Vance v. Territory

We do not desire to be understood as holding that instructions Nos. 9 and 10 are applicable to all cases, or that they would be approved under a different statement of facts. These instructions depend for their correctness upon the facts of the particular case in which they are given. A defendant may be the aggressor in a difficulty, or he may by his own wrongful act bring on a conflict, without entirely losing his right of self-defense. This would depend upon the character of the wrongful acts, and the intention with which they were done, which constituted such aggression or which brought on such conflict. If these things were done with a felonious intention, they would entirely destroy the right of self-defense; but, if they were done without a felonious intention, what is known as the imperfect right of self-defense might still exist.

Chief Justice Fuller of the Supreme Court of the United States, in Wallace v. United States. 162 U.S. 466, 16 Sup. Ct. 859, 40 L.Ed. 1039, correctly states the law governing this question as follows:

"When a difficulty is intentionally brought on for the purpose of killing the deceased, the fact of imminent danger to the accused constitutes no defense; but when the accused embarks in a quarrel with no felonious intent or malice or premeditated purpose of doing bodily harm or killing, and under a reasonable belief of imminent danger he inflicts a fatal wound, it is not murder."

Wharton, Hom., § 197; 2 Bishop, Crim. Law, §§ 712, 715;State v. Partlow, 90 Mo. 608, 4 S.W. 14, 59 Am. Rep. 31; Adams v. People,47 Ill. 376; State v. Hays,23 Mo. 287; State v. McDonnell,32 Vt. 491; Reed v. State, 11 Tex. App. 509[11 Tex.Crim. 509], 40 Am. Rep. 795.

From a full examination of the authorities, and upon reason, I think that it is clear that if a defendant is the aggressor in a difficulty, or if, by his own wrongful conduct, he brings about a conflict and then slays his adversary, the intention with which these things are done is material and vital to determine the degree of his guilt in the event his right of self-defense has been abridged. See: Bishop on Crim. Law, §§ 365, 367; Yoes v.State, 9 Ark. 43; Hicks v. United States,150 U.S. 449, 14 Sup. Ct. 144; 37 L.Ed. 1137;Bennington v. Commonwealth (Ky.) 17 S.W. 272;Thompson v. United States, 155 U.S. 270, 15 Sup. Ct. 73, 39 L.Ed. 146; White v. State, 23 Tex. App. 164[23 Tex.Crim. 164], 3 S.W. 710; Shannon v. State,35 Tex.Crim. 2, 28 S.W. 688, 60 Am. St. Rep. 17; Massie v. Commonwealth (Ky.) 29 S.W. 871.

In the light of the testimony in this case, the failure of the trial court to instruct the jury upon this view of the law is not material, because, just after the difficulty began, the defendant had said: "If there is any fighting to be done, I will do it myself. I am the fastest fighting son of a bitch in this house." This was testified to by several witnesses, and the defendant, when on the stand as a witness in his own behalf, did not deny it. So it is an admitted fact. The record shows that soon after this the defendant sent for a shotgun and ordered the shells loaded with large shot, and that he had this gun by his side behind the bar of the saloon, so there could be no question of his deadly intention. Therefore the instruction as given is applicable to the facts and free from serious objection. It would have been better if the court had given the instruction requested by counsel for the defendant, to the effect that the jury should view the facts and circumstances in evidence from the defendant's standpoint, and cases might arise in which it would be reversible error to refuse an instruction in this language; but the instruction given means the same thing, and the facts are so clear and convincing of defendant's guilt that we cannot see how the defendant was injured by the instructions as given.

With this explanation, I concur in the opinion that there is no reversible error in this case, and that the judgment of the lower court should be affirmed.