People v. Batchelder , 27 Cal. 69 ( 1864 )

Sawyer, J., dissenting.

I do not think the right of possession of the Farallone Island, or the right to gather the eggs deposited thereon by wild birds, was in question in this case. The right might have been to some extent in question had a party in possession been indicted for slaying one of a party seeking to enter with violence against his will. But men have no right to go with arms and enter with force, even upon their own land, against other parties already there, armed and violently, though wrongfully, resisting. In a contest arising under such circumstances both parties are in the wrong,, and if it results in the loss of life, caused while the contest actually continues, the slayer cannot shield himself upon the ground of self-defense without at least first showing some disposition to decline further conflict. The law furnishes peaceable remedies for injuries, and will not tolerate the pursuit of one’s rights, even, in a manner liable to induce breaches of the peace and lead to homicide.

In this instance I think the Judge stated the law correctly, and submitted the case fully and fairly to the jury. The charge covered all the points necessary to enable the jury to consider the case intelligently and render a just verdict. I think there was no error in refusing the charges asked on the part of the defendant, and refused. I suppose it may be fairly assumed that the two instructions selected and commented on in the prevailing opinion as the grounds of reversal, are those least objectionable among the large number refused, and the ones which should have been given, if any. Yet, in my judgment, these instructions, without qualification, must necessarily have misled the jury. They wholly omit to bring to the notice of the jury the question as to whether the defendant’s party prepared with arms to overcome resistance, were entering in a violent and hostile manner, knowing they would be resisted by men also armed for that purpose. The unlawful act of the shore party was not the only element to be considered, for the approaching party might also be seeking to enter in an unlawful manner, and the evidence tended strongly to show that they were. This element, as well as the unlawful act of the shore party, should also have been taken into account, as the foundation of the legal proposition with which the instruction asked terminates. It cannot be said, as a legal proposition, under the circumstances of the landing shown by the evidence, that “ the- fact that defendant, and those with him on the occasion of the alleged homicide, were armed with guns at the time of landing on said island, does not render the act of landing illegal.” ' And the instruction must be considered in the light of the testimony to which it was to be applied. Thus considered, the jury would be in effect instructed that the defendant, up to the time of firing the fatal shot, was pursuing a lawful right in a lawful manner. Yet the testimony shows that defendant’s party went there with the knowledge that the party of the deceased were on the island, armed, for the purpose of resisting by force the landing of defendant and his associates; that defendant’s party came prepared for a contest; that they first approached the island in a small boat without arms, and that, having been warned not to land by men in arms, and that their landing would be resisted, they returned to their vessel, increased the party to the number of fifteen or twenty, armed themselves with guns and returned prepared to overcome any resistance offered by those on shore ; and that they advanced with loaded guns, protecting their persons while advancing by barricades, till after having been warned to stop without effect, a volley was discharged by the resisting party, which was immediately returned by the advancing party of defendant, and the deceased slain. The testimony as to which fired the first shot, before the volley fired by the respective parties, is conflicting. To say that such mode of landing is not, as a legal proposition, unlawful, is more than I am prepared to do ; and yet such is the effect of the instructions asked and refused when considered in connection with the evidence to which they were to be applied. An advance of a party of fifteen or twenty men, with loaded guns, against another party, also armed, knowing that a deadly resistance to the advance will be made, is to court a conflict, and is of necessity a violent and forcible attempt to enter, and therefore unlawful. And it is none the less unlawful and wrongful, because the resistance is also unlawful. If to justify the homicide “it must appear,” in the language of the statute, “ that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow is given,” he will certainly not be justified in inviting an attack in a violent manner, with arms in his hands, and upon the attack being made immediately slaying his opponent.

In other respects, also, the instructions are framed in such a manner as to make them liable to be misapprehended. The Court, I think, was justified in refusing them. I am of the opinion, therefore, that the judgment should be affirmed.