State v. Cook ( 1907 )

The facts are fully stated in the opinion of Mr. Justice Woods.

I concur in so much of said opinion as overrules the first exception, but dissent upon the question presented by the other exception.

It seems to me that Mr. Justice Woods has not given full force to that principle of the law which not only justifies a third party in taking human life to prevent a felony from being committed but likewise imposes upon him the duty of acting under such circumstances.

The right of a third party to take life in order to prevent a felony is thus stated in sec. 532 of Wharton on Homicide: "Where a known felony is attempted upon the person, be it to rob or murder, the party assaulted may repel force by force, and even his servant attendant on him, or any other person present, may interpose for preventing mischief; and if death ensues, the party so interposing will be justified. If A, B and C are in company together and walking in a field, and C assaults B, who flies; and C pursues him, and is in danger to kill him, unless there be help; and A thereupon kills C, in defense of the life of B, it seems that in this case there is such an inevitable danger of the life of B, that the killing of C by A is in the nature of sedefendo. But then it must appear plainly by the circumstances of the case — as the manner of the assault, the weapon with which C made the assault — that the imminent danger of the life of B is bona fide apparent to A."

In sec. 533 it is said: "Bona fide belief by the defendant, that a felony is in process of commission, which can only be averted by the death of the supposed felon, makes the killing excusable homicide, though if such belief be negligently adopted by the defendant, then the killing is manslaughter. * * * If A honestly and without negligence on his part believes that B is in the process of committing a felony which can only be arrested by B's death, A is excused in killing B." See, also, sections 537 and 539.

"It is the duty of every man, whether an officer of justice or private citizen, who sees a felony attempted by violence, to prevent it if possible, and in the performance of his duty, such person has the legal right to use all means which appear to him as a reasonable man to be necessary to make the resistance and interference effectual, and if the felony cannot be prevented by other means, he is justified in taking life." 21 Enc. of Law., 207.

"A homicide is justifiable when committed by necessity and in good faith in order to prevent a felony attempted by force or surprise, such as murder. * * * To justify the killing, however, it must be done in good faith and under an honest and reasonable belief, that such felony is about to be committed, and that the killing is necessary in order to prevent its accomplishment, and must be done while the person is in the act of committing the offense, or after some act done by him showing an evident intent to commit such an offense." 21 Cyc., 798, 799.

These authorities show that if it appears that a person is about to commit a felony upon another, a third party has the right to take the life of the one about to commit the felony, if he believes it is necessary, in order to prevent the felony, and a man of ordinary firmness and intelligence would have reached the same conclusion.

In the case of State v. McGreer, 13 S.C. 464, the doctrine is announced that a person may set up the plea of self-defense if he actually believes he is in imminent danger of losing his life or of suffering serious bodily harm, and under all the circumstances as they existed at the time the violence was inflicted the jury thinks he had just ground for forming such belief; yet in the leading opinion, a rule more severe is applied when a person takes the life of another in order to prevent a felony upon a third party, although the law imposes upon him the duty of preventing such felony. It seems to me that there is even stronger reason for permitting the party taking the life of another to act upon a bona fide and well founded belief in the latter than in the former case.

There is no doubt a well settled and clearly defined principle that if a person becomes a participant in a difficulty between others to the extent of espousing the cause of one of them, his acts make him guilty, if the person whom he aids would have been guilty, in case the latter had committed them. This rests upon the ground that the parties thereby become confederates.

The distinction for which we contend is fully sustained by the case of State v. Myers, 13 S.C. (Mss. Dec.)

The facts in that case were as follows: Henry Myers and his son, Robert Myers, a boy under fourteen years of age, were indicted for murder. It became material, upon the trial, to connect the father and son as confederates in the transaction out of which the homicide arose. Evidence had been introduced tending to show that in the altercation that preceded the killing, Henry Myers first resorted to violence, though without the use of a deadly weapon; that the deceased first resorted to a deadly weapon, — a pistol, — and that the fatal blow was struck by Robert Myers, the son, after his father had been overpowered by the deceased, using for that purpose a knife. The Circuit Judge charged: "That if the knife in the hands of Henry Myers would have made him guilty of murder by striking Truitt, he is still guilty of murder if Truitt was at that time struck with the knife in the hands of Robert Myers, and that Robert Myers would also be guilty of murder; also, that if Henry Myers would have been guilty of manslaughter in striking Truitt with the knife, he is still guilty if his son struck the blow with the knife, and his son would also be guilty of manslaughter; that if Henry Myers, in the prosecution of the fuss with Truitt, would only have been guilty of a misdemeanor, still Robert Myers would be guilty of manslaughter."

In commenting on this charge the Court said: "This charge would appear to have assumed the confederacy between Henry and Robert Myers as a fact established. If that is the proper construction of the charge, then it was clearly erroneous in assuming to determine a question of fact in issue, and material to that issue. * * * If the statement of the charge is full on the point to which it relates, which must be assumed, then it is clear that the jury may have been misled. * * * It is contended that this construction of the charge is precluded by the fact that in another place the Circuit Judge charged ``that if the minds of Henry Myers and Robert Myers united for a single moment before the killing to take the life of Truitt, they are equally guilty.' * * * Taking the two fragments of the charge together and the jury may have understood that evidence tending to show that during the greater part of the time consumed by the controversy, no community of motive or concert of action existed would be ineffectual if a single moment of time was unaccounted for, in which that motive might have existed. * * * We are compelled to conclude that it was erroneous in respect of matters material to the defense of the accused. * * * The charge as to the duration of the motive previous to the act of killing would be unobjectionable in itself if the single moment during which it existed immediately preceded the act of killing as it regarded the guilt of Robert. If it did not exist at that moment, its previous existence, whether near or remote in point of time, would be altogether immaterial. It is not clear that a momentary motive could connect the origin of the difficulty with its consequences, but that question is unimportant."

It does not appear from the foregoing facts set out in the case under consideration, that Daisy Cook was attempting to injure the deceased at the time the fatal shot was fired.

The testimony as to the motive that prompted Bose and Vincent Cook to take the life of Hampton Smith was conflicting. While there was testimony tending to show that the deceased was killed in pursuance of threats made on the previous afternoon, there was testimony also to the effect that Bose and Vincent Cook killed the deceased solely for the purpose of saving the life of their brother. It depended upon the view which the jury might take as to these facts whether the guilt of one of the defendants was to determine that of the others.

It seems to us that the distinction is overlooked in the leading opinion, between the case where there is merely an intention to prevent a felony, and that in which a third party espouses the cause of one of the participants. In the latter case the parties are held equally guilty for the reason that they have by their acts become confederates; while in the former, a third party is justified or excused, even in taking human life, if the sole motive by which he was actuated was to prevent the perpetration of a felony, and the jury thinks the facts as they appeared to him were such as might reasonably have been expected to induce such belief in a man of ordinary firmness and intelligence.