Payne v. State

MATSON, J.

(after stating the facts as above). We have quoted extensively from the testimony of several wit nesses in order that a clear impression may be had of the issue presented.

The only error complained of is the giving, over objection and exception of defendant’s counsel, of the following instruction :

“You are instructed that, if a person voluntarily arms himself and seeks another for the purpose of provoking a difficulty for the purpose of and with the intent upon the part of such person to take the life of his adversary, a killing under such circumstances, of his adversary, cannot be excused or justified upon the grounds of self-defense, and in this case, if after a fair and impartial consideration of all of the testimony in the case you believe that the state has established by the evidence beyond a reasonable doubt that the defendant in this case voluntarily armed himself and prepared for difficulty with the deceased, George Ellis, with the intent upon his part to kill the said George Ellis, and after so preparing and arming himself he sought out the said George Ellis and provoked a difficulty with the said George Ellis for the express purpose and with the. intent upon his part to take the life of the said George Ellis, and under such circumstances did take the life of the said George Ellis, then and in that event the killing of the said George Ellis by the defendant would not be justified upon the ground of self-defense, regardless of what the difficulty between the two might have been prior to that time.”

It is contended this instruction is erroneous for the following reasons: (1) No evidence to support it; (2) fails to call attention of jury to any acts of defendant which would constitute “provoking a difficulty.”

Without entering into a lengthy discussion for so holding, it is apparent from the excerpts of the evidence herein set out that the trial court did not err in giving an instruction on the question of “provoking the difficulty.”

Tbe defendant’s pool hall was a public place at that time. The deceased had a right to go there on a lawful mission, and he had a right to take possession, in a peaceable manner, of the personal property belonging to him which he had inadvertently left there when he moved his effects therefrom two or three weeks previous.

Defendant had no right to use a deadly weapon on the deceased merely to protect his property from a trespass not amounting to a felony.

According to the state’s evidence, and some of that for defendant, the deceased did nothing prior to the shooting indicating an intention on his part to commit a felony on the property of defendant, or on defendant, or to do him serious bodily injury.

Under such circumstances the action of defendant in going out of the building to get his pistol, in returning thereto, in pointing the same at deceased, in ordering deceased to hold up his hands and back out of the building, were overt acts on defendant’s part entitling the jury’s determination of the question of whether he “provoked the difficulty” and was the probable aggressor in the shooting affray which followed. If those things were done by defendant with the preconceived intent to take the life of deceased, the crime was murder.

In any event such unlawful conduct would result in de-. priving defendant of his right of self-defense, unless he after-wards in good faith attempted to withdraw from the conflict which ensued, and, while there is no substantial evidence in this record requiring the submission of the “withdrawal” issue, the trial court covered that question in a prior instruction.

The instruction complained of correctly states the law. It is incomplete only in so far as it fails' to call attention to those overt acts above enumerated which amounted to a “provocation of the difficulty.” No more specific instruction along this line was requested, nor was any request made that the trial court give a definition of the term “provoking the difficulty.” In the absence of such requests and in view of the undisputed evidence that the deceased was shot once in the back, the bullet ranging directly through the body from median line to median line, it is evident that defendant shot deceased at a time when deceased was leaving the building with his back toward defendant, and this theory is borne out by testimony of state’s witnesses, or else after deceased was on the street and was walking away from defendant, and this theory is borne out by a witness for defendant.

Defendant was represented by able counsel, and, we think, was extremely fortunate to escape with a conviction of first degree manslaughter with minimum punishment imposed.

Judgment affirmed.

DOYLE, P. J., and BESSEY, J., concur.