State v. Hazlett

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

16 N.D. 426

113 N.W. 374

STATE

v.HAZLETT.

Supreme Court of North Dakota.

Oct. 18, 1907.

Syllabus by the Court.

Upon the trial of a person charged with murder, and in which one of the defenses relied on is justifiable homicide, or self-defense, it is prejudicial error to instruct the jury that the burden of proof is upon the defendant to establish such defense by a preponderance of the evidence. The burden never shifts to the defendant to establish by a preponderance of the evidence either facts and circumstances in mitigation or excuse, or facts establishing an affirmative defense. But under section 10,023, Rev. Codes 1905, where the commission of such homicide has been established by the state, the burden is upon defendant of proving circumstances of mitigation, excuse, or justification, unless the state's proof tends to show that such crime only amounts to manslaughter, or that defendant's act was justifiable or excusable. But this does not mean that defendant is required to do more than show circumstances creating a reasonable doubt as to such matters.

A defendant in a criminal action is entitled to have submitted to the jury, with proper instructions, all defenses of which there is any support in the evidence, whether such defenses are consistent or inconsistent. It is accordingly held that the trial court properly instructed the jury upon the theory of accidental killing as well as that of justifiable homicide.

The defense of accidental killing was not an affirmative defense in the sense that defendant was bound to furnish proof of circumstances tending to substantiate the same. It is a denial of criminal intent, and the burden was upon the state of proving such intent beyond a reasonable doubt.

It was prejudicial error to permit the state to prove that the defendant had committed the crime of sodomy. Proof of such crime in no way tended to prove defendant's guilt of the crime charged against him. The rule announced in State v. Kent, 5 N. D. 516, 67 N. W. 1052, 35 L. R. A. 518, is held not applicable to the case at bar.

The trial court charged the jury that, if they believed from the evidence that the defendant had made statements out of court against himself, they had a right to treat such statements as true or false, just as they believed them true or false when considered in the light of all the other facts and circumstances in the case. Held, not error.

The trial court charged the jury as follows: “It is not enough that the party killing another believed himself in danger from the person killed, unless the facts were such that the jury, in the light of all the facts and circumstances known to the slayer or believed by him to be true, can say he had reasonable ground for such belief.” Held correct. But held, further, that defendant's conduct is not to be judged by what a reasonably cautious person might or might not do or consider necessary to do under like circumstances, but what he himself, in good faith, honestly believed and had reasonable ground to believe was necessary for him to do to protect himself from apprehended death or great bodily injury. The reasonableness of defendant's belief must be determined from his standpoint, and not from the standpoint of an ideal, reasonable person. (Spalding, J., dissents from the reasons given for sustaining said instruction.)

Where the evidence shows that a homicide was committed in the heat of passion and with provocation, the jury, in determining whether there was sufficient cooling time for the passion to subside and reason to resume its sway, should be governed, not by the standard of an ideal, reasonable person, but from the standpoint of the defendant in the light of all the facts and circumstances disclosed by the evidence. Whether there was cooling time is a question varying with each particular case and with the temperament of the party, and it is accordingly held that the instructions given by the trial court upon this subject constituted prejudicial error. (Spalding, J., dissenting.)

Certain rulings of the trial court in the admission and rejection of testimony examined, and held, prejudicial error.

Appeal from District Court, Sargent County; Frank P. Allen, Judge.

John B. Hazlett was convicted of murder in the first degree, and he appeals. Reversed, and new trial ordered.

W. S. Lauder and S. A. Sweetman, for appellant. T. F. McCue, Atty. Gen., E. W. Bowen, State's Atty., and C. E. Wolfe, for the State.

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 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 asked for, and the court refused, the following instruction: “The rule of law that the defendant must be acquitted unless the jury are satisfied as to his guilt beyond a reasonable doubt applies with equal force to self-defense, and if the jury, upon the whole case, entertain a reasonable doubt as to whether the defendant killed the deceased in self-defense, you must give the defendant the benefit of the doubt, and acquit him.”

To the giving of the first instruction, and to the refusal to give the latter, exceptions were duly taken and preserved in the record. These assignments of error will be consideredtogether. We entertain no doubt that the giving of the instruction complained of, and the refusal to instruct as requested, was prejudicial error requiring a reversal of the judgment and the ordering of a new trial. The instruction asked for correctly stated the law, and the instruction given was clearly erroneous, according to the overwhelming weight of authority, as well as upon principle and reason. The question of justifiable, as well as excusable, homicide, as properly held by the trial court, was, under the evidence, necessarily in the case. It is, we think, a well-established rule in criminal jurisprudence that a defendant is entitled to have submitted to the jury, with proper instructions, all defenses of which there is any support in the evidence, whether such defenses are consistent or inconsistent. That there was evidence sufficient to require submission to the jury of the questions both of excusable and justifiable homicide we think clearly appears from an examination of the record. In a...