Barklay v. State

Appellant has filed a motion for rehearing contending that this court erred in holding it incumbent upon the defendant to ask a special charge correcting a given error in the court's main charge, in addition to an exception taken to such error. We did not intend in our opinion to hold as this motion intimates we did, but fearing that our opinion lacked clarity, we will try to make it clear.

The second ground of appellant's exception to the main charge was as follows: "Because the court failed to charge the jury that the defendant had a right to act to prevent an interruption or an intrusion upon the lawful possession of property." This will at once be seen to be a very general exception, pointing out no specific act which the appellant had a right to do and no specific act which he claimed to have the right to prevent and if sufficient at all, is of such nature as to demand of us an examination of the entire evidence and the charge. We deemed it proper, in the original opinion to call attention to the fact that no special instruction with reference to this ground of error was presented to the court below, but we did not base the affirmance of the case upon such fact.

We tried to make it plain in the original opinion that under the evidence in this case, we did not think the issue of homicide in defense of property, was raised. Conceding that a man may defend his property with as much vigour as his person and that, broadly stated, the rules of self-defense are the same whether it be person or property defended, and further admitting that the amount or value of property would not affect the right to defend, it would still be necessary that the homicide be demanded, or reasonably so, in order to prevent or stop some injury to the property of the accused; and it must be borne in mind that our statute regulating the right of defense of property, requires, in order to justify on this ground, that the accused must make every other effort in his power to repel the aggression before he would be justified in killing and that the killing must take place while the person killed is in the very act of making the unlawful and violent attack. Bearing these statutory rules in mind, if it were admitted for the sake of the argument that if deceased was plowing in stubble on land had in rental possession by the accused, and that this was such injury to property as to give rise to a right to kill in order to prevent same, it would still be true that the appellant must have used every effort in his power to repel the aggression before the killing took place, and then must have killed deceased while he was in the very act of "making such unlawful and violent attack." Appellant's own evidence and that of the son of deceased and appellant's witness May, make it evident that when appellant shot and killed, deceased had gone from the stubble land cultivated by appellant during 1917 and was then with his plow on land with which he had no connection whatever. It seems self-evident that if a man be seen injuring property of another, but desists when the owner appear and flee or go away he may not be thereafter killed under the claim of defense of property.

The authorities cited by appellant are: Woodring v. State, 30 S.W. Rep., 1060; Sims v. State, 36 S.W. Rep., 256; Hopkins v. State, 53 S.W. Rep., 621; McGlothlin v. State, 53 S.W. Rep., 871; Sims v. State, 44 S.W. Rep., 522. In deference to the insistence of able counsel for appellant we have reviewed again these authorities. In Woodring's case there is nothing to support appellant's contention. In that case the killing occurred over a fence claimed by both parties. Deceased was in the act of tearing it down and Woodring armed himself with a pistol and went and demanded that deceased desist. In a few seconds the parties were engaged in the fatal difficulty and Woodring claimed on the trial that he was attacked by deceased with a hatchet. The conviction was affirmed, this court holding that the charges given were fair and full. Sims' case 36 S.W. Rep., 256, supra, was also a killing over a fence. Deceased claimed that the fence of the pasture in appellant's possession was over some distance on his land and when killed was proceeding to forcibly remove the same over Sims' objection. The evidence shows that deceased had a shotgun and Sims a pistol and that deceased was in the act of pulling out the staples from said fence when Sims shot and killed him. This court held that if appellant resorted to every other means to prevent an unlawful attack on the fence and that there was no other means within his power to prevent such unlawful attack on said fence he would have the right to kill in his effort to so prevent same.

The Hopkins case, 53 S.W. 621, supra, was reversed solely because the trial court refused a requested charge to the jury that deceased had no right to forcibly take or attempt to take a pistol from the possession of the accused, and if he did so accused had the right to prevent such taking, and that if in such forcible taking or attempted taking deceased believed he was in danger of serious bodily harm and, acting under this belief killed deceased, he should be acquitted. The McGlothlin case was reversed for the refusal of a similar charge. Neither of these cases are applicable. The Sims case, 44 S.W. Rep., supra, was a second appeal of the same case reported in 36 S.W. Rep., and presented a strong case of a killing in the actual defense of property under circumstances where no other course seemed open to appellant in order to defend his property. We observe that the facts in none of these cases are similar to the facts in the instant case and that no announcement of the legal principles there stated appears to justify appllant's contention here.

Complaint is also made in said motion that the following charge was error: "You are charged that the defendant had the right to seek the deceased in a peaceable manner for the purpose of making inquiry in regard to his drilling on the land claimed to be rented by the defendant, for the purpose of asking him to desist from such work, and also had the right to arm himself against an attack, if any, that he feared deceased might make upon him, or that he reasonably feared he might make upon him, if any." An examination of the record discloses that no exception was taken to this charge and the same presents no error.

The court's charge on the appellant's right of self-defense in the premises was as follows:

"You are charged that if you believe from the testimony that the defendant repaired to the field where the deceased was at work with a wheat drill, of which field the defendant claimed the right of possession, for the purpose of interviewing the deceased in regard to said work on said land, or for the purpose to ask him to desist from drilling or working on said land, and that the defendant had a gun in his hands, and you further believe that the deceased alighted from said drill and started or rushed towards the defendant, and you further believe by reason of any or all of said acts on the part of the deceased, or by reason of the relative sizes, ages and strength of the deceased and the defendant, or by reason of the defendant's knowledge of the character of the deceased, or by reason of any or all of said acts when taken alone or when taken in connection with any of the relevant facts and circumstances in evidence, there was created in the mind of the defendant a reasonable apprehension of serious bodily injury or fear of death at the hands of deceased, viewed from the standpoint of the defendant at the time, and you believe that the defendant acting upon such reasonable appearance of danger or fear of death or serious bodily injury at the hands of the deceased, shot and thereby killed the deceased, or if you have reasonable doubt there of, you will find the defendant not guilty." We do not think this charge open to the criticism aimed at same and that it fairly and fully covers all the self-defense made by the evidence. We have carefully reviewed this case to ascertain if there was any failure to properly protect the rights of this appellant in the trial below, and have concluded that he received a fair and impartial trial. While the able presentation of this case enlists our admiration we cannot agree to the contentions made and the motion will be overruled.

Overruled.