Perkins v. State

• Decision Date: 13 January 1891
• Citation: 47 N.W. 827,78 Wis. 551
• Parties: PERKINS v. STATE.
• Court: Wisconsin Supreme Court

78 Wis. 551

47 N.W. 827

PERKINS

v.STATE.

Supreme Court of Wisconsin.

Jan. 13, 1891.

Error to circuit court, Clark county.

Hugh Perkins was tried for murder in the first degree for the killing of one Isaac Meddaugh.He was convicted of manslaughter in the second degree, and brings error.It appears from the testimony that defendant had some difficulty with the deceased on the day previous to the homicide, in presence of several other persons, at a saw-mill operated by defendant.It was claimed by defense that, at that time, deceased made a violent assault upon the defendant, and was only prevented from doing him serious injury by the witness Green, who testified for the defense.The testimony of the witnesses for the state does not indicate that there was any serious difficulty the day previous to the homicide, although the defendant and the deceased had some words over something that the defendant had said in relation to deceased's wife.On the day of the homicide, deceased, together with his brother, Robert Meddaugh, and one Jerry Doughty, went to defendant's mill, for the purpose of drawing away the lumber belonging to the deceased which defendant had sawn for him.The state's testimony tended to show that, while engaged in this work, defendant, without provocation, shot deceased.Defendant's evidence was to the effect that Jerry Doughty came into the mill, and stood there calling him names, and that he finally ordered him out of the mill; that he went to where the deceased and his brother were loading lumber upon the wagon, and said something to them; that the three men immediately turned,--the deceased in advance of the others,--and went towards him, threatening to assault him; and that defendant then shot deceased in self-defense.Sturdevant & Sturdevant, for plaintiff in error.

Where an attack is made with murderous intent, the person attacked is under no obligation to fly; he may stand his ground, and, if need be, kill his adversary.1 Bish.Crim. Law, (7th Ed.) § 850.See, also, sections 849,851-853,866,867, and869, Id.;Stoneham v. Com., (Va.)10 S. E. Rep. 238;Burgess v. Territory, (Mont.)19 Pac. Rep. 558;Marcum v. Com., (Ky.)4 S. W. Rep. 786;Erwin v. State, 29 Ohio St. 186;Runyan v. State, 57 Ind. 82;Carroll v. State, 23 Ala. 28;State v. Evans, (W. Va.)10 S. E. Rep. 792;People v. Gonzales, (Cal.)12 Pac. Rep. 783;Radford v. Com., (Ky.)5 S. W. Rep. 343;May v. State, (Tex.)4 S. W. Rep. 591;U. S. v. Wiltberger, 3 Wash. C. C. 515.

It was error to instruct that there was no evidence warranting a verdict of manslaughter in the third degree.People v. Hamilton, (Mich.)42 N. W. Rep. 1131;State v. Adams, (Iowa,)43 N. W. Rep. 194;Bonnard v. State, (Tex.)7 S. W. Rep. 862;Hill v. State, 8 Tex. App. 142;Ledbetter v. State, (Tex.)9 S. W. Rep. 60;Vollmer v. State, (Neb.)40 N. W. Rep. 420;Baker v. People, 40 Mich. 411;State v. Cody, (Or.)23 Pac. Rep. 891;State v. Norton, (S. C.)6 S. E. Rep. 820;State v. Brown, (La.)4 South. Rep. 897;Cook v. Com., (Ky.)8 S. W. Rep. 872;State v. Evans, (Kan.)13 Pac. Rep. 849;Territory v. Baker, (N. M.)Id. 30;State v. Wilson, (Mo.) 11 S. WRep. 985;State v. Wensel, (Mo.)Id. 614;State v. Elliott, (Mo.)Id. 566;People v. Freel, 48 Cal. 436.

L. K. Luse, Asst. Atty. Gen., for the State.

ORTON, J.

The plaintiff in error was tried on an information for murder in the first degree, and was convicted of manslaughter in the second degree, and sentenced to imprisonment in the state-prison, at Waupun, for the term of five years.A motion for a new trial, on behalf of the plaintiff in error, was denied pro forma, and a motion in arrest was denied, and also a petition for a new trial based on the same grounds as herein assigned for error.The case comes to this court on writ of error, and bill of exceptions, settled and signed by the judge.

The first error assigned and considered in the brief of the learned counsel of the plaintiff in error is based upon the following instructions to the jury: “The taking of a human life is an act of such fearful import as not to be justified by anything short of an actual, present, and urgent danger, which makes the taking of life necessary.”“The danger which will justify the taking of human life must be actual and impending.”“Such necessity cannot arise when,” etc.“The danger which will justify the killing of a human being must be actual and impending, with no obvious means or opportunity to avert or safely escape it.”“And it must be a danger which threatens at least some great personal injury.”These instructions, in which “actual danger” is so often repeated and intensified by the words “present,”“urgent,” and “impending,” and in which “necessary” is followed by “necessity,” are as emphatically and boldly erroneous as language could make them.By all the leading authorities in this country at the present day, this is not the law of self-defense, and yet the court, with emphasis and reiteration, impresses it upon the minds of the jury.The learned attorney general virtually concedes that such is not the law.The learned counsel of the plaintiff in error cites some late cases in point.State v. Keasling, (Iowa,)38 N. W. Rep. 397;Vollmer v. State, (Neb.)40 N. W. Rep. 420;People v. Gonzales, (Cal.)12 Pac. Rep. 783;Stanley v. Com., (Ky.)6 S. W. Rep. 155;State v. Shelton, (Iowa,)20 N. W. Rep. 459; Horr. & T. Self-Def.104.But the court afterwards instructed the jury as follows: “The person assailed may act upon a reasonable appearance of imminent danger.So that, if the appearance of impending danger is such that it reasonably may, and in fact does, cause the assailed person to believe, and he does in fact believe, that danger of some great personal injury is actually impending over him, and there is no other reasonably safe means or way to avert or escape it, he will be justified in using such means and weapons as he has at hand, or as the situation affords in his self-defense.”This is claimed to be a sufficient explanation or qualification of the above erroneous instructions.The qualifying words “in reasonable appearance,” and “that it reasonably may cause the assailed to believe,” come very near repeating the erroneous instructions.This qualifying instruction is found in a very long sentence, with a great many qualifying words, and would be very difficult for the jury to remember in full, while the erroneous instructions are short, pungent, and pithy, and easily penetrate the mind, and gain lasting lodgment in the memory.This instruction is not given to qualify the others, and the others are allowed to remain unqualified and unchanged, as if perfectly consistent with this.But, besides this, the above instructions were in effect repeated afterwards as follows: “If you shall believe that the killing was necessary in his lawful self-defense, and justifiable, your verdict should be that the defendant is not guilty; but, if you should find that the killing was not necessary, and so not justifiable, then you will inquire whether it was the crime of manslaughter.”This again made the defendant's justification depend upon the actual necessity to take life, and this is the last deliverance of the court to the jury on the subject.In People v. Gonzales, supra, the instruction was: “But the necessity must be apparent, actual, imminent, absolute, and unavoidable.”This was held erroneous.In State v. Keasling, supra, the correct rule was given after similar erroneous instructions, and it was held that it did not cure the error, and states the true reason that the two instructions were conflicting and contradictory, and it can never be determined which the jury obeyed, or under which the verdict was found.State v. Shelton, 64 Iowa, 333, 20 N. W. Rep. 459, is to the same effect; also People v. Williams, (Cal.)15 Pac. Rep. 97;Van v. State, (Tex.)2 S. W. Rep. 882;Neyland v. State, 13 Tex. App. 536.

The second error is assigned upon the following instruction: “Nor will it justify the killing, if the necessity of the killing can be avoided by retreat.”Here the necessity is again repeated as the only justification of the killing, and, in application to this case, that it was incumbent upon the defendant to retreat, if he could thereby have avoided the necessity of killing the deceased under any circumstances.If the instruction was given as a general proposition, it is that retreat was necessary under any circumstances, and in all cases, before taking life, if retreat is open.The court erred in not stating the conditions under which retreat is necessary.The defendant did not retreat before killing the deceased.Therefore, he was not justifiable.This is the import of the instruction: “If any forcible attempt is made with a felonious intent against a person or property, the person resisting is not obliged to retreat, but may pursue his adversary until he finds himself out of danger.”Pond v. People, 8 Mich. 150.“Where an attack is made with murderous intent, the person attacked is under no obligations to fly.He may stand his ground, and, if need be, kill his adversary.”1 Bish.Crim. Law, § 850.“The obligation to retreat does not arise...