People v. Harris

GAROUTTE, J.

Defendants have been convicted of manslaughter, and appeal from the judgment and order denying their motion for a new trial. It is insisted that the evidence shows a case of justifiable homicide. The facts, briefly stated, are as follows:

The deceased, by a wire fence, closed a road extending across his premises. Two of his neighbors, these defendants, claimed the right to travel upon this road. Ill-feeling arose, and deceased informed them that if they attempted to pass over the road he would kill them. Some days thereafter the defendants in a wagon, armed with shotgun and rifle, a third man driving the horses, started to travel over the forbidden road. They cut the wires of the fence, passed on, and as they approached the house of the deceased he left his plow standing in the field, went to the house, and reappeared with his rifle in his hands. At this time defendants were about two hundred feet distant. They continued upon their way, one or both of them upon the ground by the side of the wagon, each with a gun in his hand; the deceased started from the house, angling toward a large tree which stood some distance in front of defendants and near the road. There is evidence that a.t this point of time defendants ordered deceased to stop and to drop his rifle. There is also evidence that deceased, at about the same time, ordered defendants to turn and retrace their steps. As deceased was about to pass from the view of defendants behind the tree, and some nineteen feet distant therefrom, they fired at him, and he fell upon the ground dead. This point was sixty-five feet distant from the wagon. The position in which deceased held his rifle at the time he -was killed is not clearly disclosed. Tet from the evidence the jury would have been justified in saying that it was not pointed toward defendants.

From the foregoing evidence the jury had the right to declare that this affray arose between three desperate, determined men; that these defendants began their journey with the intention to travel over the premises of the deceased at all hazards, and that deceased, when he saw them, intended to stop them at all hazards. Upon such a state of facts any question, legal or equitable, as to the respective rights of these parties in the road, becomes wholly immaterial. In this regard the case is similar to People v. Conkling, 111 Cal. 621, where the court said: “If it be assumed that at the time of the killing deceased was at the opening in the fence for the purpose of preventing the defendant at all hazards from going through, and if it also be assumed that defendant was there intending to pass through at all hazards, still the question of self-defense is presented to the jury, regardless of the respective rights of the parties to the road. Under such circumstances, the man who began the deadly affray —that is, who by some overt act caused the other as a reasonable man to believe that he was in danger of loss of life or limb —placed himself .without the protection of the law and must take the consequences, whether those consequences be his death upon the ground, or the penalty imposed after trial by judge and jury.”

Looking at this picture formed from the evidence, we deem the showing made ample to support the verdict. We see but little difference, viewed with the eyes of the law, in the relative positions of these three persons at the moment prior to the shooting. While, if the positions had been reversed and deceased at that moment had fired and killed the defendants—and such killing would have been manslaughter or worse—still it does not follow that defendants may not be guilty. Certainly, if the purpose of deceased was to place himself in the road in front of defendants and thereby try and stop them from proceeding further on their way, and his rifle was lying upon his arm, not pointed in the direction of the defendants, then they had no right to shoot when they did; for there was no overt act by deceased at that time which justified them in taking his life. Under the evidence, the jury were authorized in declaring the conditions to be such as here suggested. The theory of defendants probably was that deceased was about to use the tree for a barricade, and, safely esconced behind it, shoot them down. Yet the deceased could well have used his house for that purpose and never have ventured into the open at all. These things were all matters for the jury to weigh and gauge and reason upon, and matters upon which their conclusion cannot be set aside by this court. As already suggested, from the evidence the jury had a right to say that these three men were within a few hundred feet of each other, in plain view, guns in their hands, fingers upon the trigger, enmity and deadly determination in their hearts. The jury had the right to say that at this time they all stood upon common ground, and that the light of the law shone upon all alike. An overt act at this critical period was bound to cause a tragedy; and the jury were justified in saying under the law and the facts that the defendants should not have fired the fatal shots.

We have examined the instructions given and refused, and find nothing demanding a reversal of the judgment. There is no error in the record.

For the foregoing reasons the judgment and order are affirmed.

Van Dyke, J., Harrison, J., McFarland, J., Henshaw, J., and Temple, J., concurred.