State v. Gardner

• Decision Date: 24 November 1905
• Docket Number: 14,532 - (20)
• Citation: 104 N.W. 971,96 Minn. 318
• Parties: STATE v. JOSEPH GARDNER
• Court: Minnesota Supreme Court

104 N.W. 971

96 Minn. 318

STATE v. JOSEPH GARDNER

Nos. 14,532 - (20)

Supreme Court of Minnesota

November 24, 1905

Defendant was convicted in the district court for Itasca county, Spooner, J., of the crime of murder in the second degree and sentenced to confinement for life in the state's prison. From the judgment of conviction, and from an order denying a motion for a new trial, defendant appealed. Reversed and new trial ordered.

SYLLABUS

New Trial.

Technical errors in rulings on evidence, which do not result in prejudice to the accused, and which can in no reasonable way affect the result of the trial, are not sufficient basis for granting a new trial in criminal prosecutions. State v Nelson, 91 Minn. 143, followed and applied.

Homicide -- Self-Defense.

In a trial for homicide in which there is an attempted justification by self-defense, it is reversible error to charge that such justification cannot be made out unless the accused in good faith endeavored to escape, although the jury was also instructed that he was not necessarily bound to retreat, where the proven circumstances preclude any practical means of escape or retreat without great increase in peril of death or of great bodily harm.

Retreat to the Wall.

The application of the doctrine of "retreat to the wall," originating, as it did, before the general introduction of firearms, has due reference to the difference in danger between a hand to hand encounter with fists, clubs, or even knives and an encounter in an open space, involving the use of repeating rifles by men experienced in handling them.

Charge to Jury.

In this case an instruction as to the duty to escape was not applicable to one of the state's theories of guilt, namely, that the defendant went to the residence of the deceased with the deliberate intention of killing him, and, finding him at work in his curtilage, immediately shot him, because no question of self-defense was involved.

Charge to Jury.

Nor was such a charge applicable to its other theory, based on defendant's own statements to the sheriff and county attorney, whom he summoned to the scene of action, and to whom he narrated its details, and on his own similar testimony on the witness stand in his own behalf. According to that narrative, two resolute and neighboring frontiersmen quarreled over a crop of hay. Knowing of repeated threats by the other to kill him, the defendant went, at the request of, to the place of, the deceased, taking with him his rifle, in accordance with the custom of the wild and unsettled country, and also a compass and auditor's hay receipt, with which to settle the dispute. The deceased, at work in the open space about the house, was shot and killed while attempting to get his gun, near at hand, after the first words of address by the accused. An attempt to escape would have resulted in an unequal duel. If the defendant was justified in shooting, he was not required by the law to make a futile attempt at escape.

Charge to Jury.

Under the circumstances of this case, the trial court properly charged that the defendant could not have been convicted of manslaughter.

C. C. McCarthy, W. M. Steele and Frank F. Price, for appellant.

Edward T. Young, Attorney General, and George H. Spear, County Attorney, for respondent.

OPINION

JAGGARD, J.

The defendant and appellant, Gardner, a homesteader in what is still a vast wilderness in the northern part of this state, was a typical pioneer, industrious, courageous, and self-reliant. He was a postmaster and mail carrier at the time of his arrest. The best citizens of the neighborhood in which he then lived and in which he had formerly lived testified to his good reputation. His character was that of a quiet, peaceable, law-abiding man. He had had trouble with William Garrison, living alone on a piece of land two and a half miles morth of his place. Garrison, apparently a hardy man, of violent temper and quarrelsome disposition, and thoroughly familiar with the use of a rifle, on many occasions, and to a large number of different persons, had expressed his malice and hatred for the defendant, and his intention to kill him. Many of these threats were communicated to the defendant. At one time when this was done, the defendant said: "Well, we'll use him the best we know how; perhaps he will change." Garrison was thirty-five years of age, five feet eight or ten inches in height, weighting one hundred seventy-five to one hundred eighty pounds, and was very strong and active. Gardner was about forty-five years of age, five feet six and a half inches in height, weighing about one hundred thirty-eight to one hundred forty-two pounds. In the spring of 1904, defendant had purchased hay stumpage of lands east and adjoining Garrison's land. He informed Garrison of this purchase, who then said he would not allow Gardner to haul that hay. Both parties became angry, and had hot words. Garrison again told the defendant that he would never haul that hay.

On July 18, 1904, Gardner returned from Hibbing shortly before noon, and lay down on his bed. His son about non wakened him, and told him that several days before Garrison, who had come to get some potatoes stored by consent in Gardner's roothouse, had directed him (the son) in Gardner's own words, to

Tell your father when he comes home that he cut six tons of hay on my land last year, and to send him right down as soon as he comes home. I don't care whether Backus-Brooks pays for it or who pays for it, so I get my money.

Gardner also said he hadn't started to cut hay yet, but that he was going to start tomorrow. Thereupon defendant arose, put on his clothes, took his rifle, a compass, according to some, but not all, of the testimony, some mail belonging to Garrison, and the auditor's receipt for the payment of the hay stumpage. He testified that with no purpose of doing Garrison any harm, he intended to run the lines between the sections with Garrison, to show Garrison the receipt, and to prove that he had not cut any of Garrison's hay, and owned the hay stumpage for the year 1904. On his way, he saw that Garrison had cut some hay belonging to him. This made him angry, and he approached Garrison's place cursing, but he insists with the thought only that he would prosecute Garrison, and make him pay for the hay he had cut. He testified: "I can't say that I was extremely angry; I wasn't fighting angry; I was chewing-the-rag angry." Reaching Garrison's cabin, while going north, he found Garrison looking south, and standing astride a pole he was working on.

Garrison saw him, and, immediately facing him, moved over to the west side of the poles. At the same instant, defendant noticed Garrison's rifle leaning against the house or a stump. The distance between Gardner and Garrison was thirty-two feet; the distance between Garrison and the gun was thirty feet; the distance between Gardner and the gun was twenty feet. Gardner said to Garrison, with an oath: Who told you to cut that hay, Bill? Garrison leaped across the poles towards his gun, saying, as Gardner understood, "I'll show you." His face was distorted with passion, and he appeared to Gardner to be very angry. Gardner then called to Garrison, with the emphasis of an oath, "Hold on." Garrison jumped three feet towards his gun, and kept on going in that direction. At this time Gardner's gun was at rest in the hollow of his arm. He testified, in his own language, he knew that "Garrison was intending to get his gun to shoot me." To save his own life, thinking only of that, he fired at Garrison, and missed him. Garrison turned partially towards the defendant, commenced to maneuver by leaping back and forth and sideways, and was dodging in that way or going over a fence when defendant fired the second shot, which caused his death. A third shot was accidentally fired. Gardner finally found Garrison some distance away, and stood over him, and with a horrible imprecation said, "You have been working for this for a long time, and now you have got it."

He took Garrison's gun, went to his own house, sent one Otterman to Garrison's, and then walked and rode on a borrowed horse to Hibbing. There he caused a telegram to be sent to the sheriff of Itasca county at Grand Rapids, reading: "William Garrison shot in 64-23. Bring coroner and prosecuting attorney." Meanwhile Otterman having gone to Garrison's house, found that Garrison had crawled into bed, and was the solitary witness of his death. Just before his death, Garrison said: "If he [Gardner] hadn't of shot me, I would have shot him. I guess the cur has got my gun." When the sheriff and county attorney arrived, Gardner, who had been talking quite freely and not always consistently to a number of people, began to tell them about the tragedy. He was very properly and fairly cautioned by the county attorney as to the danger of the course, and that what he said might be used against him upon trial for murder. He persisted, explained the circumstances fully, accompanied the officers of the law to the scene of the tragedy, and there went over the details with them, indicating all the various places at which the different scenes occurred. Defendant was indicted for the crime of murder in the first degree. The verdict was guilty of murder in the second degree, and judgment was entered upon the verdict that the defendant be confined at hard labor in the state prison for the term of his natural life.

This case presents a state of facts peculiar to frontier life. All the direct evidence of what happened at the time of Garrison's death was supplied by the defendant himself. He had told many persons of the tragedy. His statements varied somewhat, but not materially. The circumstantial evidence was not conclusive as to either...