People v. Callaghan

• Decision Date: 02 March 1885
• Citation: 6 P. 49,4 Utah 49
• Court: Utah Supreme Court
• Parties: THE PEOPLE, RESPONDENT, v. PATRICK CALLAGHAN (Impleaded with another), APPELLANT

6 P. 49

4 Utah 49

THE PEOPLE, RESPONDENT, v. PATRICK CALLAGHAN (Impleaded with another), APPELLANT

Supreme Court of Utah

March 2, 1885

APPEAL from a judgment of the district court of the second judicial district, and from an order refusing a new trial.

In impaneling the jury, the names of twelve jurors were drawn from the general box, of whom one was challenged for cause by the defendant, the challenge sustained by the court, and the juror excused. The defendant then demanded that, before he should be required to proceed with other challenges, either peremptory or for cause, that the vacancy so caused should be filled by drawing another juror; but the court ruled that before the number of twelve should be replaced from the general box, that both prosecution and defense should exhaust all of their challenges, both for cause and peremptory, as to the twelve jurors first drawn. The remainder unchallenged should be sworn to try the case, and then the panel should be filled by supplemental drawings.

To this ruling the defendant excepted.

The other facts are sufficiently stated in the opinion.

Affirmed.

Mr Arthur Brown (Mr. John W. Christian was with him on the brief), for appellant.

Sec 268 of the Criminal Practice Act is only declaratory of the law as it existed prior to the statute: Webster's Case, 5 Cush.; Wharton on Crimes, §§ 707-712; Wharton's Cr. Ev., § 334 and note; and only applies to cases of secret killing--it has no application where the circumstances attending the killing are known, and show some provocation, no matter how slight: 60 Cal. 4; 59 Cal. 607; 49 Cal, 611; People v. Tracy, 1 Utah 343; People v. Stokes, 53 N.Y. 177; Com. v. Hawkins, 3 Gray 465; 7 Gray 583.

The court improperly defined "premeditation:" 35 Mich. 18; 76 Mo. 361; 14 Neb. 568; 91 N.Y. 212.

The court improperly defined the word "malice:" State v. Hardie, 47 Ia.; 2 Am. Cr. L. R. 326; People v. Maher, 10 Mich.; 35 Mich. 18; 36 Cal. 255.

The court erred in its charge to the jury on the law of self-defense.

The doctrine of necessity was added to the statute. That has long since been repealed by the common law and by our statutes. The court applied it in this language-- that the defendant could only be justified in "using no more force than necessary"--nothing in the statute justifies that modification. If often happens that a man has the right to defend himself; when not necessary to use any force, he might run away. This was error. See Comp. Laws 587; 58 Cal. 250; Runyon v. State, 57 Ind.; Erwin v. State, 26 Ohio; 2 Am. Cr. Law 218; 1 Am. Cr. Law 251; 27 Cal. 69.

Mahoney's statement was no part of the res gestoe: 17 Nev. 376.

A new trial should be granted on account of the separation of the jury: People v. Shafer, 1 Utah 260.

Mr. Zera Snow, for respondent.

EMERSON, J. TWISS, J., concurred. ZANE, C. J., took no part in this decision.

OPINION

EMERSON, J.:

The appellant, Callaghan, was jointly indicted with Fennell and Fitzgerald, charged with murder in the first degree, in the killing of one Daniel Mahoney, at Frisco, in Beaver county. All three pleaded not guilty, and upon the case being called for trial, the defendant Fennel elected to be tried separately, and the trial proceeded as to the other two.

When the prosecution rested their case, at the close of their evidence in chief, the counsel for the defendant Fitzgerald moved for his discharge, on the ground "that there was no evidence implicating him with any criminal act in the case." After argument the motion was granted, and Fitzgerald, the discharged defendant, was the first witness sworn on the part of the defense.

Callaghan was convicted of murder in the second degree, and was sentenced to imprisonment in the penitentiary for a period of fourteen years, and appeals from the judgment and from an order denying his motion for a new trial.

The record presents several exceptions taken to the rulings of the court, during the progress of the trial, together with a great number of exceptions relating to the instructions given and refused, which will be noticed in the order in which they were presented to this court.

The first point urged upon our attention by the appellant is, that the court erred in refusing to instruct the jury that it was a case of manslaughter only.

It is the province of the jury, under proper instructions from the court, to determine the degree of the homicide, and the court should not usurp this function. The court should, as it did in this case, inform the jury what circumstances will, in law, reduce a homicide from murder to manslaughter, or render it excusable or justifiable, and leave them to apply the law to the facts in proof. A case might be imagined, where the testimony was so clear, positive and uncontradicted, that the court would be authorized to instruct the jury, that the uncontested facts did not bring the case within any of the higher degrees of homicide, but whether the defendant is guilty of some lower offense, or not guilty at all, must still be left to the jury upon the facts as they shall find them. This, certainly, is not a case like the one last above referred to.

It appears from the record of the testimony sent up, that the deceased was a constable and night watchman; that the shooting, resulting in his death, occurred at about three o'clock on Sunday morning, August 3, 1883, while he was on duty as such night watchman. The place where this unfortunate affair occurred is what is known on this coast as a mining camp. It appears that there had been some considerable disturbance in different portions of the town, during the early part of the evening, and preceding the shooting. It also appears, from the testimony, that the appellant and the other two defendants came down from the Carbonate mine early in the evening of Saturday; that they were together visiting saloons and other places and drinking quite freely. The deceased, while in the discharge of his duty, had met them several times, and had accosted them, at one time asking them if they knew who had fired certain "shots," of which they disclaimed having any knowledge. There was testimony on the part of the prosecution tending to show that subsequently to this time, the three were together and were watching for some one, and that the deceased was the one for whom they were watching. Other witnesses testified that they heard the shooting at the time the deceased was killed, and saw the defendants running from the scene, and heard the appellant say at this time "I got him at last."

With the above testimony in the case for the jury to weigh and determine, it was not error for the court to refuse the instruction asked. In connection with this request to charge, the appellant claims, that, at the time of the shooting, the deceased assaulted him and fired the first shot. There is some conflict in the testimony as to what occurred just at that time. The shooting occurred immediately after the deceased had ordered the appellant and his companions to "get off from the streets and go home." One of the witnesses for the prosecution testified that she was awakened by the talking on the street, and that she recognized the appellant by his voice, as one of those who had disturbed her: and saw two others with him, whom she did not know; that she saw the deceased come up and heard him tell the parties to "go on, go home," and after some other conversation, he said to them, "you must move on, I tell you, there is people here who want to sleep, you must find some other place to do your talking," and that the appellant turned around and the shooting commenced, and, the witness continued, "all three shots seemed to be fired at me; the first shot seemed to come from where Callaghan stood. Dan, (the deceased) stood between me and the other three and about two feet from Callaghan; the second and third shots were nearer together than the first and second, but all in a few seconds." There is other testimony in the case, some of it direct and positive, that the appellant fired the first shot.

The deceased, as a peace officer, was in the legitimate discharge of his duty, in ordering these parties off from the streets, as they were using it not for the mere purpose of passage as a highway, but as a place of resort, to the annoyance of peaceful citizens, and at a time, and under circumstances when no legitimate business called them there. Certainly the language used by the deceased, even if it had been accompanied by a threat to arrest them, unless they obeyed his order to "get off from the streets and go home," cannot be tortured into such an assault as would authorize the court to give the instruction asked. The court gave full and proper instruction as to the degrees into which the statutes have divided the subject of homicide.

The next assignment of error is based upon the following portion of the charge: "It is admitted by the counsel for the defendant, Callaghan, on trial, and in his presence and hearing, and without objection on his part, that the defendant, Patrick Callaghan, did, on the fifth day of August, 1883, at the county of Beaver, in the Territory of Utah, kill the defendant, Daniel Mahoney, but they claim such killing was in self-defense, and therefore justifiable or excusable.

"If the killing of Mahoney by the defendant, Callaghan is admitted or proven, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant, Callaghan, was justifiable or excusable, in the act of killing. Up to the moment when the killing is proved, or admitted, the prosecution must make out its case beyond any...