State v. Bell

• Decision Date: 30 December 1916
• Docket Number: 3904
• Citation: State v. Bell, 38 S.D. 159, 160 N.W. 727 (S.D. 1916)
• Parties: STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. FRED M. BELL, Defendant and Appellant.
• Court: South Dakota Supreme Court

38 S.D. 159, 160 N.W. 727 (1916)

STATE OF SOUTH DAKOTA,

Plaintiff and respondent,

v.FRED M. BELL,

Defendant and Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Perkins County, SD

Hon. Raymond L. Dillman, Judge

#3904—Reversed

Harry P. Atwater

Attorney for Appellant.

Clarence C. Caldwell, Attorney General

Byron S. Payne, Assistant Attorney General

Attorneys for Respondent.

Opinion filed December 30, 1916.Rehearing denied February 7, 1917

POLLEY, P. J.

Appellant was convicted of manslaughter in the first degree, and sentenced by the trial court to a term of 14 years in the penitentiary.From this judgment, and from an order denying a new trial, he has appealed to this court.

Numerous errors are assigned upon the admission and rejection of evidence, the instructions of the court, the refusal to give requested instructions, and the insufficiency of the evidence to support the verdict.

Appellant was charged in the information with the killing of one Claud Herron, in Perkins county, on the 13th day of May, 1915.Defendant admitted that he killed Herron, but it is claimed by defendant that it was done in the necessary defense of his own person, and was therefore justifiable.The question whether the homicide was justifiable or not is presented by the exception, to the sufficiency of the evidence, and a determination of this question requires a review of the testimony.

At the time of the homicide, the appellant was living with his family on a homestead in Perkins county, and had been living there for about 4 years.A short time before the homicide, he and another party had brought a band of sheep into the neighborhood and were grazing them in that vicinity.The deceased claimed an interest in certain tracts of land in the vicinity, and objected to having it grazed, by said sheep.On the morning of the homicide, the deceased, in company with three other parties(Miller, Stillman and Conway), all on horseback, rode up to the appellant's house.Miller and Stillman were neighboring ranchers, and Conway was working for the deceased.When within a few feet of the door, the deceased called to defendant, who was in the house, and told him to come outside; that he wanted to talk with him.Appellant replied by saying, "Can't you talk to me just as well where I am?" and his wife asked practically the same question, to which deceased replied, "No, you must come out here."Defendant then went outside and he and deceased went a short distance from the house.The other three followed up on their horses.They all stopped by some buggies that were standing about 40 feet from the door and the deceased dismounted.A controversy then took place between defendant and deceased regarding the sheep.Deceased claimed that appellant had allowed the sheep to run on the land in question, while appellant claimed that he had been keeping them off said land.Miller also claimed that the sheep had been on land that he was looking after.There is a dispute as to what was said next.Miller (who was a witness for the state) testified that deceased said to defendant:

"I want you to take them sheep off and take them back and shut the gate and keep them off."

The appellant, which on the stand, testified that deceased said:

"We want you to take your God damn sheep and get out of the country and close the gates.Do you understand ?"

This remark appears to have been understood, by defendant's wife at least, as a warning to defendant to take his sheep and get out of the country, for at that point she said:

"It is my home, and we have a right to stay here if we want to."

At that remark the deceased, raising one hand in the direction of defendant's wife, said:

"Don't pay any attention to what she says.I have seen better women come out of whore houses and dance halls than she is."

Upon the making of that remark, the defendant started for the house, and deceased produced a pistol (a 45 caliber Colt's revolver that until then he had had concealed on his person).Whether appellant turned and ran toward the house, or whether he went backward, is a disputed question.The witnesses for the state testified that he turned and ran, while the appellant testified that he walked backward.It is not material how he went.He was trying to get away from deceased, who immediately upon drawing the revolver had commenced striking appellant over the head and shoulders with it.This pistol is of sufficient size and weight to constitute a dangerous weapon when used as a club as well as when used as a firearm.This continued until they were within a few feet of the door, when an opportunity offered, and defendant struck deceased a heavy blow on the face with his fist.This blow staggered deceased and, according to some of the witnesses, knocked him down.Immediately after striking deceased and as quickly as possible, appellant stepped into the house, got a shotgun, and came outside and took two steps to the right of the door.When defendant came out of the house with the shotgun, deceased was on his feet, with the pistol in his hands.The witnesses for the state testified that, at this time, the deceased was in a partially dazed and unsteady condition, but it is evident that he was sufficiently conscious to know what he was doing, and also knew where defendant was at that time, for, as appellant stepped to the right of the door, deceased fired the pistol; the bullet striking the ground just in front of defendant.Appellant then raised the shotgun and fired at deceased, killing him almost instantly.

Under these circumstances, was the danger, or apparent danger, in which appellant was placed by the assault and demonstration made by the deceased sufficient to warrant the appellant in shooting the deceased?That one man has a right to slay another in the rightful defense of his own person or of others under his protection has always been recognized by the law, and, if the circumstances are such as to justify the slayer in an honest belief that he is in danger, it is not necessary that such danger should actually exist.If "there is reasonable ground to apprehend a design to commit a felony or to do some great personal injury and imminent danger of said design being accomplished" it is sufficient.Section 286, Pen. Code.In Wharton on Homicide(3d Ed.) § 225, the rule is stated as follows:

"The law of self-defense is founded on necessity, and it may be stated generally that, before a homicide can be justified, it must appear that the slayer was in great peril of death or serious bodily harm or had reasonable ground, for believing, and did believe, that he was in such peril, and, that the killing was necessary to avert such peril, and that no other reasonable means of avoiding it was open."

And, again, in section 226, the same author says:

"It is the apparent, and not the real, necessity to kill in self-defense against death or great bodily harm which controls the question of justification; in such cases one has the right to act on the reasonable appearance of things....