Territory v. Evans

• Court: Idaho Supreme Court
• Writing for the Court: BUCK, J.
• Citation: 17 P. 139,2 Idaho 425
• Parties: TERRITORY v. EVANS
• Decision Date: 27 February 1888

17 P. 139

2 Idaho 425

TERRITORY
v.
EVANS

Supreme Court of Idaho

February 27, 1888

INDICTMENT FOR MURDER, IF IT SUFFICIENTLY DESCRIBES CRIME, WILL BE SUSTAINED.-In determining the offense charged in an indictment, all parts of the instrument will be considered together, and if from the whole it appears that a crime is sufficiently alleged, it will be sustained.

INSTRUCTIONS REQUESTED.-In criminal prosecutions, as in other actions, instructions to the jury must be based upon some evidence in the case. If they do not, when requested, they should be refused.

SAME-IF GIVEN FOR MURDER IN FIRST DEGREE, WILL SUSTAIN VERDICT FOR SECOND DEGREE.-An instruction to the jury, upon which defendant is convicted of murder in the second degree, though objectionable as defining murder in the first degree, is sufficient to sustain the verdict as found.

REVIEWING INSTRUCTION-WHOLE CHARGE TO JURY WILL BE CONSIDERED.-In reviewing alleged errors on appeal from a judgment in a criminal case, where objection is made to specific instructions, the entire charge will be considered together, and if it fairly and correctly presents the law bearing upon the issues tried, the appellate court will not disturb the judgment.

PRESUMPTIONS.-Presumptions are in favor of the decision of the court, and where a reversal of a judgment is sought on the ground of error, the ruling of the court will be sustained unless sufficient facts appear in the record to show that error was committed.

(Syllabus by the court.)

APPEAL from District Court, Lemhi County.

Affirmed.

Charles A. Wood, for Appellant.

When a known felony is attempted upon the person, be it to rob or kill, the party assaulted may repel force by force, and any person present may interpose to prevent mischief, and if death ensues, the party so interfering will be justified. In such cases nature and social duty co-operate. (Commonwealth v. Selfridge, Horr. & Thomp. 30; 1 Bishop's Criminal Law, sec. 851; Pond v. People, Horr. & Thomp. sec. 814; Dill v. State, Horr. & Thomp. sec. 738; Crimes and Punishment Act, secs. 25, 30.) It is not necessary that the danger should be actual; simply apparent. (1 Bishop's Criminal Law, 305, and notes; Archibald's Criminal Law, 221; 1 Wharton's Criminal Law, 405, 488, 489; Crimes and Punishment Act, sec. 26; Maher v. People, Horr. & Thomp. 290.) Whatever a man may lawfully do in defending himself he may lawfully do in defending another. (State v. Westfall, 3 Am. Cr. Rep. 343.)

R. Z. Johnson, Attorney General, and James H. Hawley, for the Territory.

No person, even if an officer, is justified in taking life, unless the absolute necessity exists. No person can lawfully take life to prevent the commission of a misdemeanor, or to effect the capture or prevent the escape of one who has committed a misdemeanor. (2 Bishop's Criminal Law, 630 et seq.; 2 Wharton's Criminal Law, 1031.) If a person interferes in an affray with a view to keep the peace, and not to take any particular one's part, he may, if absolutely necessary, kill, in order to preserve his own life or that of a party thereto; but if he runs in, and takes the part of one party to the affray, it will be manslaughter. (1 Russell on Crimes, 898; 2 Wharton's Criminal Law, 1039; 1 East P. C. 291; 1 Hawkins' Pleas of the Crown, 98.) And if he interferes, and kills with malice, it will be murder. (Wharton on Homicide, 444.) Mere threats or abusive language will not justify an interference, nor, in case of death, will they reduce the crime from murder to manslaughter. (Johnson v. State, 27 Tex. 758; Stoffer v. State, Horr. & Thomp. 232.) If a defendant justifies on the ground that the act was necessarily committed in lawfully preserving the peace, as where he interferes to prevent A from taking the life of B, and to that end kills A, he must show, to establish a defense, not that he had reasonable ground to believe that the act was necessary, but that it was actually necessary, and that he had no other way to prevent the execution of the felony. (People v. Cole, 4 Park. Cr. Rep. 35.) Where the evidence shows the accused was not forced to take the life of deceased to save his own life or limb from serious peril, an instruction which ignores the excuse of self-defense is not erroneous. (Taylor v. State. 48 Ala. 180.) When there is no evidence of justification of a homicide, it is not error to tell the jury that the law of justification is not applicable. (Parker v. State, 31 Tex. 132.)

BUCK, J.

OPINION

[2 Idaho 427] BUCK, J.

The defendant was indicted, tried and convicted of murder in the second degree, at the April term, 1888, of the district court, third judicial district, in the county of Lemhi, and comes into this court on an appeal from the judgment.

The first point made by appellant in his brief is that the indictment does not allege the crime of murder. The charging part of the indictment is as follows: "That the said Charles Evans, on the eleventh day of November, A. D. 1886, did unlawfully, willfully, deliberately, premeditatedly, feloniously, and of his malice aforethought, in and upon one James McKee, make an assault, and that the said Charles Evans a certain pistol then and there loaded with powder and leaden bullets, which said pistol he, the said Charles Evans, in his hands then and there had and held at and against the said James McKee, then and there unlawfully, willfully, deliberately, premeditatedly, feloniously, and of his malice aforethought, did shoot off and discharge, and that the said Charles Evans, with the leaden bullets aforesaid, by means of shooting off and discharging the said pistol so...