Owens v. United States

Citation130 F. 279
Decision Date23 May 1904
Docket Number978.
PartiesOWENS v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Louis K. Pratt, for plaintiff in error.

Marshall B. Woodworth and Nathan V. Harlan, U.S. Attys.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

ROSS Circuit Judge.

The plaintiff in error was charged by indictment with having killed one Carl Christensen, 'purposely and of his deliberate and premeditated malice,' by cutting and stabbing him with a knife, and, after trial, was convicted of murder in the second degree, upon which conviction he was sentenced to imprisonment. The homicide was the result of a combat with knives between the deceased and the plaintiff in error, in a cabin occupied by the latter, at a remote spot in the territory of Alaska. No one was present but the participants. At the trial the plaintiff in error testified in his own behalf to the effect that the deceased commenced the fight by attacking and cutting him with a knife, and that, to protect his own life, he was compelled to, and did inflict the wounds resulting in the death of Christensen. In considering the instructions given by the court below, to which exceptions were taken by the plaintiff in error, it must, of course, be assumed that the jury may have believed that testimony of the defendant; and upon that point of self-defense, which was, indeed, the only defense interposed the court below instructed the jury as follows:

'The defendant in this case alleges that the killing of Carl Christensen, for which he is now on trial, was done as an act of self-defense. The jury is instructed that the dwelling house where a man lives is his home or castle, and that he may repel force by force in the defense of his person against one who manifestly intends and endeavors by violence to commit a felony upon him in such home or castle, and in such case he is not bound to retreat, but may pursue his adversary until he has secured himself from all danger; and, if he kills his adversary in so doing, it is justifiable defense.

'Applying the foregoing principles of law to this case, if you find from the evidence, or entertain a reasonable doubt whether or not it is true, that at the time mentioned in the indictment the deceased, Christensen, attacked the defendant in his cabin or dwelling place with a butcher knife, and the same being a dangerous weapon, with which death or great bodily harm could have been inflicted upon the defendant by Christensen, and that Christensen then and there endeavored to kill or do great bodily harm to the defendant with such knife, then defendant was not obliged to retreat, but had the lawful right to stand his ground and defend himself against such attack, and had the right to continue such defense and pursue Christensen until he (defendant) was entirely out of danger; and if, in making such defense, Christensen met his death, it was justifiable homicide, and you should find the defendant not guilty.

'The court instructs the jury that, when a person is attached by another with a deadly weapon, he has the right to act upon the appearance of things as they appear to him at the time and, as long as he honestly and in good faith believes that his antagonist is about to inflict death or great bodily harm upon him, he has the right to continue his defense.

'The law of self-defense, however, will not permit the one attached to pursue the attacking opponent further than is necessary to protect himself, and, if you shall find and believe from the evidence in this case that Christensen did attack the defendant, this would not justify the defendant in Killing him, without such killing was necessary to protect himself; and of the necessity thereof you are to judge, and not the defendant, and you are to judge from the evidence in the case.

'The law of self-defense does not imply the right to attach, except in self-defense, nor will it permit acts to be done in retaliation or for revenge; and therefore if you shall find and believe from the evidence in this case, beyond a reasonable doubt, that the defendant brought on and voluntarily entered into the difficulty with the deceased for the purpose of wreaking vengeance upon him, and if you shall find and believe from the evidence, beyond a reasonable doubt, that he killed the deceased when he had no reasonable apprehension of injury from him, or of any present impending injury to himself from deceased, or that it was done in a spirit of retaliation and revenge, then the defendant cannot avail himself of the law of self-defense, and you should not acquit him on that ground. And the court instructs you that in case you find the defendant voluntarily brought on and voluntarily entered into the fight with the deceased, Carl Christensen, and was the assailant therein, it does not matter, under the law of self-defense, how great the danger or imminent the peril to which the defendant may have believed himself to be exposed during said difficulty, it would not justify or excuse the killing.

'You are instructed that the law of self-defense was as much the right of the deceased, Christensen, as it was that of the defendant; and if you shall find and believe from the evidence in this case, beyond a reasonable doubt, that the deceased was attached by the defendant when the deceased was attempting to retreat to and through the open door of the house where the homicide happened, and would have so retreated but for the attack of the defendant, then I instruct you that the defendant is not entitled to be acquitted on the ground of self-defense.

'It is for you to determine, gentlemen of the jury, from the evidence in this case, and upon these instructions, whether or not the accused killed the deceased in self-defense, or whether he killed him without justification or excuse.

'Previous threats or acts of hostility of the deceased, Carl Christensen, toward the Defendant, however violent they may have been, were not of themselves sufficient to justify the defendant in slaying the deceased, or to excuse or justify him. He must have acted under an honest belief that it was necessary at the time to take the life of the deceased in order to save his own. It must appear that there was a reasonable cause to excite this apprehension on his part. So that, if you find that the deceased at the time he was killed did nothing to excite in the mind of the defendant the fear that the deceased was about to execute his threat, then the threats and bad character of the deceased, whatever you may find them to have been, are unavailing, and should not be considered by you. But if the evidence leaves you in doubt as to what the acts of the deceased were at the time, you may consider the threats and character of the deceased, in connection with all the other evidence, in determining who was probably the aggressor.

'You are instructed that no mere threats made by the deceased before or at the time of the killing unaccompanied at the time of the killing with any attempt to carry them into execution, are sufficient to justify the killing, or reduce it to a lower degree of homicide than murder; and if you find that the defendant cut and stabbed and killed the deceased because of such threats, and because the defendant thought such threats would justify him in killing the deceased, and that when he cut and killed him he was in no immediate or imminent danger, he is guilty of murder.

'The law of self-defense will justify one in killing another in the protection of his own life, but it will not justify him in killing another where there is no reasonable danger to himself, nor will it justify or excuse him in using greater force than is reasonably necessary to protect himself; and if you shall find and believe from the evidence in this case that the accused was not acting in self-defense when he killed the deceased, Carl Christensen, and was acting as an unjustifiable assailant, and not in the defense of his own person, he would not be excused on the plea of self-defense.'

Much that was there said by the trial court was correct. The difficulty is that in at least one place in these instructions the court ignored the well-settled doctrine that, where one is attached by another with a deadly weapon, the party attached may, if he does so honestly and in good faith, safely act in the light of his surroundings, and on the appearances to him at the time, for the court distinctly and specifically instructed the jury that of the necessity of the defendant's protecting himself 'you are to judge, and not the defendant, and you are to judge from the evidence in case'; that is to say, upon the evidence given at the trial the jury was to determine whether or not it was necessary for the defendant to kill the deceased in order to protect himself, without reference to the appearances to the defendant of existing conditions at the time of the encounter. The law upon the subject is well stated in the case of State v. Ferguson, 9 Nve. 106, 116, where the court said:

'In order to justify the homicide, it must appear to the defendant's comprehension as a reasonable man that he was actually in danger of his life, or of receiving great bodily harm, and that to avoid such danger it was absolutely necessary for him to take the life of the deceased. 'The inquiry,' as was said by Cole, J., in State v. Collins, 32 Iowa, 39, Is not whether the harm apprehended was actually intended by assailant, but was it actual and real to the accused, as a reasonable man, as compared with danger remote or contingent?'

By the frequent use of the words 'absolutely necessary,' as found in the instructions and charge, the jurors may have drawn the inference that, before they would be justified in acquitting the defendant, it must...

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18 cases
  • Frank v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 7, 1930
    ...met his death, it was justifiable homicide in self-defense, and you should find the defendant not guilty. * * *" In Owens v. United States (C. C. A.) 130 F. 279, 281, the instruction therein set forth, after stating circumstances justifying self-defense, "Applying the foregoing principle of......
  • Bridges v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 29, 1952
    ...Dewey Mead (page 3998), Oscar W. Pearson (page 4036), all prominent men in their various vocations and professions. 22 Owens v. United States, 9 Cir., 1904, 130 F. 279; Griggs v. United States, 9 Cir., 1908, 158 F. 572; Louie Ding v. United States, 9 Cir., 1917, 246 F. 80; United States v. ......
  • State v. Taylor
    • United States
    • Idaho Supreme Court
    • May 3, 1955
    ...v. State, 34 Neb. 236, 51 N.W. 837; State v. Cohen, 108 Iowa 208, 78 N.W. 857; Siberry v. State, 133 Ind. 677, 33 N.E. 681; Owens v. United States, 9 Cir., 130 F. 279; State v. Parks, 96 N.J.L. 360, 115 A. 305; Gilcoat v. State, 155 Ark. 455, 244 S.W. 723; Pettine v. Territory of New Mexico......
  • Pettine v. Territory of New Mexico
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 21, 1912
    ...201 F. 489 PETTINE v. TERRITORY OF NEW MEXICO. No. 3,617.United States Court of Appeals, Eighth Circuit.October 21, 1912 [201 F. 490] ... T. B. Catron, of Santa ... above named. On the other hand, this instruction has been ... held to be fatal error in Owens v. United States, ... 130 F. 279, 283, 64 C.C.A. 525, 529, Siberry v ... State, 133 Ind. 677, 33 ... ...
  • Request a trial to view additional results
1 books & journal articles
  • ON REASONABLENESS: THE MANY MEANINGS OF LAW'S MOST UBIQUITOUS CONCEPT.
    • United States
    • Journal of Appellate Practice and Process Vol. 21 No. 1, January 2021
    • January 1, 2021
    ...(2d Cir. 1950) (Frank, J., dissenting); Pettine v. Territory of New Mexico, 201 F. 489, 495-97 (8th Cir. 1912); Owens v. United States, 130 F. 279, 283 (9th Cir. (21.) Jackson v. Virginia, 443 U.S. 307, 317 (1979) (emphasis added). (22.) See United States v. Fatico, 458 F. Supp. 388, 405-06......

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