It may be thought by some — and the view may have been entertained by members of the jury — that no one should kill his father under any circumstances, not even in his necessary self-defense, but that he should waive his right to defend himself and be killed rather than to kill his father, when put to the unfortunate necessity of making the choice of being killed or of killing his father. This, however, is not the law, as the majority opinion reflects.
Appellant requested the court to give an instruction numbered 1, to the effect that ". . . the defendant, Carl Cook, had the right, as a matter of law, to defend himself from a dangerous assault made upon him, if any, by his father, to the same extent that he would have had against a person of no relation to him."
The majority defend the action of the court in refusing to give this instruction, not upon the ground that it is not the law, but upon the ground that it was covered by other instructions on the law of self-defense. It is true the court gave instructions, which are correct, upon the law of self-defense; but these are what might be called the "usual instructions" in such cases, instructions which, as the majority say are applicable to all cases. But those instructions took no account of the relationship of the parties, whereas instruction numbered 1, requested by appellant, did take that relationship into account, and as none of the instructions given dealt with the effect of this relationship, it was, in my opinion, error to refuse to declare the law specifically upon this subject.
Here the undisputed evidence is to the effect that deceased and his wife, the mother of appellant, had separated, and appellant had given his mother shelter on a portion of deceased's farm which appellant had rented. There appears to be no question but that deceased had determined to drive appellant from the farm, and, as a means to that end, went to the land, where appellant and *Page 1139 his hired man were working, armed with a Winchester rifle and a revolver. Appellant sought refuge behind a small tree, which, unfortunately, was not large enough to afford complete protection. Deceased was known to be an expert rifle shot, and commenced shooting his rifle at appellant, whose body was not entirely protected. The testimony is undisputed to the effect that it was only after appellant had been shot in the hip, the portion of his body exposed to fire, that he picked up his gun, loaded with squirrel shot, and fired what proved to be a fatal shot.
Under these circumstances, I think it was error to refuse the specific charge that appellant was not deprived of his right of self-defense by the fact that his assailant was his father. The revulsion which every one must feel where a man kills his father, fully shared by me, is such that I hesitate to dissent in this case; but it is the very consciousness of this revulsion which constrains me to dissent, if we are to try cases according to law and not according to sentiment and prejudice. If it be the law — and the majority make that concession — that a man is not deprived of the right of self-defense because his assailant is his father, appellant was entitled to have the jury so instructed.
I, therefore, respectfully dissent from the holding that there was no error in refusing to give instruction numbered 1.