Summary
In Hecker, supra, 109 Cal. at p. 461, the Supreme Court articulated the point in the manner later used in CALCRIM No. 3471, describing the defendant's use of deadly force as justified where the defendant, even though the initial aggressor with non-deadly force, "was put in such sudden jeopardy by the acts of the deceased that he could not withdraw, and if it was thus that [the victim] met his death."
Summary of this case from People v. LopezOpinion
Appeal from a judgment of the Superior Court of Humboldt County. G. W. Hunter, Judge. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [42 P. 308] For the foregoing reasons the judgment and order are reversed and the cause remanded.
SYLLABUS
The facts are stated in the opinion of the Court.
An involuntary surrender of property found does not extinguish the lien of the finder. ( Palmtag v. Doutrick, 59 Cal. 154; 43 Am. Rep. 245; Walcott v. Keith, 22 N.H. 196; Bruley v. Rose, 57 Iowa, 651; Civ. Code, sec. 2913; 3 Story on Contracts, 5th ed., 238, and notes.) The lower court erred in refusing to give defendant's proposed instructions Nos. VII, VIII, and IX, defining the rights, duties, and obligations of a finder of lost property. ( Stanton v. French, 83 Cal. 194; Benedict v. Haggin, 2 Cal. 385; People v. Payne, 8 Cal. 341; People v. Taylor, 36 Cal. 256; People v. Keefer, 65 Cal. 232.) The lower court erred in modifying defendant's instruction No. XV, by inserting the words "in a peaceable manner," and then giving it as modified. Where the trespass is forcible, against personal property, an owner may resist it, but he is not justified in killing the trespasser, unless it is necessary to prevent a felonious destruction of the property, or to defend himself against loss of life or great bodily harm. ( Carroll v. State, 23 Ala. 28; 58 Am. Dec. 282; 26 Am. & Eng. Ency. of Law, 572; State v. Tarter, 26 Or. 38; State v. Donyes, 14 Mont. 70; Powers v. People, 42 Ill.App. 427; Bowman v. State (Tex. Crim. App. Jan. 28, 1893); 21 S.W. 48; Crawford v. State, 90 Ga. 701; 35 Am. St. Rep. 242; State v. Smith, 12 Mont. 378; Callicoatte v. State (Tex. Crim. App., June 24, 1893), 22 S.W. 1041; People v. Flanagan, 60 Cal. 3; 44 Am. Rep. 52; People v. Campbell, 30 Cal. 312.) The lower court erred in refusing to instruct the jury that a person in the exercise of the right of self-defense not only has the right to stand his ground and defend himself when attacked, but he may pursue his adversary, until he has secured himself from danger; and if in so doing it be necessary or upon reasonable grounds it appear necessary, to kill his antagonist, the killing is excusable on the ground of self-defense. ( State v. Thompson, 45 La. Ann. 969; Conner v. State (Miss., Nov. 6, 1893), 13 South. Rep. 934; 1 East's Pleas of the Crown, 271, 272; Luby v. Commonwealth, 12 Bush 1; Holloway v. Commonwealth, 11 Bush, 344; Bohannon v. Commonwealth, 8 Bush, 481, 8 Am. Rep. 474; Carico v. Commonwealth, 7 Bush, 124; Young v. Commonwealth, 6 Bush, 312; Philips v. Commonwealth, 2 Duval, 328; 87 Am. Dec. 499; Pond v. People, 8 Mich. 150.) A man may stand his ground and kill one who is attempting to kill or inflict upon him great bodily harm. And this he may do, even though he might more readily have secured his safety by flight. ( People v. Ye Park, 62 Cal. 208; People v. Robertson, 67 Cal. 650.)
Chamberlain & Wheeler, for Appellant.
W. F. Fitzgerald, Attorney General, and Charles H. Jackson, Deputy Attorney General, for Respondent.
Defendant's proposed instructions Nos. VII, VIII, and IX, defining the rights, duties, and obligations of a finder of lost property, were entirely irrelevant. In resisting a mere trespass, human life cannot be sacrificed. ( People v. Dunne, 80 Cal. 34; Pen. Code, sec. 197, subd. 2; People v. Flanagan, 60 Cal. 3; 44 Am. Rep. 52.) Instructions already given in substance need not be repeated. ( Bullard v. Stone, 67 Cal. 477; People v. Adams, 85 Cal. 231; Dufour v. Central Pac. R. R., 67 Cal. 320.) If the entire charge is sufficiently accurate, and free from prejudicial error, the judgment will not be reversed for minor defects. ( People v. Chun Heong, 86 Cal. 329; People v. Clark, 84 Cal. 573; People v. Turcott, 65 Cal. 126.) Anything so connected with the crime in point of time and character as to explain how and why it was committed is a part of the res gestae. ( People v. Irwin, 77 Cal. 495; People v. Nelson, 85 Cal. 421; People v. O'Brien, 78 Cal. 41.)
In Bank. Henshaw, J. Temple, J., McFarland, J., Van Fleet, J., Garoutte, J., Harrison, J., and Beatty, C. J., concurred.
OPINION [42 P. 309] The appellant, Hecker, was tried for the murder of one Patrick Riley, and by the jury found guilty of murder in the second degree. The killing was admitted, but it was claimed to have been done in self-defense.
It appeared by the evidence that Riley peddled wares through the country, using for the purpose a two-horse team and wagon. He had camped near the farm house of one Briceland and turned his horses into Briceland's enclosure. From this they strayed and were lost in the hills. They had been gone for several days when Riley, who had been in vain pursuit of them, met Hecker and offered to give him ten dollars if he would find and return them.
Hecker was an old resident of the vicinity, and owned a sheep range which was contiguous to the land of Briceland. He searched for the horses that day and found them upon his land, put them in his corral over night, and the next morning proceeded with them to Briceland's.
Riley was away at the time of his arrival, and Hecker either made a voluntary surrender of the horses to Mrs. Riley, who put them in Briceland's barn, as was claimed by the people, or, as was contended by the defense, they were put there by Mrs. Riley for Hecker, who thus still retained constructive possession of and a lien upon them for the promised reward of ten dollars. The point is one in dispute.
Hecker rode on to the little town of Briceland, and passed the day in waiting for Riley. He did not see him and went home. The next day he returned to town and met Riley about 11 o'clock in the morning. Riley called him to one side and the finding of the horses was discussed. There having been no one else present at that interview the only account of it is Hecker's. But it appears from other evidence that Riley suspected that his horses had been taken and secreted in the hills in expectation of a reward, and the promptness with which Hecker found and returned them seems to have confirmed him in his suspicion, and created the conviction that Hecker had purloined them There was no question but that Riley's suspicions were unfounded and unjust. It was in evidence that Riley said he would kill the man who stole his horses.
Hecker testified that Riley accused him of stealing the horses, and refused to pay him any money for their recovery. The men parted, Hecker returned to the store and saloon, and, after thinking and talking the matter over, as he says, concluded he would take the horses from Briceland's barn and put them elsewhere until he was paid.
Hecker was a cripple, Riley a powerful man. Hecker armed himself, thinking that Riley would be at Briceland's, and knowing that "he would be trying to get a row."
Arriving at Briceland's a little after noon Hecker found but one horse, the other having been ridden off by Sam Pollock, who had gone to find Riley and tell him the search was at an end. Hecker took possession of the animal, and led it from the stable. Riley saw him and came forward, calling to him and forbidding the act. Hecker half drew his pistol from the bosom of his shirt, and in turn told Riley to advance no further. Riley answered that he was unarmed, and turned out his pockets in proof, and a second time the two men parted, Hecker leading away the horse.
He returned with it to the town where he spent the afternoon discussing his grievance. As was shown, he used some loose talk and indulged in some threats; he would not let Riley beat him out of his money; he would have the money or would have Riley's blood; while, to add to the bitterness of his feeling, he was informed that Riley had gone off to procure his arrest for [42 P. 310] stealing the horses. This information was brought to him by men whom he had sent to see Riley to fix up the matter, telling them that he wanted no fuss and to take what they could get and settle it for him.
So the time passed until about half past six of this July afternoon when Hecker espied Pollock riding by on the other horse. Hecker, who was himself then mounted, hailed him and demanded the horse, believing, as he testified, that he "had to have both horses in order to make the lien good." Pollock declined to surrender the animal, saying he would put it where he got it; and so Hecker rode on once more to Briceland's, and to the fatal meeting with Riley.
As the two men rode up to the stable Riley came forward to take his horse. Pollock dismounted. Riley started to remove the saddle. Hecker leaned forward to seize the bridle. There was a struggle for possession, and then, by the evidence for the people, Hecker drew his pistol and with it struck Riley over the head, and as he staggered back fired at him. Hecker's account is that he spurred his horse that he might seize the other's bridle; that as his horse sprang forward her fore shoulder struck Riley and staggered him: "When I broke his hold he ran right back and had his hand twisted to pull his pistol, and at last he pulled his pistol out and pointed at me, and I saw him shut his eye to pull the trigger, and just as he was about to pull the trigger I threw myself out of the saddle like that [shows] over the side of my horse and grabbed my pistol at the same time, and as I raised mine up he had his pistol up and we both shot about the same time. If anything he shot a little before I did."
The defendant was riding a nervous two-year-old colt, using a "hackamore" in lieu of bridle, and, at the shooting, she either bolted or, as Hecker says, he started her to go around Briceland's house, and get out of the way. Riley fired again at him as he went. At some beehives Hecker reined up, and the two men exchanged shots. Hecker then rode on in another direction to a place in the yard where there were four stumps, having abandoned, as he says, his first intention to pass around Briceland's house, and endeavoring to get away by another route, or, as the people claim, coming back to engage Riley at closer quarters. Riley ran toward a granary, calling upon one of the bystanders, of whom there were several, to lend him his pistol, and to his wife and daughter to go to the wagon and bring him more cartridges. Whether Riley ran to the granary to escape further combat, or whether he designed to use it as a shield that he might fire with more security upon Hecker, is disputed. Near the granary, and, as Riley was about to pass a corner of it, there was shooting, and Riley, struck through the heart, ran a few yards and fell dead.
Nothing of the foregoing narrative is to be taken as expressing the views of this court upon the weight of the evidence. That consideration is not before us. The account is designed to throw into prominence the claims made by prosecution and defense for the better understanding of the propositions of law which we are called upon to consider.
The first complaint of defendant is that the court erred in admitting testimony as to the occurrences at the meeting between himself and Riley at noon of the day of the affray.
But this complaint is not well founded. Hecker's plea was self-defense. Whether Hecker was within or without his legal rights in seeking to gain possession of the horses, whether he or the deceased first committed a felonious assault, were disputed questions for the jury's determination. The attempt to retake the first horse, though separated in time from the taking of the second, was a part of the same occurrence and transaction which led up to and culminated in the fatal affray. The recovery of the first horse, and the manner of it, the conduct of the two men upon that occasion, their previous difficulty, their threats against each other, whether communicated or not -- all tended to enlighten the jury as to the mental attitudes of the men toward each other at the time of the affray, and thus to assist in determining the disputed question as to which in fact first put himself in the wrong, and which first made a felonious assault upon the other; for only by so determining could the jury justly decide upon the defendant's plea. ( People v. Lyons, 110 N.Y. 618; State v. Perigo, 70 Iowa, 657; Monroe v. State, 5 Ga. 85; Williams v. State, 3 Heisk. 376; State v. Zellers, 7 N. J. L. 220; Keener v. State, 18 Ga. 194; 63 Am. Dec. 269; State v. Tarter, 26 Or. 38.)
But, having admitted, and properly admitted, this evidence, the court erred in refusing to give the instructions asked by defendant (defendant's proposed instructions Nos. VII, VIII, IX), defining the rights of a finder of lost property to compensation for its care and preservation, and to any promised reward, the nature of his lien upon it, and how such lien could be lost or extinguished. It is conceded by the prosecution that these instructions correctly embody the law, but, it is contended, that they were properly refused as irrelevant.
This contention cannot be upheld. One of the questions of primary consideration for the jury was which of the two men was the aggressor at the time of the fatal affray; which of the two first overstepped the boundaries of the law; which of the two first trespassed upon the legal rights of the other; in short, which of the two by his acts and conduct first put himself in the wrong. For it is obvious that the determination of this must throw a flood of light upon the other question, second in consideration but first in importance, namely, whether at the time the defendant first fired he was acting in self-defense.
[42 P. 311] The opposing claims of counsel upon this evidence have been suggested. Upon the one hand it was argued that defendant, after voluntarily surrendering his possession of the horses, and so extinguishing his lien, came, with a lawless hand, to retake them from their owner, prepared for this end to do murder if resisted; and that this motive dominated his conduct in the meeting at noon and the fatal later one. Upon the other hand it was argued that the surrender of possession had been involuntary, and that, consequently, defendant's right to possession still existed, even against the owner; that his intent was, therefore, proper and his purpose lawful. The absence of instructions upon these questions of law left the jury without rudder or compass. The true rule for measuring the acts of the parties not having been given them, each was at liberty to set up his own independent standard and approve or condemn in accordance with it.
The refusal to give these instructions thus constituted reversible error. ( People v. Taylor, 36 Cal. 255; People v. Keefer, 65 Cal. 232; People v. Fice, 97 Cal. 459.)
The court gave an instruction prepared by defendant after modification. That instruction is as follows, the modification complained of being the italicised phrase inclosed in brackets.
"I charge you that the law does not permit the taking of human life, or the infliction of great bodily harm in the resisting of a mere trespass against personal property; therefore, in the present case, should you find from the evidence that defendant attempted to regain possession of the horse returned by Pollock [in a peaceable manner] for the declared purpose of holding him for a reward, and that the deceased, Riley, resisted such attempt on the part of defendant by resorting to the use of a deadly weapon, or by attempting to kill Hecker, or inflict upon him great bodily harm (and there was imminent danger of his doing so), then I charge that Riley was acting unlawfully and without right; and if, under these circumstances, you find that Hecker, in order to protect himself from death or great bodily harm at the hands of Riley, shot and killed Riley, then I instruct you that he was justified in so doing and you must acquit him."
"And in this connection, I further instruct you that, if you so find, it makes no difference whether Hecker had a right to take the horse or not, Riley had no legal right to attempt to kill Hecker in resisting a mere trespass."
The instruction was offered under defendant's claim of self-defense. As given it was unobjectionable as a statement of the law excepting for the italicised insertion. One is not justified in taking human life to prevent the commission of a mere trespass; though any person in defense of property has the legal right to prevent the commission of a felony attempted by violence or surprise; and in so doing may use all necessary force even to the taking of life. (Pen. Code, sec. 197, subd. 2; People v. Payne, 8 Cal. 341; People v. Flanagan, 60 Cal. 2; 44 Am. Rep. 52; People v. Dunne, 80 Cal. 34.)
The amendment left the instruction confused and erroneous. The defendant was entitled to have the jury instructed that even if he was in the act of committing a forcible trespass in endeavoring to take the horse, if his act amounted to no more than a trespass, Riley was not justified in trying to kill him, if he did try, in attempting to prevent it. And if, under these circumstances, Riley did make the first felonious assault upon defendant, defendant in turn would be justified in killing Riley if the circumstances of Riley's felonious assault were sufficient to excite defendant's fears as a reasonable man that he was in danger of death or great bodily injury, and he acted under these fears alone, and had in good faith declined further struggle before firing the fatal shot, or was put in such sudden jeopardy by the acts of deceased that he could not withdraw, and if it was thus that Riley met his death.
But, as given, the court in effect told the jury that the defendant's rights were to be governed by their determination whether or not he was endeavoring to take possession of the horse in a peaceable manner. Even if a peaceable trespass be conceded, the jury was substantially told that Hecker's plea of self-defense under the hypothesis could not be upheld unless his act was a peaceable trespass. But such is not law. "Where the trespass is forcible against personal property, an owner may resist it, but he is not justified in killing the trespasser unless it is necessary to prevent a felonious destruction of the property or to defend himself against loss of life or great bodily harm." ( Carroll v. State, 23 Ala. 28; 58 Am. Dec. 282; 26 Am. & Eng. Ency. of Law, 572; State v. Tarter, supra ; State v. Perigo, supra.)
The acts which a defendant may do and justify under the plea of self-defense depend primarily upon his own conduct, and secondarily upon the conduct of the deceased. There is no fixed rule applicable to every case, though certain general principles, well established, stand forth as guides for the action of men and measures for the jury's determination of their deportment.
1. Self-defense is not available as a plea to a defendant who has sought a quarrel with the design to force a deadly issue and thus, through his fraud, contrivance, or fault, to create a real or apparent necessity for killing. ( People v. Robertson, 67 Cal. 646; Stewart v. State, 1 Ohio St. 66.)
2. It is not available as a plea to one who by prearranged duel, or by consent, has entered into a deadly mutual combat in which he slays his adversary. In both of these cases the same rule applies. A man may not wickedly or willfully invite or create the appearances of necessity or the actual necessity which, if present to one without blame, would justify the homicide. ( State v. Partlow, 90 Mo. 608; 59 Am. Rep. 31; State v. Underwood, 37 Mo. 225; Lambert's case, [42 P. 312] 9 Leigh, 605; 1 Bishop's Criminal Law, sec. 870; Gilleland v. State, 44 Tex. 356; Clifford v. State, 58 Wis. 478; Tate v. State, 46 Ga. 151.)
3. Where one without fault is placed under circumstances sufficient to excite the fears of a reasonable person that another designs to commit a felony or some great bodily injury upon him, and to afford grounds for reasonable belief that there is imminent danger of the accomplishment of this design, he may, acting under these fears alone, slay his assailant and be justified by the appearances. And, as where the attack is sudden and the danger imminent, he may increase his peril by retreat, so situated he may stand his ground, that becoming his "wall," and slay his aggressor even if it be proved that he might more easily have gained his safety by flight. ( People v. Herbert, 61 Cal. 544; People v. Gonzales, 71 Cal. 569; People v. Ye Park, 62 Cal. 204; People v. Robertson, supra ; Runyan v. State, 57 Ind. 84; 26 Am. Rep. 52; Erwin v. State, 29 Ohio St. 186; 23 Am. Rep. 733.) So, too, under such circumstances, he may pursue and slay his adversary. But the pursuit must not be in revenge, nor after the necessity for defense has ceased, but must be prosecuted in good faith to the sole end of winning his safety and securing his life. ( Carroll v. State, supra ; Young v. Commonwealth, 6 Bush, 312; Collins v. State, 32 Iowa, 36; Horrigan and Thompson on Self-defense, 230.)
4. Where one is making a felonious assault upon another, or has created appearances justifying that other in making a deadly counter attack in self-defense, the original assailant cannot slay his adversary and avail himself of the plea unless he has first and in good faith declined further combat, and has fairly notified him that he has abandoned the contest. And if the circumstances are such, arising either from the condition of his adversary, caused by the aggressor's acts during the affray or from the suddenness of the counter attack, that he cannot so notify him, it is the first assailant's fault and he must take the consequences. ( People v. Button, 106 Cal. 628; 46 Am. St. Rep. 259; State v. Smith, 10 Nev. 106; Stoffer v. State, 15 Ohio St. 47; 86 Am. Dec. 470.) For, as the deceased, acting upon the appearances created by the wrongful acts of the aggressor, would have been justified in killing him, he whose fault created these appearances cannot make the natural and legal acts of the deceased looking to his own defense a justification for the homicide. Before doing so he must have destroyed these appearances and removed, to the other's knowledge, his necessity, actual or apparent, for self-preservation.
5. Where one is the first wrongdoer, but his unlawful act is not felonious, as a simple assault upon the person of another, or a mere trespass upon his property, even though forcible, and this unlawful act is met by a counter assault of a deadly character, the right of self-defense to the first wrongdoer is not lost. For, as his acts did not justify upon the part of the other the use of deadly means for their prevention, his killing by the other would be criminal, and one may always defend himself against a criminal attempt to take his life. But in contemplation of the weakness and passions of men, and of the provocation, which, though inadequate, was wrongfully put upon the other, it is the duty of the first wrongdoer before he can avail himself of the plea to have retreated to the wall, to have declined the strife and withdrawn from the difficulty, and to have killed his adversary, under necessity, actual or apparent, only after so doing. If, however, the counter assault be so sudden and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying, forthwith, in self-defense. (People v. Robertson, supra ; People v. Westlake, 62 Cal. 303; State v. Perigo, supra.)
The distinction between this principle and the one preceding it consists in this: In the former case the provocation for making a deadly counter attack in self-defense is adequate, and therefore the first aggressor must remove the necessity for it and make that fact known before his own right of self-defense can exist; in the latter case the provocation is inadequate, and if the other by his own unlawful act deprives the first wrongdoer of the opportunity to decline a deadly strife, that fault lies not at the door of the slayer but of the slain.
So much it has seemed necessary to say in view of the varying theories upon the facts attending this homicide and in contemplation of a new trial.
If at the time of the affray Hecker was a trespasser and no more in his endeavor to take the horse, and Riley met his endeavor by a deadly assault upon him with a pistol, it was Hecker's first duty to decline the strife, and if the suddenness of the assault precluded this, he was justified, so long as the imminence of his danger continued, or apparently continued, in meeting it by a deadly return.
If, however, Hecker was not a wrongdoer in seeking to take the horse, and Riley met his attempt by a felonious assault with a pistol, Hecker, if the assault was sudden and the danger great or apparently great, would have been justified in standing his ground, or even, as above set forth, in pursuing and slaying his adversary to win his safety.
If, on the other hand, Hecker made the first deadly assault, his right to slay Riley in self-defense did not exist, even though willing thereafter to decline further combat, until he had in good faith declined and fairly made known to Riley his willingness to do so. And if he did not do this, even though he failed because of his own imminent danger, and under these circumstances killed Riley, his act was criminal.
And lastly, if, upon the other hand, he made the first felonious assault, and thereafter and [42 P. 313] before firing the fatal shot did in good faith withdraw and decline further combat, and this was fairly made known to Riley by his conduct, and thereafter Riley pursued him and forced a new combat upon him, and under these circumstances Riley was killed, the killing was justifiable.
Defendant's proposed instruction No. XIII, as to the right to pursue and slay to secure safety, is in itself a correct, if not a full, exposition of the law, and it cannot be said that it does not address itself to a theory permissible under the evidence. It or an equivalent instruction should therefore have been given.
It was not error to refuse defendant's proposed instruction XIX. The jury was advised as to the weight of evidence, number, and credibility of witnesses. The vice of the rejected instruction was that it declared that the jury must be convinced to an "absolute moral certainty." The refusal to give such an instruction has more than once been upheld. ( People v. Davis, 64 Cal. 440; People v. Nelson, 85 Cal. 430; People v. Ferry, 84 Cal. 31; People v. Smith, 105 Cal. 676.)
The instruction lettered "O" is not erroneous. Standing by itself it would be of little value to the jury, since it merely declares that the killing after withdrawal from a struggle might be justified. However, it is obviously but a preliminary declaration, as in the instructions immediately succeeding ("P" and "Q") there are set forth in detail the circumstances under the assumed state of facts which would and would not justify. These instructions will be construed together. ( People v. Turcott, 65 Cal. 126.)
The court gave an instruction (XVI) substantially as asked by defendant, but struck therefrom the closing sentence, as follows: "And, if under these circumstances he killed deceased, you must find as your verdict, not guilty." The complaint is founded upon this excision. It is the natural tendency of advocates to bear with emphasis upon the favorable points both in argument and in instructions, and all the cases are replete, as is this case, with instructions asked by attorneys for the prosecution and defense, and closing with this or an equivalent formula. It cannot be said that to eliminate it from one instruction is error. Yet the practice is not wise. If the instruction offered is not the law, the court may reject it; if it be law, it is better to give it as presented. For not only has either party the right to emphasize by instructions a true principle, but the danger of modifying an instruction which is correct in itself is that it may occasion some just ground for complaint that the modification devitalizes and emasculates the proposition of law whose exposition was sought. We are far from implying that such was the effect in this case; still further from implying that such was the intent, but it certainly is not amiss to suggest the wiser and better practice.
Instruction "E," which is complained of, has often been given and as often approved by this court. The cases in which it is discussed are reviewed in People v. Bruggy, 93 Cal. 476. As was said by this court in People v. Herbert, supra: "To justify a homicide there must be a necessity, actual or apparent, and this we understand to be true under our statute as well as at common law." Those cases where the assailed is not required to look to escape as an avenue of safety arise, as has been before discussed, where the peril is swift and imminent and the necessity of action immediate. Therein the law does not weigh in too nice scales the conduct of the assailed, and say he shall not be justified because he might have resorted to other means to secure his safety. The suddenness of the attack puts him to the wall.
Upon the duty of retreat there was a contrariety of opinion by the writers of common law, and this difference has found its way into the decisions of our states. Some, as Alabama and Iowa, holding to the rule that retreat is necessary; others, as Indiana, Michigan, and our own state, declaring for the contrary doctrine. But it is not stating it too strongly to say that the trend of later judicial decisions is in favor of the latter rule. So that while the killing must still be under an absolute necessity, actual or apparent, as a matter of law that absolute necessity is deemed to exist when an innocent person is placed in such sudden jeopardy. The right to stand one's ground should form an element of the instructions upon the necessity of killing and the law of self-defense.
For the foregoing reasons the judgment and order are reversed and the cause remanded.