State v. Ballou

• Citation: 20 R.I. 607,40 A. 861
• Parties: STATE v. BALLOU et al.
• Decision Date: 07 July 1898
• Court: United States State Supreme Court of Rhode Island

40 A. 861

20 R.I. 607

STATE

v. BALLOU et al.

Supreme Court of Rhode Island.

July 7, 1898.

Walter Ballou was convicted of manslaughter, and he petitions for a new trial. Denied.

Charles F. Stearns, Asst. Atty. Gen., for the State.

Cases cited by assistant attorney general: Whart. Cr. Ev. (8th Ed.) § 335, and cases cited, also sections 331, 334, and cases cited; Ryder v. State (Ga.) 28 S. E. 246; Ware v. State, 67 Ga. 349; State v. Schwirtzer, 57 Conn. 532, 18 Atl. 787; People v. Schryver, 42 N. Y. 1; Flanagan v. People, 52 N. Y. 467; Walker v. People, 88 N. Y. 81; Com. v. York, 9 Mete. (Mass.) 93; Com. v. Webster, 5 Cush. 295; Com. v. Choate, 105 Mass. 451; Com. v. Eddy, 7 Gray, 583; State v. Rollins, 113 N. C. 722, 18 S. E. 394; State v. Welsh, 29 S. C. 4, 6 S. E. 894; State v. Brown, 34 S. C. 41, 12 S. E. 662; State v. Johnson, 91 Mo. 439, 3 S. W. 868; State v. Jones, 78 Mo. 278; Silvus v. State, 22 Ohio St. 90, approved in Weaver v. State, 24 Ohio St. 584; Com. v. Drum, 58 Pa. St. 9; Com. v. Gentry, 5 Pa. Dist. R. 703; State v. Jones, 20 W. Va, 764; State v. Hill (La.) 14 South. 294; State v. Bertrand, 3 Or. 61; State v. Knight, 43 Me. 1; State v. Lawrence, 57 Me. 574; State v. Fry, 67 Iowa, 478, 25 N. W. 738; State v. McCracken, 66 Iowa, 569. 24 N. W. 43; State v. Hamilton, 57 Iowa, 596, 11 N. W. 5; State v. Patterson, 45 Vt. 308; People v. Milgate, 5 Cal. 127; People v. Arnold, 15 Cal. 476; Mitchell v. State, 5 Yerg. 340; Howard v. State, 110 Ala. 92, 20 South. 365; People v. Allender (Cal.) 48 Pac. 1014; Coleman v. Territory (Okl.) 47 Pac. 1079; State v. Spencer, 21 N. J. Law, 196; Green v. State, 28 Miss. 687; State v. Johnson, 48 N. C. 266; State v. Scott (La.) 21 South. 271; Thomp. Trials, p. 2489, cases cited; Underh. Ev. p. 23, cases cited.

Franklin P. Owen, for defendant.

Cases cited by counsel for defendant: Henson v. State, 112 Ala. 41, 21 South. 79; Casey v. State, 49 Neb. 403, 68 N. W. 643; Granley v. State, 51 Neb. 106, 57 N. W. 751; Ford v. State, 73 Miss. 734, 735, 19 South. 665; Davis v. D. S., 160 U. S. 469, 16 Sup. Ct. 353; Boykin v. People, 22 Colo. 496, 45 Pac. 419; Lovejoy v. State, 62 Ark. 478, 36 S. W. 575; Blankenship v. State, 55 Ark. 244, 18 S. W. 54; State v. Taylor, 118 Mo. 153, 24 S. W. 449; State v. Woolard (Mo. Sup.) 20 S. W. 27; Trogdon v. State (Ind. Sup.) 32 N. E. 725; Plake v. State, 121 Ind. 433, 23 N. E. 273; Jamison v. People, 145 Ill. 357, 34 N. E. 486; Hornish v. People, 142 Ill. 620, 32 N. E. 684; Ochs v. People (Ill. Sup.) 16 N. E. 662; Ackerson v. People, Id. 847; Armstrong v. State, 30 Fla. 170, 11 South. 618; People v. Ah Gee Yung, 86 Cal. 144, 24 Pac. 860; People v. Nelson, 85 Cal. 421, 24 Pac. 1006; People v. Allender (Cal.) 48 Pac. 1014; People v. Downs, 123 N. Y. 558, 25 N. E. 988; Id., 56 Hun, 5, 8 N. Y. Supp. 521; People v. Riordan, 117 N. Y. 71, 22 N. E. 455; Baker v. State, 53 N. J. Law, 45, 20 Atl. 858; Sherlock v. State (N. J. Sup.) 37 Atl. 435; Rhodes v. State (Ind. Sup.) 27 N. E. 866; State v. Raymond (N. J. Sup.) 21 Atl. 328; State v. Schweitzer, 57 Conn. 532, 18 Atl. 787; State v. Dill (Del. Gen. Sess.) 18 Atl. 763; Gallaher v. State, 28 Tex. App. 247, 12 S. W. 1087; State v. Wait (Kan. Sup.) 24 Pac. 354; State v. Child, 40 Kan. 482, 20 Pac. 275; State v. Ward (Vt.) 17 Atl. 483; Harrison v. State (Ga.) 9 S. E. 542; State v. Chee Gong, 16 Or. 534, 19 Pac. 607; People v. Aiken (Mich.) 33 N. W. 821; State v. Ardoin, 49 La. Ann. 1145, 22 South. 620; Wright v. Territory, 5 Okl. 78, 47 Pac. 1069.

TILLINGHAST, J. This is an indictment for manslaughter. At the trial of the case in the common pleas division in Kent county, the defendant Charles Ballou was found not guilty, and the defendant Walter Ballou was found guilty. Walter Ballou now moves for a new trial, on the ground that he did not have a fair trial: (1) Because he asked for a separate trial, which request was refused, and (2) because certain rulings of the presiding justice were erroneous.

1. We fail to see, from an examination of the record, that the defendant was in any way prejudiced by reason of the refusal of the court to grant him a separate trial; and therefore, so long as the granting of the motion was discretionary with the trial court (1 Bish. Cr. Proc. § 959; Whart. Cr. PI. § 309; Whitehead v. State, 10 Ohio St. 449), we see no reason for disturbing the verdict on this ground. The argument of defendant's counsel that, under the ruling aforesaid, the defendant was deprived of his statutory right to challenge one juror in four (Gen. Laws R. I. c. 243, § 2), is met by the decision of this court to the contrary in State v. Sutton, 10 R. I. 159.

2. The second assignment of error relates to the exclusion in cross-examination of the testimony of William Johnson, a son of the deceased, as to whether he did not say, in a conversation with the defendant Charles Ballou, shortly after the affray, "that the old man [referring to witness' father] got just what he deserved." This was not in cross-examination of anything that the witness had testified to; and we do not see that, even if it had been answered in the affirmative, it would have in any way contradicted the testimony he had given in chief.

3. The third assignment of error is that the court erred in admitting certain testimony without explanation as to whether it applied to the defendant Walter Ballou. An examination of the record, however, clearly shows, we think, that the testimony referred to related only to Charles Ballou.

4. The fourth assignment of error is that the court erred in admitting certain testimony in rebuttal which should have been put in as direct. As this was clearly a matter resting in the sound discretion of the court, and, further, as it does not appear that the defendant was prejudiced by the order in which the testimony referred to was admitted, the mere fact that it should have been offered in chief furnishes no ground for a new trial.

5. The fifth assignment of error is that the court refused to charge (1) "that, if the jury believe the testimony of William Johnson, then both of the defendants cannot be found guilty as charged in the indictment;" and (2) "that only upon the testimony of Philip Johnson can both the defendants be found guilty as charged." These requests were rightly refused. The witness William Johnson testified that he saw each of the defendants inflict personal violence upon the body of the deceased, viz. that he saw Charles Ballou knock him down, and then kick him in the face, and also that he saw Walter Ballou kick him (the deceased) in the face while he was in a kneeling position, with his hands up to his forehead. As to the second request, it was properly refused, because, as remarked by the court, "there was other evidence from which the jury could infer that both defendants were engaged in the assault on Johnson." Indeed, the jury were not left to inference alone in the matter, as is shown from the testimony of William Johnson above referred to, but had direct testimony as to the violence inflicted upon the deceased by both Charles and Walter Ballou.

6. The sixth assignment of error is based upon the modification made by the court of the sixth request to charge the jury, which request and modification were as follows: Request: "If the defendant Walter C. Ballou was lawfully upon the highway, and was assaulted by said Alfred A. Johnson with a dangerous weapon, to wit, a stone, he, the said Walter C. Ballou, was not bound to run or retreat, but had a right to defend himself with all necessary force to repel said assault; and if, in so doing, he used force which accidentally caused the death of said Alfred A. Johnson, then, the defendant Walter C. Ballou is not guilty." Modification: "But if Walter C. Ballou ran down towards Alfred A. Johnson, with hostile intention, and immediately attacked him, he is chargeable with the consequences of his act, and cannot excuse himself on the ground of self-defense." As thus modified or explained, the request was granted. We fail to see that any exception can properly be taken to the modification added by the court; for while it is ordinarily true, as set forth in the request, that a person who, while lawfully upon the highway, is assaulted by another, is not obliged to retreat, but may stand his ground and fight, meeting force with such force as is needful for his protection (State v. Sherman, 16 R. I. 631, 18 Atl. 1040), yet it cannot be claimed that, in such a case as that suggested by the modification aforesaid, the doctrine contended for has any application. Self-defense is ordinarily only permissible against an unlawful attack. The law applicable to this defense is thus stated by Mr. Wharton, in his excellent work on Criminal Law (see 8th Ed., vol. 1, § 97): "If A., unlawfully attacked by B., resorts to violent means to repel the aggression, his repulse of B. is lawful; but if B., in pursuance of the struggle, renews the attack on A., this is not self-defense, since self-defense only obtains against an unlawful attack, and A.'s attack on B. was lawful." In other words, as held in Adams v. People, 47 Ill. 376, a man has no right to provoke a quarrel, and take advantage of it, and then justify the homicide. Self-defense may be resorted to in order to repel force, but not to inflict vengeance. In State v. Linney, 52 Mo. 41, the law is stated thus: "There is certainly no law to justify the proposition that a man may be the assailant, and bring on an attack, and then claim exemption from the consequence of killing his adversary on the ground of self-defense. While a man may act safely on appearances, and is not bound to wait until a blow is received, yet he cannot be the aggressor, and then shield himself on the assumption that he was defending himself." See, also, Williams v. State, 3 Heisk. 376. These authorities are in accordance with the law as uniformly administered in this state. Thus, in the somewhat noted case of State v. Congdon, ...