Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Thos. M. Fagan and Wm. Forman, for Appellant.
Geo. B. Thatcher, Attorney-General; E. T. Patrick, Deputy Attorney-General, and Wm. McKnight, Deputy Attorney-General, for Respondent.
By the Court, McCarran, C. J.:
This is an appeal from a judgment of conviction of murder in the second degree. To the indictment, which charged murder in the first degree, the defendant pleaded not guilty and interposed the defense of justifiable homicide based upon self-defense.
The question as to who was the aggressor in the affray, as well as the question of the necessity to strike the fatal blow, was a closely contested issue in the trial. The court instructed the jury on the law of justifiable homicide as follows:
You are instructed that the right to take life in self-defense rests upon necessity, and no one is justified in taking the life of another unless the necessity for so doing is apparent as the only means of preventing his destruction, or of escaping grievous bodily harm. The question of the existence of such necessity is not for the defendant, but for the jury; the jury must draw from all the circumstances whether, from the situation of the parties at the time, the defendant had reasonable ground to believe that it was necessary to take the life of the deceased as the only means of saving his own life, or of avoiding grievous injury to his person. If you do not so find, then you must bring in a verdict of guilty.
1. The expression in this instruction, The question of the existence of such necessity is not for the defendant,
but for the jury, is clearly erroneous and fails to measure up to the law applicable to self-defense as laid down by leading decisions and text-writers upon the subject. The expression swept from the defendant the benefits of the law, which confers upon him the right to exercise his judgment as a reasonable man in determining, at the time, whether, from all the attendant circumstances and conditions, it was necessary to strike the fatal blow for the protection of his own life.
Where, in an affray, one strikes the blow that takes the life of another, necessity for the act to insure self-preservation is the gage and measure. The exercise of reasonable judgment as to the necessity is for him who strikes. Did the defendant, in striking the blow, exercise that judgment as a reasonable man would under such circumstances? That is the question for the jury. This court, in no uncertain terms, established the rule in the case of State v. Scott, 37 Nev. 412, 142 Pac. 1053, where, referring to the language of the Supreme Court of Iowa (State v. Collins, 32 Iowa, 39), as quoted and approved by Mr. Justice Hawley in the case of State v. Ferguson, 9 Nev. 114, and referring to the case of Hawkins v. United States, 3 Okl. Cr. R. 651, 108 Pac. 561, we said:
The inquiry for the jury is: Did the defendant, acting as a reasonable man, upon the appearances of the existing conditions at the time of the encounter, believe at that time that it was necessary for him to commit that act in order to protect himself? An instruction upon the rule of self-defense, which failed to set forth the above qualification, is clearly erroneous.
The rule of law asserted by this court in that case found approval and sanction in the case of Owens v. United States, 130 Fed. 279, 64 C. C. A. 525. Moreover, it has received the approval of ruling cases on the subject in the several jurisdictions. (13 R. C. L. 817, 818.)
The instructions given by the trial court in the case at bar struck from the defendant the right to establish that in the fatal affray, and before he struck the blow that took the life of the deceased, he exercised such ...