Plummer v. State ( 1878 )

Winkler, J.

On the trial below, the jury were instructed as follows:

“ If the defendant went to the house of Smelser to arrest him, and Mr. Smelser resisted and fired at the defendant first, and thus gave defendant to believe that he was in danger of death or great bodily harm, then the defendant would be excused in defending himself, and to kill Ml-. Smelser, if necessary to save his life; and, in that event, if he shot Mrs. Smelser by accident or through mistake, then you would see that he did not intend to kill, and, therefore, could not have made the assault with intent to kill or murder Mrs. Smelser; and, in that event, he could not be justly convicted of a higher grade of assault than aggravated assault.”

We are of opinion that the latter portion of this charge was erroneous, and calculated to mislead the jury to the prejudice of the accused.

We take the law to be that if the jury believed that the defendant found himself in a condition where he would have been justified in taking the life of Smelser in order to save himself from death or the infliction of great bodily harm, and, in so defending himself from such danger, he, by mistake or accident, shot Mrs. Smelser, then he would not only not be guilty of an assault with intent to murder Mrs. Smelser, but he would not be guilty of any offense whatever.

The charge, if a proper one under the evidence on a subsequent trial, should be so framed as to harmonize with the intimation given above. Further than this, we fail to discover any material objection to the charge. If the proof shows such a condition of affairs as to justify the accused in taking life in his necessary self-defense, the emergency would excuse him from culpability if, in making such necessary defense, he should unintentionally, or by accident or mistake, injure another person.

For the error pointed out the judgment must be reversed and the case remanded.

Reversed and remanded.