People v. Walsh (1872) · DecisionDepot

People v. Walsh

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Apr 15, 1872 No. No. 2,912Published

Before: Wallace

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Holding. The court affirmed the defendant's manslaughter conviction, holding that the trial court properly denied a challenge for implied bias, correctly instructed the jury on the law of justifiable homicide, and did not err in its evidentiary rulings.

Issues

Whether a challenge for implied bias to a juror was properly denied.
Whether the trial court erred in refusing to give requested instructions regarding justifiable homicide.
Whether the trial court erred in admitting the dying declarations of the deceased.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is clear that the instruction, as thus asked, is not the law.”

“The record discloses no error of which the prisoner can be heard to complain, or by which his substantial rights were prejudiced at the trial.”

Synopsis

Appeal from the District Court of the Thirteenth Judicial District, County of Merced.

The facts are stated in the opinion.

By the Court,

Wallace, C. J.: The prisoner was convicted of the crime of manslaughter, in killing one Atwill, and from the judgment and an order denying him a new trial he has prosecuted this appeal:

1. The challenge interposed to the juror Fowler “ for im[448]plied bias,” specifying nothing, was properly denied. (People v. Reynolds, 16 Cal. 130; People v. Renfrow, 41 Cal. 37.)

2. It is insisted that the Court erred in its charge to the jury, and in the refusal to give to the jury certain instructions asked for by the prisoner, and refused by the Court.

The shooting was not denied, but was claimed by the. prisoner to have b'een excusable under the circumstances. The prisoner was the clerk in charge at Coulter’s Hotel, in Snelling, at which hotel the deceased was a boarder, but not a lodger, and about two o’clock in the morning saw a man, who proved to be the deceased, seemingly in the act of getting into or out of a window of one of the rooms on the ground floor of the hotel. The man appeared to be'balauced upon the sill of the window, with his feet hanging out; and the prisoner seems to have fired at him from another window of the same hotel. The ball entered the upper portion of the left thigh of the deceased, lodging in the right leg, between the knee and ankle. Tetanus subsequently set in, causing death in a few days. The evidence for the prisoner, he having been sworn upon his own behalf, was to the effect that, hearing a noise about two o’clock in the morning, seemingly a striking against the sash of a window, he jumped up—had a revolver in his hand—and seeing by a faint moonlight the legs of a man hanging out of the window of the room occupied by the children of Mr. Strong, the proprietor of the hotel, he fired, without knowing who the person in the window was, and without warning him, or inquiring of his business there. Hpon the other hand, the evidence upon the part of the prosecution tended to show that the prisoner was not ignorant of who the deceased was when he fired at him; that he knew well that it was Atwill in the window; that in the room into which the window opened was a woman, in charge of the children of Strong, "the landlord, and that for the favors of this woman the deceased and the prisoner were rivals; that the deceased, as he expressed it [449]

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The Court refused to instruct the jury that if they believed “ that the defendant, having charge of the house, had reason to believe that the person trying to enter the house by the window, at the midnight hour, did so for the purpose of committing a felony or other unlawful act, then the jury will acquit.” It is clear that the instruction, as thus asked, is not the law. The phrase unlawful act, as contained in the instructions asked, goes beyond the provisions of section twenty-nine of the Act concerning crimes and punishments, with reference to which the instruction was apparently drawn. Under the provisions of that section the killing would be justified only when the entry into a habitation is being made in a violent, riotous, or tumultuous manner, for the purpose of assaulting or offering violence to some person dwelling or being therein, or for the purpose of committing a felony by violence or injury. The statute also provides that a bare fear of any of these' offenses is not sufficient to justify the killing, but that it must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the in[450]fluenee of those fears, etc. (Section 30.), The instruction as asked omits to present to the jury the question as to whether or not Walsh did believe that the entry was being made for the purpose of committing a felony, and really acted under any fear that such an offense was about to be committed when he fired the shot. At the request of the prisoner, the Court gave to the jury the eighth instruction, which is an exact copy of sections twenty-nine and thirty of the statute, and correctly set before them the rule by which their determination upon the point should be controlled; and in view of this instruction it can hardly be said, as claimed by the prisoner’s counsel, that “the charges, taken as a whole, exclude the idea that the defendant could act upon appearances in shooting deceased, but that there must have been actual, real danger,” as distinguished from mere apparent danger, sufficient to excite the fears of a reasonable person.

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