State v. Nargashian

• Decision Date: 20 July 1904
• Citation: 26 R.I. 299,58 A. 953
• Parties: STATE v. NARGASHIAN.
• Court: Rhode Island Supreme Court

58 A. 953

26 R.I. 299

STATE

v. NARGASHIAN.

Supreme Court of Rhode Island.

July 20, 1904.

Sarkis Nargashian was convicted of murder, and he applies for a new trial. Denied.

Argued before STINESS, C. J., and TILLINGHAST and DOUGLAS, JJ.

Charles F. Stearns, Atty. Gen., for the State.

William A. Morgan and Ratcliffe G. E. Hicks, for defendant.

STINESS, C. J. This indictment charged Sarkis Nargashian and Kasper Nigohian with the murder of Peter Ouloosian. Nigohian having absconded, Nargashian was tried alone and convicted. He now petitions for a new trial upon exceptions to alleged errors in charging and refusing to charge, and also upon the ground that the verdict was against the evidence.

The testimony of the defendant shows that he and Nigohian conspired to get the deceased drunk in a saloon, so that he would be unable to meet a girl at a barn, as appointed; Nargashian thus to meet the girl in his place. Nigohian took Ouloosian to the barn, Nargashian going there alone, and when the latter went in he found Ouloosian lying on the floor. He says that Nigohian, older and stronger than himself, said to him: "You must help me, so I can kill Peter; if you don't, I will kill you." Nigohian had an axe in his hand. The petitioner testifies: "He told me, 'you must hold his hands,' and I did, and afterwards he says, 'you grab his throat, so I will get the money out of him.'" He then says that he did this because he was frightened; that Nigohian took the money from Ouloosian, over $600, and put it in the petitioner's pocket, and after they went out it was divided equally; the defendant taking it still under threats. The defendant further testified that he did not help kill Ouloosian, because he was dead when he took hold of his hands. The autopsy by the medical examiner showed that death had been caused by strangulation, and that there were 20 distinct marks of finger nails on the throat of the deceased.

The defendant asked the court to charge: "If the jury believe that Ouloosian was dead before the defendant took hold of his hands in the barn, then they are to find the defendant not guilty." The request was refused, and exception taken.

We think the refusal of the request was correct. Assuming that the killing was done by Nigohian, there is still ample testimony from which the jury could find that Nargashian was present at the time of the homicide, aiding and assisting in it, even though Ouloosian may have been dead when the defendant took hold of his hands. If he were present as an aider and abettor in the crime, he would be a principal, although the other did the killing. Bouv. Law Dict., "Aiding and Abetting." The request was too broad in its terms to allow the consideration of these facts, and it was therefore rightly refused.

The second and third requests to charge were: "If the jury believe that the defendant assisted in the killing of Ouloosian, but did so under fear of instant death at the hands of Nigohian, then they are to find the defendant not guilty." "If the jury believe the testimony of the defendant, then they are to find him not guilty." The question raised by the defendant under these requests is that of threat and fear of his own death as a defense. The proposition involved in these requests is a very narrow one, which takes no account of opportunity to escape, to successfully defend himself, the reasonableness of the fear, or other matters which may properly be taken into account. The defendant assumes, from the language used in some cases, that the mere statement of a fear of death is sufficient as a defense. In the case of Stratton, 21 St. Trials, 1046-1223, Lord Mansfield said: "Wherever necessity forces a man to do an illegal act, forces him to do it, it justifies him, because no man can be guilty of a crime without the will and intention of his mind. A man who is absolutely, by natural necessity, forced, his will does not go along with the act, and therefore in the case of natural necessity, if a man is forced to commit acts of high treason, if it appears really force, and such as human nature could not be expected to resist, and the jury are of that opinion, the man is not then guilty of high treason." The conditions here laid down fall far short of the bald statement of the requests.

The defendant argues that if duress is a defense in treason, it should also apply in murder. There are differences, however, in the two high crimes which may well be taken account of. Treason is usually a continuing act, from which there is a possibility of escape; and in Bespublica v. McCarty, 2 Dall. 86, 1 L. Ed. 300, a suggestion of escape is made, as though it might nullify the intent. The mere fear of death, therefore, may well be allowed when a loyal intent may be shown by a possible speedy return to allegiance. But murder is a consummated act, irreparable after commission, and hence to be guarded against by a stricter rule, and such a rule has been applied in cases of murder. Blackstone says, in 4 Com. *30: "In time of war or rebellion, a man may be justified in doing many treasonable acts, by compulsion of the enemy or rebels, which would admit of no excuse in time of peace. This, however, seems only, or at least principally, to hold as to positive crimes, so created by the laws of society, and which, therefore, society may excuse but not as to natural offenses, so declared by the law of God, wherein human magistrates are only the executioners of divine punishment; and therefore, though a man be violently assaulted, and hath no other possible means of escaping death but by killing an innocent person, this fear and force shall not acquit him of murder, for he ought rather to die himself, than escape by the murder of an innocent. But in such a case he is permitted to kill the assailant, for there the law of nature and self-defense, its primary canon, have made him his own protector." In U. S. v. Haskell, 4 Wash. C. C. 402, Fed. Cas. No. 15,321, Washington, J., laid down the rule that the jury must find "a well-grounded cause to fear that death might be the consequence of their refusal to submit to Smith as the commander of the vessel. If they had not they cannot excuse themselves in point of law by the allegation that they acted under the impulse of fear." In People v. Repke, 103 Mich. 459, 61 N. W. 861. a threat, made three days before a murder, that the respondent would himself be killed if he did not go and...