People v. Lilly

• Citation: 38 Mich. 270
• Court: Supreme Court of Michigan
• Decision Date: 29 January 1878
• Parties: The People v. Thomas Lilly

38 Mich. 270

The People v. Thomas Lilly

Supreme Court of Michigan

January 29, 1878

Submitted January 15, 1878

Exceptions to Cass.

Conviction set aside.

Attorney General Otto Kirchner for The People.

Spafford Tryon and D. Darwin Hughes for respondent. In a case of homicide alleged to be in self-defense, a witness may give his opinion as to whether the tone or manner of the assailant was such as to inspire fear (Stewart v. State, 19 Ohio 307; Lewis v. State, 49 Ala. 1; People v Morrigan, 29 Mich. 8; Delafield v. Parish, 25 N. Y., 105; State v. Pike, 49 N. H., 414; Hewlett v. Wood, 55 N. Y., 635), and may describe his manner by illustration (Com. v. Piper, 120 Mass. 185); it may be shown that he was apparently much stronger than the person he attacked (Wellar v. People, 30 Mich. 22; 1 Whart. Crim. Law, 436; Tiffany's Crim. Law, 475), and if such testimony is received without objection, the judge cannot strike it out, Hall v. Earnest, 36 Barb. 591; Lindsay v. People, 5 Hun 104; any thing said or done by him or by his companions in his presence, in the course of the acts leading to and connected with the homicide are admissible, State v. Keene, 50 Mo. 357; Patten v. People, 18 Mich. 327; Stokes v. People, 53 N. Y., 175; Hurd v. People, 25 Mich. 413; the prosecution should give evidence of any quarrel directly leading to the affray, Durant v. People, 13 Mich. 353; Maher v. People, 10 Mich. 225; State v. Bryant, 55 Mo. 75; State v. Sloan, 47 Mo. 604; whether a pocket knife used by respondent in the affray was a deadly weapon is a question for the jury, Com. v. Drew, 4 Mass. 395; U.S. v. Small, 2 Curt. C. C., 241; State v. Dineen, 10 Minn. 407; every reasonable doubt must be for the respondent's benefit, People v. Schryver, 42 N. Y., 1; Meyers v. Com., 83 Penn. St., 131; one who is attacked may do whatever is reasonably necessary in self-defense (Pond v. People, 8 Mich. 150); he need not retreat (Philips v. Com., 2 Duvall (Ky.), 328; Young v. Com., 6 Bush (Ky.), 320; Bohannon v. Com., 8 Am. Rep., 478; Holloway v. Com., 11 Bush (Ky.), 347; see also 2 Bish. Crim. Law, § 644; Erwin v. State, 29 Ohio St., 186; Meridith v. Com., 18 B. Mon. (Ky), 49; Young v. State, 11 Humph. (Tenn.), 200; Grainger v. State, 5 Yerg. (Tenn.), 459; People v. Batchelder, 27 Cal. 69; Tweedy v. State, 5 Ia. 433; Haynes v. State, 17 Ga. 465; Temple v. People, 4 Lans. (N. Y.), 119; Stoffer v. State, 15 Ohio St., 47; Johnson v. State, 27 Tex. 758; Shorter v. People, 2 N. Y., 197; Long v. State, 52 Miss. 35); he may act in view of the character of his assailant for ferocity (Whart. Crim. Law, §§ 1026-7; Harrison v. Harrison, 43 Vt. 417; People v. Anderson, 2 Wheeler's Crim. Cas., 390; Pritchett v. State, 22 Ala. 39; Short v. State, 7 Yerg. 510; State v. Hicks, 27 Mo. 590); the burden is on the prosecution to show when the assailed became a wrong-doer, Ruloff v. People, 45 N. Y., 220; one who is violently attacked on his own premises by a powerful person who has threatened to kill him, and who kills his assailant while defending himself, is excusable, 2 Arch. Crim. Law, 288-9; People v. Taylor, 2 Mich. 250; Pitcher v. People, 16 Mich. 142; People v. Anderson, 2 Wheeler Crim. Cas., 390; he need not flee from his own house where his family are, Haynes v. State, 17 Ga. 465.

OPINION

Graves, J.

This case comes up on exceptions before judgment. The defendant was charged with the murder of Charles Kreiger in November, 1876, and on the trial, which occurred in March, 1877, he insisted that his act was justifiable self-defense. The jury after a protracted trial returned a verdict against him for manslaughter. The Attorney General virtually admits that the conviction cannot be sustained, and he declines to take the contrary position before the court. The record bears him out. A large number of exceptions were taken some of which were valid and others not.

The present attitude of the case renders many questions immaterial which under other circumstances might have a different complexion. As the case stood upon the trial there was room for questions connected with specific issues which the verdict has disposed of forever. The charge of murder is conclusively negatived, and every question merely pertinent to that charge and not relevant to the accusation or defense of manslaughter can have no future importance. As the case is situated, in view of this aspect of it and of the fact that only one side is heard, and that it must assume a different shape on another trial, a particular discussion now would seem to be altogether inappropriate. A few words are required however. Several important facts were shown which have not been disputed.

Defendant was a farmer living about two miles and a half from Dowagiac, and the deceased had been in his service as a farm hand for about a year and a half. November 2d, 1876, defendant discharged him on the alleged ground of his habit of getting intoxicated and being unsteady. On Saturday, the 11th of that month, the parties settled, and a balance was found in favor of deceased of $ 10.41. Defendant paid $ 7 and claimed that deceased had taken and failed to return a powder flask and shot pouch worth $ 3.25, and observed that he would pay the balance when these articles should be restored. The deceased left shortly after and went to Dowagiac. This was before dinner. In the afternoon the defendant also visited Dowagiac on business. Whilst there he was met by deceased who appeared to be in liquor and was very violent. He complained that defendant would not pay him what he owed him and threatened personal violence, and even went so far as to menace his life. These threats were in different forms, and it was impossible not to understand them as importing a design to visit defendant with great personal harm if not an attack against his life. He was a man of superior strength and vigor, and far more powerful than defendant. His demeanor was so impressive of his purpose and ability to do great harm to defendant that the village marshal interfered and took him away, and informed him that unless he behaved he would lock him up. Subsequently, however, the deceased returned to resume his violence against defendant, and the marshal then placed him in custody of one Rummell, and instructed defendant that he had better go home, as he, the marshal, could not watch deceased all the time, and defendant accordingly hurried home without having completed his business.

The defendant was building a new house at this time within a few feet of the old one, and one Adams, a painter, and Hess, a carpenter, were there. About five o'clock in the evening, deceased obtained a livery team at Gardner's stable in Dowagiac to go to defendant's place and get his trunk. Young Gardner, a son of the stable keeper, drove the team, and one Cook, a comrade of deceased, accompanied the latter. Both the latter were a good deal in liquor. When they reached defendant's house he was at supper, and Adams and Hess and a farm hand were there. Mrs Lilly and three children and a niece were also there. Deceased and Cook entered and passed up stairs for the trunk. It was then dark. Adams and Hess went out and stood talking about ten feet from the back door of the old house when deceased and Cook emerged with the trunk and started through the passage way between the buildings for the road. Deceased returned very soon and Cook a little later. Hess and Adams had then moved off several feet, and defendant was passing in the direction of the new house. It had become very dark at this time. Deceased immediately advanced towards defendant and demanded his full pay and defendant refused until he should restore the pouch and flask. Deceased continued to approach defendant and threatened him with extreme personal violence unless he paid him "every G--d d--n nickel to-night." Defendant made no movement towards deceased, but told him to "go away and let him alone;" that he "didn't want any fuss with him." Deceased said, "strike me, G--d d--n you," and defendant replied, "I don't want to strike you; I don't want any fuss with you;" and then deceased said, "you will use that on me, will you, G--d d--n you." Defendant answered "I want you to go away and let me alone; don't put your hands upon me," and instantly added that he must take his hands off and not strike him again. There was a struggle in the darkness accompanied by words. "Kreiger's voice was angry; Lilly's was excited,--his voice was that of fear." Kreiger then and there received a mortal wound from a common pocket knife in the hand of defendant.

This outline will convey a sufficient idea of the transaction for the present purpose.

Upon the question of defendant's being justified or excused, the judge charged these propositions among others:

"If you find that Kreiger assaulted Lilly with the intention simply to commit upon him an ordinary assault and battery not amounting to an injury of a permanent character,...