Myres v. United States
| Decision Date | 04 April 1919 |
| Docket Number | 3189. |
| Citation | 256 F. 779 |
| Parties | MYRES v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Rehearing Denied June 25, 1919.
John T Hill, of El Paso, Tex., for plaintiff in error.
R. E Crawford and W. H. Fryer, Asst. U.S. Attys., both of El Paso Tex.
Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.
The plaintiff in error was convicted in the District Court of the crime of murder in the first degree, and sentenced to imprisonment for life, the verdict of the jury excluding capital punishment. The judgment of conviction is assailed upon six grounds, which will be passed upon in order.
1. The plaintiff in error complains that the issue of self-defense was not submitted to the jury in the general charge of the court, and because the court refused to defendant an instruction presenting that issue. The record shows that the issue was not presented in either way to the jury. The question is whether there was evidence to support it. It is conceded that the undisputed facts show that the defendant was in no real danger of life or great bodily harm from deceased when he killed him. The contention is that there was evidence of apparent danger from defendant's viewpoint, which required a submission of the issue of self-defense to the jury; i.e., that the defendant had reasonable grounds for believing that the deceased was about to draw a pistol from his pocket and shoot him.
There is evidence that the deceased had, shortly before he was killed, and on the same day, threatened to kill the defendant before sundown. Both were noncommissioned officers in the same company, stationed at Ft. Bliss, Tex. The defendant had been on a spree during the Christmas holidays, from which he was recovering on the day of the killing. He had had a dispute on the morning of that day with deceased, who refused to permit him to have a saw sharpened, and it was after this that the alleged threats were made by the deceased. The killing occurred about 12:30 p.m. in the company street. About noon the defendant went to the deceased's tent and inquired for him. Not finding him there, he returned to his own tent, loaded his pistol, and went out of his tent, into the company street. The deceased had been to the company commander's house, and was returning along the company street. He passed another sergeant, named Hixon, in the company street, and, after passing him, turned and accosted him, and began a conversation with him, while both were standing in the company street. The defendant, after leaving deceased's tent, discovered deceased in the street, talking with Hixon, and, approaching him, shot him first in the right arm, and then three times in the body; the deceased sinking to the ground after the first or second shot. The defendant, after the fourth shot, threw his pistol on the ground, and then picked it up and pointed it at deceased, but it failed to go off. After the deceased was shot he only said: 'You've got me.' The defendant said nothing before or immediately after the shooting.
The deceased was unarmed; his pistol being in his tent at the time he was killed. During the conversation with Hixon he stood with his right hand in his pocket, but, according to the undisputed evidence, made no effort to withdraw it, and did nothing that could be construed as a hostile demonstration of any kind, and was unaware of the presence of the defendant until the first shot was fired by defendant. The defendant did not testify in his own behalf, and there is no dispute about the immediate facts of the occurrence, and they are as stated. The deceased had a bad reputation for peace and quietness. Unless we are prepared to say that a man who has recently threatened another's life can be justifiably killed by that other when he is standing unarmed and inoffensive, engaged in peaceful conversation with a third person, merely because his hand is in his pocket, where it remains till he is shot, we cannot say that there was any evidence to support the issue of self-defense in this case, for this is what the undisputed evidence in the record discloses. The District Judge rightly refused to submit that issue to the jury.
2, 3. The plaintiff in error contends that a verdict of murder with malice aforethought was improper, in view of defendant's mental condition at the time of the killing, due to previous intoxication, and that the defendant should either have been acquitted by reason of insanity, or convicted of a lower degree of crime. The District Judge charged on the various degrees of murder and upon manslaughter; also upon the effect of insanity and drunkenness upon the degree of crime as affecting the specific intent required to be proven. No complaint is made of the charge in any of these respects. The...
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