People v. Lewis

By the Court, Crockett, J. : The defendant was indicted and tried for the crime of murder in the killing of one Johnson. He was convicted of murder in the second degree, and after the verdict moved for a new trial, on the grounds, first, that the Court had misdirected the jury, and second, that the verdict was contrary to the law and the evidence. The motion having been denied, the defendant has appealed.

We discover no substantial error in the charge of the Court to the jury. Taken as a whole, we think it fairly states the law of the case, and that the jury could not have been misled to the prejudice of the defendant. But we think the verdict ought not to stand, and that the Court ought to havo granted a new trial. The proof shows that Johnson, (the deceased,) Birge, McEvoy, White, and the defendant, were all at the house of the latter, and were all drunk; that Birge and the defendant had been engaged in fighting, the former using a crowbar and the latter an axe, but no serious damage was done to either, and they became apparently reconciled; that White soon went into the house and fell asleep; that McEvoy went off to catch a horse of the defendant, which had broken away, hut before leaving his pistol had been taken from his belt by Johnson; that while he was absent Johnson was shot in the abdomen, the weapon being [533]held so close to his person as to scorch his clothing; that in returning with the horse, McEvoy met the defendant, who mounted the horse and went off; that when McEvoy reached the house he found Johnson dead, with a hole in the front of the ahdomen, apparently produced by a shot; that during all this time White was asleep in the house, and Birge was the only witness present at the alleged killing. The condition of this witness, and his ability to remember what occurred, may be inferred from the following extracts from his testimony:

“ I was drinking a good deal at the time. When I am drinking a good deal, I am liable to not notice what occurs.

“I can’t say that if Johnson had been making preparations to fight Louis that I would have seen them; he might have made such preparations and I not seen them.

“I can’t say how long I had been at the house, because I don’t recollect; I think I went there the day before; I don’t recollect the day at all; I can’t tell the time; I was not sober; I was considerably intoxicated; I had been drinking excessively; when I am intoxicated things occur that I don’t recollect, and sometimes I receive erroneous impressions; I don’t think I have a clear recollection of the facts of the case; what I have stated are the impressions on my mind; I cannot say that my recollections of what occurred are clear; they are not like what they would have been if I had been sober; I think I had been drinking two days or so.”