|OPINION BY: ROBINSON
Indicted for second-degree murder, and convicted by a jury of manslaughter as a lesser included offense, Bennie L. Peterson urges three grounds for reversal. He asserts, first, that from the voir dire examination of the veniremen from among whom the jury was selected, the trial judge erroneously excluded three questions which he had requested. He contends, next, that the evidence was legally insufficient to establish his guilt of manslaughter, and that in consequence the judge erred in denying his motion for a judgment of acquittal. He complains, lastly, that the judge twice erred in the instructions given the jury in relation to his claim that the homicide was committed in self-defense. One error alleged was an instruction that the jury might consider whether Peterson was the aggressor in the altercation that immediately foreran the homicide. The other was an instruction that a failure by Peterson to retreat, if he could have done so without jeopardizing his safety, might be considered as a circumstance bearing on the question whether he was justified in using the amount of force which he did. After careful study of these arguments in light of the trial record, we affirm Peterson's conviction.
The events immediately preceding the homicide are not seriously in dispute. The version presented by the Government's evidence follows. Charles Keitt, the deceased, and two friends drove in Keitt's car to the alley in the rear of Peterson's house to remove the windshield wipers from the latter's wrecked car. While Keitt was doing so, Peterson came out of the house into the back yard to protest. After a verbal exchange, Peterson went back into the house, obtained a pistol, and returned to the yard. In the meantime, Keitt had reseated himself in his car, and he and his companions were about to leave.
Upon his reappearance in the yard, Peterson paused briefly to load the pistol. "If you move," he shouted to Keitt, "I will shoot." He walked to a point in the yard slightly inside a gate in the rear fence and, pistol in hand, said, "If you come in here I will kill you." Keitt alighted from his car, took a few steps toward Peterson and exclaimed, "What the hell do you think you are going to do with that?" Keitt then made an about-face, walked back to his car and got a lug wrench. With the wrench in a raised position, Keitt advanced toward Peterson, who stood with the pistol pointed toward him. Peterson warned Keitt not to "take another step" and, when Keitt continued onward, shot him in the face from a distance of about ten feet. Death was apparently instantaneous. Shortly thereafter, Peterson left home and was apprehended 20-odd blocks away.
These features of the charge met Peterson's approval, and we are not summoned to pass on them. There were, however, two other aspects of the charge to which Peterson objected, and which are now the subject of vigorous controversy. The first of Peterson's complaints centers upon an instruction that the right to use deadly force in self-defense is not ordinarily available to one who provokes a conflict or is the aggressor in it. Mere words, the judge explained, do not constitute provocation or aggression; and if Peterson precipitated the altercation but thereafter withdrew from it in good faith and so informed Keitt by words or acts, he was justified in using deadly force to save himself from imminent danger or death or grave bodily harm. And, the judge added, even if Keitt was the aggressor and Peterson was justified in defending himself, he was not entitled to use any greater force than he had reasonable ground to believe and actually believed to be necessary for that purpose. Peterson contends that there was no evidence that he either caused or contributed to the conflict, and that the instructions on that topic could only mislead the jury.
It has long been accepted that one cannot support a claim of self-defense by a self-generated necessity to kill. The right of homicidal self-defense is granted only to those free from fault in the difficulty; it is denied to slayers who incite the fatal attack, encourage the fatal quarrel or otherwise promote the necessitous occasion for taking life. The fact that the deceased struck the first blow, fired the first shot or made the first menacing gesture does not legalize the self-defense claim if in fact the claimant was the actual provoker. In sum, one who is the aggressor in a conflict culminating in death cannot invoke the necessities of self-preservation. Only in the event that he communicates to his adversary his intent to withdraw and in good faith attempts to do so is he restored to his right of self-defense.
This body of doctrine traces its origin to the fundamental principle that a killing in self-defense is excusable only as a matter of genuine necessity. Quite obviously, a defensive killing is unnecessary if the occasion for it could have been averted, and the roots of that consideration run deep with us.
In the case at bar, the trial judge's charge fully comported with these governing principles. The remaining question, then, is whether there was evidence to make them applicable to the case. A recapitulation of the proofs shows beyond peradventure that there was.
The evidence is uncontradicted that when Peterson reappeared in the yard with his pistol, Keitt was about to depart the scene. Richard Hilliard testified that after the first argument, Keitt reentered his car and said "Let's go." This statement was verified by Ricky Gray, who testified that Keitt "got in the car and .they were getting ready to go;" he, too, heard Keitt give the direction to start the car. The uncontroverted fact that Keitt was leaving shows plainly that so far as he was concerned the confrontation was ended. It demonstrates just as plainly that even if he had previously been the aggressor, he no longer was.
Not so with Peterson, however, as the undisputed evidence made clear. Emerging from the house with the pistol, he paused in the yard to load it, and to command Keitt not to move. He then walked through the yard to the rear gate and, displaying his pistol, dared Keitt to come in, and threatened to kill him if he did. While there appears to be no fixed rule on the subject, the cases hold, and we agree, that an affirmative unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences is an aggression which, unless renounced, nullifies the right of homicidal self-defense. We cannot escape the abiding conviction that the jury could readily find Peterson's challenge to be a transgression of that character.
The situation at bar is not unlike that presented in Laney. There the accused, chased along the street by a mob threatening his life, managed to escape through an areaway between two houses. In the back yard of one of the houses, he checked a gun he was carrying and then returned to the areaway. The mob beset him again, and during an exchange of shots one of its members was killed by a bullet from the accused's gun. In affirming a conviction of manslaughter, the court reasoned:
It is clearly apparent that, when defendant escaped from the mob into the back yard he was in a place of comparative safety, from which, if he desired to go home, he could have gone by the back way, as he subsequently did. The mob had turned its attention to a house on the opposite side of the street. According to Laney's testimony, there was shooting going on in the street. His appearance on the street at that juncture could mean nothing but trouble for him. Hence, when he adjusted his gun and stepped out into the areaway, he had every reason to believe that his presence there would provoke trouble. We think his conduct in adjusting his revolver and going into the areaway was such as to deprive him of any right to invoke the plea of self-defense.
Similarly, in Rowe v. United States, the accused was in the home of friends when an argument, to which the friends became participants, developed in the street in front. He left, went to his nearby apartment for a loaded pistol and returned. There was testimony that he then made an insulting comment, drew the pistol and fired a shot into the ground. In any event, when a group of five men began to move toward him, he began to shoot at them, killing two, and wounding a third. We observed that the accused "left an apparently safe haven to arm himself and return to the scene," and that "he inflamed the situation with his words to the men gathered there, even though he could have returned silently to the safety of the friends' porch." We held that these facts could have led the jury to conclude that the accused returned to the scene to stir up further trouble, if not actually to kill anyone, and that his actions instigated the men into rushing him. Self-defense may not be claimed by one who deliberately places himself in a position where he has reason to believe "his presence would provoke trouble."
We noted the argument "that a defendant may claim self-defense if he arms himself in order to proceed upon his normal activities, even if he realizes that danger may await him"; we responded by pointing out "that the jury could have found that the course of action defendant here followed was for an unlawful purpose." We accordingly affirmed his conviction of manslaughter over his objection that an acquittal should have been directed.
We are brought much the readier to the same conclusion here. We think the evidence plainly presented an issue of fact as to whether Peterson's conduct was an invitation to and provocation of the encounter which ended in the fatal shot. We sustain the trial judge's action in remitting that issue for the jury's determination.