Roach v. People of State

• Decision Date: 31 January 1875
• Citation: 77 Ill. 25,1875 WL 8258
• Parties: JOHN ROACH et alv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

77 Ill. 25

1875 WL 8258 (Ill.)

JOHN ROACH et al

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding.

Mr. C. G. BRADSHAW, and Messrs. STEVENSON & EWING, for the plaintiffs in error.

Mr. JAMES K. EDSALL, Attorney General, and Mr. J. W. FIFER, State's Attorney, for the People.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

John Roach and Patrick Roach, the plaintiffs in error, were indicted at the November term, 1874, of the McLean circuit court, for manslaughter, in taking the life of John Byron Dunlap. The indictment contains three counts. The first count charges, in substance, that on October 10, 1874, in McLean county, the defendants unlawfully, feloniously and wilfully made an assault upon said Dunlap, with a knife held in the hand of John Roach, and upon the side of the left breast of said Dunlap then and there unlawfully, feloniously and wilfully did strike, cut, stab and thrust, giving to said Dunlap, then and there, with said knife, in and upon the left side of the breast, one mortal wound, of which he instantly died; then averring that said defendants the said Dunlap then and there, in manner and form as aforesaid, unlawfully, feloniously and wilfully did kill.

The second count is the same, only that it charges the same acts to have been done by John Roach, Patrick being present, aiding, abetting and assisting. The third count is the same, only it avers the killing to have been done with a club.

It appears, by the evidence upon both sides, that there was a controversy between the deceased and one Wilcox acting in concert with him, upon the one side, and the defendants upon the other, about the right of the former to take the water out of a certain well, or spring, for the purpose of watering stock, the defendants claiming to have a paramount right, the supply not being adequate for the stock of all parties.

Evidence was given, and not controverted, that Patrick Roach and one Maloy had previously dug out the well, or spring, so as to increase the supply; had put a fence around it, and the Roaches had been in the prior possession and use of it.

Nicolls, the owner of the land where the spring was, testified that, on the Friday before the homicide, one of the Roach boys called on him, and asked him if he had any objection to his (Roach) watering there. Witness said he did not care how many watered there. Roach then asked witness if had any objection to his digging the well deeper, and some one present asked who would have the right to the water. Nothing was said about the exclusive right, but some one said he thought the one that fixed it up ought to have the first right. Witness replied that he thought so, too; and this was all that was said on the subject. Upon this, as the evidence shows, Patrick Roach, with the assistance of Maloy, dug the well deeper, and put a fence around it.

The evidence tends to show that, after the well was thus fixed up by Roach and Maloy, the deceased and Wilcox, on the occasion of the homicide, came early in the morning with stock for the purpose of watering them before the Roaches had watered theirs, and from this attempt a conflict ensued, in which clubs were used upon both sides. The theory of the defense was that, after the fight had been continued until Patrick was knocked down and disabled, John was assailed by the deceased and Wilcox, one of them having a rock in his hand, which was thrown at him (John) with great violence, and that, acting under a reasonable and well-grounded belief that he was in danger of losing his life, or suffering great bodily harm, he used his knife in self-defense.

Upon some questions of fact, there was a sharp conflict of evidence; but there was testimony tending to support the alleged justification, that the killing was in self-defense.

The jury found both the defendants guilty, and fixed the term of imprisonment in the penitentiary twenty years for John and one year for Patrick, and they sue out a writ of error from this court.

The court, on behalf of the People, gave to the jury the following instruction:

“1. The court instructs the jury that, in case of a mutual conflict, he who would excuse himself upon the ground of self-defense, must show that, before a mortal blow was struck, he had declined any further conflict, and retreated as far as he could with safety; and, therefore, if the jury believe, from the evidence, beyond a reasonable doubt, that the defendants and John Byron Dunlap and the witness Wilcox were engaged in a mutual conflict, all being equally willing to engage in said conflict, and upon equal terms as to being armed, and that the defendants mortally wounded the said John Byron Dunlap while so engaged in mutual conflict, and without in any way having attempted to...