarte attacked Law but as he found it at the time he made the survey:
[EDITORS' NOTE: DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.]
Shortly before Bogarte attacked Law, Allred was asleep in one of the chairs. Hailstone, a clerk of the hotel, on one of his trips through the space took a glass from the table and poured some water down the back of Allred's neck. Allred started "cussing Cliff Hailstone, and he hauled off and slapped him in the back of the neck." *Page 210
Bogarte came out of his room down the hall and around the partition into the foyer. Purcell and Hailstone are not again referred to in the record. Powers testified that Bogarte "started cussing Allred and Law * * * calling all of us `God damn sons-a-bitches' * * * bastards * * * and a few other names, just as bad." Allred challenged Bogarte "and was going to fight him." "Allred squared off to fight with him. He said, `This is my affair, I am going to take care of this,' and brushed Dave Law aside, or behind him. * * * Bogarte continued to cuss at both of them."
As to Powers' testimony, he being the only witness testifying who saw the fight, giving an account in detail, beginning with the position of the parties just before Bogarte entered, we let the record speak:
Purcell was sitting in Chair "A," Powers was sitting on the west end of the divan, Law was sitting on the east end, and Allred was sitting in Chair "B." Then follows what occurred after Bogarte entered:
"Q. Will you come down, please, and indicate to the jury the point where that `C' is located? (Witness goes to blackboard.)
"Q. That is, the `C' is about where you saw Law before he came to the table? A. That's right.
"Q. And he was over there — go ahead. A. It was just sort of shuffling over, didn't seem to be in any hurry, or anything; just shuffling over toward the table again.
"Q. Now, he was at Point `C' before or after Allred told him this was his fight? A. Beg pardon?
"Q. I say, was — did you notice Law at this point we have marked `C' before or after Allred told him this was his fight, if I make myself clear. Which happened first, Allred brushed him aside, or you saw Law over at Point `C'? A. I saw him brush him aside, then I saw him at about the Point `C' afterwards.
"Q. Then he came over to the table — what is marked `Table'? A. Yes — oh, kind of mosied over toward and leaned up against the table, or backed up against the table.
"Q. Where was he facing, with relation to Bogarte? A. Directly in front of him. *Page 211
"Q. Where was Bogarte from the table, which direction? A. He was just about a straight angle from the northwest corner of the table.
"Q. All right now, after Law got there what happened? A. Well, Law asked him, told him, he said, `You have been looking for trouble around here, you big stiff, you have been looking for trouble around here for a long time' so what — As I remember, those were the only words that were spoken.
"Q. Then what happened? A. Then I stepped up there, put a hand on Bogarte's arm or chest, I wouldn't say which, told him, said, `Go on back to bed.' Said, `I will go to bed, we will all go to bed, and cut out this trouble, this noise or racket.' He took one look at me. He looked back at Law, and took a punch at him.
"Q. Hit him? A. He hit him, all right. So —
"Q.? Did you notice where? A. I couldn't say whether he hit him square, or not; it all happened too fast.
"Q. Then what happened after this blow was struck? A. They went to the floor with Law down, with his head up against the west end of the table, Bogarte down on top of him.
"Q. And then what happened? A. Well, Bogarte was trying to choke him and hit him at the same time, seemed like he tried to choke with both hands, then tried to choke with one hand and hit with the other; quite a scuffle, and that was as near as I could see.
"Q. Where was Law with relation to Bogarte's body? A. Well, he was laying flat on his back, and Bogarte was directly right on top of him. Their faces were perhaps not any farther than that apart * * * And perhaps just about facing — just about pretty near straight up.
"Q. Was any part of Bogarte's body on the floor? A. Well, his knees, toes.* * *
"Q. And where were Bogarte's hips with relation to Law's body, if you noticed that? A. Bogarte's hips was — don't know so much about that, they were quite, directly over him. He was astraddle his knees. Bogart's legs were straddle of Law's.
"Q. Then what happened after they got in that position? A. Well, it all happened so fast and furious, I couldn't see everything. The light is poor in there, anyway, but Allred threw a leg over Bogart's hips and started slugging him, and `Picking on my pal, will you, you big son-of-a-bitch' was his words, and he started slugging him, and next thing I knew the big fellow seemed to kind of release Law, or something, and what his intentions were, I don't know, but he rolled over backwards, said something about `Oh, cutting,' were the two words I remember. With that, I decided someone must have a knife, and I looked closely, and took the knife out of Mr. Law's hand. *Page 212
"Q. And in what position was Mr. Law at that time? A. At that time he had — as Bogarte had rolled over backwards he had got up onto his knees, and that kind put him sort of astraddle of Bogarte's knees.
"Q. And what did you do when he was in that position? A. I would say he was straddle of Bogarte, just above his knees. He might have had one leg between Bogarte's and straddling maybe one of them, but that is as near the position as I could describe.
"Q. What were you doing? A. What was I doing?
"Q. Yes, what did you do then, when Law got in that position? A. I rushed down, took the knife out of his hand and took off down to the cafe on Broadway, called the officers, with the knife in my fingers.
"Q. I hand you what has been marked State's proposed Exhibit `B,' and will ask you, Mr. Powers, if you can identify that knife? A. That is the knife.
"Q. You say this is? A. Yes sir, it is the same thing, that is —
"Q. Will you indicate, which hand did Law have the knife in when you took it? A. His right hand.
"Q. Would you indicate — hold this knife and indicate the position in his hand that the knife was when you took it? A. I wouldn't remember whether it was this way or this way, but it was one or the other.
"Q. The blade was sticking out from which side of the hand? A. Just like that.
"Q. That would be the thumb side of the hand? A. That is right, or it might have been that — I don't remember — I know I took hold of the blade like that, holding his wrist in my right hand. I told him to give me that knife, `Give me that knife, Dave.' I told him two or three times. He looked at me, dazed, and a wild look in his face, quite upset, I guess, or excited. He opened his hand and let me have it."
On cross-examination Powers testified that when Law was standing at the table "his hands were at his sides," he "didn't see any knife" and that he did not know whether Bogarte knocked Law down with a blow "because as soon as he hit him * * * he grabbed him" and "they fell with their heads up at the end of the table, the west." They did not change position while on the floor "and Law was underneath Bogarte" when he heard something about "cutting."
Powers stated Bogarte "was a big man, it was a powerful blow," he "would judge Bogarte to be two hundred twenty *Page 213 pounds or more"; that he "would judge Law weighs one hundred twenty-five" and is "about five foot six" in height; that Bogarte was "six feet, easy" and a powerful, strapping man, and when on the floor he was trying to choke Law sometimes with both hand and sometimes with one, and "blowing him somewhere around the face" with the other. When Powers was asked, "But you didn't have any difficulty in taking the knife from" Law, he answered, "No, he handed it to me, he opened his hand."
As stated above, the evidence is uncontradicted. It establishes a case of unprovoked and vicious assault and battery by a large, powerful man upon a small man who was physically no match for his assailant. The smaller man was down, helpless, and beaten into a "dazed" condition when the knife was used. Desperation from fear or taking a last chance while consciousness remains does not permit of a deliberate selection of means or place of delivering a blow of resistance, or a measurement of what the consequences may be.
The cases of State v. Terrell, 55 Utah 314, 186 P. 108,111, 25 A.L.R. 497, and State v. Turner, 95 Utah 129,79 P.2d 46, are cited. Both of these cases differ from the case at bar. Terrell was charged with assault with intent to commit murder. He had been missing rabbits from his pens. In order to catch the thief he had been sleeping in a shed in the enclosure where the rabbits were kept. After he had retired he heard a noise amongst the rabbits. He heard one of them squeal. He got out of bed picked up his gun and looking out saw the doorway to the rabbit pen open. Being convinced someone was stealing his rabbits, and having seen someone moving by the opened door to the rabbit pen, he pointed the gun in the direction, fired and wounded a boy. The jury found Terrell guilty. On appeal the cause was reversed and returned for a new trial. In reversing the verdict and judgment, the court said [55 Utah 314, 186 P. 110, 25 A.L.R. 497]:
"It is also conceded that the same rules of law are applicable with respect to justification in cases of assault with a deadly weapon with intent to do bodily harm as in cases of homicide." *Page 214
And:
"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." (Italics added.)
The instant case differs upon the facts from the Terrell case, but the doctrine quoted is applicable. When one is assaulted, overpowered by another of greater strength, weight and ability in combat, and is knocked or thrown down, with the assailant on top of the person assaulted, and chokand beating is proceeding upon one unable to defend by ordinary means and is rendered dazed by the attack, what may such a person do to keep within the limitations of "justifiable or excusable" action, no other means appearing available than the means used?
In the Turner case the assault was threatened but had not reached the stage of a battery or combat when the shot was fired resulting in the death of the party taking the threatening position, even though the defendant was on his own premises and had retreated considerably.
The prevailing opinion cites and quotes part of Sec. 103-28-10, U.C.A. 1943. It appears to me that the part of that section applicable to the evidence in the instant case required an acquittal. The following covers the situation as revealed by the uncontradicted evidence:
"Homicide is also justifiable when committed by any person in either of the following cases: * * * (3) * * * when there is reasonable ground to apprehend a design * * * to do some great bodily injury and there is imminent danger of such design being accomplished; but such person, * * * if he was the assailant * * * must really and in good faith have endeavored to decline any further struggle before the homicide was committed." *Page 215
In the instant case Law was not the assailant. Bogarte was. Law had no opportunity to decline. He never started the matter. It was purely a matter of being knocked down and either then defending with such means as were available or permitting an assailant to commit such bodily injury as the attacker chose to inflict. Mere empty hands gave no reasonable means of repelling the assailant. Under the evidence Law was helpless except for the means used. How much choking, how much bodily beating must a reasonable person take before he arrives at a situation where it may be said as a matter of law that a homicide is justifiable or excusable? Surely, when an unoffending person, as the evidence shows Law was, is being assailed and a violent battery is in progress upon his body, accompanied by choking, there is reasonable ground to apprehend great bodily injury. The evidence shows the battery had passed the stage of reasonable apprehension. Law was actually beaten to a condition such that the witness stated he appeared dazed. The evidence justifies the conclusion that he was, or, if not, he was different from what most men would have been under the described circumstances.
I ask any reasonable man with the odds against him such as were against Law, whether he would conclude there was reasonable ground to apprehend a design to commit great bodily harm to or injury upon his person? The great probability is that Law did not intend nor expect that his act would result in homicide. He was a man in an extreme situation, and desperation prompted self-preservation.
It is said in the prevailing opinion that,
"The defendant in this case could take advantage of eithersubsection [103-28-10, U.C.A. 1943] as he could claim that notonly was there reasonable ground to apprehend a design to dogreat bodily injury to him with imminent danger of such designbeing accomplished but that it was actually in the process ofbeing accomplished." (Italics added.)
Thus far I am in accord with the prevailing opinion. The *Page 216 sentence following the one above quoted raises the barrier I am unable to get over. It is said:
"But whether the defendant was justified in using a knife on the theory that Bogarte was attempting to murder him or do some great bodily harm upon his person is in this case a question for the jury." (Italics added.)
It is then said:
"Likewise whether he had reasonable ground to apprehend a design on Bogart's part to do him some great [italics in prevailing opinion] bodily injury and that there was imminent danger that he would accomplish it, and his belief that such was the case is also, under the facts of this case, a question for the jury."
The question of apprehension of a design, the question of bodily injury, the question of imminent danger, and the question of belief had passed the stages of apprehension, design, imminence and belief; they were all accomplished facts when Law struck with his only apparent means of defense.
I ask what else could Law have done? Had he been a spitting cobra he might have spit in Bogarte's eyes; had he had a gun, he might have shot Bogarte. A 125-pound man down on the floor with a 200-pound assailant on top of him chocking and striking with his fists, does not give the underman much choice of means of self-defense. This affray started with a sneak punch. So did the attack on Pearl Harbor.
Again, the prevailing opinion says:
"Unless the evidence is so conclusive that every reasonablemind must say that the means and the force used were necessary to defend against aggregation the question of whether the killing was in self-defense is a question for the jury to determine."
Warren on Homicide is then quoted, and then follows the statement:
"Likewise, if there is no conflict in the evidence but there is room for reasonable minds to differ as to whether `there is reasonable ground to apprehend a design to * * * do some great bodily injury *Page 217 and there is imminent danger of such design being accomplished,' the question is one for the jury."
In the instant case there certainly is no conflict in the evidence. Law was not the aggressor. There was no willing or mutual combat or affray. The attack by Bogarte under the evidence was unprovoked, unjustified, vicious, and in violation of every right a person has to occupy a peaceful, peaceable, passive position of observing events without participation therein.
It may be said, and fairly, that the balance of the court is reasonable upon this proposition and that I am open to the charge of being unreasonable. I am, however, compelled, in being true to my own convictions, if the law is as laid down in the prevailing opinion, to reassert what I said in my dissenting opinion in the case of State v. Turner, supra, that every case of self-defense becomes a case that must go to the jury. If such is the law, I should abide by it; but as long as self-preservation is the first law of nature, as long as the statutes of this State provide, "When the homicide appears to be justifiable or excusable, the person charged must, upon his trial, be fully acquitted and discharged" (Sec. 103-28-12, U.C.A. 1943), then I must maintain that in this case under the evidence, whether the case is one of law so that the court should have taken it from the jury, or, the court having failed in what I conceive to be its duty, then the jury was required to find from the evidence that from the appearances the homicide was "justifiable or excusable," then, upon his trial, it was a miscarriage of justice to fail to fully acquit and discharge the defendant.
A case from Massachusetts has some pertinent language,Commonwealth v. Barnacle, 134 Mass. 215, 45 Am. Rep. 319:
"If the assailant is a child, or a weak and effeminate man, much inferior in strength to the party assaulted, and unarmed, common experience teaches us that there is no cause to apprehend serious danger from the assault. On the other hand, if the assailant is a large and powerful man, whom the assaulted party could not successfully resist by his unaided strength, this fact would naturally create in his mind *Page 218 an apprehension of danger, which might justify him in using a deadly weapon for self-defense. Certainly it must be competent to show that the assailant was armed with a deadly weapon; for the same reason, it may be shown that he is armed by nature with a superior size and strength, which makes his attack irresistible and dangerous."
In State v. Jennings, 96 Mont. 80, 28 P.2d 448, 451, 121 A.L.R. 375, a conviction of second degree murder was reversed because of the exclusion of certain evidence relating to prior viciousness of the deceased. The deceased, the aggressor in the affray resulting in his death, was a large, powerful man, over six feet tall and weighing 200 pounds, while the defendant was 5 feet 6 inches tall and weighed 155 pounds. Death resulted from knife wounds inflicted by the defendant in a scuffle following the attempt of deceased to strike defendant with a cuspidor. In the course of the opinion, it is said:
"As was said by this court in State v. Merk, 53 Mont. 454,164 P. 665, 657: `The right of self-defense has its foundation in the law of nature'; it is recognized by our Penal Code (section 10965, Rev. Codes 1921), and, `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.' State v. Rolla, 21 Mont. 582,55 P. 523, 525.
"The deceased was the aggressor, and, although it subsequently developed that he lost his weapon while striking the first blow, that fact shown on the trial did not deprive the defendant of his right of self-defense, under the foregoing rules. Where the assailant is a much larger and stronger man than the defendant, the latter may reasonably apprehend great bodily harm, even though his assailant is unarmed. Hill v. State, 94 Miss. 391,49 So. 145. Here the defendant testified that he believed the deceased was endeavoring to push him against a hot stove."
The case of State v. Gordon, 191 Mo. 114, 89 S.W. 1025,1027, 109 Am. St. Rep. 790, is strikingly similar in its facts to the instant case, except the assailant did not succeed in knocking Gordon down by the blow with his fist. Gordon was the smaller and lighter man and physically no match *Page 219 for his assailant. After striking him in the temple, his assailant held him with one arm around his neck and with the other choked him. Neither went to the floor. Gordon stabbed his assailant. He was tried, convicted and appealed. The case was reversed because the trial court modified some instructions. The court quotes the instructions before being modified and holds the giving of the modified instructions was reversible error. The instruction as held by the Missouri court to correctly state the law is as follows:
"If the defendant had reasonable cause to believe, from the words, acts and conduct of the deceased, that he had a design to do him some great personal injury, and that such design was about to be accomplished, then defendant had a right to act on appearances, and to cut or stab deceased * * * to prevent the accomplishment of such design; and in this connection the jury are further instructed that defendant was not required to nicely gauge the force used, but that he could use any means that appeared reasonably necessary under the circumstances. Neither is it necessary to this defense that his danger should have been real or actual, or that it should have been impending and about to fall; but if he had reasonable cause to believe, and did believe, these facts, and cut the defendant to prevent such expected harm, then you must acquit on the ground of self-defense."
In the course of the opinion the court said:
"We think it is clear that when one is assaulted by another and he neither brought on nor voluntarily entered into such a difficulty with a view to take advantage of a quarrel begun between him and his opponent, he does not forfeit his right of self-defense by voluntarily resisting the assault made upon him; and if the circumstances are such that, when thus assaulted he has reasonable cause to believe and does believe that his opponent then and there entertains a design to kill him or do him some great bodily harm, and there is imminent danger of the accomplishment of such design, then he may resist the accomplishment of such a purpose by killing his adversary to prevent the accomplishment of such a purpose." *Page 220