State v. Shepard

1. Criminal Daw — Assignments of Error Not Discussed — Abandonment. Assignments of error not 'mentioned or discussed by accused in his brief on appeal will be deemed abandoned. 2. Homicide — Assault with Intent to Kill — Evidence—Admissibility. Where accused and prosecutor had a difficulty, accused pulling a revolver and striking prosecutor, who, pursued by accused, ran into a store, closing the door, accused being prevented from entering, by bystanders, prosecutor then opening the door part way, his head .being visible, whereupon accused shot at him; held, the sustaining of an objection to a question on cross-examination of proprietor of the store as to whether prosecutor could have gone out back door was proper, 'especially since there was no evidence that prosecutor knew he could escape through a back door. 3. Criminal Daw — Record on Review — Statement of Facts in Appellant’s Brief. The ruling on an objection to a specific question will not be reviewed on appeal, where appellant’s statement of facts in the brief fails to show such question, the objection to it, ruling of court and exception thereto, the answer to question, if any, and sufficient surrounding evidence, if any, to show connection in which question was propounded, and also an assignment of error should appear in record and brief. This court will not review or consider such ruling upon an assignment of error alone. 4. Criminal Daw — Instructions—Assumption of Facts. The court may, in a criminal case, assume in its instructions facts proved by undisputed evidence; following State v. Kinney, 21 S. D. 390, 113 N. W. 77.

Appeal from Circuit Court, Meacle County. Hon. Wm. G. Rice, Judge. Roy Shepard, the defendant, was convicted of assault with intent to kill, and he appeals. In using the following words: “There is no self defense in it; therefore he was not defending himself because' he was not being assaulted,” this invaded the province of the jury. It was not for the Court to say whether the act of the defendant was in self defense. This language vitiated every other instruction given by the Court for it .took from the jury the entire question- of the guilt or innocence of the defendant. The fourth portion of the instruction to which exception was taken: “If the defendant fired the shot simply to prevent the other party coming out and' making any disturbance or assaulting him,-he is not guilty of assault with intent to kill or assault with intent to injure but is guilty of simple assault. If you believe he fired the shot at another man or in his direction in such a manner as was liable to hit him and did it for the purpose 'he says he did it for lie is guilty of simple assault and you should so find.” The objection being, as stated in the record, for the reason that if the shot was fired to prevent an assault at a time when the defendant believed or had a right to. believe he was to be assaulted he had the right to fire the shot and would not be guilty. For the further reason that the instruction invades the province of the jury, taking from the jury all question of self defense. The seventh portion of the instruction to which exception was taken reads as_ follows : “AVhen you go out there to your jury room do not say one word about the liar business or his hitting him over the head with the six-shooter because they both violated the law, I want you to simply take up this shooting and return a verdict,” for all the reasons stated in the last above exception. These instructions to which exception 'has -been taken as a whole all invade the province of the jury and all were prejudicial to the right of the defendant. They all assumed as true certain facts many of which were controverted. State v. Barry, 92 N. W. P. 809; Territory v. O’Hare, 44 N. W., 1003, 1st N. D. 30; Aszrman v. State, 123, Ind. 347, 24 N. E. 123, 8th L. R. A. 33; Grissel v. Bank of Woonsocket, 12 S. D., 93, 80 W. 161; Subdivision 6, Code Criminal Proc.; Rapp v. Gidings, 57th N. W., 237, 4th S. D., 492; Wood v. Steinau, 9th S. D., no, 68th N. W., 160; 12th Cyc., 601; Territory v. Kay, 21 Pac. (Ariz.) 152; People v. Strong, 30th Cal., 151; People v. Revison, 16 Cal. 98; People v. AhFung, Id 137; People v. Carabin, 14 Cal. 438; People v. Williams, 17 ’Cal., 147; People v. Messersmith, 61st Cal., 249; People v. Williams, 17th Cal. 147; Pleading and Practice, Vol. 2, p. 116; State v. Buralli, 71st P. 523, Nevada; People v. Webster, 43, P.,- 114; State v. Whitney, Hiilbert 7th Ore. 386; People v. Schick, 42nd N. W., 1008; Hellyer v. People, 58th N. E. 245; Commonwealth v. Smith, 26th N. E. P. 436; See, also, State v. Rightfoot, 107 Iowa, 344, 78th N. W., 41; State v. Johnson, 6th Kan. App. 119, 50th Pac. 907; State v. Bige, 112 Iowa, 433, 84th N. W., 5x8; Turner v. Territory, Olda., 69 P. 804; People v. Schodde, 58th P. 859; State v. Walters, Wash. 34th, P. P- 938. The objection argued in these assignments is that an attempt is made to give weight and prominence to a portion of the evidence and the following, from 12 Cyc. 603, is quoted: “As a general rule it is not error for the Court, in charging, to recite the evidence, or to state what a witness'has testified to, if he inf orms the jury that they are to be guided by their own recollections of the evidence, and that they are the exclusive judges of the truth of the testimony, and leave them to draw their own conclusions, and in -doing this -does not give undue prominence to some evidence or, overlook other evidence equally important.” In this connection the attention of this -court is called to the instructions of the trial court as found in appellant’s -brief, and ■particularly to folio-s 27-29, thereof. The co-ur-t. did inform the jury that they were the sole and exclusive judges -of all questions of fact,- etc. “The court, in addition to instructing as to the law, may, and usually should, recall and relate the testimony, and resolve complicated evidence into its simplest element, to aid the jury in applying the law. It need not, however, recapitulate all items o-f evidence, nor even all evidence bearing on a single question. It is only necessary to repeat such evidence as will direct ¡the attention of the jury to the principal .questions at issue, in order to explain the law applicable to the case. “The court in instructing upon the law based on disputed facts should accompany the instructions with-such remarks as will enable-the’jury to apply the law to the facts claimed to be proved, and it should at the same time instruct them to apply it only upon finding’, the facts upon which, it is based to be true.” 12 Cyc. 62; State y. Rose, 47 Minn. ^47, N. W. 404; Hannon v. State, 79 Wis. 448, 36 N. W. 1;. State v. Summers, 19 S. C. 90; State v. McNeil, 93 N. C. 552; Hqnrahan v. People, 91 Ill. 142; People v. Phillips, 70 Cal. 61, 11 Pac. 493; Jones v. State,' 53 Ind. 235; Jones v. State, 13 Tex. 168, 62 Am. Dec. 550; State v. Madison, 23 S. D. 584; State v. Summer, 74 Am. St. Rep. 707, 55 S. Cr 32. ' . — The -question, of cooling time is one for the court. Stilwell v. State, 107 Ala. 16. .. The objection, argued under the 16th assignment is that it is not for the cojirt to say whether the evidence of the defendant was self defense.- This portion of the instructions 'is as follows: • “If the defendant fired that shot at that time — if you believed under the evidence that the defendant fired the shot at that time, and intended to hit this man when he fired it, then you should find him guily of assault with intent to kill or intent to do bodily harm because he told.you he did not intend to hit him at all, that he fired the shot to keep him away; there is no self defense in it; therefore he was not defending himself because he was not being assaulted.” This language is an instruction on the law of the. case. “The court does not invade the province of the jury by stating that there is or is not evidence of particular facts, when by the record it appears that this is the case. The right to state evidence conferred by statute implies the right to state that there is no evidence when such is the fact.” 12 Cyc. 603; People v. Stern-berg, hi Cal. 3, 43 Pac. 198; State v. King, 27 Cal. 307; 87 .Am. Dec. 95; Jones v. State, 13 Tex. 168; 62 Am. Dec. 550; Territory v. Young, 2 N. Mex. 93; State v. Brown, 119 N. C. 789; 26 S. E. 121; State v. -McIntosh, 40-S. C. 349; 18 S. E. 1033; Payne v. State, 60 Ala. 80; State v. .Mitchell, 41 Da. Ann. 1073, 6 So. 785; Hawkins v. State, 136 Ind.-630; 36.N.-E. 419; State v. Littlejohn, 33 S. C. 599, xi S. E. 638; People v. Tamldn, 62 Cal. 468; Stanton v. State, (Tex.) 29 S. W. 476. The court may state to the jury that there is, or is not evidence of a particular fact when the record shows such statement to be true, since whether or not there is any evidence at all as to a fact in issue is a question for the court. 14 Cent. Dig. Sec. 1768; Griffin v. .State, 76 Ala. 29; 1, Greenl. on Evi. 49; Chandler v. Von Roeger, 24 How. 224. Conceding' that Perket may have been the aggressor, still one may be at fault in bringing on a difficulty, but if he withdraws from it in good faith and is departing, and the other party .pursues him, and brings on the difficulty again by his own fault, the latter cannot invoke the doctrine of self defense, but will be treated as an aggressor ab initio. . Stihvell v. State, 107 Ala. 16. The doctrine of self defense cannot be set up by this defendant under -the evidence of this case. The law of self defense is very carefully reviewed in the notes to State v. Sumner, supra, and State v. Gordon, 191 Mo. 114, 89 S. W. 1025, 109 A. S. R. 790, 804; also see State v. Beckner, Mo. 91 S- W. 892, 3 L- R. A. (N. S.) 535. There is no evidence of self defense in this case. The appellant’s own testimony precludes any such defense. The objection argued in assignments Nos. 19 and 20 is the same as have been argued in most of the prior assignments, to-wit: That the instructions invade the province of the jury. • The language of these instructions was not as strong as that used in State v. Tarlton, 22 S. D. 495,118 N. W. 706, and which was held not objectionable. State v. Sumner, supra; 12 Cyc. 596; 14 Cent. Dig. Sec. 1731; Thomas v. State, 90 Ga. 437, 16 S. E. 94; Yar-borough v. State, 68 Ga. 396; 12 S. E. 650; Hemmingway v. State, 68 Miss. 371, 8 So. 317; State v. Eetterer, 65 Conn. 287, 32 Atl. 394; People v. Cannon, 139 N. Y. .645, 34 N. E. 1098; Hill v. State, 63 Ga. 578, 36 Am. Rep. 120; State v. Anderson, 4 Nev. 265; State v. Taunt, 16 Minn. 109; State v. Littlejohn, Supra; State v. Brown, 28 Ore. 147, 41 Pac. 1042; Sharp v. State, 48 Ga. 16; Hannon v. State, 70 Wis. 448, 36 N. W. 1; People v. Sternberg, iii- Cal. 3, 43 Pac. 198; State v. Summers, 19 S. C 90; Jones v. State, 53 Ind. 235; State v. Day, 79 Me. 120, 8 Atl. 544; People v. Westlake, 62 Cal. 303; People v. Cummings, 113 Cal. 88, 45 Pac. 184; People v. Perry, 65 Cal. 568, 4 Pac. 572; 12 Cyc. 598; 14 Cent. Dig. Seos. 1735, 1749. “An instruction is not 'erroneous as invading the province of the jury because it assumes the existence of facts which are expressly admitted by the accused, or which are established by un-contradicted evidence, or which are clearly and conclusively established by the evidence beyond a reasonable doubt; but it is otherwise where an instruction assumes material facts to> be proved of which there is no evidence, or upon which the evidence is contradictory or controverted.” 12 -Cyc. 601; 14 Cent. Dig. Sec. 1754-5 ; I-Iawkins v. State, 136 Iird. 630, 36 N. E. 419; Plhnrahan v. People, 91 in. 142; People v. Phillips, 70 Cal. 61, 11 Pac. 493; State v. Day, 79 Me. 120, 8 Atl. 544. Where the -evidence conclusively shows the defendant guilty slight error in the instructions, if any, should not be held reversible error. State v. Witherow, 15 Wash. 563, 46 Pac. 1035; Citing Ty. v. Gay, 2 Dak. 125, 2 N. W. 477.