Bennett v. State

Winkler, J.

The appellant was tried and convicted of murder in the second degree, and was sentenced to the penitentiary, on an indictment charging him with the murder of John Waggoman, alleged to' have been committed in Johnson county, on May 20, 1880.

Counsel, in the brief filed in this court on behalf of the appellant, complain of the charge of the court, which they concede to be abstractly correct, but contend was not applicable to the case at bar. They submit further that all that is stated in the charge about the means or instrument used, the intent, formed design, and calm deliberate mind, while abstractly right, is not applicable; and also to the same effect as to that portion of the charge which indicates 'that if the mind is sufficiently cool and self-possessed as to understand, etc., it matters not with what haste or speed the design is carried into execution.

They also concede that the charge on manslaughter was correct. They say: “Then the court, after having fully charged on the degrees of murder and manslaughter, had certainly charged all that should have been charged;—■ but, in subdivision 26, the court proceeds to again direct the attention of the jury to the degrees of murder as contradistinguished from manslaughter, and in a manner we think calculated to impress the jury with the belief that the court was of opinion that appellant’s offense was that of murder in the second degree. At least it puts it in a manner to give undue prominence to murder in the second degree.” They further argue that the charges asked by the defendant should have been given to the jury.

Thus it will be seen that the principal reliance for a reversal of the judgment of the court below is placed on the applicability of the charge to the evidence adduced on the trial, and on the repeating of the charge and giving undue prominence to the subject of murder of the second degree,— including the sufficiency of the testimony to- support the verdict.

The law is well settled in this State at least (however courts may have held where the judges are not prohibited from charging upon the weight of the testimony or summing up the evidence, as they are in this State), that it is the duty of trial judges to instruct the juries in all cases of felony as to the law of the case as made by the evidence adduced upon the trial of the particular case, and as to every legitimate issue arising upon the facts; and that a failure of the trial judge to so instruct the jury, and instruct them correctly, as to every legitimate issue properly arising upon the testimony adduced at the trial, would ordinarily be cause for a reversal of the judgment, it being required by the statute law that, “After the argument of a criminal cause has been concluded, the judge shall deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case; but he shall not express any opinion as to the weight of evidence, nor shall he sum up the testimony. This charge shall be given in all cases of felony, whether asked or not.” Code Crim. Proc. art. 677.

■ Judging from the record before • us, the charge of the. court in the present case was not only an able but an accurate enunciation of the law as applicable to the facts proved on the trial, both as to the two degrees of murder, as well as on the subject of manslaughter, and homicide in self-defense. The only apparent criticism to which it is subject is that portion of the charge on self-defense which is in the language which we italicise: “If the evidence in this case shows that the defendant killed the deceased Waggoman, and if it further shows that, at the time he did so, said Waggoman was making upon him an unlawful and violent attack of such character as to produce in his mind a reasonable expectation or fear of death or of serious bodily injury, and that he used all reasonable means at his command to prevent the threatened injury before taking life, except to retreat, and that he killed said Waggoman at the very time that said Waggoman was making said attack upon, him, he would in law be justifiable, and you should acquit him. A man is not bound to retreat in order to avoid the necessity of taking; the fife of a party who is making upon him an unlawful and violent attack of such a character as to produce in his mind a reasonable apprehension or fear of serious, bodily injury, but, before he will be justified in law in taking the life of his assailant, he must resort to all other-means to avoid the necessity of taking life, except he is-not bound to retreat .”

The sufficiency and correctness of a charge must always be tested by the law of the case and by the facts proved. The law applicable to the present inquiry is as follows: “Homicide is permitted in the necessary defense of person or property under the- circumstances and subject to-the rules herein set forth.” Penal Code, art. 569.

“Homicide is permitted by law when inflicted for the purpose of preventing the offense of murder, rape, robbery, maiming, disfiguring, castration, arson, burglary and theft at night, or when inflicted upon a person or persons who are found with deadly weapons and in disguise in the night time on premises not his or their own, whether the homicide be committed by the party about-to be injured or by some person in his behalf, when the-killing takes place under the following circumstances: 1. It must reasonably appear by the acts, or by words coupled with the acts of the person killed, that it was the purpose and intent of such person to commit one of the offenses above named. 2. The killing must take place while the person killed was in the act of committing the offense, or after some act done by him showing evidently an intent to commit such offense.” Following these are seven clauses which have no application to the present case. Penal Code, art. 570. “ When a homicide takes place to prevent murder, maiming, disfiguring, or castratian, if the weapons, or means used by the party attempting to commit such murder, maiming, disfiguration, or castration, are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.” Penal Code, art. 571. “ Homicide is justifiable also in the protection of the person or property against any other unlawful or violent attack besides those mentioned in the preceding article, and in such cases all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack, and the person interfering in such a case, in behalf of the party about to be injured, is not justifiable in killing the aggressor unless the fife or person of the injured party is in peril by reason of such attack upon his property.” Penal Code, art. 572, The succeeding two articles of the Penal Code would or would not have bearing upon the question under consideration, according to the circumstances, but need not be here cited.

From art. 571, as above cited, it will be seen that under the circumstances stated in that article the person accused of the homicide is not required to resort to any other means in order to avoid the injury, before resorting to the extreme measure of taking the fife of the assailant; whilst in the class of cases mentioned in article 572, the law requires that all other means of preventing the injury must be resorted to before the law will protect the slayer in taking life.

The charge under consideration was correct under article 572, in that there was no proof that the weapons or means used were such as would have been calculated to kill the defendant, as required by the former article. So that the charge was correct under the proof, and the criticism, if any, to which it is subject is a want of observing the difference between the two articles, which could not have prejudiced the rights of the defendant.

- We find no error in paragraph 26 of the charge, and the error complained of in the ruling upon the evidence is not of sufficient importance to warrant a reversal of the judgment; and the same maybe said as to the ruling of the court on the motion in arrest of judgment.

Believing that no material error was committed on the trial below, the judgment must be affirmed.

Affirmed.