People v. Temple

[292]

YORK, J.

The appellant, who shot and killed his father-in-law, Gr. W. Priest, was found guilty by the jury of the crime of manslaughter, but the appellant contends that the evidence shows conclusively that he had to shoot the deceased in the defense of his own life.

The fact that the evidence shows that the deceased had threatened the life of the appellant and that this threat had been communicated to him by his wife, who was the daughter of the deceased, and the fact that the killing occurred in the home of the appellant, where the deceased had come against the direct order of both the appellant and his wife, has caused us to scan with particular care each of the instructions to the jury.

Such an inspection of the instructions discloses the fact that, although several correct instructions that were requested by the appellant were refused by the trial court, nevertheless, in so far as these instructions were proper, they were fully incorporated within the instructions given by the court. The appellant objects generally to the instructions, but we will refer to those instructions set out in appellant’s opening brief. His objection is that it was error to instruct the jury: “You are instructed that self defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance or fault, to create a real or apparent necessity for killing. You are further instructed that self defense is not available as a plea to one who, by prearranged duel, or by consent, has entered into a deadly mutual combat in which he slays his adversary. A man may not wickedly nor wilfully invite or create the appearances of necessity of the actual necessity which, if present to one without blame, would justify the homicide.”

Appellant also objects to what he calls the second of the instructions, reading as follows: ‘‘ Whenever an assault is brought upon a person by his own procurement, or under an appearance of hostility which he himself creates, with a view of having his adversary act upon it, and he so acts and is killed, the plea of self defense under such circumstances is unavailing.” A modification added by the court to one of defendant’s instructions contained the following: “ . . . but such person or the person in whose behalf the