APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Judgment affirmed.
Miss S. V. Ross and Mr. Marshall W. Haislip, for Appellant.
Mr. Joe Conway, Attorney General of Arizona, and Mr. W. E. Polley, his Assistant, for Respondent.
[52 Ariz. 481] LOCKWOOD, J.
Bill Walker, hereinafter called defendant, was informed against by the county attorney of Maricopa county for the crime of murder in the first degree. He was duly tried and found guilty of the crime of murder in the second degree, and has prosecuted this appeal.
The only material question raised by the appeal is whether the trial court erred in refusing to instruct the jury on the issue of self-defense. It is the law in most jurisdictions that if there is evidence appearing in the record which would raise a reasonable doubt as to whether the homicide with which a defendant is charged was committed in self-defense, it is the duty of the trial court to instruct upon that issue, whether the evidence raising it is brought out by the state or by the defense, and a failure to so instruct is error. Graham v. State, 98 Ohio St. 77, 120 N.E. 232, 18 A.L.R. 1272; Underhill, Crim. Ev., sec. 51, p.50. We think this is the law in Arizona also. On the other hand, if the evidence in the case is insufficient to raise a reasonable doubt as to whether a defendant accused of a homicide did act in self-defense, any instruction on that issue is properly refused. Hicklin v. Territory, 9 Ariz. 184, 80 P. 340; Judd v. State, 41 Ariz. 176, 16 P.2d 720. It, therefore, becomes necessary for us first to determine the essential elements of self-defense, and then to examine the record to ascertain whether the evidence is sufficient to raise a reasonable doubt as to whether such necessary elements actually existed at the time of the homicide herein. [52 Ariz. 482] Section 4590, Revised Code 1928, so far as material to this case defines self-defense as follows:
"Justifiable homicide; bare fear as justification. Homicide is also justifiable when
committed by any person: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or... 3. when committed in the lawful defense of the person, or of a wife or husband, parent, child, master, mistress, or servant, of such person, when there is reasonable ground to apprehend a design to commit a felony, or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed....
"A bare fear of the commission of any of the offenses mentioned in subdivisions two and three hereof, is not sufficient to justify a homicide. But the circumstances must be sufficient to excite the fears of a reasonable person, and the party killing must have acted under the influence os such fears alone."
It appears, therefore, in order to sustain a plea of self-defense, (a) the circumstances must be such as to excite the fears of a reasonable person of great bodily injury or death to himself or some other person, (b) the party committing the homicide must have acted under the influence of such fears alone, (c) in resisting an assault the person claiming self-defense must not use any more force than reasonably appears under the circumstances to be necessary to repel the assailant, and (d) if the slayer or the person he is attempting to defend is the assailant or engaged in a mutual combat, the one in whose defense the homicide was committed must really and in good faith have endeavored to decline any further struggle before the killing. Unless each and all of these elements appear in the evidence in an appropriate case, a plea of self-defense [52 Ariz. 483] is not justified, and it is not error for the court to refuse to instruct upon that issue.
The undisputed evidence shows that Roy and Jim Fansler at the time of the homicide were brothers who owned and operated a cotton farm in the vicinity of Buckeye. Defendant was their foreman, and they also employed a number of cotton pickers and other workmen upon the premises. Curtis Eslinger, the deceased, for some time prior and up to the night of the homicide had been one of these employees. The Fanslers owned and operated a small commissary and kitchen in connection with their farm, and about 8 o'clock in the evening of January 3, 1938, a group of these employees were in the commissary tent gambling. Among those present from time to time were defendant, one Jack Fox and his seventeen year old son Eugene, Lucien Hawkins, Floyd Patterson, the deceased, and the two Fanslers, with perhaps one or two others. There had been some previous difficulty between deceased and the Fanslers, and more or less bitter language had passed. Finally Roy Fansler and deceased, who were at the time just outside of the tent, became engaged jin an argument, when Jack Fox walked up to them. A few words were said, whereupon Fansler struck Fox with a flashlight, and the two men clinched and fell to the ground where they scuffled a few moments. So far there is no dispute as to what had actually happened.
The testimony of the defendant is that he then started towards the fight, and deceased caught him about the body. He turned and hit the latter, and there followed immediately a scuffle in which an indefinite number were engaged. Someone, whom he suspected to be a man named Callahan, a brother-in-law of Eslinger, attempted to strike the struggling group with a pistol. Defendant took the pistol from its possessor, [52 Ariz. 484] and thereafter some unknown person struck him on the head and he knew nothing of what happened from that time on until several hours later. Up to the time that defendant claimed he saw the gun in the hand of this other person, there is no evidence that any shot had been fired or that any dangerous weapon was in the possession of any of the other participants in the brawl. The testimony of four eye-witnesses of, and participants in, the difficulty also appears in the record. They agree with defendant that Roy Fansler commenced the fight with Jack Fox. Three of them state that while Fansler and Fox were fighting upon the ground, defendant appeared with a drawn pistol in his hand and started towards the fight, whereupon Eslinger caught him about the body. Defendant immediately beat Eslinger's hands ...