State v. Sehon

O’NIELL, J. The appellants, W. T. Sehon, Gordon Sehon, and Ernest Sehon, were indicted and tried for the crime of manslaughter; they were convicted and sentenced to imprisonment in the penitentiary for seven, five, and three years, respectively. [1] They excepted to the refusal of the trial judge to give the following special charge to the jury, viz.: “If, while two men are fighting, two others engage in a fight on the same spot and one of them kills the other, the two first are not responsible for the killing, provided they in no way aided or abetted the killing.” In his statement per curiam, the trial judge gave the following reason for refusing to give the requested charge, viz.: “Because there was no evidence nor contention of counsel in argument before the jury to warrant such a charge. There was but one fight. [85] The old man, 75 years of age, went to the place unarmed, trying to prevent the fight, and he was not at fault at any time, not even when he was killed.” For the purpose of correcting an error in the foregoing statement, the following admission was signed hy the district attorney and the attorneys for the defendants, and filed in the record, viz.: “It is admitted that counsel for the defendants did contend before the jury in argument that the fight in which John Hodge was killed was separate from the one between W. T. Sehon and Sam Hodge, which had been prearranged between them.” In other words, it is admitted that there were two fights, one of which had been prearranged between the defendant W. T. Sehon and a man named Sam Hodge. The other was “the fight in which John Hodge was killed.” And from the admission of the district attorney that the defendants’ counsel argued to the jury that these two were separate fights, it is assumed that there was some evidence to justify the argument There might not have been error in the refusal to give the requested charge, except for certain instructions given by the judge In his general charge, bearing directly upon the issue presented in the statement of facts signed by the district attorney. For example, the judge gave the following requested charge: “Since manslaughter is committed in the heat •of passion, on sudden provocation, and a conspiracy is a combination of two or more persons to do an unlawful act, there can be no conspiracy in manslaughter.” To which he added. “The above special charge is true in a general sense, but I charge you that a conspiracy can be formed by two or more persons to enter into a fight with another person or persons, and that the crime of manslaughter may be committed in the execution of the conspiracy or by previous agreement or understanding to enter into the fight.” This charge was based upon the assumption that the fight in which John Hodge was killed was “the one between W. T. Sehon and Sam Hodge which had been prearranged between them.” And the defendants were entitled to have the jury instructed on the other hypothesis; that is, if they should find that the fight which had been prearranged between W. T. Sehon and Sam Hodge had nothing to do with “the fight in which John Hodge was killed.” Another expression in the general charge which, in our opinion, made it very important for the judge to give also the requested charge, was this: “An unqualified plea of self-defense admits the killing. A plea of self-defense means: ‘Yes, I did the killing, but I did it in self-defense.’ A plea of self-defense may be restricted so as to apply to only one or more of the defendants when there are several on trial, or the plea may be qualified so as to admit the blow struck or shot fired, but deny that it was the cause of the death.” Self-defense is not a special plea. When several persons are prosecuted for the commission of a homicide on the theory of the state that they were aiding one another or carrying out a conspiracy, any one of them may rely upon the plea of self-defense without admitting that he did the killing or that he aided therein or was a party to a conspiracy. He may contend that the one who did the killing acted in self-defense and, at the same time, contend that, in any event, he did not aid in it and was not a conspirator therein. There might have been no harm in this portion of the general charge if the judge' had given the special charge requested, which the facts admitted by the district attorney rendered very pertinent and necessary. Another portion of the general charge which, in our opinion, made it very important to the defense for the judge to give the special charge requested was this: “When two men agree to fight, and do fight, and one of them kills the other in the fight, the slayer would be guilty of manslaughter even though he did not intend to kill, and this would be equally true as to others [who], knowing all the conditions, joined in the fight, [or were] [87] present aiding and abetting the slayer or aiding the one who shot or struck the fatal blow. “And when two men agree to fight, and do fight, according to agreement, and when others, knowing of the agreement to fight, are present, aiding and abetting by words or acts, some on one side and some on the other side of the combat, and one of the persons fighting or one of those present aiding and abetting therein, with knowledge of the agreement to fight, kills one of the persons fighting on the other side, or kills one of the persons aiding and abetting on the other side, he would be guilty of manslaughter, or [if] the person killed was not taking any part in the fight, a mere bystander, and the killing was the direct result of the fight and the use of deadly weapons in the fight, the killing would be manslaughter. “When two men agree to fight and one or more other persons enters into the agreement tacitly or expressly, with a common purpose to take part in the fight or to be present to aid and abet the one side or the other directly or indirectly, and the fight comes on, all who are present fighting or present aiding and abetting are guilty of violating the law, and responsible under the law for the deeds committed on their side of the fight, and this is equally true as to the deeds committed on the other side of the combat by those on that side. Under such circumstances, neither party can claim exemption from the killing on the ground of self-defense.” There are other portions of the general charge bearing directly upon the judge’s theory that there was but one fight between two factions or families. And he instructed the jury to hold all the combatants on either side responsible for what was done, by any one on their side of the combat. The defendants were entitled to have the jury' instructed as to what their verdict should be if they concluded that the fight between W. T. Sehon and Sam Hodge — and the participants in that fight — had nothing to do with the killing of John Hodge. The refusal to give the requested charge was prejudicial to the defendants who were engaged in the fight between W. T. Sehon and Sam Hodge if they were not in the difficulty in which John Hodge was killed. But, as it does not appear that any one of the defendants admitted that he killed John Hodge, and as the record does not disclose that any one of them was engaged in the fight or difficulty in which John Hodge was killed, we must set aside the verdict and. sentence against all of them. For the reasons assigned, the verdict and sentence are annulled and set aside, and the-case is remanded to the district court for a new trial.