State v. Rolla

• Decision Date: 05 December 1898
• Citation: 55 P. 523,21 Mont. 582
• Parties: STATE v. ROLLA.
• Court: Montana Supreme Court

55 P. 523

21 Mont. 582

STATE v. ROLLA.

Supreme Court of Montana

December 5, 1898

Appeal from district court, Park county; Frank Henry, Judge.

Mike Rolla was convicted of murder in the second degree, and appeals. Reversed.

Smith & Wilson, for appellant.

C. B Nolan, for the State.

PEMBERTON C.J.

In the month of April of this year, the defendant was tried in the district court of Park county, under an information charging him with the crime of murder in the first degree. He was convicted of murder in the second degree. From the judgment and order of the court refusing a new trial, this appeal is prosecuted.

The evidence is presented in the record, but there is no contention that it does not authorize or support the verdict. The evidence is incorporated in the record for the purpose of illustrating errors assigned in the giving of instructions by the court. We shall therefore only refer to the evidence when necessary in the treatment of the case.

The counsel for appellant contends that the court erred in the giving of instructions to the jury. The instructions complained of are as follows: Instruction 6: "Before a person is justified in taking the life of his assailant, the slayer must not only exhaust all other reasonable means within his power consistent with his safety to prevent the homicide, but it must clearly appear that the person slain not only had at the time the apparent present ability, as well as the apparent intention, to kill or seriously injure the slayer, but that the deceased was then and there apparently in the act of carrying out his purpose to wit, the intention of destroying the slayer, or of inflicting upon him serious bodily injury; and even then the law will not justify the slayer in the use of any more force than is actually necessary at the time to prevent the deceased from immediately carrying into effect such unlawful purpose. By this instruction the jury will understand that the right to take life is limited to the apparent actual and present necessities then suddenly precipitated by the assailant under such circumstances as then appear to the slayer, as a reasonable man, to place the life or person of the slayer in such peril as to admit of no other reasonable alternative than the killing of the assailant; and even then the slayer's right to employ force against the assailant is limited to the force necessary to repel the violence then being offered, and place himself beyond the reach of immediate danger." Instruction 9: "You are further instructed that, before a person can justify the taking of human life on the ground of self-defense, he must, when attacked, employ all reasonable means within his power, consistent with his safety, to avoid the necessity for the killing." Instruction 10: "You are further instructed that if you are satisfied from the evidence, beyond a reasonable doubt, that the defendant armed himself with a deadly weapon, and intentionally brought about the fatal meeting, or contributed thereto with the purpose of using his weapon in case of emergency, then the defendant would not be justified upon the grounds of self-defense, and you will bring in your verdict of guilty." Instruction 11: "You are further instructed that if you find and believe from the evidence, beyond a reasonable doubt, that the defendant shot and killed Servius Cortese, as charged in the information, and that the killing was the result of a sudden, violent impulse or passion, caused by serious and highly provoking injury inflicted upon the defendant at the time by the deceased, which was sufficient in the minds of the jury to cause an irresistible passion in a reasonable person, and the interval of time between the provocation and the killing was not sufficient for the passion to cool, and the voice of reason and humanity to be heard, then the killing was manslaughter not murder. But if you find from the evidence that a sufficient time had elapsed after the infliction of the injury or insult for the passion to cool, and the voice of reason and humanity to be heard, then the killing was murder." Instruction 12: "The bare fact of the offense to prevent which the homicide is alleged to have been committed shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of such fears, and not with a spirit of revenge."

Instruction numbered 6 is complained of by counsel as being especially objectionable. It is contended that this instruction goes too far in imposing the obligation upon the accused to "exhaust all other reasonable means within his power consistent with his safety" to prevent the homicide before taking life. Counsel says this instruction required the accused to retreat, or disable, or attempt to disable, his assailant, before taking his life. An inspection of the instruction discloses the fact that the court placed great emphasis upon the obligation of the accused to "exhaust all other reasonable means within his power consistent with his safety to prevent the homicide." This view of the law is pressed upon the jury throughout the instructions. An instruction of this character was disapproved by the supreme court of California in People v. Ye Park, 62 Cal. 204. The court, in the case just cited, says, where a person is attacked with murderous intent, he is under no obligation to fly: "he may stand his ground, and, if necessary, kill his adversary." In People v. Herbert, 61 Cal. 544, the court say: "Upon the duty to retreat there was a contrariety of opinion by the writers of the common law, and this difference has found its way into the decisions of our states; some, as Alabama and Iowa, holding to the rule that retreat is necessary; others, as Indiana, Michigan, and our own state, declaring for the contrary doctrine. But it is not stating it too strongly to say that the trend of the later judicial decisions is in favor of the latter rule. So that, while the killing must still be under an absolute necessity, actual or apparent, as a matter of law, that absolute necessity is deemed to exist when an innocent person is placed in such sudden jeopardy. The right to stand one's ground should form an element of the instructions upon the necessity of killing and the law of self-defense." In Rowe v. U. S., 164 U.S. 546, 17 S.Ct. 172, a case involving the principle under discussion,

Mr. Justice Harlan, speaking for the court, says: "The accused was entitled, so far as his right to resist the attack was concerned, to remain where he was, and to do whatever was necessary, or what he had reasonable grounds to believe at the time was necessary, to save his life or to protect himself from great bodily harm. And, under the circumstances, it was error to make the case depend in whole or in part upon the inquiry whether the accused could, by stepping aside, have avoided the attack, or could have so carefully aimed his pistol as to paralyze the arm of his assailant without more seriously wounding him." In the case at bar the accused claims that he was murderously attacked by the deceased and his brother, at or near his own home, and that under such circumstances he was under no legal obligation to fly or retreat. There is evidence in the record tending to support the claim that the accused was so attacked. We are inclined to the opinion that the instructions upon this phase of the case go too far in declaring it the duty of the accused to exhaust all other reasonable means in his power to prevent the homicide before taking the life of the deceased. State v. McCann (Wash.) 49 P. 216; People v. Hecker (Cal.) 42 P. 307; Beard v. U. S., 158 U.S. 550, 15 S.Ct. 962; People v. Gonzales (Cal.) 12 P. 783.

In our opinion, the most serious objection of instruction No. 6 is that part of it which says: "By giving this instruction the jury will understand that the right to take life is limited to the apparent...