Palmer v. State
Decision Date | 13 January 1900 |
Parties | PALMER v. STATE |
Court | Wyoming Supreme Court |
ERROR to the District Court, Uinta County, Hon. DAVID H. CRAIG Judge.
Louis T. Palmer was charged with murder, and convicted of manslaughter, and prosecuted error. The facts are stated in the opinion.
Reversed.
M. C Brown, for plaintiff in error.
It has long been the practice in the district where this case was tried that every ruling of the court should be considered as excepted to without counsel at the time making his specific objection or exception, and on this theory the case was tried; so it can not be claimed that the exception to the instructions was not taken in time. Such a practice takes a case out of the general rule. (2 Thomp. Tr., Sec. 2394; Winchell v. Hicks, 18 N.Y. 558; Dowes v Rash, 28 Barb., 157; 24 How. Pr., 333; Jencks v. Smith, 1 N. Y., 90; Timbrook v. State, 18 Tex. App., 1; Burke v. State, 15 id., 156.)
The instructions given on the part of the State were based on a state of facts not existing in the case. The doctrine of retreating was emphasized without referring to the fact that defendant was attacked in his home. That was grave error. Such instructions were inapplicable to the case in hand. One assailed in his own house is not bound to retreat therefrom, but may resist the invasion for the purpose of committing a felony or doing a personal violence to the inmates, and may justifiably take life if necessary, without retreating from threatened danger.
A party is not required to make an objection before an instruction is given, and before the defendant can know what is in the mind of the court.
J. A. Van Orsdel, Attorney General, for the State.
Under the practice in this State, an objection must be taken at the time; and in this case the remarks of the trial judge in the bill show that the exceptions to the instructions were not taken in apt time. It is not the policy of our law to allow a trial to run at loose ends. At every step the trial judge should be given an opportunity to correct an alleged error. Such is the policy of our mode of practice. The rule as to the right of a man attacked in his own home is not applicable to this case, for the reason that the evidence shows that the defendant was the more powerful man, and, in every encounter they had, he seemed to have no difficulty to overcome his opponent; and that opponent was not armed, and made no attacks upon the defendant except with his fists. Again, the defendant in his testimony was silent as to any fear which he had at the time. Under self defense, it is essential that the defense prove that the defendant was in fear of losing his life, when he took the life of his assailant. If a party desires an instruction upon a particular point he must request a proper one, and can not complain of the omission in case he has failed to make a request for one and presented a proper one. (People v. Raher, 92 Mich. 165; Winn v. State, 82 Wis. 571; Dove v. State, 22 Ala. 23; Mead v. State, 53 N.J. L., 601; State v. Marqueze, 45 La. Ann., 41; State v. O'Neal, 7 Ired., 251; State v. Jackson, 112 N. C., 851; 97 Cal. 459; Burns v. Com., 3 Metc. Ky., 13; McMeen v. Com., 114 Pa. St., 300; People v. Marks, 72 Cal. 46; State v. Anderson, 26 S. C., 599; State v. Brooks, 92 Mo. 542.) The instructions correctly stated the law as applicable to the case.
The defendant (plaintiff in error) was tried upon an information charging him with the murder of one Joseph Demars, found guilty of manslaughter, and sentenced to the penitentiary for a term of ten years. He claimed that the shooting was done in self defense, and says that he did not have a fair trial for the reason, among others, that the jury was erroneously instructed. By the motion for a new trial instructions 8, 9, and 11, given upon the request of the prosecution, were specially pointed out as erroneous and prejudicial to the defendant.
For the purpose of testing the instructions a brief statement of certain facts which characterized the case will be sufficient. Defendant and deceased were at a dancing party where deceased, being partially intoxicated, sought a quarrel with defendant, which he tried to avoid. Deceased finally assaulted him about one o'clock in the morning, but defendant got the better of it, and deceased cried, enough. Deceased shortly afterward went to sleep in a room near the hall where the dancing was, and the defendant being warned that he had better look out for Demars, that he intended to attack him again, and that he was a "hard man," in order to avoid any further difficulty, got on his horse and went home, a distance of about seven miles, lay down and went to sleep. Demars woke about daylight and was looking for defendant, threatening that he would beat him to death; that he would kill him before sundown, etc. At this time deceased was sober. Upon being informed that Palmer had gone home, he immediately started after him, saying that he would kill him before night. Upon reaching the defendant's place, he pushed or burst open the door, which was fastened upon the inside by a wooden button, and assaulted Palmer in bed by striking him on the head with his fist. They again fought, deceased repeating that he would beat him to death before night, kill him before the sun went down, etc. Defendant got the better of him, and deceased said he would quit. Upon being released Demars returned to the attack, repeating his threats. This occurred two or three times. No one was at the ranch but deceased and defendant. In concluding his statement of the transaction from the witness stand, defendant testified: The proof was that the reputation of the deceased as a peaceable man was bad. The foregoing statement is not given as the only conclusion which the jury could reach upon a consideration of the whole case; but as a conclusion which they were authorized to reach under the evidence, and which the court, not being empowered to pass upon the weight of the evidence, could not reject in giving its charge to the jury. But that the deceased was the aggressor; that he pursued the defendant to his own home and repeatedly assaulted him there, while at the same time expressing his determination to kill him before night, are facts which are not controverted by the prosecution.
With these facts characterizing the case, all instructions which informed the jury that it was the duty of the defendant to retreat before he would be justified in whatever resistance might be, or might reasonably seem to be, necessary against the assault of the deceased, were necessarily inapplicable to the evidence, misleading and prejudicial to the defendant. It is not the law that one assaulted in his own house must retreat, provided he can do so without increasing his own danger, before he may lawfully re-resist, even to the taking of the life of his assailant. It is unquestionably true that the law does not permit one who is assailed to take life unless it is apparently necessary under the circumstances. But the two propositions are not in conflict. He must not take life except in case of apparent necessity, but the law does not require that he shall avoid the necessity by retreating before his assailant. His house is his castle, and when it is invaded, he is deemed to be "at the wall," and no further retreat is required. 2 Bish., C. L., 653; Pond v. The People, 8 Mich. 150; Erwin v. State, 29 Ohio St. 186.
The defendant in this case had retreated seven miles to his own home, and there is no intimation whatever in the evidence that it was not in good faith to avoid any further difficulty with the deceased. But under these facts, in one of the instructions complained of is found the following language ...
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