People v. Mitchell

[586]

McFARLAND, J.

The appellant was charged with the murder of one John Sheehan, and was convicted of murder in the second degree. He appeals from the judgment and from an order denying his motion for a new trial. We will notice the five points made for a reversal.

The contention of appellant that the verdict is contrary to the evidence cannot be maintained. It was clearly shown, and is admitted by appellant,that appellant shot and killed the deceased; but he contends that the homicide was committed in justifiable self-defense. The evidence does not afford any opportunity for any pretense that appellant was in actual danger at the time of the killing; the deceased was unarmed, and had made no attack on appellant. But it is contended that the homicide occurred under such circumstances that appellant was justified in supposing that he was in danger, and that he fired the fatal shots under reasonable fear of being killed or severely injured by the deceased. There is no question in the case as to the law on the subject; the court in its own charge, and in instructions given at the request of appellant, fully and correctly stated the law as to appearances. Among the instructions asked and given was the following: “If the jury have a reasonable doubt as to whether the defendant had a reason to believe, as a reasonable man, that he was in danger of being killed or seriously injured by the deceased at the time he shot deceased, then you will acquit the defendant.” The jury were also told that even if they found that the deceased was unarmed, “in the absence of proof on the subject the jury will not assume the fact to be that defendant knew the deceased was unarmed.” Appellant does not complain of the instructions on this subject, and he certainly could not have expected any more favorable to him. The jury, therefore, were fully informed on this point, and could not have acted under any misunderstanding of the law on the subject. This contention of appellant, therefore, is reduced to the proposition that the evidence did not warrant the jury in finding that when he killed the deceased he was not actuated by a reasonable fear that deceased was about to kill him or to severely injure him, and that for this reason the judgment should be reversed. But this proposition is not maintainable. It is sufficient to say that the evidence relied

[587]