Hurd v. People

• Citation: 25 Mich. 405
• Court: Supreme Court of Michigan
• Decision Date: 08 October 1872
• Parties: Charles Hurd v. The People

25 Mich. 405

Charles Hurd v. The People

Supreme Court of Michigan

October 8, 1872

Heard July 12, 1872

Error to Ionia Circuit.

Judgment reversed, and a new trial awarded.

Wells & Morse and John C. Blanchard, for the plaintiff in error.

Dwight May, Attorney-general for the people.

OPINION

Christiancy Ch. J.

The plaintiff in error (defendant below), was tried at the Ionia Circuit, upon an information charging him with having murdered Chauncey M. Hubbard. The jury by their verdict found him guilty of murder in the second degree, upon which judgment was rendered against him, and he now brings the case to this court, upon writ of error and bill of exceptions.

For a full understanding of the questions raised by the exceptions, it is proper to state the nature of the whole transaction, including the material circumstances which led to, accompanied, and followed the homicide.

It was admitted, and not disputed on the trial, that Hubbard was shot by the prisoner, and that he died from the effects of the wounds caused thereby. The only questions, therefore, which could arise were, whether the circumstances under which the shooting took place, were such as to render the shooting justifiable or excusable, and if not, then whether they were such as would negative malice aforethought, and reduce the offense to manslaughter.

Hubbard was much the larger, and apparently the stronger man of the two. Hurd had been seriously injured some five or six years before, by a log rolling over him, and seems not to have fully recovered, but was in consequence, easily excited, his nervous system somewhat shattered and unstrung, and not fully under his control. They had always been on good terms with each other, with no evidence of ill-feeling from Hurd, though there was some slight evidence of previous ill-feeling on the part of Hubbard.

The transaction occurred on the evening of the 8th of August, 1871, in and near the house of Hurd. Hubbard had for some time been at work building a barn for Hurd, and having been absent that day, returned about supper time, while Hurd and his family and some workmen were at supper, and without coming to supper, went to work at the barn, a few rods from the house.

At the supper table there were present, besides Hurd himself, several hired men, some working for him, and some upon the barn for Hubbard, and several women, and a child. A slight difficulty occurred at the supper table, and some words passed between Hurd and a young man, or boy, by the name of Mapes, who was at work for him, in reference to helping the boy to a piece of pie; the boy, or some other person, as it would seem, seeking to help himself, and not succeeding very well. Hurd proceeded to take the pie and help him, at which some remark was made by Mapes, to the effect that, "perhaps he" (or the other person helped, for it is not certain) "would prefer to help himself," to which Hurd replied, in substance, "You are in my house, and at my table, and if you live to be older you will know more than you do now." At this the boy Mapes took offense, left the table, and went out to the barn (a few rods off), and reported to Hubbard what had taken place, Hurd and the other workmen, almost at the same time, being through supper, going out also. Immediately after this, Hurd and Hubbard are seen coming from the road toward the house, apparently in earnest conversation, the first words heard being from Hubbard, saying, "The boy has no friends here to take care of him" (or to take up for him); Jerome Evans is present (who was at the supper table, and saw what occurred there), and Hurd turns to him and says, "Jerome, did I abuse the boy?" He repeats the question, but Evans makes no answer. Hubbard then steps up to Hurd, as it would seem, in an excited manner, and Hurd says, "Do you think I am afraid of you, Mr. Hubbard?" to which one witness (Dow) says Hubbard replied, saying, "I do not want you to be afraid of me," and the other, Evans (for these were the only two who saw the transaction at this stage), says, Hubbard, then, with his fists doubled (though Dow does not mention the fists), got him by the lapels of the coat, and shook him six or seven times (as he himself afterward admits to several witnesses) severely, jerking, or throwing him down. Evans then steps up and says, "Don't; I wouldn't have any fight, Mr. Hubbard. Oh, don't I wouldn't." To this, Hubbard, acting, as Evans says, as if he was endeavoring to pick up a stick or a stone (though Dow does not notice this), rises up and comes towards Evans, saying, "Get right away, Jack, or I will go through you like a yoke of oxen." Evans steps back a few paces; Hubbard comes toward him. While this is going on, Hurd starts hurriedly for the house. Hubbard follows him up in an angry manner, and says to Hurd, as the latter is entering the house, "Come back, Hurd;" to which Hurd replied, "No, you don't get me out there to shake me again;" and going into the house, locks the doors. He asks his wife where his pistol is, and goes in search of it, but not at once finding it, he takes his Spencer rifle in his hand. Dow comes to the door to come in. Hurd, supposing it to be Hubbard, refuses to let him in; but, being told it is Dow, lets him in, and locks the door again. Dow goes to his supper, and Hurd, presently finding his pistol, loads it. He then goes out having his pistol in his hand, leaving in the house his wife, two young ladies (his step-daughters), Mrs. Frear and her child, and Dow, who was eating his supper. Hurd goes out toward the barn, and calls to Hubbard, saying in substance, "Mr. Hubbard, if you are not satisfied, or if you think I abused the boy, come in and ask the women folks; come and ask Mrs. Hurd." Hubbard, who is engaged in ripping a board with his saw, drops his saw, and starts rapidly towards Hurd (some saying that he ran, others that he walked very fast). Using his own language, as given by himself afterward, he "went for him," "meaning," as he several times reiterated after he was shot, and expected to die, "to frighten him, or to scare him." Hurd retreats rapidly to the house, saying to him, "Come and ask Mrs. Hurd; ask Mrs. Hurd." Hubbard is close upon him as Hurd enters the house, and coming on in a threatening manner directly towards him. As Hubbard gets near, or at the threshold, Hurd, looking back, tells him to stop, but he still advances; Hurd still telling him to stop, hurries through a part of the room where the family are (and where Dow was at his supper), into the door of the bedroom opening from this room, the door of which had no fastening, and turning around, with one hand on the door, fires his pistol at Hubbard, then from three to six feet from him and still advancing upon him. This shot wounds him in the breast and penetrates his lungs, but he does not stop. Hurd retreats a little, and Hubbard advances, and reaches for the pistol, but receives a second shot in the bowels. He then puts his hand to his breast, saying: "You have hurt me, Charlie;" and turns to go out the front door, but, this being locked, he goes out at the back door, at which he had followed Hurd in; goes out into the road, and up toward a neighbor's, Mr. Wheeler's; but, before getting there, is compelled to stop, and lie down.

As soon as Hubbard leaves, Hurd comes out, and sends at once for the doctor, saying he had shot Hubbard. He exhibits the greatest distress and sorrow, weeping and shedding tears; goes to Mr. Alderman, tells him what has happened, giving him his pistol. He hurries to where Hubbard was lying, wants to take him back to his own house and take care of him, but Wheeler's being nearer, or Hubbard preferring to go there, Hurd goes there gets a settee, and assists in taking him there. While there, with the physicians and neighbors around him, and under the belief that he will not recover, he at several times states the main facts of the occurrence, fully admitting in all his statements, the assault he made upon Hurd, and the cause of it as above stated, and fully admitting in all those statements, that at the time he followed Hurd into the house, he went fast, or, in other words, that "he went for him," and in a threatening manner, with the intention of frightening or scaring him, but, to some of the witnesses as they testify, he said he did not know whether Hurd told him to stop or not; to others as they testify, admitting that Hurd did order him to stop, and that after the first shot, he was still "going for him" to get the pistol from him.

The next day, (the 9th,) when Hurd came in, he called him and said to him, "Charlie, we have always been friends." Hurd said "Yes;" and they asked each other to forgive. Hubbard died on the 10th.

I have said that Hurd, when Hubbard was following him up into the house, ordered him to stop, when at, or near, the threshold and after he got in. I have stated this because the testimony is so absolutely overwhelming to this point, that, if this distinct question had been left to the jury, and found in the negative, it would have been the proper, if not imperative, duty of the court, promptly to have set aside the verdict; the People having called but two witnesses to what took place in the house; Dow, who was the nephew of Hubbard, and who saw the assault made by Hubbard outdoors as well as in the house, and who swears positively to Hurd's telling Hubbard to stop; and Mrs. Frear, who only saw what took place in the house, and who did not, or says she did not, hear this, though she admits that, from the way Hubbard came in, she was frightened, expected a fight, that her child was frightened, and that she was much engaged in taking care of it, and trying to get out; while all the other women in the house (three of them), as well as...