Ross v. State

57 P. 924 (1899)


D was charged with murder in the first degree in the killing of Amos Robinson. Amos was a rival saloon owner. There was evidence that D tried to provoke Amos in a gun battle in order to kill Amos. Evidence also showed that Amos did not have a gun. D claimed that the shooting was in self-defense, and that deceased fired the first shot. There were three eye-witnesses to the shooting, Rice, Fuller, and George Ross, the latter a brother of D. All the witnesses who saw or heard the shooting, testify that only two shots were fired. The testimony, with the exception of that of the three witnesses, Rice, Fuller, and Ross, tends to show that the deceased was unarmed at the time. Rice, Fuller, and Ross state that deceased fired the first shot, but, like the others, say only two shots were fired. Two witnesses state that D told them after the shooting that he fired two shots, and exhibited the pistol, there being three loaded shells, two empty shells, and one empty chamber. Instruction 12 given for P explains malice and closes with the statement that 'malice is implied from any deliberate and cool act done against another, however sudden, which shows an abandoned and malignant heart, and where one person assaults another with a deadly weapon in such a manner as is likely to cause death, although he had no previous malice or ill will against the party assaulted, yet he is presumed in law to have such malice at the moment of the assault, and if death result therefrom, it is murder.' D was found guilty of murder in the second degree. D appealed.