State v. Hawkins, 23 P. 475 (OR Supreme Court 1890)




18 Ore. 476; 23 P. 475; 1890 Ore. LEXIS 147

March 10, 1890, Filed



STRAHAN, J., on petition for re-hearing.–Appellant’s counsel have filed a petition for re-hearing in which they mainly rely upon the alleged error in the trial court in giving the instruction set out in the opinion. That instruction told the jury that, under the circumstances therein enumerated, the defendant could not, without some proof of change of conduct or action, excuse the killing of Ogle upon the ground that he believed that Ogle was attempting to draw a weapon with which to defend himself or assault the prisoner. This instruction appears to have been copied almost literally from State v. Neeley, 20 Iowa 108. It was conceded upon the argument that at the time of the meeting between Hawkins and Ogle, which resulted in Ogle’s death, the parties were not on friendly terms, and when they met, Hawkins addressed him by saying, “I understand you have been lying about me.” Ogle then faced Hawkins and put his hand down in his pocket. Some other words were also used. Hawkins states that Ogle said when he put his hand in his pocket, “I’ll settle it now with you, you d–d son of a b–h.” He says when he saw this he threw his hand under his coat, got hold of his pistol and fired. I think the evidence tended to prove that Hawkins armed himself and sought Ogle with the intent of provoking a difficulty that he expected might be deadly. If not, why did he arm himself, and if he did not intend to precipitate a difficulty why did he address Ogle in the offensive manner in which he says he did? He must have known that it was highly probable that Ogle might resent such an offensive salutation, and it seems he was ready with his pistol concealed under his coat to carry into effect a previously formed design to kill him. That is the light in which the jury might have regarded both the language and conduct of the defendant.

After arming himself and seeking Ogle, and addressing him in the offensive manner he says he did in his own evidence, could he have had but one purpose or expected but one result? Those words, if not designed to bring on a difficulty, were well chosen for that purpose. The defendant, in his preparation in seeking Ogle, and in addressing him in the manner he did, was not without fault. The jury had the right to weigh these circumstances and to consider the relations of the parties at the time of the homicide. In this case Hawkins was the aggressor from the beginning of the transaction to the termination of the fatal affray. He armed himself with a deadly weapon and sought his adversary with the intent to have a difficulty with him. He did not salute Ogle in a friendly manner or in friendly language; on the contrary, he used those words which he was bound to know might move Ogle to some angry retort or hostile demonstration. When Ogle put his hand in his pocket, where there was no weapon except a common pocket knife, the defendant shot him down, and his counsel call that self-defense, and they contend that Hawkins’ conduct did not so far put him in the wrong as to deprive him of the right to justify the killing of Ogle on the ground that he acted in self-defense. The charge excepted to must be considered in the light of the facts before the court. Had it been shown in evidence that the defendant approached Ogle for a lawful or legitimate purpose, in a peaceable manner, and used no words calculated or designed to precipitate a difficulty, another and quite a different question would have been presented, and upon which it is not necessary to express an opinion in this case.

Counsel for appellant present a number of cases in support of their petition for a re-hearing, and which were not cited or considered at the argument, and which they think sustain their contention that the instruction excepted to was error. Stewart v. The State, 1 Ohio St. 66, is a well-considered case, in which the opinion of the court was delivered by that eminent jurist, Judge Thurman, but it does not sustain appellant’s contention. A single point in the head note sufficiently indicates the effect of the opinion: “Where the slayer seeks and provokes an assault upon himself in order to have a pretext for stabbing his adversary, and does, upon being assaulted, stab and kill him, such killing is not excusable homicide in self-defense.” The authority of this case is with the ruling of the court below. The case of Williams v. The State, 47 Ill. 376, belongs to the same category. That case holds that while a man threatened with danger must determine from appearances, and the actual state of things surrounding him, as to the necessity of resorting to self-defense, and if he acts from reasonable and honest convictions he will not be held responsible criminally for a mistake as to the extent of the actual danger where other judicious men would have been alike mistaken; and at the same time he has not the right to provoke a quarrel and take advantage of it and then justify the killing of the party with whom he provoked the quarrel. In Atkins v. The State, 16 Ark. 566, the point under discussion was not directly presented. The court instructed thus: “That if the jury believe from the testimony that Atkins, the prisoner, went to Wicker’s house on the night of the homicide for the purpose of a difficulty with Wicker, and in that difficulty killed him with a deadly weapon, he is guilty of murder.” This was held to be error, and properly so. In passing on this question the court uses this guarded language: “If the prisoner went to the house of Wicker with a hostile purpose or for the purpose of getting into a difficulty with him, and if he used a deadly weapon in the fight, these were facts to be considered by the jury in passing upon his guilt or innocence or in determining the grade of his offense, but these alone, regardless of all other circumstances attending the difficulty, would not necessarily make him guilty of murder.” It will be seen that the doctrine of self-defense was not presented. It does not appear that the slayer was assailed or in any way molested by the deceased; it was the grade of the crime that was the point of the inquiry.

One fatal objection to the instruction was, it declared the legal effect of certain portions of the evidence, which belonged to the jury, and necessarily excluded from their consideration other facts proper for their consideration. Cotton v. The State, 31 Miss. 504, is much relied upon by appellant; and it must be conceded that some of the language used in the opinion might seem to justify this contention, but the real point arose on an exception to an instruction which was in these words: “That if the accused was armed with a deadly weapon, and sought and brought about the difficulty with the deceased, and killed the deceased in the difficulty with such a weapon, he is guilty of murder.” It will be seen that this is substantially the same instruction given in Atkins v. The State, supra, and it might properly have been held erroneous for the same reasons. Nor did the question of self-defense necessarily arise upon the record. It did not appear in that case that the deceased assailed his slayer or even used force in his own defense. Colton walked backwards across the street and Smith, the deceased, walked slowly after him till he was shot. Regina v. Smith, 34 English Com. Law 666, is also relied upon by counsel. The syllabus of that case is favorable to the appellant; but neither the facts recite nor the opinion of the court contains anything upon which such a statement of law could be properly based. The State v. Herrell, 97 Mo. 105, 10 S.W. 387, is another case cited by appellant. The question arose upon the following instruction given to the jury: “The court instructs the jury that if you believe from the evidence in this case that the defendant sought or invited the difficulty in which Ring was killed, or that he provoked or commenced or brought it on by any wilful act of his own, or that he voluntarily or of his own free will engaged in it, then, and in that case, you are not authorized to acquit him on the ground of self-defense. The right of self-defense does not avail as a defense in any case when the difficulty is sought for and induced by the party by any wilful act of his own, or where he voluntarily or of his own free will enters into it.” The opinion says: “This instruction is erroneous in that it cuts off the defendant from a limited or qualified right of self-defense, though actuated by no felonious intent, provided he ‘brought on the difficulty.'” This learned opinion is written with rather too much energy to be safely followed in all particulars. But after citing numerous cases, it says: “Those cases, as well as all carefully considered cases in other jurisdictions, and all the text writers, recognize as sound and wholesome law the principle that if a man brings on a difficulty with the purpose of wreaking his malice by slaying his adversary or doing him great bodily harm, and actuated by such felonious purpose, he does the homicidal act, then there is no self-defense in the case, and he is guilty of murder in the first degree, and nothing less.”

These are all the cases upon which counsel rely in support of their petition for a re-hearing. A few cases in support of the opinion already announced may be cited on the particular point under discussion. The case of The State v. Benham, 23 Iowa 154, is a well considered case in which the opinion of the court was delivered by that distinguished jurist, Judge Dillon. He said: “Nor can the defendant get the benefit of the plea of self-defense, if he sought the deceased with a view to provoke a difficulty or to bring on a quarrel. State v. Neeley, 20 Iowa 108. The law regards human life as the most sacred of all interests committed to its protection, and there can be no successful setting up of self-defense unless the necessity of taking life is actual, present, urgent; unless, in a word, the taking of his adversary’s life is the only reasonable resort of the party to save his own life or his person from dreadful harm or severe calamity felonious in its character.” The State v. Rogers, 18 Kan. 78, is to the same effect. The State v. Johnson, 76 Mo. 121, belongs to the same class. It was there held that “the right of self-defense does not imply the right of attack, and will not avail in any case when the difficulty was induced by the party himself.” It must not be overlooked that the instruction excepted to did not undertake to define the grade of the offense, but left that matter entirely in the hands of the jury, where it properly belonged.

The re-hearing must therefore be denied.

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