The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1900-03-27
REASONS FOR REMAND
Syllabus of Opinion in the
Taylor Kirk Case.
LAW OF SELF = DEFENSE
Instructions to Jury and Con-
feSSionS Involved.

Guthrie, o. T, March 26.-The following
Is the syllabus Of the opinion handed
down by Chief Justice Burford Of the
supreme court, reversing the Taylor Kirk
case and remanding it back to Canadian
county for rehearing:
81 1t is no abuse Of discretion to over
rule an application for continuance where
no diligence is shown to procure the at
tendance Of nonresident witnesses.
so 1t is error for the trial Judge dur
ing the trial Of one accused Of murder
to express, in the presence of the jury,
an opinion as to the character or credit
Of a witness.
So On a trial Of one charged with muir
der, where the killing is admitted, but the
there is any evidence, however slight,
tndng to support such plea, the court
cannot weigh such evidence, but must,
when requested, submit an instruction
properly embracing the law of self-de-
fence. and stating under what circum-
stances the defendant was not required
to retreat: and il is error to refuse such
an instruction unless the subject is prop
erly covered by the general charge.
Il As to whether the circUmst ances
attending the killing were such as to re-
quire the defendant to retreat before fir
ing the fatal shot, was a question Of fact
for the determination Of the jury: and
the court had no right to assume that
the facts proven made it his duty to re-
treat; and the giving an unqualified in
struction to the effect that the defendant
was bound TO retreat, if he could do so
without subjecting himself to the risk Of
death or great bodily harm. was reversi-
bic error.
80. Where the deceased has sought out
the prisoner with a deadly weapon for
the purpose of taking his life, or where
the prisoner is violently attacked in his
own house or in a place where he has
a right to be- or where he is assaulted
with a deadly weapon. and he mas not
provoked the assault or brought on the
difficulty, he is not bound to retreat, but
has a right to stand and defend himself,
and If the necessity arises for taking the
life Of his adversary in order TO save his
himself from great bodily injury, such
killing is iustiiable on the grounds Of
self-defence"
'6. 1t IS not every correct proposition
Of law that IS proper to be submitted to
a jury as an instruction on the trial of
cause. In charging a jury due regard
must be had to the state of the case, the
character and amount Of proof, and the
law as stated TO the jury, must be ap-
pIicable to the pleadings and testimony.
- The court has no right in charging
the jury 10 submit any proposition which
assumes any particular controverted fact
TO be proven, which is an expression up
on the weight Of the evidence or credit Of
a witness or which requires the jury to
give more credit TO one class of testimony
than some other. The jury must be left
entirely free to determine all facts, the
weight Of the testimony and the credit TO
be given the witnesses.
IS Where the competency of confess
sions are objected to on the grounds that
they were not voluntary or were made
under duress or promises of leniency, The
court should withdraw the jury and hear
all the facts and circumstances attend
Ing such alleged confession and determine
Its competency in the absence of the Jury.
If it is held incompetent. the matter
should go no further; but If held coa.pe-
tent and proof of same admissible, then
the jury should be recalled and are en-
titled to all the facts and circumstances
attending such confession; not for the
purpose of passing on its competency, but
in order to determine the weight and
credit to be given such confessions. It
Is not prejudicial error to hear such evil
dence in the presence of the jury where.
on such hearing the confessions are
found 70 be competent and evidence of
such confessions is admitted 1t could
only be Drejudicial error to hear such
evidence in the presence of the jury,
where, on such hearing, the court should
hold the confessions Incompetent and ex-
clude the evidence of the confessions. And
even then it might not be preiudicial err
ror. This question should be determined
from consideration Of the entire record
Of the trial"