People v. McGinnis

• Court: Illinois Supreme Court
• Writing for the Court: HAND
• Citation: People v. McGinnis, 234 Ill. 68, 84 N.E. 687 (Ill. 1908)
• Decision Date: 23 April 1908
• Parties: PEOPLE v. McGINNIS.

234 Ill. 68

84 N.E. 687

PEOPLE

v.McGINNIS.

Supreme Court of Illinois.

April 23, 1908.

Error to Circuit Court, Hancock County; John A. Gray, Judge.

Joseph McGinnis was convicted of manslaughter, and he brings error. Reversed and remanded for new trial.William H. Hartzell, Clifford W. Warner, and Neece & Elting, for plaintiff in error.

W. H. Stead, Atty. Gen., and George v. Helfrich, State's Atty. (David E. Mack, of counsel), for defendant in error.

HAND, C. J.

The plaintiff in error, Joseph McGinnis, at the October term, 1907, of the Hancock county circuit court, was indicted by the grand jury of said county for the unlawful killing of Bradford Huston. The indictment contained five counts. The first, second, third, and fifth charged murder, and the fourth manslaughter. The defendant entered a plea of not guilty. After the evidence was all in, the state's attorney, by leave of court, entered a nolle prosequi to the fourth count, and the jury returned a verdict of manslaughter upon the remaining counts of the indictment, upon which verdict the court, after overruling motions for a new trial and in arrest of judgment, sentenced the defendant to the penitentiary, and a writ of error has been sued out by him from this court.

It appears from the record that the plaintiff in error was an unmarried man, about 57 years of age. He had been admitted to the bar of this state, and had served one or more terms as a justice of the peace in Hancock county. Some two years before the killing of Huston he had assisted the state's attorney of Hancock county to prosecute Huston upon a criminal charge, upon which Huston was convicted and incarcerated in the penitentiary. Huston, after his arrest and conviction, entertained a violent hatred toward the plaintiff in error, and frequently threatened to kill him, some of which threats were communicated to the plaintiff in error prior to the killing of Huston. Huston was a man of violent temper and of bad character, and, while the plaintiff in error at times used intoxicating liquors to excess, he was, even when intoxicated, peaceable and quiet. On the afternoon of Sunday, May 12, 1907, the plaintiff in error went to the house of Joseph Dodds, in La Harpe, in Hancock county. He there met Dodds, who lived alone, and a number of other men, including Bradford Huston. They all drank intoxicating liquors while at Dodds' house, to some extent, and all became more or less under the influence of intoxicating liquors. While at Dodds' house Bradford Huston said it would be a good time for him to settle with McGinnis. Dodds remonstrated against Huston having any trouble with McGinnis, and they had no quarrel at Dodds', but after some talk they took a drink, shook hands, and agreed to be friends. Early in the afternoon Huston went to a livery stable to get a rig to take Mrs. Nelson and her three children, who lived about 60 feet from the house of Dodds, to Stronghurst, a village situated some 16 miles from La Harpe, where the husband of Mrs. Nelson was at work. After Huston left Dodds' house, plaintiff in error went to the house of Mrs. Nelson, of which he had charge for her landlord, to get the key to that house or another house which he had charge of in that vicinity. The boy of Mrs. Nelson, who was 10 years old, got the plaintiff in error a drink from the well, and the plaintiff in error then went into the house, which was a small three-room house, and sat down in a rocking chair in the main room, near the west door, and was talking to Mrs. Nelson and her children. After he had been in the house a few minutes,Huston returned with a horse and buggy, in company with a man by the name of Shaw, who had been at Dodds' house early in the day, drinking with Dodds, McGinnis, Huston, and others. Huston tied the horse, and he and Shaw went to the house of Mrs. Nelson. Huston entered the house, Shaw remaining near the door, outside. There is no conflict in the evidence up to the time Huston entered the house of Mrs. Nelson. Shaw was not called as a witness, and the only eyewitnesses to what took place in Mrs. Nelson's house after Huston entered, who testified as witnesses upon the trial, were Mrs. Nelson, Horace Nelson, and the plaintiff in error. Within a few minutes after Huston entered the house of Mrs. Nelson the plaintiff in error fired two shots from a 32-caliber revolver at him, one of which entered his body a little to the left and immediately above the navel and passed diagonally through his body and lodged in his back, after passing through the lower part of his right kidney. The other shot did not take effect. After the shooting, Huston left the house, and was taken downtown by Shaw and a man by the name of Wallace to a livery stable, where he died from the effect of the revolver shot about 4 o'clock of the same afternoon. Immediately after the shooting plaintiff in error went downtown and admitted the shooting, and gave himself up to an officer. If the testimony of Mrs. Nelson and the boy, Horace, is to be believed, the shooting of Huston was without excuse and wholly unjustifiable. On the other hand, if the testimony of plaintiff in error is to be believed, he acted in self-defense, and was justified in taking the life of Huston. In that state of the record the plaintiff in error was entitled to have the jury correctly instructed as to the law of self-defense.

It is assigned as error that the court erred in giving to the jury, upon behalf of the people, upon the subject of self-defense, the eleventh, thirteenth, and fourteenth instructions, which read as follows:

‘(11) The court instructs the jury that although you may believe from the evidence that the defendant, McGinnis, honestly believed that his life was in danger or that he was in danger of suffering great bodily injury, and that, acting under such belief, he slew the deceased, Bradford Huston, yet if you further believe from the evidence, beyond a reasonable doubt, that there was no reasonable grounds for such belief, and no such apparent danger as would have led a reasonable man of ordinary judgment and courage under the same circumstances to apprehend such danger, then you should find the defendant guilty.’

‘(13) In considering whether the killing was justifiable on the ground that the killing was in self-defense, the jury should consider all the circumstances attending the killing, the conduct of the parties at the time and immediately prior thereto, and the degree of force used by the prisoner in making what is claimed to be this self-defense, as bearing upon the question whether the shots, if fired, were actually fired in self-defense, or whether they were fired in carrying out an unlawful purpose; and, if the jury believe from the evidence that the force used was unreasonable in amount and character, and such as a reasonable mind would have so considered, under the circumstances, it is proper for the jury to consider that fact in determining whether the killing was in self-defense.

‘(14) The court instructs the jury that if a man kills another through mere cowardice, or under circumstances which are not, in the opinion of the jury, sufficient to induce a reasonable and well-grounded belief of danger to life or of great bodily harm in the mind of an ordinarily courageous man, the law will not justify the killing on the ground of self-defense.’

The criticism made upon the eleventh and fourteenth instructions is that they require the jury to believe that the plaintiff in error acted as a man of ‘ordinary judgment and courage,’ and as an ‘ordinarily courageous man’ at the time he shot Huston before he could avail himself of the right of self-defense, although he ‘honestly believed that his life was in danger or that he was in danger of suffering great bodily injury, and that, acting under such belief, he slew the deceased, Bradford Huston.’ And the further criticism is made upon instruction No. 14 that it characterizes the conduct of plaintiff in error in shooting Huston as an act of cowardice; and the criticism made upon instruction No. 13 is that it characterizes the defense of the plaintiff in error as ‘what is claimed to be this self-defense.’ Section 148 of the Criminal Code (Hurd's Rev. St. 1905, c. 38) of this state declares that, before a defendant can avail himself of the right of self-defense as a justification for the taking of human life, ‘it must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.’ In some jurisdictions it is held that, where a man acts upon appearances, he does so at his peril, and that the circumstances must have been such as would induce a reasonably cautious man to believe that he was in imminent peril, and that it was necessary for him to kill his assailant in order...