Patten v. People

• Decision Date: 27 April 1869
• Citation: 18 Mich. 314
• Court: Michigan Supreme Court
• Parties: John Patten v. The People

18 Mich. 314

John Patten v. The People

Supreme Court of Michigan

April 27, 1869

Heard April 7, 1869; April 8, 1869 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Oakland circuit.

The defendant was tried and convicted for the homicide of one Elias Cowles.

Upon the trial, the people offered proof tending to show that a few days prior to the 17th day of December, 1867, the defendant, John Patten, who was then residing in Highland, in said county, got married to a Miss Sarah Grow; that on the night of the 17th, Luther Mills, George Mills, James Lockwood, and others, to the number of from eight to fifteen, got together and went to said respondent's to "horn" him; that they went there in the night time, between nine and ten o'clock; that one of the party had a gun; others tin horns, cow-bells, etc.; that they went in upon the premises of said Patten, who was then living upon a farm with his father and mother, and commenced their "horning" by shooting the guns, blowing the horns, ringing bells and yelling, and soon after defendant came out and ordered them off, and they all ran off. It further appeared that defendant heard that the horners purposed to visit his house the next night.

The people further offered proof tending to show that Elias Cowles, the deceased, on the following day, made preparations to go the next night to "horn" the prisoner; that he met with some fifteen or twenty others, and on the night of the 18th was elected captain; that they had guns, tin pans, horns, a horse-fiddle, and other instruments to make noises with; that they had seven or eight guns, army muskets, so-called, and shot guns; that one of the party had a shot gun loaded with powder and shot, which had been loaded a few days before to shoot rabbits with, and that the boy who had this gun fired it off in the air after they got to Patten's; that they went into the yard of the premises of the defendant, and there fired their guns into the air, and blew their horns, rang their bells, and made as much noise as they could upon these instruments: that they passed from the road into the yard through a large gate; that they walked along still, without making any noise, until the word was given, and then all the guns were to be fired at once, and then the other noises to commence; that Elias Cowles requested William Lee, one of the party, and a witness, to give the word, as they, the Pattens, would not be so likely to know his voice; that he, William Lee, did give the word, and all the guns were fired; that the said Cowles had a gun; that he (Lee) had a joint of a flute, and blowed on it; that there was considerable yelling; that after the noise had been going on a few minutes, John Patten came to the door, near where they were, but said nothing; he went back into the house, and soon came out and went towards Elias Cowles, who was standing facing him, with the but of his gun on the ground; that John Patten ran up to him; that said Lee heard a blow; that he looked and saw Elias Cowles partly down on his hands and knees; that Patten struck a second blow; that he then saw he had an axe, and this blow struck Cowles on the head and knocked him clear down; that the witness hallooed "for God's sake, don't let him kill this man," and stepped towards the prisoner, and he ran back into the house; that Cowles got up, picked up his hat and his gun--some one asked him if he was hurt, and he said he guessed not much, but he must go and get a drink of water; that he died next day from wounds received that night.

The prosecution asked Lee, under objection:

"Did you go to Patten's for any other purpose than to 'horn' Patten?"

The court overruled the objection and admitted the evidence, and defendant excepted.

The counsel for the defendant asked the people's witness, on his cross-examination, if Cowles did not tell him, that the boys running away the night before was a cowardly act, and that night they were going to get a company together and go there and stand their ground.

The prosecution objected, and the court sustained the objection.

On the part of the defendant, it appeared that he resided with his father and mother, who were aged and infirm people; that the old lady was quite feeble, and had for many years suffered from palpitation of the heart, and also from spells of dizziness; that any unusual excitement brought on the palpitation of the heart, and any overdoing or prostration was likely to be followed by attacks of dizziness.

That defendant, on being aroused by the noise out of doors, went down-stairs; that his mother was in great terror, lest violence should be done.

That she begged him to drive them off; that he then stepped to the door and ordered them off; they paid no attention to it; the noise kept on; he stepped to the door again, and took the axe and stepped out, and several voices cried, "shoot him; damn him, shoot him;" that as he stepped out towards them, the crowd sallied onto him, and he was struck with a gun or other weapon; that he struck deceased, and then went into the house, and that several gun wads were fired through the open door.

The counsel for the prisoner submitted several requests in writing, and asked the said court to charge thereon, among which were the following:

First. "That private persons may forcibly interfere to suppress a riot or resist rioters; and although a riotous attack be not a felonious one, yet if the riot be directed against the property or the house of the person who resists it, in making such resistance, he has a right to the use of such means as will make the resistance effectual; and if, in making such resistance effectual, one of the rioters be necessarily killed, the killing will be excusable homicide."

The court refused, but did instruct the jury, "that if the rioters were there upon the premises of the prisoner, and did no injury to the property, and did nothing but make their noises, it would be but a mere trespass, and the owner could not eject them or expel them by force, to the extent of taking life, unless to prevent some felony about to be committed or attempted, by the rioters, or to save life or limb."

The following requests to charge were all refused and excepted to.

Second. "That persons have a right to the peaceable possession of their premises and property, and if, while in the peaceable possession of such property, a riotous assemblage takes possession of such property in the night time, and undertake to maintain such possession by force, the owner may repel such riotous assemblage by force, and if, in making such resistance effectual, one of the rioters be necessarily killed, the killing will be excusable homicide."

Third. "That the law of self-defense is a law of nature. Its extends not only to the person himself, but to those who bear the relation to him of parent and wife, and it also extends to his house, called in the law his 'castle.' and a person may make effectual this defense from all attack, and if, in making this defense, it becomes necessary to take the life of the aggressor, it will not be felonious, but will be excusable homicide."

Fourth. "That, if from all the evidence and circumstances proved, the jury find that the prisoner had reasonable grounds to believe that there was, before he struck the blow, a design to commit any felony upon his house or upon any members of his family, and that the deceased was either principal in such design or present as accessory, the killing of the deceased will be excusable homicide, although it afterwards appear that no felony was intended."

The court refused, except with the following qualification and amendment, to wit: after the words "members of his family," insert these words, "and the danger imminent," and at the end of said request, add the words "provided he first used all other means in his power to prevent the accomplishment of the supposed intended felony."

Fifth. "That the prisoner had a right to judge, and upon the facts and circumstances which surrounded him, as they appeared to him at the time of the homicide; and, if from all the evidence the jury find that the homicide was committed in repelling an unlawful and malicious assault upon his dwelling-house, and he used only reasonable and necessary means to prevent it, the act of the killing will be excusable homicide."

The court refused, except with the following qualification and amendment, to wit: after the words, "appeared to him at the time of the homicide," insert the following words: "but at his own peril--and it is the province of the jury to determine, from all the facts and circumstances, whether the accused had reasonable cause to apprehend imminent danger to life or limb, or that a felony was about to be committed."

Sixth. "That if the jury shall find that the prisoner was laboring under a reasonable apprehension that his mother was so affected, by the riotous assemblage, that she was likely to die, or to receive grievous bodily harm, and he could not remove the rioters from his premises without force, and by resort to force, the deceased was killed, the killing will be excusable homicide, provided no more force was used than was necessary, under the circumstances, as they appeared to the prisoner at the time, in repelling the riotous assemblage."

After the judge had concluded his general charge to the jury, he further charged that a riot was not a felony, but only a misdemeanor.

The defendant was convicted of manslaughter.

New trial granted.

M. E. Crofoot, for plaintiff in error:

1. Only the acts of the rioters could be given in evidence...