People v. Olson

• Citation: 4 Utah 413,11 P. 577
• Court: Supreme Court of Utah
• Decision Date: 12 June 1886
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. EDWARD OLSEN, APPELLANT

11 P. 577

4 Utah 413

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. EDWARD OLSEN, APPELLANT

Supreme Court of Utah

June 12, 1886

APPEAL from a judgment of the district court of the first district. The opinion states the facts.

Affirmed.

Messrs Hoge & Burmester, for the appellant.

Mr. W H. Dickson, for the respondent.

ZANE C. J. BOREMAN, J., and POWERS, J., concurred.

OPINION

ZANE C. J.

The defendant was found guilty of murder in the second degree, and sentenced to imprisonment in the penitentiary for the term of 14 years, from which he has appealed to this court. He was night watchman at the hoisting works of the Eureka Mining Company, and Joseph C. Hesselgrove, the deceased, was in the employ of the same company as engineer. On the night of the twenty-fourth of December last they engaged in a quarrel. The defendant drew a pistol, and the deceased struck him in the face with his fist. Whether deceased had hit him before does not satisfactorily appear from the evidence. When the pistol was drawn, one Hanley took hold of defendant's arm. A scuffle ensued, and deceased struck again, and told Hanley to take the pistol away. Defendant then threatened to shoot him if he did not let go. Hanley then let go, and defendant then shot deceased in the left temple, and he fell, and died almost instantly. The defendant was a large and probably stouter man than the deceased. There was considerable evidence given on the trial, and as to some of the facts stated it was conflicting.

The defendant excepted to, and assigned as error, the following portion of the charge of the court to the jury: "When a person kills another with a deadly weapon, no words of reproach or abuse or gestures, however irritating or provoking, amount to considerable provocation in law, so as to reduce the crime of killing from murder to manslaughter. If the killing proceeds from malice, it is murder. If from passion, it is manslaughter. If from a fear of a loss of life, or of receiving great bodily injury, it is justifiable homicide. But the passion must proceed from an adequate cause, and the fear from reasonable and imminent danger, in view of the circumstances. The circumstances must be such as would indicate danger to a reasonable person. If the conduct of the person slain would be likely to cause a reasonable person to act from mere passion, and without the exercise of reason, it constitutes an adequate cause, and what is known in law as a 'considerable provocation.'"

In the portion of the charge above quoted the court informed the jury that mere words of reproach--as abuse, or irritating and provoking gestures--would not constitute a provocation sufficient to reduce the killing to manslaughter, when done with a deadly weapon. In this case the defendant admitted that he shot the deceased with a pistol. The cocking and aiming a pistol at a vital part, and the firing thereof would indicate an intention to kill, unless the provocation was great. It would indicate more than mere passion, in the absence of a cause more adequate than mere words, or provoking and irritating gestures. In case of death caused by a blow with the fist, or some...