Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-10-16

e. q. SMITH. Reporter.
IN TIE SUPREME Court OF THE TERRI.
TOBY OF DAKOTA, AT JUNE TERM, 1879.
The TERRITORY OF DAKOTA.
Defendant in error.
WILLIAM GAY, Plaintiff in error.
Appeal from the judgment of the District,
Couft.of Lawrence county.
The defendant wat indicted 10 the district
court ut Lawrence county May term 1873,
Tor The murder Of o Forbes.
a trial Was had in said county 10 June
following and the defendant found guilty |
OF msnsiaughter in the second degree.
After conviction and sentence an appeal
was taken 10 this court. Hugh ]. Camp
DELL United States attorney, and Gamble
Brothers Tor pIsintiif in error.
Aud A. ". H,stie district attorney for
the defendant ID error.
OPINION BY BARNES. JUSTICE.
The second paragraph Of the following
instruction Is assigned 10 q specific ground
pf error by the appellant.
Homicide Is manslaugter In the first de-
gree when perpetrsted without q design to
effect death aud 10 q heat Of passion by
means OF a dangerous weapon, unless it Is
committed under such circumstances az
constitute excussbie or just,fsble homi-
eide.
Here then you will discover the killing
being admitted. as In the present case, IL is
not necessary tor you to find that the pri-
soner intended or designed to take the life
OF the deceased. II you find the killing
was with u dangerous weapon. then the de.
fendsnt is guilty OF manslaughter, unless
you find from the evidence that the killing
was done under such circumstances ss to
make the killing justifiable or excusable."
We here observe, that defendants counsel
10 their brief. and in their assignment OF
error have detached the second paragraph
of the instruction from the first. to which
1t directly refers, end then allege as error,
that the court commanded the Jury TO find
q verdict of guilty, and thereby took away
from them the exclusive right 10 pass upon
the guilt or innocence Of the defendant.
This is an attempt to mangle the iustruc.
ton. As TO the most casual observer, the
words. Here then you will discover" as
used 10 the second paragraph of the in
slructieD, Is giving the statutory definition
Of manslaugbter in the first degree, no
more. no less, and In this we discover no
command.
Second The court then proceeds and
declares the law with reference to excusa-
ole homicide, as follows: First, when com.
United by accident or misfortune in lawful.
~ correcting q child or servant or IN doing
a lawful act by lawful means; second, when
committed by accident or misfortune in the
ueat Of passion, upon q sudden combat pro.
sided no undue advantage was taken or a
dangerous weapon used, and 10 explaining
tue law in excusable homicide the court
made use of this language Il say to you
as a rue Of lao, and by which it you regard
the oath you took on entering the jury box
you are bound. there is no evidence what.
ever, admitting every word to be true, that
will excuse the killing"
And here again it is claimed by the
plaintiff 10 error that the language thus
used Is q p%eremptory command TO find the
defendant guilty.
ton. The law very clearly defoes whal
facts will excuse the homicide, and the
court at the close Of the testimony declares
10 the jury.-There is no evidence estab-
fishing or tending to establish any fact that
will excuse the homicide. (Olhcr similar
instructions were given presenting substau.
TALLY the same questions.)
The question % 10 whether this ~instruc-
ton was erroneous or not depends upon the
further question as a matter Of fact, was
there evidence tending TO excuse the homi.
eide? If there was it was error not TO have
submitted it to the jury. II there was no
legal or competent evidence, tending to ex-
cuse, then the court properly declared the
law, and IS non is suggested for the con-
sideration Of the court, tending to Justify or
excuse, and as counsel upon the argument
when their attention is called To the impor.
lance of this question, concede that they
are unable TO point out evidence which il
true will excuse or tend to excuse the HON,
lcide.
We think the law fairly stated by the
court below, aud that no error was commit
ted.
In other portions of the instructions the
court below distinctly stated to the jury,
there was no evidence 10 excuse or justify
the homicide. aud as q conclusion Of Law
there was DO legal or competent evidence
to lie considered by the jury.upon the ques
ton of excusable or Unsuitable homicide.
1t is claimed by appellants. counsel, thal
this is un Invasion Of the province Of the
Jury.
This Ike the preceding alleged error,
depends upon the question, was there evil
deuce to justify OF excuse, or tending to cx
cuse? Ii there was no competent evidence
then there was nothing for the jury 10 con.
slider. II is s,renuously urged 10y the plain
Tiff in error that the court erred in gfvioi
the following instruction:
Assume the killing aud facts nccessar!
> for the prosecution to establish beyond
reasonable doubt, as | have detioed'd0ub
to yon, then your verdict must be murder o
m~anslsughter."
From that finding you canno! escape. Q
!. course when l say. cannot escape you vii
understand me as meaning. If you regsrt
the oath you have taken. your verdict mus
b. murder or m~snslsuRhter."
1t is urged with great earnessness bV de-
PENDANTS counsel, that this was q positive
commend to the jury to find the defepdan
guilty Of murder o. m%anslaughter.
This is not y logical deduction from th
INSTRUCTION. The court distinctly called tn
attention of the jury to the facts recessar!
far the prosecution to establish, ss outlined
"a d.6r.d in the p%recedjDR instruction