State v. Hazlet

• Decision Date: 18 October 1907
• Citation: 113 N.W. 374,16 N.D. 426
• Court: North Dakota Supreme Court

113 N.W. 374

16 N.D. 426

THE STATE OF NORTH DAKOTA v. JOHN B. HAZLET

Supreme Court of North Dakota

October 18, 1907

Appeal from District Court, Sargent county; Allen, J.

John B Hazlet was convicted of murder in the first degree, and he appeals.

Reversed and new trial ordered.

Judgment reversed, and a new trial ordered.

W. S Lauder and S. A. Sweetman, for appellant.

The New York and California cases relied upon in State v. Yokum, 79 N.W. 835, upon which the trial judge based his instructions, and U. S. v. Crow Dog, 3 Dak. 106, do not apply; and the true rule is, if from the whole case, including the killing, the presumption of fact arising therefrom, and the evidence of justification, the jury entertain a reasonable doubt, as to the defendant's guilt, they must acquit him. Section 10023, Rev. Codes 1905; People v. Neary, 37 P. 943; People v. Powell, 25 P. 481; State v. Conahan, 38 P. 996; People v. Elliot, 22 P. 207; People v. Scott, 56 P. 102; People v. Lanagan, 22 P. 482; People v. Dillon, 30 P. 150; People v. Tidwell, 12 P. 61; People v. Callaghan, 6 P. 49; Barton v. Territory, 85 P. 730; State v. Earnest, 42 P. 359; Kent v. People, 9 P. 852; People v. Susser, 75 P. 1093; Trumble v. Territory, 21 P. 1081; 6 L. R. A. 384; 6 Enc. of Evidence, 593, 597; People v. Downs, 25 N.E. 988; People v. Riordan, 22 N.E. 455; People v. Stokes, 53 N.Y. 164; Brotherton v. People, 75 N.Y. 159; O'Connell v. People, 87 N.Y. 377; People v. Pallister, 33 N.E. 741; People v. Shanley, 63 N.Y.S. 499; 21 Cyc. p. 882, note 76; State v. Bone, 87 N.W. 507; State v. Shea, 74 N.W. 687; State v. Schweitzer, 6 L. R. A. 125; State v. Usher, 102 N.W. 101; Copps v. State, 97 N.W. 210; Lillianthol Tobacco Co. v. U.S. 97 U.S. 266, 24 L.Ed. 901; Boykin v. People, 45 P. 419; Wascaser v. People, 25 N.E. 564.

The court should have charged that the defendant should not be convicted if upon the whole case, the jury entertained a reasonable doubt of his guilt. People v. Downs, 25 N.E. 988; Tilley v. State, 24 Tex.App. 251; 5 Am. St. Rep. 882.

Instruction as a whole must be consistent and not misleading. 1 Blashfield on Instructions, sections 73 to 78, and note 93.

Upon a trial for one offense, proof that accused committed another is inadmissible. Ferris v. People, 129 Ill. 521, 16 Am. St. Rep. 283; State v. Raymond, 53 N.J.L. 206, 2 Am. St. Rep. 405; People v. Molineux, 61 N.E. 286; People v. Meyers, 15 P. 95; People v. Sharp, 14 N.E. 319; Shaffer v. Commonwealth, 77 Pa. 63; Martin v. Commonwealth, 19 S.W. 580; Cotton v. State, 17 So. 372; State v. Kent, 5 N.D. 516, 67 N.W. 1052.

The test of justification is, whether accused in good faith did believe that the danger was imminent, and acted honestly in that belief. Wharton on Crim. Law (8th Ed.) 488; People v. Lennon, 15 Am. St. Rep. 259.

Assuming that defendant intentionally killed deceased under provocation, the question for the jury is not whether a reasonable time had elapsed for an ordinary man to cool, but whether the defendant himself had in fact cooled. 1 Wharton on Crim. Law, (8th Ed.) 480; State v. Grugin, 71 Am. St. Rep. 553.

T. F. McCue, Attorney General, E. W. Bowen, State's Attorney, and Chas. E. Wolfe, for respondent.

It is competent to prove motive for homicide. Rice on Crim. Evidence, 447, Par. 281.

A separate offense, when allied to the motive in the homicide may be proven. State v. Kent, 5 N.D. 550, 67 N.W. 1052, 35 L. R. A. 518.

The instruction, "it must appear that the circumstances were sufficient to excite the fears of a reasonable man and the party killing acted under the influence of those fears," is correct. 2 Blashfield on Instructions to Juries, par. 1516; Mize v. State, 36 Ark. 61; State v. Stockton, 61 Mo. 382; Wall v. State, 51 Ind. 543; Thompson v. State, 54 Ga. 47; State v. Usher, 111 N.W. 811; Judge v. State, 58 Ala. 406; Davis v. People, 88 Ill. 350; Jackson v. State, 6 Baxter, Tenn., 452; State v. VanSant, 80 Mo. 67; Crews v. People, 120 Ill. 317; Close v. Cooper, 34 Ohio St. 98.

The instruction as to "cooling time," was correct. 2 Blashfield on Instructions, Par. 1505; State v. Shelleday, 8 Iowa 485; State v. Cants, 1 Spear S. C. 384; Kilpatrick v. Commonwealth, 31 Pa. 198; Smale v. Commonwealth, 91 Pa. 304.

Instruction as to burden of proof was correct. Rev. Codes 1905, section 10023.

This section is from California and was approved in People v. Milgate, 5 Cal. 127; People v. Stonecifer, 6 Cal. 405; People v. Hong Ah Duck, 61 Cal. 387.

The adoption of a statute of a sister state, brings with it the construction placed upon it by the latter. Oswald v. Moran, 8 N.D. 111, 77 N.W. 281; Cass County v. Security Improvement Co., 7 N.D. 528, 75 N.W. 775; Stutsman Co. v. Wallace, 142 U.S. 293, 12 L.Ed. 227; People v. Ritchie, 12 Utah 193.

Subsequent reversal of a decision construing a statute by the state of its origin, is without effect in the state of adoption. Stutsman Co. v. Wallace, supra; Barnes v. Lynch, 59 P. 995.

When defendant seeks to prove a fact in opposition to the presumption of guilt arising from the proof or admission of the homicide, he must do so "to the satisfaction of the jury by a preponderance of the evidence." People v. Schryver, 42 N.Y. 1; State v. Yokum, 79 N.W. 835; State v. Schmidt, 19 S.D. 585; Tanks v. State, 71 Ark. 459; Alderman v. Territory, 60 P. 876; People v. Mathai, 67 P. 694; Kent v. People, 9 P. 852; Murphy v. People, 37 Ill. 447; Territory v. Rowland, 8 Mont. 110; People v. Tidwell, 4 Utah, 49; State v. Bertrand, 3 Ore. 61; Dixon v. State, 13 Fla. 663; Bell v. State, 69 Ga. 752; State v. Tabor, 95 Mo. 585; State v. Keith, 9 Nev. 15; State v. Barringer, 19 S.E. 275; Commonwealth v. Drum, 58 P. 9; Gibson v. State, 89 Ala. 121; Commonwealth v. Webster, 59 Mass. 295; Hawthorne v. State, 58 Miss. 778.

FISK, J. MORGAN, C. J., concurs. SPALDING, J. (dissenting in part).

OPINION

FISK, J.

Appellant, having been convicted in the district court of Sargent county of the crime of murder in the first degree, and sentenced to imprisonment in the penitentiary for life, brings the case to this court for review of alleged errors of law claimed to have been committed by the trial court in giving certain instructions to the jury and in refusing to give certain other instructions requested by his counsel; also in making certain rulings relating to the admission and rejection of testimony. Eighty-two assignments of error are set forth in appellant's brief, but we will notice those only which have been discussed therein, treating those not discussed as abandoned under rule 14 of this court.

We will dispose of these assignments in the order in which they are presented in appellant's printed brief, first calling attention to a few of the salient facts which are apparently not in dispute and which are narrated in the brief of appellant's counsel, as follows: "It is uncontradicted that at about the hour of 9 o'clock a. m. of the 16th day of March, 1906, the deceased went from his home to a small butcher shop in the village of Veda. So far as known, he had no business there, but went simply to visit with the young man in charge of the place. It is conceded that at the time he had a loaded revolver on his person. About 9:30 o'clock defendant also called at this same butcher shop. It was, and is, claimed by the defense that the defendant called at the butcher shop on business, and that at the time he did not know that the deceased was there. On going to the butcher shop, the defendant carried with him a loaded shotgun. His purpose in taking the gun with him, as claimed by defendant, appears in the testimony. It is uncontradicted that immediately upon defendant entering the room a quarrel arose between defendant and deceased; that the shotgun which at the time was in the hands of defendant, was discharged, and the deceased instantly killed. On behalf of the defendant, it was contended: First, that the deceased attempted to take the gun from the possession of the defendant, and that while the two were struggling for the possession of the gun it was accidentally discharged, and deceased was killed; and, second, that if defendant consciously and intentionally fired off the gun, he did so in necessary self-defense. The two men had been personal enemies for some time prior thereto, and the deceased had made frequent and vicious threats against the life of defendant."

The first error assigned is predicated upon the giving of the instruction relative to the burden of proof as to the questions of excusable and justifiable homicide, as follows "If, in this case, therefore, the killing by the defendant of Van Buskirk has been proved to your satisfaction beyond a reasonable doubt, then the burden of proving circumstances of mitigation, or circumstances that justify or excuse that killing, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justified or excusable. Under such circumstances, the defendant must prove circumstances in mitigation, excuse, or justification by a preponderance of the evidence, and it is not sufficient that the proof as to such circumstances raises a reasonable doubt as to such mitigation, excuse or justification. In other words, with the exceptions just stated, when a man takes human life, and the killing is proved or admitted, and he claims justification, as that the killing was in self-defense, or that it was excusable, as that the killing was accidental, it is not sufficient for him to raise a reasonable doubt whether he was justified or excusable or not, but he must go one step further, and give satisfactory evidence that he was justified or excused." Upon the same subject, appellant's counsel...