Tonopah bonanza. [volume] (Butler City [i.e. Butler], Nev.) 1901-1909, 1907-06-08

We're about TO XIII Max ElltHlan OF "
do him great bodily injury, and when
/ shot l acted under the influence OF
those fears. l certainly believed al
the moment of the shooting that Cole,
Fancher and Ganahl, or some OF them,
intended by violence or surprise to
commit a felony. / believed they were
going to murder Mr.. Elftman, throw
him into the shaft and then attack me;
/ acted entirely under the influence OF
those fears"
The rulings of the court relative to
the testimony of Van Mohr and the
defendant above set forth, were error
1t was competent for the witness van
Mohr to testify fully with reference TO
any threats against the life of Max
Elftman by Ganahl or by Cole or Fan
cher in association with Ganahl, for
such threats, even IL uncommunicated,
would be competent, for the purpose OF
aiding the jury in determining VINO was
the aggressor in the which
subsequently occurred between Ganahl
and Cole on the n hand and Elftman
on the other. 1t was, however, OF the
very greatest Importance to the DEFEND
ant to show that these threats were
communicated to him. His defense was
based upon the proposition that he took
the life Of Ganahr not only to save
his own life but to save that OF Max
Elftman. Both these defenses We're be-
fore the jury for their consideration,
If the defendant believed, as a reasona-
BILE man, that Max Elftman. was as
saulted and was in danger of losing his
life or of suffering great bodily harm
at the and of Ganahl, he had the
same right to defend Elftman as me
latter would have to defend himself,
and whatever would be competent in
Elftman's favor, IL Elftman had done
the killing, would be competent IN
| favor of the defendant. Mr.. Bishop, in
speaking of the right to assist others
in defense of their person, says;
THE doctrine here is that whatever
one may do for himself he a do for
another, and on the whole, though dis
| tinctions nave been taken and doubts
expressed, the better view plainly Is
that one may do for another whatever
| Bishop on Criminal Law. Section SID
Another writer uses this language:
"a well grounded belief that a felony
is about to be committed will extenu-
ate homicide committed in prevention,
but not in pursuit, by a volunteer.
= : A bona fde belief that a fell
ony is in process of commission, which
can only be arrested by the death OF the
supposed felon, makes the killing eX-
cusable; but the belief must be hon
estly entertained, n without negli-
gence, and If non-negligent. it will ex-
cuse the homicide. person
has a right to repel a felony threatened
to be perpetrated either on himself oil
others. : The intentional in
Fiction of death is ~justifable when II
, is inflicted by any person in order &c
+ defend himself or any other person
t from immediate danger of instant
E death or grievous bodily harm, If he
III EOOh lhlhH LII III
grounds, believes 1t to be necessary
when he inhicts 1t. = Self
defense will Justify a person in de
= Tending those with whom he is asso.
ciated, and in killing. if he believes
1 life is in danger; and the right may b'
= exercised by the servants n friends
t of the party assaulted, or n one pres.
: ent, in repelling an attempted felony.
Desty's American Criminal Law, Sec
lions 125d and l26a.)
Kerr in his work on the Laws o
Homicide, discussing the same sub
ject. says:
0 1T is well established that what on,
= lmay do in his own defense, another ma,
y do for him, IL he believes life is in i'm
. mediate danger, or If such danger an
: necessity be reasonably apparent. pro
y vided the party in who's defense h
Is acts was not In fault. o
And it is the duty of a mar VIII
{ sees a felony attempted by violence I
: prevent IL IL possible. This is an actiy
. duty, and hence he has a legal RICH
to use the means necessary to max
- the resistance effectual. If A be un
lawfully assaulted by b and his lif
=, thereby endangered. he may, by reas
on of not being in fault, defend 1t eve
to the extent of taking the life of IN
, person who is in fault; and as tn
right is a natural one, rules of law re
stricting IL must, in order that II ma
y still be effective, be adapted to hi
~ character and nature. He may, there
fore. act upon appearances. If he act
20 6HN
other and he believes, and has reason
able ground to believe, hat his life
thereby endangered, he may even tax
D., life, in its apparent necessary defens
; SO great. however. Is the laws regar
for human life, that he must be carefl
y and not violate the restriction the
y law and society have placed upon h
te right of self-defense, to wit; he mus
- act from necessity. and not be in fault
IN (Kerr on Homicide. Section 1851 Use
lu also Stanley VS.. Commonwealth, Sc Ky
& l 4 a "a so - De- a fa NO Ma oil
1876. L. S. /; People VS.. Travis. Sc ca
y 251: State vs.. Felker, p Mont. 40
u Wharton on Homicide. sec. 532; and te
and authorities cited i'm q eye, SO
re and 81 Am. and Eng. Enc. of Law, 20
~ Compiled Laws of Nevada, secs. 400
46S0.)
Persons acting In defense or othe.
- are upon the same plane as those actin
re in defense of themselves. Therefor
every fact. which would be competel
to establish justification in the one cai
&c would, for the same reason, be comp,
If tent to establish II in the other. a Il
liott OF evidence, note to section 30i1
State VS., Felker. ~ Mont, 451, n Pa
~ 66S; People VS.. Curtis, So Mich. GIG,
,st n. w. 1856; Wood vs.. state. 12S Ala.
III 20 So. 557; state VS.. Austin, 104 l.
~ 400, 2g So. go; State VS.. Foster, Ten
= 40 S, w. 747)
Il Had Elftman killed Ganahl in the q
IN. counter which occurred it would ha
III been competent for him to have show
he in his defense that a conspiracy HI
-eT been entered into by Ganahl and othe
-ae to take his life or to do him gre
Of bodily harm. or that Ganahl alone hi
nj made threats to do such violence. al
a for the same reason testimony OF I'll
,is nature would be competent in He
Its nessy's defense, the latter claiming
have done the killing in the necessa
ZEN defense OF Elftman.
~ The record upon appeal contai
,ev numerous other assignments of err
relative to the rulings of the cou
m upon the admissibility of testimor
In many instances the court subs
m quently admitted testimony which
IL had previously ruled as inadmissib
and generally in such cases the err
If any, would be cured. Upon a
trial OF this case, ms for defen
IN ant will rave ample opportunity to C.
no the trial courts attention to what
deems error in its rulings other tn
Is- those herein specifically consider
and If errors ave been made they "
doubtless be corrected.
an Instructions.
Nh 4. Numerous exceptions were TAX
TO ruling OF court in giving and
fusing instructions, some of which WI
ted rant our consideration at this time
the end that the court may be aided
avoiding error upon another trial.
as Defendants requested instruction
the II, refused by the court. was as (
lows:
IF. after Il consideration of the VIII
mi case. any juror should entertain a rel
enable doubt of the guilt OF the
PENDANT, II Is the duty of such juT
Us SO entertaining such doubt, not to v