Brabston v. State

SheltoN, J., Special Judge, delivered the opinion of the court. The court reverses this case on instructions given to the jury, on — 215 — instructions asked by defendant and refused by the court, and on rulings of the court as to admissibility of certain evidence. Tbe statutes in relation to homicide aid in reaching correct conclusions on the instructions of the trial court. The verdict was “ guilty of manslaitghter.” That is an acquittal of murder, and therefore acquits the accused of any deliberate design to effect the death of the deceased or of any person; that is, the verdict acquits the accused of malice. Section 2879, code 1880, which defines excusable homicide, cannot be applied. Section 2878, in its definition of justifiable homicide says, “ that the killing of a human being, by the act or procurement of another, shall be justifiable when committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony on him, or when committed in the lawful defense of such person, or any other human being, where there shall be reasonable grounds to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished.” In the law just quoted the points of justification are, defense by the accused against any attempt by another unlawfully to kill or commit a felony on him, and defense by the accused of another person where there shall be reasonable ground to apprehend a design to commit a felony on that other person, or reasonable ground to apprehend a design to do such other person great personal injury, and imminent danger of such design being accomplished. Sections 2880, 2881, 2885, 2887, and 2893 are the only sections defining manslaughter that can be supposed to apply to this case. Of these, sections 2880 and 2881 refer only to cases in which the killing of a person is by the act or procurement of another person, while that other person, the slayer, is perpetrating or attempting to perpetrate a felony, crime or misdemeanor. Section 2885 refers to cases where the killing is without malice, in the heat of passion, in a cruel and unusual manner, without authority of law, and not in necessary self-defense. -Section 2887 refers to killing in heat of passion, without malice, but in the unlawful use of a dangerous weapon, and not in necessary self-defense. Section 2893 declares that every killing without authority of law “ not provided for in this chapter — 216 — [on homicide] shall be manslaughter.” Section 2894, with section 3104, makes manslaughter a felony. There being no malice or deliberate design to effect the death of the deceased or any other person, as the jury by their verdict decided, an important question on the trial was, and will be on another trial, whether the evidence brings the killing within the definition of justifiable homicide, or leaves it out of that definition, controlled by the general provisions in reference to manslaughter. We give no opinion on that question. We only say that it was a question for the jury to decide, guided by the instructions of the court, and therefore it was very important that the jury should be correctly instructed by the court’s charges discriminating between the law of justifiable homicide and manslaughter. And this brings us to the consideration of the instructions pertinent thereto. But it is necessary to refer to some proof made or wanting in' the case, in order to show the application of certain instructions given or refused. Near the place where voting was in progress, James Lanier put his hand on the shoulder of deceased, who was a candidate for county supervisor, and said, “We will send you up Salt river in a boat,” or words of similar import, importing that he and those voting with him would defeat W. H. Brabston, whereupon Brabston pushed or knocked Lanier (who had a walking cane in his hand) down, and drew a pistol. Lanier rose, and Brabston fired at him, but a by-stander knocked the pistol up. That pistol-shot scattered the crowd, and produced a pistol conflict in which the accused, the deceased, and others participated. On the evidence it is controverted whether W. H. Brabston fired first at the accused, or the accused first at him; also whether the second fire of W. fi. Brabston was at the accused or at Lanier, and whether that fire was before or after the first fire of the accused. Whichever way these things were, they produced a duel between the two, with some participation by some of their respective partisans. The duel was kept up until both fell, the accused firing while retiring to a post, the deceased firing while following. At the post the conflict ended. No conspiracy, no premeditated co-operation, no premeditated purpose of conflict, was proved against either party. — 217 — Between manslaughter and justifiable homicide a correct verdict depended, not only on the evidence, but also on proper instructions by the court on the legal principles discriminating between the two. By the sixth instruction for the state the court said to the jury that if on the evidence they believed beyond reasonable doubt that defendant fired the- shot that killed W. H. Brabston, then, before they can acquit defendant, it must appear that he, defendant, was first attacked by deceased, or that he reasonably believed at the time that his life or limbs were in great danger of great harm at the hands of W. H. Brabston; or it must appear in' evidence that accused shot, not of malice or ill-will against deceased, but because it was necessary to save the life of Lanier feloniously attacked by W. H. Brabston, and that Lanier had given no provocation for such an attack, but was engaged in lawful business. Of that instruction only the last alternative (the defense of Lanier) has reference to the statutory discrimination applicable in this case between manslaughter and justifiable homicide, before quoted, and the instruction does not define what in law would constitute a felonious attack by W. H. Brabston, but puts his justification for his assailment of Lanier with a pistol on any provocation by Lanier, real or imagined, by W. H. Brabston, or rather on the provocation in this case, which was putting his hand on W. H. Brabston’s shoulder and saying, while the election was in progress, “ We are going to send you in a boat up Salt river.” The seventh and eighth instructions for the state are equally imperfect, unsatisfactory and undiscriminating. All three pass by the fact that W. H. Brabston commenced the mortal combat by the use of a pistol against Lanier, having a walking-cane but otherwise unarmed, and they assert justification of W. H. Brabston only because of Lanier’s said act and words. The defendant met these instructions by asking his twenty-fourth and twenty-fifth instructions. The twenty-fourth is : “ If the jury believe from the evidence that the deceased was making a deadly assault on Lanier, and that defendant had reasonable ground to apprehend that deceased designed to kill him, or do him great personal injury, and that there was imminent danger of such design being accomplished, — 218 — then the defendant had the right to kill the deceased in defense of Lanier; and, if they believe that he did so kill him in such defense, they should acquit him.” That is the language of the statutory definition of justifiable homicide (section 2878), except that the instruction after the word “designed” substitutes the words “to kill him” in lieu of the words in the section, “ to commit a felony;” but, if to kill Lanier with a pistol under the circumstances supposed in the instruction would have been murder or manslaughter and not justifiable homicide, the killing would have been a felony, for manslaughter is a felony ; therefore the statute and the instruction mean the same thing. Instruction 25 tells the jury that if they believe on the evidence certain facts assumed in the instruction, and which would have made W. H. Brabston guilty of murder or manslaughter if he had killed Lanier with a pistol, and further believe that apparently W. H. Brabston intended to kill Lanier or do him great bodily harm, then Lanier had the right to defend himself, and W. F. Brabston had the right to defend him against the deadly purpose and imminent danger. We are of opinion that the instructions for the prosecution on the question now under consideration were erroneous, but, if they were abstractly not erroneous, they should have been qualified by such instructions as said two asked by the defendant, and guided by correct instructions, the jury should have reached a conclusion between manslaughter and justifiable homicide, and their verdict made to accord with that conclusion. Another important question is raised by the ninth and tenth instructions for the state. The ninth develops it thus: “ If the jury believe from the evidence that the defendant voluntarily brought on a difficulty or shooting with deceased, and thereby caused other persons to take part in the unlawful affray in which deceased was killed, the defendant was guilty of murder, although he may not have fired the fatal shot:” The tenth adds: “ If the jury believe from the evidence that the deceased and Lanier were mutually engaged in an unlawful combat, and that the defendant, not being in real or apparent danger as to his life or person at the hands of either of the combatants, voluntarily took part in the combat with a deadly weapon, and believe that the defendant — 219 — thereby caused a deadly affray with deadly weapons between himself, the accused and others, in which affray the deceased was shot and killed, it is immaterial who fired the fatal shot, the defendant is in law responsible for the killing, and the jury, if they believe from evidence that such were facts in this case, should find the defendant guilty of murder or manslaughter.” Defendant met those instructions by asking the following, which was refused : “ No. 23. If the jury upon the evidence have a reasonable doubt as to whether the shot that killed the deceased was fired by defendant or some one else they should acquit.” We cannot concur in the trial court’s ruling on these instructions. We recognize that if two or more agree to kill another person or do him great bodily harm, and designedly and knowingly co-operate in an effort to accomplish that common purpose, and, in executing that purpose, one of them .kill him, all are principals in the homicide, and equally liable in law for it; but we do not hold the doctrine that if two men fight in a crowd, with or without deadly weapons, and some outsider, without concert with or knowledge of either of the two combatants, fire at and kill one of them, as his prejudice or prepossession may prompt, the survivor is responsible in law for the homicide. In such a duel neither party to it contemplates or expects such an interference by others, and most probably did not know of it before or at the time of the fight, and it never came within the contemplation or expectation of either as a result of his combat. In such cases the man who interferes takes the consequences of his -act, and he is guilty of a crime unless he can justify his act on lawful grounds applicable to himself. We disclaim the doctrine of Judge Green, in Beets v. State, Meigs, 106, and overrule the action of the circuit court on the instructions last referred to, not only because we think these are erroneous in law, but also because said Tennessee case has been since overruled by the supreme court of Tennessee, and we refer to the following cases: Manier v. State, 6 Baxt. 595; Tharpe v. State, 13 Lea, 138. And in further support of our conclusion, we cite the case of Commonwealth v. Campbell, 7 Allen, 541, and also the following cases in our own supreme court: Peden v. State, 61 Miss. — 220 — 267; Lusk v. State, 64 Ib. 845 ; 2 South. Rep. 256. And from Alabama, Frank v. State, 27 Ala. 37; Jordan v. State, 79 Ib. 9. The testimony offered by defendant to prove what he said at the house of Mrs. Goff was, Ave think, properly ruled out. As to the evidence offered by defendant to prove his whole statement at the pavilion immediately after the fight ended, which was ruled out by the court, if the matter sought to be proved was part of the same conversation stated by a witness for the state, defendant was entitled to bring out the whole statement by other Avitnesses, if necessary, or if as to that the witnesses for the defense differed from those of the state, he was entitled to the counter-testimony, in order that the jury might consider and weigh the testimony of both ; and he was entitled to this at the time it Avas offered, because the state introduced no-part of that statement until after defendant had closed his testimony in defense and rested. The evidence that defendant offered, relative to the pistol picked up near the place where the conflict ended, should have been admitted. That pistol, and the state’s evidénce relative to it, was not in the case before the jury until after the defendant had closed his proof and rested; and, when offered, defendant objected, but the court overruled him. He Avas then entitled to rebut these by proof. Reversed and remanded. HoN. Tih E, Coopee, one of the judges of the supreme court, being disqualified to sit in this case by reason of relationship by affinity to appellant, Mr. David Shelton, a member of the bar, was selected by agreement of counsel, under the constitution, to preside in place of Judge Cooper.