Foley v. State

72 P. 627, 11 Wyo. 464, 1903 Wyo. LEXIS 20

• Court: Wyoming Supreme Court
• Decided: June 3, 1903
• Status: Published

Opinion

Corn, Chief Justice.

The plaintiff in error was tried by a jury and found guilty of murder in the second degree. The bill of exceptions does not contain all the evidence, but it appears that what the defense relied upon was that the defendant shot the deceased in necessary self-defense.

Among the errors assigned is the giving to the jury, over the objection of the defendant, the following instruction upon request of the prosecution:

“Under certain defined circumstances, the laws of God and man give the right to take life in self-defense.

When a person in the lawful pursuit of his business, and without bláme, is violently assaulted by one who manifestly and maliciously intends and endeavors to kill him, the person so assaulted without retreating, although it be in his power to do so without increasing his danger, may kill his assailant to save his own life,' or prevent enormous bodily harm.

Homicide is justifiable on the ground of self-defense where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger.

The claim of self-defense, implies, presupposes, that O’Connor was intentionally killed. It is plain that when one kills another in self-defense he intends to do it, but it would not be unlawful killing although intentionally done.

Before you can acquit the prisoner on the ground of self-defense you must be satisfied that several, facts, which I shall now enumerate and explain, were by the evidence proved.

1. You must be satisfied that O’Connor was the assailant; that he began the assault.

2. ‘ You must be satisfied that O’Connor manifestly and maliciously intended and endeavored to kill or do great bodily harm to the defendant. Did O’Connor intend to do that, and in doing it was he actuated by malice? Or was he simply defending himself? Trying to save his own life? These are the questions for your determination under this head.

3. You must be satisfied that the prisoner, in good faith, believed and had reasonable grounds for believing that he was in danger of losing his life or sustaining great bodily harm from the violence of O’Connor. The bare belief, however, was not sufficient; there must have been reasonable grounds for believing that there was such danger, and he must have acted under the influence of such belief alone. In determining whether there were such reasonable grounds for the belief, you are not to conceive of some ideal reasonable person, but you should, as- nearly as possible, put yourself in his position, with his physical and mental equipment, surrounded with the circumstances with which he was surrounded, and exposed to the influences to which he was exposed. Does the evidence show that he had such reasonable grounds for believing that O'Connor was about to take his life, or to do great bodily harm to him, just before and at the time said O’Connor was killed?

4. You must be satisfied that the danger of losing his life or of sustaining great bodily harm at the hands of O’Connor was, at the time, actually or apparently imminent and irremediable. The law regards human life as the most sacred of human interests committed to its protection, and there can be no successful interposition of self-defense unless the necessity for taking O’Connor’s life wás at least apparently pressing and urgent at the time, unless, in a word, the taking of O’Connor’s life was the reasonable resort of the prisoner to save his own life or to avert great bodily harm. It is true that he had a right to act upon appearances, upon such appearances as would induce, a reasonable person in his position to believe that there was such immediate danger, and if the appearances turned out to be fallacious he was not to be blamed.

5. You must be satisfied that the killing of O’Connor was the only means of escape from the danger mentioned. If O’Connor’s life was taken after the appearance of danger disappeared, the claim of self-defense must not be allowed Although O’Connor may have been the aggressor, although he may have begun the assault, yet if you find that the danger of death or of great bodily harm from O’Con-nor could have been escaped from, could have been avoided, without taking his life, the prisoner cannot shelter himself behind the laws of self-defense. It is no defense in such case.

6. You must be satisfied that the defendant was without blame, without fault. The law of self-defense does not imply the right of attack, nor does it permit a man to kill another for revenge. Reason suggests and the law makes a distinction between the case of a person driven to necessity of taking life in self-defense in a conflict provoked and incited by his own wrong, and that of one reduced to such necessity in a conflict that was neither sought or provoked by him. In a case when the party assaulted is in the wrong, he must, before taking the life of his assailant to save his own life or to avoid bodily injury, flee as far as he conveniently can, either by reason of some wall, ditch or other impediment, or as far as the fierceness of the assault will permit, for it may be so fierce as not to allow him to yield a step without manifest danger to his life or great bodily harm, and then, in his defense, he may kill his assailant instantly. But in a case where the assaulted party is not in the wrong, neither provoked nor incited the conflict, and was assaulted while in the pursuit of his lawful business, he' may, without retreating a step, kill his assailant, if necessary to protect his own life or to avoid grievous harm. In this case you are instructed that the defendant had a right to be in the saloon, and if while peaceably there the deceased provoked a quarrel and followed it in so violent a manner as to excite the fear of a reasonable man that he was in. danger of great bodily harm, and the fear of defendant being thus excited and acting solely from such fear, and believing from appearances that he was in imminent danger of great bodily harm, he shot and killed deceased, the verdict must be not guilty.”

We are unable to escape the conclusion that this instruction is fatally erroneous. It not only informs the jury that the burden of proof is upon the defendant to establish his defense, but it imposes a measure of proof which the law does not require of the defendant in any criminal prosecution. The opening statement is that, in order to acquit’the defendant upon the ground of self-defense, the jury must be “satisfied” that O’Connor was the assailant, and this requirement is repeated and emphasized as to each step in the proof of the prisoner’s defense. To “satisfy” the mind, we think the evidence must be such as to remove all reasonable doubt. The general definition of the word as given in Webster’s dictionary is, “to fill up the measure of a want of (a person or thing) and, more specifically, “to free from doubt, suspense, or uncertainty; to give assurance to; to set at rest the mind of; to convince.” But even if the language employed does not necessarily require proof beyond a reasonable doubt, it is quite evident that it does impose upon the defendant the necessity of establishing his defense by something more than a preponderance of the evidence. So that if it should occur that the jury believed that the defense was supported by the weight of the evidence, but yet they were not satisfied of any of the necessary facts, it would be their duty, under this instruction, to find against the defendant on that .issue. This is not the law, and we hardly see how the instruction could have failed to prejudice the defendant’s case. As before stated, we have not the complete evidence before us, but it appears there was sufficient to make it proper and necessary in the opinion of the court to instruct the jury on the subject. And, indeed, the record indicates that the sole reliance of the accused was that the killing was in self-defense.

Objection is also urged to the paragraph of the same instruction, which states that “the claim of self-defense implies, presupposes, that O’Connor was intentionally killed. It is plain that when one kills another in self-defense he intends to do it.” This statement is not supported by any presumption of law and is not true as a matter of fact. It is perfectly evident that one may kill another in self-defense, yet without any intention or expectation that his assailant shall be killed. A blow with the fist, or any slight weapon, struck in self-defense, may result fatally without any such intention or expectation upon the part of the one who strikes. It is not even true where a deadly weapon, such as a pistol, is used, though, in such a case, the evidence of an intention to kill is, of course, usually much stronger. The statement was clearly erroneous, though, if it was clear from the evidence that the killing was intentional, it might not be prejudicial to the defense,.or reversible error.

It is further objected that a paper alleged to contain the dying declarations of the deceased was improperly admitted in evidence. The statements were written down by one of the physicians in attendance, and the paper was signed and sworn to by him and the other physician and one Mrs. O’Connor. It was not read over to the deceased and was not signed by him. Under such circumstances, the writing is a mere memorandum. It may be used to refresh the memory of the witness, but is not itself evidence of the declarations of the deceased. To make it admissible it mttst have been read over to the deceased and signed or assented to by him. (Allison v. Com., 99 Pa. St., 33; Anderson v. State, 79 Ala., 6; State v. Elliott, 45 la., 486; State v. Wilson, 24 Kan., 189.) If, however, the statements contained in the paper were admissible as dying declarations, when presented to the jury by competent testimony, we are not prepared to say that the admission of the paper itself, though erroneous, was prejudicial to the defendant or reversible error. The two physicians were present as witnesses and testified that the writing contained, substantially, the dying declarations of the deceased. They were competent to testify to the declarations, refreshing their recollection by reference to the writing, and the error is thus rather technical and formal than substantial or material. But the same cannot be said as to a part of the declarations themselves contained in the writing. It contains, among others, the following statements: “Ed O’Con-nor says that on Monday afternoon, October 24th, that Mr. Foley had no provocation whatever for shooting him; he says that he made no assault upon Mr. Foley whatever;; he said he had a gun early in the evening, but George Beteau had taken it away from himand again: “This remark was made one and one-half weeks ago; Mr. Foley says to O’Connor that I don’t think you are a gamester; I will give you the first shot; he says that he and Foley had several quarrels within the last two weeks, particularly within the last half week, but still he did not consider himself and Foley enemies.” Dying declarations are obnoxious to the objections which, according to the general rule, exclude hearsay testimony; the witness is not sworn and there is no opportunity for cross-examination. They are hearsay testimony. But, in view of the fact that in many cases there are no eye witnesses to the murder except the slayer and the deceased, they are made an exception to the rule and admitted upon the ground of necessity. But the exception only extends to cases of homicide “where the death of the deceased is the subject of the charge and the circumstances of the death are the subject of the dying declarations.” (1 Greenl. Ev., 156.) If they relate to former distinct matters they do not come within the reason of the exception and are not admitted. (State v. Wood, 53 Vt., 564; Nelson v. State, 7 Humph., 542; Mose v. State, 35 Ala., 421; Walker v. State, 52 Ala., 192; Hackett v. People, 54 Barb., 374; Binns v. People, 46 Ind., 313; State v. Draper, 65 Mo., 335; State v. Van Sant, 80 Mo., 77.) In Hackett v. People, supra, one of the declarations was that the defendant had often threatened to kill the deceased. It was held to have been erroneously admitted and the judgment was reversed upon that ground.

In this case the dying declarations of deceased that he and defendant had had frequent quarrels, and that defendant had, in effect, challenged him to fight with pistols, some days before the transaction which resulted in the killing, were clearly inadmissible, and, as they strongly tended to show malice and a motive for the killing, we cannot very well see how the error could fail to prejudice the defendant’s case.

But it is urged that defendant waived this objection and cannot now insist upon it. The bill of exceptions shows that the defendant not only objected that the paper itself was wholly inadmissible, because not properly authenticated, but also made the specific objection that the previous relations of the defendant and the deceased could not be, proven by dying declarations. The court ruled that the paper be admitted, but afterwards, when it was about to be read to the jury, directed that the address and the jurat need not be read. But the defendant stated that, if any part was competent, all of it was, and requested that all of it be read' and it was accordingly done. The claim that this statement of defendant’s counsel waived the objection to particular declarations contained in the paper, asks of this court a ruling which is quite strict and technical and ought to be strictly and technically considered. In strictness, then, the paper was entirely inadmissible for all purposes without regard to its contents, and the defendant hazarded nothing in insisting that if any part was competent it should all go to the jury. And, as the court had already ruled that all the material parts should go in, if there was a waiver at all by the defendant, it could only apply to the formal and nonessential parts, such as the jurat, etc. But, taking a reasonable view of the matter, we think the objection to that part of the statement which had reference to the previous relations of the parties, upon the ground that dying declarations were not competent evidence of matters of that kind, was fairly presented to the court and that the circumstances do not indicate any purpose on the part of the defendant’s counsel to waive their exception.

W. A. Hocker was called by the prosecution to give the testimony, or a part of the testimony, of Frank Ross, a deceased witness, who had testified at a former trial of the case. He was asked if he could give the substance of the testimony of the deceased witness with reference to the shooting. Fie replied: “It is impossible for me to give the substance of the testimony. There is a part of it I remember, for the reason it was contradictory to the balance of the testimony. I did not tax my memory with it all.” He was then asked if he could state what the testimony was in regard to O’Connor raising the chair just prior to the shooting and replied that he could. And, be-mg asked to state it, said that Ross stated at the time that O’Connor did not raise the chair from the floor and that O’Connor was shot by Foley while the chair was not raised from the floor. This was objected to, and we are of the opinion that the objection should have been sustained.

The rule is that it is sufficient if the witness is able to state the substance of what was sworn on the former trial. But he- must state, in substance, the whole of what was said on the particular subject which he is called to prove. (1 Greenl. Ev., 165.) In this case the witness did not profess to remember, or to be able to state, the substance of what the deceased witness testified to in regard to the circumstances of the shooting, but he singled out an isolated statement to which he said his attention was particularly attracted by the fact that it did not agree with the testimony of other witnesses upon the same subject. The statement, standing alone, would seem to be highly prejudicial to the defense and the defendant was entitled to all that the deceased witness said upon the subject. The witness did not assume or undertake to state it all and he was, therefore, incompetent to testify upon the subject. The evidence did not purport to be the substance of all that the deceased witness testified to upon the subject, but only an isolated fragment, and it should have been excluded from the jury. (Summons v. State, 5 O. S., 325; Wolf v. Wyeth, 11 S. & R., 150; Gildersleeve v. Garaway, 10 Ala., 262; 1 Phil. Ev. (Cowen & Hill's Notes), 389.)

It is not necessary for us to pass upon the alleged errors in the selection of the jury. The subject has been considered by this court in the' recent case of State v. Bolln, 70 Pac. R., 1. (10 Wyo., 439.)

The judgment will be reversed and the cause remanded for a new trial. Reversed.

Knight, J., and Potter, J., concur.