State v. Morey

• Decision Date: 30 April 1894
• Citation: 36 P. 573,25 Or. 241
• Parties: STATE v. MOREY.
• Court: Oregon Supreme Court

36 P. 573

25 Or. 241

STATE v. MOREY.

Supreme Court of Oregon

April 30, 1894

On rehearing. For prior report, see 35 P. 655.

BEAN, J.

Counsel for defendant not only insist that we are in error in the former opinion, but that there are other questions in the case, not heretofore called to our attention, which they now earnestly press as reversible error. Concerning the question presented at the former hearing, we think it necessary to add but little to what has already been said. To constitute murder in the first degree, it is not necessary that the deliberate intent to kill should have been formed for any specific length of time prior to the act; but it is enough that it exists at the moment of the killing, if it was formed when the mind was in its normal state, under the control of the slayer, and not in the heat of passion. It is therefore clear that the killing of a human being in pursuance of a deliberate and premeditated design, formed during the space of time necessary to walk the distance mentioned in the question propounded by the jury, would be murder in the first degree; and hence there was an opportunity afforded for such premeditation, if the mind of the slayer was in a condition to deliberate and premeditate. As the power of deliberate or premeditate is possessed only by those having a mind free from passion or excitement, it cannot be said, as a matter of law, that any given space of time would afford an opportunity to a given person for deliberation and premeditation, if there is any question as to whether his mind was so disqualified or disturbed. In such case, the question as to whether there had been sufficient cooling time, and whether the mind was in a condition to deliberate and premeditate would be for the jury to determine, and not the court. Hence the answer of the court in this case, given to the question propounded by the jury, that the time occupied by the defendant in going from the sidewalk to the place of killing afforded him opportunity for deliberation and premeditation would, without doubt, have been error, if there had been any evidence in the case showing, or tending to show, that his mind was not in its normal state, but disturbed or disqualified by passion or excitement, or had there been any question as to the sufficiency of a cooling time. But the conceded facts, as they appear in the record, show that defendant's mind was in its normal state, and not in any way disqualified by passion or excitement, and that nothing had occurred prior to the killing to arouse his passion or disturb his mind; and therefore there was no question of cooling time in the case, and the court had a right to assume, in instructing the jury, that his mind was in a condition to deliberate and premeditate. It is settled law that, when there is any conflict in the evidence as to the existence of any fact, the court cannot, in charging the jury, assume that such fact is or is not established, but when the evidence is clear and convincing upon the question and there is no evidence to the contrary, an instruction assuming it as true will not work a reversal of the judgment. Thomp. Char.Jur. 74; Koerner v. State, 98 Ind. 7; Hanrahan v. People, 91 Ill. 142. Now, in this case, the entire evidence given on the trial is made a part of the record; and a careful inspection of it fails to disclose any conflict as to what occurred on the night of the homicide, up to the time defendant entered the room where the killing took place. Nor is there anything therein from which even an inference can be drawn that defendant was in a disturbed or excited state of mind, or in any way disqualified from coolly and deliberately considering and reflecting upon the contemplated act. This being so, the court had a right, in answering the question of the jury, to assume that defendant's mind was in the condition which the evidence shows it to have been; and, upon such conceded facts, it committed no error when it declared that he had an opportunity to deliberate and premeditate during the time he was walking from the sidewalk to the place where the killing occurred. If, as was intimated at the argument, it is probable the jury were prompted to ask the question because they imagined some conversation took place between the defendant and Miss Wright when she admitted him into the house, which aroused his passion, and caused him at that time to form the design to do the killing, it was a supposition wholly unwarranted by the evidence, and a mere matter of speculation, outside of the record, and for which we can afford no relief. Miss Wright, Mrs. Barry, and the defendant the only witnesses who testified on this subject, all agree that when the defendant entered the door he simply inquired of Miss Wright if Barry was in, and, being answered in the negative, said, "I'll see for myself." In this there is nothing which could in any way tend to arouse the passion or disturb the mind of the defendant; and as the correctness of the ruling of the court must be determined from the record alone, and as we can only reverse a case for error appearing affirmatively therein, we are all agreed that there is nothing in this question to warrant a reversal of the judgment.

Passing now to the other questions presented, it appears that there was some evidence which, in the opinion of the trial court, made it necessary to instruct the jury upon the law of self-defense, upon which the defendant requested the following instruction: "If you believe that the defendant was assaulted in such a way as to give him ground, as a reasonably prudent man (making all due allowance for his condition at the time, and for his mental and intellectual state and degree of intelligence), in the condition in which the assault placed him, to apprehend a design on the part of the deceased to kill him, or to do him some great bodily harm, he would have the right instantly to defend himself, and, if necessary, to kill the deceased, in such case; and, if you find such to be the facts, you must find the defendant not guilty." And also: "The right of self-defense may be exercised if the danger which the defendant seeks to avert is apparently imminent, irremediable, and actual. The question of apparent necessity can only be determined from the defendant's standpoint; not that of the jury, not that of the court, but from the standpoint of the defendant himself. The defendant must be acquitted (of malicious homicide)--that is, he can be convicted of no offense greater than manslaughter, if even of that--if he only defended himself to the extent to which, according to his honest convictions, as affected by his particular individuality, defense, under the circumstances, appeared to be necessary." These instructions were refused by the court, except in so far as the principles therein embodied may have been given in the general charge, which was as follows: "The killing of a human being is justifiable when committed by any person to prevent death or any great bodily injury being committed upon him. Homicide can be excused or justified on the ground of necessity alone. The necessity must be apparent, actual, imminent, absolute, and unavoidable, or the defendant must, from all the circumstances, have honestly believed it to be so. To excuse homicide, the party must act under an honest and well-founded belief that it is necessary to take life to prevent great bodily harm. It must be danger so urgent that the killing is absolutely or apparently necessary, and the danger must not have been brought on by the slayer. 'Imminent and apparent danger' means such overt actual demonstrations as would make the killing apparently necessary to his preservation from death or great bodily injury. The danger must be unavoidable, according to the facts and circumstances, as they honestly appeared at the time to the accused; but it is not necessary that the danger should in fact have existed at the time, if the defendant had reason to believe, and did believe, that it existed. Actual and real danger, to the defendant's comprehension as a reasonable man, as it then appeared to him in good faith, is sufficient; that is to say, a person may safely act in good faith on appearances. His guilt must depend on the circumstances as they appeared to him at the time. But the apprehension must be on good ground, sufficient to reasonably satisfy the mind, from appearances, that death or great bodily harm was about to be inflicted upon him. If, under all the circumstances, he had reasonable grounds for apprehension, the killing would be justifiable, even though the appearances were false, and there was no design on the part of the deceased to take life, or to do great bodily harm. But whether or not there was such reasonable appearance of danger, and whether or not the defendant, honestly and in good faith, acted upon it, and, under the circumstances, had reason to believe that he was in imminent danger of death or great bodily harm, is a question for the jury to determine from all the facts and evidence in the case."

The contention of defendant's counsel, and the principle embodied in the instructions refused, as well as those given to which the exception is directed, as we understand it, is that the real or apparent danger, sufficient to justify the taking of human life, is to be determined from the defendant's standpoint alone, and that if he honestly believed his life in danger, or that he was in danger of great bodily harm, and, acting under such belief, took the life of his supposed assailant, it would be excusable homicide. This theory bases the right of self-defense upon the belief of the person defending, and not upon the ground of such belief, or the reasonable appearance of danger. We do not so understand the law. ...