dissenting:
I do not concur in the foregoing opinion. The testimony of the- plaintiff in error was corroborated in its essential particulars by four other witnesses who testified in his behalf and by one of the witnesses for the People. The only material difference between the testimony of the plaintiff in error and that of four of the witnesses for the People is whether he struck the deceased more than once or kicked or stamped him after he struck him with the wagon stake, and in those particulars the testimony of the plaintiff in error is supported by the greater number of witnesses, and, so far as can be judged from the record, they are of equal credibility and were nearer and had a better opportunity of witnessing the occurrence than those who testified differently. From the testimony of the physician who treated the deceased the fractures of his head might have been caused by one blow, and it appears that in falling he struck his head against the stakes on the rear of the dray. The bruises on his body were not considered of any importance. What the plaintiff in error said under the excitement of the moment as he left the dray should not be taken, under the circumstances, as showing his intent.
Plaintiff in error had had no previous trouble with the deceased, had no ill-feeling toward him,' and up to the time of the encounter they had been friends. The question is whether or not, under all the circumstances as shown by the evidence, plaintiff in error is guilty of the crime of murder, as claimed by counsel for the People. There is nothing in the evidence to show express malice on the part of the plaintiff in error, and the question narrows to whether malice can be implied under the circumstances so as to make the homicide murder. Plaintiff in error was peacefully pursuing his way to his home. He had the lawful right to receive the beer at the railroad station, and it was his property and lawfully in his possession. (City of Jacksonville v. Chicago and Alton Railroad Co. 274 Ill. 152; Town of Cortland v. Larson, 273 id. 602, and cases cited.) He had violated no law, and was not engaged, at the time, in the violation of any law or ordinance of the village so far as shown or claimed, and the deceased had no warrant for his arrest or any reason for arresting him or interfering with him in any way. The only theory on which malice can be implied is that the deceased was a police officer and was resisted and killed by the plaintiff in error while in the performance of his lawful duties. Where an officer has authority to arrest and is resisted and killed in the proper exercise of such authority the homicide is murder, but where the arrest is illegal the offense is reduced to manslaughter. (Rafferty v. People, 69 Ill. 111; Wharton on Crim. Law,— nth ed.—secs. 849, 850.) Whether homicide in any case is murder, manslaughter or justifiable homicide depends on the facts and circumstances of such case. In the case at bar. Hill not only persisted in climbing on the dray after being warned to keep off, but it is clear from the evidence that he attempted to accomplish whatever purpose he had in mind by the use of the deadly weapons, the billy and the revolver, with which he was armed. If he had any reason for arresting the plaintiff in error or exercising his authority as an officer he did not state what it was and none appears from the évidence nór is any satisfactory reason given by counsel for the People. It appears from the evidence that the plaintiff in error was unarmed and had made no preparation for any encounter. The wagon stake he used was picked up by chance and on the impulse of the moment. The whole affair from the time Hill started to climb on the dray until he was struck by the plaintiff in error took .place in the space of a few "seconds, and these circumstances must be taken into consideration on the question of intent and whether malice was shown on the part of the plaintiff in error, to -make the homicide murder.
The theory of counsel for the People that Hill climbed on the dray merely to look at the case of beer and that he was struck by plaintiff in error while stooping over it and drew his revolver while plaintiff in error was in the act of striking him with the stake is manifestly unsound and the evidence in support of that theory is unreasonable. He could not have looked up and have drawn his revolver from his holster while the wagon stake was descending on his head. It would seem that he reached for his revolver and started to draw it from its holster before the plaintiff in error struck him with the wagon stake. Furthermore, if his purpose had been merely to examine the case of beer he should have called upon the plaintiff in error to stop the dray, and he would have been in a better position to examine it while standing on the ground. It was unnecessary for him to climb on a fast moving dray, brandishing his club and drawing his revolver. It is conceded in the opinion that in so doing he was a trespasser, but he was something more than a mere trespasser. While it is true that the plaintiff in error had no right to kill him to prevent a trespass, in the cases cited the circumstances were widely different from those in the case at bar. In Davison v. People the killing was done with a revolver, with which the accused had armed himself previous to the encounter. In Roberts v. People the accused used a knife. In People v. Hubert the conviction was for manslaughter. In none of these cases was a trespass clearly shown, much less admitted. In the case at bar there was not only a trespass or an unlawful and uncalled for interference with the plaintiff in error by the person killed, but also an assault with deadly weapons. It is stated in the opinion that “there was no evidence tending in any degree to prove that when Hill got on the wagon he intended any personal violence to the defendant but only intended to examine the case of beer.” It is difficult to imagine what stronger evidence there could be than the actions of the deceased, who, after being warned to keep off the dray, persisted in forcing his way thereon, with a billy in one hand and a revolver in the other and threatening to shoot an unarmed man who was peaceably attending to his own business. If such actions are. not sufficient to excite the fears of a reasonable person and raise a well founded apprehension of grave bodily harm then there never could be a case where self-defense could be proved.
Instruction No. 3 might be proper in a case where the evidence showed that the homicide was deliberate and intentional and where the accused had deliberately taken human life. But in this case it was improper and misleading, as the jury could infer from the instruction that the plaintiff in error deliberately struck the deceased with the intention and purpose of killing him after deliberately weighing the consequences of such act, and would not be justified in so doing unless it appeared from the evidence that the deceased had committed some criminal act by which he had forfeited his right to live. It was not necessary that the depeased should have gone so far as to forfeit his right to live in order to justify the resistance and striking by the plaintiff in error under the circumstances shown by the evidence in this case.
The objection to most of the instructions given on behalf of the People was that they were improper as applied to the facts shown in evidence, and I think the objections were well taken.
Counsel for the People were permitted to ask witnesses where the plaintiff in error got the beer, how much he had shipped to him, etc. This was improper. It was not claimed that plaintiff in error was violating any law or that he had no right to get the beer or have it in his possession. Such evidence did not tend to prove any issue in the case, and the only object of such evidence would be to give the impression that he was engaged in unlawfully receiving or handling intoxicating liquor and prejudice the jury against him.
The statement by one of the attorneys for the People that it was expected a witness would be produced who would testify that plaintiff in error had stated before the difficulty that he intended to kill Hill was prejudicial and should not have been made. At the time it was made the case was being tried. Counsel for the People knew, or were supposed to know at that time, what they could prove and the names of the witnesses by whom the proof would be made. Moreover, plaintiff in error was entitled to know, before the trial, who the witnesses for the prosecution were. Plaintiff in error and his counsel had not been notified that any such witness would testify and no such witness was produced on the trial. There was no excuse for such a statement, and I cannot think that counsel for the People, with his knowledge of criminal law, made the statement in good faith. As stated by this court in People v. McCombie, 274 Ill. 600, the prosecuting attorney goes beyond his duty when he seeks to secure a verdict by known unfair arguments.
I do not think that under the evidence- the plaintiff in error was guilty of murder, and the judgment should have been reversed because of prejudicial error.