#### STATE, Respondent, v. JAUKKURI, Appellant.

(168 N. W. 1047).

(File No. 4343.

Opinion filed Sept. 3, 1918).

1. Homicide — Self-Defense—Warning Another of Danger, Before Shooting, Whether Evidence of Felonious Design.

. That defendant, charged with homicide, and who defended on *5ground that he did the shooting in self-defense, called out to a third person -between whom and defendant one C. who was standing, to ‘look out,” or “step aside,” just before he fired tne shot, is not evidence of defendant’s felonious design to shoot said person; the state’s contention being that he thereby displayed more coolness and deliberation than a man who believed himself the object of a deadly personal assault would exercise. So held, where tire evidence tended to show that the person killed, being an employee of a mining company, was at the time in an intoxicated condition and undertaking to pass through a tunnel used by the mining employees and general residents as a passageway between two towns; that defendant was the mining company’s night watchman on guard in said tunnel to look after safety of people passing through same, and to see that no person in an intoxicated condition -undertook to pass through without an escort; that defendant seeing C coming and believing him to be in an intoxicated condition, followed him into the tunnel at a short distance; that soon thereafter an altercation occurred between C. and defendant, over the effort of the latter to prevail upon C. to cease urinating in th-e tunnel, C. having struck defendant with a bottle of wine, a vicious fight following in which both parties were considerably hurt; defendant having freed himself and ran toward the tunnel entrance and past one W. who soon came upon C., who showed evidences of cuts on his head, etc., and'who declared to W. that defendant had hit him with the butt of his gun and had knocked him down; that W. insisted upon going to the mining time keeper’s office with C., who refused such service and started back to the tunnel entrance, on the way to which he conversed with an ore train engineer; that he had a rock or piece of ore in his hand and inquired of the engineer for defendant, who, he said had . knocked him down; that defendant after passing W., entered a boiler room near tunnel entrance, without hat, his coat torn, etc.; that, having washed his hands, etc., he asked H., another guard, to go with him into the tunnel; that a short distance en-route they saw C., who immediately started toward them on the run, defendant requesting H. to go ahead of him, which he did; that H. endeavored to catch C., who however passed him at some twenty feet in front of defendant, at which point C. threw a rock at but missed the former; that defendant thereupon drew his pistol and, having given H.the warning above stated, fired at C., killing him instantly. That defendant’s presence of mind in warning his friend of danger was not evidence of felonious design.

2. Same — Honest Belief of Imminent Assault as Affecting — Warning to Friend of Danger, Before Shooting, Effect re Intent.

If defendant, charged with homicide, were at the time of the *6fatal *shooting in*question, acting upon *an*honest belief that he was about to be assaulted by the person shot, he had a right to use such means as he had at hand to protect himself from the assault; and the fact that he exercised sufficient presence of mind to warn his friend, who was then dierctly in line with the person shot, of possible danger, authorizes no inference that the danger to defendant was not really apparent.

3. Sam© — Justifiable Resistence — Common Haw, Statutes.

Under common law, and under the statutes of this state, a person being assaulted may make such resistence as is sufficient to repel such assault; construing Pen. Code, Sec. 268.

4. Same — Second Encounter, Aggressor in First, Materiality Re.

In determining, in a prosecution for homicide, the question of self-defense and the circumstances justifying the taking of human life in repelling dangerous assault, ■ it is not material who was aggressor in the-first encounter, where the fatal shot was fired in a second encounter, nor was it material as to what was the result of the first encounter; and, conceding that in a first encounter defendant, a tunnel guard, struck C upon the head with the butt of his -pistol, the person afterwards shot, such act did not justifiy the latter in taking the law into his own hands and renewing the encounter with defendant on sight.

5. Same — Necessity of Retreating — Retreat with Safety, Instruction Concerning.

Where, in a trial for homicide, trial court charged that, if defendant could have retreated with safety it was his duty to do so, held, that whether or not defendant could have retreated with safety to himself was thereby submitted to the jury as a Question of fact, and, in order to have found defendant guilty the jury, following said instruction, must have believed that, under the circumstances, defendant could have retreated with safety — an unwarrantable conclusion under the evidence. So held, where the evidence showed that, had defendant turned and ran the instant he saw one whom he was charged with shooting coming toward him menacingly with a rock in his hand, he might have escaped serious injury from the rock thereafter thrown at him, and still have avoided killing said person; since this was not called upon to do, under the circumstances shown; that, since the person shot had thrown the rock and continued to advance, he had made sufficient demonstration to- convince a reasonably prudent person that he intended to- continue the assault and inflict -all injury upon defendant that he could.

Whiting, P. J., and McCoy, J., dissenting.

Appeal from Circuit Court, Lawrence 'County. Hon. James McNenny, Judge.

*7The defendant, E'inar Jaukkuri, iwas convinced! of manslaughter in the second! degree, and he appeals.

Reversed.

*Clarence C. Caldwell,*Attorney- General, and *Francis J. Parker,*State’s Attorney, for Respondent.

*Robert C. Hayes, John T. 'Heffron,*and *Chambers Kellar,*for Appellant.

(2) To poin-t two of -the opinion, Appellant cited:

State vs. Bell, (S. D.) 160 N. W. 728; Wharton 00 Homicide; 3d Edition, secs. 225, 226; Boykin vs. People, 22-'Col. 496, 45 Pac. 419; 'State vs. Lepine, (S. D.) 113 N. W. 1076; State vs. Swift, 14 La. Ann. 839; State vs. Warren, Del. 41 Atl. Rep. 190; State vs. Shippey, 10 Minn. 223.

(3) To point three, Appellant cited:

Carrol vs. .State, 23 Ala. 28, 58 Am. Dec. 282.

(4) To -point four, Aippellant cited:

•State vs. Bell (S. D.) 160 N. W. 728; 21 Oye. 800.'

(5) To point five, Respondent cited:

State vs. Jones, 89 la. 182, 56 N. W. ' ,

POLLBY, J.

Defendant was -convicted of manslaughter in the ■second degree and sentenced' to a term of -four years in the penitentiary. From the judgment of conviction- and an order overruling his motion for a new trial, defendant appeals to this .court.

Numerous errors are ¡assigned- upon the admission and rejection of evidence, the instructions given- and requested instructions refused by the trial court, and the insufficiency of the evidence to support the verdict.

Defendant was charged in the information with the killing of, one Martin Ctonheeney, in the Homestake mine on the night of April 24, 1917. Defendant admits that he killed Obotheeney- at the time and' place named in the information, ¡but ¡he claims that su'ch billing w¡as done in the necessary defense of his own person in repelling a violent assault made upon him. by Gonh-eeney. Whether the homicide was justifiable or not is -presented by the exeception to the sufficiency of the evidence, and a determination of this question requires an examination of the -facts and circumstances surrounding the commission of the ¡alleged crime.

The homicide took place in a tunnel, leading, through the hill from Lead City on the one side -to -the town of Térnaville on the other. Through- this tu-nnel is a railroad track, over which ore, *8tools, etc., are .ctonveyed by means of an engine and car®. This tunnel is lighted with'electric ¡lights ánd, in addition to the above uses, said company permits its employes, and to some extent the residents in general of Lead 'City and Terraville, to use the said tunnel as a passageway in going back and forth from one town to the other. The deceased' was an employee in *the*mine, *and*lived *oh*the Terraville side of the hill. The defendant was engaged as a night watchman, or guard, 'by the H'Omestake Company. In 'addition to' looking after the property of said company generally, defendant was required to look after the safety of people passing through the said tunnel; and it was his1 especial 'duty to see that no person in an intoxicated condition undertook to go' through the said tunnel without 'an escort, though he testified that he had the privilege of escorting an intoxicated person through the tunnel himself if he iso desired'. As suich guard,’ defendant was furnished' with a pistol which he"wore in a holster on a belt. On the evening oif the tragedy in question, Conheeney started to go- from Lead through the tunnel to hiis home in Terraville. Defendant saw Conheeney about the-time he entered the tunnel, and, believing him to be in an intoxicated condition, 'followed him into the tunnel at a distance of -some 50 to 100 feet. Just what took place immediately following is a matter of dispute. Whether Conheeney was actually drunk at that time was a question in dispute at the trial. There was evidence, undisputed, that he had-spent a couple olf hours- in a. saloon just before he started home, and that he took at least one drink over the bar while there.

■ A witness; J. S. White, who testified for the ¡state, saw and •talked with him only a few minutes before he was killed, and said he ¡was -drunk at that time, though' not so drunk that he could not ■handle himself. And his conduct just prior to his death was that of a man half crazed by intoxicating liquor. ■ ■ • ■

Defendant testified *that,*‘after 'getting into the tunnel a short distance, Conheeney 'stopped and commenced 'urinating; that he (defendant) -went up to Conheeney and' asked him. if he' could' not wait until be got'out of the'tunnel'; that' he'told him that just then women and children from Terraville 'were on their way 'home from thé picture shows id Lead, and -that 'if they Should1 'see ¡defendant it would look bad; that Conheeney‘replied! in ¡an'insulting manner, telling defendant-that'it wa&-norie of his- (defendant’s) business. ‘More *9word's followed, and Conheeney- struck defendant with a bottle-of wine he was carrying. Then followed a vicious fight, in .which both -defendant -and Conheeney were considerably cut and. bruised about the. head1, and! face. After the fight had óontinued some time defendant succeeded in freeing- himself from Conheeney, and1 ran 'back toward1 the entrance to the ttinnél. .......-

Near, the entrance to the tunnel -defendant passed the witness White, above mentioned. White -said that defendant passed him -on the run, and that neither of them spoke to th-e other; 'that shortly after he passed ¿defendant he ic-ame upon Conheeney; that, when he first saw Conheeney, he bad1 his hat in one hand and, with the other ■hand,.was feeling of his bead; that he.had two bad ¡cuts on his head, and that his face, coat, shirt, and tie were, spotted with blood. In reply to a question by the witness, Conheeney said: “He .[meaning the defendant] hit -me over the head with- the butt ¡of his -gun.” He told tlie witness that' -defendant -had 'knocked him -down, but does not a-pipe-ar to have told Witness how the fight started or who wa-s the aggressor. The witness 'then- asked ¡deceased to come ¿long home with him, but deceased refused, s-aying he -was- going ¡down to the timekeeper’s office to report ¡the gu-ard for striking ¡him- with bis gun. • The . witness then- insisted1 upon.'going, to the timekeeper’s office with Conheeney, but Conheeney refused .this service, .s-aying he -could attend to his own business. Oo-nheen-ey then -started back toward the -entrance to the tunnel, and witness went on- through the tunnel to Terraville. -Soon after leaving White, Conheeney came to where'the -ore train was being loaded, and had' a-conversation with one Bray, who w-a-s the engineer .o,m 'the -ore -train and who testified for the state. This witness said that Conheeney -showed signs of having been-in'a fight; that he -had a rode.or piece of -ore- “two-or three- inches- square” ¡in -his hand, and that he inquired for the watchman-, and said- the Watchman h-acl1 knocked him down.

■ Soon! after defendant had passed the .witness-White; fee entered a boiler ro-om-near-the 'entrance-to the ’tunnel, where he found-another guard by ’th-e -name of Hart, who' was also-a--witness-for the -state.- This witness testified- that,- w-hen- defendant came into- the boiler room-he- had no hat, and his ¡coat was--torn; that his head was cut-and blood1 was running down-the side-of his face; that he (Washed¡his-hands;-'and-witness loaned-him1-a hat: -Defendant then asked witness---to go-with---him back-• into the • -tunnel' ' and *10they started into the tunnel together. They had gone ■but a short distance -when they saw- 'Gonheeney, Who immediately started towards them; on the run. When they saw Conheeney 'coming, 'defendant asked witness to- go ahead Of him, which, he -did1. 'Conheeney continued on the run until he reached Hart, when Hart made an- effort to catch 'Conheeney with the intention ■of stepping him, ibut, in so doing, he slipped; and fell to his knees, and1 Conheeney passed him. Defendant was then some 20 feet behind Hart. Directly after 'Conheeney passed- Hart he threw a rock at defendant. Defendant dodged, or “ducked,” as he said, and the stone passed over his head. As he was in the act of rising after he had dodged the rock, he drew his pistol from the holster and fired at Conheeney, -the bullet striking him in the head and 'killing him instantly.

Under the foregoing circumstances, the state contends that the ■defendant could have avoided the killing of Goobeney without danger ho ‘himself, and that the killing was deliberate on -the part of defendant.

[1, 2] The only circumstance in the entire transaction! that is assigned by the state as indicating any deliberation or premeditation on the part of defendant is as follows: Conheeney, after he -had passed Bart, was directly between defendant and Hart, and', just before defendant fired the fatal shot, defendant called out to Hart to *“Look*out” or *to*“step aside.” From this *act*on the part of the defendant, the state draws the inference that the defendant displayed1 more cooln'ess' and deliberation than a man who believed himself to be the object of a deadly personal assault would exercise. It is true that -defendant displayed some presence of mind' in Warning his friend of danger before he fired the fatal isbot, but this is' not evidence of a felonious design on the part of defendant. If he were acting upon an honest belief that he was- about toi be assaulted by Conheeney, he had1 a right to use such mean-s- as he had at hand to protect himself from: -such assault, and the fact that he exercised sufficient presence of mind to warn bis friend, who -was' then directly in line with 'Conheeney, of possible danger gives rise toi no inference that the danger to defendant was not really apparent. Under the common1 law and under the statutes' of this state, a person who is' being assaulted1 may make such resistance as is sufficient to *11repel such -assault. Section- 268, Pen. 'Code; sections 225, 226, Wharton on H-om. (3d Eld.).

[4] The question of self-defense and the circumstances that will justify the talcing of human life in -repelling a dangerous assault were recently considered hy this court in State v. Belt, 38 S. D. 159, 160 N. W. 727, and much .that is 'said- in that case is applicable to the facts- in 'this case. It is not material who- Was the agressor in the first encounter between defendant and 'Conheeney, nor what the result of that encounter .was. Conceding that -defendant 'struck Conheeney over the head with, the foiuitt of his pistol, as Conheeney told White that defendant had1 -done, this would not justify Conheeney in taking the law intoi his own hand's and' renewing the encounter w-ith- defendant o-n sight.

[5] The state further contends that -defendant could have retreated, and in -that way saved himself from impending danger without having taken the life of Conheeney. Upon this feature of the case the tidal -court charged- the jury that, it the defendant could have retreated with safety, it was his duty to1 'do so-. Under this instruction, whether or not the defendant -could have retreated with safety to himself was submitted- to the jury as a question of fact, and, in order to have found the defendant guilty, the jury must have believed that, under ■ the circumstances the defendant could have retreated with safety. This, conclusion we do not believe is warranted' 'by the evidence. It is true that, -bad defendant turned and1 ran the instant he saw Conheeney start toward him, he might have escaped serious injury and still have" avoided the killing of Conheeney, but this he was n-ot called' upon to 'do. In the- first place, he had no warning that 'Conheeney intended.' to assault him, and, in the second p-lace, when he sent Hart on, ahead, he was justified in 'believing that Hart Would prevent an assault by Con-heeney, even though defendant had known that Conheeney intended to make the assault. After C-oniheeney (passed Hart, defendant was given no -opportunity- to escape. Had he turned to run. ‘before- the rock was -thrown, he would have incurred the danger of being struck and seriously -injured- 'by the rock and, -after the rock was thrown, he had' no means of knowing that Conheeney did not have another rock with which he -could have struck defendant. That defendant was not -seeking an encounter with Gonheen-ey is evidenced by the fact that he took Hart With h-im when he started *12■back into the tunnel; and this is further - evidenced. by the fact that, when 'Coniheeney started toward defendant, he sent Hart on ahead, .presumably to stop Coriheeney and .¡prevent .another encounter. B>ut, after 'Coniheeney had passed Hart • and thrown the ■rock -at defendant, 'defendant was not called upon to wait to see whether -Coniheeney bad other missiles to throw or other weapons with which he could -inflict injury upon the defendant. After Cooheeney had thrown the rock and continued to advance, he had’ •made sufficient demonstration to, convince a reasonably prudent person that he intended to -continue the assault upon defendant and inflict all the injury upon him that he could.

After a careful examination cf all the evidence in the case, we are of the -opinion that the defendant -was justified, at the time he fired! the fatal shot, -in the belief that 'Conheeney was threatening either -to kill him 011 to inflict great bodily injury upon him.

The judgment and order appealed from are reversed.

WHITING, P. J.

(dissenting). The jury were correctly instructed as to- when, one -should, .and when one need net, retreat if attacked. There was ample evidence from which the jury could find that defendant could have retreated in perfect safety to himself, -and also evidence from which, the jury- cou-ld find that there was not imminent danger of serious bodily injury even if he did not retreat. -It must be remembered that the rock had been thrown before defendant pulled hie 'gun. When the fatal 'shot was fired' there was *no*rock *ini the*hands of the attacking- party — • the most defendant claimed was that he did not know bu-t that deceased ihad other rocks in his bands or pockets. Defendant had help in the person of Hart and, in view of the fact that defendant unaided had come out victor in the previous fight, he certainly bad no reason to 'fear any serious injury from another fistic encounter. The evidence also showed1 that, within some five feet of defendant, was a passageway into which he co-uld! have retreated and escaped1 Inis' pursuer. Such being the record before us, We certainly should not set aside the verdict of the jury even though we believe that, if we bad been on the jury, our verdict would have been in favor of defendant.

MoCOY, J„ concurs in the dissent cf WHITING. P. J.