majority">White, P. J.

Appellant and Amanda White were jointly indicted for the alleged murder. Appellant filed his affidavit and asked a severance in the following terms, viz.: “Personally appeared before me Chas. Reed, one of the defendants, who, after being duly sworn, says that he verily believes that there is no evidence against Amanda White, who is jointly indicted with him, and that her evidence is material for his defense; therefore he asks the court to grant him a severance and try Amanda White . first; which severance is asked for the purpose of procur- ' ing her evidence in his defense.” In his explanation to the bill of exceptions the judge presiding states that the court refused and overruled the application, “ which the ' court declares insufficient to entitle defendant to have his co-defendant, Amanda White, tried first.” No other *515ground is assigned for the action of the court, and therefore we will take it for granted that there was no other.

If the statute is referred to we think it must be apparent that the ruling was erroneous inasmuch as the affidavit quoted is in substantial if not literal compliance with its provisions; which are, “ Where two or more defendants are jointly prosecuted they may sever in the trial at the request of either; and if the defendant upon whose application the severance is allowed shall file his affidavit in writing, stating that a severance is requested for the purpose of obtaining the evidence of one or more of the persons jointly indicted with him; that such evidence is material for his defense, and that there is no evidence against the person or persons whose evidence is desired, such person or persons shall be first tried.” Code Crim. Proc. art. 669.

But whilst an affidavit of this character might be sufficient whether in. exact or substantial compliance with the statute, still we imagine the severance would not be a matter of right; but the facts stated might and could be controverted by a showing on the part of the State that it was not true that there was no evidence against the co-defendant whose evidence was desired; and a trial and conviction of such defendant upon said charge would be sufficient prima facie to rebut the affidavit and authorize the court to disregard and overrule it, even though such conviction may have been reversed on appeal to the court of last resort, unless such reversal was on account of the want of sufficient evidence to support the verdict and judgment. No such ground is assigned for overruling the application, and inasmuch as the ruling was predicated solely upon its supposed insufficiency under the statute, the ruling was manifestly erroneous.

We propose next to notice what in our opinion constitutes the only remaining error shown by the record. In the 13th paragraph of the court’s charge to the jury they *516were instructed that “ When the husband takes a party actually engaged in the act of adultery with his wife, and he then and there attacks the adulterer, the adulterer is not justified in resisting such attack; but when the husband has knowledge that his wife is thus living in adultery with another, and connives at and acquiesces in the adulterous connection, he would have no right to kill or inflict serious bodily injury on the adulterer. If you believe from the evidence that defendant Charley Reed and Amanda White were living in adultery at the time of the killing, and that Amanda White was at . that time" the wife of deceased, and that defendant and Amanda White were then and there, at the time of the killing, taken in the actual act of adultery by Frank White, before defendant and Amanda White had separated, and that Frank White then and there made an attack on defendant, defendant had no right to resist such attack, and an attack made upon defendant under such circumstances does not come within the definition of self-defense.” We have italicised the objectionable portions of this charge.

Evidently the court must have based this charge upon the converse of the proposition stated in article 5 67 of the Penal Code, which declares that “homicide is justifiable when committed by the husband upon the person of anyone taken in the act of adultery with the wife, provided the killing take place before the parties to the act of adultery have separated.” In other words, the controlling idea intended to be conveyed by the court, according to our construction of the language used, seems to have been that, because the law would justify the husband in taking the life of the adulterer under the circumstances named in the statute, it would follow that the adulterer must submit to the infliction of death thus attempted to be executed upon him, and that he was not even authorized to resist an attack upon his life by the injured hus*517band, much less plead such deadly attack by way of justification or self-defense if in resisting such attack he. was compelled to take the fife of the injured husband to save his own.

Thus it appears that the court has attempted to make the legal status of the defendant depend upon what might or would have been the law with reference to the act of deceased, had the situation of the parties been reversed and the latter had taken the fife of the former. In no possible state of case would such a rule of deduc•tion be a fair or conclusive criterion in the administration of criminal law. The accused is always guilty or innocent from his own stand-point, that is, his personal, individual acts with relation to the matter charged.

Love of life and its preservation is the first great law of nature. Sir Wm. Blackstone says: “ Self-defense, therefore, as it is justly called the primary law of nature,. so it is not, neither can it be in fact, taken away by the law of society. In the English law, particularly, it is held an excuse for breaches of the peace, nay, even for homicide, but care must be taken that resistance does not exceed the bounds of mere defense and prevention; for then the defender would become the aggressor.” 2 Cooley’s Black., Book III, chap. 1, p. 44.

But the right of self-defense, though inalienable, is and should to some extent be subordinated to rules of law, regulating its proper exercise, and so the law has wisely provided. It may be divided into two general classes, to wit, perfect and imperfect right of self-defense. A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity, and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however, he was in the wrong,—if he was himself violating or in the act of violating the law,— and on account of his own wrong was placed in a situation wherein it be*518came necessary for him to defend himself against an attack made upon himself which was superinduced or created by his own wrong, then the law justly limits his right of self-defense, and regulates it according to the magnitude of his own wrong. Such a state of case may be said to illustrate and determine what in law would be denominated the imperfect right of self-defense. Whenever a party by his own wrongful act produces a condition of things wherein it becomes- necessary for his own safety that he should take life or-do serious bodily harm, then indeed the law wisely imputes to him his own wrong - and its consequences to the extent that they may and should be considered in determining the grade of offense which but for such acts would never have been occasioned.

Mr. Bishop says: “ The rule is commonly stated in the American cases thus,—if the individual' assaulted, being himself without fault, reasonably apprehends death or serious bodily harm to himself unless he kills the assailant, the killing is justifiable.” 1 Bish. Cr. L. § 865. But a person cannot avail himself of a necessity which he has knowingly and wilfully brought upon himself. State v. Neely, 20 Iowa, 108; Adamas v. People, 47 Ill. 376; State v. Starr, 30 Mo. 270. That is, it will not afford him a justification in law. See 2 Cooley’s Black., Book IV, chap. 14, p. 180. How far and to what extent he will be excused or excusable in law must depend upon the nature and character of the act he was committing and which produced the necessity that he should defend himself. When his own original act was in violation of law, then the law takes that fact into consideration in limiting his right of defense and resistance whilst in the perpetration of such unlawful act. If he was engaged in the commission of a felony, and, to prevent its commission, the party seeing it or about to be injured thereby makes a violent assault upon him, calculated to produce death or serious bodily harm, and in resisting such attack he slay *519his assailant, the law would impute the original wrong to the homicide and make it murder. But if the original wrong was or would have been a_misdemeanor, then tha homicide growing out ofq^occasionM-byJt. though in self-defense from an assault made uoon him, would be manslaughter under the law.

If we apply this view~of"tKe law to the supposed case stated by the court in the charge to the jury, which we have quoted above, then the charge is manifestly erroneous. It is erroneous in that it deprives the defendant absolutely of his right of resistance and self-defense. If defendant was taken by deceased in the act of adultery with his wife, and to avenge the wrong deceased made a dangerous or murderous assault upon him, in resisting which he took the life of deceased, under such state of facts defendant would be guilty of manslaughter, because he was committing a misdemeanor which was the cause of and brought about the necessity for the homicide. Adultery, under our statute, is only a misdemeanor, and punishable by fine of not less than one hundred nor more than one thousand dollars. Penal Code, arts. 333-336. Carried to its legitimate extent, the charge of the court would make adultery a felony, punishable with summary death, because it would require the defendant to submit to death without an attempt even to defend or preserve his life.

For error in the charge of the court as above discussed, the judgment is reversed and the cause remanded.

Reversed and remanded.

Citation profile

Relationships

How this case has been treated — in progress