People v. Flahave

Sharpstein, J.: Conceding that the last clause of the quotation which we treated in our former opinion as a copy of one of the instructions of the Court is not a true copy of the instruction as given by the Court, although literally copied from the bill of exceptions, the question arises whether the first clause, which is correctly copied from that instruction, is erroneous. The Penal Code which was in force at the time of the al [250] leged, commission of the homicide by the defendant, and which has ever since been in force, declares that homicide is justifiable “when committed in the lawful defense” of the person committing it, “when there is reasonable ground to apprehend a design to commit felony or to do some great bodily injury, and imminent danger of such design being accomplished.” (Penal Code, § 197, subd. 3.) The first clause of the instruction reads as follows: “To justify a person in killing another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his own life or to prevent his receiving great bodily harm, the killing of the deceased was absolutely necessary.” The variance between this and the language of the code is apparent. But if not material, it must be disregarded. This instruction is clearly based upon the theory that it was necessary for the defendant to establish on his trial not only that there was reasonable ground to apprehend a design on the part of the deceased to kill the defendant, or to do him some great bodily injury, and imminent danger of such design being accomplished, but also that it was absolutely necessary to kill the deceased in-order to prevent the accomplishment of that design. The law specifies two concurrent conditions upon which homicide is justifiable, in self-defense. To those two the Court added a third. To constitute a justification the law required that the defendant, before committing the homicide, must determine, at his peril, two things: 1. That the deceased intended to kill him, the defendant, or to do him some great bodily injury; 2. That there was imminent danger of such design being accomplished. As given by the Court, the law required that the defendant must, in addition to the two things above specified, determine at his peril, that it was absolutely necessary to kill the deceased in order to save his (defendant’s) life or to prevent his receiving great bodily harm. The design of the deceased to kill the defendant, or to do him some great bodily injury, might have been apparent, and there might have been imminent danger of that design being accomplished, and yet the defendant might have saved his [251] own life and prevented any great bodily injury being inflicted upon himself by some other means than homicide. But the law did not require him, under such circumstances, to exhaust all other, or even to resort to any other means, before taking life. Therefore, it was error to instruct the jury that the defendant was not justified in killing the deceased, unless it was absolutely necessary to kill him in order to prevent him from killing the defendant, or doing him some great hodily harm. The circumstance of the existence or non-existence of an apparent absolute necessity of taking the life of the deceased in order to prevent him from taking the life of the defendant or doing him some great bodily injury, would be entitled to great weight in determining whether there was reasonable ground to apprehend such a design and imminent danger of its being accomplished. In determining whether the circumstances were sufficient to excite the fears of a reasonable person, and whether the defendant acted under the influence of those fears alone, the apparent necessity of taking life, or the absence of such apparent necessity, in order to save his own or to prevent his receiving great bodily injury, should have been carefully considered by the jury. But it was not necessary for the jury to find that the killing of the deceased was absolutely necessary to prevent him from killing the defendant or doing him some great bodily injury, in order to acquit the defendant of the charge of murder. Another instruction to which our attention was particularly directed on the argument reads as follows: “ The killing being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified or excused in committing the homicide. In this case the defendant introduced no evidence on his own behalf, but seems to have relied upon the insufficiency of that of the prosecution, to justify his convictión. The variance complained of between the instruction and § 1105, Penal Code, consists of the substitution in the charge of the words “ sufficiently manifests” for the words “ tends to show” in the code. [252] We do not think that the variance between the language of the instruction and the words employed in the section of the Penal Code of sufficient importance to call for a reversal of the judgment on that ground. But for the error first discussed in this opinion, the judgment and the order denying the motion of the defendant for a new trial must be reversed. Judgment and order reversed. Thornton, J., Myrick, J., and McKee, J., concurred. Ross, J., concurring: I concur in the judgment.