People v. Westlake

McKee, J.: In the Superior Court of Shasta County Thomas L. Westlake was charged, by criminal information, with having committed the crime of murder, by maliciously and unlawfully killing one John McCool, in that county. Upon trial a verdict was rendered against him of murder in the second degree, and on this appeal, which is from the judgment of conviction, and from an order denying his motion for a new trial, it is insisted that the Court erred: first, in giving to the jury the following instruction upon the subject of justifiable homicide:

,c Past threats or conduct of the deceased, how violent soever, will not excuse a homicide, without sufficient present demonstration to authorize the belief that the deadly purpose then exists, and the fear that it will then be executed.

“ The danger must be present, apparent, and i/mminent, and the killing must be done under a well-founded belief that it was absolutely necessary for the defendant to kill the deceased at that time to save himself from great bodily harm.” The first part of this instruction is challenged as erroneous; [306]but as a proposition in criminal law, it is true that previous insults or conduct, however violent and abusive, are not, in and of themselves, sufficient to justify or excuse any one for the commission of a crime. (People v. Iams, 57 Cal. 127.) They are, however, evidential circumstances, which, in connection with the facts and circumstances in which a crime has been committed, are entitled to due consideration in determining whether the person charged with the commission of the crime was justifiable or not. Substantially, that was the import of the first part of the instruction, and it was expressed in such language that the jury could not have misunderstood it.

But it is claimed that the instruction as an entirety is objectionable under the decision.by this Court in Flahave’s Case, 58 Cal. 249.

The instructions in the two cases are not identical. In the Flahave Case the disapproved instruction was substantially this: To justify a person for killing another upon the ground of self-defense, the killing must be done under an appearance of danger so urgent and pressing that it was absolutely necessary to save his own life or to prevent great bodily injury. In this case the instruction was qualified by the expression that the killing must be done under a well founded belief that it was absolutely necessary, etc. That qualification saves the instruction from the rule of the Flahave Case, and, as qualified, the instruction in this case, as an entirety, was right. It is substantially the instruction which was given in the case of The State v. Rippy, 2 Head. 217, which the Supreme Court of Tennessee approved as sound law.