State v. McCrory

• Decision Date: 03 November 1919
• Docket Number: 23740
• Court: Louisiana Supreme Court
• Parties: STATE v. McCRORY

83 So. 361

146 La. 15

STATE v. McCRORY

No. 23740

Supreme Court of Louisiana

November 3, 1919

Rehearing Denied December 1, 1919

Appeal from Twenty-Seventh Judicial District Court, Parish of Ascension; Philip H. Gilbert, Judge.

Jackson McCrory was convicted of shooting with intent to kill, and he appeals.

Affirmed.

Pugh &amp Lemann, of Donaldsville, for appellant.

A. V Coco, Atty. Gen., and George Seth Guion, Dist. Atty., of Napoleonville (T. S. Walmsley, of New Orleans, of counsel), for the State.

OPINION

DAWKINS, J.

Defendant was indicted and tried on a charge of shooting with intent to kill and murder, and, on a verdict of guilty as charged, the lower court sentenced him to serve a term of one year in the parish jail and to pay a fine of $ 1. From this verdict and sentence he has appealed.

The only question presented in the record is an exception to the overruling of defendant's motion for a new trial, based upon an alleged erroneous charge to the jury. The charge as given was as follows:

"A man may repel force by force in defense of his person, habitation, or property, against one who manifestly intends or endeavors by violence or surprise to commit a known felony, such as murder, rape, robbery, arson, and the like, upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and, if he killed him in so doing, it is called justifiable self-defense; but there must be actual danger at the time, from the violence and a reasonable belief that a felony is intended, or one's life is in danger."

The charge is undoubtedly faulty, in that it says that there must be an actual danger, whereas the law only requires that it should appear to the accused acting as a reasonable man under the particular circumstances to be real and imminent; and he is justified in acting in self-defense under those conditions, even though it should later develop that there was no real or actual danger. State v. Garic, 35 La.Ann. 970, 972; Wharton on Criminal Law (9th Ed.) vol. 1, p. 462 et seq., and section 488 et seq.

However the question is not presented in such form as will permit us to pass upon it. No objection was made to the charge when given, and the accused took his chances at being convicted or acquitted, and the matter comes too late when presented the first time in a motion for a new trial. We reviewed the jurisprudence on this...