![]() ![]() On the contrary, it would kill all alike in its wake and, hence, its legitimate use could not be sustained, unless facts are conceded which would warrant the court in declaring as a matter of law that defendant was justified in killing deceased under the circumstances of the case. It is manifest that a mechanical death-trap like the one used in this case, would hardly be expected to refrain from using more force than was reasonably necessary in repelling the assault of a person trying to enter the building. (a) If defendant had been personally present handling the gun which killed deceased, under the law of this State it would be a question for the jury as to whether, in killing deceased, he used more force than was reasonably necessary under the circumstances aforesaid.(a) Taken on the theory, which is supported by modern authority, that appellant had no right to set a loaded spring gun for the protection of his property, described by the evidence, even though the gun was securely set, the instruction is correct and, taken on appellant's theory, under his own evidence, that he propped the gun, or tried to, in such a manner that it would not shoot through the window, and that it slipped from the position in which he had placed it, and did shoot through the window with fatal results, the instruction is correct in that it submits to the jury the question of appellant's culpable negligence. It could not be distorted into a command to convict appellant. (5) Instruction 4, read in connection with the instruction defining culpable negligence, was a correct declaration of the law under the facts in this case. (4) Instruction 3 correctly defines culpable negligence. (3) Looking at this case from appellant's theory, according to his testimony, that he had not intended to take life, but only sought to frighten intruders, and for this purpose rigged up his gun within his chilli shack so as not to point it directly toward the window, and that it would not have shot through the window had it not slipped from its original position, the question is still one for the jury as to whether appellant was guilty of culpable negligence, first in erecting a spring gun for that purpose, or second, in the manner of its erection. The right of one to protect his property against intruders, even a burglar (and for this purpose to use force as may be used against him) cannot be construed, under the best and most enlightened authority, to mean that a man may construct an instrument of death, like a loaded and cocked spring gun, merely for the purpose of guarding, generally, his property, in an isolated building or place apart from his habitation. The question of guilt or innocence was one for the jury under both the law and the evidence. (2) The court properly refused appellant's request for a peremptory instruction to acquit. This is all that is required of an information. (1) The information in this case is inartifically drawn, but it contains all the necessary elements to apprise appellant of the nature and character of the charge against him and to which he was called upon to answer. Crowder, Assistant Attorney-General, for respondent. (3) The demurrer to the indictment should have been sustained as the same was insufficient in law to charge any offense. Instruction numbered 4 is clearly erroneous under all the decisions of this court, in not properly declaring the law, invading the province of the jury, assuming disputed facts, and being in effect a direct command to convict the defendant. ![]() (2) Instruction 3 given by the court over the objection and exception of the defendant did not correctly define culpable negligence when applied to the facts in the case, and required the jury to convict if the defendant carelessly and negligently set the spring gun, and leaves out entirely the issue whether the gun was accidentally discharged. (1) Under the provisions of Section 3235, Revised Statutes 1919, the court should have instructed the jury to acquit defendant, for the reason that at common law the killing of deceased under the circumstances was justifiable or excusable. ![]()
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