State v. McCann
| Decision Date | 22 June 1897 |
| Citation | 16 Wash. 249,49 P. 216 |
| Parties | STATE v. MCCANN ET AL. |
| Court | Washington Supreme Court |
On rehearing. Reversed.
For former opinion, see 47 P. 443.
On December 22d last an opinion was rendered by us whereby the judgment of conviction had in this case in the lower court was affirmed. 47 P. 443. Thereafter a petition for a rehearing was filed, to which the court directed an answer by the state, and a rehearing was subsequently granted, and the cause assigned for argument at the last term. Upon such reargument and further consideration of the case, a majority of the court have come to the conclusion that the former decision ought not to stand. It will not be necessary to reconsider the entire case, as we are satisfied with the views indicated in the former opinion in the discussion of most of the questions, and a number of them will not be likely to arise upon a retrial of the cause. Some will be eliminated in consequence of the acquittal of Michael McCann. We have been led to grant a retrial upon the further consideration of the case as to one question only, and that is the instruction set forth given by the court to the jury upon the subject of self-defense, wherein the court charged the jury that: "To justify the taking of life in self-defense, it must appear from the evidence that the defendant or defendants not only really and in good faith endeavored to decline any further struggle, and to escape from their assailant before the fatal shot was fired," etc. The objectionable part of this instruction is the clause wherein the court told the jury that it was incumbent upon the defendants to endeavor to escape from the deceased. We were not entirely satisfied with this instruction upon the former hearing. It must be conceded that the meaning which would ordinarily be attached to the word "escape," as here used, would be to "get away," to "flee"; and in that sense we were of the opinion that it would have been erroneous. But we were also of the opinion that it had not been excepted to upon that ground, and that from what did appear relating to the exception taken thereto, and of its having been followed by the two other instructions set forth, mentioning the matter of withdrawing, etc., it was probable that it was not understood in the sense that the defendants were called upon to run away when the deceased appeared with the rifle. Upon further consideration of the question, a majority of ...
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...Cal.App.2d 281, 82 P.2d 457; People v. Payton, 36 Cal.App.2d 41, 96 P.2d 991; State v. McCann, 16 Wash. 249, 47 P. 443, on rehearing 16 Wash. 249, 49 P. 216; 3 Wharton, Criminal Evidence (11th Ed.) p. 226.9 Sanders v. People, 109 Colo. 243, 125 P.2d 154.10 101 Utah 298, 119 P.2d 112, 113.11......
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