People v. Macard

• Decision Date: 28 November 1888
• Citation: People v. Macard, 73 Mich. 15, 40 N. W. 784 (Mich. 1888)
• Court: Michigan Supreme Court
• Parties: PEOPLE v. MACARD.

40 N.W. 784

73 Mich. 15

PEOPLE v. MACARD.

Supreme Court of Michigan

November 28, 1888

Error to circuit court, Kent county; R. M. MONTGOMERY, Judge.

Information against Charles Macard for the murder of Michael O'Hara. Verdict of guilty of maslaughter and judgment thereon, from which respondent brings error.

Moses Taggart, Atty. Gen., for the People.

John A. Fairfield, (Birney Hoyt, of counsel,) for respondent.

SHERWOOD C.J.

The respondent was charged with killing and murdering Michael O'Hara at the township of Wyoming, in the county of Kent on the 7th day of August, 1887. He was tried for the offense charged in the Kent circuit in October following, and convicted of manslaughter, and sentenced to imprisonment for the period of four years. The defendant asks a review of the case in this court.

The bill of exceptions does not purport to contain all the evidence in the case. Macard lived neighbor to Mr. O'Hara at the time he was killed. Their houses were but 95 rods apart. Mrs. Macard, the mother of Charles, lived but 60 rods from respondent. For several months previous to the killing Mr. Macard and O'Hara had had difficulty and been at enmity, and but a few weeks before they had a hostile meeting, and respondent and his brother William were arrested for an assault and battery upon O'Hara, and Charles was placed in jail. There was evidence tending also to show that on several occasions the respondent had fired his gun towards the house of O'Hara, and used threatening language; that, on the occasion of the killing, Mr. O'Hara had taken his gun, and gone up into his potato patch to get some potatoes; that the potato field was across the road and opposite Macard's house; that Macard at the time had come from his house into the road, and stood there talking to a neighbor, Mr. McGrain; that about this time O'Hara said to respondent: "I will shoot you; I will stop you stealing my potatoes." O'Hara had then gone near the road or to the fence, and they were then but a few rods apart. While at that place Macard told O'Hara to stand where he was. He, however, continued his course out of the field, when respondent again told him to stand where he was. This O'Hara did not do, but continued his course to the road, and raised his gun as if to shoot, when respondent raised his gun and shot O'Hara, killing him almost instantly. It was the claim of respondent upon the trial that he killed O'Hara because he was afraid O'Hara would kill him, and that it was in self-defense alone that he shot his antagonist, and that he had reasonable cause for so doing; that O'Hara had repeatedly threatened to kill him and his brother William; that he had on several different occasions shot at his house, and his mother's house, and on the fatal morning had evidently armed himself to carry out his threat against respondent, and came towards him with the avowed purpose of killing respondent; that retreat only exposed him to greater danger; and that he feared delay might prove fatal to respondent, and he therefore used his weapon as his only means of safety. Such were the grounds of respondent's defense; and the theory of his counsel, and all the acts and doings of respondent at the time of and after the killing, were not inconsistent with the defense made, as would appear by the record. It was the theory of the prosecution, Macard was a turbulent, quarrelsome man; that he had made some threats of a violent character towards O'Hara previous to the unfortunate occurrence, and that it was to gratify his ill-will towards O'Hara that he sought this opportunity, and prepared himself to wreak vengeance upon his enemy. Such were the theories of the parties, and upon which the cause was tried. Great care was exercised on the part of the learned circuit judge on the trial of the cause.

But two errors are assigned upon the taking of testimony. Witness Ames was examined for the people, and testified, against respondent, that he worked for him the spring before the shooting occurred, and that respondent said to him that he had had about trouble enough with O'Hara; that if he did not quit bothering him, he would blow his old head off, or something like that. Upon cross-examination, after testifying that he told Robert Frost that he had heard Macard make threats, he said: "I have had trouble with Charley. I owe him, and he has dunned me on lots of occasions." Witness was then asked: "You owe his mother, don't you, for board, and have owed her for years, and she has tried to get you to pay it?" This was objected to as not proper cross-examination, and the objection was sustained, and we think properly so. It was proper to show any ill-feeling the witness had towards respondent, and possibly it might have been to show such ill will towards his mother under certain circumstances; but this attempt to show only such circumstances between the witness and the mother of respondent, from which ill feeling would not necessarily be presumed, is not only improper cross-examination, but entirely irrelevant.

John Boss was sworn for the people, and testified he was present soon after the shooting, but did not see Macard fire off the gun. He was recalled on the part of the defense. He had testified that he was a constable, and saw O'Hara in the morning on the day he was killed; and saw him again about 20 minutes before 12 o'clock, going towards the potato field, and he had his gun; and saw him again between 12 and 1 o'clock, dead, on the road-side, and his gun lying beside him; that he lived about 60 rods from there, and about 30 or 40 rods from Macard; that you could see a man at O'Hara's house by looking from Macard's. On the re-examination he said he told O'Hara not to take his gun when he went over to the potato patch, and that O'Hara said he took it to defend himself with, or something like that; that when the gun was discharged, he was in front of his own house, sitting in a wagon with his children; that he stood up in the wagon and looked, and then sat down again. Counsel for respondent then asked the witness the following question: "You got up in the wagon to look. Now, at that time didn't you think that Mr. O' Hara had shot Charles Macard, and have you not stated so to others?" The question was objected to, and the court sustained the objection. It appeared that the prosecuting attorney had sent a letter to O'Hara warning him against shooting so much, but we think the question was not proper. It was incompetent testimony that was sought to be given. What the constable thought about the matter was of no consequence, and had no bearing upon the issue whatever.

The following are the defendant's first and second requests, which the court did not give: "I charge you that by the undisputed evidence in this case the loaded gun O'Hara had in his hands at the time he was shot was a deadly weapon; and if O'Hara threatened then and there to take the life of Charles Macard, the defendant, or do him great bodily harm while he held the gun in his hands, and was in a condition to carry his threat into execution, and was approaching the defendant after being ordered by the defendant to desist, and the defendant believed he intended to carry his threats into execution, he was justified in killing O'Hara to repel the assault, and the defendant is not guilty." (2) "The law does not require the necessity of taking human life to be one arising out of actual or imminent danger, in order to excuse the slayer; but he may act upon a belief, arising from appearances which give him reasonable cause for it, that the danger is actual and imminent, although he may turn out to be mistaken. So if you find O'Hara then and there made a threat against the life or person of the defendant while he held in his hands the loaded gun, which I have charged you was a deadly weapon, and the defendant had a belief, arising from the appearances and conduct of O'Hara which gave him reasonable cause for it that O'Hara was going to kill him or do him great bodily harm, then the defendant was justified in shooting O'Hara; and it would be excusable homicide, and the defendant should be acquitted. In other words, the defendant was justified in acting on the circumstances as they appeared to him, and O'Hara being armed with a deadly weapon clearly makes it a case of excusable homicide." These requests no doubt state the law correctly as applicable to the facts in this case, and the learned attorney general concedes this, and claims that the court substantially gave both. The court gave them, but with a qualification, to which counsel for respondent excepts. To the first the court interpolated, after the word "execution," the following, "could not otherwise avoid the assault, as it appeared to him;" and after the words "deadly weapon," in the last line but one of the second request, the following: "If there was no reasonable opportunity or means of avoiding what the respondent anticipated as an assault with this deadly weapon, except by shooting, he had the right to shoot and slay his assailant." We think the respondent had the right to have these two requests given as requested. The modifications were not of a character to aid the jury in understanding the law contained in the request as counsel had stated it, and was liable to be misunderstood by the jury. The situation of the parties was undisputed by the evidence at the time the respondent fired his gun. O'Hara had twice on the occasion threatened to shoot Macard, and was approaching him with gun in hand, only about three rods distant, and was then raising it with the avowed purpose of shooting respondent. Go which way he would, he would only the more surely expose himself to the deadly aim of his antagonist. In such case, about the only question for the jury to...