State v. Zeigler.

• Decision Date: 13 April 1895
• Citation: 40 W.Va. 593
• Parties: State v. Zeigler.
• Court: West Virginia Supreme Court

40 W.Va. 593

State

v.Zeigler.

Supreme Court of Appeals of West Virginia.

Submitted January 31, 1895

Decided April 13, 1895.

Homicide Sedf-defense--Manslaughter.

If an assault is made, upon a man with an attempt to commit a felony upon.'him, hie may resist so far as it is necessary to resist the assailant, even if he must take the assailant's life. But this has a limitation. If he can resist the assault and free himself without taking life, and kills the assailant without necessity, he is not excusable. If mere heat of blood impels him to take life in such case, be is guilty of manslaughter.

2. Homicide Self-defense Justifiable Homicide.

To reduce homicide in self-defense to excusable homicide, it must be shown that the slayer was closely pressed by the other party, and retreated as far as he conveniently or safely could, in good faith, with the honest intent to avoid the violence of the assault.

3. Homicide Self-Defense Apparent Danger.

Where one without fault himself, is attacked by another, in such a manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life or to do him some great bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, and the person assaulted has reasonable ground to believe, and does believe such danger is imminent, he may act upon such appearances, and, without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe that such killing is necessary in order to avoid the apparent danger; and the killing under such circumstances is excusable, although it may afterwards turn out that the appearances were false, and that there was in fact neither design to do him some serious injury, nor danger that it would be done. But of all this the jury must judge from all the evidence and circumstances of the case.

4. Instructions Evidence Jury Irrelevant Instructions.

It la error in a; court, in a case of felony, to give to the^ jury instructions which are not relevant to the evidence, and which may mislead the jury to; the prejudice of the defendant.

5. Evidence Conflict of Evidence Jury.

If there be, in the opinon of the jury, a substantial conflict in the evidence or circumstances, as to whether the killing was done in self-defense, and the circumstances or other evidence preponderate in favor of self-defense, or if it was equally balanced as to the killing being done in self-defense, the jury ought not to convict either of murder or manslaughter.

6. Evidence Insufficient Evidence Verdict New Trial.

Where a court which tries a! cause certifies) all the evidence adduced on the trial, and from the evidence so certified it clearly appears that it was wholly insufficient toi sustain the verdict, this Court will set aside the verdict, and, in a proper case, award a new trial.

D. B. Lucas for plaintiff in error, cited 34 W. Va. 117; 17 S. E. Rep. 240; 20 S. W. Rep. 561; 17 S. E. Rep. 108; 8 W. Va. 766; 20 W. Va. 679; 37 W. Va. 813; 3 Greenl. Ev. § 5, note d; 117 N. Y. 71; 123 N. Y. 553; 121 Pa. St. 165; 128 Pa. St. 500; 1 Gray 61; 97 U. S. 237; 1 Bish. Crim. Pro. 1048.

Attorney-General Riley for the state, cited 33 W. Va. 370; 8 W. Va. 741; 20 W. Va. 080; Id. 7(54; 22 W. Va. 801; 5 W. Va. 510; 1 Greenl. Ev. (11th Ed.) § 449.

Forest W. Brown for the state, cited 36 \V. Va. 691, 701; 20 W. Va. 680, 681, 679, 713, 764; 37 W. Va. 812, 820, 821; 32 W. Va. 177; 33 W. Va. 72, 417, 418; 1 Greenl. (14th Ed.) §§ 51, 445, 449; 1 Bish. Crim. Law (14th Ed.) § 849; 2 Id. §§ 184, 707; 25 Gratt. 887.

English, j edge:

At the April term of the Circuit Court of Morgan county, in the year 1894, the grand jury of said county found an indictment against Rudolph Zeigler; charging that on the 13th day of February, 1894, in said county of Morgan, he feloniously, willfully, maliciously, deliberately and unlawfully did slay, kill, and murder one John Sautters, against the peace and dignity of the state.

The plea of not guilty was interposed, issue joined thereon, and the case was submitted to a jury on the 1st day of May, 1894, which resulted, on the 9th day of the same month, in a verdict of not guilty of murder as charged in the indictment, but guilty of voluntary manslaughter. A motion was made in arrest of judgment, and for a new trial, which motions, having been argued, were overruled by the court, and the prisoner excepted. Judgment was rendered upon the verdict, and the prisoner was sentenced to confinement in the penitentiary for the period of two years, and the prisoner obtained this writ of error.

Self-defense was relied on by the prisoner, and it appears from bill of exceptions No. 8 that after the evidence was concluded, and before the argument commenced, the prisoner, by his counsel, prayed the court to give the jury the following instructions: Instruction No. 1 for defendant: "The court instructs the jury that if from the evidence, the jury be of opinion that there is a substantial conflict of the evidence or circumstances as to whether the killing was done in self-defense, and the circumstances or other evidence preponderate in favor o!' self-defense, or if it was equally balanced as to the killing being done in self-defense, the jury State v. Zeigler.

can not convict the prisoner either of murder or manslaughter." Instruction No. 2: "The court instructs the jury that the owner of property, in the possession of the same, has the right to use as much force as is necessary to prevent a forcible trespass; and if they find that the defendant was standing upon his own ground, and that in attempting to force a passage over the same, if they so find, the deceased was viola ling the law. and was a trespasser, with the intent and with the means to commit a felony, if necessary to accomplish the end intended, then the defendant, as owner of the property, if they so find, might repel force by force, to the extent of killing the aggressor, and such killing would be self defense." Instruction No. 3: "The court instructs the jury that a party who is assailed by his adversary with a deadly weapon is not compelled to retreat, but may slay his adversary, if the assault be so fierce as not to allow the party assailed to retreat without manifest danger to his life, or enormous bodily injury. In such case, if there be no other way of saving his own life, he may, in self-defense, kill his assailant." Instruction No. 4: "The court instructs the jury that if when the deceased fired the fatal shot he was not the aggressor, but was assailed, and such demonstrations of force, with a deadly weapon and otherwise, made against him as to lead a reasonable man to suppose he was in danger of death or great bodily harm, and under such reasonable apprehension he killed the deceased, who was assailing him, if they so find, then the killing was justifiable, in selfdefense."

These instructions were objected to by the state, and the court declined to give them, and the prisoner excepted; and the court, on its own motion, gave the jury, in lieu of said instructions, the following: Instruction No. 1: "The court instructs the jury that when one, without fault himself, is attacked by another in such a manner or in such circumstances as to furnish reasonable grounds for apprehending a design to take away his life or to do him some great bodily harm, and there are reasonable grounds for believing the danger imminent, that such design will be accomplished, and the person assaulted has reasonable grounds to believe and does believe that such danger is imminent, he may act upon such appearance, and without retreating, kill his assailant, if he has reasonable grounds to believe, and does believe, that such killing is necessary in order to avoid the apparent danger; and. the killing under such cirv cumstances is excusable, although it may afterwards turn out that the appearances were false, and there was in fact neither design to do him serious injury, nor danger that it would be done. But of this the jury must judge, from all the evidence and circumstances in the case." No. 2: "And the court further instructs the jury that as to the imminency of the danger which threatened the prisoner, Rudolph Zeigler, and the necessity of his killing John Sautters, in the first instance, the prisoner is the judge, but he acts at his peril, as the jury must pass upon his action in the premises, viewing sa.id actions from the prisoner's standpoint at the time of the killing, and if the jury believe, from the facts and circumstances of the case, that the prisoner had reasonable grounds to believe, and did believe the danger imminent, and that the killing was necessary to preserve his own life, or to protect him from great bodily harm, he is excusable for using a deadly weapon in defense, otherwise he is not." No. 3: "The court instructs the jury that, on a trial for murder where a deadly weapon is used, if the prisoner relies on self-defense, the burden of proof is on the prisoner, and he must excuse himself by a preponderance of the evidence." No. 4: "The court instructs the jury that the defendant is, by law, presumed to be innocent, and it is the duty of the state to prove him guilty, as charged in the indictment, beyond all reasonable doubt; and if the state fails to prove every material allegation in the indictment, then the jury must find him not guilty."

The court also, at the instance of the state, gave the jury the following instructions, which were excepted to by the prisoner. The exceptions were overruled by the court: Instruction No. 1: "The court instructs the jury that under an indictment for murder the jury may find the prisoner guilty cf murder in the first degree, or guilty of murder in the second degree, or guilty of voluntary manslaughter, or guilty of involuntary manslaughter, or not guilty." Instruction No. 2: "The court instructs the jury that where a homicide is proven, the presumption is that it is murder...