State v. Comisford , 41 Nev. 175 ( 1917 )

By the Court,

McCarran, C. J.:

This is an appeal from a judgment of conviction of murder in the second degree. To the indictment, which charged murder in the first degree, the defendant pleaded "not guilty” and interposed the defense of justifiable homicide based upon self-defense.

The question as to who was the aggressor in the affray, as well as the question of the necessity to strike.the fatal blow,- was a closely contested issue in the trial. The court instructed the jury on the law of justifiable homicide as follows:

"You are instructed that the right to take life in self-defense rests upon necessity, and no one is justified in taking the life of another unless the necessity for so doing is apparent as the only means of preventing his destruction, or of escaping grievous bodily harm. The question of the existence of such necessity is not for the defendant, but for the jury; the jury must draw from all the circumstances whether, from the situation of the parties at the time, the defendant had reasonable ground to believe that it was necessary to take the life of the deceased as the only means of saving his own life, or of avoiding grievous injury to his person. If you do not so find, then you must bring in a verdict of guilty.”

1. The expression in this instruction,"The question of the existence of such necessity is not for the defendant, but for the jury," is clearly erroneous and fails to measure up to the law applicable to self-defense as laid down by leading decisions and text-writers upon the subject. The expression swept from the defendant the benefits of the law, which confers upon him the right to exercise his judgment as a reasonable man in determining, at the time, whether, from all the attendant circumstances and conditions, it was necessary to strike the fatal blow for the protection of his own life.

Where, in an affray, one strikes the blow that takes the life of another, necessity for the act to insure self-preservation is the gage and measure. The exercise of reasonable judgment as to the necessity is for him who strikes. Did the defendant, in striking the blow, exercise that judgment as a reasonable man would under such circumstances? That is the question for the jury. This court, in no uncertain terms, established the rule in the case of State v. Scott, 37 Nev. 412, 142 Pac. 1053, where, referring to the language of the Supreme Court of Iowa (State v. Collins, 32 Iowa, 39), as quoted and approved by Mr. Justice Hawley in the case of State v. Ferguson, 9 Nev. 114, and referring to the case of Hawkins v. United States, 3 Okl. Cr. R. 651, 108 Pac. 561, we said:

"The inquiry for the jury is: Did the defendant, acting as a reasonable man, upon the appearances of the existing conditions at the time of the encounter, believe at that time that it was necessary for him to commit that act in order to protect himself? An instruction upon the rule of self-defense, which failed to set forth the above qualification, is clearly erroneous.”

The rule of law asserted by this court in that case found approval and sanction in the case of Owens v. United States, 130 Fed. 279, 64 C. C. A. 525. Moreover, it has received the approval of ruling cases on the subject in the several jurisdictions. (13 R. C. L. 817, 818.)

' The instructions given by the trial court in the case at bar struck from the defendant the right to establish that in the fatal affray, and before he struck the blow that took the life of the deceased, he exercised such judgment as would have been exercised by a reasonable man under such circumstances. The rule is eminently established that reasonable ground for belief of imminent danger upon the part of the slayer is the test that justifies the taking of human life where self-defense is interposed. (People v. Lewis, 117 Cal. 186, 48 Pac. 1088, 59 Am. St. Rep. 167; State v. Shippey, 10 Minn. 223, 88 Am. Dec. 70; State v. Beckner, 194 Mo. 281, 91 S. W. 892, 8 L. R. A. n. s. 535; Goodall v. State, 1 Or. 333, 80 Am. Dec. 396; Tillery v. State, 24 Tex. App. 251, 5 S. W. 842, 5 Am. St. Rep. 882.)

The belief in the slayer that the danger was apparently imminent is not to be viewed from the standpoint of the jury, but from the facts established. (194 Mo. 281, 91 S. W. 892, 3 L. R. A. n. s. 543.) The doctrine that would declare the jury to be the sole judges as to the existence of danger to the defendant at the moment of the affray would place the defendant in the unreasonable position of knowing, at the moment of the catastrophe, what the jury knows after there has been presented to them all of the facts and attendant conditions. Such a doctrine is not sanctioned by modern authority. (9Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62; State v. Shippey, supra; Patten v. People, 18 Mich. 314, 100 Am. Dec. 173.) See extensive note, 3 L. R. A. n. s. 537; 74 Am. St. Rep. 720.

The question of the existence of such necessity as called for the act by which the life of the deceased was taken was, at the time of the affray, a matter demanding that high degree of judgment which would be exercised by a reasonable being under like circumstances of the party by whose hand the blow was struck. It was his right to exercise this judgment — "a right which the law confers upon every individual, but one that must always be exercised at his peril, subject to revision by a jury of his peers.” The giving of this instruction by the court was error, and such as affected, in no uncertain measure, the substantial rights of the appellant, by reason of which the judgment and order appealed from must be reversed.

2. Error is assigned to the remarks of the prosecuting attorney in the closing argument wherein he alluded to rumors being prevalent that:

"Members of the jury, because of personal associations, and sentiments and friendships, * * * would not have the courage to send this man to the penitentiary. ”

We have had occasion before to comment on remarks and conduct of prosecuting attorneys. We deem it proper to say here, as we said in the case of State v. Scott, 37 Nev. 432, 142 Pac. 1060:

" The office of district attorney is one of great power and responsibility. It may often happen that he is called upon to protect the rights of an accused person from the possibility of a conviction • based upon public sentiment rather than the actual facts of the case. When a prosecuting officer seeks to take advantage of public sentiment to gain an unjust conviction, or seeks to take an unfair advantage in the introduction of evidence, or in any other respect, he is failing in his duty as the state’s representative. ”

There was no foundation or excuse for the remarks of the prosecuting attorney in the case at bar so far as the record discloses. His utterance was misconduct such as should have called for immediate reprimand from the trial court. Overabundant zeal, spiced with that ever-impelling element, personal ambition for success, is too often the shrine of excessive devotion, where wild tongues are loosed "that have not Thee in awe.”

In view of the fact that this case must be reversed for other errors, and inasmuch as the conduct complained of will not again be indulged in, we will pass the incident for this time by merely saying that if this error was the only one presented in the record we would be required to reverse the case. (Weatherford v. State, 31 Tex. Cr. R. 530, 21 S. W. 251, 37 Am. St. Rep. 828.)

The case is reversed and remanded.

It is so ordered.