State v. Cushing

• Decision Date: 21 May 1896
• Citation: 45 P. 145,14 Wash. 527
• Parties: STATE v. CUSHING.
• Court: Washington Supreme Court

45 P. 145

14 Wash. 527

STATE v. CUSHING.

Supreme Court of Washington

May 21, 1896

Appeal from superior court, Spokane county; Norman Buck, Judge.

Theodore Cushing was convicted of murder in the second degree and appeals. Reversed.

Blake & Post and P. H. Winston, for appellant.

J. W Feighan, for the State.

GORDON J.

The appellant was charged, in the superior court for Spokane county, with the murder of Thomas King. He was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a period of 10 years. From this judgment he appeals.

The appellant admits that he did the shooting which caused the death of the deceased, but claims that he did it in self-defense. The shooting occurred upon the premises of the appellant, near the city of Spokane. There were no eyewitnesses to the fatal encounter. It appeared, from the evidence, that the deceased had been in the employ of the appellant on the farm where the killing occurred, and that he had been so employed for a period of about eight months immediately preceding the day of the homicide. It further appears that he did not live on the premises, but kept house with another bachelor on an adjoining farm. On the morning of the 14th of May, 1895, the day on which the shooting occurred, the deceased put in an appearance at the home of the appellant as usual, and asked for the amount of wages that was then due him. A wordy dispute followed between the parties. Upon his own behalf the appellant testified that he told deceased that he did not then have the money to pay him that he would do so on the following day; that thereupon the deceased became abusive, and threatened the appellant with violence; that he continued to follow the appellant, from place to place about the premises, from about half past 7 in the morning until about 11:30, when the shooting actually occurred. He further testified that he repeatedly ordered the deceased from his premises, and that he refused to go; that King's conduct continued to become more violent; that, becoming alarmed and fearful for his own safety, the appellant went into his house, and procured his shotgun, for the double purpose, as he says, of defending himself against any attack that King might make upon him, and in the belief that, finding him armed, King would withdraw from the premises; that, when he appeared outside of the house with the gun, the deceased rushed upon him, armed with a club uplifted in his hand; that thereupon he (appellant) fired, "aiming low, with a view to disable him, not to kill him." This shot took effect in the legs of the deceased. Continuing, the appellant testified as follows "The instant that the shot was fired, he raised his head up, and came for me, with the club uplifted, and muttering curses, and I thought he had not been hit, and I immediately proceeded to reload. During the time that I was reloading he had gotten up to just a few feet of me. I don't think it was over eight or ten feet, and when I fired this time he repeated his movement,-that is, ducking his head and turning his body,-only this time he bent further down." The second shot was received by the deceased in the back, a little below the kidney, on the right side of the spinal column, from the effects of which death resulted in about four hours thereafter. Although conscious, and able to converse, until final dissolution came, the deceased gave no account of the circumstances leading to the shooting. The testimony also tended to show that the appellant, immediately after the shooting, in answer to a question as to how it occurred, stated, in the presence and hearing of King, that he (appellant) "had to do it," and that he did it in self-defense, to which statement King made no response.

Counsel for the appellant requested the trial court to give the following instruction to the jury: "The defendant, while on his own premises, outside of his dwelling-house, was where he had a right to be, and, if you find that the deceased advanced upon him in a threatening manner, and the defendant at the time had reasonable grounds to believe, and in good faith did believe, that the deceased intended to take his life or do him great bodily harm, the defendant was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack made upon him, in such a way and with such force as, under all the circumstances, he at the moment honestly believed, and had reasonable grounds to believe, was necessary to save his own life or protect himself from great bodily injury." The court refused to so instruct, and appellant excepted. Upon its own motion, however, the court instructed as follows: "Before a person can justify taking the life of a human being by self-defense, he must employ all reasonable means within his power, consistent with his own safety, to avert the necessity for the killing." We think that this instruction, in connection with the entire charge, might reasonably have tended to create the impression upon the minds of the jurors that it was the duty of the appellant, notwithstanding that he was upon his own premises, where he had the lawful right to be, to retreat from any assault then being made or threatened by the deceased; and this impression is strengthened by the fact that the instruction requested by the appellant and refused by the court contained a correct statement of the law upon the subject, as laid down by the supreme court of the United States in the case of Beard v. U. S., 15 S.Ct. 962, and supported in Baker v. Com. (Ky.) 19 S.W. 975; Runyan v. State, 57 Ind. 80; Miller v. State, 74 Ind. 1; Erwin v. State, 29 Ohio St. 186; Bohannon v. Com., 8 Am. Rep. 474; White v. Territory, 3 Wash. T. 397, 19 P. 37; Williams v. State (Tex. App.) 17 S.W. 1071; Fields v. State (Ind. Sup.) 32 N.E. 780. Not only does the instruction under consideration contain a correct statement of the law, but it was applicable to the evidence, and it was the right of the defendant to have it, or some equivalent instruction, submitted to the jury.

2. There was evidence tending to show that the deceased had prior to the morning of the encounter, in conversation with different parties, made threats against the appellant, none of which, however, were communicated to the appellant. It further appeared, by the testimony of the appellant himself, that, on the morning of the encounter, the deceased made repeated and violent threats against him. The following instruction upon the subject of threats was requested and refused: "Uncommunicated threats are only valuable, in a case of this kind, as tending to show the feelings and interest of the deceased towards the defendant at the time of their encounter, and whether or not the deceased was the first assailant, and whether or not the deceased so acted at the time of the shooting as to induce in the mind of the defendant an honest belief that the deceased intended to kill him or do him...