People of Territory of Utah v. Hite

• Citation: 8 Utah 461,33 P. 254
• Court: Supreme Court of Utah
• Decision Date: 15 April 1893
• Parties: PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. CASS HITE, APPELLANT

33 P. 254

8 Utah 461

PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. CASS HITE, APPELLANT

Supreme Court of Utah

April 15, 1893

APPEAL from an order refusing a new trial and from a judgment of conviction of the district court of the first district. The opinion states the facts, except the following. The whole charge of the court was as follows:

It now becomes my duty, gentlemen of the jury, to charge you as to the law of this case. This defendant is charged with murder--what is called murder in the first degree. Now listen to the definition the statute gives:

"Murder is the unlawful killing of a human being with malice aforethought."

That definition embraces both murder in the first and in the second degrees.

"Such malice may be expressed or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned or malignant heart."

Every murder perpetrated deliberately and premeditatedly, is murder in the first degree--every murder or killing perpetrated with deliberation and premeditation is murder in the first degree. Time, however, is not an element in the question of deliberation, and premeditation. A man may deliberately and premeditatedly determine to take the life of another, and execute it immediately. That is premeditation and that is deliberation, under the statute and under the definition of the court.

Murder in the second degree is the same as murder in the first degree, committed with malice aforethought, with the exception that it is not accompanied by deliberation and premeditation.

The punishment for murder in the first degree is death; for murder in the second degree, it is imprisonment for life. For murder in the first degree it is death, with this exception and I want to call your attention to this statute so that you will remember it:

"Every person guilty of murder in the first degree shall suffer death; or, upon the recommendation of the jury, may be imprisoned at hard labor in the penitentiary for life, in the discretion of the court."

If you find the defendant guilty of murder in the first degree you can recommend that his punishment be confinement in the penitentiary instead of death; then it is a question for the court to determine whether he shall be punished by death or by confinement in the penitentiary. The punishment for murder in the second degree is imprisonment at hard labor in the penitentiary for a term not less than ten years, and such imprisonment may extend to life.

Now the killing in this case is not denied. The defense here is justifiable homicide--what is called justifiable homicide and I call your attention to the definition given by the statute, the one applicable to this case:

"Homicide is also justifiable when committed by any person in either of the following cases:

"When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person or,

"When committed in defense of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise to commit a felony, or against one who manifestly intends and endeavors, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of offering violence to any person therein; or,

"When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished."

Now, then, the defense here is that this man took the life of the other in self-defense; that is, to protect himself from death or from great bodily injury. Now, it isn't necessary that he should be really in danger. In the hour of peril, or of apparent peril, a man has the right to act on appearances. If he were in such a condition (not brought on by himself), in such a place where danger appeared to be imminent to a reasonable man, so as to influence the conduct of a reasonable man, so imminent that he would be himself killed or suffer great bodily harm, he has a right to act upon that and kill his assailant, if he is not a party in bringing himself into that position. If, however, he has brought himself into the position by his own acts, wrongful acts, so that he is in danger, why, then, he has no right to take the life of his assailant. If he is the aggressor in any way, then it is not self-defense for him to take the life of his assailant. In order to do that he has got to retreat and go out of the way, if he himself was active in bringing about the situation that is to him apparently dangerous. So, in determining these questions you will take into account the fact, if it be a fact--and I will charge you with reference to your finding now what are the facts in the case, if it be a fact that the deceased was in his own room, or at his own room, and the party came over there to the deceased, and he came there for the purpose of a quarrel, if you find that to be the fact, and then by his own act brought on the situation that seemed to him to be dangerous, he wouldn't be justified in taking the life of his assailant. It would be necessary for him to retreat out of the way before he would be justified in doing that.

Every man charged with a crime is presumed to be innocent until he is proved guilty beyond a reasonable doubt. A reasonable doubt is one that arises out of the testimony; and it is such a doubt as a man can give a reason for; not a mere flimsy guess, not a mere possibility, not a mere saying it may be so or may not be so; but it is such a doubt as would influence the conduct of reasonable men in the serious and solemn concerns of life; such a doubt as would influence one of you in the discharge of your duties as to your family, your country, and yourselves -- not a mere guess, or possibility, or what may happen or possibly might happen, but such a doubt as would control your acts in the serious concerns of life.

I want to add to the instruction I have already given in reference to justifiable homicide: A bare fear of the commission of the offense, to prevent which homicide may be lawfully committed, is not sufficient to justify it, but the circumstances must be sufficient to excite the fears of a reasonable man, and the party killed must have acted under the influence of such fears alone. "The party killed"--that ought to be--I have been reading from the defendant's instruction--"the party killed" ought to be "the party killing--must have acted under the influence of such fears alone." Upon such appearances a party may act with safety; nor will he be held accountable though it should afterward appear that the indications upon which he acted were wholly fallacious, and that he was in no actual peril; in other words, a man is not guilty in such a case where the appearance proves false, when he would have been innocent if they had proved true. The rule in such cases is this: What would a reasonable person--a person of ordinary caution, judgment, and observation--in the position of the defendant, seeing what he saw, and knowing what he knew, have supposed from this situation and these surroundings? If such a reasonable person, so placed, would have been justified in believing himself in imminent danger, then the defendant would be justified in believing himself in such peril and in acting on such appearances.

If the jury believe, from all the evidence in the case, that it was necessary that the defendant should, or that he, acting as a reasonable man would under the circumstances, thought it was necessary for the defendant to kill the deceased, or disable him, in order to save his own life, or prevent the deceased from doing him some great bodily harm, then he was justified in taking the life of the deceased, and should be acquitted--unless, as I said before, the defendant here was to blame, and was the aggressor in procuring the situation in which he was in danger.

Gentlemen, you are instructed that you are the sole judges of the testimony, the evidence, its weight and its credibility. In determining those questions you will exercise your judgment as men; you will consider the motives that influence and control the conduct of men; those which influence men's acts in testifying; the appearance of the witnesses on the stand; their relation to the parties, the situation in which they are placed--the motives if any, that could influence them to testify falsely. Now, I suppose it is a truism that men do not testify falsely without a motive of some kind. If there is some apparent conflict in the testimony, it is your duty to reconcile it if you can; if not, then it is your duty to determine who has told the truth. As I said before, it is a truism that men scarcely ever act without a motive--that is, sane men; and if, in looking into the case, from the evidence and the surroundings you can determine the motives that have influenced the witnesses in this case--that would probably influence them--you will take all that into the account in determining who has told the truth, if there is a conflict.

COL. MONTGOMERY-- What was the last remark?

THE COURT-- As to who has told the truth, if there is a conflict in the testimony. Friendship sometimes induces a man to go farther than the truth in behalf of his friend; and the relation of the parties as to friendship and friendly relations; the relations of the parties as to business, the relation of the parties as to the interest they may feel and did feel in the party who was killed, the deceased,...