People v. Flanagan

McKee, J.: From a judgment of conviction of murder comes this appeal by the defendant, upon a transcript on appeal which contains only the judgment and charge of the Court.

At the request of the District Attorney the Court below instructed the jury as follows: “To justify the commission of a homicide upon the ground that it was necessary in defense of one’s property, it must be made to appear, by a preponderance of the testimony, that the person killed was manifestly endeavoring amd intending to commit a felony. A bare trespass upon property does not justify or excuse a homicide.” This instruction, we think, was erroneous.

It is undoubtedly true, as a legal proposition, that human life can not be taken to prevent a mere trespass upon property. But it is equally true that every person has a legal right, in defense of his property, to prevent the commission of a felony. For the purposes of defense and prevention .every one is entitled to use whatever force may be neces[4]sary—even to the extent of taking the life of a felonious aggressor (People v. Payne, 8 Cal. 341), and a homicide committed under such circumstances is justifiable in law. “ Homicide,” says the Penal Code, " is justifiable when committed by any person in defense of person or property, against one who manifestly intends or endeavors by violence or surprise to commit a felony.” (Subd. 2, § 297, Pen. C.) In such a case the justification is not made to depend upon a combination of intent and endeavor to commit a felony as erroneously stated to the jury. Either an intent or endeavor to execute such a design will be sufficient to justify resistance for prevention, in defense of person or property. The law of self-defense is a law of necessity; and that necessity must be real or apparently real. A party acting under it may act upon appearances; and he will be justifiable in acting upon them, even though they turn out to have been false. Whether they were real or apparently real is for the jury, in a criminal case, to decide upon all the circumstances out of which the necessity springs. If from all the evidence in the case they should find that the circumstances were such as to excite the fears of a reasonable man, and that the defendant, acting under the influence of such fears, killed the aggressor to prevent the commission of a felony upon his person or property, he would not be criminally responsible for his death, although the circumstances might be insufficient to prove, by a preponderance of the evidence, that the aggressor was actually about to commit a felony.