(315 111. 106)

(No. 16221.)

PEOPLE v. DUNCAN. (Supreme Court of Illinois. Dec. 16, 1924.) 1. Criminal law 1165 (l')—Verdict on conflicting evidence sustained only if jury has been properly instructed and no substantial error has occurred.

Verdict of guilty on conflicting evidence will not be sustained unless jury has been properly instructed and no substantial error has occurred on the trial.

2. Criminal law 8082-Instruction as to self-defense in language of statute held erroneous.

In homicide prosecution, instruction in the language of Cr. Code, § 148, which, with exception of opening clause, "justifiable homicide is the killing of a human being in necessary self-defense," had no application to case, held erroneous, since it could only confuse jury.

3. Homicide 300 (12)-Instruction held erroneous in that it deprived defendant of defense of self-defense.

In homicide prosecution in which defendant claimed to have acted in self-defense, instruction as to malice aforethought held erroneous as meaning that if defendant, when he shot deceased, understood the nature of the act and that it would probably kill the deceased, malice aforethought was established and the killing was murder.

4. Homicide 119-One may use deadly weapon with intent to kill in self-defense.

In self-defense, a man may intentionally and deliberately use a deadly weapon intending to kill his opponent without being guilty of murder or manslaughter or any other crime, because his act is justified.

5. Criminal law 778 (5)-Homicide 300 (3)-Instruction on self-defense held erroneous as to burden of proof and apparent necessity.

In homicide prosecution, instruction held erroneous in that it placed burden of proof on defendant on issue of self-defense, and required danger to have been such that a reasonable person under the same circumstances would have believed it necessary to kill deceased. 6. Homicide 151(3), 244(1)-Burden of proof and measure of proof same where defense is self-defense as where other defenses are involved.

I have acted as a man of ordinary judgment and courage, but it is sufficient if the facts as they appeared to the defendant at the time and under the conditions were such as to indicate to him, as a reasonable person, an intent to take his life or do him great bodily injury.

9. Homicide 300 (6, 7)-Abstract instruction tending to mislead dwelling on single feature held erroneous.

In homicide prosecution in which defendant claimed to have acted in self-defense, instruction that provocation by words would not reduce killing to manslaughter held erroneous as not applicable to the case, tending to lead jury to disregard effect of threats on defendant's mind and improperly calling attention to single feature of case.

DUNN, J. Clyde Duncan was convicted of murder and prosecutes a writ of error to reverse the judgment.

Duncan kept a saloon at the corner of Washington and Bridge streets, in the city of Peoria, in which the homicide occurred on Friday evening, September 28, 1923, about 9:30 o'clock. About that time the deceased, John Grant Powell, in company with two associates, entered the saloon and immediately began cursing and abusing Duncan, who was standing behind the bar with his barkeeper, William McKinney. Duncan answered in kind, and volleys of profanity and obscenity were exchanged between the two partici pants. It appears that some of the frequenters of the place who were witnesses at the trial regarded the exchange of ribaldry as jocular in its character, but if there was anything jocose about it the quality soon changed. Powell wanted to buy a drink for the house, but Duncan refused to sell him a drink and ordered him out of the place, telling him to go out and stay out. Powell told 116(4)-Rule as to self-de- Duncan if he would come out from behind the bar he would whip him in his own saloon. Powell's two companions took hold of him and endeavored to induce him to leave. They

The burden of proof is on the prosecution. and the measure of proof is the same where the defense is self-defense as where other defenses are involved.

7. Homicide 244 (3)-Defendant cannot be convicted if evidence as to self-defense leaves reasonable doubt.

Defendant cannot be convicted if the evidence as to self-defense leaves a reasonable doubt as to his guilt.

8. Homicide fense stated.

Actual danger is not necessary to justify killing in self-defense, and defendant need not

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(145 N.E.)

and they were arrested there by the police upon their arrival within five minutes. It is claimed by the prosecution that Duncan placed the knife beside the body. There is no evidence of it.

got him as far as the door, when he broke away from them and went back to the bar. In the meantime Duncan, while these events were occurring, had turned around and taken from a drawer by the cash register, immediately behind the bar, a revolver, which The case was tried by the state on the thehe held in his hand hanging at his side. ory that Powell was not shot by Duncan in When Powell broke loose from his compan- self-defense, but that because Powell had ions at the door, he came back in front of threatened to whip Duncan in his own saloon the bar opposite Duncan, and it is the claim Duncan stood with the revolver in his hand of the prosecution that Duncan without any waiting several minutes for an opportunity further provocation raised the revolver and to shoot Powell, who was unarmed; that he fired point blank at Powell's head, sending got the revolver for that purpose; and that the bullet through his brain. Powell fell he killed Powell with premeditated malice. back on the floor and died in a few minutes. It is claimed by the prosecution that when It is the claim of the defense that when Powell came to the saloon he was apparently Powell came to the bar he commenced pound- in a jovial mood, and that the exchange of ing on it with his right hand, cursing Dun- rough language was merely playful banter can and challenging him to fight; that he up to the time when Powell stated that if had his left hand in his pocket and drew it Duncan would come out from behind the bar out and brought it up over the bar. The Powell would whip him in his own saloon defendant claims that he saw a flash coming and the defendant ordered Powell to get out over the bar, and believing that Powell was of the place and stay out. There was also about to shoot him, he shot Powell in self- evidence of Powell, together with his two defense. companions, being in other places of like resort in that same evening before coming to Duncan's place, and threatening that he was going to Duncan's place, that he was going to get Duncan, and if he could not whip him he was going to cut his guts out. A witness testified that at one place he exhibited the knife which was afterward found beside his body on the floor of Duncan's saloon, or one like it.

can.

There were a number of persons in the saloon at the time-nine or ten-who testified, giving their respective versions of the occurrence. There is a great discrepancy in their testimony, hardly to be accounted for by honest differences of recollection. It is certain that Powell entered the saloon and conducted himself in the disorderly manner described; that he threatened to whip Duncan, and after being induced to go as far as [1] There was serious conflict in the testithe door, returned to the bar opposite Dun- mony. While there were a number of perThe question involved in the greatest sons in the saloon, their testimony as to the uncertainty in the evidence is the conduct of occurrences of the few minutes after Powell the two men at the precise time of the shoot-came in before his death differs so much in ing and for a moment before. Of all the nine or ten witnesses in the room, none seem, according to the testimony, to have seen the actual shooting or what occurred between the two men at the precise time or an instant before. If Powell's actions at that time were such as to justify Duncan in believing that Powell was about to attack him with a knife or revolver, he was justified in shooting Powell. The police were called directly after the occurrence and arrived at the saloon within five minutes. Powell was lying on his back on the floor in front of the bar, with his feet within a foot or two of the bar, and upon the floor beside him, within a few inches of his left hand, was lying an open clasp-knife. Nobody testified to seeing him have this knife in his hand except McKinney, who testified that when Powell came back to the bar he had his left hand down at his side, and that while he was pounding on the bar with his right hand he brought his left hand above the bar with the knife in it and struck at Duncan, missing his neck three or four inches. Everybody went out of the room immediately after the shooting, leaving Duncan and McKinney there alone,

details as to be difficult, if not impossible, of reconcilement. In such a condition it is essential, in order to sustain the verdict, that the jury should have been properly instructed and that no substantial error should have occurred on the trial. The defense was selfdefense. The questions of law in the case were not intricate or complex and did not require a great volume of instructions as to the law, but 22 instructions on behalf of the people and 38 on behalf of the defendant were given, all occupying 28 printed pages of the abstract.

[2] The fifth, ninth, and eleventh instructions are complained of. The fifth instruction is section 148 of the Criminal Code (Smith-Hurd Rev. St. 1923, c. 38, § 366), and except the opening clause, "justifiable homicide is the killing of a human being in necessary self-defense," has no application to the case and should not have been given. It could only confuse the jury and distract their minds to apply it to the case. People v. Davis, 300 Ill. 226, 133 N. E. 320.

The first instruction defined "murder" as the unlawful killing of a human being in the peace of the people, with malice afore

thought, either expressed or implied. The, and it would be monstrous to say, that if they ninth instruction was as follows:

"The jury are instructed that the deliberate intention, called malice aforethought, need be only such deliberation and thought as enables a person to appreciate and understand, at the time the act was committed, the nature of his act and its probable results."

act from real and honest conviction, induced by sible criminally for a mistake in the extent of reasonable evidence, they shall be held responjudicious men would have been alike mistaken." the actual danger, where other reasonable and

This case has been uniformly approved and followed in many cases. The instruction [3, 4] This instruction practically eliminat- is in error also in stating that it must aped the plaintiff in error's defense. After the pear that the danger to the defendant was jury had been told that murder is an unlaw- such that a reasonable person, under the ful killing with maiice aforethought, this same circumstances, would have been induc instruction informed them that malice afore-ed to believe, etc. The jury are not to dethought need be only such deliberation and termine what a reasonable man would have thought as enable a person to appreciate been induced to believe, but, what did the and understand, at the time the act was com- defendant at the time and under the cirmitted, the nature of the act and its prob- cumstances, acting as a reasonable man, beable results; that is, if the plaintiff in error, lieve? What any reasonable man may do when he shot, understood the nature of the under given circumstances is not always posact and that it would probably kill Powell, sible to determine. Man's reason does not malice aforethought was established and the always operate to produce the same result killing was murder. In self-defense a man under the same circumstances. The question may intentionally and deliberately use a in cases of this character concerns the pardeadly weapon, intending to kill his oppo- ticular man, and the circumstances must be nent, without being guilty of murder or man- viewed from the standpoint of the defendant slaughter or any other crime, because his act alone, particularly under circumstances of is justified. People v. Davis, supra; People great excitement. In order to avail himself v. Jarvis, 306 Ill. 611, 138 N. E. 102; People v. of the right of self-defense, it is not necesPenman, 271 Ill. 82, 110 N. E. 894. sary that the defendant should have acted as a man of ordinary judgment and courage or as an ordinarily courageous man. People v. McGinnis, 234 Ill. 68, 84 N. E. 687, 123 Am. St. Rep. 73. It is sufficient if the circumstances were sufficient to excite the fears of a reasonable person and the defendant really acted under the influence of those fears.

[5-8] Instruction No. 11 attempts to inform the jury what will constitute a justification of the killing under the doctrine of selfdefense in these words:

"It must appear from the evidence that at the time of said killing the defendant was in such apparent danger that a reasonable person under the same circumstances would have been induced to believe that it was necessary or apparently necessary to kill John Grant Powell in order to save his own life or to prevent his receiving great bodily harm."

The burden of proof and the measure of proof are the same whether the defense is self-defense or any other, and in any case the burden is on the prosecution to prove the guilt of the defendant and the defendant is not required to prove anything. It is sufficient if the evidence as to self-defense leaves a reasonable doubt as to the defendant's guilt. It is erroneous to instruct the jury that the burden of showing any fact is on the defendant. Actual danger is not necessary to justify self-defense, but the question is whether the facts as they appeared to the defendant at the time and under the conditions there present were such as to indicate to him, as a reasonable person, an intent to take his life or do him great bodily injury. This was the doctrine announced in Campbell v. People, 16 Ill. 17, 61 Am. Dec. 49, in which it was said:

"Men, when threatened with danger, are obliged to judge from appearances, and determine by the actual state of things, from the circumstances surrounding them, at least as much as if placed in other and less exciting positions;

The twelfth instruction was:

"No provocation by words only, however opprobrious, will mitigate an intentional killing so as to reduce the killing to manslaughter."

[9] It was an abstract proposition of law and had no application to a plea of self-defense. Its tendency was to lead the jury to disregard the effect of Powell's threats to whip Duncan in leading the latter to believe that Powell was about to assault him and that his life was in danger. It is inconsist ent with the language of the court in discussing the facts in Silgar v. People, 107 Ill.

563, where it is said:

"For aught that appears, the language of the deceased may have been of the most offensive and provoking character, or it may, as testified to by the accused, have consisted of threats against the prisoner's life, which, in view of the existing relations between the parties, may have well aroused in the mind of the accused the most serious apprehensions of danger; and if the taking of the life of the deceased was induced by either of these causes, and was not done in wantonness, or from a mere spirit of revenge, it is clear the killing would not be murder."

The instruction calls attention improperly to a single feature of the case as being insufficient to establish a defense or reduce

(145 N.E.)

the grade of the crime. It is equivalent to sel for the plaintiff in error asked him an instruction that mere threats or words to state what Powell did that constituted a cannot reduce an intentional killing to man- disturbance, but an objection made to the slaughter, which, as a proposition of law, question was sustained. Counsel for the may be true enough. The object of instruct- plaintiff in error say in their brief that, asing the jury, however, is not to educate the suming that the deceased struck a patron jurors in abstract legal principles, but to in- in the defendant's place of business and form them of the pertinent rules of law in knocked him down for the simple reason their application to the particular case. The that the patron refused to buy the deceased contention of the defendant was not that a drink at deceased's request, this would there was a provocation by words, only, but show to the jury that the defendant was that threatening words were accompanied by clearly within his rights in ordering the deaction indicating a hostile intent dangerous ceased to leave his place; that the defense to the defendant's life. The words should was allowed to show such facts at a previnot be considered by themselves, but must be ous trial and should have been allowed to do considered in connection with the actions to so at this trial, because this conduct had an which they gave character. The instruction important bearing on what happened the considers the words, alone. It entirely next Friday night, showing that Powell was ignores the plea of self-defense. It assumes a violent and dangerous man, and, taken in that an intentional killing must be murder or manslaughter, contrary to the principle that a man may intentionally and deliberately kill his opponent in self-defense and not be guilty of either murder or manslaughter. No attempt was made to apply the abstract proposition of law to the facts in the case, and the instruction is capable of being understood by the jury as assuming that the defendant did not act in self-defense and that provocation by words, only, was proved, and that therefore the intentional killing of Powell was murder. It was error to give an instruction capable of being so understood. People v. Jacobs, 243 Ill. 580, 90 N. E. 1092; People v. Bissett, 246 Ill. 516, 92 N. E. 949. [10] On the examination of the plaintiff in error, he testified that Powell was in his place on Sunday night or Monday night before the Friday evening when he was killed; that he created a disturbance there; and that the plaintiff in error ordered him out of the place and told him to get out and stay out, that he did not allow any of that kind of stuff in his place. As Powell went out, the plaintiff in error testified, he said, "I will get out this time, but the next time I come in here I am going to get you." Coun

connection with the testimony which showed him to have been a blacksmith and horseshoer and a man of great physical strength, it would have a tendency to lead the defendant to believe that the deceased was a man who would wantonly and recklessly attack a person who failed to comply with his wishes. The record does not show that these things occurred on a previous trial, and even if they did, it cannot be assumed that the court had knowledge of all that occurred on such trial, and in the absence of a statement of what it was expected to prove by the answer to the question, the court committed no error in sustaining the objection to it.

Complaint is made of the attitude of the court toward the defense during the trial and of the conduct of the state's attorney; but since the judgment must be reversed for the error in the instructions, which failed to give to the plaintiff in error the benefit of his plea of self-defense, we do not regard it as necessary to comment on these matters. The judgment will be reversed, and the cause remanded.

Reversed and remanded.

FARMER, J., dissenting.

(315 III. 115)

PEOPLE v. KROLL. (No. 16242.) (Supreme Court of Illinois. Dec. 16, 1924.) 1. Jury 131 (6)-Réfusal to permit question to juror as to membership in Ku Klux Klan held not abuse of discretion.

formation, and finding the defendant Walter Kroll not guilty. Motions for a new trial and in arrest of judgment having been overruled, plaintiff in error was sentenced to be imprisoned in the county jail for a term of 90 days, to pay a fine of $200, and ordered committed to the county jail of Where record did not show either that any Lake county until the fine and costs were one interested in prosecution or defense was fully paid or until she was otherwise dismember of Ku Klux Klan, or that such or-charged pursuant to law. Upon review by ganization was interested, or that its members were antagonistic to or prejudiced against defendant, refusal to permit question to juror on voir dire as to whether he was member of Klan, or ever belonged to the Invisible Empire, was not an abuse of discretion.

2. Criminal law 742(1)-Weight given testimony of witness buying liquor held for jury. Weight to be given testimony of purchaser of intoxicating liquor is question solely for jury.

3. Criminal law 122(1)-Record did not disclose that instructions complained of were marked given.

Record held not to disclose that instructions complained of were marked given by court or in fact read to jury. 4. Criminal law

829(1)—Refusal of instructions covered by ones given not error.

It is not error to refuse instructions stating correct propositions of law which were fully covered by given instructions.

5. Criminal law 711-Limiting argument to

30 minutes held without error.

In prosecution for unlawfully selling intoxicating liquor, where there was very little material evidence and issues were not complicated, limiting argument to 30 minutes on each side, instead of three-quarters of an hour, as requested, held without error.

Error to Appellate Court, Second District, on Error to Lake County Court; Perry L. Person, Judge.

Agnes Kroll was convicted of unlawfully selling intoxicating liquor. Judgment of conviction was affirmed by the Appellate Court, and defendant brings error. Affirmed.

E. V. Orvis, of Waukegan, for plaintiff in

writ of error the Appellate Court for the Second district affirmed the judgment of the county court of Lake county and the record is now before us for review upon writ of

error.

[1] During the examination of the jury upon their voir dire one of the prospective jurors was asked the questions "Are you a member of the Ku Klux Klan?" and "Have you ever belonged to the Invisible Empire or ever heard of it?" Objections were sustained to these questions, and the ruling of the court in that respect is assigned as error. In Snyder v. State, 160 Ark. 93, 254 S. W. 381, error was assigned on the refusal of the court to allow the defendant to ask

each of the jurors on their voir dire examination whether he was a member of the Ku Klux Klan. Defendant claimed that the prosecuting attorney and other court officers were members of the Klan. The Supreme Court of Arkansas upheld the ruling of the

trial court, and held that to make the inquiry other than impertinent and a probe into the personal affairs of the jurors it should be made to appear that the organization, or the members thereof, were antagonistic to the accused or some organization to which he belonged. In this state the rule is laid down in Donovan v. People, 139 III. 412, 28 N. E. 964, and cited with approval in People v. Robinson, 299 Ill. 617, 132 N. E. 803, and People v. Redola, 300 Ill. 392, 133 N. E. 292, that the defendant, through his counsel, has a right to ask pertinent and proper questions of the persons called as jurors, testing their capacity and competency, and that for the purpose of advising him of the propriety of exercising the right of peremptory challenge, it is often indispensable to the selection of a fair and impartial jury that the occupation, habits, associations, and predisposition of the jurors should be known so far as they may tend to bias or pervert their judgment, but that the HEARD, J. The state's attorney of Lake examination of jurors should be confined to county filed in the county court of that coun- a legitimate inquiry into the particular ty, against plaintiff in error and Walter matter under investigation, and take range Kroll, an information consisting of 10 counts, enough only to put the court and counsel in the first of which counts charged them with possession of such material matters affectunlawfully selling intoxicating liquor. Pleasing the jurors as will enable them to act inof not guilty having been entered, a trial by telligently in the selection of the jury, and jury was had, resulting in a verdict find- that the nature and extent of the inquiry ing plaintiff in error guilty in manner and are ordinarily left to the sound judicial disform as charged in count No. 1 of the in-cretion of the court. In the present case

error.

Edward J. Brundage, Atty. Gen., Ashbel V. Smith, State's Atty., of Waukegan, and George C. Dixon, of Dixon (Sidney H. Block, of Waukegan, of counsel), for the People.

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