ri-wf- (Hormii ^£m ^r^nl Slihratg KF 9240.D3T*" """'"""' '""'"^ cases in B Cornell University B Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924020155952 SELECT AMERICAN CASES ON THB LAW OF SELF-DEFENCE BY L. B, HORRIGAN AND SEYMOUR D. THOMPSON ST. LOUIS SOULB, THOMAS & WENTWOETH 1874 Entered according to an Act of Congress, In the year one thousand eight hundred and sevouty-foiir. by L. B. HOERIGAN AJfD SBlMOUR D. THOMPSON, In the Office of the Librarian of Congress at Washington. I'rliited by SHBFFIELD AND STOmi. PREFACE. The title of this volume and the analysis on the following page will sufficiently suggest its contents. Although it is entitled American Cases, a few modern English cases have been given, either in the text or in the notes. This is not a collection of leading cases in any sense of that term. We have, on the contrary, endeavored to collect all the American cases of any considerable importance, bearing upon the comprehen- sive subject of Self-Defejbce. This plan we have carried out at the expense of swelling the book to a thousand pages. We may have made a mistake in doing so; but we have gone upon the conviction that the lawyers want the cases themselves, and not our conclusions as to the result of the cases. We have, therefore, at the expense of impairing the artistic appearance of this volume, drawn into the notes many cases at full length, or fully abstracted them so far as they relate to the subject under discussion. It is thought, however, that the notes will not be found lacking in independent discussions and brief summaries, showing the results of the adjudications. The cases which relate to those questions growing out of the law of self-defence which are still in a state of uncertainty or dispute— such as "retreating to the wall," threats, and character for violence of the prosecutor or persoa slain — have been IV PKEFAOE. given as principal cases, or drawn into the notes without any attempt at abbreviation. In these instances we have, for the most part, preferred to allow the judges and counsel to conduct the discussion rather than at- tempt it ourselves. With reference to the questions of evidence indicated by the title of Pakt IV, our limit as to space has prevented us from doing more than to give four recent cases, two of which, it is believed, have a tendency greatly to modify previously existing notions upon the questions which they discuss. Some attempt has been made to reduce the cases to a consistent arrangement, but this has been only par- tially successful. The difficulty of doing so will be obvious, when it is considered that many of' the cases treat upon several different branches of the law of self-defence, and hence that in placing such a case under one head it is necessarily omitted under another. The inconvenience resulting from this difficulty has been overcome by a system of cross references in the head-notes of the principal cases, so that wherever the searcher finds a point of doctrine stated, he is referred tb every other case in the book where the same point is under discussion. ANALYSIS. Part I. Defence op the Pbbsom. FAOB. A. — Against Assaults and Demonstrations tlireatening Deatli or Great Bodily Harm 1 B.— Defence against Death or Great Bodily Harm, wliere the Exi- gency arises in Mutual Combat 145 C— Killing in Self-Defeuce, where the Necessity is Produced by the Wrongful Act of the Slayer 208 D. — Acting upon Appearances of Danger; and herein of the Immi- nence of the Danger ; of previous Threats made by the An- tagonist, and also of the Character of the Antagonist for Violence 238 E. — Defence against Unlawful Arrest 697 F. — ^Defence against Common Assaults 720 G.— Resistance to the Commission of Felonies 725 H.— Defence of Other Persons 738 I.— Self-Preservation by the Destruction of Innocent Persons 756 J.— Concerning the Degree of Caution and Prudence which a Person must exercise in his Defence to avoid injuring Third Persons 768 K.— The Law of Self-Defence as applied to a State of Mixed War 784 Part II. Defence of tub Habitation. Pakt III. Defence of Property other than the Habitation. Part IV. Of the Borden and Qoantum of Proof where Sblf- DEFENOB 13 URGED IN JUSTIFICATION OF HOMICIDB. TABLE OF CASES. [The principal cases are in Small Capitals ; those which are quoted at length in the notes are in Italics; and those which are briefly cited are in common type.] Aaron v. State [31 G-a., 167.] 784. Adams v. People [47 111., 376.] In full, 208. Cited, 90, 220, 227, 614. Adams v. Waggeuer [3 Ind., 533.] 724. Adev's case [1 Leach C. C, 245.] 709. Allen, Reg. v. [17 Law Times, N. S., 222.] 716, 717. Anderson, State v. [4 Nev., 265.] 252. Arnold, People v. [15 Cal., 476.] Quoted at length, 600. Cited, 521, 609, 913. Atkins V. State [16 Ark., 584.] Quoted at length, 517. Cited, 518, 57G. Austin V. People [1 Park. C. R., 248.] Quoted at length, 248. Aveson v. Kinnaird [6 East, 188.] 462, 519. Baker, State v. [1 Jones (Law) 267J In fiUl, 75. Cited, 90, 126, 515. Barpield, State v. [8 Ired., 344.] Iii full, 618. Cited, 644, 654, 667, 675. Bautista, United States v. [2 Sumn., 343.] 428. Beat V. Robeson [8 Ired., 276.] 667, 671. Beers v. Housatonic R. R. Co. [19 Conn., 567.] 891. B(ilUngham's case [1 Collinson on Lunacy, 671.] 913. Benham, State v. [23 Iowa, 154.] In full, 115. Cited, 31, 33, 90, 129, 140, 226. 475, 626, 696, 714, 717. Bessey v. Ollott [Raym., 468 ] 773. Biggs v. State pg Ga., 723.] In full, 744. Examined by the editors, 754. Bird V. Holbrook [7 East, 628.] 903. Birge v. Gardiner [19 Conn., 501.] 891. Blaoknian v. Simmons [3 Car. & Pay., 138.1 894. Blake, State v. [1 City Hall Recorder, lOO.J 459, 466. Blyth V. Topham [Cro. Jac, 158.1 880. Bouan'non v. Commonwealth [8 Bush, 481.] In full, 395, Cited, 32, 79, 140, 232, 243, 393. Boswell V. Blaekman [12 Ga., 546.] Quoted, 546. Bottoms V. Kent [3 Jones (Law) 154.] Quoted at length, 666 et aeq. Cited, 617, 675, 696. Bourne, Rex v. [5 Car. & Pay., 120.] 751. Brandon, State v. [8 Jones (Law) 467.] 902, 903. Brock V. Copeland [1 Esp., 203.] 880, 894, 904. Brornage v. Prosser [4 Barn. & Aid., 255.] 513. Brown v. Kendall [6 Cush., 292.1 772, 778, 782. Bro\vii V. People [17 Mich.. 212.] 832. Browne's case [Leach, 276.] 734. Brownell v. Pacific Railroad [47 Mo., 239.] 528. Bryson, State v. [1 Winst. (Law) Part 2, p. 86.] Quoted at length, 249, Cited, 687. Buckuer's case [Style, 467.] 716. TABLE OF CASES. vii Bull, Reg. v. [7 Car. & Pay., 22.] Quoted at length, 736. Cited, 140, 145, 23^, 263. Bullock V. Babcock [3 "Wend., 391.] 782. Burckle v. New York Dry Dock Co. [2 Hall, 151.] 880. BuRKB V. STATKrS lowa, 331.] Li full, 126. Burroughs v. Housatonic R. K. Com. [15 Conu., 124.] 777, 782. Burrows v. Union [3 Car. & Pay., 310.1 559. Burwell V. State [63 N. Car. 661.] 724. Bush V. Brainerd [1 Cowen, 78.] 8b0. Bushell's case [Vaughn, 148.] 563. Butler, State v. [8 Cal., 435.1 521. Butterfleld v. Forrester [11 East, 60.] 880. Cadwell v. State [17 Conn., 467.] 439, 553. Campbell v. People [16 111., 17.] In full, 282. ated, 82, 106, 310, 233, 288, 292, 491, 518, 521, 527. 570, 581, 929. Carey, Coainionwealtli v. [2 Brewster, 401.] 141. Carey, Commonwealth v. [12 Cush., 246 j 716. Carioo v. Commonwealth [7 Bush, 124. In full, 389. Limited, 404. Cited, 79, 140, 232, 243, 405. Carroll v. State [23 Ala., 28.] In full, 804. Cited, 33, 140, 189, 231, 589, 703,861. Carter v. Pryke [Peake, 95.] 668. Castiier v. Sliker [33 N. J. (Law) 99.] 724. Chambers v. Porter [5 Coldw., 273.] Quoted at length, 612. Chandler., State v. [5 La. An., 489.] Quoted at length, 659,676. Cited, 247. Chapman's case [ S Car. & Pay., 559.] 851, 932. Childers v. Ford [10 Smedes & Marsh., 25.] 337. Chopin, State v. [10 La. An., 458.] 247. Churchill v. Rosebeck [15 Conn., 359.1 772. Clark V. Dutcher [9 Cowen, 674.] 933. Clark V. People [7 N. Y., 393.] 933. Clark V. People [3 Selden, 385.] 69. Clark V. Periam [2 Atk.. 337.] 669. Clark, Rex v. [2 Stark. R., 241.] 677. Clark V. State [12 Ohio, 494.] 626. Claxton V. State [2 Humph., 172.] 755. Coffin V. Coffin [4 Mass., 25.] 563. Coker v. State [20 Ark., 55.] Quoted at length, 578. Cited, 577. Cole. People v. [4 Park. C. R., 35.] 141, 753. Collins V. State [32 Iowa, 36.] Quoted at length, 595. Cited, 140, 189, 231, 440, 521. Connaughty v. State [1 Wise, 165.] 750. Cook's case [Cro. Car., 538.1 259, 530, 809, 861. Cooper's case [Cro. Car., 544.] 751. COPBLAND V. State [7 Humph., 429.] In full, 41. Cited, 78, 140, 485, 491, 626, 696. , Come ius V. Commonwealth [15 B. Monr., 539.] Quoted, 569. Cited, 152, 518, 521, 6S4, 929. Cotteral, People v. [18 Johns.. 115.] 913, 919. CoTTOM V. State [31 Miss., 504.] In full, 310. Cited, 245, 276. Cox V. Kitchen [3 Bos. & Pul., 338.] 151. Coxe V. Whitney [9 Mo., 531.] 521. Craton, State v. [fired., 164.] 91, 703, 756. Crause, Commonwealth v. [3 Am. Law Jour. (N. S.) 299.] 104. Creek V. St.vtb [24 Ind., 151. j In full, 253. Cited, 141,^51. Crutchley. Rex v. [5 Car. & Pay., 133.] 463. " ■ " ■" -[' " "" ' Curtis V. Hubbnnl [1 Hill N. Y.. 336.] 750, 751, 862, 900. Curtis V. Mills [5 Car. & Pay., 489.] 880. Curvaiu, Rex v. [1 Moody C. C, 132.] 716. Daley, Commonwealth v. [1 Penn. L.aw Jour.,, 150.] 30 Darry v. People [2 Park. Cr. R., 638.] 913. Davis V. Calvert [5 Gill. & Johns., 269.] 439, 672. Vlll TABLE OF CASES. Deaiie v. Clayton [7 Taunt., 489.] 880, 881, 903. Decklotts, State v. [19 Iowa, 447.J Quoted at lenffth, 112 et seg. Cited, 33, 123,129,227. Deei-ly v. Duchess of Mazarine [1 Salk., 116.] 151, 152. Dill v. State [25 Ala,, 15.] In full. 738. Cited, 415, 750. Dock V. Commonwealth [21 Gratt., 912.] 230. Doe, People V. [1 Mich., 451.] In full, 62. Cited, 33, 140, 276. Dole V. Erskine [35 N. H., 503.1 724. Downey v. Murphy [1 Dev. & Batt., 83.] 673. Drennan v. People [10 Mich., 169.] 901. Drew, Commonwealth v. [4 Mass., 391.] In full, 705. Cited, 461,472, 475, 718, 750, 861, 862, 903. Drum, Commonwealth v. [58 Penn. State (8 P. P. Smith) 1.] In full, 183. Cited, 31, 33, 140. Da/ces v. State [11 Ind., 557.] Quoted at length, 572. Cited 518, 571, 604, 609. Dumphey, State v. [4 Minn., 438.] Quoted at length, 684. DuPREE V. State [33 Ala., 380.] In full, 582. Cited, 547, 578. Durant v. People [13 Mich., 351.] 519. Dyson v. State [26 Miss., 362.] In full, 304. Cited, 232, 276, 405 521, 644. Eddy, Commonwealth v. [7 Gray, 583.] 926. Edmondson v. Maohall [2 Term, 4.] 151. Edwards, People v. [41 Cal.. 640.] Quoted from, 682. Enos V. Tuttle [3 Conn., 250.] 464. Evans (John) v. State [44 Miss., 762.] In full, 329. Cited, 79, 227, 293, 316, 514. Eoans {Redding) v. State [33 Ga., 4.] Quoted at length, 233. Fahnestock v. State [23 Ind., 231.] Quoted at length, 548. Felix V. State [18 Ala. , 720.] 588. Fenton's case [1 Lewin C. C. , 179.] 111. Ferrer's ease [Cro. Car., 371 ; S. C, W. Jones, 36 ; S. C, Kelyng, 59.] 709, 716. Ferrigan, Commonwealth v. [44 Penn. State, 386.1 Quoted from, 688. Field, State v. [44 Maine, 244.] In full, 629. Cited, 29, 140, 640, 654, 686. Fielding v. Collier [13 Ga., 495.1 544. Fields V. State [47 Ala., 603J Quoted at length, 691. Fife V. Commonwealth [29 Penn., 429.] 913. Fisher v. Bridges [4 Blackf., 518.] 724. Fisher v. People [23 111., 283.] 210. Fisher, Reg. v, [8 Car. & Pay,, 182.] 459. Fitzgerald v. People [37 N. YT, 418.] 933. Flavel's case [MS.] 251, 252. Floyd V. State [36 Ga., 91.] 724. Ford, Rex v. [Kelyng, 51.] 737. Ford, Rex v. [Russ. & Ry. C. C, 329.1 717. Ford, State v. [3 Strobh. (Law) 517, n7] Quoted from, 555. Forster's Case [1 Lewin C. C., 143.] In full, 143. Foster, Rex v. [6 Car. & Pay., 325.] 519. Franklin V. State [29 Ala., 14.] In full, 641. Cited, 547, 588, 654. Frazer v. Berkeley [7 Car. & Pay., 621.] 475. Gallagher v. State [3 Minn., 270J In full, 720. Cited, 33, 713. Galvin v. State [6 Coldw., 292.] 716, 717. Gardiner v. Thibodeau [14 La. An., 733.] 901, 902. Gut V. State [13 Minn., 357.] Quoted from, 155. Gladden v. State [12 Fla.. 562.] 247, 281. Goodrich, State v. [19 Vt., 116.] In full, 532. Cited, 439, 440, 521, 555. 577, 580. Goodright v. Hicks [2 Bull. N. P., 296.] 668. Grainger v. State [5 Yerg.,459.] In full, 238. Cited and overruled in Thompson's case, 95, 96; in Shippev's case, 136 ; in Shorter's case, 2G3 ; in Lander's case, 382, and in Shoultz' case, 249. Cited, 105, 106, 141, 263, 282, 300, 362, 440, 459, 485, 519, 632, 730, 731, 760. TABLE OF CASES. IX Gray v. Coombs [7 J. J. Marshall, 478.] lu full, 867. Cited, 30, 894, 901. Oreen, State v. [See Soott, State v.] Green v. Stiite [28 Miss., 688.1 337. Greenacre, Rex v. [8 Car. & Pay., 4-2.1 924. Greene v. White [37 N. Y., 405.] 933. Greschia v. People [53 111., 295.] In full, 854. Cited, 33. Hadjo V. Gooden [13 Ala., 718.] 589. .Handock v. Baker [2 Bos. & Pul.. 260.] 751. Harmon v. State [3 Head, 243.] 484. Harrington v. People [5 Barb., 611.] 900. Harris, State v. [1 Jones (Law) ISO.] In full, 270. Cited, 31, 250, 251. Harris v. Tippett [2 Camp., 638.1 536. Harrison v. State [24 Ala., 67.1 In full, 71. Cited, 79, 716, 723, 756, 861, 902, )>!,>> Harvey, Rex v. [2 Barn. & Cres., 268.1 513. Hawkins v. State [26 Ga., 207.] Quoted at length, 522, 545. Cited, 471, 521. Haynes v. State [17 Ga., 465.] 221, 237, 440, 861. Hays, State v. [23 Mo., 2S7.] In full, 492. Cited, 521, 593. Head v. State [44 Miss.. 731. In full, 341. Cited, 232, note. Henderson v. People [8 Cal., 469.] 487. meks, State v. [27 Mo., 588.] Quoted at length, 680. Cited, 519, 654. Hill, State v. [4 Dev. & Batt., 481.] In full, 199. Cited, 103, 104, 226, 227, 228, 237, 514, 521. Hinch V. Sta:.' [25 Ga., 699.] 696. mnchcliffe'f case [1 Lewin C. C, 161.] Quoted at length, 125, 126. Cited, HiNTON V. State [24 Texas, 454.] In full, 83. Cited, 79, 126, 515, 626. BUiner v. State [19 Ind., 48.] Quoted at length, 236. miliard, Commonwealth v. [2 Gray, 294.] Quoted at lenarth, 678. Cited, 654,679,683. Hodges y. State \UGa...m.^ Quoted at length, 234. Cited, 228, 229. Hogue, State v. [Q Jones (Law) 381.] Quoted at length, 673. Holler v. State [37 Ind., 57.] In full, 565. Holmes, United States v. [1 Wall. Jr., 1.] In full, 757. Cited, 221. Honshell, People v. [10 Cal., 87.] 900. HoPKiNSON, People v. [18 111., 264.] In full, 80. Horton, People v. [4 Mich. , 83.] 7§5, 862. Ho Mil V. State [5 Ga., 48.] Quoted at length, 470. Cited, 382, 423, 518, 521, 587. Ho .veil V. State [9 Ind.. 485.] 237. Hoye V. State [39 Ga., 718.] 556. Hubbard, People v. [24 Wend., 369.] 900. Hudgins v. State \2 Kelly, 173.] Quoted at length, 470. Cited, 466, 545, 577. Hughey v. State [47 Al.T.. 97.] Quoted at length, 689. Hummach v. White [Ju. . (N. S.) 796J 783-4. Hunt, Rex v. [1 Moody C. C, 96.] 738. HuRD V. People [25 Mich., 405.] In full, 840. Cited, 624. Hurley, People v. [8 Cal., 390.J Quoted at length, 244. Cited, 604. Hyke v. Van Leuwen [4 Demo.] 891. Ilott V. Wilkes [3 Barn. & Aki.. 304.] 876, 880, 882, 894. 903. Isaacs v. State [25 Texas, 174.] In full, 175. Cited, 32, 140. ■ Jackson, State v. [12 La. Ail. 679.] Quoted at length, 475. Jackson, State v. [17 Mo., 544.1 Quoted iir length, 52Q, 679. Cited, 595, 654. Jackson (Rob-:rt) v. State [Unreporti d.] In full, 476. Cited, 232, 243 24.J, 547, 5'/i, 72'!. James v. Campbell [5 Car. & Pay.] 773, 781. Jay V. Whitefleld [3 Barn. & Aid., 308. S. C, 4 Bing., 646.] 903. Jewett V. Bunning [21 N. Y. . 27.] 929. Joeckel, State v. [4A Mo., 234.] 494. John, State v. [8 Ir J., 330.1 755. Johnson, State v. [12 Law Rp-jr., (N. S.) 653.] 861. X TABLE OF CASES. Johnson V. Patterson [14 Conn., 1.] In full, 878. Cited, 894. Johnson v. State [12 Ala., 841.J 731. Johnson v. State [27 Texas, 758. In full, 407. Cited, 423. Jordin v. Crump [8 Mees. & WeUs., 789.] 903, 904. Keene, State y. [50 Mo., 357.] Quoted at length, 531. Cited, 680, 681. Keener v. State [18 Ga., 194.] In full, 539. Cited, 439, 440, 491, 518, 521, 525, 570, 503, 624, 666, 929. Keho V. Thompson [9 Ala., 937.J 730. Kennard, Commonwealth v. [8 Pick., 133.] 900. Kennedy (James D.), State v. [7 Nev., 374.] In full, 137. Cited, 81, 33. Kennedy John), State v. [20 Iowa, 569.] In full, 106. Cited, 33, 122, 123, 129, 140. Kilgore v. Jordan [17 Texas, 341.] 416. King V. Lynch [5 Car. & Pay., 324.] 459. King V. Woodfall [5 Burr.. 2661.] 457. Kuapp, Commonwealth v. [10 Pick., 484.] 913.; Lamb v. C. &. A. K. E. Co. [46 N. Y., 271.1 934. Lamb, People v. [41 N. Y., 360.] In full, M6. Cited, 106, 270, 316, 604. Lander v. State [12 Texas, 462.] In full, 366. Cited, 79, 104, 105, 232, 243, 422, 521, 723. Lawry, State v. [4 Nev., 161.] Quoted at length, 91. Leach, Commonwealth v. [1 Mass.. 58.] 881. Lee V. Wolsey [19 Johns., 318.] 612. Legg's case [Kelyng, 27.] 916, 924. Leonard, State v. [6 La. An., 420.] Quoted at length, 594. Levett's case [Cro. Car., 538.] 170, 251, 259, 272, 276, 309, 451, 734, 737. Lewis V. State [16 Conn.. 32.] 899. Lindsay v. Lindsay [11 Vt., 621.] 730. Lingo v. State [29 Ga., 470.] Quoted, 558. Cited, 475, 515. Linney, State v. [51 Mo., 40.] Quoted at length, 221-2. Lipsey v. State [3 Dev., 493.J 626. Little V. Birdwell [21 Texas, 612.] 416. Little v. State [Unreported.] In full, 487. Cited, 440, 490, 521. Loeffner v. State [10 Ohio State, 599.] 926. LoGUE, Commonwealth v. [2 Wright, (38 Penn. State) 265.] In full, 269. Cited, 29, 106, 152, 175, 231, 232, 252, 268, 309, 718. Lombard, People v. [17 Cal., 316.] Quoted from, 581. Cited, 696. Louis (The) [2 Dodsou, 204.1 760. Lyon V. Hancock [35 Cal., 372.] 609. Lyon V. State [22 Ga., 399.] Quoted at length, 90, 91, note. Manning's case [Raym., 212.] 755. Mahan v. Brown [13 Wend., 201\] 880. Mahbr v. People [24 111., 241.] In full, 290. Cited, 105, 175, 210, 268, 270, 276. Maher v. People [10 Mich., 212.] 832, 847, 850, 939. Mariana Flora (The) [11 AVheat., 51.] 700. Marr v. Hill [10 Mo., 320.] 519. Martin v. Martin '[25 Ala., 201.] 589. Mo Auley v. State [3 G. Greene, 435.] 900. MoCann, People v. [16 N. Y., 69.] 913, 915, 917. McClelland v. Kay [14 B. Monr., 106.] 901, 902. Mc Coy V. State [3 Eng. (Ark. ) 454.] 862. McDonald, State v. [4 Jones (Law) 22.] 902, 903. McKee, Commonwealth v. [1 Grav, 61.] 909. McKee v. Nelson [4 Co wen. 355.1" f'^-l. Mc Leod. People v. [1 Hill N. Y., 377.] In full, 784. Cited, 79, 231, 251. 376, 913. 917. Mc Millan v. State [13 Mo., 30.] Quoted from, 528. MoNanghten's case [47 En . ; , Montgomery, Eespul;)lica v. [1 Yeates, 421.] 737. Moody V. Davis [10 Ga., 403.] 544. Moore, State V. [31 Coun,, 479.] In full, 891.- Cited, 30, 901. Morgan,State v. [Sired. (Law) 193.] Quoted from, 724. Cited, 75, 376, - 893, 902. ^ ^ J ^ , . . , Morley (Lord), Trial of [6 How. St. Fr., 770.] 142, 229, 594. Morris v. Pratt [32 Conn., 75.] In full. 768. Cited, 613. Morrison, Eex v. [8 Car. & Pay., 21.] 925. Morrison v. Stewart [24 111., 25.] 211 Mullen, State v. [14 La. An., 577.] i^ Murphy v. Dart [42 How. Pr., 31.] Quoted at length,' 538. Murphy, Reg. v. [2 Crawf: & Dix C. C, 20.] 901, 902, 903. Murray v. People [10 Cal., 309.] Quoted from, 681. Cited, 682, 683. Murray v. Byrne [42 Mo., 472.J 723. Murotiy, State v. [33 Iowa, 270.1 939. MvEKS V. State [33 Texas, 525.J In full, 432. Cited, 593, 773. Nailor's case [1 East P. C, 277.] 39. Neeley, State v. [20 Iowa, 108.] In full, 96. Cited. 29, 90, 112, 122, 123, 129, 175, 220, 226, 252, 276, 293, 370, 514, 596, 604, 665, 913. Nelson, State v. [2 Swan, 262.J 440. Nelson v. State [1 Swan, 237.] Quoted from, 491. Neville, State v. [6 Jones (Law) 433.] ■ Quoted from, 756, note. Cited, 755. Newcomb v. State [37 Miss.. 383.1 Quoted at length, 613. NOLES V. State [26 Ala., 31.] In full, 697. Cited, 589, 717. Nugent V. State [18 Ala., 521.] 588, 645. O'Connor, State v. [31 Mo., 389.1 248. Ogden V. Claycomb [52 111.. 365.1 724. •Oliver v. State [17 Ala., 587.] In full, 725. Cited, 30, 31, 250, 273, 589, 639. 654, 678, 687, 703, 714, 715, 716, 717, 861. Oneby,'The King v. [2 Ld. Rayni., 1491.] 229, 913, 916, 924. Orchard's case [8 Car. & Pay., 559.] 851. Parker v. State [31 Texas, 132.] Quoted from, 757. Patience, Hex v. [7 Car. & Pay., 775.] 716. Patten v. People [18 Mich., 314.] In full, 826. Cited, 140, 232, 245, 847. Patterson v. People [46 Barb., 625.] 913. Patterson v. State [12 Am. Law Reg., N. S., 647.] 559. Payne, Commonwealth v. [1 Metcf. Kv., 370.] Quoted from, 683, note. Payne, People v. [8 Cal., 341.] In full, 863. Cited, 31. Peck v. State [7 Humph., 78.] 152. Pforaer v. People [4 Park. 0. R., 558.] 658. Phelps, Reg. v. [1 Car. & Marsh., 180; S. C, 2 Moody C. C, 240.] 709, 716. Philbrick v. Foster [4 Ind., 442.1 724. Philips v. Commonwealth [2 Duvall, 328.] In full, 383. Cited, 232, 243, 391, 400, 402, 519. Overruled in part, 404. Phillips v. Trull [11 Johns.. 4«6.] 7.!7. Phipps v. State [3 Coldw., 344.] 152.424. Ray V. State [if Ga., 244^ Quoted at length, 523. Cited, 521. Rector, People V. [19 Wend., 569.] In tul" XU TABLE OF CASES. Pierce v. Gibson [9 Vt., 216.J 536, Pierce v. Hicks [34 Ga., 259.] 227. [Note.— It was intended to insert this as a principal case, but want of space prevented.] Pierson v. State [12 Ala., 149.] Quoted at length, 140, 141. Pitman v. State [22 Ark., 574.] In full, 574.] Cited, 518. Poke, Commonwealth v. [Lewis C. L. ?] 394. Pond v. People [8 Mich., 150.] In full, 814. Cited, 30, 31, 33, 106, 140, 175, 231, 232, 252, 276, 732, 737, 750, 754, 835, 847, 852, 861, 862. 901. Porter, State v. f34 Iowa, 131.] 939, Powell V. State [19 Ala., 577J Quoted, 587. Cited, 577, 587. Power, Commonwealth v. [7 M;etcf. (Mass.) 596.] 900. Pridgen v. State [31 Texas, 420.] In full, 416! Cited, 152, 439, 593, 696. Priester v. Augley [5 Kich. (Law) 44.] 901, 902. Pkitchett v. State [22 Ala., 39.J In full, 635. Cited, 75, 588, 635, 654, 684, 743, 929. • Putnam v. Payne [13 Johns., 312.] 882. QiiesereSerry V. Sdnie [3 Stew. & Port., 549.] Quoted at length, 549. Citedf 315, 324, 453, 466, 539, 642, 654, 677, 678. Rainiz v. People [13 Cal., 172.] 604. Rampton's case [Kelyng, 41.] 262. Rapp v. Commonwealth [14 B. Monr., 615.] In full, 293. Cited, 268, 302, 684. Rathburn v. Payne [19 Wend., 399.] 880. Rawson v. Haigh [2 Bing;., 104.] 519. 'lei tiill, 795. Cited,' 33, 262, 309, 421. 466, 470, 501, 519", 525. 598. Reins v. People [30 111., 256.] Quoted at length, 858-9. Reynolds v. People [17 Abb., 413.] Quoted at length, 655, 685. Reynolds v. State [1 Kelly, 236.] 453. Richardson v. Northup [o6 Barb., 109.] 475. Richardson v. R. & AV. Turnpike Co. [6 Vt., 496.] 439. Riddle v. Brown [20 Ala., 412.] Quoted at length, 538. Cited, 475. Ridgeley, State v. [2 Harr. & Mc H„ 130.] 464. Riley, Commonwealth v. [Thach. Crim. Cas., 471.] lu full, 155. Cited, 31, 33,140, 651, 696. RippY V. State [2 Head, 217.] In full, 345. Cited, 220, 360, 392, 393, 480, 612, 719, 723. Roach V. State [34 Ga., 78.] Quoted at length, 224^226. Cited, 226. Roane, State v. [2 Dev., 58.] Quoted at length, 734. Cited, 31, 233. Roberts, State v. [14 Mo., 140.] 716. Roberts, State v. [1 Hawks, 351.] 751. Robertson, Pennsylvania v. [Addison, 246.1 In full, 152. Cited, 31. 140,677. Rogers, Commonwealth v. [7 Metcf., 500.] 913. Ratherford v. State [1 Hawks, 457.] Quoted at length, ,734. Cited, 30, 31, Zoo, Samuel, State v. [3 Jones (Law) 74.] 755. Sarch v. Blackburn [4 Car. & Pay., 297 ;,S. C, Mood. & Malk., 505.] 880, 894. Sargent v. Roberts [1 Pick., 337.] 559. « ScHNiER v. People [23 111., 17.] In full, 285. Cited, 210, 275, 292. SCHRYVER, People v. [42 N. Y., l.J In full, 910. Cited, 925. ScoGGiNS, People v. [37 Cal., 677.] In full, 596. Cited, 440, 521. Scott v. Shepherd [2 Biackstone R. , 896.] 773. Scott, State v. [4 Ired. (Law) 409.] Iii full. 163. Cited, 74, 79, 23L', 370, 545, 622, 723, 731. Cited erroneously as State v. Green, on page 273. Scully, Rex v. [1 Car. & Pay., 319.] 30. 252, 451. 459. Seibert, Commonwealth v. [VVhart. on Horn. , 227.] Quoted at length, 686. Cited, 273, 654, 678. Selfkidge, Commonwealth v. [Unreported.] In full, 1. Cited, 61, 02 90, 101, 106. 140, 141, 175, 198, 227, 231, 259. 272, 276, 309, 451, 514, 519 521, 529, 626, 632, 696, 723, 737, 771, 776, 913. TABLE OP CASES. XUi Semayne's case [5 Coke, 91.] 862. Sharp V. State [19 Ohio, 38/.] 850, 851. Sherman v. Dutch [16 111., 283.1 83. Skippby, State v. [10 Minn., 223.] In full, 183. Cited, 32, 33, 243, 714. Shorter v. People [2 Comst., 193.] In full, 256. Cited, 29, 34. 70, 79, 96, 106, 136, 152, 175, 231, 232, 249, 273, 302, 309, 529, 588, 657, 661, 776. Shouliz, State v. [25 Mo., 128.1 Quoted from, 249. Cited, 687. ~" ■ " " " 560. In full, 921. I, 516. Cite In full, 130. Cited, ill, 136, 145, 263, Sidney's case [3 Harg. St. Fr., 805.' SiLvua V. State [22 Ohio State, 90." Sloa;^, State v. [47 Mo., 604.] In full, 516. ' Cited, 29, 276, 680. Smith, Reg. V. [8 Car. & Pay., 160.^ ' ~ ■ 459, 677, 678, 913. Smith, State v.FS Dev. & Batt., 117.] 862. Smith V. State [12 Ricli. (Law) 430.] Quoted at length, 688. Smith's case [2 City Hall Recorder, 78.] 460. Smith V. Shultz [I'Scam., 490.] 211. Smythe, Rex v. [5 Car. & Pay., 201.1 463. Spenceley v. De Willott [9 East, 108.] 668. Spencer, State v. [1 Zabr., 196.] 913. Stafford's case [7 How. St. Fr., 1400.] 536. Staten v. State [30 Mis?., 619.] Quoted at length, 753. Stellar v. Nellis [60 Barb., 524 ; S. C, 42 How. Pr., 163.] 475. Stewart v. State [1 Ohio State, 66.] In full, 191. Cited, 90, 143, 227, 273, 514, 518, 571. Stockley's case [1 East P. C, 310.] 716. Stockton V. State [25 Texas, 776.] Quoted at length, 714. Cited, 715, 724. Stoffer v. State [15 Ohio State, 47.1 In full, 213. Cited, 405, 515. Stokes v. People [53 N. Y., 000.] 929. Cited, 521. Stonecifer, People Y. [6 Cal., 405.] Quoted at length. 244. Cited, 103, 221, 913, 917. Sullivan, People v. [3 Selden, 396.] In full, 65. Cited, 32, 33, 79, 136, 175, 232, 249, 316, 899, 661, 662, 719, 819. Sullivan, Reg. v. [Car. & Marsh., 209.] 862. Swift, State v. [14 La. An., 829.] 247. Taylor v. Betsford [13 Johns. 487.] 559. Tackbtt V .State [1 Hawks, 210.] In full, 615. Cited, 324, 622, 628, 667, 672, 675, 677, 678, 695. Tackett v. State [3 Yerg., 392.] 716, 719. Tate V. State [46 Ga. , 158.] 230. Tavlor, People v. [2 Mich., 250.] 824. / Teal V. State [22 Ga., 75.] 243. Temple v. People [4 Lans., 119.] 839. Thawley, State v. [4 Harr., 562.] 675, 644, 654. Thomas v. David [7 Car. & Pay., 350.] 536. Thomas, Rex v. [7 Car. & Pay., 817.] 913. Thompson, Rex v. [1 Moody C. C, 80.] 716. Thompson, State v. [9 Iowa, 188.] In full, 92. Cited, 31, 33, 79, 104, 109, 110, 122, 123, 129, 140, 696, 696, 714. Thurborn, Reg. v. [2 Car. & Ker., 832.] 817. Thurborn, Reg. v. [1 Den. C. C, 388.] 252. Thurston, Rex v. [1 Den. C. C, 387.] 101. Tilly, State v. [3 Ired., 424.] Quoted at length, 665. Cited, 484, 624, 654, 667, 671, 676, 684, 686. Today's case [2 Ld. Raym., 1296.] 716, 717, 718, 719. Townsend v. Wathen [9 East, 277n 880, 881, 904. Travelers' Ins. Co. v. Iloseley [8 Wall., 397.] 519. Turner, State v. [Wright, Ohio, 20.] 924. Tweedy v. State [5 Iowa, 433.] In full, 905.. Cited, 81, 33, 140, 596, 918. Underwood's case [25 Texas Sup., 389.] Quoted at length, 441 . Vaiden v. Commonwealth [12 Gratt., 717.] Quoted at length, 222-224. Cited, 226 237 Vance, State v. [17 Iowa, 146.] 475, 901, 902, 903. XIV ■ TABLE OF CASES. Vere v. Lord Cawdor [11 East, 568.] 880. Vigol, United States v. [2 Dallas, 346.] 104, 136. Vincent v. Stiuehour [7 Vt., 62.] 772, 782. Wadhurst v. Damme [Cro. Jac., 45.] 880, 882. Wadlow V. Ferryman [27 Mo., 279.1 519. Wakeman v. Robinson [1 Bing., 213.]^ 781. Wall V. Goodenough [18 111., 415.] 83. Weaver v. Ward [Hobart, IIMJ 773. Webster,Commonwealth v. [5 Cush., 305.] 909, 913, 915. Weed V. Evans [2 Speer, 232.] 730. Wells, State v. [1 Coxe, 424.] In full, .145. Cited, 31, 123, 262. Wesley v. State [37 Miss., 327.] In full, 319. Cited, 276, 339, 617, 626, 666. White, People v. [24 Wend., 520.] 933. White V. Ward [9 Johns., 232.] 880. Wild's case [2 Lewin C. C, 214.] Quoted at length, 111. Cited, 862. Wiley V. People [3 Hill, N. Y., 194.] 266, 933. Williams, People v. [17 Cal., 146.] Quoted at length, 604. Williams, People v. [32 Cal., 280.1 Quoted at length, 646. Williams v. State [3 Heisk., 376. In full, 349. Cited, 79, 232, 243, 480, 485, 521, 723. Williams, State v. [2 Jones (Law) 257.1 673. Williams, United States v. [2 Cranch 0. C, 409.] 902, 903. Wilkinson v. Griswold [12 Bmedes & Mareh. , 669.] 338. Willoughby, Rex v. [1 East P. C, 288.] Quoted at length, 90, 126. WiLTBERGBK, UNITED STATES v. [3 Wash. C. C, 515.] In full, 34. Cited, 95, 140, 250, 631, 632, 894. Wise V. State [2 Kan., 419.] Quoted from, 683. ^YooA, State v. [1 Bay., 352.] 724. Woolmer, Rex v. [1 Moody C. C, 334.1 717. Wootton v. Dawkins [2 Com. Bench, N. S., 412.] 903. Wnght V. State [9 Yerg., 342.] Quoted from, 484. Cited, 324, 463, 640, 644,654. Yates V. People [32 N". Y., 509.] 718. York, Commonwealth v. [7 Law Rep., 497 : S. C, 9 Metcf., 93.] Quoted at length, 676. Cited, 513, 640. 654, 678, 696, 909, 913, 917, 924, 932. Toung v. Commonwealth [6 Bush, 312.] Quoted at length, 400-402, note. Cited, 79, 140, 231, 232, 519. Zellers, State v. [2 Halst., 220.] Quoted at length, 471. Cited, 453, 460, 468. Zenger's case [17 How. State Fr., 675.] Cited, 560. SELECT AMERICAN CASES LAW OF SELF-DEFENCE. PART I. DEFENCE OF THE PERSON. A— AGAINST ASSAULTS AND DEMONSTRATIONS THREATENING DEATH OR GREAT BODILY HARM. COMMONWEALTH v. SELFRIDGE. Bwpreme Judicial Court of Massachusetts, Boston, 1806. Defence against felonious assault — Danger must be actual and IMMINENT to justify KILLING — REASONABLE FEAR EXCUSES — Manslaughter defined — Distinction between excusable and JUSTIFIABLE homicide — DEFENCE AGAINST FELONIOUS ASSAULT — Assailed must endeavor to retreat before killing, unless, ETC. — Reasonable fear of death or other felony excuses homicide— Reasonableness op fear, a question for jury- Killing IN resistance of non-felonious assault not excusa- ble — Nor where sIayer brings upon himself the necessity — But a libellous publication does not take away right of defence. Per Parsons, Chief Justice, charging the Grand Jury : 1. A man may repel force by force in the defence of his person, against any one who manifestly intends or endeavors, by violence or sui-prise; ft'loniously to kill him. And he is not obliged to retreat, but, he may pursue his adversary, until he has secured himself from all danger ; and if he kill him in so doing, it i» justifiable self-defence. 2 COMMONWEALTH V. SELFKIDGE. 2. But a bare fear, however well grounded, unaccompanied by any overt act. Indicative of such intention, will not warrant him in killing. There must be an actual danger at the time ; and it must plainly ap- pear by the circumstances of the case, as the manner of the assault, the weapon, etc., that his life was in imminent danger ; otherwise the Idlling of the assailant will not be justifiable homicide. 9. But if the party killing had reasonable grounds for believing that the person slain had a felonious design against him, although it should afterwards appear that there was no such design, it will not be mur- der ; but will be either manslaughter or excusable homicide, according to the degree of caution used, and the probable grounds of such belief. Per Parkee, J., charging the Traverse Jury: 4. Manslaughter consists in the unlawful and wilful killing of a reasonable being without malice, express or implied, and without any justification or excuse. 5. When the killing is the result of particular malice or general depravity, it is murder ; when without malice, but caused by sudden passion and heat of blood, it is manslaughter ; when in defence of life, it is excusa- ble; and when in advancement Jof public justice, in obedience to the laws, it is justifiable. 6. If a man, while in the lawful pursuit of his business, is attacked by another, under circumstances which indicate an intention to take away his life, or do him some enormous bodUy harm, he may lawfully kill ^ the assailant, provided he use all the means in his power, otherwise to save his own life, or prevent the intended harm — such as retreating as far as he can, or disabling his adversary without killing him, if it be in his power. [Ace. John Doe's case,jtios<; Drum's case, joosi; Sullivan's <:ase,posi; Benham's case, ;)os< ,• Shippey's case, ^os<. Contra, Isaac's case, post. At least, not if the assault be wth a deadly weapon. Thompson's case, post; John Kennedy's case, post. Nor where a forcible felony is attempted against person or property. Pond's case, post ; Carroll's case, post. Nor where one is assaulted in his habitation. Pond's case, post. See note to Isaac's case, post ; and note to Bohan- non's case, post.l T. When the attack upon him is so sudden, fierce and violent, that a retreat would not diminish but increase his danger, he may instantly kill his adversary, without retreating at all. &. When, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life, or commit any felony upon his person, the killing of the assailant will be excusable homi- cide, although it should afterwards appear that no felony was in- tended. 9. Whether the appearances were sufficient to convince a reasonable man tiiat death or a felony upon the person was intended, is a question for the jury. [Ace. Wiltberger's case, post ; Harris' case, post ; McLeod's case, post ; and many others.] CHARGE TO (JEAND JURY. 3 10. Where the defence was that the assault was so violent and fierce that defendant could not retreat, the jury were instructed that it was im- portant for them to ascertain whether a violent blow which the deceased inflicted on the forehead of the defendant with a cane, was given before or after the fatal shot was fired. 11. Where the defendant was suddenly assaulted on the street with a cane, and thereupon shot and killed his assailant, the jury were iilstructed to settle in their minds, from all the circumstances of the case — ^the suddenness and violence of the attack — ^the nature of the weapon with which it was made — the place where the catastrophe happened — ^the muscular debility or vigor of the defendant and his power to resist or fly — whether the defendant could not have saved himself from death or great bodily harm, by retreating to the wall, or throwing himself , into the arms of friends who would protect him. This was the real stress of the case ; and if the defendant could have escaped his adver- sary's vengeance at the time of the attack, the defence of excusable homicide in self-defence had failed. 12. There is no principle of law which will excuse the killing of an assail- ant simply to resist a chastisement, not apparently threatening great bodily harm, but only intended to disgrace the defendant in the eyes of his fellow men. 13. When an assault is brought upon a person by his own procurement, and in resisting the same he kills the assailant, he cannot avail himself of the plea of self-defence. [Ace. Neeley's case, post ; Adam's case, post ; Stewart's case, post ; Rippy's case, post ; Evan's ease, post ; and others.] 14. But as mere words will not justify an assault, it follows that where the defendant published a libel against the father of the person slam, which led the deceased to attack him upon the street, during which attack the defendant shot and killed the deceased, this was not such a procurement of the difiBculty, nor did it place the defendant so much in fault, as to deprive him of the right to urge the plea of self-defence. The Court was opened on the 25th day of Novemlaer, 1806. Present, the Hon. Theophilus Parsons, LL. D., Chief Justice; the Hon. Theodore Sedgwick, LL. D., the Hon. Samuel Sewell, and the Hon. Isaac Parker; Justices. The Grand Jury being impannelled and sworn, the Chief Justice delivered a learned and impressive charge, from which the following is extracted, as applicable to the law of self-defence : "A man may repel force by force in defence of his person, against any. one who manifestly intends or endeavors by violence or surprise, feloniously 4 COMMONWEALTH V. SELFRIDGE. to kill Mm. And he is not obliged to retreat, but he may pursue his adversary until he has secured himself from all danger ; and if he kill him in so doing, it is jxisti- fiable self-defence. But a bare fear, however well grounded, unaccompanied by any overt act, indicative of such intention, will not warrant him in killing. There must be an actual danger at the time. And, (in the lan- guage of Chief Justice Hale,) it must plainly appear by the circumstances of the case, as the manner of the assault, the weapon, etc., that his life was in imminent danger ; otherwise the killing of the assailant will not be justifhoMe homicide. But if the party killing had rea- sonable grounds for believing that the person slain had a felonious design against him ; although it should after- wards appear that there was no such design, it will not be murder ; but will be either manslaughter or excusable homicide, according to the degree of caution used, and the probable grounds of such belief. These principles have been recognized by the wisest and most humane writers on criminal law." The Grand Jury returned an indictment against Sel- fridge for manslaugMer in the killing of Charles Aus- tin. The trial of the prisoner was then postponed at his own request, and he was admitted to bail in the sum of two thousand dollars by himself, and two thousand by sureties, without opposition from the Government. On the 23d day of December, 1806, the trial commenced before Mr. Justice Parker. James Sullwan, Attorney General, and Daniel Davis, Solicitor General, for the Commonwealth; ChristopTier Oore and Samuel Dexter for the defendant. The facts of the case were these : Mr. Selfridge was a member of the Suffolk bar, well advanced, and of good standing in his profession. The deceased, Charles Aus- tin, was a student of Harvard University, about eighteen years of age. He was the son of Benjamin Austin, a political writer and an active politician in the Bern- STATEMENT OE THE FACTS. 5 ocratic ranks. Mr. Selfridge was a Federalist. A quar- rel had arisen between Mr. Selfridge and Mr. Benjamin Austin, the facts of which were these : One Eben Eager had been employed by a committee, of which Benjamin Austin was chairman, to provide a dinner on Copp's Hill for a Democratic celebration on the Fourth of July, there being some difficulty in the settlement of the bill, Mr. Selfridge, at the request of Mr. Eager, commenced suit. The matter was subsequently settled; but Mr. Selfridge understanding that Mr. Austin had made some reflections on his professional character, sent him the following note : "Boston, 29th July, 1806. " Mr. Benjamin Austin, "Sir:— My friend, Mr. Welch, will deliver you this note, and receive any communication you may see fit to make. " You have to various persons, and at various times and places, alleged ' that I sought Mr. Eager, and solic- ited him to institute a suit against the committee (of which you were chairman), who provided the public din- ner on Copp's Hill on the Fourth of July ' or language of similar import. As the allegation is utterly false, and, if believed, highly derogatory to any gentleman in his professional pursuits, who conducts with fidelity to his clients, integrity to the courts, and with honor to the bar ; you vnll have the goodness to do me the justice forthwith to enter your protest against the falsehood, and furnish me with the means of giving the same degree of publicity to its retraction, that you have probably given to its propagation. I had hoped the mention of this sub- ject to you yesterday would have spared me the trouble of this demand; — that twenty -four hours would have enabled you without difficulty to have obtained correct information as to the fact; and that a just sense of pro- priety would have led you to make voluntary reparation where you had been the instrument of injustice. The contrary, however, impresses me with the idea that you 6 COMMONWEALTH V. SELPBIDGfE. intended a wanton injury from tlie 'beginning, which I never will receive from any man with impunity. "I am, Sir, your humble servant, [Signed.] Thos. O. SELPEroaE." Mr. Austin, on receiving this letter, observed to Mr, "Welch, the bearer of it, that he could say nothing further than he had said to Mr. Selfridge yesterday. The next morning Mr. Austin met Mr. "Welch, and observed that he had made inquiry concerning the truth of the report, and was convinced of its falsity ; that he had been to those persons to whom he had mentioned it, for the pur- pose of removing the unfavorable impression which the report, if true, would make. He observed that, it was not true that he had used Mr. Selfridge's name. Mr. "Welch stated the result of this interview to Mr. Selfridge, who replied that his name had been used, and that that which Mr. Austin stated was not true. The same day, Mr. "Welch again saw Mr. Austin, and told him that Mr. SeKridge was not satisfied with the result of the conver- sation of the morning, but conceived that he had a right to demand of him the means of counteracting a falsehood, Mr. Austin replied that he entertained a different opin- ion, and did not think anything more could reasonably be expected of him. The same day Mr. Selfridge penned another note, which was delivered on the 1st of August following : "July 30, 1806. " Mr. B. Austin, " Sir : The declarations you have made to Mr. "Welch are jesuitically false, and your concession wholly unsatis- factory. You acknowledge to have spread a base false- hood against my professional reputation. Two alterna- tives, therefore, present themselves to you : either give me the author's name, or assume it yourself. You call the author a gentleman, and probably a friend. He is in grain a liar and a scoundrel. If you assume the false- hood yourself to screen your friend, you must acknowl- edge it under your own hand and give me the means of vindijoating myself against the effect of your aspersion. STATEMENT OF THE FACTS. 7 "A man who has been guilty of so gross a violation of truth and honor, as to fabricate the story you have prop- agated, I will not trust; he must gite me some better pledge than his word for present indemnity and future security. The positions I have taken are too obviously just to admit of any illustration, and there is no ingenu- ous mind would revolt from a compliance with my requi- sitions. " I am, Sir, your humble servant, [Signed.] Thos. O. Selfeidge." Mr. Austin, on receiving this note, declined to make any further amends than he had already made. Mr. Selfridge then published the following note in the Boston Gazette of August 4th : "AUSTIN POSTED." "Benjamin Austin, loan officer, having acknowledged that he has circulated an infamous falsehood concerning my professional conduct in a certain cause, and having refused to give the satisfaction due to a gentleman in similar cases, I hereby publish said Austin as a coward, a liar and a scoundrel ; and if the said Austin has the effrontery to deny any part of the charge, he shall be silenced by the most irrefragable proof. "Thos. O. Selfeidge, "Boston, 4th August. " P. S. The various editors in the United States are requested to insert the above notice in their jurnals, and their biUs shall be paid to their respective agents in this town." Mr. Austin obtained knowledge that he was posted, and published in the Independent Chronicle of the same morning, the following note : " Considering it derogatory to enter into a newspaper controversy with one T. O. Selfridge, in reply to his inso- lent and false publication in the Gazette of this day ; if 8 COMMONWEALTH V. SELFRIDGE. any gentleman is desirous to know the facts, on which his impertinence is founded, any information will be given by me on the subject. Benjamin Austin. ''Those who publish Selfridge's statement, are re- quested to insert the above, and they shall be paid on presenting their bills." On the morning that these advertisements appeared there was a great deal of excitement in the city, and a general expectation that there would be a personal col- lision between the parties. Mr. Selfridge himseK was informed by a friend on that morning, that he would be attacked by some one, and he gave the vsdtness to under- stand that he had been previously notified, or was ready ; and when another friend asked him how he and Austin came on, he smiled, and said he understood Austin had hired or procured some one, or some bully, (the witness did not recollect which expression was used) to attack him. This was a few moments before the en- counter took place. At about one o'clock in the afternoon, Mr. Selfridge left his office, on the north side of the old State House, and proceeded leisurely down State street towards Suf- folk Buildings, on the corner of Congress street. "When he had arrived about opposite to what was then called Half Court Square, now Congress Square, and was nearly in the middle of the street, Mr. Charles Austin, who was standing on the sidewalk before Townsend's shop, be- tween Congress street and Half Court Square, advanced towards him with a walking stick in his hand, with which he gave Mr. Selfridge several blows upon the head. As the first or second blow was descendiQg, the latter fired a pistol, and Mr. Austin expired in a few moments, although he struck several blows after he was shot. The ball entered the body a little below the left pap ; its course was oblique and diagonal with the trunk of the body, inclining upward towards the left side • it passed through the lungs, but not the heart, for it lodged above it. STATEMEx^TT OF THE FACTS. 9 There was some discrepancy between the witnesses at the trial, as to whether a blow was struck before the pistol was fired. John M. Lane testified that he was standing at the door of his shop on the north side of State street, between Wilson's lane and Exchange lane, (now Exchange street), looking across the street, and there saw the defendant standing on the brick pavement. His face was towards the witness ; young Mr. Austin was standing in front of the defendant. The defendant stood with his arms folded, or rather crossed horizontally, the right arm being uppermost, and in that position, he fired the pistol. The deceased turned round instantly, and gave the defendant several strokes before he fell. Edward Howe testified, that in passing from Townsend's shop to the east end of the old State House, he met Mr. Selfridge about two rods from Townsend's shop. He had on a frock coat, and his hands were behind him. After passing on 'six or eight steps, the witness heard a loud talking behind him. He immediately turned, and the first thing he saw was Mr. Selfridge's hand with a pistol in it; the pistol was immediately discharged. The instant afterwards, he saw the person shot at, step from the sidewalk and strike Mr. Selfridge several very heavy blows on the head. Ichabod Frost testified, that he was standing opposite Mr. Townsend's shop, and hearing the report of a pistol, turned his eyes and saw a smoke ; at that instant the deceased was stepping from the sidewalk with his stick up. These were witnesses called by the Government. The witnesses called by the defendant, gave a difl'erent state- ment. John Bailey was at work in Mr. Townsend's shop. He saw Charles Austin pass down the street, and afterwards saw him pass up ; he returned and took his stand directly in front of the shop. He had a stick in his hand of an unusual size. Witness soon afterwards saw the defendant passing down the street ; he had his right hand in his pocket, his left hanging down. When Mr. Selfridge first came in sight, the deceased was stand- ing on the side pavement, in front of the shop, iti con- 10 COMMONWEALTH V. SELrKIDGE. versation with Fales, a college friend, and playing with his cane. The moment the defendant caught his eye, he left Fales, and stepped oflF the brick pavement into the street. He moved with a quick pace, and, while going, shifted his cane from his left to his right hand. After he had got oflf the pavement, he turned and went towards the defendant with his cane raised up. They met about seventeen paces from the place the deceased had left. The deceased held the cane by the upper or largest end. The cane was uplifted, and actually descending to give a blow at the time the pistol was discharged. The blow was not struck until after the pistol was fired. Zadock French was near Townsend's shop. He saw Mr. Selfridge going from the northeast corner of the old State House towards the branch bank, (situated between Congress and Kilby streets, a little beyond Suffolk Buildings). He walked very deliberately, with his hands behind him, or under his coat. When opposite the witness, he was a little south of the middle of the street. All at once he turned or wheeled towards the witness. At the same instant, Charles Austin stepped off the brick pave- ment and walked with a very quick step towards him, having his cane raised. Mr. Selfridge, as he turned towards the witness, presented a pistol as if to defend himself. It appeared to the witness that Austin's breast went against the muzzle of the pistol. Austin struck the defendant a blow on the head, and the pistol was fired at the same instant. Kichard Edwards was stand- ing with Mr. French. He saw Mr. Selfridge passing slowly in the direction of the branch bank. Immedi- ately young Austin passed from behind witness towards the middle of the street. By the time witness had turned, young Austin had got nearly to the middle of the street, and he saw Mr. Selfridge immediately before him, with his arm extended and a pistol in his hand. Young Austin had a cane in his hand, and at the instant the pistol was discharged, witness saw the cane elevated, but he was not able to say whether it was desdending to strike .a blow or recovering from striking one. After the STATEMENT OF THE PACTS. 11 pistol was discharged, the deceased struck several blows with the cane. John Erving saw young Austin with his cane raised, moving at a quick pace towards Mr. Sel- fridge, who had his left arm lifted as if to parry a blow. He took a pistol from his right hand pocket, and fired under his arm. The first blow and the firing of the pistol seemed to be at the same instant. Lewis Glover testified, that when the deceased came up to Mr. Selfridge^ he struck him on his hat ; while he was aiming the second blow, Mr. Selfridge took his hands from behind him, presented a pistol and fired it. The witness said he stood within fifteen feet of the parties, and kept his eye steadily upon them. He was confident there was one blow before the pistol was discharged, and that it was a violent one, sufficient, he should believe, to knock a man down who had no hat on. Joseph Wiggin saw Mr. Selfridge coming down the street, and turned to see if Austin had moved from his place, and found he had. At that moment the witness heard a sound, as of the stroke of a stick upon a coat. Casting his eye around, he then saw Mr. Selfridge present his pistol, step back one step, and fire. It appeared that young Austin was about eighteen years old, and very much superior to Mr. Selfridge in physical strength. He usually carried a rattan, but on the morning of his death, he purchased a heavy hickory cane ; asked if it was a strong one and " would stand a good lick." A witness who sold him the cane, said he had sold him canes for six months, about once a week, and he had always purchased small bamboos. Mr. Aus- tin, senior, testified, however, that his son had a cane at home, twice as large as the one he struck Mr. Selfridge with, although he usually carried a small one. It was in evidence that Mr. Selfridge was of a very slender and delicate constitution, which his appearance indicated, and he had been noted for it when at college, never having been able to engage in the athletic sports and exercises peculiar to collegians. It was also testi- fied that Mr. Austin, senior, said a short time before the 12 CGMMOXWEALTH V. gELFRIDGE. affray and on the same day, that he " should not meddle with SeKridge himself, but some person upon a footing should take him in hand ; " and that one of Mr. Selfridge's friends informed him that he was to be attacked by a bully, hired for that pui"pose. Mr. Austin, however, denied on oath explicitly, that he ever had any intention of inflicting personal injurj' upon Mr. Selfridge, or of hiring any one to do it. "I appeal to God," said he, when questioned upon this point, "he would have passed me as safely as he stands at your bar." The evi- dence of Lemuel Shaw, afterwards Chief Justice of Mas- sachusetts, who occupied the same office with Mr. Self- ridge, was offered to show that Mr. Selfridge went on 'Change that day upon business. It appeared that Mr. Selfridge received a dangerous wound from young Aus- tin at the time of the affray. Dr. Warren was called to him in the evening, and found a large contusion on his forehead about the middle of it. It was three inches in length and one in breadth. The blow must have been given, the witness thought, when the hat was on. The hat was produced in court, and found very much bruised. For the defendant, it was urged that the killing was in self-defence ; that he was in such imminent danger of suffering death or enormous bodily harm, that he had no reasonable prospect of escaping but by killing his assail- ant. The counsel for the defendant, in commenting on the evidence, contended, that Mr. Selfridge went on the Exchange about his lawful business, and without any design of engaging in an affray ; that he was in the practice of carrying pistols, and that it was uncertain whether he took the weapon in his pocket in consequence of expecting an attack ; that if he did, he had a right to do so, provided he made no unlawful use of it ; that the attack was so violent and with so dangerous a weapon that he was in imminent danger ; that it was so sudden, and himself so feeble that retreat would have been attended with extreme hazard ; that the pistol was not discharged until it was certain that no one would inter- CHARGE TO THE TRAVEBSE JUBY. Vd fere for his relief; and that blows, which perhaps might kill him, and probably would fracture his skull, were inevitable in any other way, and that the previous quar- rel with the father of the deceased, if it could be consid- ered as aflfecting the cause, arose from the misbehavior of old Mr. Austin, and that the defendant had been greatly injured in that affair. Paekee, J., charged the jury as follows : " Gentlemen of the Juey : As this most interesting trial has already occupied four days, and as you must be by this time nearly exhausted, I shall endeavor, in discharg- ing the duty incumbent on me, to consume as little more of your time as may be consistent with a clear exposition of the principles necessary to be understood in order to form a just and legal decision. You have heard the im- portant facts in the case, minutely and distinctly stated by the witnesses, ably and ingeniously commented upon by counsel, and the principles of law elaborately dis- cussed and illustrated in as forcible and eloquent argu- ments as were ever -wdtnessed in any court of justice in our country. It is now left to you iipon the whole view of the case, both of the law as it shall be declared to you by the court, and the facts as proved by the testimony, to pronounce a verdict between the defendant and your country. " That in so important a trial it should have devolved upon me alone to preside over its forms," as well as to declare the principles upon which your decision is to rest, is by no means a subject of congratulation. It is a situation which of all others I should have avoided, had ndt official duty imperiously imposed it upon me. But the organization of the court, and distribution of the services of its members are such as to have rendered any other arrangement difficult, if not impossible. Under our present judiciary establishment, all criminal causes, other than capital, are triable before one judge ; and this system has proved itself to be eminently calculated for the dispatch of public business. Other provisions in the svstem insure as great a degree of correctness as can be 14 COMMONWEALTH V. SELFKIDGE. expected of any human institution. It is true that although at a term holden by one judge, if others are present, they may proceed together ; "but at this time, the court being in session in three, if not four, counties, it was impracticable, had it been desirable, to have more than two judges engaged in the present trial. The great delay which would have taken place in consequence of a division of opinion (a case not unlikely to happen in the course of any trial) between two judges, rendered it alto- gether inexpedient that more than one should attend ; and as this term had been previously assigned to me, the unpleasant task of officiating in the present case seemed unavoidably to belong to me. ■' Since it has thus fallen to me to execute a painful and anxious duty, I shall not shrink from the task of declaring to you the principles of law by which you are to be governed in your investigation and decision of this case. If in doing this, I should be found capable, in order to retain the favor of one class of the community, or to court that of another, of abusing my oflB^e by stat- ing that to be the law which I know to be otherwise, this is the last time I should be suffered to sit upon this bench, and I ought to meet the execration and contempt of the society to which I belong. "The crime charged by the Grand Jury upon the defendant is manslaughter ; a crime of high considera- tion in the eye of the law. This crime, however, is not defined by our statute, but its punishment is by it pro- vided for. In order, therefore, to ascertain the nature and character of the crime, it is necessary to resort to the books of the common law, the principles of which, by the constitution of our government, are made the law of our land, until they shall be changed or repealed by our own legislature. The counsel for the government, as well as for the defendant, have therefore wisely and properly searched the most approved authorities of the common law, for the principles upon which the prosecu- tion or the defence, must be supported. It is from these books alone that any clear ideas of the offence which is LAWFUL TO KILL, WHEW. 15 in trial, or the defence which has been set up, can be attained. "The crime of manslaughter, according to those authorities, consists of the unlawful and wilful killing of a reasonable being, without malice, express or implied, and without any justification or excuse. That the killing of a human being under some circumstances is not only excusable, but justifiable, is proved by the very terms of this definition. Some persons, however, have affected to entertain the visionary notion that it is in no instance lawful to destroy the life of another, grounding their opinion upon the general proposition of the Mosaic code, that " whosoever sheddeth man's blood, by man shall his blood be shed." There is always dan- ger in taking general propositions, as the rules of faith or action, without attending to those exceptions which, if not expressly declared, necessarily grow out of the sub- ject matter of the propositions. Were the position above alluded to, true in the extent contended for by some, then the judge who sits in the trial of a capital offence, the jury who may convict, the magistrate who shall order execution, and the sheriff who shall execute, will all fall within the general denunciation, as by their instru- mentality, the blood of man has been shed. The same observations may be applied to one of the precepts of the decalogue. ' Thou shalt not kill ' is the mandate of Ood himself. Should this be construed literally and strictly, then a man who, attacked by a robber, or in defence of the chastity of his wife, or of his habitation from the midnight invader, should kiU the assailant, would offend against the divine command, and be obnox- ious to punishment. But the common understanding of mankind will readily perceive, that the very nature of man, and principle of self-preservation, will stipply exceptions to these general denunciations. "Our laws, like those of all other civilized countries, abundantly negative such unqualified definitions of crime, and have adopted-certain principles by which the same act may be ascertained to be more or less criminal 16 COMMOWWEALTII V. SELrRIDGE. or entirely innocent, according to the motive and intent of the party committing it. Thus, when the killing is the effect of partieular malice or general depravity, it is murder, and punished with death. When without mal- ice, but caused by sudden passion and heat of blood, it is manslaughter. When in defence of life, , it is excus- able. When in advancement of public justice, in obedi- ence to the laws of the government, it is justifiable. These principles are all sanctioned by law and morality, and yet they all contradict the dogma, 'Whosoever sheddeth man's blood, by man shall his blood be shed." It is not necessary for you to riin a nice distinction between justifiable and excusable homicide. If the one now in trial be either the one or the other, it is sufficient for the purpose of the defendant. A distinction existed in England which does not exist here. There, the man who had committed an excusable homicide forfeited his goods and chattels, while he who had a justification, for- feited nothing. Here, whether the homicide be justifi- able or excusable, there must be an entire acquittal.* "See also Pond's case, post, where the distinction between excusable and justifiable homicide is stated. For the reason stated by the learned judge in the principal case, it has literally dwindled into a distinction without a difference, in the United States. And it is a distinction too nice and refined for the comprehension of average juries. Indeed, we frequently find confusion on the part of judges and text writers in regard to it. Thus, take Pond's case, joosi, where Campbell, J., in quoting from the common law text writers, to show under what fircumstances homicide is excusable, runs into a paragraph from Russell, where it is stated that if the party assaulted does all he can to get out of the way, and then kills his assailant, in order to save his own life. etc., he will he, justified. Indeed, in the principal case, the two kinds of liomicide are confused, the Chief Justice pronouncing homicide in self- defence j«sii/?o6/c, while Mr. Justice Parker pronounces it excusable. In Georgia, it is declared by statute that there being no rational distinc- tion between excusable and justifiable homicide, it shall no longer exist. Cobb's Digest, p. 784, J 12. And in several of the other States and Terri- tories, the disthiction between the two kinds of homicide is declared bj' statute ; that is to say, aU kinds of homicide in self-defence, or in resistance of felony, or in advancement of public justice, is JMsit/iaJie; while it is homicide by misadventure that is excusable. Statutes of Ark., 1858, p. 331, 1'20 H seq.; Comp. Laws Cal,, 1863, p. 641, ?5 29-34; Rev. Stat. Col., 1868. p. 199, §? 28-33; Gross' Dl. Stat., 1869, p. 172, ? J 13-18; Laws of Dakota, lw;2, p. 161,^?28-33. JUSTIFIABLE AND EXCUSABLE HOMICIDE 17 Numerous authorities, ancient and modem, have 'been read to you on this subject. Were it necessary for you to take those books with you, and compare the different principles and cases which have been cited, your minds might meet with some embarrassments, there being in some instances an apparent, though in none, a real, incongruity. But I apprehend that you need not trouble yourselves with the books out of court; for I think I shall be able to state all the principles you will have occasion to consider ; there being in fact, no disagree- ment about them, from the time of Sir Edward Coke, one of the earliest sages of the law, down to Sir "William Blackstone, one of its brightest ornaments. These same principles, although taken from English books, have been immemoriaUy discussed and practiced upon by our lawyers, adopted and enforced by our courts and juries, and recognized by our legislature. To prove this, I now need say no more, than that the same learned Judge Trowbridge, who was cLuoted by the Attorney-Greneral, in his charge to the jury, in the trial of the soldiers for the massacre in 1770, laid down, discussed and illus- trated, with great precision and clearness, every principle which can come in question in the present trial. These principles I will endeavor to simplify for your considera- tion. First.— A man, who in the lawful pursuit of his business, is attacked by another, under circumstances which denote an intention to take away his life, or do him some enormous bodily harm, may lawfully kill the assailant, provided he use all the means in his power, otherwise, to save his own life, or prevent the intended And in some of the American cases, tlie judges use the expressions, ''justifiable homicide," and ''excusaUe homicide'' interchangeably; affixing the same meaning to each. See, for instance, Sloan's Ca.se, post, where it is said by a very able judge that a person may safely act upon appearancef:, etc., aiid the killing will ha justifiable ; whereas, as stated byPAKSO>s, Cli. J., and also by Parker, J., in the principal case, the killing of another upon a reasonable appearance of danger, which is not real, is excusable homicido. The present editors in the notes they have made to this volume, hnve not attended to this distinction. 18 COMMONWEALTH V. SELFKIDGE. harm — such as retreating as far as he can, or disabling his adversary, without killing him if it be in his power. Secondly. — When the attack upon him is so sudden, lierce and violent, that a retreat would not diminish, but increase his danger, he may instantly kill his adversary without retreating at all. Thirdly . — When, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life, or commit any felony upon his person, the killing the assailant will be excusable homicide, although it should afterward appear that no felony was intended. Of these three propositions, the last is the only one which will be contested anywhere; and this will not be doubted by any one, who is conversant with the principles of the criminal law. Indeed, if this last proposition be not true, the preceding ones, however true and universally admitted, would, in most cases, be en- tirely inefficacious. And when it is considered that the jury who try the cause, are to decide upon the grounds of apprehension, no danger can flow from the example. To illustrate this principle, take the following case : A., in the peaceable pursuit of his affairs, sees B. rushing rapidly towards him, with an outstretched arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough, in the same attitude. A., who has a club in his hand, strikes B. over the head before, or at the instant the pistol is discharged, and of the wound, B. dies. It turns out that the pistol was loaded with powder only, and that the real design of B. was only to terrify A. Will any reasonable man say that A. is more criminal than he would have been if there had been a bullet in the pistol ? Those who hold such doctrine must require that a man so attacked, must, before he strike the as- jiailant, stop and ascertain how the pistol is loaded, a doctrine which would entirely take away the essential right of self-defence. And when it is considered that MALICE PRESUMED FROM KILLING. 19 'the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his appre- hension, no danger can be supposed to flow from this principle. These are the principles of law, gentlemen, to which I call your attention. Having done this, I might leave the cause with you, were it not necessary to take a brief view of some ether parts of it. As to the evidence, I have no intention to guide or interfere with its just and natural operation upon your minds. I hold the privilege of the jury to ascertain the facts, and that of the court to declare the law, to be distinct and independent. Should I interfere with my opinion on the testimony, in order to influence your minds to incline either way, I should certainly step out of the province of a judge into that of an advocate. All which I conceive necessary or proper for one to do in this part of the cause is, to call your attention to the points of fact on which the cause may turn, state the prominent testimony in the case which may tend to establish or disprove those points, give you some rules by which you are to weigh testi- mony, if a contrariety should have occurred, and leave you to form a decision according to your best judgment, without giving you to understand, if it can be avoided, what my own opinion of the subject is. "Where the inquiry is merely into matters of fact, or where the facts and the law can be clearly discriminated, I should always wish the jury not (?) to leave the stand, without being able to ascertain what the opinion of the court as to those facts may be, that their minds may be left entirely unprejudiced, to weigh the testimony and settle the merits of the case. An important rule in the present trial is, that on a charge for murder or manslaughter, the killing being confessed or proved, the law presumes that the crime as charged in the indictment, has been committed, unless it should appear by the evidence for the pi-osecutor, or be shown by the defendant on trial, that the killing was under such circumstances as entitle him to justiflcation or excuse. On the point of killing, 20 COMMONWEALTH V. SELFEIDGE. there is no doubt in this case. The young man named in the indictment, unquestionahly came to his death by means of the discharge of a pistol by the defendant at the bar. This part is confessed as well as proved. The great question in the case is, whether, according to the facts shown to you on the part of the prosecution, or by the defendant, any reasonable legal justiiication or excuse has been proved. Whether the killing were malicious or not, is no further a subject of inquiry than that if you have evidence of malice, although the crime charged does not imply malice, it may be considered as proving this crime, because it effectually disproves the only defence, which can be set up after a killing is established. From the testimony of several witnesses examined by the Solicitor and Attorney-Generals, it appears that on the day set forth in the indictment, the defendant was in his office a little before one o'clock ; that, in a conversa- tion about his quarrel with the father of deceased, he intimated that he had been informed that an attack upon him was intended, and that he was prepared. That a short time afterwards, he went down from his office, which is in the old State House, crossing State street diagonally, tending towards the United States' Bank. That, as he passed down, his hands were behind him, outside of his coat, without anything in them, is proved by the testimony of Mr. Brooks, who saw him pass down, and by that of young Mr. Erving, who saw him, when the deceased approached, put his right hand in his pocket and take out his pistol, while his left arm was raised to protect his head from an impending blow. The manner of his going down upon 'Change, the weapon which he had with him, the previous intimation of an attack, which he seems to have received from Mr. Cabot or Mr Walsh, and the errand upon which he went down, as stated by Mr. Ingraham, are all circumstances worthy of your deliberate attention. Passing down State street as before described, several witnesses testify that the deceased, who was standing with a cane in his hand,. SUMMING UP THE TESTIMONY. 21 near the comer of the Suffolk Buildings, having his eye upon the defendant, shifted his cane into his right hand, stepped quick from the sidewalk on to the pavement, advanced upon the defendant with his arm uplifted; that the defendant turned, stepped one foot back, and that a blow fell upon the head of the defendant, and the pistol was discharged at the deceased, at one and the same instant. Several blows were afterwards given and attempted to be parried by the defendant, who threw his pistol at the deceased, seized upon his cane, which was wrested from hini by the deceased, who, becoming ex- hausted, fell down, and in a few minutes, expired. This is the general course of the testimony. The scene was a shocking one, and all the witnesses state to you that they were exceedingly agitated. This will account for the relation given by Mr. Lane, and one other witness, I believe, Mr. Howe, who state the facts so differently from all the other witnesses produced by the Q-overn- ment, as well as by defend^t, that, however honest we may think them, it is impossible not to suppose they are mistaken. Indeed, the Attorney-General has wisely and candidly laid their testimony, so far as it differs from that of the other witnesses, out of the case. There is one witness, Mr. Glover, who states the trans- action somewhat differently from the other witnesses. He says that, having expected to see a quarrel upon Exchange, in consequence of the publication against the deceased's father, in the morning, he went there for the express purpose of seeing what should pass; that he saw Mr. Selfridge coming down the street; saw young Austin advance upon him ; that he had a full view of both parties ; was within fifteen feet of them ; that he saw a blow fall upon the head of Selfridge with violence, the arm of the deceased raised to give a second blow, which fell the instant the pistol was discharged. This is tjie only witness who swears to a blow before the dis charge of the pistol ; but he swears positively, and says he has a clfear, distinct recollection of the fact; his character is left without impeachment. If you consider 22 COMMONWEALTH V. SELFELDGE. it important to ascertain whether a blow was or was not actually given before the pistol was fired, you will in- quire whether there are any circumstances proved by other witnesses which may corroborate or weaken the testimony of Mr. Grlover. On this point, you will attend to the testimony of Mr. Wiggin, who swears that he heard a blow, as if on the clothes of some person, that he turned and saw the deceased's arm uplifted, and another blow and the discharge of the pistol were together. You will consider the testimony of Young Erving, who swears that the left arm of the defendant was over his forehead, as though defending himself from^ blows, when he saw the blow fall. You will consider that all the witnesses but Glover state that the blow which they saw, and thought the first, was a long blow , across the head ; that the blow which Glover says was the first, was a, direct perpendicular blow, and that he then saw the second blow, which was a cross one, as testified by the other witnesses. If you find a difficulty in set- tling the fact of the priority of the blow, take this for your rule, that a witness who swears positively to the existence of a fact, if of good character, and of sufficient intelligence, may be believed, although twenty witnesses of equally good character, swear that they were present and did not see the same fact. The confusion and horror of the scene was such, that it was easy for the -best and most intelligent of men to be mistaken as to the order of blows, which followed each other in such rapid succes- sion that the eye could scarcely discern an interval. You will, therefore, compare the testimony of the wit- nesses where it appears to vary, attending to their differ- ent situations, power of seeing, and capacity of recollect- ing and relating, and settle this fact according to your best judgment, never believing a witness who swears positively to be perjured, unless j-ou are irresistibly driven to such a conclusion. Upon this point, you will also attend to the testimony of Mr. Pales and of Mr. Osborne, and Mr. Perkins Mchols, touching the testi- mony of Mr. Fales. The counsel for the defendant seem,. RETREATING TO THE WALL. 2B however, to deem it of little importance to ascertain whether the blow was given before the pistol was dis- charged or not, as there is evidence from all the wit- nesses that an assault, at least, was made by the deceased before the pistol was fired. I think differently from them on this point. When the defence is, that the assault was so violent and fierce that the defendant could not retreat, but was obliged to kill the deceased to save himself, it surely is of importance to ascertain whether the violent blow he received on his forehead, which, at the same time that it could put him off his guard, would satisfy him of the design of the assailant, was struck before he fired or not. I doubt whether self- defence could in any case be set up where the killing happened in consequence of an assault only, unless the assault be made with a weapon which, if used at all, would probably produce death. When a weapon of another sort is used, it seems to me that the effect pro- duced is the best evidence of the power and intention of the assailant to do that degree of bodily harm, which would alone authorize the taking of life on the principles of self-defence. But whether the firing of the pistol was before or after a blow struck by the deceased, there is another point of more importance for you to settle, and about which you must make up your minds from all the circumstances proved in the case : such as the rapidity and violence of the attack, the nature of the weapon with which it was made, the place where the catastrophe happened, the muscular debility or vigor of the defend- ant, and his power to resist or fly. The point I mean is, whether he could probably have saved himself from death or enormous bodily harm, by retreating to tlie wall, or throwing himself into the arms of friends who would protect him. This is the real stress of the case. If you believe, under all the circumstances, that the defendant could have escaped his adversary's vengeance at the time of the attack, without killing Mm, the defence set up has failed, and the defendant must be convicted. If you believe his only resort for safety was 24 COMMONWEALTH V. SELFEIDGE. to take the life of his antagonist, he mnsi; be acquitted, unless his conduct had been such prior to the attack, upon him, as will deprive him of the privilege of setting up a defence of this nature. It has, however, been suggested by the defendant's counsel, that even if his life had not been in danger, or no great bodily harm, but only dis- grace was intended by the deceased, there are certain principles of honor and natural right by which the kill- ing may be justified. These are principles which you as jurors, and I as a judge, cannot recognize. The laws which we are sworn to administer are not founded upon them. Let those who choose such principles for their guidance, erect a court for the trial of points and principles of honor ; but let the courts of law adhere to those principles which are laid down in the books, and whose wisdom ages of experience have sanctioned. I therefore declare it to you as the law of the land, that unless the defend- ant has satisfactorily proved to you, that no means of saving his life or his person from the great bodily harm which was apparently intended by the deceased against him, except killing his adversary, were in his power — he has been guilty of manslaughter, notwithstanding you may believe with the Grand Jury who found the bill, that the case does not present the least evidence of malice or premeditated design in the defendant to kiU the deceased or any other person. " I ought to rest here ; for, although I have stated to you that where a man's person is fiercely and violently assaulted, under circumstances which j eopardize his life or important members, he may protect himself by killing his adversary ; yet he may from the existence of other circumstances, proved against him, forfeit his right to a defence which the laws of G-od and man would other- wise have given him. If a man, for the purpose of bringing another into a quarrel, provoke him so that an afiray is commenced, and the person causing the quarrel is over-matched, and to save himself from ap- parent danger, kill his adversary, he would be guilty of manslaughter, if not of murder ; because the necessity, EFFECT OF LIBELLOVS PUBLICATION. 25 being of his own creating, sliall not operate in his excuse. " You are, therefore, to inquire whether this assault upon the defendant by the deceased, was or was not by the procurement of the defendant. If it was, ' he cannot avail himself of the defence now set up by him. And here you are called upon to distinguish pretty nicely, and to attend to a part of the case, which I thought was going too far back to have an influence upon this trial, but which the urgency of the Attorney- Oeneral and the consent of the defendant's counsel, finally induced me to admit. You have heard the whole story of the misunderstanding between the de- fendant and the father of the deceased. Who was originally in the wrong, it is not for me to say ; but I feel constrained to say, that whatever provocation the defendant may have conceived to have been given him, and however great the injury which the deceased's father may have done him, he certainly proceeded a step too far in making the publication which came out on the morning of this unhappy disaster. To call a man a coward, liar and scoundrel in the public news- papers, and to call upon other printers to publish the aame, is not justifiable under any circumstances what- ever. Such a publication is libellous in its very nature, as it necessarily excites to revenge and ill blood. Indeed, I believe, a court of honor, if such existed to s,ettle disputes of this nature, would not justify such a proclamation as the one above aUuded to. A posting upon 'Change, or in some public place, we have heard of, but I never before saw such a violent denunciation as this in a public newspaper. Neither can I refrain from censuring the managers of the paper who admitted such a publication, for so readily receiving and publish- ing, what in its very nature would tend to disturb the public peace. But, gentlemen, it is one thing for a man to have done wrong, and another thing for that wrong tp be of a nature to justify an attack upon his person. If personal wrong done by the father of the deceased to the defendant, would not justify him in publishing 26 COMMONWEALTH V. SELFEIDGE. a libel; neither would the libel have justified the deceased, or his father, in attacking the person of the author of the libel. . No man can take vengeance into his own hands ; he can use violence only in defence of his person. No words, however aggravating, no libel, how- ever scandalous, will authorize the suffering party to revenge himself by blows. If, therefore, Mr. Austin himself, the object of the newspaper publication, could not have been justified had he attacked the defendant, and beat him vsdth a cane ; still less would the circum- stances have justified tlie unfortunate young man, who fell a victim to this most unhappy and ever-to-be- lamented dispute. For, however a young and ardent son may find advocates in every generous breast, for espousing his father's quarrel, from motives of filial affection and just family pride ; yet, the same laws which govern the other parts of the case, would have pronounced him guilty, had he lived to answer for the attack, which was the cause of his death. "The law allows a son to aid his father if beaten, and to protect him from a threatened felony, or personal mischief, and in like cases a father may assist a son, and should a killing in either case take place, it is excusable; but neither one nor the other can justify resorting to force to avenge an injury, consisting in words, however opprobrious, or wi-itings, however de- famatory. You will therefore, consider, whether these facts, antecedent to the meeting on 'Change, can have much operation in the cause, let which party will, be found by you to be in the wrong. " Upon the whole, therefore, of these circumstances, should you be of opinion that the defendant, in order to avenge himself upon the father of the deceased, prepared himself with the deadly weapon which he afterwards used, went upon 'Change with a view to meet his adversary and expose himself to an attack, in order that he might take advantage of and kill him, intending to resort to no other means of defence in case he should be overpowered, there is no doubt the killing PEEJUDICES — POLITICAL BIAS, ETC. 27 amounted to manslaughter. But, if from the evidence in the case, you should believe that the defendant had no other view but to defend his life and person from an attack which he expected, without knowing from ^hom it was to come ; that he did not purposely throw himself in the way of the attack, but was merely pursuing his lawful vocations, and that in fact he could not have saved himself otherwise than by the death of the assailant, then the killing was excusable, provided the circumstances of the attack would justify a reasonable apprehension of the harm which he would thus have a right to prevent. Of all this you are to judge and determine, having regard to the testimony of the several witnesses who have given evidence to these several points in the defence. The principles which I have thus stated are recognized by all the books which have been read, and are founded in the natural and civil rights, and in the social duties of man. • " The last subject on which I shall trouble you, is the address which has been so forcibly urged upon your minds by the counsel on one side, and as zealously and ably commented upon by the Attorney-General on the other, touching the necessity of excluding all prejudices and prepossessions relative to this cause. I do not apprehend these observations were in any degree neces- sary, as I cannot bring my mind to fear that the verdict of twelve upright, intelligent jurors, selected by lot from the mass of their fellow-citizens, wiU be founded on anything beside the law and evidence applicable to the case. Every person of this numerous assembly, let his own opinion of the merits of the cause be as it may, must be satisfied of the fairness, regularity and im- partiality of the trial, up to the present period ; and sure I am, that nothing which is left to be done by you will impair the general character of the trial. If you dis- charge your duty conscientiously, as I have no doubt you will, whether your verdict be popular or unpopular, you may defy the censure, as I know you would dis- regard the applause, of the surrounding multitude. 28 COMMONWEALTH V. SELFEIDGE. " Least of all do I apprehend that party spirit will come in to influence your opinions. However the storms of party rage may beat without these walls, I do not believe the time has yet come when they shall find their way wttTiin. Nor do I believe that a general apprehen- sion is entertained that a man accused of a crime is to be saved or destroyed according to the political notions he entertains. If ever the time should come that a gen- eral belief shg,ll be entertained that trials are conducted and judgments given, with a view to the political char- acter of parties interested, vain and ineffectual will be the forms of your constitution, and useless the attempts to administer the laws. A general resistance would be the consequence, and if tiiis belief should be founded in fact and in truth, that resistance would, in my apprehen- sion, be perfectly justifiable ; for no people would be bound to respect the/orms of justice when the substance ;shall have vanished; when the fountains of justice shall be manifestly corrupt, and the forms and parade adhered to for the purpose of imposing on the citizens, and sub- jecting them to oppression under the garb of law. " You, gentlemen, will not be the first to violate the solemn oath you have taken, and seek for a conviction or an acquittal of the defendant upon any other princi- ples than those which that oath has sanctioned. And as I trust that in performing my duty, I have conscien- tiously regarded that oath which obliges me ' faithfully and impartially to administer the laws according to my best skill and judgment,' so that in discharging yours, you wiU have due regard to that which imposes upon you the obligation, well and truly to try the cause between the Commonwealth and the defendant, accord- ing to law and the evidence which has been given you." Verdict, not guilty. Note.— Mr. Wharton in his works, on criminal laW has devoted much space to this case. See his Law of Homicide, pp. 170-175, and 417^60, and his Criminal Law, vol. 2, 5th edition, note to \ 1,026. He has criticized it severely, and even intimated that it was decided on political and not on legal grounds. However justly the profession may have been, as Mr. NOTE. — RETEEATING TO THE WALL. 29 Wharton states they were, surprised at the result of the trial, we are not aware of any case in which the law of the case, either as expounded by the Chief Justice to the Grand Jury or as expounded by Mr. Justice Parker to the Traverse Jury, has met with adverse judicial criticism. On the con- trary, the principles enunciated in the charge of Mr. Justice Parker have been approved and followed in numerous cases. See, for instance, Logue's case, ;jos<; Field's case, ^osi!; Shorter's case, ^os;!,- Neeley's case, ;jos<, and Sloan's case, post. In the earliest Michigan case on this subject, the three general statements of doctrine laid down by Mr. Justice Parker in his charge, [supra, pp. 17, 18,] have been explicitly approved and adopted. See People v. John Doe, post. One of the objections made by Mr. Wharton to this case, seems to consist in the manner in which Mr. Justice Parker expounded the duty of retreating, which the law puts upon the person assailed before taking life. Mr. Wharton says: "There may be cases sometimes occurring, though very rare and of dangerous application, where a man in case of a personal conflict, may kill a man without retreating to the waU. The assault may have been so fierce as not to allow him to yield a step, without manifest danger of his life or enormous bodily harm ; and then, in his defence, if there be no other way of saving his own life, he may kill his assailant instantly. The distinction between this kind of homicide and manslaughter is, that here the slayer could not otherwise escape, although he would ; in manslaughter he would not escape, if he could. Thus, if A. assault B.' so fiercely that giving back would endanger his life, in such case it is agreed that the party thus attacked need not retreat, in order to bring his case within the rule of necessity in self-defence ; or, if in the assault, B. fall to the ground, whereby lie could not fly, in such case if B. kill A. it is in self-defence upon chance-medley. Such were the principUt laid down in Selfridge's case, which produced in that instance as ihey will in all others where they are presented without the qualifications attached to them by the common law authorities, a verdict which surprised the profession, and tended to lessen the sanctity of human life." Notwithstanding the subse- quent context, we have never been able to understand fully the nature of the qualifications to which Mr. Wharton refers. So far as our reading goes, the only qualifications put upon this branch of the principal case, by subsequent cases, operate rather to extend than to restrict the rule. As a general rule, the question is not minutely analyzed in the cases ; but the tendency is rather to foUow the loose dicta of the text writers. Of these we think there is but one who has expounded in a philosophical manner this branch of the law of self-defence. We aUude to Mr. Bishop, whose peculiar happiness it has been to have his reasoning and conclusions adopted by courts of eminent character in several instances. See, for instance, Stoffer's case, and Pond's case, post. Advancing into the reasons of the law, rather than seeking to collect the conclusions of adjudged cases upon this point, this eminent writer shows us that the true distinc- tion which the law makes between the right to kill without retreating, and the duty, or rather necessity, which the law generally puts upon the assailed, of retreating before taking life, rests upon' the question whether the assault is manifestly /eZomoMs in its character, or whether a trespass less than a felony is intended. For at common law all felony was punisho'l 30 COMMONWEALTH V. SELFELDGE. with death ; and therefore, it came to be a conclusion of law that the killing of a felon, in necessarily resisting the commission of a felony is justifiable homicide. See 1 Bish. Crim. Law, 5th ed., ?849 et seq; Oliver's case., post; Pond's case, post. Perhaps the rule, as stated by Sir Michael Foster, has never been questioned, while it has been quoted and followed in innumer- able instances, and has passed into statute in several of the United States. It is : " Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted, may repel force by force ; and even his servant attendant upon him, or any other jDcrson present may interpose for preventing mischief; and if death ensueth, the party so interposing wiU be justified. In this case, nature and social duty co-operate." Post. Or. Law, -274. The same principle is thus stated by Mr. East— a formula which has been more frequently adopted by American judges than any other : "A man may repel force by force in the defence of his person, hab- itation or property, against one who manifestly intends or endeavors, hy violence or surprise, to commit a known felony, such as murder, rape, rob- bery, arson, burglary, and the like, upon either. In these cases, he is not obliged to retreat, but may pursue his adversary until he has secured him- self from all danger; and, if he kill liim in so doing, it is called justifiable self-defence." 1 East P. C. 271. This principle is limited, on the one hand, to felonies of a forcible and violent character. 1 East P. C. 273 : Pond's (ia.se, post; 4 Bla. Com. 184, Moore's case, post; and see Gray v. Coombs,^os!!. And on the other hand, it is extended so as to justify killing in the suppression of riots ; which, although misdemeanors at common law, yet bring in their train numerous felonies. Pond's case, post ; Com. V. Daley, 4 Penna. Law Jour. 150 ; S. C, Wliart. Horn. 475 ; 4 Bla. Com. 179. And again, it is so far limited by the rule of necessity, upon which the right to kill in defence of person, habitation or property is universally placed, that a person may not lawfully kill another who is attempting a felony, if, by arresting or disabling him, or otherwise, he can prevent the threatened felony. Pond's case, post; Rex v. Scully, 1 Car. & P. 319. Nor wilfhe be justified in slaying the felon after he has desisted from the attempt and taken to filght. Rutherford's case, post. It is seen, then, that according to the universally received doctrine, laid down by Mr. East, as above quoted, homicide without retreating is justi- fied when necessary in resisting forcible felonies ; and this without any distinction whether the felony were attempted against the person, or the habitation, or other property ; but in each case, the killing must be neces- sary to prevent the felony. It is right here that the principal difficulty arises. Mr. Bishop jvistly intimates that upon principle, it can make no dif- ference whether the felony be attempted against another person or against myself. In either case, the law imposes upon me the active duty of resist- ing the commission of the felony; and if the felony be attempted upon another, and I fail to resist, I am guilty of a misdemeanor, called mis- prision of felony ; and, if the felony; be attempted against myself and I fail to resist, I am technically guilty of the same offence, though not amenable to punishment. 1 Bish. Crim. Law, 5th ed., ? 851. But where the attempted felony consists in an assault upon my person, so that it becomes a simple question of personal defence, not only the law as laid down by Parker, J., in the principal case, but also as laid down in the text books and most NOTE. — EETBEATING TO THE WALL. 31 of the adjudicated cases, requires me to retreat, if I can, before killing tlie assailant, without apparently making any reference to the distinction whether the assault be felonious or non-felonious in its character. See, for instance, Drum's case, post, where it is said without reference to the charac- ter of the assault to be repelled, that the law requires that one man must retreat before another shaU die ; also Benham's case, post. This is clearly the doctrine in cases of non-felonious assaults, and in cases of mutual broils and combats, where the law supposes both parties in some measure culpable. 4 Bla. Com. 184 ; Foster Cr. Law, 276 ; 1- Bish. Cr. Law, 5th ed., ?? 869, 870 ; Riley's case, post, where the rule is clearly stated; Robertson's case, post; Well's case, post; Meredith's case, post; Sullivan's case, post. But if applied to all cases, where a person going li his lawfid way is assaulted, without reference to the question whether a felony, or a mere trespass on the person, is manifestly intended, it would require a man to flee before another who murderously assails him, or a traveller to flee before a highway robber, or a woman to flee before her would-be ravisher, before resorting to the extreme measure of defence. It is safe to say that the law puts upon a person no such necessity. The old writers in speaking of justifiable homicide — that is, hom- icide committed in the resistance of felonies — make no mention of the duty of retreating. Foster, 273, 4 Bla. Com. 180, 181, 182; 1 Hale, P. C, 488; 1 East, P. C, 271. Nor do the cases which discuss this question, so far as we know. See Oliver's case, ^os< ; Harris' case, post; Rutherford's case, post; Roane's case, post, and Payne's case. ■jost. Except to state •that retreat in such cases is not necessary. Pond's case, post. And it is safe to say, that if an assault is manifestly felonious — or, to repeat an expression above quoted, if a "known felony" is attempted — the person assailed, being himself innocent, may ordinarily kill the assailant without retreating. Accordingly it is stated by Mr. Bishop, that where an attack is made with murderous intent, the person attacked is under no obligation to flee, but may stand his ground, and, if need be, kill his adversary. 1 Bish. Cr. Law, 5th ed., g 850. And this is clearly the law. See James D. Ken- nedy's case, post. Whether this murderous intent exists, wiU more frequently than other- wise be determined by the character of the weapon with which the assault is made. Accordingly, we find it stated in several cases in Iowa, that a person is not obliged to flee from another who assails him with a deadly weapon. Tweedy's case, post; Thompson's case, post, and John Ken- nedy's ciise,post. We shall see fiu-ther on, in Subdivision D., of tliis Part of the present volume, that murderous threats previously made and commu- nicated to the assailed, and previous attempts at assassination or other hostile conduct, as well as the character of the assailant for violence, ;are elements which the assailed is entitled to consider in determining whether the assault is felonious in its character or not. We think, then, that the proposition stated by Mr. Justice Paeebh, [supra, pp. 17-18,] to which we have been chiefly aUuding in this note, namely, that " a man who, in the lawful pursuit of his business, is attacked by another under circumstances which denote an intention to take away his life, or do him some enormous bodily harm, may lawfully kill the assailant, provided he use all the means in his power, otherwise, to sa,ve his own 32 COMMONWEALTH V. SELrKIDGE. life or prevent the intended harm— such as retreating as far as he can, or disahliug his adversary without killing him— if it be in his power,"— Is Inac- curate, and that the error consists, not as Mr. Wharton supposes, in extending the right of defence beyond the limits recognized by the com- mon law authorities, but In restricting It to a less compass than thp|p lim- its, so as to reqiure him who is murderously assailed, to retreat from the felonious assailant. In all cases where he safely can. The error consists in confounding the doctrine applicable to cases of self-defence in mutual com- bat, which Sir Michael Foster calls self-defence culpable, with defence against the commission of felonies, which the same writer calls justifiable self-defence. If a man who Is murderously assailed is obliged In all cases to retreat before killing, there may be no limit to his retreating so long as his enemy shall pursue his murderous Intent. He may be obliged to hide away from his adversary continually, and carry on his business stealthily by night, as did the unfortunate defendant In Monroe's case, po st. We repeat our conviction that the law does not thus leave it to tne pleasure of a felon to determine whether an Innocent man may pursue his just way, or whether he shall be obliged to fly. The rule, then, which is laid down in Sulllvan'.s case, post, and repeated in Shippey's case, post, that the right to defend one's self does not arise until the defendant has at least attempted to avoid the necessity of that defence, must not be understood as putting upon an innocent person who is murderously assailed, the necessity of retreating before he can kill his assailant ; but must be held to apply to cases where the assailed is himself In some fault, or where the assault is not. In its character,manifestly felonious. Se^ Bohannan's case, post, where a Judgment was reversed, because the law was thus charged, in a case where the slain had attempted to assassinate the defendant, and Was seeldng his life at the time the killing took place. In one case of non-felonious assault, we find it distinctly laid down, that the assailed is not obliged in such cases to retreat before killing. See Isaac's case, post, where the charge containing this proposition was approved by the Supreme Court. But Isaac's case rests upon a special statute, and hence need not be noticed fiu'ther. Kor does the law on the subject of retreating, as stated by Mr. Justice Pakkeb, accord with the rule on the same subject, as laid down by the Chief Justice in his charge to the Grand Jury in the principal case. He said : "A man may repel force by force in defence of his person against any one who manifestly intends or endeavors, by violence or surprise, felord- ously to kill him. And he is not obliged to retreat, but may pursue, until he has secured himself from all danger ; and if he kill him in so doing, it is justifiable homicide.'''' Place this proposition side by side with that stated by Mr. Justice Parker, and it is seen at a glance that the two can- not stand together. According to the latter, he who is murderously assailed must retreat, if he can, before killing,' while according to the for- mer, he may stand his ground and repel force by force, even unto the death. And we have seen that the proposition, as stated by the Chief Jus- tice, Is clearly the law, and has been, as Blaokstone states it, since the time of Braoton. 4 Bla. Com. 180. It is believed, though not stated with entire confidence, that an exami- nation of the American cases ^vill show that the duty of retreating before NOTE — EETEBATLBTG TO THE WALL. '63 killing, or of doing all in the defendant's power to avoid the necessity of kill- ing, has not been laid down in any case in the unquaUfled manner in which Mr. Justice Parker states it, except in cases of non-felonious assault, like the principal case and Beuham's case, post; or in cases of mutual combat, like Drum's case, post ; or in cases where the defendant was clearly in th,e wrong, like SuUivau's case, post, John Doe's case, post, and Shippey's case, post; or where the quality of the transaction is doubtful, as ip Cole's case. 4 Park., C. C. 35. And see Copeland's case, post— 2, case very much like the principal case in some of its facts , where the question of retreating was not considered at all. To recapitulate, though at the expense of brevity : 1. The obligation to retreat does not arise at all in ordinary cases ; but the assailed may stand his ground and repel force by force, using no more force than is necessary to accomplish his defence. Gallagher's case, post; Drum's case, post ; State v. Wood, 1 Bay, 351. 2. It is only when the assault is so fierce, or when the combat waxes so hot, that a choice of one of three things is forced upon the person defend- ing — either to retreat himself, or to suffer death or great bodily harm, or to kill his assailant, — that the question as to the duty of retreating arises at all. In other words, this question does not arise until it becomes a question whether one man shaU retreat or another man shall die. Drum's case, post; RUey's case, j)os<; Benham's case, ^os<. 3. In such cases — a. If the assault is manifestly felonious — ^if it involves a known felony, such as rape, robbery or murder, the assailed is not obliged to retreat, but may kill the assailant instantly, if the felony cannot be prevented by other means than retreating. Pond's case,^os<; James D. Kennedy's , case, post; 1 Bish. Cr. L., p49 et seq., 5th ed.; Foster, 274; East, 271; Tweedy 's case, post; Thompson's case, post; John Kennedy's case, post. b. But, if the assault is non-felonious in its character — as If only a moderate battery or trespass upon person or property is intended; or, if it be a mutual combat, then the party defending must " retreat to the wall," if he safely can, before the law will excuse killing. Drum's case, post; Riley's case, post; Benham's cst^e, post. 4. A man being in his habitation is "at the wall" and "in his cas- tle," and is not obliged to retreat under any circumstances. Pond's case, post; Carroll's case, post. But even there, he may not needlessly take life in his defence. Greschia's case, post; Meade's case, post; Rec- tor's case, post; Carroll's case, post; Decklott's case, in note to John Kennedy's case, post. Upon the facts of Selfridge's case, however, there can be no doubt that nothing more than a severe chastisement was intended, or was probable to the comprehension of a reasonable man. There is no ground what- ever for supposing that Selfridge was placed in that extreme peril, which rendered it necessary to kill without retreating; or, at least, without calling upon the bystanders for aid. Hence, Mr. Wharton was not entirely in error in referring it to that class of cases, known as cases of "per onal conflict," which rest upon the same principles as cases of non- 34 COMMONWEALTH V. SELFKIDGE. felonious assault ; so far as the duty of retreating is concerned ; nor was the charge of Mr. Justice Parkek on the question of "retreating to the wall" liable to objection, so far as it applied to the facts of this case ; but only so far as it attempts to lay downa general rule, applicable to all cases. It was, indeed, a political case, in some aspects ; for it is said to have presented the curious spectacle of the two great political parties arrayed against each other over the result of a single trial. Cunningham's Correspondence, 70 ; AVhart. Hom. 174. In the Law Reporter, vol. 4, p. 89, an account of this case is given under the head of "Remarkable Trials," from which the statement of the facts, as we have given tliem, is taken. In this account it is said that the trial "was attended with greater excitement than any other which ever occurred in this country. It is almost impossible for the present generation to comprehend the deep political feeling of that daj' — [this was in 1841 — we have learned it since], — or to appreciate the bit> terness and acrimony which existed between the two great political parties. ************* Accordingly the newspaper press in all parts of the country was filled with comments upon the matter, and little regard was often paid to truth or decency in these ebullitions of political partisans." Notwithstanding that such was the character of the case, it is to be observed that it is stated by Bronson, J., in Shorter's case, that this was oiie of the cases which the revisers of the New York Statutes pro- fessed to have followed in drafting their statute on justifiable homicide — a statute which has been followed in the Codes of Wisconsin, Min- nesota, Missouri, Kansas, and perhaps other States. UNITED STATES v. WILTBERGER. [3 WASH. c. c. 515.] Circuit Court of the United States, Pennsyl'oania, October Term, 1819. BusHBOD Washington, Associate Justice Sup. Court. Richard Peters, District Judge. Defence against NON-PBLONioirs assault— Defence by master of vessel against mutinous assault— imminence of the danger — Jury judges of the necessity of killing. 1. Manslaughter defined. 2. A man may oppose force to force in defence of his person, his fam- ily, or property, against one who manifestly endeavors, by surprise or vio- lence, to commit a felony, as murder, robbery, or the like. XAcc. Tiiomp- SYLLABUS. 35 son's case, post ,- John Kennedy's case, post; Pond's oase, post; Selfridge's <;ase, and note, ante ; and many others.] 3. But the intent must be to commit a /eiony. If it be only to commit a trespass, as to beat the party, it will not justify 'the killing ef the aggressor. No words, no gestures, however insulting and irritating— not even an assault, will afford such justification ; although it may be suificient to reduce the offence from murder to manslaughter. [Ace. John Ken- nedy's case, post, and notes.] 4. The intent to commit a felony must also be apparent ; which will be sufficient, although it should afterwards turn out that the real intention was less criminal, or was even innocent. This apparent intent is to be col- lected from the attending circumstances, such as the manner of the assault, the nature of the weapons used, and the like. [Ace. Selfridge's case, ante; Neeley's case, post-^ Shorter's case, post; Logue's case, post; Meredith's case, post; Lamb's case, (Supreme Court and Court of Appeals,) post; Dyson's case, post; Pond's case, post; Cotton's case, post; Scott's case, post; Schnier's case, post; Adam's case, _posi; Maher's oase, ^os<; and others.] 5. To produce this justification, it must moreover appear that the danger was imminent, and the species of resistance used, necessary to avert it. [See, as to the imminence of the danger, Wesley's oase, post; Dyson's oase, post; Cotton's case, post; Lander's oase, post, and Evan's case, post. It is likewise sufficient if the danger is apparently imminent. Sullivan's case, post ; Shorter's case, post, and note.] 6. Whether the apparent danger to the defendant was sufficient to jus- tify the use of the weapon resorted to, is a question of fact for the jury. [Ace. Selfridge's case, ante; Harris' case, ^os< ; McLeod's oase, pos< ; Cot- ton's case, post ; Oliver's case, post ; and other cases.] 7. The fact that a combination had been formed amongst the seamen on board a vessel, to resist any attempt on the part of the commander to strike or correct them, will not justify the killing of one of such seamen by the commander, unless it be made to appear that the fact of such combination had been communicated to the commander at the time of the kiUing, and that at the time of the killing, mutiny and resistance was intended and imminent. 8. It seems that the commander of a vessel, when assaulted by one of his men on board his vessel, is not obliged to retreat ; and that if, in resisting Kuch assault, he kill his assailant, he will be entitled to more indulgence than would a person on land, and that slighter evidence wiU justify the killing ; but nevertheless, it must be shown that a necessity for the killing existed, to prevent an apparent intention of committing a felony. This was an indictment for the manslaugMer of one Peters, a mariner, on board the ship Benjamin Rush, committed by the defendant, the master of said ship. The offence was charged to have been committed on board this vessel, an American bottom, on the high seas. 36 UNITED STATES V. WILTBEKGEE. An objection was made to the jurisdiction; the vessel at the time of the homicide, lying at anchor in a river in China. The material parts of the evidence relating to the offence as charged, are stated in the instructions to the jury. , Charles J. Ingersoll, District Attorney, for the prose- cution; J. Sergeant and Joseph R. Ingersoll, for the defendant. ******** Upon the merits, it was insisted, by the counsel for the defendant, 1st., that the blows inflicted upon the deceased by the defendant, were not the cause of his death ; and that the evidence clearly established that it was pro- duced by a mortification of the stomach, caused by the improper use of an ardent spirit, distilled in China, and known by the name of Samchoo. 2d. That, if the death was caused by the blows, still the homicide was justifiable, on account of the menacing attitude of the deceased, and the combination which had been formed amongst the crew to resist the master, in case he should strike any one of them. "Washington, J., charged the jury : The evidence may be arranged under two heads — 1st, that which relates to the death of Peters ; and 2d, to the cause of it. 1. Coles, the witness most relied upon by the de- fendant's counsel, to justify his conduct upon this unfortunate occasion, has testified that the deceased, being aloft, was called down by the defendant, in con- sequence of some expressions of discontent at being sent up, which were not distinctly heard by the de- fendant. As he went aft to the quarter deck, where the defendant was standing, he pulled off his jacket, rolled up the sleeves of his shirt, and approached the defendant with folded arms. Being asked by the defendant what he was grumbling at, he complained of being unwell, and was ordered by the defendant to go below, accompanied with an observation, that he knew that no person on STATEMENT 01" THE EACT8. 37 l)oard, in that situation, was required to do duty. The defendant then turned his back upon Peters, and walked to and fro on the quarter deck. Peters still continued on the deck ; altered the position of his arms, and, with his fists clenched, and in a menacing attitude, imperti- nently addressed the defendant, observing, "you call me down, with intention, I suppose, to flog me ; I wish to know if you mean to do it or not?" To which the de- fendant answered, "if you want flogging, I will flog you;" and immediately struck the deceased with his fist. About this time, Clark, another seaman,, came abaft the windlass, and then Peters sprang toward the defendant ; but whether he struck the defendant or not, the witness could not testify. The defendant then picked up a stave, (which all the witnesses say was of white oak and large,) and struck Peters with it on the head. Immediately after this, a conflict took place between the defendant and Clark, the latter having ' grasped the right arm of the defendant with one of his hands, and his collar with the other. Clark was ordered to go forward, which he did, but immediately afterwards returned ; and the order being repeated, he refused, with insolent language, to do so; which was followed by a blow, inflicted on him by the defendant with the stave, which Clark returned with another stave, and prostrated the defendant ; Clarke then went forward, and here the affray ended. As to the throwing off his jacket, and roUing up his sleeves, by Peters, Coles is supported by two other witnesses. Some evidence was given by another witness, as to the menacing attitude of Peters, after the de- fendant told him to go below ; and two -other witnesses have testified, that the defendant struck Peters with his fist, not in the first instance, but after he had been stricken with the stave, and as he fell. The advance of Clark at the time mentioned by Coles — the springing of Peters towards the defendant, and the seizing of the defendant by Clark, are facts unsupported by any other witness, and are in effect, contradicted by them. Coles 38 UNITED STATES V. WILTUEEGEE. saw but one blow with the stave. The other witnesses speak of two, and three ; and all agree that from the time that Peters was knocked down, he continued speechless and senseless till his death, which happened about eighteen hours afterwards. Upon this evidence, the iirst question is, whether this homicide, (if attributa- ble to the defendant,) amounted to the crime of manslaughter ? Manslaughter is the unlawful killing of another, without malice, either express or implied. It differs from murder in the important particular of the absence of malice ; as where it happens in a sudden heat, when passion has obtained the dominion over reason and the gentler feelings of the heart. From a respect to human, infirmities, our law, in such a case, mitigates the ofiience of murder into manslaughter, as well as the punishment.. StiU, however, this offence is unlawful; the law not permitting any man to avenge his own wrongs, unless in a case of great emergency, by the death of the supposed offender. . The present case is one which the defendant's, counsel have contended is justified by law; — justified,, they say, upon the ground of self-defence. As to this, the law is, that a man may oppose force to force, in defence of his person, his family, or property, against one who manifestly endeavors, by surprise or violence, to commit a felony, as murder, robbery, or the like. In this definition of justifiable homicide, the follow- ing particulars are to be attended to. The intent must be to commit a felony. If it be only to commit a tres- pass, as tb beat the party, it will not justify the killing of the aggressor. No words, no gestures, however in- sulting and irritating, not even an assault, will afford such justification, although it may be sufiicient to reduce the offence from murder to manslaughter. In the next place, the intent to commit a felony must be apparent ; ^ which will be sufficient, although it should afterwards turn out that the real intention was less criminal, or was MUTINOUS COMBINATIONS. 3j even innocent. This apparent intent is to be collected from the attending circumstances, such as the manner of the assault, the nature of the weapons used, and the like. And, lastly, to produce this justification, it must -appear that the danger was imminent, and the species of resistance used, necessary to avert it. Nailor's case* is a strong exemplification of the law, as here stated. The homicide was decided to be man- slaughter, and not murder; because it took place in a sudden affray, and in the heat of passion. But it was not considered justifiable, because the apparent intent of the deed, was merely to rescue the father, and by no means to affect the life of the deceased ; and there was no such danger as could render the use of the weapon which caused the death, necessary. The case of the adulterer, killed by the offended hus- band, at the moment when he discovers his dishonor, is another, and a very strong example of the rule ; although no provocation can be more difiicult to bear with, yet the law does not reduce the offence below that of manslaughter. It is for you, gentlemen of the jury, to say, upon the whole of the evidence given in this case, whether there was any intention in the deed, apparent or otherwise, to take the life of the defendant, or to commit any known felony ; and whether there existed any danger, which rendered it necessary for the defendant to use the weapon which he did. It is contended by the defendant's counsel, that the combination amongst the seamen to resist any attempt of the defendant to strike or to correct them, affords a ground of justification, which distinguishes this from ordinary cases of a simple assault, happening on land. This distinction is inadmissible in the present case, for the following reasons : 1. There is no evidence that this combination, if it was ever formed, was at any time communicated to the defendant. a 1 East P. C, 277. 40 UNITED STATES V. WILTBEKGEE. 2. The circumstances of the moment aflforded no indication that mutiny or resistance of any kind was intended, much less, " that it was imminent " ; as there iifrsis but one seaman on the deck beside Peters, who stppeared to take any part or interest in the affray, and the appearance of that seaman, was subsequent to the termination of the conflict between the defendant and Peters. ^ome indulgence, we admit, may be claimed by the master of a vessel, beyond what the law extends to a person' on shore. He may not be required to retreat, when assaulted by a seaman, so as thereby to indicate fear, and to diminish his authority, so essential to the due subordination of his crew. In like manner, slighter evidence of danger may be admitted in his justification, than in that of a person on land. Still it must be shown, that there was a necessity for what he did, to prevent an apparent intention to commit a felony. Even an officer of justice, who has a warrant commanding Mm to arrest a person, must prove resistance ; and that the act, which occasioned the death of the party to be arrested, was necessary. ******** As to the question of jurisdiction, there will be no necessity for the Court to give an opinion upon it, if you should think that the defendant is not guilty of the offence of manslaughter. Should your opinion be unfavorable to the de- fendant, you will find him guilty, subject to the opinion of the Court upon the facts of the case. The jury found the defendant guilty, subject to the opinion? of the Court, upon a case stated, upon which the question of jurisdiction was carried to the Supreme Court." b See 5 Wheaton, 76, where the question of jurisdiction is decided in favor of the prisoner. SYLLABUS. 41 COPELAND V. THE STATE. [7 Humphreys, 429.] Supreme Court of Tennessee, December Term, 18Jfi. Nathan Gkeen, \ William B. Reese, \ Judges. William B. Tueley, ) Assault with dangeeous weapon — ^Killing assailant justipiablb Manslaughter — Old grudge. 1. In criminal cases, the Court will weish the testimony, and if it pre- ponderates against the verdict, they will grant a new trial. And a convic- tion of murder in the second degree in this case, is reversed upon an ex- amination of the proof adduced. 2. If the prisoner was going her own road in a laudable pursuit, and was assailed in that road with a hickory stick of dangerous character, and thereupon slew her adversary with a knife, this was homicide in self- defence. 3. If the prisoner, upon meeting her adversary unexpectedly, who had intercepted her upon her lawful road, and in her lawful pursuit, accepted the fight, when she might have avoided it by passing on, the provocation heing sudden and unexpected, the law wlU not presume the kUling to have heen upon the ancient grudge, but upon the insult given by stopping her on the way ; and it would be manslaughter. 4. If the deceased was approaching the prisoner's path with the intention to assail the prisoner, and became irresolute and stopped, or abandoned her intention, leaving the prisoner full and unobstructed right and liberty to pass, and prisoner brought on the attack with the design to slay deceased, the killing would be murder in the first or second degree, according to cir- cumstances. That is, if the killing was the result of the old grudge, and a previously premeditated intention, it would be murder in the first degree ; but if it were the result of maUce, suddenly produced by the sight of her «nemy, without premeditation, it would be murder in the second degree. 5. Where the deceased went upon the path of the prisoner, armed with a dangerous club, intending to inflict some severe punishment upon her^ and stopped upon her path and awaited her coming ; and the prisoner kept on her way, determined to resist and protect herself, be the consequences what they might; and the deceased commenced the combat, and the prisoner killed her ; this was not murder in the first or second degree, but was homicide in self-defence, or at most, manslaughter. [Contra, if she might have avoided the danger by retreating. Selfridge's case, ante. ; John Doe's case, j50s<; Benham's case, foat. But, see note to Selfridge's case.] 42 COPELAND V. THE STATE. Mary Copeland was indicted in the Circuit Court of Overton Co,unty, for tlie murder of Kutli Dougherty. The cause came on for trial before Judge 'Caruthers, at the March term, in 1844, and was then submitted to a jury. Defendant was convicted of murder in the second degree, and appealed. The facts are stated at length in the opinion of the Court, and are in brief, as follows : Mary Copeland, upon strong grounds of suspicion, believed that her husband was guilty of illicit inter- course with Ruth Dougherty; she talked about the matter, complained to her neighbors, watched the house where Ruth resided, and threatened to take her life, if the unfaithful conduct of her husband was continued. Ruth was well aware of the conduct, feelings and threats of Mary Copeland, and also made frequent threats of taking the life of the latter. Mary Copeland, on the persuasions of her neighbors, desisted from her threats, and determined to bear the wrong. Ruth was about to leave the county of Overton for Kentucky, and declared she would have revenge. And, on Sunday morning, as Mary Copeland passed the house of Alexander Dougherty on her way to church, Ruth came out, with the apparent intention of insulting and beating her. She carried in her hand a long hickory stick. The testimony as to the commencement of the assault was various, and, in some degree, contradictory ; some of the witnesses testifying that Ruth intercepted Mrs. Copeland in her path, and gave her, first, two severe blows with the stick in the path ; whilst others state, that Ruth halted in her progress, with the apparent intention to abandon her contemplated assault, and that Mary Copeland left the path in which she was, and advanced rapidly upon Ruth, and stabbed her with a knife several times, which stabbing caused her immediate death. These facts were submitted to the jury, under the charge of presiding Judge, which is as follows : CHARGE or THE CXRCUlT JUDGE. 43 1. If the defendant, on seeing the deceased moving out toward her path, advanced to meet her vsdth intent to kill her, or to engage in combat with deadly weapons, and did so engage and kill her, the homicide was murder. It would be no odds upon this hypothesis, which advanced most rapidly, which started first, how deadly was the deceased's intention, which struck first, no matter if' the deceased struck first with a stick which was dangerous to life. K defendant advanced to the rencounter with deadly intentions, she was guilty of murder. So would the other have been. Like duellists, 'either that kills is a murderer; whether it would be murder in the first or second degree, would depend upon the question whether the deadly intent was produced by anger or by reflection. Anger is not presumed without provocation. It is an effect that must be produced by an adequate cause. But if, on seeing her enemy advancing, she became excited, and, from that impulse, determined to meet her in deadly combat, it would be sufficient to extenuate the killing to the second degree of murder. But if, on seeing her, it aroused her slumbering revenge, and she deliberately determined to avail herself of that opportunity to kill her, it would be the first degree of murder. 2. If the defendant advanced to the combat with intent to fight merely, but not with deadly weapons, and thereupon they engaged, and in the heat of the combat, defendant killed the deceased, it was man- slaughter; no matter on this hypothesis about the former malice of either, nor which struck first ; nor how dangerous may have been the assault of the deceased. As she met the danger voluntarily, and of her own fault, she would not be excusable. When persons engage in fight voluntarily, they must do all they can to decline it, before they are excusable in killing. 3. If she was going along her road ignorant of Euth's advance, or if she saw her, not apprehending an assault from her, or even if she did apprehend an assault, yet determined not to fight unless necessary for 44 OOPELAND V. THE STATE. her defence, and Rutli intercepted her, and committed an assault upon her, which endangered her life, or threatened her with great bodily harm, and she thereupon killed in her own defence, it was justifiable homicide, and you must find her not guilty. If she was not really in danger of death or great bodily harm, but, upon reason- able evidence, believed herself so, she might justifiably kill. Turney, Ooodall & OardenMre, for the prisoner; the Attorney- General, for the State. TuELEY, J., delivered the opinion of the Court : This case presents to our consideration, another of those afilicting tragedies, which, unfortunately, are but too common, resulting from the gratification of loose and vicious propensities, regardless of social and moral duty. A husband, forgetful of the sacred obligations of his marriage vow, forgetful of the legal and holy rights of hi^ neighbor, by which the purity of his daughter should have been protected from his lawless passion, has, in an evil hour, brought desolation upon his own house, and death into that of another. A man advanced in life, with a V7ife with whom he had lived, until she had presented him with grandchildren, when it would be reasonable to suppose that the fiery passions which so often lead astray, had been calmed and brought under proper control, has nevertheless, as there is too much reason to believe, corrupted the daughter of his near neighbor, and lived with her in adultery for years. The consequences of this great crime are horrid to think of; they have ended in the death of his paramour, by the hands of his own wife ; and in her conviction of the crime of murder, and a sentence of confinement in the penitentiary of the State for a period of ten years ; a period, very probably, equal to the extent of the remainder of her life. This poor woman, who from all the proof in the record, has obviously been "more sinned against than sinning," and upon whose head this calamity has fallen, a calamity more fearful, if possible OPINION OP THE COURT. 45 in its consequences to her, than that which befell her misguided and unhappy rival, has appealed to this Court as her last resort, for the purpose of ascertaining, whether she cannot be released from it. We do not deem it necessary to disguise, that our sympathies are enlisted in her favor ; and that we have examined this record with the view of ascertaining if there were any legal grounds upon which we could be justified in giving her a new trial, and with an anxious desire that they might be found. But at the same time, we deem it proper to observe, that in coming to the conclusion we have, we are not sensible that our sympa- thies mislead our judgment, or bias our decision. It is true, that in scrutinizing the charge of the Judge, we have been able to find no legal error therein ; yet we cannot entirely divest ourselves of the belief that if he had been a little more particular in applying the legal distinctions, which he has correctly drawn, to the particular facts of the case, the result might have been different. But, be that as it may, there is no error in this, for which we can reverse. The consequence of this is, that if we grant a new trial, it must be upon a careful examination of the proof adduced, and a deliberate conviction, that it is not of a character to justify the verdict which has been returned by the jury. We have said, heretofore, that the rule established by this Court, in relation to granting new trials in civil cases, for defects of proof, does not apply to criminal cases ; but that in such, we will scrutinize and weigh the evidence, and if in our judgment, it preponderate against the verdict, we will grant a new trial. This scrutiny, then, it becomes our duty now to make in the case under consideration. We do not deem it necessary to enter into an investigation, to show that an illicit intercourse has existed for a long time between the husband of the prisoner and the deceased. It has not been controverted on the part of the State ; indeed, it could not be, for the proof of the existence of the 46 COPELAND V. THE STATE fact, is of such a character, as leaves it almost beyond doubt. But it becomes highly important to investigate with care — first, the effect which this intercourse, notorious as it was, produced upon the feelings and vindictive passions of the prisoner and the deceased towards one another; and second, the mode and manner in which these feelings and passions were brought to bear, in producing the catastrophe so much to be deplored. From a careful examination of the proof, upon these two points, we think we shall be enabled to judge whether the verdict of murder in the second degree, which was found by the jury against the prisoner, can be sustained. Then first, as to the effect 'produced upon the feelings and vindictive passions of the prisoner and the deceased. The prisoner appears to have been nearly distracted by the infidelity of her husband, and having no positive proof of his guilt, seems to have spent much of her time in anxious watchings about the house of the father of the deceased, for the purpose of obtaining such proof, if practicable. John F. Sevier, a witness on behalf of the State, says, that in the month of September, previous to the killing, he was passing by the house of the father of the deceased, about two hundred yards from the house, and saw the prisoner in the corner of the fence ; she saw him, and jumped over the fence, and went in the direction of the house. Bedy Mansfield, another witness for the State, says, that about two years before the trial, she was passing by the house of Dougherty, the father of the deceased, and saw the prisoner lying in the weeds, about one hundred and fifty yards from the house ; that she saw the prisoner, at another time, stepping about in the woods, near the same distance from the house, and about the same length of time. Martha Mansfield, another witness for the State, says, that about three years before the trial, she, on two EXAMINATION OF THE TESTIMONY. 47 occasions, saw the prisoner about Dougherty's place, and that she told her she could see her around Dougherty's almost any time. Orleana Mansfield, a witness for the State, says, she saw the prisoner four times, near the house of Dougherty, concealed ; saw the prisoner once in the Maple Swamp' between Dougherty's and Cash's, on the road to Living- ston, with an axe; she asked the witness if the deceased was going to town ; said she would kill her. This was more than a year before the killing took place. Witness also says, she saw the prisoner once in Dougherty's chimney corner, once at Dougherty's barn, once in a chestnut stump, which was hollow, about two hundred yards from Dougherty's house, and in sight thereof; once in a lot, close to the house, lying in the weeds, and that upon being discovered, she ran. These circum- stances were also at periods of more than a year before the killing. Maria Eldridge, a witness for the State, says, that about eighteen months before the trial, she heard the prisoner say, that if ever the deceased put her hands upon her, she would kill her. Thompson Cash, a witness for the prisoner, says, she had talked to him about her situation and troubles; that he advised her to bear it, and say. nothing ; that some time in the summer before the trial, she agreed with, him, that, for peace, she would bear it all in the future ; "that if they would let her alone at home, she would bear it, and have peace." Thomas K. Harris, a witness for defendant, says, that some time in the summer before the trial, he had a talk with the prisoner ; she spoke of the threats made against her by the deceased ; she seemed to be in much distress, and said, she understood her life was to be taken, and she seemed to be alarmed on account of the threats. Henry Carlisle, a witness for the prisoner, says, he ]i?.s been with Copeland, the prisoner's husband, for ten 48 COPELANB V. THE STATE. years, and that he never heard her make any threats against the deceased. This is all the proof in the record, tending to show the state of mind of the prisoner, in relation to the deceased, produced by her wrongs. And what does it amount to? That (as has been observed,) she spent much time in watching the house of the deceased, but for what purpose? It has been argued here, and no doubt, was so before the jury, that she was lying in wait ' for the purpose of assassinating the deceased. Can it be possible, in the nature of things, that such was her design ? Surely not. If she had desired to murder the deceased, there could have been no difficulty in finding her at any time ; they lived near together, and no doubt could and did meet often. Where the sense of lyirig in wait about the fences, in the weeds, in a stump, in the chimney corner, if her design was to assassinate* her ? These lyings in wait were in open daylight, liabl§. at all times to detection ; in fact, they were, as it appears, always detected ; and, moreover, how was she to perpe- trate the imagined design, when, from all that appears, she was on every occasion but one, unprepared to com- mit the deed, that is, unarmed. People who lie in wait to commit murder, most generally have fire-arms for the purpose, they being the weapons most effectual for com- mitting clandestine murder. But what was the occasion when she appears to have a .deadly weapon ? It was, when she was found in the maple swamp with an axe, and enquired if the deceased was going to town, and said that she wanted to kill her — a poor weapon for a woman to use in perpetrating a murder in daylight, and upon a young and vigorous woman, prepared for her defence. But is it possible, if such had been her design, she would have informed the witness of it? Indeed, from the circumstances we think, that at the time she was found in the swamp she was not watching the deceased, because the swamp was two hundred yards from the house of deceased, and nearer her own ;. and EXAMINATION OF THE TESIMONT. 49 because here she met the witness 1301(117, and upon all other occasions, upon being discovered, she skulked. What was the reason of this ? Though compelled by the irresistible impulses of her jealousy, to watch the house of her rival, with a view of detecting her husband, yet she was ashamed of it, and whenever caught, sought to conceal herself ; but when found in the swamp, beifng engaged in a different business, probably getting maple bark for the purpose of dyeing (which will explain satisfactorily how she came to have the axe,) she felt no shame, and did not seek to conceal herself. Then, in our opinion, all this clandestine watching of the house, where the deceased resided, is no evidence whatever, that she was seeking or desired an opportunity to kill her, but only an opportimity of detecting her husband in his infidelity, and that malice prepense ■ against the deceased is not to be inferred therefrom. , But she said on one occasion, near eighteen months before the affray, that if ever the deceased put her hands upon her, she would kill her ; and on another occasion, as we have seen, that she wanted to kill her. This is the only portion of the proof that goes -to show direct malice, and it is worth but little in establishing its ex- istence, because the statements were made a long time before the killing took place, and the law will not pre- sume a killing to have been perpetrated upon ancient threats and grudges, if there be anything more immedi- ate, upon which it can be predicated, which, we think, will appear in the further investigation of this case ; and because these threats are of a vague and uncertain character, one being based upon a supposed personal injury; the other, a mere ebullition of feeling, the result of unmerited suffering. So much for the effect produced upon the feelings and passions of the prisoner, by the illicit intercourse of her husband and the deceased. Let us now see what these effects were upon the deceased. Her rancor against the prisoner appears to have been 50 COPELAJSTD V. THE STATE. very great, induced no doubt by the publicity, wliicli had been given to her intercourse with the prisoner's husband, and mainly, as is fairly to be presumed, by her clamors . Isaac Williams, a witness for the defence, says he saw the deceased have a knife which she showed him, and heard her say she would beat the prisoner. Polly Allen, a witness for the defence, says, the deceased offered her a dress, if she would get the prisoner out, that she might kill her, which she refused. She then offered to let her have things in the store, which she refused. SaUy Nelson, a witness for the defence, says the deceased showed her the dress she offered to Polly Allen, to get the prisoner out for her, and said, she would freely have giveix it. Sally Allen, a witness for the defence, says the deceased showed her a dress which she had offered to Polly Allen, to get prisoner out, that she might kill her, and said she would have freely given it. She further says, that the deceased came to her house, seemed to be excited, and had been crying. Witness asked her what was the matter? She made no answer, but went through the house into the kitchen, and came out immediately with a flesh fork in her hand, and went towards Copeland's. She further says, that on Wednes- day or Thursday before the fatal rencounter between the prisoner and the deceased, the deceased came to her house, and told her she was going to Kentucky, but that she would not leave satisfied, until she gave the prisoner a beating, and that if witness would get her out for her, she would give her a dress. Witness refused ; she then offered her a red merino dress, and if that would not do, she would give her ten pounds of coffee. Isaac Allen, a witness for the defence, says, that some time in the spring before the trial of this case, the deceased came by where he was at work, and said she had been at his house a few days before, that she thought he had a carving knife, but that she could find EXAMINATION 0¥ THE TESTIMONY. 51 nothing but these damned old flesh forks; that her nephew had given her a knife and pistol, and that she did not know what made her such a fool, as to he without them that day; that she had carried them to kill the defendant, and had not been without them before then, in a long time. Stephen Dillon, a witness for the defence, says, that about a year before the trial the deceased showed him a knife, and said she had it to cut Mary Copeland to pieces. Thompson Cash, whose testimony has already been adverted to, further says that he heard the deceased say, that she got a pair of flesh-forks from Isaac Allen's, and followed the prisoner, and would have killed her, but was prevented. He also says that the deceased told him, she could make Copeland whip the prisoner, his wife, when she pleased ; that some few days afterwards he saw the deceased going to town, and a while after, he saw Copeland coming from town ; that they must have met, and that on that night, the prisoner came to his house and said she had been whipped by Copeland, her hus- band, and driven from home, and asked to be permitted to stay all night. This is all the material testimony going to show the nature of the feelings and the passions of the deceased towards the prisoner, previous to the rencounter, which terminated in her death. And what does it establish? A degree of hatred and malignity, that one unacquainted with human nature, could scarcely conceive should exist in the breast of a wrong-doer towards the wronged. It establishes beyond a doubt, a determined and wicked propensity to do the prisoner great mischief, at least, if not to murder her, of long continuance, and extending down to the moment of the fatal affiay. It shows that she followed her on one occasion with a deadly weapon to kill her, which, she says, she would have done, if she had not been prevented. She regretted on that particu- lar, that she was without weapons, of a more deadly character, which she had been in the habit of carrying 52 COPJSLAND V. THE STATE. and had not, for a long time "before, Tbeen without. It shows that such was her thirst for vengeance, that slie oflfered bribes to different persons to get the prisoner out, so that she might beat or kill her. It shows that so- strong was the feeling, that she could not leave the State for Kentucky, where she was going, in peace, without its gratification ; and last, but not least, it shows that she could even resort to the influence she had obtained over her guilty paramour, to cause him to inflict personal violence on his helpless wife, and drive her from his door- in the night time, and compel her to seek refuge at a neighbor's. "What a different state of mind from that of the pris- oner — the one infuriated at the publicity' which had been given to her guilty intercourse with Copeland, the other distracted at the destruction of her domestic felicity by the infidelity of her husband ; the one'watching with greedy anxiety for the means of avenging herself upon her adversary, either by killing her, or inflicting upon her great bodily harm ; the other watching with patient endurance for the evidence of her husband's guilt ; the one breathing upon all occasions, the most horrid threats of vengeance ; the other only heard upon two remote occasions, to express a wish to kill her, and a threat that she would, if she ever laid her hands upon her ; the one continuing her desire for revenge, and so expressing it, up to the very morning of the fatal rencounter ; the other abandoning all such wishes months before, and express- ing herself in meekness, willing to bear all things, provided she could be left in peace at home. It may well be asked, how it is possible, that so different a state of mind could exist, in the injurer, and the injured? It is only to be answered by saying, that such is the strange anomaly of the human character, that it is oftentimes found easier to forgive those who have trespassed against us, than those against whom we have trespassed ; and that the proof shows that the prisoner was a member of the Christian Church, in EXAMINATION OF THE TESTIMONY. 53 which she had been taught that it was a holy duty to forgive those who wrong us. This difference in the feelings of the prisoner and the deceased, which, we are satisiied, the proof warrants us in drawing, must be borne in mind, as it is all important for the proper understanding of the second proposition to be discussed, and the unravelling the somewhat con- tradictory and confused evidence in relation thereto. In what manner and mode were the feelings and pas- sions of the prisoner and the deceased brought to bear, in producing the catastrophe which ended in the death of the deceased ? The investigation of this proposition includes the transactions of the day on which the deceased was killed. Thompson Cash, a witness whose testimony has been before referred to, says, that on the Sunday before the fatal rencounter, he saw the prisoner, and that she had promised to go to preaching in the town of Livingston on that day ; that she was to come to his house ; that to go to Livingston she was bound to go the way she did, or go the main road, along by Dougherty's, and says, the way the prisoner went, is further than to have gone the road immediately by Dougherty's. Ann Cash, a witness for the defence, says, that the prisoner was to come to their house on the day of the fight, to go to Livingston to preaching. Ferdinand Dougherty, a witness for the prosecution, says, he was at old man Dougherty's when the affair took place, was standing in the yard at the woodpile with Alexander and Samuel Farris, that he saw the pris- oner coming round the fence about the Celina road, that she went across towards Stuart's, that she was not in the road, but going along in the woods— that Samuel Farris hallooed out to the deceased, saying, "Aunt Euth, yon- der goes old Mary Copeland ; " Ruth was in the kitchen ; she came out and started across the yard, and then turned down in the direction to intercept the prisoner. Prisoner went like she was going to Stuart's fence, 54 COPELAND V. THE STATE. towards Cash's— deceased went on, did not see what she did with the stick— when deceased got within about five yards of the prisoner's path, she stopped. Prisoner went on, when she got to a log about twenty steps from where they fought, she made a little halt, then went fast, until she got in about five steps of the deceased, then sprang across at her — they clinched, and he saw a grabbing of hands, prisoner got under the deceased's right arm, and the deceased had her right arm round prisoner's neck, and the prisoner struck like she was stabbing with her right hand ; says the deceased had no stick, that the dis- tance from the house of Dougherty, from whence he wit- nessed the aflray, to the place where they fought, is one hundred and sixty yards, open woods, a few trees, and no undergrowth. Alexander Farris, a witness for the prosecution, says, on the Monday morning the fight took place, he was in the yard on the woodpile, with Ferdinand and Samuel Farris, that he saw the prisoner going round towards Stuart's, that his Aunt Ruth came out of the kitchen, went by the crib, got a stick, and started over in the direction to intercept the prisoner, that the prisoner went on like she was going towards Stuart's gate, got near the gate, and turned rather back, and took down Stuart's fence, in the direction of Thompson Cash's-^that the deceased went on, and took a path that intersects prisoner's path, between Stuart's and Cash's — that when deceased got within five steps of prisoner's path she stopped, and the prisoner, when she got to a log, in about twenty steps of the junction of the paths, made a small halt, and then went fast, until she got opposite the deceased, and then sprang across at her ; saw their hands grabbing, then saw prisoner get deceased with her left arm under her right arm, deceased's right arm around prisoner's neck, and then saw the prisoner strike like she was stabbing; heard a scream, and the deceased fell;. says that the distance from where he stood to the place of the rencounter, was one hundred and sixty yards, open woods, and no undergrowth — that he saw no stick in the EXAMINATION OF THE TESTIMONY. 55 iiands of the deceased, that he did not see what the deceased did with the stick she had taken with her from the crib. Samuel Farris, a witness for the State, says, he was at his grandfather's on the Sunday morning the fight took place ; that he saw the prisoner going round past his grandfather's, like she was going to Stuart's ; he said, "Aunt Ruth, yonder goes old Mrs. Copeland," thinks she did not hear him ; she came out of the kitchen, she went by the crib, and he saw her have a stick, going in" the direction to intercept the prisoner. Her father told her to come back; she looked back but did not return. When the deceased went through the yard, prisoner had passed Stuart's' gate, and was going down Stuart's fence towards Thompson Cash's. Deceased went on through the yard out at the place where the fence was down, crossed the road, and took a path intersecting the prisoner's path, between Stuart's and Cash's ; that the deceased and prisoner met between the junction of the two paths, that they both kept right on, and met ; that, as they came near, prisoner increased her gait; that, when they met, he saw a grabbing of hands ; that the prisoner got her left arm round the deceased's waist, deceased got her right arm round prisoner's neck, who then struck like she was stabbing ; he heard a scream ; the deceased fell. Polly Farris. a witness for the State, and a sister of the deceased, says, she was at her father's on the Sun- day morning the fight took place — that she ran down to the place where it occurred, and found her sister stab- bed in several places, of which she very shortly died. Matilda Dougherty, a sister of the deceased, and a witness for the State, proves in substance, the same as the foregoing witnesses. Alexander Dougherty, the father of the deceased, says, he did not see the fight ; saw Ruth pass from the kitchen by the house door, and go in the direction of the crib, then saw her go through the orchard, towards where the fence was down, next the road, with a stick; 56 COPELAWD V. THE STATE. called to her to come back ; she made him no answer. He says, that the stick produced, which was a large hick- ory, about three and a half feet long, and three and one- half inches or four in circumference, looks very much like, and it may be, one of the sticks he cut and put in the fence about or near his crib, being in the same direction deceased went, before he saw her with a stick ; he fur- ther says, that the deceased was a woman of uncommon high temper, but a very affectionate child. This constitutes the proof of the corpus delicti, on the part of the State. On the part of the defence : Wyatt Haywood says, he heard Ferdinand Dougherty say he had done his best to stop the deceased, but she would not — she said she would have satisfaction. Fur- ther says, that after the affray, he examined the pris- oner, and saw a cut on her head and a bruise on her wrist. William Dougherty, a nephew of the deceased, says, he found and picked up the stick, which was produced on the trial, and which is alluded to in Alexander Dougherty's testimony, near where the fight took place ; that he went after his Aunt Ruth's shoes, that he found one of them near her path, the other between the junc- tion of the two paths, nearest the defendant's path ; and that he found the stick between the shoes, close to the shoe that was nearest the defendant's path. Thompson Cash says, that he saw Alexander Farris on the road to Livingston, a very short time after the killing, and that he told him that his Aunt Ruth went out and commenced upon the prisoner with a stick, and, that the prisoner had stabbed and killed her. Rachel Orton says, that she saw the prisoner soon after the homicide ; that she had a large knot on the top of her head, as thick as her wiist ; it was a long knot, seemed to have been made with a stick, and running across the head; defendant had a bruise also on her ■wrist ; prisoner stayed all night with her ; next morning EXAMINATION OF THE TESTIMONY 57 there were green streaks do-wn the side of her head, and she complained that she could not turn her head. Thomas R. Harris says, that the deceased was the largest woman, also the youngest ; says also, that the defendant had a knot on her head, running cross it, as large as a hen's egg, and that her wrist was bruised. Jackson Thompson says, that he was at the place where the fight was said to have taken place ; that old man Dougherty was standing in or near the path of the prisoner, some seven or eight steps above the junction of the paths, that he pointed his stick and said, there Ruth lost her life. "Witness looked and saw a drop of blood on a leaf ; it was picked up by a boy. He further says, that Alexander Farris was present, and did not contradict it. This was soon after the killing, and before old man Dougherty Ipft the ground. Harrison Copeland says, that he heard the examination before the Justice of the Peace, and that Ferdinand Dough- erty swore that Ruth and the prisoner came together. Now it is obvious that the question, as to whether this homicide be murder, manslaughter or self-defence, depends materially upon the solution of the difiiculty arising from the proof, as to the point at which the' prisoner and the deceased met, and as to which com- menced the assault. Inasmuch as Mrs. Copeland, the prisoner, was going her own road, and in a laudable pursuit, if she did nothing more, in going that road, than defending herself against a violent assault from a hickory stick, three and one half feet long, and from three and one half to four inches in circumference, the killing in our opinion was homicide se defendendo. If she, upon meeting her adversary unexpectedly, who had intercepted her upon her lawful road, and in her lawful pursuit, accepted the fight, when she might have avoided it by passing on, the provocation being sudden and unexpected, the law vsdll not presume it to be on the old grudge, but upon the first insult, by stopping her on her way, and it would be manslaughter. 58 COPELAND V. THE STATE. If the deceased upon approaching the prisoner's path, repented of her intention, or became irresolute and stopped, leaving the prisoner full and unobstructed right and liberty to pass, and she brought on the attack with design to kill her, it would be murder in the first or second degree, according to the circumstances of the case ; that is, if the kiUing was the result of the old grudge, and a previously premeditated malice, it would be murder in the first degree ; if it were the result of malice suddenly produced by the sight of her rival, without previous premeditation, it would be murder in the second degree. Then, in the first place, where did they meet ? The proof shows most conclusively, that the prisoner was passing down a path by Stuart's and Cash's fence ; that the deceased, upon being informed of the fact, left her father's residence, and after arming herself with a deadly weapon, took a diagonal path intercepting that of the defendant, and with the view of intercepting her ; what she designed by that interception, the testimony which we have heretofore examined, fuUy explains. It is un- necessary to repeat it ; it was as she avowed again and again, to kUl her, or to beat her, before she left for Kentucky. That this design was weU. known to her friends, is obvious from the fact that they informed her that the prisoner was passing ; the more discreet portion of her friends, to- wit, her father and her sister, requested her to return ; to this prudent advice she turned a deaf ear. Going, then, upon such an errand, and with such motives, is it to be conceived, that she would suddenly change her fixed intentions and stop short of the point where her long-conceived vengeance was to be satiated ? Upon what motive would she do this ? Had her heart softened ? Had she repented of her evil designs ? No- one pretends to this, and yet some of the witnesses say she did stop five steps from the point where the two paths intersected, and that the prisoner brought on the attack. Is this probable ? We think not. Because in the first place, we think that the proof CONCLUSIONS FKOM THE TESTIMONY. 59 shows, that the prisoner was, and had "been for a con- siderable time Ibefore, anxious to avoid any conflict with her ; from the period of time at which the witness, Cash, had advised her to bear her troubles with patience, and she had promised she would, we hear no more of her watching the house of the deceased ; we hear no more of her threats or complaints. On the morning of the catastrophe, in going to join her neighbor, for the purpose of attending divine worship, instead of taking the direct road, which would have led her by the house of the deceased, she, obviously with the design to avoid collision, took a circuitous path. She had been heard' to express fears that she was to be assassinated by the deceased. The deceased was a stronger and a younger woman. Can it then be possible, that she would not have passed in peace, if she had been permitted to do 2. The character of the deceased; her embittered feelings towards the prisoner ; the great length of time she had been seeking an opportunity to do her mischief ; the fact that she was going to Kentucky immediately, the consequence of which would be, that if she missed the then opportunity, it would probably be gone forever, preclude the idea of her having abandoned her intention. But in answer to this, it is said she stopped, because she saw the knife in the hands of the prisoner. This is not at all probable, if possible, because the proof shows, that she came upon the path of thfe prisoner considerably in advance of her, and that after the deceased had stopped, the prisoner continued to advance until she got within about twenty steps of deceased, and then made a pause. Is it, then, probable, that the deceased, at the distance she must have been from the prisoner when she stopped, could have seen a small knife in her hands ? We think not. 3. The stick which the deceased carried with her, was found near the path of the prisoner, as also one of her shoes. 60 COPELAND V. THE STATE. 4. The father of the deceased pointed out a place on the path of the prisoner, where he said his daughter had been ki^ied, and a leaf with a drop of blood on it was there found; and this immediately after the homicide. 5. The prisoner had a severe contusion on her head, and one on her wrist ; these blows must have been given before the parties clinched, and before the deceased was stabbed. All these things tend to show most satisfac- torily, that the deceased did not stop until she arrived at the point of the intersection of the two paths, where she awaited the arrival of the prisoner — and that the prisoner at the distance of twenty steps paused, not knowing certainly whether to advance or recede, but eventually concluded to advance and risk the con- sequences, with the determination to protect herself by slaying ber adversary, if necessary — and that her adversary commenced the assault by striking her with the stick. But then there is the testimony of Ferdinand Dough- erty and Alexander Farris, which states that the deceased did stop five steps short of the prisoner's path, and that the prisoner did make the assault. We think these witnesses are mistaken, because, 1st. The distance from the place where they stood, and the place where the rencounter took place, was too great for them to .judge with accuracy whether the deceased stopped short of the intersection of the paths, or not. 2d. It is obvious that they did not see the com- mencement of the affray; no one can doubt that the deceased struck the prisoner at least two blows, with the stick, before they closed, when deceased, probably discovering the knife in the hands of the prisoner, dropped her stick with the view of taking the knife from her; this was the time the grabbing of hands spoken of by the witnesses, took place. Yet Ferdinand Dougherty says, the deceased had no stick ; and CONCLUSIONS FROM THE TESTIMONY. 61 Alexander Farris says, that, although the deceased started with a stick, yet, when he first saw the struggle, which he describes as a grabbing of hands, he saw no stick, and that he did not know what the deceased did with the stick she took from the crib. 3d. Samuel Farris, who also witnessed the fight from the same place with the other two witnesses, says, that the deceased and prisoner met between the junction of the two paths ; that they both kept on and met. 4th. Thompson Cash says, that on the same day the homicide was perpetrated, Alexander Farris told him ■ that his Aunt Ruth went out and commenced upon the prisoner with a stick, and that the prisoner had killed her. These reasons satisfy us, that the witnesses, Ferdinand Dougherty and Alexander Farris, did not, as we have said, see the commencement of the fight, and* that they are mistaken in supposing that the deceased stopped five steps short of the intersection of the paths, and that the prisoner brought on the attack. This, then, being so, we are fairly warranted in saying that the deceased went upon the path of the prisoner, with the determination to inflict severe punishment upon her; that she stopped at the point of intersection, and awaited her coming ; that the prisoner kept on her way, determined to resist and protect herself, be the con- sequences what they might. That the deceased com- menced the combat, and that the prisoner killed her. This is not murder in the first or second degree, and must be homicide in self-defence, or at most, man- slaughter. We, therefore, reverse the judgment of the Circuit Court, and give the prisoner a new trial. Judgment reversed. Note.— It is to be observed, that so far as regards the facts mimediately attending the killing, this case is somewhat similar to Selfridge's ease, ante. In this case as in that, the prisoner was going her lawful way, but secretly armed with a deadly weapon. In each case, the prisoner was sud- 62 COPELAND V. THE STATE. deiily intercepted and assaulted by a person of superior physical strcngili. 'J'he weapon with which the assault was made, was in both cases of a siini- ilar character. But the cases depart from each other in two particulars : First, Self- ridge was morally in the wrong ; though legally not so much so as to restrict Ms right of defence. Mrs. Copeland, on thn other hand, had been greatly wronged for a number of years, by reason of a notorious adulterous intercourse carried on between her husband and the deceased. Neither of these facts, however, could have any direct legal Influence upon the result of the trial. Secondly, there is a wide departure ui the law of the two cases, so far as regards the question of the necessity of retreating before kilhng. In Selfridge's trial, the real stress of the case was held to have been whether the defendant could not have avoided the danger by retreating or throw- ing himself into the arms of his friends. But in Copeland's case, no such requirement is put upon the prisoner — nothing of the kind is intimated. Indeed, it is said that if Mrs. Copeland accepted the tight when she might have avoided it by passing on, the provocation being sudden, she would be guilty of manslaughter ; but this clearly has no reference to the doctrine of " retreating to the wall," Upon the latter subject, see the note to Self- ridge's case. THE PEOPLE V. JOHlSr DOE. [1 Mich., 451.J Supreme Court of Michigan, Janwiry Term, 1850. Chaeles "W. "Whipple, Chief Justice. Waenbb Wiktg, "1 George Miles, I r., „/,,•.„, Sanpokd M. Green, T-^^^"^^*- Edward Mukdy, J Killing in sblf-dbpencb. — ^Selfridge's case approved. 1. The degree of force or the means which a person may use in defend- ing his person or personal liberty, must depend upon circumstances. To justify taking the life of another, it must appear that his safety required him to do so. 2. The law relative to taking life in self-defence, as laid down by Mr. Justice Parker in Selfridge's case, [ante, pp. 16, 17,] approved. STATEMENT OF THE FACTS. 68 Indictment for murder in the first degree. The name cf the prisoner being unknown to the Grand Jury, he was indicted by a personal description, and the fictitious name of John Doe. He pleaded not guilty, but was convicted of murder in the second degree. There is no statement of facts in the original report ; but it may be gathered from the opinion, that the prisoner had stolen a span of horses in Indiana, and had escaped into Michigan, whither he was pursued by a constable. As soon as he saw the constable, he recognized him, and knew his business, and betook him- self to flight ; and being pursued by the constable and his posse, killed one of them named Fanning; but it does not appear whether Fanning was the constable or one of the posse. LatTirop, Attorney-General, for the People ; CMpman, for defendant. Extract from opinion of the Court, delivered by Obeen , J. : — The charge of the Court upon the specific instructions, which the prisoner's counsel requested might be given by the Court, was as favorable to the prisoner as he had a right to require. The Court in- structed the jury, " that a person was authorized to defend his person or personal liberty, to the extent claimed by the counsel for the prisoner; but that the degree of force, or the means fo be employed in protect- ing his person or personal liberty, must depend upon drcumstances ; that to justify a person in taking the life of another, it must appear that his safety required him to do so ; that in the case before the Court, there was no evidence that the person or personal liberty of the prisoner had been assailed by the deceased when the wounds were inflicted upon him by the prisoner, which it is admitted by the prisoner, proved fatal." In the case of the OommonwealtJi v. Selfridge, (Selfridge's Trial, p. 160)," the principles of law relative to destroying life in self-defence, are very clearly and "•Ante p. 16 ; see also note to Selfridge's case. 64 THE PEOPLE V. JOHN DOB. perspicuously laid down by Mr. Justice Parker. He says : First. That a man wlio, in the lawful pursuit of hiy business, is attacked by another, under circumstances which denote an intention to take away his life, or do him some enormous bodily harm, may lawfully kill the assailant, provided he use all the means in his power, otherwise, to save his life or prevent the intended harm ; such as retreating as far as he can, or disabling his adversary vsdthout killing him, if it be in his power. Secondly. When the attack upon him is so sudden^ fierce and violent, that a retreat would not diminish but increase his danger, he may instantly kill his adversary without retreating at all. Thirdly. "When, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life, or commit any felony upon his person, the killing of the assailant will be excusable homicide, although it should afterwards appear that no felony was intended. By comparing this language, which expresses the well- established and recognized doctrine upon this subject, with that used by the Chief Justice in the case under consideration, it is very apparent that the prisoner had nothing to complain of in that respect. Judgment affirmed. SYLLABUS. gg THE PEOPLE V. SULLIVAN. [3 Selden, 396.] Neva YorTc Court of Appeals, October Term, 1852. Chaeles H. Kuggles, CJiief Judge. Addison Gtaedbteb, \ Freeboekt G. Jewett, )■ Judges. Alexawdee S. Johnson, ) John W. Edmonds, Malbone "Watson, Philo Geidlet, Heney Welles, Justices of the Supreme Court, and ex-officio Judges of the Court of Appeals, from January, • 1852, to January, 1863. Murder. — Slayer must endeavor to avoid necessity. — Acting upon APPEARANCES.— Cooling time. 1. The intentional killing of a human being without provocation and not in sudden combat, is murder, although done in tlie heat of passion. 2. Where one believes himself about to be attacked by another, and to receive great bodily injury, it is his duty to avoid the attack if in his power to.do so, and the right of attack for the purpose of defence does not arise, until he has done every thing in his power to avoid its necessity'. [Ace. Shippey's case, post. Contra, Bohannon's case, post.'] 3. Where the judge charged, that if the jury believed that the deceased returned up stairs with intention to renew the fight, and that the defendant had reasonable ground under the evidence, to believe that the deceased designed to do him some great personal injury, and that there was imminent danger of such design [instead of such apparent design?] being accomplished, then it was not murder, it was held, that this instruction was not erroneous, when tested by the rule in Shorter' s ease, post, that a reasonable appearance of danger of death, etc., will excuse the slayer. [But see Maher's case, post and note.'] 4. Where, after a mutual combat has been for the moment terminated, and a fatal blow is then struck, the question to be determined is, whether there had been sufficient time for the excited passion of the prisoner to cool, and not whether in point of fact, he did not remain in a state of anger. The defendant was convicted of the murder of Edward Smith, at a Court of Oyer and Terminer, held in the city of New York, Edmonds, J., presiding, in September. 1851. 66 THE PEOPLE V. SULLIVAN. The evidence disclosed the following facts. The prisoner with his family, consisting of a wife and two small children, and a cousin, Mary Moran, occupied a back room in the second story of the house, No 4 Cliff Street, in the city of New York. The rest of the house was occupied as a boarding house by Mrs. Ferris. The deceased was one of her boarders, and occupied the front room in the third story, the stairs to which passed directly by the door of the room occupied, and within four feet of it. The front room in the first story was occupied as the dining room of the boarding house. The stairs from the first to the second story terminated upon a narrow landing, within six or eight feet of the prisoner's door. On Sunday, the 10th day of August, 1851, at about one o'clock in the afternoon, while Mrs. Ferris and some of her boarders were at dinner, an uproar and noise, as of the breaking of crockery, was heard in the prisoner's room. It was caused by his becoming angry at something said by his wife while his family were at dinner, when he commenced breaking the dishes upon the table, and drove her from the room with violence, and compelled Mary Moran, with one of the children, to seek refuge in another room. Mrs. Ferris went up to the prisoner's room to endeavor to stop his violence, and upon entering it, was struck by him a violent blow in the face and compelled to leave. During this time the deceased was in his own room, dressing for dinner. As he went down stairs, he stopped at the prisoner's door, which was open, placing his back against the waU and his feet across the door, and having his arms folded, and remarked to the prisoner : " It is a shame to be making such a row on the Sabbath day ; you have a sober wife, and you ought not to be going on in such a way." The prisoner replied: "I have a right to do as I please in my own place." The deceased then turned to go down stairs, saying, "ISTow, SuUivan, don't let me see you break any more." Sullivan said he would, and im- mediately commenced breaking dishes again. The STATEMENT OF THE FACTS. 67 deceased then went into the room, and a scuffle ensned, the prisoner seizing the deceased by the throat, and he grasping the prisoner by the hair. In the scuffle both fell upon the floor, when Mrs. Sullivan and Mary Moran came to the aid of the prisoner. One of the witnesses found the prisoner and deceased lying on the floor, and a,ssisted in breaking the hold of the prisoner, when the deceased got up, still held by Mrs. Sullivan and Mary Moran. He tried to get away, and got out of the door, and while so doing the prisoner struck him a blow, at which he became somewhat excited, and struck back. He then went down stairs, having his shirt, which had been torn off" in the encounter, under his arm. On reach- ing the foot of the stairs, he handed his shirt to a person standing there, and turned as if to go back, when he was cautioned by some one, with a view of deterring him, but without the idea that the prisoner was armed, "Look out for a knife." He, however, went up stairs, the pris- oner at the same time standing on the landing and look- ing over the railing. As he reached the last step but one, he suddenly turned and said, " I am stabbed ! I am murdered ! I am dying ! " and immediately came down stairs, covered with blood. He was taken into the dining room, and died within half an hour. Upon a post mortem examination, three wounds, inflicted by a sharp- pointed instrument, were found on his body ; one in the left shoulder half an inch long and four inches deep, pen- etrating to the bone ; another in the groin two inches in length and four inches deep, which severed a branch of the femoral artery ; and the third, a slight wound, in the side. There were other circumstances to show that the wounds were received from the prisoner. The counsel for the prisoner requested the Court to charge as follows : If the jury believe that Smith returned up stairs to renew the fight, and Sullivan believed he intended to do him great bodily injury, he had a right to defend him- self even unto death, and it is not murder. If the jury believe that Smith, having had the fight 68 THE PEOPLE V. SULLI^^VJf. with Sullivan, and hj Ms conduct and blows aroused and excited the passions of the prisoner, and then returned, thereby keeping up the excited passions of the prisoner, and, under such excitement, the prisoner stabbed the deceased, it is not murder. If the jury believe that the prisoner in the heat of pas- sion caused the death of the deceased, it is not murder. The judge refused to charge as requested ; but in lela- tion thereto, charged: that if the jury believed that Smith returned up-stairs with intention to renew the fight, and that Sullivan had reasonable ground, under the evidence, to believe that Smith designed to do him some great personal injury, and that there was imminent danger of such design being accomplished, then it was not murder. That if at the time of killing, Sullivan struck the blow with intent to kiU, it was murder, unless justified or excused under the evidence in the case, of which the jury were the judges ; and that the mere fact of his being in a passion was not in itself sufficient to excuse or jus- tify the act; and that if the jury believed that the IdU- ing was produced by the prisoner, with an intention to kill, though 'that intention was formed at the instant of striking the fatal blow, it was murder; that the jury might infer such intention from the circumstances of the case, and, among other things, from the nature of the weapon used and the wounds given by it. Exceptions were taken, and the cause removed to the Supreme Court by writ of error. It was there heard at a general term held in the city of New York in February, 1852, and the judgment of the Oyer and Terminer reversed, and a new trial ordered. From the judgment of the Supreme Court it was brought here by writ of error. JV. B. Blunt, for the plaintiff in error ; R. H. Morris. for the prisoner. Johnson, J., delivered the opinion of the Court : The question as to the dismissal of the writ of error. INT.E]S'T TO KILL.— DUTY TO AVOID ATTACK. 69. and the question upon the bill of exceptions, relating to the churge of the judge, that if the kiUing was produced by the defendant with an intention to kill, though that intention was formed at the instant of striking the fatal blow, it was murder, and that 'the jury might infer such intention from the circumstances of the case, and, among other things, from the nature of the weapons used and the wounds given by it, have already been disposed of in the case of the People v. Clark." There are some other questions in the case, but they are so obviously against the prisoner, that, except in a capital case, it would be scarcely requisite to notice them in detail. The defendant's counsel requested the Court to charge the jury that if they believed that Smith returned up-stairs to renew the fight, and Sullivan believed that he intended to do him great bodily injury, he had a right to defend himself even unto death, and it is not murder. This the Court properly refused to charge; for if Sullivan believed himself about to be attacked, as stipposed by the request, his duty was to avoid the attack, if in his power to do so ; and the right to defend himself would not arise, until he had done everything in his power to avoid the necessity of defend- ing himself. The Court was further requested to charge the jury that if they believed the prisoner in the heat of passion caused the death of the deceased, it is not murder. This was properly refused. The designed killing of another without provocation, and not in sudden combat, is certainly none the less murder because the perpetrator of the crime is in a state of passion. The Court was also requested to charge that if the jury believed that Smith, having had the fight with Sulli- van, and by his conduct and blows aroused and excited "3 Selden 385. This wise holds that to constitute the crime of murder, the degree of deliberation is not different under the revised statutes from that under the common law ; and that it makes no difference whether the ■design be formed at the instant of striking the fatal blow or months before. It is enough that the intention precedes the act, although that follows Instantly. 70 THE PEOPLE V. ^ulliva:^. the passions of the prisoner, and then returned, thereby keeping np the excited passions of the prisoner, and under such excitement the prisoner stabbed the deceased, it is not murder. This request was erroneous, and was properly rejected. Where after mutual combat, a ques- tion arises whether there has been time for excited passions to subside, the question always takes this form; whether there had been sufficient time to cool, and not whether, in point of fact, the defendant did remain in a state of anger. The request presented sim- ply the question whether the defendant continued in anger up to the time of killing. After the several requests which have been noticed, the Court charged the jury upon the matters to which they related, as follows: If they believe that Smith returned up-stairs with intention to renew the fight, and that Sullivan had a reasonable ground, under the evi- dence, to believe that Smith designed to do him some great personal injury, and that there was imminent dan- ger of such design being accomplished, then it was not murder. It was contended, on the argument, that this charge required the jury to find whether imminent dan- ger actually existed, and not merely whether Sullivan had reasonable ground to believe that it existed. If this construction of the charge was correct, the case of Shorter v. the People, [2 Comst. 197.] would show it to be erroneous ; but we do not so understand the charge. As we read it, the jury were told that if Sullivan had reason- able ground to believe, both, that Smith designed to do him some great bodily injury, and that there was immi- nent danger of the accomplishment of such design, it was murder. This was the proper mode of submitting the question. ^ The judgment of the Supreme Court is erroneous and must be reversed, and there must be judgment as in the case against Clark. Judgment of the Supreme Court reversed, ■■See S'.Ki tor's case and note, posi. SYLLABUS. 71 HAREISON V. THE STATE. [24 Ala., 67.] Supreme Court of Alabama, January Term, ISSJ,,. William P. Chilton, Chief Justice. David G. Ligon, | . ■ , -r j.- George Goldthwaite, f ^^^octate Justices. Killing without waiting for ovkrt act.— Killing trespasser.— Instructions on self-defence irrelevant, when. 1. In a case of homicide, to justify the killing, it is not sufficient that the deceased had the means at hand to effect a deadly purpose, but he must have indicated by some act or demonstration, at the time of the kill- ing, a present intention to carrj^ out such purpose, thereby inducing a reasonable belief on the part of the slayer, that it was necessary to deprive Mm of life to save his own ; and if the evidence shows no such act or demonstration, no question on the law of self-defence arises. [See note b.] 2. If one man deliberately kill another to prevent a mere trespass upon property, whether such trespass could or could not be otherwise prevented, it is murder. [Ace. Morgan's case, joosi;; Drew's ca«e,joosr;, • McDaniel's case, 8 Miss., 401; Lambeth's case, 23 Miss., 322; People v. Horton, 4 Mich., 67.] 3. Circumstances where a charge on the law of self-defence was calcu- lated to mislead the jury. Robert R. Harrison, the plaintiff in error, was indicted for the murder of one George W. Gilbert ; was tried and found guilty, and sentenced to the penitentiary for the term of his natural life. A bill of exceptions was sealed at the trial, by which it appears that the deceased and Harrison were brothers- in^aw ; that some time previous to the killing, a ditch had been dug by the deceased, some four feet deep, which drained a pond of water that otherwise accumulated on the land both of Harrison and the deceased, their farms lying contiguous; said ditch allowing the water to flow off through the land of Harrison to the woods below, and had been kept open for that pui-pose about ten years , that on the day previous to the fatal occur- rence there came a heavy rain, and Harrison was seen 72 HAERISOK V. THE STATE. the same (Sunday) evening, at work on the edge of the ditch, and the next day it was ascertained to be stopped np by dirt being thrown into it; the result was, the corn of Gilbert, growing in the field, was overflowed with water, as much as from one to four acres ; that Gilbert sent his two small boys with hoes to open the ditch, so as to let the water pass off; that they proceeded to where it was filled up in the field of Harrison, and returned in a short time and reported that it was filled np to such an extent they could not open it ; that the deceased then requested his wife to go and assist the boys, saying, at the same time, "that he did not wish to have any fuss or difficulty with Harrison" ; that Mrs. Gilbert and the lads returned to the place and commenced removing the dirt, when Harrison, who is the brother of Mrs. Gilbert, came, and began with a hoe to fill up the ditch, sprang across it, and struck one of the boys two slight blows with his hoe', one of the blows being upon the face ; that the boy then started back to the house, and Harrison said, as he started, " if it is for guns you are going, I will go and get mine," and immediately ran to his house, about one hundred and fifty yards distant, and came back with his gun, saying to Mrs. Gilbert, " If Gilbert conies here I will kill him"; that the boy who went to the house informed his father, the deceased, that Harrison was at the ditch and would not let them open it ; Gilbert, who could see the parties from his house, replied, " It will not do to let the corn spoil, and we mnst go back and let off the water." He then took his gun down from over the door, and the little boy took his gun, and they proceeded in an ordinarj^ gait to the ditch. Gilbert came tip within a few feet of Harrison, who was on the opposite side of the ditch, and with his gun on his shoulder stopped, looking at his wife, who was near by, and seeming about to speak to her, when Harrison dis- charged his gun at him, which taking effect, he instantly died. Harrison immediately started to run to his house, saying, " If you are not dead now, damn you, T will come back and kill you." The evidence further tended CHAEGE OF THE CIECTJIT JUDGE. 73 to show, that the opening of the ditch was a benefit to Harrison as well as to the deceased. The Court charged the jury as follows : " If when Gilbert came armed to the ditch, Harrison had reason to believe that Gilbert was about to shoot him, and that Harrison's only safety was in taking the first shot, then the killing was in self-defence ; but that this belief of Harrison's must not rest on his fears only ; it must be a well-founded belief of a danger to his life, or of some ^reat bodily harm, immediately at that time pressing on him." The defendant's counsel asked the Court to charge the jury, "that, if Harrison was in possession of the land, and had closed up the ditch, Gilbert had no right to use force in opening it, although it might cause his land to overflow"; also, "that if Harrison had a well-founded belief that Gilbert came into his field with his gun with the intention of doing him a bodily harm, then Harrison was not bound to wait for Gilbert to execute his inten- tions, but might act in his own defence." These charges the Court refused to give. The charge given, and the refusal to charge as re- quested, are now assigned for error Williamson, for the plaintiff in error; M. A. Baldwin, Attorney-General, contra. Chilton, Ch. J., delivered the opinion of the Court. The charge which was given, when considered with reference to the facts set out in the bill of exceptions, was more favorable to the defendant than the law would authorize. There was no evidence that Gilbert was .about to shoot Harrison, when the latter killed him ; on the contrary, he was standing with his gun on his shoulder, and about speaking to his wife, when he was shot down, and this shooting was carrying out a threat made to the wife of Gilbert by Harrison, that he would kill him if he came there. The law of self-defence, so far as the proof set out in record shows the transaction, had nothing whatever to 74 HARRISON V. THE STATE. do with the case. Harrison in the first instance, brought on the difficulty by a most unneighborly and malicious act in stopping up' the ditch, thus injuring himself in order to overflow the growing crop of the deceased. When it was attempted to be opened, he was there, throwing in the dirt, as the wife and children were engaged throwing it out ; he inflicts personal violence upon one of the children with his hoe, and when the child left, he flies to his gun ; and without necessity, and in the absence of any attempt or demonstration of an intention to injure him, on the part of the deceased, other than having his gun upon his shoulder, he deliber- ately shoots him down while in the act of speaking to his wife. It was calculated to mislead the jury to charge on the law of self-defence under such circum- stances, for they might well have inferred that the Court would not give a charge which was abstract, and hence, that merely having a gun upon his shoulder, without more, put the life of the prisoner in imminent peril, jus- tifying him in what he did. Such is not the law. It was correctly said by Ruffin, C. J., in The State v. William Scott,* 4 Iredell's Law Rep. 409, that "the belief that a person designs to kill me, will not prevent my killing him from being murder, unless he is making some attempt to execute his design, or, at least, is in an apparent situation to do so, and thereby induces me reasonably to think that he intends to do it immedi- ately."^" The "situation" spoken of, is not that he has the means at hand for effecting a deadly purpose, but that, by some act or demonstration, he indicates, at the time of the killing a present intention to carry out such purpose, thereby inducing a reasonable belief, on the part of the slayer, that it is necessary to deprive him "For the same doctrine, see Lander's case, posi; Creek's case, post,- Dy- son's case, jDosi!; Cotton's case, joosi! ,- Rippy's case, post; Williams' case, post; Evans' case, jDos;;,- and others. Contra, Grainger's case, jdos;; ,- Phill lips' case, ^os!!; Carico's case, ^tjosj; ,■ Bohannon's case, post, and Youne'a case, post. ° KILLING TRESPASSER. 75 of life to save his own. Pritchett v. The State, 23 Ala., 39 ;•= Wharton's Crim. Law, 260." It is manifest from what we have said, that there was no error in refusing the charges asked by the counsel for the defendant in the Court below. Whether Gilbert had or had not the right to use force in opening the ditch, was a question which did not arise upon the proof. It is perfectly clear that the prisoner had no right to take his life to prevent his opening it. Russell on Crimes, 663. If one man deliberately kill another to prevent a mere trespass upon property, whether such trespass could or could not be otherwise prevented, it is murder. State v. Morgan,^ 3 Iredell's Law Rep, 186; Commonwealth v. Drew, 4 Mass. 891;. Wharton's Crim. Law, 258.'' As to the last charge asked and refused, it is fully covered by what we have said as respects the charge given. There is no error in the record, and the sentence of conviction is affirmed. Judgment affirmed. STATE V. BAKER. [1 Jones' Law, 267.] Supreme Court of North Carolina, June Term, 185^. Frederick Nash, Chief Justice. Richard M Pearson, ) j^^g^s. William H. Battle, j ^ Lawful resistance— Imminence op the danger. If, after words of anger, the slayer took up an axe, and approached the deceased with a present purpose and design to take away his Ufe, or to do "Post. 1 p026, 6th Edition. 'Post. '5th Edition ? 1025. 76 STATE V. BAKER. him some great bodily liarm, and the deceased had sufficient grounds to believe that such was the intention of the assailant, he had a right to strike in self-defence, although the assailant was not yet in striking distance, and such strildng by the deceased will not amount to a legal provocation to mitigate the killing to manslaughter. [See note, sub fin. ; Hiaton's case, post, and note.] The case is fully set forth in the opinion of the Court. Nash, Ch. J., delivered the opinion of the Court. The correctness of the opinion delivered on the trial of the case below, rests upon the testimony which was before the jury. It is necessary, therefore, to examine it, in order to estimate its bearing upon the law. The blow which was received by the deceased, was inflicted by the prisoner, about eight o'clock of the night of 26th December, 1853, and the death ensued on the 15th or 16th of January, 1854. George W. Gibson testified that he was at Hays', about half a mile from Prince's shop, the night that the affray took place, and that between six and eight o'clock, the deceased and prisoner had a fight. They were parted, and Hays took him into his house and fastened the door; and very shorty there- after, some one knocked at the door and inquired for Edwards, the deceased. The latter then went out at the back door, and went off. The witness did not know who it was knocked at the door. Currie, a witness for the prosecution, stated, that about eight o'clock of the night of the 26th December, 1853, he went to a store, about half a mile from Rockfish village, where he found Prince, the keeper of the store, and the deceased. In a short time the prisoner came up with his axe upon his shoulder, and sat it down a little way apart, and accosted them in the usual way. In a short time, the deceased, alluding to a fight on that evening, between him and the prisoner, observed, " Baker, I am sorry I had to hurt you this evening, but I could not help it. I had to protect myself." The prisoner observed, " It was too late to talk that way now, when a man whipped him when he was drunk, he would not THE PACTS STATED. 77 Stay beat." The prisoner and the deceased talked the matter over in a friendly way, walked off a short distance, and came back, apparently friendly. The prisoner sat down on a chair, and the deceased on the ground near him, and to the fire, which was burning out of doors. Baker asked for some liquor, which was brought out by Prince. The prisoner and the deceased began again to quarrel ; angry words were passed between them, and deceased observed " he would settle it when Baker got sober ; " when Baker said, " No, we will settle it now.'' The witness was asked by the prisoner to drink some of the liquor, and upon his refusal, threw it in the tire, and walked off some eight or nine paces to where his axe was, picked it up, and advanced with it in a half- drawn position towards the fire, where the deceased was still sitting. The latter said "Are you going to kill me with that axe ? " The prisoner made no reply, but still advanced with the axe in the same position, elevated, and the handle and blade held out in front of his body, but not drawn back. The deceased then said, " Stand off " (the prisoner still advancing); "if you come any nearer I will knock you down ; " and took from the fire a burning stick of wood and threw it at the prisoner, which struck him on the shoulder and back, and caused his knees to bend or give way under him. At the time the prisoner received this blow, he was not near enough to strike the deceased, but was some eight or nine paces from him, and advancing towards him when struck. Immediately after receiving the blow, he pressed upon and after the deceased around the fire, and struck Mm one blow upon the head with the axe. The deceased, with the assistance of Prince and the witness, walked to the village of Eockfish, where' he was taken into the house of the prisoner by his directions. On the next day the deceased was walking about, when the same witness observed to the prisoner it was fortunate that he Tvas present, as he might have killed the deceased. The prisoner replied, with an oath, " That was what I intended." 78 STATE V. BAKER. The second branch of the charge was as favorable to the prisoner as well could be. His Honor confined the attention of the jury carefully to the transaction at the fire in the yard at Prince's, throwing out of view en- tirely, the previous fight at Hays', the same night. The jury were instructed that if the testimony were believed, the case was one either of murder or manslaughter ; and whether one or the other, would depend mainly upon the view which they might take of what took place at the time when the blow was given ; for, as the parties had made friends, if a legal provocation was given, the conduct of the prisoner was to be ascribed to that, and not to any previous quarrel." The charge then pro- ceeds : "If, after words of anger the prisoner had taken up his axe and approached the deceased, with a present purpose and design to take away his life, or to do him some great bodily harm, and the jury should, from the facts, be of opinion that the deceased had 8ufl[icient grounds to believe that such was the intention of the prisoner, after the enquiry and warning given, he (the deceased), had a right to defend himself, and the throw- ing the chunk of fire, though the prisoner might not have been within striking distance, would not furnish such a legal provocation as to excuse the act of the prisoner, and it would be a case of lAurder." The Judge then places the case upon the opposite hypothesis, that the prisoner had no present intention, and leaves it as a proper enquiry for them, and closes with the usual charge as to reasonable doubt. There can be no doubt as to the ■correctness of the charge upon this point in the view which his Honor took of the reconciliation. According to the evidence, when the prisoner advanced toward the deceased, it was with a deadly weapon, raised after a quarrel; the deceased challenged him as to his inten- tion of killing him; the prisoner made no reply, but continued to advance upon him ; he was told if he did not stop, the deceased would knock him down; this threat did not stop him ; the deceased was unarmed, aSee Copeland's case, anto, on the subject of "old grailge." OPINION — LAWFUL RESISTANCE. 79 and when the prisoner was within eight or nine steps of him, not near enough to strike, the deceased threw the chunk. He then endeavored to make his escape; the prisoner pressed upon him while so retreating, and gave the fatal blow. Death ensuing, the prisoner was guilty ■of murder. If, when the prisoner was advancing upon the deceased with his axe, the latter had killed him, he would have been justified in law. A man may kill another who assaults him in the highway to rob or murder him. So may any man justify a homicide to prevent the person slain from committing a felony. Hawk. B. 1, ch. 10, §21. ISTow, was it necessary for the deceased in this case, to wait until the prisoner got near enough to strike with his axe ? In such case, it might be too late to protect himself. Thus, if a man is ad- vancing upon me with a drawn sword, or a loaded pistol, with the avowed purpose to kill me, I am not called on to wait until he gets within the distance necessary to execute his purpose, but the law allows me to arrest his progress at any moment my safety demands it. The deceased then, had a right to strike the prisoner with the chunk of fire, as stated in the case, and it was not in law, a legal provocation to extenuate the killing of the deceased into manslaughter. 4 Bla. Com. 180. Judgment affirmed. . NoTB, — To justify killing in self-defence, the danger must be imminent. Thompson's case, ^os<. And not in machination only. McLeod's case, joosi. And evidenced by overt demonstrations. Harrison's case, ante, ; Lander's case, post; D3'son's case, post; Scott's case, post; Rippy's case, post; Evans' case, ^josif,- Hinton's case, post; "Williams' case, ^osi. But as to when it may he said to be imminent, no general rule can be laid down. JIach case must depend on its own circumstances. Cotton's case, post; Robert Jackson's case, post. The threatened danger may be impending every moment and everywhere, as in case of an abandoned, blood-thirsty man .seeking another's life ; and then the person threatened is not obliged to run away, nor to wait for the danger to fall, but may secure himself by killing his adversary. Philips' case, post; Carico's case, posi; Young's case, post; Bohannon'8 case, pcwi. Contra, Lander's case, post. It vdll also be sufficient if the diinger be apparently imminent. Sullivan's case, ■ante ; Shorter's case, poti, and note. 80 HOPKINSO>; V. TUE PEOPLE. -HOPKINSON V. THE PEOPLE. ' [18 III., 264.] Supreme Court of Illinois, April Term, 1857, Walter B. Soates, Chief Justice. John D. Catok, ) Afinrinfp TvpAntr, p. 18. 102 ' THE STATE V. WEELET. Court did not intend. And the complaint made against the instruction, which stated the law upon the assump- tion that Casady fired the first shot under circumstances of supposed danger to his person, cannot avail ; for it is based upon almost precisely a similar state of facts as that above given by Paekek, J. For the prisoner and for the State, this rule, as applied to danger believed to be evident, was clearly stated ; and there is, in our opin- ion, no ground for concluding that the jury could justly or fairly have been misled by the language of which counsel now complain. And this view is more apparent, when it is remembered that this was a personal conflict, a conflict too, which the State claims was premeditated on the part of the prisoner. This claim leads to the con- sideration of the next error relied upon by the defendant. This instruction was given at the request of the State :. "If, therefore, the jury believe from the evidence, that the defendant brought on the difiiculty by voluntarily returning to the vicinity of the deceased, with a deadly weapon, for the purpose of provoking a difficulty, his plea of self-defence would be of no avail ; and, in that case, it would make no diff'erence who fired the first shot." Another instruction of the same purport was given, except that the words " with the intent of having an affray " were used instead of " for the purpose of pro- voking a difficulty." And the correctness of these in- structions really presents the question of most doubt in the case. After due reflection, however, we have con- cluded that the law was correctly stated. And it is upon this plain principle that one cannot willingly and knowingly bring upon himself the very necessity which he sets up for his defence. What we mean is, that if the prisoner, with a loaded weapon, sought the deceased with the view of provoking a difficulty, or with the intent of having an aflray; and a difficulty did ensue, he can- not, without some proof of change of conduct or action, excuse the homicide upon the ground that the deceased fired the first shot. There then, is no pretence that the deceased put into exercise any intention (if such exfeted^ THE VERDICT SUSTAINED. 103 of withdrawing from the combat, which according to the hypothesis of the instruction he sought, but by seeking and continuing therein, he brought upon himself the necessity of killing his fellow man. Under such circum- stances, the law will not hold him guiltless. 1 Hale, P. C. 482; 1 Hawk, P. C. 87; Bish. Cr. L. 648, 649;* State V. Hill," 4 Dev. & Batt. 481 ; People v. Stonecifer, 6 Cal. 405. We remark in conclusion, on this point, that the use of the words "a difficulty " instead of the difficulty, cannot change the result, since the intention [instruc- tion] in this case, as in all others, must be understood as applying to the facts developed on the trial, and not to a possible or" hypothetical case. It only remains to enquire whether the testimony war- ranted the verdict. We have examined it with all the care due a case of so great importance to the prisoner. The offence is among the gravest known to our law. The prisoner stands committed to the penitentiary for the term of fifteen years. There are, it must be admitted, some circumstances of great weight which render improb- able the testimony of the principal witnesses on the part of the State. Of all these matters, however, the jury were the proper judges. The case seems to have been carefully tried and ably defended by the prisoner's counsel. There is much conflict in the testimony. If the witnesses present at the homicide are to be believed, it was entirely unprovoked, and the prisoner should have suffered even a severer penalty. The weight due to these statements was for the jury. And in a case turning upon so many conflicting circumstances, when so much depends upon the credibility of the several witnesses, when the jury, after a patient, and, as we are bound to presume, an impartial examination of the whole case, has felt compelled to conclude that the prisoner was guilty as charged, we could not, within any of the cases •Vol. 1,5th ed.,?? 869, 870. bThis is a very able exposition by Judge Gaston of the law of self- defence in mutual combat, and of manslaughter upon sudden provocation and heat of blood. Pos<, p. 199. 104 THE STATE V. NEELEY. heretofore decided, or upon any fair rule, interfere with the action of the Court below in refusing to disturb the verdict. Judgment affirmed. Note. — With regard to the ruling upon that part of the instruction which states that the clanger must be actual, it is doubtful, notwithstand- ing the eminent character of the Court, whether it finds much support in otlier cases. Without stopping to discuss the question liere, it will be suffi- cient to refer to the note we have made to Shorter's case, post, from which it will appear that nearly all the American cases concur in the doctrine that it is sufficient if the danger appear to be imminent to the comprehen- sion of a reasonable man, although it may not in fact exist. The fact that the law upon the point in question was elsewhere very clearly and ex- plicitly charged, is stated in tlie principal case ; but we are not informed with what degree of particularity or emphasis it was so laid down. In the State v. Hill, 4 Dev. & Batt. 491, it was held that an erroneous instruction upon a particular point, is not cured by a correct instruction, upon the same point couched in general terms. The language complained of in the principal case seems to have been quoted by the Court in Thompson's case, ante, in a rather loose manner from § 1020 of Wharton's Criminal Law. In the caption of this section of Wharton, the proposition is stated that "as a general rule, the danger must be actual and urgent.'''' Under this caption, the first proposi- tion stated is, " To make homicide excusable on the ground of self-defence, the danger must be actual and urgent.'''' In support of this proposition, Mr. Wharton cites U. S. v. Vigol, 2 Dallas, 346 ; Com. v. Crause, 3 Ameri- can Law Jour. N. S., 299, and Lander's case, 12 Tex. 462, post. The first of these cases was a trial for treason, the defendant having been actively engaged in the whiskey insurrection in Western Pennsylvania. In charg- ing the jury, Mr. Justice Patterson said : " The counsel for the prisoner have endeavored, in the course of a faithful discharge of their duty, to extract from the witnesses some testimony, which might justify a defence upon the grounds of duress and terror. But in this they have failed ; for the whole scene exhibits a disgraceful unanimity : and with regard to the prisoner, he can only be distinguished for a guilty pre-eminence in zeal and activity. It may not, however, be useless on this occasion, to observe that the fear which the law recognizes as an excuse for the perpetration of an offence, must proceed from an immediate and actual danger, threaten- ing the very life of the party. The apprehension of any loss of property, by waste or fire; or even an apprehension of a slight injury to the person furnish no excuse. If, indeed, such circumstances could avail, it would be in the power of every crafty leader of tumults and rebellion, to indemnify his followers by uttering previous menaces ; an avenue would be forever open for tlie escape of unsuccessful guilt; and the whole fabric of society must, inevitably, be laid prostrate." It is needless to add a word to show that this case refers only to the imminence and character of the danger which is necessary to constitute such duress as will excuse a person in com- mitting crime, and has no reference, unless in a very remote degree, to the 105 .subject niattcr of Mr. Wharton's text. The second case quoted by Mr. Wharton, was Dillon, J. The eighth section of the Court's charge, (the only portion excepted to by the appellant) was this : " A person may repel force by force, in defence of his person, habitation or property, against one who mani- festly intends or endeavors, by violence or surprise, to commit a known felony upon either ; and if a conflict ensue in such case, and life is taken, the killing is j usti- fiable. It must be proved that the assault was im- minently perilous. And unless there be a plain mani- festation of a felonious intent, no assault will justify killing the assailant. A party is not compelled to flee from his adversary, who assails him with a deadly weapon before he can justify the homicide. The assault may be so fierce, as not to allow the party assailed to yield a step without manifest danger to his life, or enormous bodily injury. In such case, if there be no other way of saving his own life, he may, in self-defence, kill his assailant. But the rule of law is different when the attack is not felonious. * * * [The omis- sion here indicated occurs in the original report. — Eds.] An assault, without a weapon of any kind, by a quarrel- some and violent man upon another, when there is no reason for the belief by the person attacked, that his person was in danger of death or great bodily harm, but that an ordinary battery was all that was intended, and all that he had reason to fear from the acts of his assail- ant, the party assailed has no right to take the life of such assailant." It will be perceived that this portion of the charge was taken from the judgment of the Court, in the State of Iowa V. Thompson," 9 Iowa, 188. That it is the law, unless changed by statute, admits of no doubt. Fost. 273, 277; 1 East P. C. 272, §44; 273, §45 ; 221, §7, p. 3 ;" Hawk. P. C.,§23;' Id. 87, §13. » Ante, p. 92. 1) This last citation is evidently a misprint.— Eds. c The citations of Hawkin's Pleas of the Crown in this case, are evi- dently to one of the early additions. The last edition — that of Garwood, London, 1824, — entirely transposes the arrangement of the first volume. This edition appears to be generally in use in this country. Therefore, in 110 THE STATE V. KENNEDY. Upon the law of homicide, there is no higher authority than Mr. Justice Foster. By no other writer have the general principles of self-defence been so clearly and concisely laid down. Fost. 273, 277. Speaking of in- stances like the present, where death has resulted in a case of mutual conflict, he sums up the law as follows : "He, therefore, who in a case of mutual conflict, would excuse himself upon the foot of self-defence, must show that before a mortal stroke was given, he had declined any further combat, and retreated as far as he could with safety ; and also that he kiUed his adversary through mere necessity, and to avoid immediate death. If he failed in either of these circumstances, he will incur the penalties of manslaughter." Fost. ch. 3, p. 277. Mr. East lays down the rule somewhat less rigid, as follows : " He must have no other possible, or, at least probable, method of escaping his own immediate de- structi®n or great bodily harm." 1 East P. C, p. 221, § 7. And the rule as thus stated by Mr. East, was the one adopted by this Court, in the case of The State of Iowa V. Thompson, above cited ; and the same riile pre- vails generally in this country. Further than this, the law cannot be relaxed without ignoring or disregarding the sanctity of human life ; and further than this, we have no disposition to go. We reaffirm the case of The State of Iowa v. Thompson, supra. The defendant contends, however, that the rule as stated in the case last cited, has been changed by §§4442, 4443 of the revision. These provide as follows: §4442, " Lawful resistance to the commission of a public offence may be made by the party about to be injured, or by others." §4443, "Eesistance sufficient to prevent the offence may be made by the party about to be injured — 1. To prevent an offence against his person. 2. To pre- vent an illegal attempt by force to take or injure prop- erty in his lawful possession." The defendant's counsel argue thus : " If the offence citing Hawkins, at least, the first volume, the edition should bo stated —Eds. CONCLUSION FROM UHE FACTS. Ill cannot be prevented except by the killing of tne person attempting to perpetrate it, the killing will be justifiable. The statute does not limit the right to resist to a Jcnown felony, but gives the right to make a suffi- cient resistance, which includes misdemeanors as well as felonies. Eevision, § 4218. The nature of the resist- ance, however, must as before, have regard to the nature of the offence about to be committed. Under the statute, I may slay a robber or a burglar in my dwelling in the night time, as I might at common law. But if one attempt to commit an ordinary assault and battery upon me, or take my goods, or cut down my timber, as a trespasser merely, or is simply attempting to pick my pocket, [1 Hale, 488,] though I may justify beating him so as to make him desist, and sufiiciently to accomplish the purpose, yet if I make use of a deadly weapon and slay him, I will not stand justified in the eyes of the law. 1 East P. C, 272, §44; 1 Hale, 485, 486 ; 1 Hawk. P. C, ch. 28, §23" ; Regina v. Smith,^ 8 C. and P., 160, per BosANQUET, J. ; Wild's case,' 2 Lew. C. C, 214. The deceased had no weapons. Every person upon whom he could rely for help, had fled the room alarmed and panic stricken. The appellant knew his brother was near, even if he was not actually present, aiding and d See preceding note. « See the next case. fThis case was tried at the Liverpool Spring Assizes, 1837. The prisoner was indicted for manslaughter. It appeared that the deceased had entered the prisoner's house in his absence. The prisoner, on return- ing home, found him there, and desired him to withdraw, but he refused to go. Upon this, words arose between them, and the prisoner becoming excited, proceeded to use force, and by a liick: which he gave to the deceased, caused an injury which produced his death. Aldbrson, B.— '' a kiclc is not a .Justifiable mode of turning a man out Of your house, though lie be a trespasser. If a person becomes excited and being so excited, gives to another a Icick, it is an unjustifiable act. If the deceased would not have died but for the injury he received, the pris- oner having unlawfully caused that injury, he is guilty of manslaughter." Ill Fenton's case, 1 Levidn C. C. 179, Tindal, Ch. J., said, " If death ensues as the consequence of a -^Tongful act, an act which the party who commits it can neither justify nor excuse, it is not accidental death but manslaughter." See as to homicide by misadventure aud involuntary manslaughter, Benham's case, post. 112 THE STATE V -KENNEDY. assisting him. The jury has found, under appropriate instructions, that the resort to a deadly weapon was not necessary. That finding is in our judgment most clearly supported by the evidence. That the appellant was, at least, guilty of manslaughter, we entertain no doubt. The State of Iowa v. Decklotts, 19 Iowa, 447. The most that deceased did, was to commit an ordinary assault, one accompanied with no imminent bodily danger, and which the Kennedys had done much to provoke. The jury should not have been told, as the appellant's counsel has argued they should, that if John Kennedy could not otherwise protect his person from such an assault, he was justified in killing Dolan. The State of Iowa y. Neeley, 20 Iowa, 108 f State of Iowa v. Decklotts,'^ supra. Human life in Iowa is not so cheap, nor its legal tenure so precarious as such a doctrine would make it. Judgment affirmed. fAnie, last case. hin Decklotts' case, in the course of a very able opinion, Dillon, J.. said: Finally, it is urged that the verdict is against the weight of evidence. That the defendant killed the deceased is not denied. It was claimed by the defendant, upon the trial, that the killing was excusable honiicide, because done in self-defence, or in defence of his property and home. Upon any view of the evidence, even taking the evidence adduced by the defendant, this theory is wholly inadmissible. The only doubt which could exist, would be, whether the real offence was, as the jury found, murder in the second degree or manslaughter. An outline of the material facts may thus be given : The defendant kept a saloon and grocery store in Cedar Rapids. The offence was committed on the nightpreceding Christmas, A. D., 1864, at ten or eleven o'clock, p.m. The deceased was a young man, and he and some of his companions were out for a spree, and were more or less under the influence of liquor. In the earlier portion of the evening, they drank at the defendant's saloon. Others were in there at the same time. The deceased and his party left, and visited other saloons, and drank. The deceased, in the course of the evening, heard that the defendant had accused him of stealing tumblers when he was in his saloon ; and he, with three other persons, started for the defendant's premises. It was now quite late at night, near eleven o'clock. The defendant's house, (one part of which was a grocery store, another, a saloon, with counter, shelves, etc., and another, the place where the defendant and his family resided), was still open. The testimony is conflicting as to whether the deceased and his associates broke open the doors and forced their way in. It was also conflicting in some other re- spects. The testimony of Maxwell, who happened to be in the house, and NOTE — DECKLOTTS' CASE. 118 not In any way connected ynth the disturbance, is, perhaps, substantially correct. He says, that the deceased and his companions, after getting in, went up to the counter in the middle room, ! nd called on the defendant for something to drink. Defendant said, " You go away ; you cannot get any drink from me. You stole my tumblers." Then Akers, the deceased, called him a liar, and a damned liar, and said, " I put down a dollar bill and got no change." Akers wanted his change, and defendant said he had got it. Defendant was at end of counter. When Akers called defendant a liar, they had their hands against each other's shoulders. They separated, and defendant went behind the counter. Hunter, (one of the associates of the deceased,) took Akers back on the floor. Defendant repeatedly told Akers to go away. Akers denied stealing the tumblers, and said the other boys did it. Neither Hunter nor the others did or said anj'thing, until Hunter remarked : " It is too bad to accuse our boys of stealing." Deceased and defendant called each other liars. Then Akers made at defendant, and the latter pushed him away. Akers tried to get at defendant. They were close enough to put their hands on each other. Hunter took hold of Akers, and pushed him back, and said, "You must not have any fuss." Defendant then stepped behind the counter, got his pistol down, when Akers made at him. Defendant then said to Akers, "I will show you if you don't." Defendant reached the pistol over the counter three or four times. Akers then stepped back, pulled off his coat. The next I saw, he was shot, and he feU, and died. Akers had no weapons of any kind, and he and the defendant were about the same size. After the defendant shot, I heard him say, " I told you that is the way I do." Koke, (one of the associates of the deceased), testified, among other things, " I first saw the pistol in the defendant's hand ; he reached across the counter by making two or three motions, and levelled his aim two or three times, so as to bring it level. Akers was three feet from the counter. The counter was eighteen inches wide, and the defendant was behind the counter when the shot was fired." Mrs. Decklotts testified, that the deceased did steal a tumbler, and put it in his pocket ; that the door was locked when the party returned ; that deceased and his party (except Hunter), broke the lower bolt, and forced their way in ; that Akers first commenced about the tumbler ; that defend- ant did not accuse him of stealing it, but simply said it was gone ; that somebody had it. Akers then struck the defendant, and hit his arm or shoulder ; pulled ofi' his coat, and went at him again. Defendant had told him two or three times to leave the house. Akers made a motion, (being near the counter, and defendant behind it,) as though he wanted to get something out of his bosom, " as though he was taking something out of his bosom," and then it was that the shot was fired. Both parties were excited and mad. Another woman, (a German), an inmate of the house, but who did not understand what was said, testifies as to the motion of the deceased toward his bosom. But the other witnesses say nothing of this. Mrs. Decklotts also testified, that about three-quarters of an hour before the shooting, she heard Akers, who, with one other person, was outside, say " he was going in, and was going to clean out and kill the d d Dutchman." This is not corroborated by any other witness. Some of the State's witnesses deny that there were any blows passed 114 NOTE — DECKLOTTS' CASE. prior to the shooting. It was proved that the defendant was accustomed to Iceep the pistol behind a glass, inside of the counter. It is not a little difHoult, frequently, even where the testimony is not conflicting, to determine what shall be considered murder or manslaughter. This is particularlj' difficult where the evidence, as in the present case, is conflicting, or the facts complicated. The boundaries between murder and manslaughter cannot always be distinctly ascertained and traced. The rules of law are plain, but their application difficult. When death ensues from the sudden transport of passion, or heat of blood, upon reasonable provocation, without malice, the oifence is manslaughter, but not murder. 1 Russ., 580; 1 Hale, 466; 4 Bla. Com., 191. What is reasonable and adequate provocation, which in such cases'is taken to extenuate the killing from murder to manslaughter, is a question upon which it is ob'vious, different opinions wDl, in many instances, be enter- tained. Considering here the deadly nature of the weapon used ; that the de- ceased was without weapons ; that the defendant was in no great, if, indeed, in any danger of his life or serious bodily harm ; that he was several feet distant from the deceased, and protected by a counter from any assault that he might make ; we say, if these be considered to be the essential facts, it is a plain case of murder, as distinguished from manslaughter. But if we should regard it as established, that the deceased and his party had threatr ened violence against the defendant ; had forced open his house to provoke a contest ; that defendant believed that deceased, in any contest with him, could rely upon the sympathy and aid of his companions, and that they were sufficient to overpower him and his friends ; that the defendant, when he shot, also believed that the deceased was reaching in his bosom for a weapon, and that he thereupon shot instinctively and not deliberately, the pistol lying there, and not having been purposely provided ; these cu-cum- stances, in connection with the insolent behavior of the deceased, would go very far toward, if indeed, they would not be sufficient, to reduce the ofl'ence to manslaughter. Under instructions which laid down the law correctly, but not as fully and as pointedly as would be desirable, the jury have found the offence to be murder in the second degree, and not manslaughter. Taking the whole evidence together, we think this was a correct conclusion. The danger to tlie defendant was really nothing, and was not even apparently imminent and great. His use of a loaded pistol, under these circumstances aimed at the breast of the deceased, the natural result of which would be to take life or iuflict great bodily injury, indicates very strongly that this was his In- tention, especially if the testimony of his deliberateness of aim be credited ; and if so, the offence was murder. It would have been a very different question, if the weapon used had been one not likely to endanger lite, or if the deceased had himself been seen to be armed with a dangerous weapon, or if his companions had been counseling and stimulating him to make an assault upon the defendant, instead of endeavoring to dissuade him from it. The occurrence is truly a most unfortunate one. The conduct of the deceased was highly blameworthy. He it was that provoked the difficulty, instigated, doubtless, by the liquor wliich he drank, and to the use of STATE V. BENHAM. 115 ■which he became a victim. The only mitigation his conduct finds, if it finds it at all, is in the fact that he was intoxicated, and in part by Uquor soU him by the defendant. It would not do to hold that a saloon keeper may sell a man that which steals away Ida senses, overthrows his judgment and clouds his reason, makes him boisterous, quarrelsome and offensive ; and then, himself being in no serious danger, shoot him dead because he is unreasonable, insulting and quarrelsome. The Court, however, under jjie circumstances, reduced the quantum of punishment fi'om sixteen to ten years in the penitentiary. STATE Y. BENHAM. [23 Iowa, 154.J Supreme Court of Iowa, June Term, 1867. Ralph P. Lowe, Chief Justice. John F. Dillon, | Chester C. Cole, V Judges. George G. Wright, ) NON-FBLONIOrS ASS.^ULT— DEFENCE AGAINST THREATENED DEATH OR ENORMOUS BODILY HARM — ^ASSAILED MOST ENDEAVOR TO RETREAT BEFORE KILLING — ORDINARY ASSAULT NO EXCUSE FOR KILLING — IP DEFENDANT SEEK THE QUARREL, WHAT — ElGHT TO KILL IN DEFENCE FOUNDED IN NECESSITY ONLY — KILLING TO PREVENT ENORMOUS BODILY HARM JUSTIFIABLE — HOMICIDE BY MISADVENTURE. ^ . Where, in a prosecution for murder, it appeared that the defendant wii.^ a boy only sixteen years of age, that the deceased was a large and strong man, that they accidentally met and engaged in a dispute, in which the deceased became angry and threatened to "thrash" defendant, and Mdvanced upon him for that purpose, with an ox-gad, when he was mor- tally wounded by the discharge of a gun in the hands of the defendant, ii was held, that the physical capacity of the parties, the size and character of the ox-gad, the manner in which the deceased threatened to use it, and in whicli he entered upoH the execution of the threat, were important con- siderations for the jury, in determining the question whether defendant, in what he did, acted within the law of necessary self-defence, and that, for this purpose, the jury should have been instructed to consider these cii- cumstances. [See as to the relative strength of tlie parties, Selfridgo's (■ase, ante; Copeland's case, ante; Thompson's case, ante.'] 2. If all the circumstances show an intention on the jiart of an assailant lo lake the life of the assailed, or to do hiin snmo enormous bodily injury. 116 STATE V. BENHAM. then the person assailed may lawfully take the life of his assailant, provided he uses all the means in his power, otherwise, to save his own life or pre- vent the threatened harm ; such as retreating, if the assault be not so sud- den, fierce and dangerous as to render retreat unsafe, or, if retreat is act practicable, then by disabling, instead of Isilling, his adversary, if it is within his power simply to disable him. [Ace. Parker, J., in Selfridge's case, ante, pp. 17, 18 ; John Doe's case, ante ; Regiua v. Smith, post. And see note to Selfridge's case, amie.] 3. But if the person assailed had no reasonable ground to believe that he was in danger of death or great bodily injury, but, on the contrary, that his assailant only intended a simple or ordinary non-felonious assault,. simply intended to chastise or whip him, then the person assailed would not be justified in taking the life of his assailant, because it might be regarded as dishonorable or disgraceftil not to stand his ground. [Ace. Selfridge's case, ante; Thompson's case, ante; Stewart's case, post; John Kennedy's case, ante. Nor to repel a non-felonious trespass upon pron- erty : Harrison's case, ante, and citations.] 4. Nor can a defendant justify his act under the plea of self-defence, if he sought the deceased with a view to provoke a dilficulty or bring on a quar- rel. [Ace. Selfridge's case, a«ie ; Neeley's case, anie; Stewart's case, posi; Adams' case, ^josi; Evans' case, post. And see Hinton's case, ante, and note, and Baker's case, ante.'] 5. The law regards human life as the most sacred of all interests com- mitted to its protection ; and there can be no successful setting up of self- defence, unless the necessity for taking life is actual, present, urgent — unless, in a word, the taking of his adversary's life is the only reasonable resort of the party to save his own life, or his person from dreadful harm, or severe calamity, felonious in its character. 6. Where, in a prosecution for murder, the Court instructed the jury, that in order to make out self-defence, the taking of the life of the deceased must have seemed to the defendant reasonably necessary to save his own- life, the charge was held to be erroneous, because it omitted to give the defendant the benefit of the plea of self-defence, if he took his assailant's life to save himself from imminent and enormous bodily injury. [Ace. Burke's case, post ; Maher's case, post.] 7. Wlien an instruction relating to the law of self-defence, is so drawn, that when applied to the particular facts of the case, it might mislead the jury, it will be held erroneous. For an example of this kind, see the opinion. 8. The accidental killing of another, when done in the prosecution of an unlawful act, is not excusable homicide; but if one doing a lawful act, and using proper precaution to prevent danger, accidentally kill another, the law excuses the killing. 9. If one point a loaded gun at another under circumstances which would not justify him in shooting the latter, who seizes it, and struggles for it, to save himself from the menaced injury, and in the struggle the gun is accidentally discharged, causing the death of the person at whom it was pointed, the other cannot claim that the homicide was justifiable. STATEMENT OF THE PACTS. 117 'Aliier, if he had pointed the gun at the deceased, and it "went off" under circumstances in which it would have been lawful for him to have dis- Ante, p. 92. c John Kennedy's case, ante, p. 106. msTEUCTiojsr misleading the juet. 123 Thus, in the eighth instruction, the Court charged that in order to make out self-defence, the taking of the life of the deceased must have seemed to the defendant, reasonably necessary to save his own life ; thus omitting to give the defendant the benefit of the plea of self- defence if he took his assailant's life to save himself from imminent and enormous bodily injury, felonious in its character. See on this subject. State v. Kennedy,'' 20 Iowa, "569 ; State v. Thompson," 9 Iowa, 188 ; State v. WeUs,f 1 Coxe, (N. J.) 424 ; State v. Decklotts,^ 19 Iowa, 447; State v. JSTeeley," 20 Iowa, 108.' Then, again, the twelfth instruction is quite faulty, especiatly in its application to the circumstances of the case. It contains this language : " Proof of angry words, actions or gestures, expressions of contempt without blows, without any assault, would not be sufficient to reduce the crime to manslaughter. But if the assault is made and death ensues to the party assaulting, and there is no evidence of deliberation, it would be man- slaughter, and if the assault w'as violent, and the in- strument or weapon used was a dangerous weapon, as a loaded gun, and such assault was under such circum- stances as would lead a man of ordinary prudence to fear for his life, then, if death foUows to the assailant, the killing would be justifiable. This instruction to have any application, must refer to the assault of the deceased upon the defendant. But the deceased had no loaded gun. It was the defendant who had the gun. By the use of this illustration of a deadly weapon in the hands of an assailant, it would be ■ very easy, if not natural, for the jury to construe this instruction, as referring to an assault by the defendant with a loaded gun upon the deceased. Such a state of facts is just the reverse of the case before the jury. If the jury should believe that the defendant dis- Judges. "Wm. E. Miller, ) Killing to pkevbxi gebax bodily harm. a person may lawfully take the life of his assailant, when such killiuo- is reasonably necessary to save himself from imminent and great bodily harm. The right of self-defence exists in such cases, the same as it does where the killing becomes necessary to save life. A person may excusabh use the necessary force to save himself from any felonious assault. [Foi- lowing State v. Benham, ante."] Appeal from Black Hawk District Court. The defendant was indicted for manslaughter at the September term, 1869, of the Black Hawk District Court. The cause was tried at the May term, 1870, a verdict of KILLING TO PREVENT GKEAT BODILY HAEM. 127 guilty rendered, and the defendant sentenced to hard labor in the penitentiary for one year and six months ; from which judgment he appeals. Boies, Allen & C(mc'h, for the appellant ; Henry 0' Con- nor, Attorney-General, for the State. MiLLEE, J. — That the deceased, Henry Guyer, came to his death by reason of a blow inflicted by the defendant with a club or stick of wood, is not questioned. The defence insisted upon in the District Court was, that the blow was struck by the defendant in reasonable seK-defence, when attacked by the deceased and his brother, George Guyer. The evidence shows that the defendant, the deceased, and several other persons were at the house of one Conrad Paul, on Sunday evening, November 31, 1869; that the defendant and George Guyer quarrelled, and the deceased interfered, taking his brother's side in the quarrel. Paul protested against their quarrelling in the house, and requested them to desist or go out. This seemed to quiet the parties for a time, when it was proposed by some one of the company that they would go home, and they all went out of the house appar- ently for that purpose. It was then quite dark. When aU were out of the house and a short distance therefrom, the quarrel between the defendant, the deceased and George Guyer, was renewed, and a fight with clubs ensued, in which the defendant struck the blow that caused the death of Henry Guyer. The witnesses are not agreed as to who made the first attack. There was evidence tending to show that the Guyers made the first attack, and that the fight was forced by them on defend- ant. The medical witnesses testified that the skull of the deceased was much thinner than an ordinary human skuU, and that a lighter blow would produce the injury found in the skuU of deceased than on an ordinary skuU. On the trial, the defendant's counsel requested the fol- lowing instructions : " If the jury believe that George 128 STATE V. BUEKE. Guyer and the deceased made the first attack iipoii the defendant, armed with clubs, from which he had reason to, and did, believe that he was in imminent danger of great iodily Tiarm, it was lawful for him to resist such attack with a weapon of like character to that used by his assailants, and if, in the use of such weapon, while exer- cising reasonable care to produce no greater injury than was necessary to protect himself from great bodily injury, he unintentionally gave a blow which would in ordinary cases, have been no more than was necessary to repel the assault made upon him, but which, by reason of the peculiar character of the skull of the deceased, or of the particular place where the blow hap- pened to fall, did produce death, the defendant would not be guilty of the crime charged. "If the jury believe that G-eorge Guyer and deceased, acting in concert and with the intention of inflicting great bodily injury upon defendant, made an attack upon him, armed with clubs, and struck him the first blow, and that they were in such close proximity to him at the time of such attack, that he could not retreat without danger of great bodily harm, then he had the right to resist such attack with a weapon of the same character as those used by his assailants, and if, in using such weapon, while exercising reasonable care to apply no more force than was necessary to repel the attack upon Mm, he accidentally and unintentionally gave a blow to his assailant which produced death, "such act would not be criminal, and the jury should not for that reaspn convict. " If the jury believe that George Guyer and deceased, acting in concert, and with the intention of inflicting great bodily harm upon defendant, attacked him with clubs, the defendant had the right to resist such attack with a weapon of like character, and if, in the necessary defence of his own person, and without using any more force, or a more dangerous weapon than was being used against him, he inflicted a blow which he had reason to, and did believe, was necessary for his own protection. OPINION — GREAT BODILY HARM. 129 but "wMch, unintentionally upon Ms part, produced death, such, act would not be criminal, and the jury should acquit." The Court refused each of these instructions, and gave the following, touching the right of self-defence : "If the jury believe from the evidence that the de- fendant, w-ithout solicitation and against his will, was attacked by the deceased with a deadly weapon, and the attack was such as to create a fear of death in the mind of a person of ordinary courage and prudence, and did create such an apprehension in the mind of the de- fendant, then he would be justified in using a similar weapon with prudence and caution in defending himself, and if you find from the evidence, that in the exercise of such prudence and caution, and in reasonable fear of imminent danger to his own life, the defendant took the life of the deceased, you must find the defendant not guilty." To the giving of this instruction, and in refusing those asked by the defendant, proper exceptions were taken. There was error in the rulings of the Court. By refusing the instruction asked by the defendant and giving the above, the Court denied the defendant the benefit of the plea of self-defence if he took his assail- ant's life to save himself from imminent danger of great bodily injury. The law gives a person the same right to use such force as may be reasonably necessary, under the circumstances by which he is surrounded, to protect himself from great bodily harm, as it does to prev^t his life being taken. He may excusably use this necessary force to save himself from any felonious assault. It was expressly so held by this Court, in the case of The State V. Benham," 23 Iowa, 154, 162. The same view is supported in the following cases : The State v. Thomp- son,* 9 Iowa, 188; The State v. Decklotts," 19 Iowa, 447; The State v. JSTeeley,"^ 20 Iowa, 108 ; The State v. Ken- nedy,^ 20 Iowa, 569. '•■Ante, last case. •> Ante, p. 92. ''Ante, p. 113, note, d^nie, p. 97. • Ante, p. 106. 130 EEGIJSTA V. SMITH. The judgment of the District Court is reversed, and a new trial ordered. Judgment reversed. REGINA V. SMITH. [8 Cak. & Pay., 160.] Central Criminal Court, October Session, 1837. i Me. Justice Bosanqtjet, Present I Mr. Baeon Bollawd, ( Me. Justice Coltman. Killing with deadly weapon — Degrees of Homicide. 1. If a person, being in possession of a deadly weapon, enter into a con- test with another, intending at the time to avail himself of it, and in the course of the contest actually use it and kill the other, it will be murder ; but if he did not intend to use it when he began the contest, but used it in the heat of passion, in consequence of an attack made upon him, it will be manslaughter. If he use it to protect his own life, or to protect himself from such serious bodily harm, as would give him an immediate apprehen- sion that his life was in danger, having no other means of defence, and no means of escape, and retreating as far as he can, it will he justifiable homicide, [See John Kennedy's case, ante, where this case is cited.] The prisoner was charged, on the coroner's inquisition, with the wilful murder of James Chaplin ; he was also indicted for killing and slaying him. The prisoner was a private of the Cold Stream Guards, and was discharged on the 11th of October ; and on the evening of that day went to the Three Horse Shoes, at Hampstead, in company with a person named Burkhill, and his brother, Richard Smith. There, were two more soldiers in the public house. A dispute arose about paying the reckoning, and a fight took place between the prisoner and a man named Burrows. In the scuffle Burrows fell down by the fire-place on his knees, and the deceased jumped over the table and struck the pris- STATEMENT OF THE FACTS. 131 •oner. The deceased was turned out "by the landlord, but was admitted again in about ten minutes, and the par- ties all remained drinking together after that for a quar- ter of an hour, when the prisoner and his brother went out. The deceased remained about a quarter of an hour after the prisoner, and then left. The prisoner and the deceased were both in liquor. The deceased tried to get out directly after the prisoner and his brother left, but was detained by the persons in the room. As soon as they let him go, he jumped over the table and went out of the house, saying, as he went, that if he caught them he would serve them out. The deceased was a per- son who boasted of his powers as a fighter. He fol- lowed the prisoner and his brother into a mews not far from the place where they had been drinking, and a wit- ness who lived near, stated that he heard a noise and went to the door of his house, and then heard a bayonet fall on the ground, and on going out into Church-lane, heard a person named Croft crying out, " Police ! Police ! a man is stabbed ;" and on going up, found the deceased lying on the ground wounded. Croft stated that he was in Field-place, near Church-lane, and heard voices, which induced him to run toward a bar there, and when within a yard of the bar, he heard a blow like the blow of a fist. This was followed by other blows ; and after the blows, he heard a voice say, " Take that ;" and in half a minute, to the best of his judgment, the same voice said, "He has stabbed me." The wounded man then ran toward him, and he discovered it to be the deceased. He said, " I am stabbed," three times, and soon after fell on the ground. The prisoner was soon afterward taken into custody, and was then bleeding at the nose. Sev- eral other witnesses were examined ; the prisoner had no side-arms, but his brother, who was with him, had a bayonet. For the defence, the prisoner's brother was called as a witness, and stated that when they had got about twenty yards through the bar mentioned in Croft's evidence, he heard somebody say something, but did not take notice 132 EEGIWA V. SMITH. of it, and deceased came up and struck him on the Iback of the head, which caused him to fall down, and his bayonet fell out of the sheath upon the stones, and the deceased picked it up, and followed the prisoner, who had gone on. There was a great struggle between them, and very shortly after, the deceased cried out, "I am stabbed ! I am stabbed !" Several other witnesses were called, who proved that there were wounds on the prisoner's hands, such as would be made by the stabs of a bayonet, and that his back was one uniform, bruise. It was suggested, during the examination of another surgeon, who examined the body of the deceased after death, that the deceased might have fallen upon the bayonet, and so received the wound ; but he said he could not imagine any position in which the deceased could fall, to have caused the in- strument to take the direction which it did. BosANQUET, J., in summing up, (Bolland, B., and Colt- man, J., being present,) said: The prisoner stands charged upon the coroner's inquisition with the crime of murder, and is also indicted for the lesser offence of manslaughter. The question for you, on a careful con- sideration of the whole of the evidence, will be, whether he was guilty of either the one or the other, or whether the circumstances of the case were such as to entitle him to an acquittal ; whether he is guilty of murder or of manslaughter, or whether his act was justifiable or excusable. Upon the question of whether it amounts to murder, you will have to consider this : Did the prisoner enter into a contest with an unarmed man, intending to avail himself of a deadly weapon ? for if he did, it will, amount to murder. But, if he did not enter into the contest with the intention of using it, then the question will be, did he use it in the heat of passion, in conse- quence of an attack made upon him ? If he did, then it will be manslaughter. But there is another question: Did he use the weapon in defence of his life ? Before a person can avail himself of that defence, he must sat- isfy the jury that the defence was necessary ; that he SYLLABUS. 133 •did all he could to avoid it, and that it was necessary to protect his own life, or to protect him from such serious bodily harm, as would give a reasonable apprehension that his life was in immediate danger. If he used the weapon, having no other means of resistance and no means of escape, in such case, if he retreated as far as he could, he will be justified. There is a further ques- tion which is raised by the defense, that the death was the result of accident by the deceased, in the scuffle, falling upon the bayonet. This ranges itself under the first question ; because, if the fact were so, the death cannot be said to have been occasioned by the act of the prisoner. His Lordship went through the evidence, and left the case to the jury, who found the prisoner guilty of man- slaughter, and strongly recommended him to mercy on account of the great provocation he had received. Sen- tence, six months imprisonment. THE STATE v. SHIPPEY. [10 Minnesota, 223.] Supreme Court of Minnesota, January Term, 1865. Thomas "Wilson, Chief Justice. S. J. R. McMillan, ) ^ , John M. Beebt, f •^^^^'^s- Sblf-defence — ^Necessity — Prevention — ^Right op attack— Belief OF defendant — Instructions on self-defence. 1. Self-defence is, exvi termini, a defensive, not an offensive act, and must not exceed the bounds of mere defence and prevention. To justify such act, there must be at least an apparent necessity to ward off by force some bodily harm. 2. The mere fact that the defendant believed it necessary for him to act in self-defence, would not warrant a verdict of acquittal, [See Grainger's •case, post, and note.] 134 THE STATE V. SHIPPEY. 3. The right to defend one's self does not arise, until the defendant has^ at least, attempted to avoid the necessity of such defence. Where a defend- ant has not retreated from, or attempted to shun the combat, but unneces- sarily entered into it, his act in killing his adversary is not one of defence. [Ace. Sullivan's case, ante, p. 65. Contra, under certain circumstances. Bohannon's case, joosi.J 4. Where the evidence shows coriclusively that the homicide was not committed in self-defence, real or imaginary, an instruction on the law of self-defence, though erroneous, is no ground of reversing the judgment. [Ace. Harrison's case, ante, p. 71; Shorter's case, posi; Wells' case, fost ; Morgan, J., in Lamb's case, •post; Evans' case. -post. But see Logue's case, post, and Pridgen's case, 'post.'\ This was an application to the Supreme Court, on the part of the defendant, for a new trial, under § 6, p. 777, of the Comp. Stat, of Minnesota, ed. of 1859. The defendant was tried upon an indictment for the murder of Frederick Raymond, at the October Term of the "Wright County District Court, 1864, and convicted of murder in the first degree. At tlie trial, Edward Morse, a witness for the prosecution, testified substan- tially as follows : " I reside at Minneapolis ; have seen prisoner ; saw nim on the 8th day of March, 1864, for tlie first time, in the township of Rockford ; Fred. Raymond, David Krid- ler, and David Beadle were with me ; Raymond was the man killed. "We were going from the village of Rock- ford to "Woodland ; the road led about six rods from Shippey's house, and when some quarter of a mile from Shippey's house, Raymond said he was dry, and would like some water, and as we got opposite the house, I said, let us go in and get some, and we went into Ship- pey's enclosure. Shippey was outside of his house ; it was about three o'clock in the afternoon ; I asked him for a drink of water ; he said nothing, but turned and went as though he was going to get some, going around his house a few steps and stopping. Raymond then asked for water. He then ordered us to leave, and said we had no business there. Raymond then said, that is a strange way to use folks; Shippey then ordered us to leave again; I spoke to Raymond, and said, ' Let us leave, and have no trouble with the old STATEMENT OF THE PACTS. 135 man ; ' we had no arms or other implements of defence ; Raymond said, ' Of course,' and then walked off, and I followed him towards the road; did not see anything until I was going through the fence. ELridler spoke, saying, 'Look out, Fred., he has a gun.' I looked around, and saw him with a gun in his hand ; saw, then, a stick going through the air from the direction in which Raymond was towards Shippey ; Raymond had passed out hefore me ; this stick was ahout eighteen inches long and three-fourths of an inch thick, and looked like a root ; do not think the cluh was thrown with the inten- tion of hitting him ; it was not thrown with much vio- lence; do not think it went to Shippey; do not think Shippey had advanced towards us until the stick was thrown. "When I first saw Shippey, he was lowering his gun from the direction of Kjidler ; when Fred, threw the stick, he pointed the gun at Fred.; Raymond then jumped behind a tree; Shippey did not speak that I heard ; Shippey then stepped sideways, as if he would like to get a shot at Raymond ; Raymond then stepped from behind the tree, and told him if he wanted to shoot, to shoot ; prisoner then took a long aim at Ray- mond, and fired; they were about twenty feet apart; Raymond then stepped two or three feet sideways, and laid down. About an hour afterwards, I went up to the body, and found it in the same position ; the body was taken down to the warehouse in Rockford." Other evidence was introduced, corroborating the testimony of Morse, and also proving the death of Raymond, and that it was occasioned by the discharge of Shippey's gun, testified to by Morse. * * ***** * * * * Wilson & McJVair for the prisoner; G. E. Cole, Attorney-General, for the State. Wilson, Ch. J. ********* ** The facts of this case incontrovertibly show that the prisoner did not act, and could not have supposed it 136 THE STATE V. SHIPPEY. necessary to act in self-defence. He was the pursuer, not the pursued. Self-defence can only be resorted to in a case of necessity. The right to defend himself would not arise until defendant had, at least, attempted to avoid the necessity of such, self-defence. People v. Sullivan," 3 Seld., 399 ; Whart. Cr. Law, 386 ;" Regina v. George Smith," 8 Car. & Payne, 160. The defendant's counsel asked the Court to charge the jury, "that if the jury believe that the prisoner, at the time of the killing, believed in the existence of a state of facts, which if true, would have constituted self- defence, they must find a verdict of acquittal," which the Court refused ; but charged the jury that " the facts must be such as reasonably to have raised such belief or apprehension on the part of the defendant." The Court was correct in refusing to charge as thus requested. The mere fact that the defendant helieoed it necessary for him to act in self-defence, would not war- rant a " verdict of acquittal." It is not enough that the party believed himself in danger, unless the facts and circumstances were such that the jury can say he had reasonable grounds for his belief. Comp. Stat., 703, §5"; Shorter v. The People,' 2 Comst., 193 ; Wharton's Cr. Law, 386 ; Arch. Cr. Prac. and PL, 798 ; U. S. v. Zigol«, 2 Dallas E,., 346. In Tennessee, I believe, it has been held otherwise ; Grainger v. The State,'' 5 Yerger, 459 ; but I think this dpcision stands alone, unsupported by either principle or authority. Such belief would, perhaps, reduce the crime to manslaughter, but whether it would or not, it is not necessary to decide in this case. The only exception taken to the charge of the Court is above given, and we must therefore presume, that in 'Ante, p. 65. l>5th ed., vol. 2, §1019 et seq. -i Ante, last case. tiEd. of 1859. e Post, f See 5th ed., vol. 2, p026. K This citation is inadvertent. The case does not relate to the subject under consideration. See note to Neeley's case, ante, p. 104. where it is examined. " Post. OPINION — BELIEF OF DEFENDANT. 137 •every other respect it was full and correct. But even if the charge in this respect had been erroneous, it would not be a good ground for reversal of judgment. Self-defence, ex vi termini, is a defensive, not an offen- sive act, and must not exceed the bounds of mere defence and prevention. To justify such act, there must be, at least, an ap- parent necessity to ward off by force some bodily harm. Where the party has not retreated from, or attempted to shun the combat, but has, as in this case, unneces- sarily entered into it, his act is not one of self-defence. The plaintiff by taking his gun and following after the deceased, without any previous provocation, (such as the law wiU recognize as provocation for the use of a deadly weapon,) showed conclusively that the homicide was not committed in self-defence, real or imaginary. The evidence, therefore, did not make a case for laying down the law of self-defence, and an error of the Court concerning an abstract proposition, having nothing to do with the matter in hand, is not sufficient ground for reversing a judgment. Shorter v.The People,' 2 Comst., 202. •*%* ****** * Ifew trial denied. THE STATE v. JAMES D. KENNEDY. [7 Nevada, 374.J Supreme Court of JVevada, January, 1872. J. F. Lewis, Chief Justice. • B. C. Whitman, j^^^^ciate Justices. John Gabber, ) Chakging upon matters of fact— Rbtk^ating to the wall. ] . A charge that "In order to make a killing under such circumstances as have been proven, justitiable homicide, it must appear that the party i Post. 138 THE STATE V. JAMES D. KENNEDY. killing had retreated as far as he safely could at the time, and in good faith declined all further contest, and was compelled to Idll his adversary in order to save himself from death or great bodily harm, which to a reason- able man would appear imminent," was substantially saying to the jury that the defendant was guilty either of murder or manslaughter, provided they were satisfied he did not retreat to the wall before he killed deceased, thus assuming the proof of all the other material and essential facts ; and was hence error. 2. Where it appeared that the deceased had beaten the defendant in a brutal manner, and when compelled by third persons to desist, had, in the hearing of the defendant, asked for a pistol, and said he would shoot him on sight ; and that when they next met, the deceased, without being- assailed, rushed at the defendant with hostile demonstrations : Held, that if the demonstrations were such as to justify the belief that the deceased Intended to carry out his threat, the defendant would be justified in kill- ing him without retreating. Indictment for the murder of John Keeland. Convic- tion of niurder in the second degree. Sentence, fifteen years imprisonment. Motion for new trial overruled. Appeal. JElUs & King, for appellant; L. A. BucJcner, Attomej- Greneral, for the State. Lewis, Ch. J., delivered the opinion of the Court. The jury in this case were instructed that "in order to make a killing, under such circumstances as have been proven, justifiable homicide, it must appear that the party killing had retreated as far as he safely could at the time, and in good faith declined all further contest-, and was compelled to kill his adversary in order to save himself from death, or great bodily harm, which to a reasonable man would appear imminent." This instruc- tion clearly assumes the proof of material facts, leaving but one question to be determined by the jury, namely : whether the defendant had retreated as far as he safely could before he killed the deceased. The " circumstances proven," as it»is stated by the Court, render him clearly guilty of a crime, provided the jury did not find the one fact — that he retreated as far as he safely could — in his favor. This was substantially saying to the jury that the defendant was guilty, either of murder or man- slaughter, provided they were satisfied he did not retreat NOTE— RETREATING. 1S9' to the wall before he kiUed the deceased, thus assiiming the proof of all the other material and essential facts. The evidence shows that a short time before the kill- ing, the deceased had beaten the defendant in a brutal manner, and when compelled to desist by the interfer- ence of third parties, asked, in the hearing of the defend- ant, for a pistol, and said that he would shoot him, the defendant, " on sight." There is also some slight evidence that ten or fifteen minutes afterward, when the parties met, the deceased rushed at the defendant in a hostile manner, when the scuffle, which resulted in the death of the deceased, occurred. If it be true that the threat was made by the deceased to kill defendant the first time he saw him, and when they next met he rushed at him with hostile demonstrations, the defendant, if not the assail- ant, would not be compelled to retreat ; but if the demon- strations were such as to justify the belief that the deceased intended to carry out his threat, the defendant would be justified in killing him without retreating. Rose. Crim. Ev., 765. But this instruction ignores all these circumstances of the case, and assumes that there was no ground of justification to the defendant, except that of having retreated as far as he safely could. Judgment reversed. Note. — Where a known felony is attempted upon person or property, the assailed is not obliged to retreat, but may pursue his adversary until he finds himself out of all danger. 1 East P. C, 271 ; Foster, 273 ; Kelyng, 128,129. The expression, " Icnown felony," is here understood to mean open and forcible felonies as contradistinguished from secret felonies, such as the picking of pockets. Roscoe Crim. Ev., 638; Pond's case, post; 1 East P. C, 273. Mr. Sergeant Hawkins, after showing that there can be no distinction in point of sense between defence against one who assails me to murder me, and defence against one who assails me to rob me, and that the former ought to be held justifiable as well as the latter, and not merely ea;c«sa6Ze, nevertheless says: " However, perhaps in all these cases, there ought to be a distinction between an assault in u highway and an assault in a town. For, in the first case, it is said that the person assaulted may justify killing the other without giving baclv at all ; but that in the second case, he ought to retreat as far as he can without apparently haz- arding his life, in respect of the probability of getting assistance." 1 Hawk. P. C, Ch. 10, J 25. We do not recollect any case where this dis- tinction has been taken. 140 THE STATE V. JAMES D. KENNEDY. Some of the American (jases lay down the necessity of retreating before killing, without qualification, as though it were incumbent in all cases where a man can retreat with safety, without noticing the distinction taken by the old writers between felonious and non-felonious attacks. See, for instance, Parkek, J., in Selfridge's case, ante, pp. 16, 17 ; John Doe's case, ante; Drum's case, joosi; Robertson's case, ^osi; Benham's case, a»i(6. So, the English case of Regina v. BuU, post. At the same time, it is stated in three cases in Iowa that a person who is assailed with a deadly weapon, is not bound to retreat before killing. Thompson's case, ante; John Ken- nedy's case, ante; Tweedy 's case, post. But the reason given by these cases is that stated by Sir William Russell, that the assault may be so fierce as not to allow him to yield a step, without manifest danger of his lite, or great bodily harm. Ibid. ; 1 Russ. Cr., 661. it has been held in several cases in Kentucky that a man is not obliged to avoid an adversary ^yho has threatened his life, and who persistently seeks to kill him. Bohannon's case, post ; Philips' case, post ; Young's -case, post ; Carico's case, post. And the same principle, though not ex- pressly decided, may well be inferred from Monroe's case, post. In Cope- land's case, ante, which is manifestly as proper a case as any of those above cited, for applying the requirement of "retreating to the wall," the Supreme Court of Tennessee concluded that the killing was probably self- defence, without alluding to the subject of retreating at all. In Texas, an instruction which entirely denied the requirement of retreating before killing, in case of personal conflict, was approved by the Supreme Court. See Isaac's case, post. In Pond's case, post — an able and instructive case — the distinction taken by the common law writers between justifiable homicide committed in resisting the commission of felonies, and excusable homicide in defending one's person against non-felonious assaults, or in mutual combat, where the law assumes that the slayer himself is in some fault, is clearly kept in view ; and, following the old writers, the Court say : "If any forcible attempt is made with felonious intent against person or property, the person resisting is not obliged to retreat, but may pursue his Adversary, if necessary, until he finds himself out of all danger." In Pat- ton's case, post, the principles of Pond's case are recognized as an accui-ate exposition of the law of homicide in self-defence. In many cases, the rule above stated in Pond's case is recognized in the language in which it is laid down by Foster and East. See, for instance, Carroll's case, post ; Parsons, Ch. J., in Selfridge's case, ante, p. 1 ; Rilej^'s case, post, and Col- lins' case, post. In some of the cases, the rule is stated in the language of Poster and East, leaving out that part which relates to the liberty of standing one's ground, and of pursuing the assailant. Thus, Wiltberger's case, ante, p. 38 : "A man may oppose force to force in the defence of his person, his family, or property, against one who manifestly endeavors, by surprise or violence, to commit a felony, as murder, robbery or the like." So, Thomp- son's case, ante ; John Kennedy's case, ante, and Field's case, post. In Pierson's case, 12 Ala., 149, the question arose in a capital case, upon a request by the prisoner, and a refusal by the Circuit Judge, to instruct the jury as follows : NOTE — RETEEATING. 141 1. That the prisoner, after he had been slapped three times in the face by Rich, was not bound to retreat before he killed him. 2. That no man in this country is bound, according to the English com- mon law, to retreat before he kills. Upon this point, Goldthwaite, J., delivering the opinion of the Court, said : " The common law of this State on the subject of homicide, is de- rived from, and the same as, the common law of England ; and whenever th,at law requires the person assailed to decline the combat, or to retreat, before he will be excused in taking the life of his adversary, our law requires the same. There is nothing in our institutions which has abro- gated the rule that no one is excused from shedding his brother's blood, unless the assault upon him is such as to produce a well-grounded appre- hension of imminent danger to life or limb." But the Court does not explain what that common law of England is on this subject. In Creek's case, post, the Supreme Court of Indiana, in criticising an instruction in a case of homicide, say : " Retreat may be impossible or per- ilous, and is not, therefore, always a condition which must precede the right of self-defence. The law upon the subject is so accurately laid down in the text books, that it seems to us unnecessary to discuss it further." This case leaves us equally in the dark with the Alabama case, supra, as to what the law on the subject is, but refers us to the text books, which we think, with deference, leave the subject in considerable uncertainty, if not confusion. In a case at nisi prius in New York, Emott, J., in charging the jury, said : " To justify the prisoner in killing Aaron Cole in self-defence, it is necessary that the prisoner himself should have been attacked ; that he should have reasonable ground to suppose that the object of the attack was to kill him, or to do him great bodily harm ; that he should have been unabled to withdraw himself from this imminent danger, and, therefore, should have been compelled to kill Aaron Cole to protect himself from the attack." People v. Cole, 4 Park., C. C, 37. In Commonwealth v. Carey, 2 Brewster, 401, the defendant's counsel made the following point : "If the jury believe from the evidence that the deceased attacked the prisoner with violence, and that the defend- ant believed the deceased intended to take his life, or inflict great bodily harm upon him, the prisoner was justified in not retreating, but had a right to pursue the deceased until he had secured himself from all danger, and if he killed the deceased in so doing, it was justifiable self-defence.' Brewster, J., (apparently misunderstanding the point made,) is re- ported to have said : " We answer that a man is not bound to stand and permit himself to be murdered or seriously injured; he may defend him- self. But the attack must have been such as in the beUef of the prisoner, rendered it necessary for him to defend himself, even to the taking of the life of the deceased. It-would then be excusable homicide." This language is inaccurate in making the belief of the prisoner the test of his justification. See note to Grainger's case. post. In the note to Selfridge's case, ante, p. 28, et seq., we have discussed the subject of "retreating to the wall " at some length, and have endeavored to show what seems to be the better opinion on the subject, in view of the authorities, old and new. In this note, we have endeavored to show. 142 THE STATE V. JAMES D. KENNEDY. briefly, the force of the American cases so far as they discuss this question. And it is seen that there is a numerous class of cases which, in discussing this subject, either lose sight of the distinction between the resistence of non-felonious attempts, and those where a forcible felony is manifestly in- tended ; or else, which make, in all cases of defence of the person— whether it be against a felonions assault, or an assault non-felonious, or in mutual combat— retreat, in all cases where retreat is possible, a pre-requisite to the right to kill. Nor can these cases be clearly said to involve a departure from the law as it formerly stood. For there seems to have existed among the old writers some difference of opinion on the subject ; or if not some differ- ence of opinion, at least the same mixing up of the doctrine of mutual combat and felonious assault that occurs in some of the cases and text books of the present day. Thus Lord Hale says : " Regularly, it is neces- sary that the person that kills another in his own defence fly as far as he may to avoid the violence of the assault, before he turn upon his assailant ; for, though in cases of hostility between two nations, it is a reproach and piece of cowardice to fly from an enemy, yet in cases of assaults and affrays between subjects under the same law, the law owns not any such point of honor ; because the king and his laws are to be the vindiees injuriarum, .and private persons are not trusted to take private revenge one of another." 1 Hale P. C, 481. But to this rule he makes exceptions in case of an oflloer assaulted by his prisoner ; in case of an assault by a thief to rob or murder, and in case where retreat is impossible. On the other hand, the statement of doctrine with which we set out in this note, is thus given in the judgment of the court of King's Bench,, in Mawgridge's case, Kelyng, 128-9 : " It is not reasonable for any man that is dangerously assaulted, and when he perceives his life is in danger from his adversary, but to have liberty for the security of his own life, to pursue him that maliciously assaulted him ; for he that hath manifested that he hath malice against another, is not fit to be trusted with a dangerous weapon in his hand. Dalt., 292; Hale, 42 And so resolved by all the judges, 18 Car., 2, when they met at Sergeant's Inn in preparation for my Lord Morley's trial, Dalton, 272." With reference to this last citation, we may remark, however, that we have not seen Dalton's Justice ; but the resolutions of the judges in Lord Morley's case, as reported in Kelyng, 53 — and Kelyng himself sat in that trial as Chief Justice — do not touch upon the question of the right to pur- sue after felonious assaults. See, also, Howell's State Trials, vol. 6, p. 770, where the resolutions are given as in Kelyng's Reports. The resolution referred to is probably the one we have set out in the note to Stoffer's case, post. It may not be amiss to go stiU farther back, and call in the testimony of one whose name will never be mentioned without honor as long as the common law shall exist. Lord Coke, in his third Institute, p. 55, speak- ing of non-felonious homicide, says : " Some without any givina: back to a wall, etc., or other inevitable cause. As if a thief olTor to rob or murder B. either abroad or in his house, and thereupon assault him, and B. defend him- self without any giving bade, and in his defence killeth the tliief, this is no felony ; for a man shall never give way to a thief, etc., neither shall he for- Jeit anvthhig." SYLLABUS. 143 Ml'. East has exerted himself to preserve the distinction between defence against felonious and non-felonious attempts,I[and has made several obser- vations from an original point of view, which are worthy of attention. 1 East, P. C, 271 et seg. We think the outlines of the question become still clearer under the pen of Mr. Bishop ; but it will deserve further attention at the hands of courts before it can be extricated from the confusion in which some of the courts and text writers have left it. See Stewart's case, post, where a divided court refused to consider the subject. In Texas, the question has been apparently put at rest, either for better or worse, by a statute whicli does away, in aU cases, with the requirement of retreating before killing ; and which has otherwise attempted to estab- lish a set of fixed rules which shall cover aU cases of homicide in defence of person or property. See tlie statute set out in the note to Isaac's case, Out of the right to pursue one who has made a felonious attempt upon person or property, springs this very nice and interesting question : If the assailed may rightfully pursue, may the assailant, after having retreated as far as he can, turn and resist? And if he do so, and in resisting kill the assailed, is he guilty of any crime ? This question is considered in Stoffer's case, post, and note to the same. FORSTER'S CASE. [1 Lewin C. C, 187.] Lancaster Spring Assizes, 1826. Killing prisoner by officer in self-defence, or in affray. 1. An officer must not kill for an escape, where the prisoner is in cus- tody for a misdemeanor. 2. If the officer has reasonable ground for beUeving that he is in dan- ger of death or bodily harm, he may have recourse to a deadly weapon, if no other is at hand. So, if he has been rendered incapable by previous ^'iolence of using a weapon less dangerous in its character. 3. But if there be an affi-ay, and mutual blows in heat, and the officer kill, it will be manslaughter, although the other party was originally doing something unlawful. The prisoner was charged on the coroner's inquisition with murder. The prisoner was an excise officer, and, being in the execution of his office, had seized, with the assistance of another person, two smugglers, whom he detected in the act of landing whiskey from the Scottish shore contrary to law. 144 foestee's case. It appeared that the deceased had surrendered him- self quietly into the hands of the prisoner, but shortly afterwards, when the prisoner was off his guard, he assaulted him violently with an ash stick, which cut his head severely in several places ; that he lost much blood from the wounds, and was greatly weakened in the strug- gle which succeeded ; that, fearing the smuggler would overpower him, and having no other means of defending himself, he discharged a pistol at the deceased's legs, in the hope of deterring him from any further attack ; that the discharge did not take effect, and the smuggler pre- pared to make another assault; that seeing this, the prisoner warned him to keep off, telling him he must shoot him if he did not ; that the smuggler disregarded the warning, and rushed towards him to make a fresh attack; that he thereupon fired a second pistol and killed him. HoLKOTD, J., to the jury: "An ofiicer must not kill for an escape, where the party is in custody for a misde- meanor ; but if the prisoner had reasonable ground for believing himself to be in peril of his own- life, or of bodily harm, and no other weapon was at hand to make use of, or if he was rendered incapable of making use of any such weapon by the prisoner's violence that he had received, then he was- justified. If an affray arises, and blows are received, and weapons are used in heat, and death ensues, although the party may have been, at the commencement, in the prosecution of something un- lawful, still it would be manslaughter in the killer, though manslaughter only. In the present case it is admitted that the custody was lawful. The jury are then to say whether, under all the circumstances, the deceased being in the prosecution of an illegal act, and having made the first assault, the prisoner had such reasonable occasion to resort to a deadly weapon to de- fend himself, as any reasonable man might fairly and naturally be expected to resort to. Yerdict, manslaugMer ; sentence, one montKs im- prisonment. SYLLABUS. 145 Note.— It is perhaps noteworthy that this case accords with the Amer- ican decisions in this : It places the defendant's justification upon the rea- sonableness of his fear, which Regina v. Bull, post, does not, and which Regina v. Smith, ante, does but partially. Consult upon this point the cases in Subdivision D of this Part, post. If the facts are correctly stated, few American courts would have permitted a verdict of man- slaughter in this case to stand. B— DEFENCE AGAINST DEATH OR GREAT BODILY HARM, WHERE THE EXIGENCY ARISES IN MUTUAL COMBAT. THE STATE v. WELLS. [1 CoxE, 424.J Supreme Court of New Jersey, Septemher Term, 1790. (The names of the Judges are not given in the original report. ) Mutual combat — ^Relative strength op the parties — Retreating to the wall — manslaughter — 'so new trial where the merits have been attained. 1. Where the prisoner stated after the homicide that he could easily handle the deceased, and that the deceased was no more than a child in his hands ; and it was proved that the prisoner and deceased being engaged in mutual combat without weapons, the prisoner seized a heavy club, and dealt the deceased a blow which crushed in his skull, caujiing death, this was held to be clearly manslaughter, and not excusable self-defence. 2. If A. and B. are engaged in combat without weapons, and A. presses B. to the wall, so that further retreat is impossible, and B. thereupon seizes a dangerous weapon, and with it kills A. , this is manslaughter, and not excusable homicide. 3. The rule stated that no man Is justified or excusable in taking away the life of another, unless the necessity for so doing is apparent, as the only means of avoiding his own destruction or some very great injury. 4. In criminal cases, where there has been a conviction, if justice has been done, and if the result of another trial ought to be the same as the 146 THE STATE V. WELLS. first, and if the revising Court are decidedly of this opinion, a new trial will not be granted, although the Judge may have directed the jury im- properly, or may have rejected e\'idence which, strictly speaking, ought to have been admitted. [See note, sub. fin.'] This was a motion for a new trial. The defendant had been indicted at the Oyer and Terminer for Morris County, for manslaughter ; pleaded not guilty, but was convicted. The defence was, that the homicide was ex- cusable. The judgment was respited upon application of the defendant's counsel, in order to take the opinion of the whole Court upon a case stated, containing all the circumstances that had occurred, and the following case was made : It appeared that there had been some misunderstand- ing between the deceased and the prisoner respecting a turkey, which was at the place where the deceased lived. On the 22d of November, 1789, the prisoner came to the house of the deceased for the turkey which he demanded ; the deceased being then absent from home at the house of one Jansen, a blacksmith. The wife of the deceased desired the prisoner would call again when her husband should he at home, which he declined doing. She then told him that her husband had left word that if the prisoner took any fowl, he should take one particular one, which the prisoner after looking at it, said he would not have, but would go and see the deceased upon the subject ; upon which she told him to take which he pleased. The prisoner then went out, caught a turkey, brought it into the house, and said that he had some business at the blacksmith's, where he should see the deceased, and settle with him for the fowl. The wife then requested he would not go there, expressed her ap- prehensions lest he might get into a quarrel with her husband, and wished him to go home with the turkey, which he promised he would do. The prisoner took the turkey and carried it to his own house, which was about a mile and a half distant from the deceased. After remaining at home some time, dur- ing which he was assisting his brother in some work, h(> STATEMENT OF THE FACTS. 147 took a shovel which required mending, at the desire of his brother, to the blacksmith's shop, which was about half way between where the prisoner lived and the house of the deceased. He found the deceased at the shop, standing near the door. After some words had passed upon the subject of the prisoner's taking the turkey, the deceased appeared angry and gave the prisoner some harsh language, calling him a thief. The prisoner went into the shop, the deceased following immediately after him, jostling the prisoner with his elbow and using ex- tremely abusive language, the prisoner at the same time making no resistance. When they had got into the shop, and after some further words had passed relative to their taking the law of each other, the deceased said, if it was not for the law he would whip the prisoner, and the latter replied, he need not be afraid of that, and he was ready for him. Thereupon the deceased made up to the prisoner, struck him and seized him by the hair, when the prisoner caught him by the thigh or round the body, and ran him up into the corner of the shop, when the blacksmith interfered, parted them, gave to each his hat, and expostulated with them. After they were separated, the deceased and the pris- oner were standing several feet apart, when the quarrel was renewed, the deceased first using aggravating language, to which the prisoner replied in a similar strain, when the former stepped up and struck the latter, who returned the blow and struck the deceased in the facfe. The prisoner, upon receiving the blows from the de- ceased fell against the vice, when he took up a club and struck the latter a blow which knocked him down and occasioned his death. It also appeared from the testimony both of the black- smith and his son, that when the prisoner gave the fatal blow, he could not, in their opinion, have retreated further ; that near the place where he took up the club with which he struck the deceased, there were also the handle of a dung-fork, some blacksmith's hammers, and 148 THE STATE V. WELLS, some old scythes, any of which the prisoner might have taken in hand as easily as the club with which he gave the mortal stroke. It appeared that the fracture in the skull of the de- ceased was upward of five inches in length, and about an inch and a half in breadth, and the bones were much broken. Two of the witnesses also swore that the prisoner in conversation with them afterwards, on th& day the fray occurred, declared to them he could manage the deceased almost as he pleased. To another of the witnesses he said, that the deceased was no more in his hands than a child; and to another, that when the deceased struck him in the second affray, he looked toward the door in order to go out, but as he could handle the deceased as he pleased, he thought it would appear cowardly, and he would not do it. The defence set up by the prisoner was that of ex cusable homicide. After citing several authorities to show what was the legal signification of this phrase, they examined one or two other witnesses to show that the prisoner was on friendly terms with the deceased, and to rebut an idea, which had been rather intimated than proved, that there was a previously subsisting quarrel between them. The Judge, in his charge to the jury, having obser^-ed that as the act of homicide was fully proved, and indeed admitted on behalf of the prisoner, told them that the subject of their inquiry was, whether the prisoner at the bar was guilty as he stood charged in the indictment or not; that homicide was in some cases justifiable, and in others was excusable; but, he re- marked, that whoever would shelter himself under the plea of self-defence, more particularly in the case of a mutual combat, must make it appear that, before the mortal stroke was given, he had declined any further combat ; that he had retreated as far as it was possible to do with safety, and that he killed his adversary through mere necessity, in order to avoid his own destruction. CHAE6E OF THE JUDGE. 149 He informed them further, that it was the peculiar province of the jury, after hearing the evidence given, to determine in their own minds, whether upon the evidence ■so given, the prisoner, before striking the mortal blow, had retreated as far as could with safety ; and whether he had killed his adversary through mere necessity, and for the preservation of his own life. If they should be satisfied that he had not failed in either of these circum- stances, they would acquit the prisoner ; if otherwise, it was their obvious duty to find him guilty as charged in the indictment. The jury, after being out some time, sent a note to the Judge, asking permission to come into Court, which being granted, they accordingly came ; and by their foreman, desired again to hear the testimony of the blacksmith and his son, who were called and repeated their testimony, much to the same purport as before, but ;said, that the prisoner upon being struck in the affray, fell up against or retreated to the side of the shop. The jury then requested the Judge again to state to them the iaw relating to excusable homicide. The Judge repeated in substance what he had before stated, with this fur- ther remark, that although it might be contended from some of the authorities which had been cited, that after a person assaulted had retreated as far as it was in his power, to avoid a battery or some great bodily harm, it would be excusable in him to protect himself from further injury, by killing his adversary ; yet he thought this was not a principle warranted by the law, but that the observations which he had before made and the limi- tations he had pointed out, coincided with the ideas of Sir Michael Foster, and were grounded in reason ; for, were it otherwise, the life of the citizen would be too easily endangered, and would be taken away at too easy a rate. Aaron Ogden and R. Stocldon, for the prisoner; Woodruff, Attorney-General, for the State. KiKSEY, Ch. J. — There are three grounds upon which 150 THE STATE V. WELLS. the counsel for the prisoner found their application for a new trial. 1st. It has been contended that the Judge who pre- sided at the trial, misconceived the law when he charged the jury, that to excuse the commission of homicide as done se defendendo, Xt ought to appear the killing was through mere necessity, and to prevent his own destruc- tion; otherwise, it amounted to manslaughter. The counsel have urged that this principle was laid down to the Court in too broad and unlimited a manner ; that the apprehension of an enormous battery would equally excuse the killing of an adversary; and the circum- stances of this case warrant the application of this principle of defence. ******* * * * * We come now to consider the most material question in the case, viz.: whether the offence proved to have been committed by the prisoner, comes up to the legal signi- fication of the word manslaughter ; and I am of the opin- ion that it does. A reference to Nailor's case (Foster, 278) is sufficient to remove all doubt upon this point. In that case, the prisoner was indicted for the murder of his brother, and the circumstances, as they appear in evidence, were, " that the prisoner, on the night the act was committed, came home dnmk. His father ordered him to go to bed, which he refused to do; whereupon a scuffle ensued betwixt the father and son. The deceased, who was then in bed, hearing the disturbance, got up, and fell upon the prisoner, threw him down and beat him upon the ground ; and then kept him down so that he could not escape nor avoid the blows. While they were thus striving together, the prisoner gave the deceased a wound with a pen-knife, of which wound he died." Some doubt existed in the minds of the judges ; a special verdict was found, stating the circumstances, and upon a conferance with [of] all the judges of England it was unanimously holden to be manslaughter ; " for there did not appear to- be any inevitable necessity, so as to excuse the killing in OPINION — NEW TEIAL. 151 this manner." In a note to this case, which I presume to be Foster's, it is said the deceased did not appear to aim at the prisoner's life, but merely to chastise him for his misbehavior and insolence towards his father. In the present case, the attack of the deceased was without any kind of weapon that might have rendered it necessary for the prisoner to avail himself of the instru- ment which occasioned the death. On his own confes- sion, much less [force] would have been sufficient ; and I consider it, therefore, as clearly manslaughter. What I particillarly allude to is the declaration of the prisoner to the witnesses who have been sworn, made soon after the affray, that he could manage the deceased as he pleased, and that he was no more than a child. These declarations show that there could have been no necessity for the weapon, and they are proper to be relied upon. See also the case of Rex v. Oneby, 2 Ld. Raym. 1485.^ The observations I have raised render it unnecessary to enter further into the discussion of the question I have raised, than to remark, that in my opinion, no man is justified or excusable in taking away the life of another, unless the necessity for so doing is apparent as the only means of avoiding his own destruction or some very great injury, neither of which appears in the present case. tJpon the whole, I am of opinion that there should be no new trial ; for if justice has been done, and if the result of another trial ought to be the same as this, and the Court are decidedly of this opinion ; though the judge may have directed the jury improperly, or have rejected evidence which, strictly speaking, ought to have been admitted, yet a new trial should not be granted, and would in no degree advance the ends of justice. Edmon- son V. Machall, 2 Tr. R. 4.*' a The discussion in Oneby' s case was confined to the question, whether the killing was murder or manslaughter. — Eds. bBut Edmondson v. Machall was a eiml case. See also to the same effect in civil cases, Cox v. Kitchen, 1 Bos. & Pul., 3.38; Deerly y. 152 PENNSYLVANIA V. ROBERTSON. In considering this question, I have purposely avoided mentioning many circumstances which operate' strongly against the defendant — which show that he was full as eager for the combat as the deceased — that he manifested no inclination to decline the affray, which led to the unhappy circumstance which has brought down a just and severe punishment upon himself. New trial refused. PENNSYLVANIA v. ROBERTSON. [Addison, 246.] At Nisi Prius, Alleghany County, December Term, 179^. Expelling trespasser — ^Mutual combat — Character op deceased. 1. It is lawful for a person to exert as much force as is necessary to put a trespasser out of the houi?e in which he lawfully is. 2. The defendant being engaged in combat with an Indian, who was armed vnt\v a knife, if there was no other way of escaping his rage, and the danger of Ms life, than by killing him by a blow dealt with a door-bar, it was but homicide in self-defence. Dutchess of Mazarine, 1 Salk., 116; and cases cited in note (b) to Cox v. Kitchen, supra. In the United States, the rule is also probably of universal jipplication in civil cases. HiUiard on New Trials, cli. 3. But in criminal cases, the authorities appear to be variant ; and although there are doubt- less many cases illustrating the question, yet the text books do not help us much in getting at them. Mr. Bishop does not attempt to collate the authorities on the subject 1 Bish. Crim. Proced., §849. Mr. Hilliard's New Trials, ch. 7, and Mr. Wharton's Crim. Law, vol. 3, § 3079 et seg., give us very little light on the subject. The better opinion seems to be, that the denial of any legal right in a capital case, is sufficient to reverse a judgment of conviction. Phips v. State, 3 Coldw., (Tenn.,) 344 ; Pridgen v. State, post; Peck v. The State, 7 Humph., 78, 88 ; Cornelius v. The Commonwealth, post; Logue v. Com- monwealth, ^os<. But we are unable to say whether or not this opinion is supported by the weight of authority. The question could not be discussed in a note of convenient length, and besides, such a discussion would be foreign to the purposes of this volume. It has been held, how- ever, that an erroneous instruction upon the law of self-defence will not afford ground for setting aside a verdict of guilty in a capital case, if the evidence afford no hypothesis making such an instruction appropriate. Si'e Shorter's case, post, and cases there cited to this point. STATEMENT OF THE FACTS. 153 3. But if the defendant might have escaped, and if the blow was given in mutual combat, without necessity, either for the protection of his life, the possession of his house, or his right of entering it, the IdUing was man- slaughter. 4. Evidence was admitted in this case of the character of the deceased, of his repute among his tribe, and of the fact that a portion of his tribe were hostile, and that the deceased was under strong suspicions of hostility ; because these circumstances were sufficient to alarm the defend- ant for Ills safety, and induce him to use the force and weapon he did. Eobertson was indicted for the murder " of an Indian man of the Munsey tribe," on the 1st of May, 1794. Robertson was in the employment of a contractor and in a house of his, at Fort Franklin, and was frying meat on the fire. The Indian came in drunk, and stepped across the frying-pan, as if to kick it over. Robertson bade him go out, and on his refusing, said he would put him out. The Indian persisting in his refusal to go out, Robertson proceeded to put him out. A struggle en- sued, and both fell. Robertson got up first, and seized the Indian's feet to drag him out. When he had dragged him as far as the door, the Indian seized the door-post. Robertson called to some one present, to part the Indian from the door-post. The Indian said he would let go his hold. Robertson then let go his hold of the Indian's feet. On this, the Indian kicked Robert- son with one o£ his feet in the fjace, so that the blood ran from his nose in a stream. Then the Indian got up and made at Robertson, who, thereupon, seized the bar of the door, which was of cherry-tree, three feet long, about three inches broad, and half an inch thick, and struck the Indian with the narrow side of it, on the side of his head, so that he instantly fell and died. The Indian was a strong man of about six feet high, much stouter than Robertson. He was standing outside the door, and between Robertson and the door. The bar was lying outside the door on the ground. The Indian had a knife. The Indians were generally at that time, supposed to be dangerous, so that the people durst not' go out of the fort. The Munsey tribe, or part of them, were hostile; this man was under strong suspicions. 154 PENNSYLVANIA V. ROBERTSON. was a tad Indian, of no repute among his own people, who thought "the killing of him not improper. Such was the case on the evidence. Brackenridge & Collins, for the prisoner; Oalbraitli, for the State. Addison, President. — The circumstances proved clear this case of all presumption of malice. The killing, therefore, is not murder. Is it manslaughter? It was lawful for Robertson to exert as much force as was sufficient to put the Indian out of the house. It does not appear that he used more. After he had accomplished this, the Indian was the aggressor, hy kicking Robertson with his foot. He was prosecuting his attack; "he made at Robertson." He was a savage, a drunken savage, a savage naturally ill-disposed, armed with a knife, stronger man than Robertson; and his nation and Mmself were under strong suspicions of hostility. All these circumstances were sufficient to alarm Robertson for his own safety, and induce him to arm himself with a stick, to prevent the danger of the Indian's attack, and save his own life by a stroke at the life of the Indian. If you believe that Robertson might hav.e otherwise entered the house or escaped, and that the blow was given in mutual con>bat, without necessity, either for the protection of his life, the possession of his house, or his right of entering it, the killing is manslaughter. If you believe that there was no other probable way to get into the house, or otherwise escape from the rage of the Indian, and the danger of his life, than by the blow given, it is but homicide in self-defence. If you believe it homicide in self-defence, you may acquit the prisoner on this indictment. Verdict, Not Chiilty. NOTB. — This case would possess little value, but for the fact that it has been cited by the text-writers on Criminal Law, and bears upon a question still in dispute, namely, whether on a trial for homicide, where it is urged that the killing was done under a reasonable apprehension of death or NOTE — KEASONABLE CKEATUEE IN BEING. 155 great bodily harm, evidence of the character of the deceased for violence is admissible. Upon this question, see Tackett's case, post, and those fol- lowing it. Mr. Bishop cites Robertson's case in connection with Lord Coke's definition of a reasonable creature in being, viz., "Man, woman, chUd, subject born, or alien ; persons outlawed or otherwise attainted of treason, felony or premunire ; Christian, Jew, Heathen, Turk or other Infidel, being- under the king's peace." 2 Bish. Cr. Law, J 630 ; 3 Inst. , 50. We may also add as an illustration of the same principle, the case of the State of Min- nesota V. Gut. Two half-breed Indians had been arrested and confined in jail on suspicion of having murdered a white man. The defendant had joined a mob, and assisted in taking them out of jail and lyncliing them. He was convicted of murder, and appealed. In delivering the opinion of the Supreme Court, Wilson, Ch. J., said : "The evidence ofiered to prove that a state of war existed between the United States and the Sioux Indians, and that the State, through its legal authorities, had oiFered a reward for the killing of any male of that tribe, was properly rejected. That it is legal to kill an alien enemy in the heat and exercise of war, is undeniable ; but to kill such an enemy after he has laid dovni his arms, and especiallj' when he is confined in a prison, is mur- der. The evidence that war existed between the Sioux Indians and the United States, and that the deceased w^as supposed to be a Sioux Indian, was therefore immaterial. It is not pretended that there was a law of our State authorizing the killing of a male of that tribe, and the proclama- tion or order of any officer of the State, could not make that right which is wrong, or legal which is illegal. If such a proclamation or order was made, and if on account thereof an ignorant person was misled into the commission of crime, it is for the Governor to determine whether that would be a proper oase for the exercise of executive clemency." The judgment was affirmed, and the sentence ordered to be executed.. 13 Minn. 341, Sot. COMMONWEALTH v EILEY AND STEWAKT. [Tiiachbr's Criminal Cases, 471 .j Municipal Court of the City of Boston, January Term, 1837. Petek Oxenbeidge Thacher, Judge. The eight of self-defence discussed in gbnebal terms, and thb. distinction between justifiable and excusable homicide SHOWN — Defence in mutual combat — Combatant must endeavor to retreat before killing — defence with deadly weapons — Defence of strangers. 1. There are two kinds of self-defence : the one which is justified and 156 COMMONWEALTH V. RILEY AND STEWART. perfectly innocent and excusable; the other, which is in some measure blamable and barely excusable. [See note a to Selfridge's case, ante.'] 2. There are cases in which a man may oppose force to force, even to the death. There are also cases in which the defendant cannot avail him- self of the plea of self-defence, without showing that he retreated as far as he could mth safety, and then, merely for the preservation of his own life, killed his assailant. A homicide committed under these circumstances is excusable, notwithstanding there may have been some fault in the de- fendant. 3. In the case of justifiable self-defence, the injured party may repel force by force in defence of his person, habitation or property, against one who manifestly intends and endeavors by violence or surprise, to commit a known felony upon either. 4. It is justly considered that the right in such case is founded in the law of nature, and is not, nor can be, superseded by any law of society. There being at the time, no protection from society, the individual is remitted for protection to the law of nature. [See Gray v. Coombs, post; Holmes' case, ^os<; 1 Ruth. Inst. Nat. Law, ch. 16; Grotius, de Jure Belli .et Pads, Lib. II, Cap. 7; Foster, 273.] 5. When a known felony is attempted on a person, as to rob or murder, the party assaulted may repel force by force ; and even his servant then attendant upon him, or any other person present, may interfere to prevent mischief; and if death ensue, the party so interposing will h& justified. In such cases, it is said nature and social duty co-operate. [Ace. Pond's case, post ; Foster, 274.] 6. There is a species of self-defence known to the law, which, though involving fault to a certain extent, is yet excusable. The killing in such case is voluntary ; the party having the intention to Tdll or to do some great bodily harm at the time the death happened, at least, but to have done it for the preservation of his own life. It arises from a sudden casual affray commenced and carried on in heat of blood ; and supposes that the person when engaged in such sudden alFray, quits the combat before the mortal wound is given, and retreats or files as far as he can with safety; ^nd then, urged by mere necessity, kills his adversary for the preservation of his own life. [As in Stoffer's case, post, which see.] 7. This last supposed case borders very nearly on manslaughter. [But it is excusable homicide. Stoffer's case, post.] 8. He, therefore, who, in the case of a mutual confiict, would excuse himself upon the grounds of self-defence, must show that before the mor- tal stroke was given, he had declined any further combat, and retreated as far as he could with safety ; and also that he killed his adversary through mere necessity, and to avoid his own immediate death. [And his inten- tion to withdraw in good faith, must have t)cen clearly evinced to his adversary. Stoffer's case, post.} 9. If he fails in either of these circumstances, he will incur the pen- alty of manslaughter. 10. The foregoing principles applied to the evidence in this case. 11. Where a killing takes place in mutual combat, in determining CHAEGE TO THE JURY. 157 whether or not it was done in self-defence, the jury are to consider the rel- ative strength and size of the parties. [Ace. Selfridge's case, amis, p. 23; and see Thompson's case, ante, p. 92, and Copeland's case, ante, p. 41. And it is the duty of the judge so to instruct the jury. Benham's case, ante, p. 115.] 12. Where, in an affray, A., who was much the stronger man, pursued B., and knocked him down and kicked him several times, while down, and then, after B. had got up and when he was walking away, knocked him down a second time ; and thereupon C, a hy-stander, gave B. a knife, openly and in the presence of all, and told B. to use his pleasure with it ; and there- upon B., after having again endeavored to withdraw from the combat, killed A. with the knife ; it was held— u. If A. had knocked B. down, and stamped^upon him with his foot, or kicked him in a vital part, B. might well use the knife in defending liim self. h. But if B. used the knife when his life was not in danger, and when he had no reasonable ground to fear any great bodily harm, he was guilty of manslaughter. c. If B. was guilty of manslaughter, C. was Ukewise guilty, unless B. used the knife in a different manner and for a different purpose from that for wliich it was put into his hands by C. [As to the defence of other per- sons, see SxiBDivisiON F of this Part, post.\ Thachee, J., charging the jury: The defendants are on trial for the oflfence of having killed one James MclSTally, in this city, on the 7th day of November last. It is denominated, in lavf, man- slaughter, which offence consists in the felonious and vdlful or voluntary killing of another, without malice aforethought, which would make the killing murder, but without necessity to justify the deed, or accident to ex- cuse it. It is a case in which, the public justice is interested; a fellow being has been suddenly, and by an act of vio- lence, deprived of life ; and it concerns the whole com- munity to make solemn inquiry into the transaction, and to punish the bloody actors, if they have violated the law. Both these defendants are on trial for this offence, and it is for you to investigate their respective shares in the transaction, and to pass on the case of each as though they were severally on trial. One may be guilty, and not the other, and both may be innocent. The government must satisfy you that James McNally 158 COMMONWEALTH V. RILEY AND STEWART. is dead, and that he came to his death in the manner which is charged in the indictment, before you can call on the defendants for their defence. That McNally is dead, is clearly proved and not denied ; but that Riley killed McNally, is left to be inferred from the fact that they were engaged in a conilict in the street, Riley being armed at the time with a knife, and it appeared imme- diately afterwards that McNally had received a mortal wound in the abdomen, which, on the following day, ter- minated his life. But the evidence stops at a most inter- esting stage of the transaction. We are apprised of facts to this extent only : After McNally had twice knocked Riley down in the street, and the latter had received from Stewart the knife, he passed from the street towards the sidewalk, followed by McNally. But while McNally followed Riley, and before he had reached him, Stewart begged McNally to go home. What was McNally's reply does not appear ; for the vdtness says that McNally said something, which he did not hear, but ran to call the watch ; and when he returned shortly after, the affray was over. You will naturally inquire, and be desirous to know what oc- curred between the men on the sidewalk. Did McNally press upon Riley and knock him down ? Did Riley try to escape from his attack ? Did he retreat to the wall ? Or, was the attack so sudden and violent, and the danger so imminent, that no time was left for retreat ? Did both or either fall, and was the wound in the abdomen the effect of accident or design? All these questions are important, and calculated materially to influence your minds. If the evidence has left this point in doubt, so that you cannot conscientiously say that you believe that Riley voluntarily inflicted that mortal wound upon the deceased, you must pronounce a verdict of acquittal for both defendants. The learned counsel on both sides have argued the case, as though you would come to the conclusion, that this mortal wound was vol- untarily inflicted by Riley. If that should be your con- clusion, then the question will be, whether it was a jus- CHARGE — THE FACTS SUMMED UP. 159 tifiable or an excusable act on his part. It is wliolly immaterial from wliom the facts come, whether from wit- nesses for the government, or for the defendants. But you must first ascertain the facts, and then judge of them according to the law. The parties had been amusing themselves at a game of cards, during which, something had occurred which gave offence to McNally ; and when he first -left the house, and was at the gate, he threatened to flog both Riley and Stewart. He went back into the house, and on his return to the gate, he repeated his threats. Stew- art came out and said to him, " Surely you will not think it worth your while to whip so small a man as me." Soon after, Riley came, and stepping to McJSTally, who stood opposite the gate, on the sidewalk, struck him, and immediately ran off across the street, and around a railing in front, on Bedford street. Stewart then interfered, and said to McNally, "go home, McNally, and forgive Riley ; he will not think of it in the morning." McKally replied, " the blow had no more effect on him than a blast of wind." Seeing Riley standing by the railing, he pursued him, and Riley ran some distance before McNally caught him. But Riley dodged him, and ran back to the witness, who still stood at the gate. McNally followed and knocked him down, near to the sidewalk ; and then it was, while Riley lay on the ground and McNally was over him, that the wit- ness says, " he saw McNally's foot going." Riley got up, and, saying it was too bad, walked off towards the mid- dle of the street, when McNally followed, and knocked him down a second time. When Riley arose, Stewart went to him, and gave him a knife, and told him " to use his pleasure with it." This was done openly and in pres- ence of all. But Riley still went off towards the side- walk, and McNally followed him. The witness says that both before and after Riley had received the knife, he heard Stewart beg McNally, "For God's sake, to go home." During the whole affray, he says, nothing led him to suppose that Riley and Stewart, or either of them 160 COMMONWEALTH V. EILEY AND STEWART. wanted to fight with McNally ; and that, with the excep- tion of the blow at the gate, the fight was all on the part of McNally. The witness saw no signs of anger or ven- geance in Riley or Stewart ; but he says he expected, if McNally should again strike Riley, he might be tempted to defend himself with a knife, although he did not think Riley meant to kill McNally. He therefore ran for the watch to prevent further mischief. It was under these circumstances that the wound was given by Riley to McNally ; and if it was done to defend his own life, and to save himself from great bodily harm, it was within the principles of self-defence and justifiable in law. What is deemed in law the right of self-defence, is proper to be known by you. The principles are the result of long experience and careful consideration of wise men. The law trusts noth- ing to rash discretion ; but requires her ministers, in all cases, to regard former precedents, made by judicial tribunals after mature deliberation. There are two kinds of self-defence : the one which is justifiable, and perfectly innocent and excusable; the other, which is in some measure blamable. and barely excusable. All the writers agree, says Sir Michael Foster, that there are cases in which a man may, without retreating, oppose force to force, even to the death. They all agree, also, that there are cases, in which the defendant cannot avail himself of the plea of self-defence, without showing that he retreated as far as he could with safety, and, then, merely for the preservation of his own life, killed the assailant. A homicide committed under these cir- cumstances is excusable, notwithstanding there may have been some fault in the defendant. In the case of justifi- able self-defence, the injured party may repel force by force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavors by violence or surprise, to commit a known felony upoix either. It is justly considered that the right in such case, is founded in the law of nature, and is not, nor can DEFENCE AGAINST FELONIOUS ATTACK. 161 be, superseded by any law of society. There being at the time no protection from society, the individual is re- mitted for protection to the law of nature. Another principle of law is worthy of your notice at this time. Wliere a known felony is attempted upon the person, be it to rob or murder, the party assaulted may repel force by force ; and even his servant then attendant upon him, or any other person present, may interfere to prevent mischief; and if death ensue, the party so inter- posing will be justified. In such cases, it is said naturo and social duty co-operate. There is a species of self- defence known to the law, which, though involving fault to a certain extent, is yet excusable. The killing in such case is voluntary, the party having the intention to kill, or to do some great bodily harm at the time the death happened at least, but to have done it for the pre- servation of his own life. It arises from a sudden casual affray commenced and carried on in the heat of blood ; and supposes that the person when engaged in such sud- den affray, quits the combat before the mortal wound is given, and retreats or flies as far as he can with safety ; and then, urged by mere necessity, kills his adversary for the preservation of his own life. This last supposed case borders very nearly upon manslaughter ; and hi fact and experience, the boundaries are in some in- stances scarcely perceivable ; but in consideration of law they have been fixed. In both cases, it is supposed that passion has kindled on each side, and that blows hav(- passed between the parties; but in the case of man- slaughter, it is either presumed that the combat on both sides has continued to the time the mortal stroke waf^ given, or that the party giving the stroke was not at that time in imminent danger. He, therefore, in the case of mutual conflict, who would excuse himself upon the ground of self-defence, must show that before a mortal stroke was given, he had declined any further combat, and retreated as far as he could with safety; and also that he killed his adversary through mere necessity, and to avoid his own immediate death. If he fails in eithn 162 COMMONWEALTH V. RILEY AND STEWAET. of these circumstances, he will incur the penalty of man- slaughter. These principles are drawn from writers of the highest authority, and it "belongs to you to apply them so far as the}' are applicable to the present case. Was it a mutual combat, or were the violent passion and the fight altogether on the side of McNally ? Did he pursue Eiley with a vengeful spirit? Did he use such force and vio- lence as made Kiley believe that his life was in danger, or that he was lilsely to sustain great bodily harm ? In this connection you hare a right to consider the relative size and strength of the parties and their disposition and character, as they have been proved on this trial. If you belie^'e, tliat when McISTally had linocked Riley down, he stamped upon him with his foot, or kicked him in a vital part, of which there is some evidence in the testimony of James Devemiy, who saw the whole transaction, and in marks seen three, days afterwards by Dr. Flint, on Riley's person ; I will not undertake to limit his right to defend himself with his own feeble hand ; but I consider that he might well defend himself with the knife which he received from Stewart. Had McNally taken the life of Riley, it would have been manslaughter ; for, although Riley struck him at the gate, he immedi- ately ran oflF, and there was no necessity for McNally to pursue him, however much his passions may have been roused by the affront. If Stewart believed at the time, that McNally intended to kill Riley, he had a right to interfere to prevent further mischief, and to give to Riley a weapon which was necessary for his defence. But of all these facts and circumstances, you must judge. You represent the people, and the justice of the country, and you are bound by a solemn oath to pro- Qounce a true verdict. There has been in this case as much testimony in favor of the mild and peaceable dis- position of both the defendants and of their general character for meekness and forbearance under provoca- tion, as is ever to be expected in a court of justice. Merchants and citizens of the best character have EXAMINATION OF THE FACTS. 163 .attended to testify in their favor, in this hour of their peril ; "but if the government has made out a case of vi^il- ful and felonious killing to your satisfaction, against either or both of these defendants, you must find them guilty accordingly, notwithstanding their former good character. But if, after a deliberate review of all the circumstances of the case, it remains a doubt in your minds, whether they are guilty or innocent, the law per- mits you to throw the evidence of their good character into the favorable scale, and it is to weigh on the side of mercy. Still, however, if you believe that Rilej^ used the knife when his life was not in danger, and when he had no reasonable ground to fear any great bodily harm, you must find him guilty ; and, under the circumstances, Stewart must share the same fate, unless you should believe that Riley used the knife in a different manner, and for a different purpose from that for which it was put into his hands by Stewart. •The jury, after deliberating for about twenty minutes, returned a verdict of not guilty for both defendants. Verdict, not guilty. THE STATE V. SCOTT. [4 Iredell, 409.] S^j/previe Court of JSorth Carolina, June Term, 18^^.. Thomas Ruffin, Chief Justice. Joseph J. Daniel, | William Gaston, \ Judges. Frederick Nash, ) Mutual combat— Killing with deadly weapok, mueder — Imminencb OP the danger — Acting upon appearances — Previous threats and hostile conduct — Failure to give proper instructions not asked for, no ground of reversal. 1. In a case of homicide, where it appeared that the deceased had 164 THE STATE V. SCOTT. threatened the prisoner about three weeks before that he would kill him ,' that they met in the street on a starlight night, when they could see eaclt other ; that deceased pressed for a fight, but the prisoner retreated a shorl distance ; that when the deceased overtook him, the prisoner stabbttl him with some sharp instrument, which caused his death ; and that at tli<' time of this meeting the deceased had no deadly weapon : Held that tlii- was murder. 2. In such a case, to mitigate the offence from murder, it must appear, from the previous threats and the circumstances attending the rencounter, that the killing was in self-defence. 3. Where the deceased intended only a fight without weapons, and that was known to the prisoner, and the prisoner drew his knife without notice to the deceased, even if they actually engaged in the fight, the stabbing of the deceased by the prisoner would be murder. 4. The belief that a person designs to kill me will not prevent my killing him from being murder, unless he is making some attempt to execute his design, or, at least, is in an apparent situation to do so, and thereby in- duces me reasonably to think that he intends to do it immediately. [Ace. Lander's case, post; Harrison's case, areie; Creek's case, ^osi; Cotton's case, post; Rippy's case, post; Collins' case, joosif; Dyson's case, post ; Williams' case, post; Evans' case, ^osi; and others. Contra. Grainger's case, post',; Philip's case, post; Carico's case, post; Bohannon's case, post; Young's case, post. ] 5. Where the prisoner prayed for instructions only on [the ground tli.-it the deceased did intend to kill him, and not on the ground of a reasonable belief on his part that the deceased did so intend ; the Court did not err in omitting to instruct the jury on the latter point. 6. Daniel, J., dissented, and was of opinion that a new trial ought lo be granted, because the record did not show that the Court charged the jury that the prisoner should be acquitted, if from the character of the as- sault and the surrounding circumstances, in connection with the antecednit conduct and threat of the deceased, he had reasonable grounds to belie\'e that a felony was about to be committed on his person ; and this, notwitli- standing that it ^id not appear that the prisoner had specifically prayei! such an instruction. Appeal from the Superior Court of Law of New Han- over County, at Fall Term, 1843, his Honor, Judge Battle, presiding. The prisoner was indicted for the wilful murdi'r of one Madison Johnson. On the trial, the following evidence was introduced, to-wit : Alfred Johnson, a brother of the deceased, was ex- amined for the State, and testified, that on a certain evening, in the month of March last, he went to the house of Hagar Nutt, in the town of Wilmington ; that STATEMENT OF THE FACTS. 165 Alfred Smith, Henry Cowan, James Holmes, the de- ceased and the prisoner were there ; and after remaining a short' time, left and went off together ; Holmes, Smith and Cowan being a little ahead, and the deceased, the prisoner and witness walking on a short distance be- hind ; that it was in the night, with no moon, but a bright starlis;ht ; that the deceased and the prisoner had some words, but did not quarrel or seem angry, that the prisoner struck the deceased, upon which he fell and immediately expired ; that the prisoner ran off, but re- turned upon his calling him, and as soon as he saw that the deceased was cut and bleeding, he ran off again ; that he had never heard the deceased threaten the pris- oner, and the parties did not touch each other until the prisoner struck the deceased ; that the deceased had no weapon in his hand, and none was found upon his per- son after death. Alfred Smith, another witness for the State, testified, that he was at Hagar Nutt's at' the time spoken of by the first witness, and went off in company with the others ; that the deceased did not start with them, but came through a gate on the premises and called for the prisoner, who at first did not answer, but upon a second -call, asked the deceased what he wanted, to which he replied, by calling him a damned rascal ; that the pris- oner then asked him what was the matter, and told him to come up and reason the matter before the gentlemen, to which deceased replied, that the gentlemen had nothing to do with this business ; that he walked on a little ahead, and looking back, saw the deceased and prisoner moving backwards and forwards, as if they were trying to get together, but Alfred Johnson was between them, keeping them apart; that he heard no angry words, nor saw nor heard any scuffle, but heard the prisoner tell the deceased that he wished to have nothing to do with Mm, and that he did not see the prisoner strike any blow, but saw him running off. Dr. Dickson was then called, and testified for the State, that the wound was inflicted by a long, narrow. 166 THE STATE V. SCOTT. sharp instrument, and from its appearance must have- been instantly fatal. For the prisoner, Henry Cowan, James Holmes, Mr. Gfrant and Charlotte Mitchell were examined. Henry Cowan swore that he left Hagar JSTutt's in company with the others; that he walked on before, and heard the prisoner and the deceased quarrelling, and saw Alfred Johnson trying to prevent a light; that prisoner backed, and the deceased followed him eight or ten steps up the hill ; that he saw the prisoner run- ning off; that he thought the prisoner was afraid of deceased from his giving back. James Holmes testified, that he left Hagar Nutt's with the others ; that the prisoner left the house singing, and the deceased came afterwards, calling for the prisoner ; that the prisoner asked what he wanted, to which the deceased replied, that he would soon let him know ; that he saw the prisoner and the deceased moving backwards and forwards as if they wanted to fight, but Alfred Johnson kept them apart; that he saw the deceased stoop down as if he intended to pick up something, and that soon afterwards he saw the prisoner running, and asked what was the matter, to which prisoner replied, " nothing," and witness said to him that he had done something, or he would not run. Mr. Grant stated, that about three weeks before this transaction, he saw the prisoner and the deceased have a fight, when the deceased struck the prisoner on the head with a brick-bat, and the prisoner seemed to wish to avoid the fight; that he heard the deceased say he would kill the prisoner if there were no other negro left in the State, and that he informed the prisoner of the threat. Charlotte Mitchell swore, that about a fortnight before the killing, the deceased came to her house iu company with Alfred Johnson, his brother, and seemed very anxious to see the prisoner, who boarded with her ; that the deceased found the prisoner's cap and tore it up,, saying, that he would serv<^' the prisoner, in; tlie samti' STATEMENT OP THE FACTS. 167 way if he could find him ; and that he intended to kill him at the risk of his life ; that Alfred Johnson heard this, and told his brother that they could find the pris- oner another time; that she also heard the deceased threaten to kiU the prisoner the Friday night before his death ; that the deceased had been on good terms with a yellow girl named Maria Mitchell, but had had a fall- ing out with her, and she had come to stay at witness's house, where the prisoner was boarding. She testified also, that the prisoner was rather a stouter man than the deceased, both being young men. Mr. Elfe stated, that he thought the prisoner and the deceased were about the same size. The prisoner, the deceased, and all the witnesses, ex- cept Messrs. Grant and Elfe, were colored persons. Upon -this case, the prisoner's counsel insisted that the killing was in self-defence, or at most, upon a legal provocation, and requested the Court to instruct the jury, that if they believed that the deceased had threat- ened to take the prisoner's life, which was known to the prisoner, and the prisoner gave back, and the deceased followed him, (as stated by the witness Cowan,) then the killing was either excusable homicide in self-defence, or, at most, a case of manslaughter. The Court instructed the jury, that if Alfred Johnson's account of the transaction were the correct one, it was undouhtedly a case of murder; but if they did not believe his account to be true, then, if they found from the evidence of the threats having been used by the de- ceased, taken in connection with the testimony given by the witnesses Smith, Cowan and Holmes, or either of them, that the deceased was assailing the prisoner in such a manner, that he had no means of saving his life, or his body from some great hurt, but by killing the deceased, he had a right to do so, and it would be a case of excusable homicide in self-defence ; that if they did not take that view of the case, but found that the parties were engaged in a scuffle, daring which the prisoner killed the deceased, it was a case of manslaughter ; but 168 THE STA'J'K V. SCOTT. that if the parties were only trying to get together, and no blows had passed, or if the prisoner had given "back and the deceased had followed him, as stated by Cowan, but the deceased had stricken no blow, and had no weapon in his hand or about him, and the prisoner struck him with a weapon likely to produce death, then the killing was murder. The jury found the prisoner guilty of murder; upon which he moved for a new trial, upon the ground of mis- direction. The motion was overruled and sentence of death pronounced, from which the prisoner appealed. The Attorney- General for the State; No Counsel in this Court for the defendant. EuPFiw, Ch. J. — The instructions to the jury seem to be fully responsive to the prayer of the prisoner, and we do not perceive in them, as given, any error to the preju- dice of the prisoner. The killing was, unquestionably, not from necessity in defence of the prisoner's person. Lord Hale says, that it must appear plainly by the cir- cumstances of the case, as the manner of the assault, the weapon, or the like, that the party's life was in im- minent danger — otherwise, the killing of the assailant is not justifiable self-defence. 1 P. C, 484. And Mr. East lays it down, " that a bare fear, however well grounded, that another intends to kill one, unaccompanied with any overt act, indicative of such intention, will not war- rant the latter in killing the other by way of prevention ; there must he an actual danger at the time." 1 East P. C, 273. There was here no danger of the prisoner's life or great bodily harm ; for the deceased had no deadly weapon, nor any means of doing the prisoner such harm, and in no manner, at the time, indicated an intention to do so, and they were nearly of the same strength. But notwithstanding the defect of evidence of any contempo- raneous purpose or ability, on the part of the deceased, to kill the prisoner, the Court left to the jury the en- quiry of the fact, whether the deceased was assailing the prisoner in a deadly manner; which the jury found OPINION — DEFENCE TH COMBAT. 169 against the prisoner. He has, therefore, no cause of complaint on this point. The instructions asked, are then to he considered in reference to the position, that the killing was not more than manslaughter. The prayer was, that if the deceased had threatened to take the prisoner's life, which was known to him, and he ^ave back, and the deceased followed him, as stated by Cowan, then the killing was only manslaughter. As to the threat, it must have been that proved by Grant to have been made three weeks before, as that alone was communicated to the prisoner. We do not perceive how that can mitigate the offence. If it has any effect, it tends to show that the killing was not on heat of blood, but both intentional and of previous purpose; and, therefore, it would be murder, unless from the threats and circumstances attending the encounter, it should appear, that it was necessary in self-defence, which we have already seen was not so. But, notwithstanding this consideration, his Honor did beneficently put it to the jury, that if the parties became engaged in a scuflB.e, ■during which the prisoner killed the deceased, it would be but manslaughter. Now, in the case of mutual com- bat upon words of reproach or other sudden provocation, if one of the parties takes an undue advantage, as by drawing his sword, and making an assault, before the other has an opportunity to draw his, it is settled, that it is murder. And so here, where one of the parties drew his knife without notice to the other, who expected only a fight, without weapons, as the other knew, it would seem, even if they actually engaged in the fight, that the former stabbing the other must be murder ; for it is plain, that the slayer intended a fight as well as the other, but he did not intend a fair fight, as a trial of natural strength, but sought the other's blood. But in this case, there was no actual combat prior t® the mortal blow. Under the prayer and instructions we are to con- sider the case as to this point, upon the testimony of Cowan alone, laying aside that of A. Johnson and the other witnesses. Cowan states, that both parties were 170 THE STATE V. SCOTT. quarrelling, and that A. Jolmson was trying to prevent a fight between them, when his attention was drawn to them ; that he then saw the prisoner back, and the de- ceased foEow him eight or ten steps ; that he saw no scuffle nor blow given by either party, but saw the pris- oner run oflF, which was, no doubt, immediately after giving the first fatal blow. Upon this evidence, by itself, it is clear, that it is murder. Two men meet in the street, and, upon angry words on both sides, one of them ofiers a fight, and the other retreats a few steps, but without declining to fight. Instead, however, of fight- ing, as was expected by the other, without arms, he that retreats had either during the quarrel drawn his knife and meant by his retreat to draw the other on, or he fell back until he could draw his knife, and then, without * warning his adversary to keep off, and as soon as he got within reach, and before he had made a blow, he stabbed him so as, with a single stroke, to take his life upon the spot, and immediately fled. The prisoner not only took undue advantage of the deceased, but he took it while he meant the deceased to believe that they were to fight on an equality ; which argues, not sudden passion, bat a wanton and cruel thirst for blood. If to these circumstances be added that of the deceased's threat three weeks before, the case is rather aggravated than mitigated. For it tends to raise a presumption of a previous mutual grudge, which the one party was then seeking to gratify in an ordinary fight, and the other to gratify fataUy, under the pretence of a sudden mutual combat, in which, though his adver- sary thought it was to be fair, he meant to take, and secretly did take, an undue and fatal advantage. In consultation it occurred to us at one time, that the case might properly have been left to the jury favorably to the prisoner, on the principle of Levet's case, Cro. Car., 538 ; which is, that if the prisoner had reasonable ground for believing that the deceased intended to kill him, and under that belief slew him, it would be excusa- ble, or at most manslaughter, though in truth, the de- OPINION — APPEARANCES — LEVET's CASE. 171 ceased had no such design at the time. To that purpose the jealousy of the deceased, the previous fight in which the deceased took an undue advantage, his threat, his readiness again to quarrel and fight, and the time being night, in w^hich the deceased might be armed vrithout the prisoner's discovering it, would be material. But the Court is satisfied, for several reasons, that the prisoner can take no benefit from that principle. The belief that a person designs to kill me will not prevent my killing him from being murder, unless he is making some at- tempt to execute his design, or, at least, is in an ap- parent situation to do so, and thereby induces me^ reasonably to think that he intends to do it immedi- ately. Here there certainly was no such purpose theix in the mind of the deceased, as he had no weapon of any sort. Nor did the prisoner have any just reason to think the deceased so designed then; for although it was night, yet it was bright starlight, so that all the company could see each other distinctly, and the prisoner must have seen that the deceased was not armed, or that, at least, he did not appear to be armed.. The most then, that could be made of it would be, that the prisoner may have thought that the deceased might be armed, and therefore, that he might then intend to kill him. But such a remote conjecture will not author- ize one man to kill another. There, might have been more in it, if the deceased had been lurking on the way of the prisoner, in the dark, where he could not tell whether he was armed or not, but might presume from his ill-will towards him and the situation in which he was found, that he was. But it cannot apply to a case where there is light enough for the parties to know each other, and upon a mutual quarrel they begin a fight, in which neither party appears to be armed, and one of them secretly prepares a deadly weapon, with which he assails and kiUs the other, who in reality was, as he ap- peared, not armed. Besides, the prisoner did not allege in his defence, that he believed at the time that the deceased intended to kill him, and under that belief he 172 THE STATE V. SCOTT. slew him. He prayed for instructions on the allegation, that the deceased did intend to kill him, and not on the prisoner's reasonable, though mistaken belief, that he so intended. As the prisoner alone, positively knew the state of his own mind on that point, and he did not bring forward the idea of such a belief having been en- tertained by him, the Court and jury could not presume it. Moreover, it has often been decided, that according to the constitution of this Court, we cannot reverse a judgment because it does not appear in the record that the verdict ought to have been given, but only for error apparent in the decision of the Court. Therefore, an omission to give instructions that might have been proper if asked, is not error, but only the giving of wrong instructions, or refusing right ones when asked. We do not know in this case, that the Judge did not ■submit this enquiry to the jury ; for the evidence and occurrences of the trial are not fully set forth in any case, but the appellant states only so much as is mate- rial to the poijats on which he excepts to the opinion of the Court. But, at all events, it does not appear that the prisoner prayed any instructions on this point, and therefore he cannot complain of the omission. There is no error in the judgment; which will be certilied to the Superior Court. Daniel, J., dissenting: There is not a particle of evidence in the case, which would authorize the Court and jury to say, that the prisoner had malice aforethought express against the deceased; but there is abundant evidence, that the de- ceased had express malice against the prisoner. The prisoner in the night time left the house of Hagar Nutt, whistling and apparently in a good-humor. The deceased said nothing to him in the house, but as soon as the prisoner left the house and was in the dark, he liailed him ; and, on being civilly answered by the prisoner, re- turned the answer by curses and abusive language ; and then refused to submit his complaint, whatever it was, DISSENTING OPINION — APPEAKANCES. 173 to the award of the company, but said, he should let the prisoner know what he wanted, when he should come up with him. He did come up, and immediately an effort for combat ensued between the parties. The prisoner, being a little loth to enter into it, retreated. The deceased pressed on him, and in his advance stooped down, as if in the act of picking up sometliing, and at that moment the prisoner gave him one blow with a deadly weapon, as it seemed from the nature of the wound, for the instrument was not seen by any of the company, from the darkness of the night, or some other cause. From this evidence, the prisoner was guilty of murder by malice implied in law, unless than he had a reasonable ground to believe that a felony was in- tended and about to be committed on him by the de- ceased. If he then had such a reasonable ground of belief, although it turned out in fact, that no felony was intended by the deceased, still it was not in law a case of murder. East's P. C, ch. 5, §46; 1 Hale, 470; Foster, 299. Notwithstanding this was the only ground of de- fence the prisoner had, the Court did not, as far as we can learn from the case sent up here, inform the jury that such was the law, nor does it appear that the Court said one word to the jury upon this, the only possible ground the prisoner had to escape the charge of murder. The jury, it seems, were left entirely uninformed and in the dark, as to the law on this point of the case. And whether the prisoner had then a reasonable ground to believe the deceased meant to take his life, was a matter of fact for the determination of the jury, and not for the decision of the Court. Take all the evidence in the case, and it seems to me, that the prisoner had strong grounds to suspect, that then was the time the deceased was about to take his vengeance on him, on account of his jealousy of his mistress, and also to execute his previous threats. These threats had been told to the prisoner; and he must have known, that about a fortnight before, the deceased had torn to pieces his cap, and also. the threat 174 THE STATE V. SCOTT. he then made. It being done at his boarding-house and in the presence of the inmates of the house, they must have told him of it. But it is now said for the State, that this Court cannot see from the case sent here, that the prisoner's counsel prayed the Court to charge the jury, that if the prisoner had a reasonable ground to believe that the deceased intended then to kill him, there in the dark, it was not a case of murder. The prayer is not very definite on this point, I admit ; but the counsel did pray the Court to inform the jury, that from the evidence the prisoner was not guilty of murder, but that it was only a case, at most, of manslaughter. The Court charged, that as the deceased was unarmed, and had not stricken the prisoner a blow, or even touched him, the slaying with a deadly weapon was murder. So far, there can be no complaint of the charge; nor do I perceive from the case, that any objection had been raised on the trial to a principle of law so plain, if the prisoner knew that the deceased was unarmed. If the Judge had con- tinued on his charge and told the jury, that even if the deceased was then unarmed, and it afterwards appeared that the deceased did not then intend to commit a felony on the prisoner; still, if from the antecedent threats and conduct, and the then language and conduct of the deceased, and the darkness of the night, the prisoner believed that the deceased was armed with a dirk or other deadly weapon, and intended to kill him, then it was not a case of murder. I say that such a charge would have covered the whole case. The prayer of the counsel, it seems to me, covered the last ground in the case, as much as that upon which the Judge spoke; and as the Judge did charge, his charge, I think, should have extended to that part of the law, on which the prisoner had some right to expect his case to be taken out of the crime of murder. I think the prisoner should have his case put to another jury. Per Curiam: Ordered that it be certified, there is no error in the judgment below. Judgment affirmed. NOTE — APPEARANCES — INSTEUGTIONS. 175 Note. — The dissenting opinion of Daniel, J., in this case, commends Itself strongly to favor. If the facts of the case warranted the Court in charging at all with reference to the law of self-defence, the prisoner had the right to have the law on that subject fully and not partially charged, so far as it was applicable to his case. Tliis manifestly was not done. Upon the whole, this looks very much like a case where a man was judi- cially compelled to suffer death because of a mistake or inadvertence of his counsel, either in omitting to request the proper instructions, or else in de- fectivelj' making up his bill of exceptions, so that the record, did not show- that a proper instruction was requested and refused. It would be an in- human rule of law that would require an ignorant defendant in a criminal case, to suffer through the manifest mistake or omission of his counsel. Such a rule would be scarcely more tolerable than that which obtained until a recent period in England, which denied the prisoner the benefit of counsel altogether in capital cases, and compelled an illiterate prisoner to defend his own case, pitted against the highest legal skill the government could bring against him, except where points of law were to be debated. The ruling on this point is calculated to arrest attention from the further fact, that the prisoner in this case was without counsel ii. the Supreme Court. The importance of the jury beinsr properly instructed upon the point alluded to, in cases of this kind, may be inferred from examining Sel- fridge's case, ante, pp. 17, 18 ; Neeley's case, ante, p. 96 ; Sullivan's case, unte, p. 65; Shorter's case, post; Logue's case; post; Maher's case, post; Mere'dlth's case, ^os<, and Pond's case, post. ISAACS T. THE STATE. [25 Tex., 174.] Supreme Court of Texas, Galveston. 1860. RoYALL T. Wheeler, Chief Justice. NON-PELONIOUS ASSAULT — ^MUTUAL COMBAT — ThE AsSAILED .VOT COM- PELLED TO RETREAT — ThE LAW OF SELF-DEFENCE EXPOUNDED. 1. If killing is done in the necessary defence of the slayer, that is, to protect or save himself from immediate and imminent danger of death, or great bodily harm from the violence of the deceased, which was not pro- Toked or sought for by the slayer, and which cannot be avoided by any other means except retreating, then it is not an unlawful killing, but justi- fiable homicide. 176 ISAACS y. THE STATE. 2. If, however, it is committed not in necessary self-defence, and not from a contest provoked or sought by the slayer, but in course of a sudden af, fray or contest, and under the immediate influence of sudden passion, pro- duced by an adequate cause, as a violent blow, then or immediately before inflicted, then it is manslaughter, unless [in Texas] committed with a dag- ger. But if it is not justifiable, and is not committed in a sudden quarrel, and under the influence of sudden passion, arising from an adequMe cause, or if done with a dagger, then it is murder in the second degree. 3. K the person assailed can with safety avoid the conflict and all dan- ger by other means than killing or retreating ; or, if at the time of the kill- ing, he is not in immediate danger of serious bodily harm then about to be inflicted ; or if he sought the contest and provoked the attack on himself in revenge for previous difliculties or quarrels,— then he is not justifiable in killing his antagonist, but is guilty either of murder or of manslaughter. 4. Homicide is permitted and justified by law, when inflicted for the purpose only of preventing an unlawful and violent attack on one's per- son, of such a nature as to produce a reasonable expectation or feai' of death, or great bodily harm about to be inflicted. 5. In other words, the killing must take place while the person killed is in the very act of making such unlawful and violent attack, and under such circumstances that the person assailed cannot resort to other legal means to save and protect himself, except retreating or running, which he is not bound to do. . 6. If the party has time and opportunity, with safety to himself, to re- sort to other means to protect himself, then he is not justifiable in killing. It is the necessity of the case, and that alone, wliich justifies the killing. On that necessity, the right to kill rests, and when the necessity ceases, the right no longer exists. 7. This limitation which the law puts on the right of self-defence is founded on the same law of natiu-e and reason which gives the right of defence ; and it does not restrain it, but protects it, and prevents its abuse by those who would, under its color and the pretence of defence, seek to gratify revenge, or an occasion to kill. [But, query ? for it seems the right of defence as it exists in a state of nature is modified in several particulars by the municipal law. See 2 Ruth. Inst. eh. 10 ; Gray v. Coombs post.'] 8. Where the slayer provoked the deceased by profane language and an- gry gesticidations to strike him a blow with a stick, which was not fol- lowed up in such a manner as to produce a reasonable expectation or feai- of death or some serious bodUy injury, and which did not endanger life : held that he could not be justified on the gromid of self-defence, in retreat- ing out of danger, drawing a dagger, returning to the conflict and killing his antagonist. Indictment against Abraham Isaacs for the murder of Samuel F. Spillar. The defendant had been occupying a room of the office of the deceased, using it in carrying on his business of a shoemaker. Complaint had been made to the deceased that th^ defendant annoyed the STATEMENT OP THE FACTS. 177 school girls in passing by, by looking at them out of his window and speaking to them, and was requested to have the annoyance corrected. The deceased replied that the defendant was a good man, and only required to be advised as to his behavior ; and promised that it should cease. The deceased thrice closed the window by tacking cloth over it, which the defendant thrice removed. The last time, which was before breakfast on the morning of the difficulty, whilst in the act of tack- ing the cloth, the defendant drew his dagger on the de- ceased, who left the room and went to his residence and obtained a shot-gun. The defendant stated, in connec- tion with a declaration to one of the witnesses of having drawn the dagger, that the deceased drew on him his shot-gun, and that he was afraid to return to the office for fear the deceased would shoot him. The deceased threw the defendant's tools out of the office, and the de- fendant went away and engaged a wagon to remove them. During the morning, on his return towards the town of "Waverly, (in which the office was situated,) in company with one Fitzpatrick, with whom he had fallen in at Emore's, (to whom he had applied for the wagon,) at the school-house he was told by two of the students that Dr. Spillar, (the deceased,) was at his office and wished to see him and have a settlement before he left for Dan- ville, where he was going that morning. A conversation ensued concerning the difficulty that had taken place. One of the boys told the defendant that Dr. Spillar was not angry with him. The defendant replied, " he would kill him ; that he had thrown his tools out of the office." On cross-examination, the witness said that the defend- ant is a foreigner, and speaks English badly ; that some portion of the remark he did not understand, but that he heard the word "kill." The defendant then asked Fitz- patrick to go with him to the office, where they went accordingly. One of the school-boys had been sent to inform Dr. Spillar that the defendant was coming. On receiving the message he said he was glad of it, as hp wished to 178 ISAACS V. THE STATE. have a settlement with, him before he left Montgomery county ; and requested the youth to bring his stick from the oflace, which he accordingly did. The deceased placed the stick on a stump where he was mending his saddle. The deceased was thus engaged when the defendant came up. The former remarked that he wanted no diflBL- culty ; the latter replied to the same effect. The defend- ant commenced cursing and using abusive epithets to- wards the deceased, and shook his fist in his face. The deceased replied, '' if he did not go away, he would frail him with a stick." He continued talking and shaking his hands at the deceased, who then struck him with the stick. The defendant then retreated twenty or thirty feet, drew his dagger and returned upon the deceased with it. The latter then struck him with the stick a second time, and was retreating when he struck the third blow, which knocked the defendant down on his knees. He arose, caught the deceased by the collar, and stabbed him with the dagger, from which he died. A different version of the affair was given by Fitzpatrick, who was drunk when he testified, and who, as the former vdtness stated, was not in a position to see the first part of the difiiculty. The Court, among other things, charged the jury : " That if the killing was done in the necessary defence of the slayer, that is, to protect or save himself from immediate and imminent danger of death or great bodily harm from the violence of the deceased, which was not provoked or sought for by the slayer, and which could not be avoided by any other means except retreating, then it would not be an unlawful killing, but justifiable homicide. If, however, it was committed, not in neces- sary self-defence, and not from a contest provoked or sought by the slayer, but in course of a sudden affray or contest, and under the immediate influence of sudden passion, produced by an adequate cause, as a violent blow, then or immediately before inflicted, then it would be manslaughter, unless it was committed with a dag- CHARGE TO THE JURY. 179 ger. But if it was not justifiable, and was not commit- ted in a sudden quarrel, and under the influence of sud- den passion, arising from an adequate cause, or if done with, a dagger, then it would be murder in the second degree." The charge of the Court proceeded to define the ele- ments of murder in the first and second degrees, and also what constituted manslaughter, and also the doc- trine of self-defence as a justification. On the last head, the Court charged the jury that "homicide is permitted and justifiable by law, when inflicted for the purpose only of preventing an unlawful and violent attack on one's person, of such a nature as to produce a reasona- ble expectation or fear of death, or great bodily harm about to be inflicted. In other words, the killing must take place while the person killed was in the very act of making such unlawful and violent attack, and under such circumstances that the person assailed cannot resort to other legal means to save and protect himself, except retreating or running, which he is not bound to do. " If the party has time and opportunity, with safety to himself, to resort to other means to protect himself, then he is not justifiable in killing. It is the necessity of the case, and that only, which justifies the killing. On tliat necessity the right to kill rests, and when the necessity ceases, the right no longer exists. This limitation which the law puts on the right of self-defence, is founded bn the same law of nature and reason which gives the right of defence ; and it does not restrain it, but protects it and prevents its abuse by those who would, under its color and the pretence of defence, seek to gratify revenge or an occasion to kill." ****** " If, then, under these rules, you believe the accused acted only in his necessary self-defence, you will find him " not guilty "; but if you believe otherwise from the facts, that the accused might with safety to himself have iivoided the conflict and all danger, by other means than killing or retreating ; or that at the time of the kill- 180 ISAACS V. THE STATE. ing he was not in immediate danger of serious "bodily harm then about to be inflicted, or that he had sought the contest, and provoked the attack on him in revenge for previous difiiculties or quarrels, then he was not jus- tifiable, and you will inquire whether the killing was manslaughter or murder." The jury found the defendant guilty of murder in the second degree, and assessed his punishment at confine- ment in the penitentiary for twenty years. Judgment in accordance with the verdict. Branch & Abercrombie, for appellant; the Attorney- General and A. P. Wiley, for the appellee. Bell, J. — The third specification in the assignment of errors is, that the charge of the Court is contrary to the law, but in the briefs furnished by counsel, no error in the instructions given by the Court to the jury is pointed out. We are of opinion that the charge of the Court is free from error, and contains a very full exposition of the law of the case. It is clearly shown by the testimony that the wound which caused the death of Dr. Spillar, was infiicted by the appellant with a dirk or dagger. Ar- ticle 610 of the Penal Code provides that " if any person be killed with a bowie knife or dagger, under circum- stances which would otherwise render the homicide a case of manslaughter, the killing shall nevertheless be deemed murder, and punished accordingly." It foUows that the judgment of the Court below against the appellant must be afiirmed, unless it can be estab- lished that the evidence shows a case of excusable or justifiable homicide. If the killing took place under circumstances which would otherwise render it a case of manslaughter, then it is elevated to the degree of murder by the provision of the code, because a dagger was the weapon used by the slayer. We are of opinion that the evidence shows very clearly that the accused was under no necessity to take the life of Dr. Spillar at the moment when he struck the fatal blow. It is true that the de- ceased struck the first blow, being excited to do so by JSrOTE — RETREATING — TEXAS STATUTE. 181 the profane language and the angry and insulting ges- ticulations of the accused. Dr. Spillar may not have "been legally justifiable in striking the blow, but the ac- cused was not justifiable in making the assault by Spil- lar the occasion of taking his life. It is not shown that Dr. Spillar offered to follow up his first blow by a further assault; but it is shown that the accused retreated twenty or thirty feet after Dr. Spillar struck the blow, drew his dagger, and returned to the confiict. His life was not in danger. He used greater force than he was justifiable in using, and the jury could not prop- erly have declared by their verdict that the homicide was in the necessary defence of his person from an unlawful attack, which produced reasonable expectation or fear of death, or of some serious bodily injury. The accused provoked the blow which was dealt by Spillar, who is shown to have been a mild and peaceful man, and it would be subversive of every principle of the criminal law to hold that a man was justifiable in taking the life of another who, under much provocation, had struck a single blow without following it up in such a manner as to endanger life. As has been before said, if the killing was not justifiable, it was at least manslaughter, and if manslaughter from its other circumstances, then it be- came murder because of the use of the dagger. The judgment of the Court below is afiirmed. Judgment affirmed. Note. — The charge of the district judge in this case, which is approved by tlie Supreme Court, is so manifestly at variance with all the authorities, American and English, on the question of retreating before killing, that it would be a waste of time to institute any comparisons on this point. This was not a case of surprise or sudden attack, or of felonious assault or at> tempt, but a case of mutual combat, quarrel, conflict or aflfraj', where the contest was voluntarily entered into, and not unexpected by either party. It was hence a case where, by all the common law authorities, either party would have been required to withdraw, or to endeavor fairly to withdraw from the combat, before he could justify killing in self-defence. We doubt whether a case can be found in the books from which a contrary conjecture can be drawn, unless it be that of Copeland, ante^ p. 41, which is silent on the subject. Nevertheless this ruling seems to be in entire conformity with the Texas :statute on the subject of homicide in defence of person or property. This 182 ISAACS V. THE STATE. statute exhibits such a manifest attempt to provide for every possible con- tingency that may ai'ise, departs in so many particulars from the common law, and is so entirely different from any other American statute on the subject which we have seen, (the others simply declaring the common law as laid down by approved authorities), that it may not be amiss to quote it in full : " Homicide is permitted in the necessary defence of person or property, underthe circumstances and subject to the rules herein set forth." Penal Code, Art. 567 ; Paschal's Digest Tex. Laws, Art. 2225. " Homicide is permitted by law, and subject to no punishment, when in- flicted for the purpose of preventing the offences of murder, rape, robbery, ^aiming, arson, burglary, and theft at night, whether the homicide be committed by the person about to be injured, or by some person in his be- half, when the killing takes place under the following circumstances : 1. It must reasonably appear by the acts, or by the words coupled with the acts of the person kiUed, that it was the purpose and Intent of such person to commit one of the offences above named. 2. The killing must take place while the person killed was in the act of committing the offence, or after some act done by him, showing evidently an intent to commit such offence. 3. It must take place before the offence committed by the party killed is actually completed, except that, in case of rape, the ravisher may be. killed at any time before he has escaped from tlie presence of his vic- tim, and except also in the cases hereinafter enumerated. 4. Where the killing takes place to prevent the murder of some other person, it shall not be deemed that the miu-der is Complete so long as the offender is still in- flicting violence, though the mortal wound may have been given. 5. If homicide takes place in preventing a robbery, it shall be justifiable, if done while the robber is in the presence of the person robbed, or is flying with the money or other article taken by him. 6. In case of maiming, the hom- icide may take place at any time while the offender is mistreating with vi- olence the person injured, though he may have completed the offence of maiming. 7. In case of arson, the homicide may be inflicted while the of- fender is in or at the building or other property burnt, or flying from the place before the destruction of the .same. 8. In cases of burglary and theft by nightj the homicide is justifiable at any time while the offender is in the building, or at the place where the theft is committed, or is within gunshot from such place or building." Penal Code, Art. 568 ; Pasch. Dig., Art 2226. "When the homicide' takes place to prevent murder or maiming, if the weapons or means used by the party attempting or committing such mur- der or maiming, are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to in- flict the injury." Penal Code, Art. 569 ; Pasch. Dig., Art. 2227. "Homicide is justiflable also in the protection of the person or property against any other unlawful and violent attack besides those mentioned in the preceding article, and in such cases, all other means must bo resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack, and any person interfering in such case, in behalf of the person about to be injured, is not justifiable in killing the aggressor, unless the NOTE — ESTREATING — TEXAS STATUTE. 183 life or person of the injured party is in peril, by reason of such attack upon his property." Penal Code, Art. 570; Pasch. Dig., Art. 2228. " The party whose person or property is so unlawfully attacked, is not bound to retreat in order to avoid the necessity of killing his assailant." Penal Code, Art. 571 ; Pasch. Dig., Art. 2229. " The attaclj; upon the person of an individual, in order to justify hom- icide, must be such as produces a reasonable expectation or fear of death, or some serious bodily injury." Penal Code, Art. 572 ; Pasch. Dig., Art. 2230. " When under Article 570 a homicide is committed in the protection of property, it must be done under the following circumstances : 1. The possession must be of corporeal property, and not of a mere right ; and the possession must be actual, and not merely constructive. 2. The possession must be legal, though the right of property may not be in the possessor. 3. If the possession be once lost it is not lawful to regain it by such means as result in homicide. 4. Every other effort In his power must be made by the possessor, to repel the aggression, before he will be justified in Icilling." Penal Code, Art. 573 ; Pasch. Dig., Art. 2231. " Simple assault and battery or mere trespass upon property, will not justify homicide, nor will any offence, not accompanied by force, such as theft, except in the night time, and from some house or place, such as de- fined in Articles 680 and 681." Penal Code, Art. 574 ; Pasch. Dig., Art. 2232. This statute does not appear to have been as yet directly expounded in any Texas case. Should a case ai'ise not embraced in its provisions — such, for instance, as kUling an innocent person in order to save one's own Ufe, — doubtless the rule would hold which Sir Michael Foster and Mr. East laid down with reference to the 24 Hen. 8, ch. 5, which rule is also contained in the statutes of some of the American States, namely : " But though the statute only mentions certain .cases, it must not be taken to imply an exclusion of any other instances of justifiable homicide, which stand on the same footing of reason and justice." Foster, 276 ; 1 East P. C. 272. COMMONWEALTH v. DKUM. [8 Smith, l.J In the Court of Oyer and Terminer for Westmoreland County., Pennsylvania, November Term, 1868. Before Hon. Daniel Agnew, One of the Judges of the Supreme Court, sitting by assignment. Mutual combat — Duty of Retreating before killing — Killing • with deadly weapon — degrees of homicide — reasonable doubt, etc. 1. To excuse homicide by a plea of self-defence, it must appear that the 184 COMMONWEALTH V. DRUM. slayer had no other possible, or at least probable, means of escaping, and that his act was one of necessity. [Ace. Shippey's case, ante, and citations.] 2. If the slayer use a deadly weapon and under such circumstances as he must be aware that death will be likely to ensue, the necessity, to ex- cuse the homicide, must be great and must arise from imminent peril to life or of great bodily injury. 3. If the object of the assailant appears to be to commit only an ordin- ary assault and battery, it will not excuse a man of equal or nearly equal strength in taking his assailant's life with a deadly weapon. The act of the slayer must not be entirely disproportioned to the attack upon him. [Aoc. John Kennedy's case, ante, p. 106 ; Thompson's case, ante, p. 92 ; Benham's case, ffin^e, p. 115; Scott's case, ante; Stewart's case, post."] 4. Ordinarily a man may stand in all proper places, and need not flee from every one who chooses to assail him. But the law does not apply this right to homicide. The question here does not involve the right of mere or- dinary defence, or the right to stand wherever he may rightfully be, but it concerns the right of one man to take the life of another. When it comes to the question whether one man shall flee or another shall live, the law decides that the former shall rather flee than that the latter shall die. [See note to Selfridge's case, anie, page 28; note to James D. Kennedy's case, ante, p. 139.] 5. The burden is upon the slayer to prove that there was an actual necessity for taking life, or a seeming one, so reasonably apparent and con- vincing to him, as to lead him believe he could defend himself only in that way. 6. The reasonable doubt to the benefit of which the accused is entitled, must fairly arise out of the evidence, not be merely fancied or conjured up ; such a difficulty as fairly strikes a conscientious mind and clouds the judg- ment. 7. Under the plea of self-defence, if the evidence leaves the prisoner's extenuation in doubt, he can not be acquitted of all crime, but must be con- victed of homicide in some of its grades. [See part iv of this volume.] 8. Murder in the first and second degree, manslaughter, and excusable homicide defined, distinguished and applied in this case : also reasonable doubt to acquit, and that arising under plea of self-defence. Agnew, J., charging the jury : ****** On the part of the Commonwealth, it is alleged that in consequence of previous difficulties between the prisoner and the deceased, the prisoner armed himself with a dirk knife or dagger, intending to use it upon deceased, if they met and had another difficulty ; that when they met on Thursday night, after deceased was struck at 'over the railing by Eobert Miskelly, he turned downwards and toward the curb, and was striking at some one there, and not at the prisoner, and while thus engaged, the prisoner. OHAKGE— SUMMING UP. 185 stepping or leaning forwards towards him, extended his arm and gave him the thrust in the left side, which was next to him. In this view of the case, the preparation of the knife, the entire absence of provocation at the time of giving the wound, the deadly nature of the weapon, and the vital part at which the blow was aimed, all tend to prove that the killing was wilful ; that there was time to deliberate ; that the blow was premeditated ; that there was no legal ground of provocation, and no impetuous rage or passion. If you believe this is the true version of the case, then you are asked by the Commonwealth to convict the prisoner of murder in the first degree, on the ground that he kiUed the deceased wilfully, deliber- ately and premeditatedly, and with malice aforethought. If you should find this to be so, it would constitute in law murder of the first degree. But the version of the defence is that the knife was not prepared ; that it was one which the prisoner carried and used in his hunting excursions, and that he was preparing to go out upon such an excursion ; that the deceased, a large, muscular and fighting young fellow, was, in conse- •quence of the former altercation, seeking the prisoner to whip him, of which the prisoner was informed ; that, dis- covering him in the saloon, he came there to do so, and waited near by until he came out, and then returning and finding him standing beside the railing, he attacked him, struck him two blows, was diverted a moment by Riley Miskelly taking hold of him; then after casting ofi' Riley, and dodging the blow of Robert Miskelly, returned to his assault upon the prisoner, and struck him in the face ; that the prisoner, then taking out his knife, and before the blow could be repeated by the deceased, cut him in the side, making the wound which caused death, and at the time of doing this, he was so hemmed in he could not escape. If these be the facts— the true version of the case, then the defence ask you to say that the wounding was only in self-defence, demanding a verdict of entire accLuittal, and if not in self-defence, that at the very most it is but manslaughter. 186 COMMONWEALTH V. DRUM. To excuse homicide liy the plea of self-defence, it must appear that the slayer had no other possible, or at least, probable, means of escaping, and that his act was one of necessity. The act of the slayer must be such as is nec- essary to protect the person from death or great bodily harm ; and must not be entirely disproportioned to the assault made upon him. If the slayer use a deadly weapon, and under such circumstances as the slayer must be aware that death will be likely to ensue, the neces- sity must be great, and must arise from imminent peril of life, or great bodily injury. If there be nothing in the circumstances indicating to the slayer at the time of his act that his assailant is about to take his life, or do him great bodily harm, but his object appears to be only to commit an ordinary assault and battery, it will not ex- cuse a man of equal, or nearly equal strength, in taking his assailant's life with a deadly weapon. In such a case it requires a great disparity of size and strength on part of the slayer, and a very violent assault on part of his assailant, to excuse it. The disparity on the one hand, and the violence on the other, must be such as to con- vince the jury that great bodily harm, if not death, might have been suffered, unless the slayer had thus defended himself, or that the slayer had a reasonable ground to think it would be so." The burthen lies on the prisoner, in such a case, of proving that there was an actual neces- sity for taking life, or a seeming one so reasonably ap- parent and convincing to the slayer, as to lead him to believe he could only defend himself in that way. The jury will remember I am speaking of wilful killing with a deadly weapon. If this intent to kill existed in the mind of the prisoner at the time of giving the blow, two difficulties arise in the case iipon the plea of self-defence, which the jury must pass upon and decide. The attack of Mohigan was made with his fists ; no weapon appears to have been used by him ; the blows appear to have a See, upon the question of disparity of size and strengtli between com- batants, Selfridgo's case, ante, p. 23; Thompson's case, ante, p. 92; Ben- ham's case, ante,p 115; Riley and Stewart's case, ante, p. 155. DISPAKITY OF SIZE — KETEEATING. 187 taken no great effect, and at the time MoMgan was alone, wMle two persons, not unfriendly to the prisoner, were interfering in his behalf. Under these circnmstances (if yon so believe them), was there any real or apparent necessity to take life for the purpose of defence ? Did Mohigan do, or try to do, more than beat the prisoner with his fists ? Was the disparity of size and strength of the prisoner so great as to require him to take Mohi- gan's life to prevent great bodily harm to himself, in such a case, where no weapon was used against him? The other difficulty arising upon the plea of self-defence is, whether the prisoner had not an opportunity of escaping down into the saloon, or down street, when Riley Mis- keUy and Robert Miskelly interfered in his behalf. Taking their testimony, was there anything to prevent his escape, when Mohigan was diverted in his attack from him ? If you believe Cline, a witness for defence, that Drum had advanced out itito the pavement before the entrance to the saloon, and was no longer hemmed in by the railing ; and that Mohigan, after leaving Riley and Robert Miskelly, advanced down the pavement, (and the striking downward is corroborated, to some extent, by Stewart), was there anything to prevent Drum's escape ? K you think he could readily have escaped without striking the fatal blow; if you think he was not pre- vented from escaping by the fierceness of the attack, it is not a case of self-defence. The law is too careful of life to permit it to be taken without an excusable neces- sity. The next enquiry, and it seems to me the all-important one, is whether the act of the prisoner was manslaughter only. K the prisoner did not meditate the death of Mo- higan ; if he did not prepare the knife to take his life ? and if upon the sudden impulse, arising from the blow he received, and the passion they produced, he drew out his knife in a rage, and gave the fatal blow, it would be man- slaughter. Or, if from the suddenness of the attack and an uncontrollable fear seizing him, but without such an excusable necessity as I have described, he drew out the 188 COMMONWEALTH V. DRUM. knife and struck the blow without malice, he would "be guilty of manslaughter only. Upon this branch of the case I must instruct you that the previous occurrences on Monday night and Thursday night furnish no justification or even excuse to Mohigan, in making the attack upon the prisoner on Thursday night at the saloon. This attack constituted a sufficient ground on the part of the prisoner to defend himself in a proper manner. But this defence, as I have before said, must not exceed the reasonable bounds of the necessity. Here the jury must attend to this im- portant distinction. The argument of the defence is, that when the slayer is not in fault, is not fighting at the time, or has given up the fight, and then slays his adver- sary, he is excusable as in self-defence. But though this may be the case, it is not always so. The true criterion of self-defence, in such a case, is, whether there existed such a necessity for killing the adversary, as required the slayer to do it in defence of his life or in the preservation of his person from great bodily harm. If a man approaches another with an evident intention of fighting him with his fists only, and where, under the circumstances, nothing would be likely to eventuate from the attack but an ordinary beating, the law cannot recognize the necessity of taking life with a deadly weapon. In such a case it would be manslaughter ; and if the deadly weapon was evidently used with a murder- ous and bad-hearted intent, it would even be murder. But a blow or blows are just cause of provocation, and if the circumstances indicated to the slayer a plain necessity of protecting himself from great bodily injury, he is excusable if he slays his assailant in an honest purpose of saving himself from this great harm. The right to stand in self-defence, without fleeing, has been strongly asserted by the defence. It is certainly true, that every citizen may rightfully traverse the street, or may stand in all proper places, and need not flee from •every one who chooses to assail him. Without this freedom our liberties would be worthless. But the law MURDER — REASONABLE DOUBT. 189 does not apply this right to homicide. The question here does not involve the right of merely ordinary de- fence, or the right to stand wherever he may rightfully be, but it concerns the right of one man to take the life of another. Ordinary defence and the killing of another evidently stand upon a different footing. When it comes to a question whether one man shall flee or another shall live, the law decides that the former shall rather flee than that the latter shall die." But if the prisoner had prepared the knife and in- tended to use it for the purpose of killing Mohigan, and merely waited for an assault by him for an occasion to use it, and in consequence of this premeditated design,, did use it, it would be murder, and if the act was at the time done with coolness and deliberation, it would be murder in the first degree. If, however, he had no spe- cific intention of taking life, intended not to kill, but only to maim and wound, it would be only murder in the second degree. It is the province of the jury to decide upon the credibility of the witnesses, the kind of off"ence, and, if it is a murder, to ascertain whether it be of the first or second degree. In deciding upon the case, or upon any material part of it, it is the duty of the jury to give the prisoner the benefit of any reasonable doubt arising out of the evidence which prevents them from coming to a satisfactory conclusion. But this doubt must fairly arise out of the evidence, and not be merely fancied or conjured up. A jury must not raise a mere fanciful or ingenious doubt to escape the consequences of an unpleasant verdict. It must be an honest doubt — such a difficulty as fairly strikes a conscientious mind and clouds the judgment. If the mind be fairly satisfied of a fact, on the evidence — as much so as would induce » Q«(Ere whether this statement is applicable to any other case than mutual combats or non-felonious assaults. It does not apply to felonious attempts, for in such cases the assailed may pursue. Foster, 273 ; 1 Bast P. C, 271 ; Mawgridge's case, Kelyng, 128, 129. Paksons, Cli. J., in Sel- fridge's case, ara!!e, p. 1 ; Carroll's case, post ; Collins' case, ^osi!; note to Selfridge's case, ante, p. 28; note to James D. Kennedy's case, ante, p. 139 ; note to Stoffer's case, post. 190 COMMONWEALTH V. DEUM. a man of reasonable firmness and judgment to take the fact as true, and to act upon it in a matter of importance to himself, it would be sufficient to rest a verdict upon it. As to whether a reasonable doubt shall establish the existence of a plea of self-defence, I take the law to be this : If there be a reasonable doubt that any oifence has been committed by the prisoner, it operates to acquit. But if the evidence clearly establishes the killing by the prisoner purposely, with a deadly weapon, an illegal homicide of some kind is established, and the burthen then falls upon the prisoner, and not on the Common- wealth, to show that it was excusable as an act of self- defence. If, then, his evidence leaves his extenuation in doubt, he cannot be acquitted of all crime, but must be convicted of homicide in some of its grades — of man- slaughter, at least. Starting, then, with the legal presumption of innocence in favor of the prisoner, until the proof fairly establishes his guilt, the first question to be decided is, whether he is guilty of murder ? If he formed the design to kill Mo- higan — if, in consequence of this purpose, he prepared or procured a deadly weapon, and carried it about with him to be used when occasion off"ered itself; and, if, when the opportunity arose, he did use it, it would be murder. If at the time he did the act, he thought of his purpose to kill him, and had time to think that he would execute it, and formed fully in his mind the conscious design of killing, and had time to think of the weapon he had prepared, and that he would use ft, and accordingly so did use it, it would be murder of the first degree. But though he had prepared and carried the weapon, intend- ing to use it, if, at the time the attack was made upon him, he had no real intention of killing Mohigan — did not deliberate upon his act — but in the suddenness of tlie occasion and impetuousness of his temper, he intended only to cut, wound or do great bodily harm to him, it would be murder of the second degree only. But if the weapon was not prepared for the occasion ; if the prisoner entertained no previous purpose of killing SYLLABUS. 191 Mohigan, or of doing him great bodily harm; and if, under the impulse of passion, caused by Mohigan's blows, and arising when they were inflicted, the prisoner struck th^ fatal blow without malice, he is guilty of manslaughter only ; even though on the instant and at the suddenness of the provocation, he intended to kill Mohigan. Lastly, if not guilty of manslaughter, was the killing only an act of self-defence? On this subject I have already said enough. You will now take the case and render such a verdict as the evidence warrants ; one which will do justice to the Commonwealth and the prisoner. STEWART V. THE STATE. [1 Ohio State, 66.] Supreme Court of Ohio, March Term, 1852. "William B. Caldwell, Chief Justice. Thomas W. Baetley, "] John A. Coewin,* Allek G. Thueman, RuFus P. Raistney, - Judges. Instructions on self-defence — ^Non-felonious assault — Killing with deadl's weapon — difficulty produced by slayer — posses- sion of weapon. 1. A conviction of murder in the second degree will not be reversed because the court below refused Instructions on the law of self-defence, which, though true in the abstract, were irrelevant to any hypothesis aris- ing out of the evidence in the case. [Ace. Neeley's case, ante, p. 96; Shorter's case, post ; Harrison's case, ante, p. 71 ; Shippey's case, ante, p. 134; Wells' case, ante, p. 151 ; Morgan, J., in Lamb's case, post. But see Logues' case, post, and Pridgen's case, post.] *CoRWiN, J., having been of counsel for the prisoner on the first trial, did not sit. 192 STEWART v.. THE STATE. 2. If a person who is assailed by another with fists only, kill that other with a deadly weapon, it is not excusable self-defence. [Ace. Wiltberger's case, ante, p. 34 ; John Kennedy's case, ante, p. 107 ; Thompson's case, ante, p. 92; Adams' case, joosi.] 3. The slayer having sought, and provoked by insulting ianguage, an assault upon himself, in order to have a pretext for killing his adversary, and upon being assaulted by his adversary with fists aloue, did stab and kill him, this was not excusable self-defence ; but a verdict of murder in • the second degree was sustained. [SeeNeeley's case, araiie; Adams' case, post ; Evans' case, post; Stofier's case, post, and note to the same. But in Selfridge's ease, ante, p. 26, it is held that words alone cannot amount to- such a procurement of a difficult}' as will prejudice his right of defence.] 4. A person assaulted may repel force by force ; but it does not follow that he may use a deadly weapon for that purpose ; and the fact that his weapon is concealed, places him still further in the wrong. 5. It is not error to charge the jury to take into consideration the man- ner by which, and the purposes for ^\'hich, the prisoner had possession of the knife with which he did the killing. 6. It is not error to refuse an instruction on the law of self-defence, not differing in substance from one alread}' given. This is a writ of error to the Common Pleas of Clark county, reserved by the late Supreme Court for decision in bank. At the October Term, 1850, of the Common Pleas, the plaintiff in error was indicted for the murder of James R. Dotey. The indictment charged murder in the second degree. At a special term held in November following, he was tried, found guilty as charged, and sentenced. The sentence was reversed by the Court in bank at its December Term, .1850. See 19 Ohio Eep., 202. At the August Term, 1851, of the Common Pleas, he was again tried by a stuck jury, and again convicted of murder in the second degree. Upon this trial sundry bills of ex- ception were taken, which contain certain rulings of the Court, the charge to the jury, and the whole of the evi dence. A motion was made for a new trial, which was overruled, and sentence pronounced — to reverse which, this writ is prosecuted. Anthony & Goode for the plaintiff in error ; William White, Prosecuting Attorney, and William A. Rodgers, for the State. OPINION — CHAEGE — EETREATING. 193 Thurman, J., delivered the opinion of the Court: The fifth error assigned is, that the Court erred and misdirected the jury in the charge delivered to them as to the law of homicide in self-defence, and in refusing certain charges asked by the accused. The charge complained of was in these words : " The homicide in self-defence, which is considered as excusa- ble, rather than justifiable, is that where a man may protect himself from an assault in the course of a sudden, casual affray, by killing him who assaults him. In such a case, however, the law requires of the party to have quitted the combat before a mortal wound shall have been given, if in his power ; to retreat as far as he can with safety, and at last to kill from mere urgent neces- sity, for the preservation of his life, or to avoid enor- mous bodily harm. He is supposed to kill his adversary under the impression of an absolute necessity to do so in order to save his ' own life, or to save himself from enormous bodily harm. If the person killing was not in any supposed or real imminent danger of his own life or enormous bodily harm, and if the jury find that the pris- oner could not reasonably have apprehended from the deceased, and did not so apprehend, any danger of his own life, or of enormous bodily harm, then the killing is not excusable homicide." It is not denied that this charge has a great weight of authority in its support. Indeed, it was more lenient to the accused than the doctrine of many adjudicated cases, in this, that it makes the homicide excusable, if the slayer had reasonable cause to apprehend, and did apprehend, danger to his life, or great bodily harm, although such danger may not, in fact, have existed. And the Court, at the prisoner's request, also charged, that "the law does not measure nicely the degree of force which ma,y be employed by a person attacked, and that if he employ more force than necessary, he is not respon- sible for it, unless it is so disproportioned to his appa- 194 STEWART V. THE STATE. rent danger, as to show wantonness, revenge, or a malicious purpose to injure the assailant." But the part of the charge which seemed to be objected to, was that which relates to the necessity of quitting the combat, if it could be done with safety, before taking the life of the assailant; and it is urged that the law in Ohio is, that a person assailed may, in all cases, without retreating, take his assailant's life, if he reasonably believe it necessary to do so, in order to save his own life, or to avoid great bodily harm ; and this, although he could, without increasing his danger, retire, and thereby escape all necessity of slaying his adversary. As to what is the precise state of the law on this subject, there is some diversity of opinion among the members of this Court, and, therefore, without attempt- ing, at this time, to lay it down, we prefer to dispose of the Case upon a view which is satisfactory to us all. And we do this the more willingly, because there is not a full bench sitting upon the case. Whether a person assaulted is, or is not, bound to qiiit the combat, if he can safely do so, before taking life, it will not be denied that in order to justify the homicide, he must, at least, have reasonably apprehended the loss of his own life, or great bodUy harm, to prevent which, and under a real, or, at least, supposed necessity, the fatal blow must be given. And again, the combat must not have been of his own seeking, and he must not have put himself in the way of being assaulted, in order that when assailed and hard pressed, he might take the life of his assailant. It will also be admitted, that in a criminal, as well as a civil cause, before the judgment can be reversed for error in the charge to the jury, it must appear that some evidence was given tending to prove a state of case in which the charge would be material. If the charge was upon a mere abstract question of law, that could not arise upon the testimony, and could not influence the decision of the jury, its character, however erroneous, furnishes no ground to reverse the sentence. And such, we are clearly of opinion, was the case under considera- THE FACTS — BRINGING ON ASSAULT. 195 tion. We find no evidence tending to prove that Stewart, when he saw Dotey, was in danger of loss of life or limb, •or of great bodily harm, or that he apprehended such danger. "Were there any evidence, however slight, tend- ing to show that he reasonably believed such danger to exist, we would feel bound to decide upon the correct- ness of the charge complained of ; but we see no such testimony. And we are equally satisfied that the com- bat did not occur without blame on his part. On Sunday, the day previous to the murder, he showed George Huff the knife with which he afterwards killed Dotey. It was a very deadly weapon, the blade of which opened with a spring. He opened it, and pre- pared it for use by greasing it, and said that if he had had it the night before, when he was attacked, he did not think that Dotey would have got out of the bar-room safe ; and that if Dotey ever attacked him again — ^he or any of the crowd that was with him — he would cut his d d guts out. On the same day he made similar declarations to the witness Beall, and showed him the knife, and told him he intended to carry it, and ask Dotey for the money whenever he saw him again, and if he attempted to whip him, he would cut his d d guts out ; that he would dun him every time he met him. He made similar statements to Pierson Spinning, Mon- day morning. The affray took place just after supper Monday evening. John Huff testifies, that before supper that evening, "I was sitting on the bench by the bar-room door, and Stewart said to me, 'John, there will be war here to- night.' I thought he referred to the military that were encamping in town, and replied, that I reckoned not. Stewart replied, 'Yes, he guessed there would be war'; that McCartney and Dotey were coming down there to vvhip him, if he asked them for the money they owed Mm, and he said he intended to ask them for it." Shortly after supper, Stewart came out of the hotel, his boarding-house, and saw Dotey and McCartney standing on the pavement. Dotey was leaning against a post. 396 STEWAET V. THE STATE. Stewart came forward to near where he was standings and said, "John and Jim, I want to know if you are going to pay me the money you owe me ? " Dotey told him to go away about his business ; he did not want anything to do with him, or to say to him. Stewart re- plied, that he had paid for Dotey's dinner, and he ought to be man enough to pay for that. Dotey said he had meant to pay, but Stewart had acted so meanly in dunning him in the street at every opportunity, that he did not intend to pay. Stewart said he had asked him for it in private. Dotey denied it. Stewart reaffirmed his statement, and Dotey replied, "It's a lie." Stewart rejoined, "It's a damned lie," or, "You are a damned liar." Dotey said, "I won't take that," and advanced toward Stewart with his hand raised to strike him, and struck at him. Stewart did not move ; and as soon as Dotey came within reach, he stabbed him, and, re- peating his blows, gave him. five stabs, one in the abdomen, which severed the intestines, one in the back, two through the left arm, and one between the shoulder- blade and ribs. Dotey cried out, " Take him away ; he has a knife." They were then separated by some of the bystanders, and Dotey afterwards died of the wounds. Stewart received no injury, except a cut in his hand, made by his own knife, no doubt. When Dotey started toward Stewart, they were but a few feet apart, and the conflict lasted but a few seconds. It does not appear that Dotey had any weapon. He certainly attempted to use none. Stewart neither showed his knife, nor said he had one, before using it. He appears to have concealed it from Dotey until he gave the fatal stabs. Now it does seem clear to us, that Stewart sought to bring on the affray ; that he desired to be assaulted, and intended if assaulted, to make good his previous threats of using his knife. True, he had a right to dun Dotey for his money, but he had no right to do so for the purpose of bringing on an affray, in order to afford him a pretext to stab his enemy. There is some testimony tending to prove that Dotey OPINION — RETREATING. 197 Tvent to the hotel that night to whip Stewart. It is not impossible that such was the fact; but if so, and the combat was mutual, the case is no better for the accused. Again, it does not appear that Stewart was, at any time, in danger of a serious injury, or that he apprehended it. There is no testimony tending to prove either the danger or the belief of it. We have next to consider the refusal to charge as re- quested by the accused. He asked the Court to direct the jury, "That if a man is attacked by a person of strength superior to his own, he is not bound to flee, but may use such force and such weapons as may be suffi- cient to resist the force employed against him, and if the assailant is killed, it is neither murder in the first or second degree, nor manslaughter." Which instruction the Court refused to give. As to so much of this instruc- tion as relates to the necessity of retreating, it was immaterial, for the reasons we have given. As to the residue of the instruction, if it had any application to the case, it amounted in substance to this : that Stewart, when assailed by an unarmed man, might repel the assault by the use of a deadly and concealed weapon, even though it might have been as well resisted by other m.eans. The Court were not asked to tell the jury that a man, in his defence, may employ sufficient force to repel the assailant. That they had already charged. But they were asked in effect to say, that he may employ any weapon sufficient for that purpose. If this is so, a man on whom an ordinary assault and battery is committed, may pierce his assailant with a sword, or knock him down with an axe; for each of these is a weapon " sufficient to resist the force employed." We ■do not think such is the law. The Court were also asked to instruct the jury, "That if the killing arose from previous malice on the part of the defendant, and not from what occurred On the even- ing of the 9th of September, 1850, he cannot be convicted as indicted ; " which charge was given with the follow- ing modification: strike out "previous," and insert 198 STEWAET V. THE STATE. "deliberate and premeditated," in the place thereof. The charge as asked, if we understand it, was, in effect,, that if the jury found the crime was murder in the first degree, the prisoner could not be convicted under the in- dictment, which only charged murder in the second degree ; and the amendment of the Court only made the proposition clearer. If there was error in this point, it was in giving the charge at all. But the accused cannot complain of this, as it was in his favor." The accused also asked the Court to charge the jury, that " in this State, any man has a constitutional right to carry weapons for self-defence, and hence, there is no presumption of malice from the carrying of a weapon,, such as the knife with which James R. Dotey was killed." Which charge was given, with the following modification: "That bhe jury may and ought to take into consideration the manner by which, and purposes- for which, the prisoner had the possession of the knife in question." This modification was excepted to, but we see no error in it. The following charge was also asked by the accused : " That if the defendant had reasonable ground to appre- hend danger to his life, or great bodily harm, he would have the same right to defend himself, whether there was actual danger or not." Which charge was declined, on the ground that the Court had already charged on the same point. It was true that the Court had so charged, and sub- stantially as prayed in the above instruction. We suppose it was not erroneous to refuse to repeat the charge. The next assignment of error is, that " The verdict of the jury is without evidence, and contrary to the evidence in the case." If we can consider this assign- » See Selfridge's case, ante, p. 20, where Parker, J., said to the jury : " Whether the killing were malicious or not, is no further a subject of en- quiry than that if you have evidence of malice, it may be considered as proving this crime, [manslaughter,] because it effectually disproves the only defence which can be set up after a killing is established." SYLLABUS. 199 ment at all, it is sufficient to say that the verdict is not without evidence, nor contrary to the evidence — certainly not grossly so. It is next assigned for error, that " the verdict of the jury is against law." We do not think so. The last assignment is, that " the Court erred in over- ruling the motion for a new trial." The grounds upon which a new trial was asked, were the same we have above considered. In our opinion, the motion was prop- erly overruled. The judgment of the Common Pleas is affirmed, with costs. Judgment affirmed. THE STATE v. HILL. [4 Dev. & Batt., 491.] Swpreme Court of North Carolina, December Term, 1839. Thomas Kupfiij', CMef Justice. , Joseph J. Daniel, ) r„.^„„„ William Gaston, f '^^^^d^s. Assault with malice — Old grudge — ^Defence in combat — Retreat- ing TO THE WALL. 1. WTiere one assails another, and a combat ensues, and in such combat the assailant liills the assailed, if the first assault was made with a precon- ceived design to kill or inflict great bodily harm, then, the malice of the first assault, notwithstanding the violence with which it is returned, com- municates itself to the last act of the prisoner, and the killing is murder. 2. If one assault another with malice prepense, and is driven to the wall, and then kill his adversary to save his own life, he is guUty of murder in respect of the first intent. {Contra, Stoffer's case, posi.'\ 3. Where two persons have formerly fought on malice, and are appa- rently reconciled, and fight again on a fresh quarrel, it shall not be in- tended that they were moved by the old grudge, unless it so appear from the circumstances of the affair. [Ace. Copeland's case, ante, p. 41,; Wil- liams' case, post. 4. Where' a man makes an assault, which is returned with a violence manifestly disproportionate to that of the assault, the character of the 200 THE STATE V. HILL. •ombat is essentially changed, and the assaulted becomes in turn the assailant; and if the person who made the first assault, in the transport of passion thus excited, and without previous malice, kill his adversary, the proper enquiry as to the degree of his guilt, is not whether he was pos- sessed of deliberation and reflection, so as to be sensible of what he was then about to do, and intentionally did the act ; but whether a sufficient time had elapsed after the violent assault upon him, and before he gave the mortal wound, for passion to subside and reason to resume her sway ; for if there had not, he would be guilty of manslaughter only. 5. If one began an affray, or even if he did not begin it, but was assaulted in the first instance, and then a combat ensued, he could not excuse him- self as for a killing in self-defence, unless he quitted the combat before the mortal blow was given, if the fierceness of his adversary permitted, and retreated as far as lie might with safety, and then he killed his adversary of neeessitjr, to save his own life. Indictment for murder. On the trial, several witnesses were examined, who testified substantially as follows : The deceased and the prisoner had for the last twelve months been upon bad terms; had had several dis- putes, and, on one occasion, a rencounter, in which both parties drew their knives ; tli& prisoner, during the last summer, had said that unless the deceased should quit troubling him, he would take his life. On the week before the fair, the prisoner had procured a knife twelve inches in length, and said he expected yet to kill some person with it. On Saturday, the 28th of September, the prisoner went to the house of one Edwards, much intox- icated, and slept for some hours. On the same day, the deceased went to the same place, also intoxicated. Something was said about shooting, and the deceased applied to the prisoner, as well as to others to borrow money, which the prisoner refused. They were in a room by themselves, when the deceased passed through another room, the prisoner following, and both having their knives drawn ; which, however, they put up, not evincing as the witness thought, any disposition to use them. Both parties, shortly after this, went out at the side-door of the house, the deceased first, and the pris- oner following after. Shortly afterwards the deceased was seen going into the house at the end-door, when the prisoner caught hold of his waistcoat, and pulled him back, and said, "Let us talk it over;" to which the • STATEMENT OP THE FACTS. 201 deceased made no reply that could be heard. The pris- oner then struck him, upon which the deceased pulled out his knife, as one of the witnesses thought, and gave three cuts, one lightly across the prisoner's arm, and the other pretty severely in the abdomen, the prisoner giv- ing back and pushing the deceased from him. The pris- oner then jumped off, pulled out his knife and opened it, exclaiming, " Damn him, he has killed me, and I will kill him, if I can." He then advanced five or six steps, and gave a thrust with great force, which proved fatal— the deceased dying the next day. The whole transaction occurred in a few minutes. The witnesses differed as to the position of the deceased at the time he was stabbed ; but all of them concurred in saying that he was standing still, and manifesting no inclination to pursue the pris- oner or to renew the combat. The deceased was upward of forty years of age, and a turbulent man ; the prisoner was about twenty-three years of age, of equal manhood with the deceased ; and both were addicted to intoxica- tion. The cause was submitted to the jury as a case either of excusable homicide, murder, or manslaughter. The jury being unable to agree, asked for further instruc- tions as to the law, when his honor gave the following in writing : '■'■Excusable homicide. — If the prisoner brought on the affray by making the first attack, he was bound not only to have ceased the combat, but to have used every means in his power, short of taking away the life of the deceased, such as retreating, unless the attack on him was so fierce that retreat would have increased his danger. ^^ Murder. — A killing with malice, without any just cause or excuse. " First, If the prisoner sought the provocation, by giving the first blow, in order to afford him a pretence for wreaking his vengeance, or vidth the design of using his knife, it is a case of murder. 202 THE STATE V. HILL. " Secondly, If the prisoner gave the first blow, and was then cut by the deceased, although he may have been agitated by resentment and anger, yet if the jury collect from what he said and did, when or just before he gave the mortal blow, that, in fact, he was possessed of delib- eration and reflection, so as to be sensible of what he was then about to do, and intentionally did the act, it was a case of murder. "Manslaughter. — A killing without malice, express or implied, and under the influence of passion or provo- cation. " Should the jury think, according to the first proposi- tion, that the prisoner did not seek the provocation with any view to revenge ; or, according to the second, was not possessed of deliberation and reflection at the time he gave the blow, bjjt acted under the influence of pas- sion, excited by the provocation then received, it would be a case of manslaughter. The jury returned a verdict of guilty, and sentence of death being pronounced upon the prisoner, he appealed. C. Manly for the prisoner ; the Attorney- General for the State. Gaston, J. — From the case which has been stated by the judge who presided at the trial, and which consti- tutes a part of the record before us, it appears that it was not controverted, but that the prisoner had committed the homicide wherewith he was charged, and that the only question was as to the degree of guilt which the law attached to the fatal .deed. Upon this question the jury doubted, and asked for specific instructions ; and it was to enable them to come to a correct conclusion upon this question, that the specific instructions set forth in the case were given. It is not for us to deter- mine whether the verdict was warranted by the evidence, but it is our duty to examine whether the law was cor- rectly expounded. In the investigation of this question, it was necessary OPINION — SEEKING AFPEAY. 203 that the jury should, in the first place, ascertain whether the prisoner commenced the affray with a preconceived purpose to kUl the deceased, or to do him great bodily harm. For if he did, then there was nothing in the sub- sequent occurrences of the transaction which could free him from the guilt of murder. If the first assault was made with this purpose, the malice of that assault, not- withstanding the violence with which it was returned by the deceased, communicates its character to the last act of the prisoner. It is laid down as settled law, that if a man assault another with malice prepense, even though he should be driven to the wall, and kill him to save his own life, he is yet guilty of murder in respect of the first intent. 1 Hawkins P. C, Book 1, ch. 11, §18, and ch. 13, § 26.° Of that part, therefore, of his Honor's instructions which in the case is called " the first proposition," and which declared, as a conclusion of law, that the prisoner was guilty of murder ; if the jury were satisfied from the evidence, that the assault was made by him in order to have a pretence to kill the deceased, or to cut him with the knife, the prisoner has no cause to complain. Such craft, indeed, would but the more strongly indicate the heart fatally bent on mischief. There was certainly evidence w^l deserving to be weighed by the jury, in cOming to a correct conclusion upon this enquiry. But what was that conclusion, we have not the means of knowing. They might have believed, notwithstanding the testimony as to the ante- cedent quarrels, and the rencounter between the parties, and in relation to threats of vengeance by the prisoner, that the transaction which they were then examining sprang from the passions of the moment. For certainly, where two persons have formerly fought on malice, and are apparently reconciled, and fight again on a fresh quarrel, it shall not be intended that they were moved by the old grudge, unless it so appear from the circum- stances of the affair. 1 Hawkins P. C, B. 1, ch. 13, § 30." If, upon consideration of all the evidence, the jury came aCurwood's Edition. bCurwood's Edition. 204 THE STATE V. HILL. to the conclusion that the first assault of the prisoner was not of malice prepense, then the subsequent occur- rences demanded their careful consideration; because upon these, the prisoner's guilt might be extenuated into manslaughter, or excused as a homicide in self-defence. So much of the instructions given upon this view of the case, as relates to excusable homicide, is, in our opinion, not liable to exception. Even if the prisoner had not begun the affray, but had been assaulted in the first instance, and then a combat had ensued, he could not excuse himself as for a killing in self-defence, unless he had quitted the combat before a mortal blow was given, if the fierceness of his adversary permitted, and retreated as far as he might with safety, and had then killed his adversary of necessity, to save his own life. But the remaining part of the instructions, and that part which mai/ have had a decisive influence upon the verdict, is, in our judgment, erroneous. According to this, which is laid down as "the second proposition," the jury were instructed " that if the prisoner gave the first blow, and was then cut by the deceased, although he might have been agitated by excitement and anger, yet if they collected from what he said and did, when or just before he gave the mortal blow, that in fact he was possessed of deliberation and reflection, so as to be sensible of what he was then about to do, and did the act intentionally, it was murder. This proposition, as we understand it, and as we must believe it to have been understood by the jury, we are very confident, cannot be sustained. The proposition supposes that the first assault was made by the prisoner without malice, and that the fatal wound was given while under the influence of indio-na- tion and resentment, excited by the excessive violence with which he had been in turn assailed by the de- ceased; but it refuses to the prisoner the indulgence which the law accords to human infirmity suddenly pro- voked into passion, if such passion left to' him so much of deliberation and reflection, as to enable him to know OPINIOW — EXCESSIVE .RESISTANCE. 205 that lie was albout to take, and to intend to take, the life of his adversary. No doubt can be entertained, and it is manifest that none was entertained, by his Honor, but that the excessive violence of the deceased, immediately following upon the first assault, constituted what the law deems a provocation sufiicient to excite furious passion in men of ordinary tempers. The case does not state that the first blow given by the prisoner was such as to endanger life, or to threaten great bodily harm,, nor that it was immediately followed up by further efforts or attempts to injure the deceased. It must be taken to have been a battery of no very grievous kind, and it justified the deceased in resorting to so much force on his part as was reasonably required for his defence ; and in estimating the quantum of force which might be rightfully thus used, the law will not be scrupulously exact. But when an assault is returned with a violence manifestly disproportionate to the as- sault, the character of the combat is essentially changed, and the assaulted becomes in his turn the assailant. Such, according to the case, was the state of this affray, when the mortal wound was given. To avenge a blow, the deceased attacked the prisoner with a knife — made three cuts at him — and gave him a severe wound in the abdomen. If instantly thereupon, in the transport of passion thus excited, and without previous malice, the prisoner killed the deceased, it would have been a clear case of manslaughter. Not because the law supposes that this passion made him unconscious of what he was about to do, and stripped the act of killing of an intent to commit it, but because it presumed that passion dis- turbed the sway of reason, and made him regardless of her admonitions. It does not look upon him as tempo- rarily deprived of intellect, and therefore not an account- able agent, but as one in whom the exercise of judgment is impeded by the violence of excitement, and account- able therefore as an infirm human being. We nowhere find that the passion which in law rebuts the imputation of malice, must be so overpowering as for the time to 206 THE STATE V. HILL. shut out knowledge and destroy volition. All the writeris concur in representing this indulgence of the law to be a condescension to the frailty of the human frame, which daring ihe furor hrems, renders a man deaf to the voice of reason, so that, although the act done was intentional of death, it was not the result of malignity of heart, hut imputable to human infirmity. The proper enquiry to have submitted to the jury on this part of the case was, whether a sufficient time had elapsed after the prisoner was stabbed, and before he gave the mortal wound, for passion to subside and reason to reassume her dominion ; for it is only during the temporary dethronement of reason by passion, that this allowance is made for man's frailty. And in prose- cuting this enquiry, every part of the conduct of the prisoner, as well words as acts tending to show delibera- tion and coolness on the one side, or continued anger and resentment on the other, was fit to be considered, in Order to conduct the jury to a proper result. The Attorney-G-eneral, in his argument, referred to a class of cases, which probably misled the Judge in lay- ing down the proposition before us, in which, circum- stances apparently unimportant, but indicative of de- liberation, have been thought to establish malice, and repel the idea of human infirmity. The explanation given by the text-writerfe will show that the doctrine in these cases, although in some respects analagous to that which obtains in a killing upon legal provocation, is not identical with it. The general rule of law is, that words of reproach or contemptuous gestures, or the like offences against decorum, are not a sufficient provocation to free the party killing from the guilt of murder, where he useth a deadly weapon, or manifests an intention to do great bodily harm. This rule, however, does not obtain where, because of such insufficient provocation, the parties become sud" denly heated and engage immediately in mortal combat' fighting upon equal terms. But deliberate duelling, if death ensue, however fairly the combat may be con- PROVOCATION — DELIBERATION. 207 ducted, is, in the eye of the law, murder. The punc- tilios of false honor, the law regards as furnishing no excuse for homicide. He who deliberately seeketh the Mood of another, in compliance with sach punctilios, acts in open defiance of the laws of God and of the State, and with that wicked purpose, which is termed malice aforethought. While, therefore, because of presumed heat of blood, the law extenuates into manslaughter a killing upon such siidden rencounter, although proceed- ing upon an insufficient provocation, it withholds this indulgence when, from the circumstances of the case, it can be collected that, not heated blood, but a settled purpose to vindicate offended honor, even unto slaying, in defiance of law, was the actual motive which urged on to the combat. In the conclusion of his instructions, the Judge in- formed the jury "that if they should believe according to the second proposition, that the prisoner was not possessed of deliberation and refiection at the time he gave the mortal blow, but acted under the influence of passion excited by the provocation then received, it would be a case of manslaughter." It is manifest that if there was error in ithe proposition we have been ex- amining, this general instruction did not correct it ; for the jury were expressly referred to that proposition, for the legal meaning of " deliberation and reflection ; " and, according to that proposition, there was deliberation and reflection, " if the prisoner was sensible of what he was about to do, and did the act intentionally." Entertaining a full conviction that in this the jury were misdirected, we are of opinion that the verdict below ought to be set aside, and a 'oenire de novo awarded. This decision must be certified to the Superior Court of Wake, with directions to proceed agreeably thereto, and to the laws of the State. Per Curiam: Judgment to be reversed. 208 ADAMS v.. THE PEOPI^. C.-KILLTNG IN SELF DEFENCE, WHERE THE NECESSITY IS PRODUCED BY THE WRONG- FUL ACT OF THE SLAYER. ADAMS V. THE PEOPLE. [47 III., 376.] Sidney Beeese, Chief Justice. ??m"k™i H. wissr- \ ^«»«»*»-^-««- Homicide — Necessity pkoduced by defendant's wrongful act. 1. Under the Illinois statute, juries in criminal cases are judges of the law, as well as of the fact, and they have the right to pronounce upon the law, as it may seem in their opinion to be. [Ace. Sohnier's case, 'post ; Fisher v. People, 23 111., 283.] 2. While the doctrine is, that a man threatened with danger, must de- termine from apijearances, and the actual state of things surrounding him, as to the necessity of resorting to self-defence, and if he acts from reason- able and honest convictions, he will not be held responsible, criminally, for a mistake as to the extent of the actual danger, where other judicious men would have been alilie mistaken ; at the same time, he has not the right to provoke a quarrel and take advantage of it, and then justify the killing of the party with whom he has provoked the quarrel. 3. K the defendant sought the drflSculty with the deceased for the pur- pose of killing him, and in the fight did kill him in pursuance of such pm- pose, it is mwrifer. But if the defendant voluntarily got into the diflficul- ty or fight with the deceased, but did not intend to kiU at the time, yet did not decline further fighting before the mortal blow was struck, but drew his knife and with it killed the deceased, it is manslaughter; although the cutting and lulling were done to prevent an assault by the deceased, or to prevent the deceased from getting the advantage in, the fight. 4. The defendant cannot avail himself of the plea of necessary self-de- fence, if the necessity for that defence was brought on by his own deliber- ate and lawless acts, as by his bantering the deceased to a fight for the pur- pose of taking his life or committing bodily harm upon him,— if In the at- fray he killed the deceased with a deadly weapon. [Ace. Selfridge's case, an<.M-son resisting the commission of a felony, kill the f61on from choice ; but, although he is not required in such cases to give back or retreat, any more than he was in Lord Coke's time, — 3 Inst. .50— yet he may not lawfully kill the fel- on, if he can prevent the consummation of the felonious intent liy other 232 STOFFEE V. THE STATE. means, as by arresting or disabling him, or the like. Pond's case, post; 1 Bish. Cr. Law, U 843, 875 ; liex v. Scnlly, 1 Car. and Pay., 319. In other words, the same law of necessity is now held to apply to kill- ing- in defence against felonious attempts, as in other cases of private de- fence ; and a killing in such cases must be shown to have been necessary to prevent the threatened felony. Bull's case, post. It is doubtless true, however, that where an attempt to commit some specific felony of a forcible kind has been clearly proved ; where it is made plain that the ex- ecution of a felonious attempt had already commenced, — the law — that is to say, the jury under proper instructions — will not be scrupulously ex- act in judging of the necessity under which the felon may have been slain. And whether a man may, in the United States at the present day, according to the doctrine of Mawgridge's case, supra, assume that one who has murderously assailed him, is not fit to be trusted as long as he has a dangerous weapon in his hand, and that the right to pursue and to kill in such pursuit, exists as long as the assailant continues thus armed, must be left with us to be resolved by a jury upon the circumstances of each case, and cannot be resolved by a bench of judges as in England, upon a special verdict, or where a trial takes place in the House of Peers. Directing our attention, then, to tliose principles which should be ex- poimded to ajury, in order to enable them to determine whether such a neces. sity as the law can recognize exists, for pursuing one who has attempted a fel- ony upon the person or property of another, we may observe that a principle would seem to apply here which obtains with reference to attempts to com- mit crime generally, namely : that the execution of the felonious design must have plainly commenced. 1 Bish. Cr. Law, J§732, 762, 764, 843, 874. It will not be sufficient that the person who entertains such felonious design ii preparing to execute it. Or. as was happily said by Cowen, J., in McLeod's case, post, the threatened danger must not exist in machination only. Or, to use expressions wliich are generally employed in cases of personal defence, the danger must be imminent to the comprehension of a reasonable man. Shorter's case, post ; Sullivan's case, ante. The appear- ances must be such as to convince a reasonable man that the threatened calamity is then about to fall. Logue's case, post; Pond's case, post; Campbell's case, post ; and others. And a large number of cases hold that nothing short of some overt act on the part of the assailant will constitute such appearances. Scott's case, ante ; Dyson's case, post ; Head's case, post ; Lander's case, post ; WiUiams' case, post. It is true that there are some cases in Kentucky which dispute this principle in cases where a man has already escaped from assassination. PhiUp's case, post ; Carico's case, post ; Young's case, post ; Bohannon's case, post. And there are others that state that no general rule can be laid down upon the subject. Cotton's cine, post ; Robt. Jackson's case, post ; Patten's case,^os<. The more reason- able rule would seem to be, that certainty in point of fact, rather than imme- diateness in point of time, should be the test of the right to strike in one's defence. But the principle that the person having the felonious design raw-iiXiQ doing something at the time indicating a present intention of car- rying his design into effect, has been undoubtedly the law ever since Lord Hale's time. 1 Hale, P. C, ,')2 ; 1 Bish. Cr. Law, ?§ 843, 872 ; note to Grainger's case, post. KILLING AFTER BETREAT — REDDING EVANS' CASE. 233 If, therefore, the right to strike in one's defence does not accrue iintil the danger is, to all reasonable appearances, immediate and impending, it is manifest that it must cease when the danger, to all reasonable appear- ances, ceases to be immediate and impending. We are thus brought to the conclusion that where a person has been feloniously assaUed, and the felon has desisted from his attempt and taken to flight, the right to pursue for thi purpose of private defence ceases, as soon as, in the reasonable belief of the •assailed, the danger has ceased to be immediate and impending. And the attempt to commit a felony being a misdemeanor only — unless in specific cases made felony by statute — the right of private persons to pursue for the purpose of arrest, does not, as a general rule, in such cases, accrue ; at least, as we shall see further on in this volume, the right to take life in such pursuit, for the purpose of arrest, does not exist, unless a felony has actually been consummated. Rutherford's case, post ; Roane's case, post. The conclusion above italicised may not be found directly stated in any adjudicated case, but it results from the doctrine of many cases, and finds support in the case of Redding Evans v. The State, 33 Ga., 4. In that case the defendant was indicted for the murder of James Smith. A feud had ex- isted for some time between Evans and Smith, growing out of a criminal intimacy between Evans and Smith's wife. Evans had on one occasion beaten Smith, and had then got into bed vsdth Smith's wife in Smith's pres- ence. He had also threatened, on several' occasions, that he would kill Smith. On the morning of the homicide. Smith went to the house where his wife and children were, because, he said, he had heard that Evans was going to run away with his wife, and he was going down after his children. Smith had been at the house where his wife Uved but a few minutes, before Evans also came; and as Evans approached the house. Smith fired at him ivith a single-barreled shot-gun, and wounded him in the side. Evans then fired upon Smith five times, with a revolver, wounding him in the side, on the arm, and twice in the abdomen, of which he died in a few hours. Smith was walking off from Evans when the latter killed him. The accused was convicted of voluntary manslaughter, and moved for a new trial on the ground (among others), that the verdict was contrary to the evidence, as the kiUing was justifiable. The motion for a new trial being overruled, the case was taken to the Supreme Court ; where, in deliv- ering the opinion of the Court, Jenkins, J., said : " There can be no doubt that the deceased came to his death by wounds inflicted by the plaintiff in error, with intent to kill him. The justifl- Judges. Nathan Green, ) IflLLING THKOUGH PEAR, ALAKM OE COWARDICE, WHERE THE DANGER IS UNREAL. 1. If a man, though in no great danger of serious bodily harm, through fear, alarm, or cowardice, kill another under the impression that great bodily injury is about to be inflicted upon him, it is neither manslaughter nor murder, but self-defence. [See note, sub fin.'] STATEMENT OF THE FACTS. 239 2. If a man is in great danger of bodily iiarm, or thinks liimself so, and Ivill anotlier, it will be a kUling in -self-defence. 3. But if from the facts it appears he only believed that a violent assault and battery, without endangering his life, or inflicting great bodily harm, was intended, it is manslaughter. In this case, the plaintiff in error was indicted in the Circuit Court of Henry county, for the miirder of Broach ; was tried, convicted, and moved for a new tri^l on several grounds. His motion was overruled, and sen- tence of death being passed upon him, he appealed in error to this Court. The bill of exceptions shows the fol- lowing facts, viz : On the 9th of July, 1829, Broach, the deceased, and Henson, were at ISTorwibod's. Late in the evening, Grainger came there, and had his gun with him, which he generally carried, being a hunter. Broach and Henson were drinking cordial ; Broach asked Grainger to drink with them ; he replied he did not drink cordial, but would drink whiskey, and called for an half- pint. Broach and Henson drank three half-pints of cordial, and Grainger the half-pint of whiskey. All this time Broach and Grainger seemed friendly. Grainger was setting off for home; Henson asked him to wait for Broach; Grainger replied he knew Broach ; that he would not go till he chose, and declined waiting for him. Henson went into the house, and re- quested Broach to go ; he then returned, and he and Grainger set off together, leaving Broach at Norwood's. Henson was on foot and Grainger riding. The latter invited Henson to get up behind him, which he did. About three-eighths of a mile from Norwood's, Broach overtook them, riding at a fast gait. He immediately commenced a quarrel with Grainger, by charging him with having spoken disrespectfully of him, and that he had held his negroes until the children of Grainger had whipped them. Grainger denied the charges, said he had not said anything about Broach, or held his negroes, as charged. Broach said, "You are a liar, and if you deny it, I'll knock you off your horse." Grainger still denied the charges. Broach rode up to him and struck him a 240 GRAHSTGEK V. THE STATE. violent blow on the breast. Grainger turned Ms horse- suddenly away, and rode a short distance apart from Broach, saying to witness Henson, " Take notice, I will make him pay for it." The quarrel and ill language continued for about five-eighths of a mile further, when they came to the corner of Rainey's fence, g-bout forty yards from the house. Grainger threw his leg over his h'orse's neck, and lighted on the ground, turned his horse- to the fence, when Henson also alighted. At this moment Broach also alighted from his horse ; Grainger threw his bridle over a rail, crossed the fence, and walked towards the house, saying to Henson, " You are in cahoot with Broach." Henson said, he had nothing against Grainger, who replied, " I don't know that you have." The house stood some ten yards inside of the line of fence, and forty yards in advance of where the parties alighted. Grainger walked inside; Broach and Henson outside. Opposite the house there was a gap. Rainey, his wife aud two other women, were awakened out of their sleep by the violent quarrelling. The first Rainey heard was the defendant crying, Rainey, Rainey, like one afraid and calling for help. The women got up and looked through a crack of the cabin ; Grainger was standing two or three yards from the wall. Broach advancing upon liim, having passed through the gap. Grainger said to him, "I will shoot you if you follow me." Broach replied, " I am not afraid of your shooting, damn you, you would not shoot a cat ; shoot ! " Defendant said, " I have a mind to shoot you." Broach said, " Here I stand, shoot!" Defendant fired and killed Broach. Broach was eighteen or twenty feet from Grainger when the gun fired. The witness, Elizabeth Forbes, could not see Broach when he was shot, becaiise he was in the shadow of a tree ; but Henson, who was sitting on the fence in the gap, a few yards off, could see Broach, who advanced directly on Grainger without stopping, and whilst advancing, was shot. Henson also proves that Grainger said, when he first crossed the fence, " If Broach don't let me alone, I will shoot him." Broach said,. OPINION — KILLING THROUGH FEAE OR COWARDICE. 241 " You carry your gun to defend yourself." Grainger replied, " I do not." Catron, Ch.. J., delivered tlie opinion of the Court : The bill of exceptions shows, that much stress, on the trial, -was laid upon the blow given by Broach to Grainger, to reduce the killing to manslaughter ; that Grainger's passions had not cooled. He never had any passion ; he was much alarmed, and with good cause. A man was on his horse behind him ; he could not get away. Henson proves he did not pretend to prevent Broach from whipping Grainger, who believed, and most probably, rightfully, that Henson was in " cahoot " with Broach. It was Henson's duty to have protected Grainger, or got off from behind him, and left him free to escape from Broach. Grainger used all the means in his power to escape from an overbearing bully. He was shuddering with fear, and his last hope of protection was defeated when Rainey's door continued closed against him, and Rainey did not come to his relief. He shot only to protect his person from threatened violence, and that great. It was certain. Henson sat quietly on the fence ; the women and Rainey did not open the door ; they were, no doubt, afraid of Broach, who displayed the traits of a reckless bully, and would have attacked Grainger the moment he reached him, as well in the house as out of it. It behooved Rainey not to permit the attack in a cabin amongst women and children, in the dark. He did right not to op6n the door. Prom Henson no assistance could be hoped ; the women saw him quietly sitting on the fence, which, when Broach crossed, he helped himself over, by putting his hand on the shoulder of Henson. These are the facts as presented by the record before us. Was there malice prepense in this case of homicide, so as to exclude the benefit of clergy, within the 23 Henry VIII, ch. 1 ? Did Grainger display a cold, de- liberate and wicked conduct ? A heart lost to all social order and fatally bent on mischief? It cannot be 242 GEAIN-GEE V. THE STATE. believed.i He behaved like a timid, cowardly man, was much, alarmed, in imminent danger of a violent and instant assault and battery, and was cut olf from the chances of probable assistance. That the act was the result of fear, hardly admits of doubt. It is equally certain to our minds, that Broach only designed to«com- mit a trespass and battery upon the body of Grainger, without intending to kill him. If the jury had believed that Q-rainger was in danger of great bodily harm from Broach, or thought himself so, then the killing would have been in self-defence. But if he thought Broach intended to commit a battery upon him, less violent, to prevent which he killed Broach, it was manslaughter. 1 Hawk. P. C, ch. 28, § 23'^ ; 1 East C. L., 272. The judg- ment will be reversed, and the cause remanded for another trial. Judgment reversed. Note. — This case has been frequently quoted for defendants on trial for homicide, and as frequently overruled, explained or disregarded. . The able judge who delivered the opinion, after sitting for a number of years on the bench of the Supreme Court of Tennessee, was appointed by President Jackson a justice of the Supreme Court of the United States, a position which he likewise held for a number of years. The Court whose opinion this is, was also one of high reputation, and in that reputation the reporter shai-ed, and to it he contributed. His are perhaps the most valuable, and exhibit the most thorough command of the art of reporting, (now fast be- coming one of the lost arts), of any of the Tennessee reports, except, per- haps, the single volume reported by Mr. Meigs. In Tennessee, the office of reporter is filled by the Attorney-General ; and in this latter capacity, it was the duty of Mr. Yerger to argue all State cases brought into the Supreme Court — a duty which he seldom delegated, and never failed to perform with ability. He was not only an able lawyer, but belonged to a family of able lawyers. His reputation, as well as that of the Court whose decisions he reported, had reached the State of Maine at an early day, and was recognized in Field's case, post, where the principal case is cited, though not by name. His syllabus of the principal case, which we have retained, seems to be as fair a summary of the doctrine of the case as could be devised. It is seen that it places the right of defence upon the fears of the person defending, and not upon reasonable appearances of danger. It is scarcely necessary to cite authorities to show that this is not, and never has been, the law. With the single exception of a passage in Bacon's Abridgement, quoted by one of the counsel in Monroe's case, ^osi, which is similar in terms to the fu-st a Old edition. CEITICISED BV OTHER CASES. 243 paragraph of the syllabus, we have not found in any of the books we have examined, an authority in accord with Grainger's case, unless the Kentiiclvy cases of Philips, Carico and Boliannon, post, can be understood as having sueh a meaning. On the contrary, it is not even the law in Ten- nessee ; for, although it is declared in Rippy's case, post, that Grainger's case, as modified by Copeland's case, post, is undoubtedly the law, yet in the saqje case, it is also declared that no case has been more perverted and misapplied by advocates and juries ; and that to constitute the defence that tlie homicide was excusable, " the belief or apprehension of danger must be founded on sufficient circumstances to authorize the opinion that the deadly purpose then exists, and the fear that it will at that time be executed." And in a later Tennessee case — Williams v. The State, post — the doctrine of Grainger's case, as explained, analyzed and defined in Rippy's case, is rec- ognized as the governing law. And in another very recent Tennesse^ case — Robert Jackson V. The State, ^osif — it is said that "the principle of self-defence laid down by this Court in the case of Grainger and subsequent cases modifying that case, while of vital importance, has, no doubt, been much perverted and misapplied, and when tlius misapplied, has, no doubt, resulted often in the acquittal of guilty men." "I think," said Wilson, J., in Shippey's case, ante, p. 133, referring to the principal case, " that this decision stands alone, unsupported by either Ijrinciple or authority. Such belief would, perhaps, reduce the crime to manslaughter, but whether it would or not it is not necessary to decide in this case." So, in Shorter's ease, post, Bronson, J., referring to the prin- cipal case, said : " This was, I think, going too far. It is not enough that the party believed himself in danger, unless the facts and circumstances were such that the jury can say he had reasonable grounds for his belief." In Lander's case, post, Wheeler, J., said that Grainger's case "has been the subject of much comment, and doubtless some misapprehension, as to what it was intended to decide ; and its authority is, at least, questionable. The language of the Court seems not to have been sufiioiently guarded. Nor does there appear to be any precedent or authority in law for the gen- eral principle announced by the case. But the opinion does not treat of the question presented in the present case, and there is, therefore, no occasion to examine the doctrines it asserts. _ But it may be remarked, that to do Justice to the judgment of the Court in that case, it is necessary to look, not alone to the language of the opinion, but to the facts of the ease pre- sented to the mind of the Court ; and to bear in mind that the question was not whether the accused was justifiable or excusable ; (for it is evident that the Court did not intend to intimate that he was not guilty of man- slaughter), but simply whether the homicide was, under the circumstances, 'of malice prepense, so as to exclude the benefit of clergy.' " In a case in Georgia, an attempt was made to set up the doctrine of Grainger's case, but Lumpkin, J., dismissed the question summarily as follows : " Was the Court right in refusing to give the written charge re- quested by counsel? The request was that the fears of a coward would justify homicide. The Penal Code says, the fears of a reasonable man ; reasonably courageous, reasonably self-possessed." Teal v. The State, 22 Oa. , 75, 84. 244 OEAINGER V. THE STATE. In California, the question arose upon tlie refusal of the Judge wLo«- presided at the trial, of an indictment for murder, to instruct the jurj' as follows : " That if the defendant had reason to believe, and did really be- lieve, that he was in imminent danger of losing his life, or incurring serious bodily harm, and really in good faith, acting under that belief, killed Rich- ardson, he was justified." MaRKAY, Ch. J., said — Heydbxfeldt and Tekey, JJ., concurring : " This instruction is bad, because it assumes that the prisoner was no wise in fault, and has no reference to the circumstances which induced th<- belief of imminent danger. It will not do to say that a party may com- mence an affray, and when he is about to suffer the penalty of his temerity, he may take, the life of his adversary to avert the danger that threatens him ; (XF that his cowardly fears of danger, if really entertained, would justify him in taking the life of another, without regard to the circumstances which excited those fears. The circumstances would be such as would excite reasonable apprehensions on the part of men of ordinary judgment and prudence." People v. Stonecifer, C Cal., 407. In the same State, the attempt was again made to set up the doctrine of Grainger's case, and was disposed of by Burnett, J., — Terky, Ch. J., concurring — as follows : " The fourth and fiftli instructions offered by the defendant were substantially the same. The fifth was in these words : If the jury believe from the evidence that the defendant fired the fatal shot, under the impression that great bodily harm was about to be inflicted on him by the deceased, they must find the defendant not guilty. Tlie in- struction was properly refused, because it makes the ' imijression ' of the defendant the justification of the act, whether that impression was sufficient to excite the fears of a reasonable person or not. This was contrary to the thirtieth section of the act. Wood's Digest, p. 332, [Comp. Laws of Cal., 1853, p. 642, ^ 30.] Besides, the thirtieth section applies only to the cases mentioned in section twenty-nine. A reasonable fear and actual belief will excuse the party in those oases. But area.^onable fear and actual belief are not sufficient in all cases. The statute says, the killing must be ' absolutely necessary ' to prevent it. The infliction of ' great bodily harm ' upon another, may, or may not amount to a felony. So, an attempt to inflict it, may, or may not be a felony. If attempted with a deadly weapon, or with the intent to commit a felony, then the reasonable fear and actual belief would justify tlie killing. ? 30. But when the attempt to inflict great bodily harm, does not constitute felony, there must exist the absolute necessity, mentioned by the thirty-first section, to excuse the killing. " People V. Hurley, 8 Cal., 390. In order to render this construction of the California statute intelligible, it will be necessary to set out the tlu-ee sections referred to. They are as follows : " 5 29. Justifiable homicide is the killing of a human being in necessarj- self-defence, or in defence of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony, or against any person or persons who manifestly intend and en- deavor, in a violent, riotous, or tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein. hurley's case — CALIFORNIA STATUTE. 245 ■" ? 30. A bare fear of any of these ofrence.s, to prevent which the homi- •cide is alleged to have been committed, .shall not be .«uffioicnt to justify the killing-. It must appear that the circumstances were sufficient to excite tlie fears of a reasonable person, and that the party killing, really acted under the influence of these fears, and not in a spirit of revenge. "J 31. If a pei'son kill another in self-defence, it must appear that the danger was so urgent and pressing that, in order to save his own life, or to pre^ ent his receiving great bodily harm, the killing of the other was abso- lutely necessary; and it must appear also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given." The construction thus put upon this statute, if not in itself questionable, is too refined for the comprehension of juries, and altogether too intricate to furnish a rule for the guidance of a person who is forcibly and perhaps suddenly assailed. To require a person Under such circumstances to pause and debate in his mind whether, although the assailant manifestly intends to do him great bodily harm, such bodily harm, would or or would not amount to a felon3', is not only in itself absurd, but it eflect- ually takes awaj' the right of defence which the statute was intended to secure. Be.-ides, the California statute exists substantially in Arkansas, Illinois, Georgia, Colorado and Dakota, and we are not aware of a similar construction being put upon it in any of those States or Territories. When vre depart from the plain and simple rule declared in numerous American cases, that if the appearances are such as would convince a man of ordinarj' intelligence and firmness — or as some of the cases express it, a reasonable man — that the assailant intends to inflict death or great bodily harm, and that there is imminent danger of such design being accomplished, he may safely act upon these appearances and kill his assailant, provided he cannot otlierwise escape the danger apparently impending ; and that it is for the jury to determine whether such aijpearances existed ; when we depart from this simple rule, we are all at sea, and the risrht of defence, instead of being a substantial right, becomes a snare and a mockery. Instead of laying down intricate rules on the subject of excusable homi- cide, like that of the California case above cited, more than one able and upright judge has doubted whether anj' fixed rule upon the subject should be attempted. Thus, in Patten's case, ^os<, we find the following language usimI by Christiancy, J. : "A correct idea of excusable homicide is not perhaps easily expressed by a brief abstract definition, without special ref- erence 10 the facts of particular cases. We accordingly find the latter -mode adopted in all the books. It has been thought safer to illustrate by particular instances, than to undertake to define, in advance, all the partic- ular elements or combinations of facts which may render homicide excus- able." So, Fisher, J., in Cotton's case, post, after stating a hypothetical ease, says : " It may be said that this is putting an extreme case. Grant it. It nevertheless serves the purpose for which it was intended, of showing the impropriety of laying down a rule, within the operation of which the Court declares that a person, without regard to the piculiar circumstances of the case, must bring his defence in order to be successful. Whether the •clanger must be immediate or unavoidable at tlie time of the killing, to justify the party in the act, must depend upon the facts and circumstances 246 GKAIJNGEK V. THE STATE. of the case. This is the only general rule which a Coiu't can, with any safety, lay down upon the subject. T'hc jurj' must of necessity be the judges whether reasonable ground to apprehend the design comtemplated by the law existed, and whether there was imminent danger, to all appear- ances, that such design would be executed. In arriving at their conclusion on this subject, they are expected to avail themselves of such knowledge us they possess in regard to human transactions, from their intercourse witli society. The right of self-defence is not derived from the law. All that the law attempts to do on the subject is, to prescribe rules of caution and prudence, to be observed by persons before exercising the right, by ascer- taining whether the danger exists, and whether it is imminent." A similar view was taken by the Supreme Court of Tennessee in Jack- son's case above quoted. The Court say: "It is difficult to lay down a rule strictly governing all cases, the circumstances of the cases differ so widely. The overt act that vfill justify a defendant in assuming tliat his own life is then in danger, must depend upon the circumstances of each particular case. Cases may be readily supposed, and no doubt in realitj' often occur, where, to require a defendant to wait nntil his adversary actu- ally begins the combat, would be to require liim to wait until there would be but little chante left of successful defence ; — cases where the deadly pm'- pose of the party is so fixed and determined, his character so reckless and bloody, his use of deadly weapons so expert and skillful, that to await his attack would be to await almost certain death ; and the result of the ren- counter would often depend upon which party was the quicker in action. In cases of this character, where the parties meet, a very slight movement might justify either party in acting at once upon the assumption that his life is then in instant peril. Or eases might occiu- where the fact that the de- ceased met the defendant under the particular circumstances and in con- nection with previous facts, might show that the deceased sought the meeting with a deadly purpose, and be in it itself an overt act. These are doubtless extreme cases; but they are used to show that the overt act spoken of is a question depending upon the entire circumstances of each particidar case ; and also to illustrate the meaning of the expression that ' the danger must be imminent at the moment. ' " In a later case in California — The People v. Williams, 32 Cal., 280 — error was assigned upon the refusal of the District Judge to charge as fol- lows: " If you believe that the defendant was in danger of being kUled, or of receiving great bodily harm, at the hands of the deceased, and that the de- fendant understood such danger and feared it, then, in that case, he was justifiable in killing deceased ; and in considering the question whether he was in danger, and whether he understood and feared such danger, you should consider and weigh the evidence in relation to the character of the deceased ; also the evidence in regard to the threats of the deceased made against defendant ; and, in fact, should consider every circumstance con- nected witli the unfortunate altercation which ended in Eddy's death." The Supreme Court, Sandeuson J., delivering the opinion, said : " This instruction was properly refused for two reasons : First, the rule upon the subject to which it was addressed, luul already Ijecn stated by the Court in the precise language of the statute, which it is difHoull to improve GLADDEJSr'S CASE. 247 (Act Ooiicerniiig Crimes, ?J 30 and 31), [quoted at large, supra] ; and, sec- ond, because it misrepresents the law. It makes the bare fear of the de- fendant, and not the fears of a reasonable person, under circumstances suf- ticieut to excite them, the test of justification; and that, too, unaccompa- nied by the further and indispensable qualification that he acted under thi' influence of such fears, and not in a spirit of revenge." In a case in Louisiana, the refusal of the District Judge to charge " that if the defendant believed that an assault was made upon her, by the de- ceased, under circumstances denoting an intention to talce away her life or do her great bodily harm, and under that belief, at the time, she Ivilled him. the Ivilling was justifiable homicide,"— was urged as error. The Supreme. Court, VooRHiES, J., delivering the opinion; said : " The District Judge properly declined giving the above instruction, the fallacy of which consists in maliing the mere belief of the accused that his life is threatened, a sufli- cient ground for taljing the life of another. The Court below gave a cor- rect exposition of the law in stating to the juiy ' that if in the opinion of the jury, the deceased made an assault upon the accused, etc., from the na- ture of the assault the accused had reasonable ground to apprehend that there was a design to destroy her life, or commit some great bodily harm upon her person, and therefore, at the time the accused killed the deceased. the killing was excusable liomicide.' See State v. Chandler, 5 La. An., 490." State v. Swift, 14 La. An.. 827. And see State v. Chopin, 10 La. An., 45S. In Gladden v. The State, 12 Fla., 562, 575, an attempt was also made to set up the doctrine of Grainger's case. Westcott, J., delivering tlw opinion of the Coiu-t, said : " The second instruction asked and refused was : ' If you believe from the evidence that the prisoner killed the deceased through fear or coward- ice, or under the belief that great bodily harm was about to be done, although there was no danger to his life or great bodily harm, it will be n justifiable killing, and j^ou will acquit.' " This instruction is based on the doctrine enunciated in the case^ of Grainger v. The State, 5 Yerg., 459, and is in effect that the act is justified, if the prisoner killed the deceased under the belief that great bodily harm was about to be done, although there was no such danger. "The facts in these cases are certainlj' very different. In Grainger v. The State, the Court say : ' Grainger used all the means in his power to escape from an overbearing bully. He shot only to protect himself from threatened violence, and that great. He behaved like a timid and cowardly man, was much alarmed, and was cut off from the chances of probable assistance.' Here, at the time of the killing. Gladden was on horseback, several yards off, with a gun in his hand, and his victim, without any like weapon, in no position to strike, or even to defend himself. " Independent of the facts, however, every person is presumed to be sane, and the law holds him responsible for reasonable deductions, and yfhen we cease to hold him responsible to such an extent, we are in a laby- rinth of never-ending uncertainty. " The belief must be reasonable ; there must be reasonable ground tn apprehend a design to take away life, or to do great bodily harm, and reas- onable ground for believing the danger imminent that such design will be accomplished then." 248 GBAIJSTGER V. THE STATE. In a case iu Missouri, the followng instruction was held properly re- fused, but no reasons are given for so holding : " If the jury believe that defendant had cause to believe that his life was in danger, or that great bodily harm was about to be inflicted by the deceased, and acted under that belief at the time, the law is for the defendant, if the jury believe that de- fendant acted under the belief at the time, and that he stabbed Howel in order to save his own life."' State v. O'Connor, 31 Mo., 389. In The People v. Austin, 1 Parker C. R., 154, the prisojier was indicted with one Nesbitt, for the murder of Timothy Shea, on the 28th of Septem- ber, 184S, by firing a pistol at him. Trial was had in the New York Oyer and Terndner, before Edmonds, Justice of the Supreme Court, and Alder- men Stevens and Dodge. The evidence went to show, that on the evening in question, the pris- oner, with three of his companions, sallied out into tlie streets on a frolic, and after \'isiting five or six drinking house=, entered one in Leonard street, next door to the residence of the deceased, and on coming out, passed the door of the basement occupied by the deceased's mother as a porter house, and in which the deceased, two of his brotliers and a sailor, were engaged in carousing. As Austin was passing the dooi-, one of the inmates came out, and invited him to go in and hear the singing, which he refused to do. After refusing repeated invitations, he was taken by the collar and dragged into the basement. The door was then shut upon him, and he was re- peatedly urged to sing or to drink, but he refused. One of his companions, the other defendant, Xesbitt, followed him into the basement, and at- tempted to fixsten the door open. A row then began, a conflict, in the course of which Nesbitt fled from the room, and the brother of the deceased threw a tumbler and pitcher at Austin, and struck him a severe blow on the foreliead with a decantei-. Austin retreated from the basement; he was Ibllowed by tlie sailor, and struck a blow with a chair. About this time, but whether before or afti.'r the blow with the chair, was not ascer- tained, some one fired twice into the basement, with a six-barreled revolv- ing pistol. One of the balls took effect on the deceased, who was then advancing with a chair uplifted towards the door tlirough which Austin had retreated, and who died almost immediately. After the firing, the prisoner retreated towards the police station-house, distant about one hundred feet from the scene of tlie aflfniy, and on the way over which he had passed, the pistol was afterwards found. He was severely wounded, and did not recover for some weolvs. D. Oraham, for the prisi/uer, made (among others) the follovnng point : "If the defendant, though iu no gix'ut danger of serious boddy harm, throvgh fear, alarm or cowardice, discharged the i)istol at the deceased, or into the basement, under the impression that great bodily injury was about to be inflicted upon him, it is not an olfi?nce."' But Edmonds, J., in charging the jury, said ; " The honucide would be justifiable undc.-r our la\\', only in case it was committed by the prisoner when there was reasonable t/round to apprehend a design to do him some great personal injury, and there was imminent danger of such design being accomplished. But of tills, the jury were to bo the judges, not tlie prisoner, and it was for (hem to say, from all the cir- <>umstances proved before tliem, whether there was reasonable ground for BBYSON'S CASE. 249 such apprehension, and whether there was, at the moment the fatal shot was tired, immuient danger that some great personal injury would be done to the prisoner." It is to be observed, however, that the law is not to be understood pre- cisely as this charge of Judge Edmonds would imply; for the danger need not be in point of fact, imminent, but it will be sutficient if the danger ap- pear to be imminent to the comprehension of a reasonable man. See Sullivan's case, ante, p. 65 ; Shorter's case, post. In a case determined by the Supreme Court of North Carolina, in 1864, the question in the principal case was presented for determination. The case was an indictment for assault and battery. The State oifered evidence tending to show that the defendant met the prosecutor in the street, and knocked him down with his walking cane, without provocation. The de- fendant offered evidence tending to show that at the time he struck the prosecutor, the latter had a knife in his hand, held up in a striking position at a distance of four or six feet from the defendant. The refusal of the Court to charge that "if defendant, at the time he struck Gash, [the prose- cutor], believed Gash was about to strike him with the knife, then the defendant had the right to strike Gash first ; " — was assigned as error. Manly, J., speaking for the Court, said : " A right to act in self-defence does not depend upon the special state of mind of the subj ect of the enquiry. He is judged by the rules which are applicable to men whose nerves are in an ordinarily sound and healthy state ; and whatever may be his per- sonal apprehensions, if he has not reasonable ground to support them, he vrill not be protected by the principle of self-defence. The normal condi- tion of the human passions and faculties must be regarded in establishing rules for the government of human conduct. The question, then, in such cases as the present, is not what were the apprehensions of the defendant, but what these ought to have been, when measured by a standard derived from observation of men of ordinary firmness and refiection. This is what Is called reasonable ground of belief, and is the rule for judging of a case of self-defence, upon an indictment for an assault and battery. Therefore, a prayer for instructions, which assumed that one's personal feelings and apprehensions, however eccentric and morbid these might be, determined the character of his conduct, was properly refused." State v. Bryson, 1 Winston's Law Reports, part 2, p. 86. As an illustration of the extravagant lengths to which the doctrine ot Grainger's case, if admitted, would lead, we may quote the case of The State V. Shoultz, 25 Mo., 128, 149. The testimony in that case exhibited a case of deliberate and cold-blooded murder. The defendant was convicted of murder in the first degree. Among the errors assigned in the Supreme Court was the refusal of the Court below to permit the prisoner to intro- duce evidence, to show that by reason of his weak and crippled condition of body, he was peculiarly sensitive to fear from external violence. Now if the fears of a coward would excuse the kilhng of a man, nothing would > seem to be more reasonable than to permit the slayer to prove on his trial, that, by reason of some peculiar physical or mental infirmity, he was a coward. And had the Court admitted the doctrine of Grainger's case, its conclusion would doubtless have been different from what it \\-a.s. EvLAXD, J., speaking for the Court, said ; 250 GKAINOEK V. THE STATE. " The defendant proposed to give in evidence his own peculiar sensitive- ness to fear from external force, owing to his condition of body. This the Court refused, and we think very properly. Wharton, in his treatise on homicide lays it down as a general rule that there cannot be an acquittal ,^ unless there is reasonable evidence of an intent on the part of the. deceased to commit some felonious act. This ovidence must be gauged by the de- fendant's opportunities at the time ; and if he have reasonable grounds to believe a felony intended, it maizes no matter that such was not reasonably the case. Tlius, if a man assaults another with a pistol in such a manner as to produce the belief that he is about to talve life, it makes no matter whether the pistol be loaded or not (Wliart. on Horn., 215.) When, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life or to commit any felony upon his person, the kill- ing the assailant wiU be excusable homicide, although it should afterwards appear that no felony was intended. AVharton says: ' It is manifest that very embarrassing questions will here arise as to whether the test to be ap- plied is the defendant's capacity, or the capacity of the jury trying the case. If the latter be the case, the question will be of comparatively easy solution. It will be only for the jury to examine the res gestce, and determine whether,, from them, a reasonable belief of an intended felony can be deduced. But if the defendant's capacity is to be taken as the stand point, the enquiry is widely extended. In the first place, it involves the temperament, nervous and intellectual, at least, of the defendant, as well as his means of physical resistance. In the second place, it involves the same qualities in the de- ceased, so far as they could have been supposed to have been known to the defendant at the collision. For, adopting this point of view, it would be absurd to say that a child or imbecile person would not have much greatei' reason to apprehend a felonious assault from an incensed lunatic, who was starting towards him with the appearance of an assailant, than would the lunatic from the attaclv of the imbecile or child. And if we admit a dis- tinction in this case, it would be difficult to refuse to receive e'\'idence of the nervous and physical texture of the defendant in all other cases. It is clear, however, that to do so, would be to yield a very dangerous latitude in the trial of a case, which would not only require a departure from the estab- lished common law principle, that the deceased's character cannot be brought into controversy, but would open a number of side issues.' (Whart, on Hom. ,215.) -But no danger can be supposed to flow from this principle, when it is considered that the jury who try tlie case, and not tne party Ivill- ing, are to judge of the reasonable grounds of his apprehension.' Such was the language of Justice Parker in his charge to the jury in Thomas O. Selfridge's case. \_Ante, p. 18.] From a careful consideration of this point, after a patient examination of numerous authorities, both in England and in this country, we come to the conclusion that the Court below very properly refused to admit the evidence of the defendant, that by reason of his weak and crippled condition of body, he was i-endered nervous and peculiarly sensitive to fear from external violence." That the question whether the appearances of danger upon which a person acted were sufficient to justify him in resorting to the measures of defence he did, is one of fact for the jury, there can be no doubt. Sel- fridge's case, ante, p. 18 ; Wiltberger's case, ante, p. 39 ; Harris' oasi'. post ; JSTEEVOUS FEAKS — VIEWH OF IJB. WHAETOK. 251 Oliver's case, post ; MoLeod's case, post. And if any doubt could remain, in Aiew of the oases already examined in this note, and particularly Shoultz's case, supra, as to the embarrassing questions to which Dr. Whar- ton alludes in the language above quoted, namely, whether the defendant's justification is to be tested by his own capacity, or by the capacity of the jury before whom he must make that justification clear, it would seem to be resolved in Harris' case, joosi, where the Court say : " The prisoner says, he believed his life was in danger. Who can look into his heart ? If the law allows him to judge, who can contradict him? The circumstances are nothing. It is his belief that justifies him. The law is not so. It is only li'om circumstances accompanying the transaction, that reasonable ground can be ascertained, and of their bearing and influence the jury are the sole judges." Still, the Court in Harris' case, may not have had in their minds the distinction taken by Dr. Wliarton, and may have meant to decide nothing more than that the jury are in all cases to be the judges of the apparent necessity under which the slayer acted, where it is alleged that the killing was in self-defence, — a proposition which no one can doubt — without determining whether their judgment is to "be founded upon the strength of an ordinary man, or upon the defendant's peculiar infirmities. ' Nevertheless the question seems to be so thoroughly put to rest by the cases examined in this note, as well as by Creek's case, post, and those v;hich immediately follow it, as to admit of no further discussion. But the same doubt still remains in Dr. Wharton's mind, and he expresses it in the last edition of his Criminal Law, in the following language : " So it has been trequently laid down that such fears should be reasonable to constitute a defence. But it is submitted that while this is undoubtedly true where such fears are voluntanly and conscientiously unreal, j'ct it is otherwise when the defendant honestly entertains them, though they may be in fact unfounded. In such case, a morbid condition of brain or nerves is admissible to prove the reality of such fears, as is derangement to prove the reality of an hallu- cination. In accordance with this principle, in a case tried in Philadelphia in 1846, where the defendant, during the Kensington Irisli and Native American riots, killed an innocent person, under the alleged belief that she was one of a parly seeking his life, the defence was permitted to set up the extreme nervous oxcitement and tension, producing a belief in a con- stant conspiracy to take his hfo. Flavel's case, MSS. This does not differ mueli from Levett's case, already quoted." Whart. Crim. Law, 6th edition, ?1027. With deference to the learned author, we think the case differs much from Levett's case, Cro. Car., 538. Levett, aroused in the night by an alarm of burglars, seized a rapier, and ran into his buttery to search for a sup- posed burglar whom his wife had discovered there ; and, thrusting forward in the dark, killed an innocent person whom the maid-servant had secreted there. It was entirely probable to a reasonable man, from all the circum- stances surrounding Levett, that the person in the buttery was a burglar, and he had no reason whatever for supposing that an innocent person was secreted there, it being about twelve o'clock at night. No jury in the United States, under proper instructions, would have hesitated a moment about ac- quitting Levett ; nor would it be in the least degree necessary, in order to assure the acquittal of a defendant in such a case, to sliow that he acted 252 GEAINGEE V. THE STATE. under hallucinations or morbid fears, superinduced by some peculiar nerv- ous tension, or otlier physical or mental infirmity. Levett did no more than any other reasonable man was liable to do, making due use of his faculties in such an extreme emergency. He who is obliged to search for a thief in his house in the night time, is in a position of extreme peril, as it not un- frequently happens that burglars in such cases, kill the inmates of the house in order to eflFect their escape. Courts and juries will not hold a person who unfortunately kills another, under such circumstances, to a nice degi-ee of accouutability. With regard to Plavel's case, cited by Dr. Wharton, as above stated, it may be doubted whether a similar ruling by a respectable Court can else- where be found. Precisely the reverse in principle is the ruling in iShou'.tz's case, supra ; and also the ruling made in The State v. Anderson, 4 Nevada, 265, 275. In this last case, an attempt was made to prove that the defendant had been in difficulties, and was in a state of mental excite- ment just prior to the killing, arising from difficulties or quarrels with other persons than the deceased. Beatty, CR. J., delivering the opinion of the Supreme Coiu-t, said: "We think this testimony was properly re- fused. It had no connection with the case. If the defendant had quarrelled with anybody else, we cannot see how that could mitigate his offence in killing Slocum." Dr. Wharton cites Logue's case, post, as b(>ing to the same effect as Flavel's on the point in question. We have searched Logue's case in vain for any such conclusion. The very reverse is there decided. The learned Judge who delivered the opinion in that case, said : •' I take the rule to be settled, that the killing of one who is an assailant, must be under a reasona ■ ble apprehension of loss of life or great bodily harm, and the danger must appear so imminent at the moment of the assault, as to present no alterna- tive of escaping its consequences but by resistance. Then the killing may be excusable, even if it turn out afterwards that there was no actual danger.'' Dr. 'VVTiarton concludes his observations on this point bj' quoting the language of Baron Parke, in Reg. v. Thurborn, 1 Den. C.C., 388-9, that " the rule of law founded in justice and reason is, that actus non facit reum, nisi mens sit rea ; the guilt of the accused must depend upon the circumstances as they appear to him." This language of Baron Parke has "been quoted in Pond's case,joosi!, and it is there said that Mr. Bishop has expressed the same rule very clearly by declaring that " in all cases where a party without fault or carelessness, is misled concerning facts, and acts as he would bo justified in doing if the facts were what he believed them to be, lie is legally, as he is morally, innocent. 1 Bish. Cr. Law, ?242." [5th ed. ^ 303.] And the Com-t in Pond's case, very justly say, that "the law, while it will not generally excuse mistakes of law (because every man is bound to know that), does not hold men responsible for a knowledge of facts, unless their ignorance arises from fault or negligence." In Neeley's case, ante, p. 101, the Court say : " The general proposition, with proper explanations and qualifications, as stated by Baron Parke (Reg. v. Thur- born, 1 Den. C. C, 387), that ' the guilt of the prisoner must depend on the •circumstances as they appear to him,' is not by any means denied." And jalthough the above language of Baron Parke was used in a case of larceny. SYLLABUS. 25? where the defendant had found a bank bill in the road without knowing who was the owner, and where the enquiry consequently was, whether the animus furandi necessary to constitute larceny existed : yet, the general principle stated will probably not be questioned anywhere ; and the maxim, actus non facii reum, nisi mens sit rea — the act does not make the actor guilty, unless the intention be also guilty — ^is, perhaps, as nearly of univer- sal application as any other maxim of the law; and it is possible that the doubt which Dr. Wharton expresses, notwithstanding the contrary seems so firmly settled by a multitude of adjudications, points to one of the debat- able questions of the future. CEEEK V. THE STATE. [ 24 IND., 151.] Supreme Court of Indiana, May Term, 1865. John T. Elliott, James S. Feazek, \jy,dges. Robert C. Gregoet, ( ^ Charles A. Ray, Threatening actions — ^Manslaughter definbd — ^Reasonable fears — Overrules Grainger's case, ante. 1. On the trial of an indictment for murder in the second degree, the Court instructed the jury that no "threatening actions" of the deceased could justify the defendant in taking his life, and, in another instruction, told them that if the deceased made a violent assault upon the defendant while he was retreating, and the deceased pursued him, and the defendant had reasonable apprehension of great bodily harm and had used all reason- able means to keep out of the way, he would be justified in repelling the assault, and if, in so doing, death resulted, he ought to be acquitted. Held, that neither instruction correctly stated the law. The latter was erroneous, because retreat is not always a condition which must precede the exercise of the right of self-defence. 2. In manslaughter, the killing, if upon a sudden heat, must be volun- tarily done without malice. 8. To justify the killing of another on the ground of fear of great bodily harm, there must be reasonable cause for such fear, audit is not suf- ficient to show that the defendant was in actual fear. 4. The criminal law while indulging to a humane extent the mere in- 254 CREEK V. THE STATE. iirmities of human nature, nevertheless requires of sane men the exercise of a mastery over their fears, as well as their passions. Appeal from the Fayette Circuit Court. Frazer, J., delivered the opinion of the Court. This was an indictment for murder in the second de- cree. There was a conviction for manslaughter. The Court instructed the jury that no "threatening -actions " of the deceased could justify the defendant in taking his life. In a separate charge, the Court also told the jury, that if the deceased made a violent assault upon the defendant, while he was retreating, and the deceased was pursuing him, and the defendant had rea- sonable apprehensions of great bodily harm, and had used all reasonable means to keep out of the way, he would be justifiable in repelling the assault, and if, in so doing, the death of the deceased was produced, the de- fendant ought to be acquitted. It is not possible to reconcile these two instructions. In one, the jury was, in effect, told that no threatening actions could have warranted the defendant in taking the life of the deceased ; while in the other, they were told that certain menaces would warrant it, provided that the defendant had been retreating, and the deceased pursuing him. Even the latter does not give the law accurately. Retreat may be impossible or perilous, and is not, therefore, always a condition which must precede the right of self-defence. The law upon the subject is so accurately laid down in the text-books, that it seems to us unnecessary to discuss it further. The first instruc- tion to which we have alluded was given on motion of the prosecuting attorney. It is so very much at variance with all that iB settled upon the subject, that we need not prolong this opinion by dwelling upon it. In the fourth instruction, given by the Court upon its own motion, after setting forth an accurate definition of manslaughter, as the statute defines it, it is added, " and if the defendant killed the deceased upon a sudden heat, with an ax, as charged in the indictment, you can find the defendant guilty of manslaughter." This is inaccu- THREATENING ACTIONS — KE^SONABLE TEAKS. 255 rate. The killing must have been voluntarily done, upon a sudden heat, if without malice, to make it man- slaughter. The defendant moved the Court to give sundry instruc- tions to the jury, which were refused; by which the question is raised, whether the actual /ear, by the defend- ant, of great bodily harm from the deceased, would be sufficient to excuse the homicide, or whether there must be a reasonable cause for such fear. This question is one concerning which much may be said on both sides that is plausible and difficult to answer. It has been somewhat discussed by judicial tribunals, from time to time, as they have been compelled to pass upon it, and it seems to us that much that has been said upon it is more metaphysical than practical, and that often the theory of existing law has been lost sight of in the nicety of abstract disquisition. We are not disposed to enter at much length into the subject. It ought to borne in mind, that the criminal law holds sane men responsible for the ordinary exercise of their reason. It is a power common alike to cowards and those who know no fear. It is a guide to which both may apply if they wish to do so. By the power of will, he who is naturally very timid can, and often does, meet danger with as much self-possession as the boldest man, and even his fears beget that caution which is a necessary safe-guard against rashness. Of all men, he is probably least likely to commit needless homicide in self-defence, for his unfortunate weakness usually tends to paralyze his arm, and makes him sIoav to strike, quite as much as it subjects him to the torture of groundless apprehension. Of course we speak of persons not so unmanned by fear as to be incapable of exercising either judgment or will. A sane man is so constituted that he can be either the master or the slave of his fears, as well as his passions. The criminal law, indulging to a humane extent the mere infirmities of human nature, nevertheless requires the exercise of this mastery. Ac- cordingly the great weight of authority is against the 256 SHOBTER V. THE PEOPLE. doctrine urged by the appellant's counsel. "We "beliere it has met the approval of the Supreme Court of Tennes- see only. Shorterv. The People,* 2 Comst., 197; Stewart V. The State^ 1 Ohio (McCook), 71. ****** Judgment reversed. SHORTER V. THE PEOPLE. [2 CoMST., 193.] Court of Appeals of Few Torlc, May Term, 181^9. Feeeboen G. Jewett, GrREEl^E 0. BrONSON', Charles H. Ruggles, Addison Gardiner, Samuel Jones, William B. Wright, Thomas A. Johnson, Charles Gray, Judges. Justices of the 8u- pre'me Court and ex-offiaio Judges. Reasonable fear or death ok great bodily harm excuses the SLAYKR — Mutual combat — Killing with dangerous weapon — Ir- relevant IN8TEUCTI0N, THOUGH ERRONEOUS, NO GROUND OF REVER- SAL. . 1. One who is without fault himself, when attacked by another, may kiU his assailant, if the circumstances be such as to furnish reasonable ground for apprehending a design to take away his life or do him some great bodily liarm, and there is also reasonable ground for believing the danger imminent that such design will be accomplished ; although it may afterwards turn out that the appearances were false, and there was, in fact, no such design nor any danger that it would be accomplished. The revised statutes of New York (2 R. S., 660, 1 3, sub. 2) have not changed the law on this subject. [Ace. Selfridge's case, ante, p. 18 ; Neeley's case, ante, p. 101 ; note to Grainger's case, ante, p. 242 ; Sullivan's case, ante, p. 65 ; Logue's case, post, and cases following it ; Pond's case, post.'] 2. When a man is struck with the nalted hand, and has no reason to apprehend a design to do him any great bodily harm, he must not return » Post, next case. * Ante, p. 191. STATEMENT OF THE EACTS. 257 the blow with a dangerous weapon. After a conflict has commenced, he must quit it, if he can do so in safety before he kills his adversary ; and if his adversary try to escape, he must not pursue, and give him fatal blows with a deadly weapon. [Ace. Scott's case, ante, p. 163 ; and as to retreat- ing, note to Selfridge's case, ante, p. 28; and note to James D. Kennedy's case, ante, p. 139.] 3. Where the facts of a case do not require a charge upon the law of jus- tifiable homicide, an error committed in such an instruction will not be ground for reversing a judgment of conviction. [Ace. Morgan, J., in Lamb's case, 7)os< ; Evans' case, post; Shippey's case, araie, p. 137; Har- rison's case, ante, p. 71.] Henry Shorter, a negro, was indicted for the murder of Stephen C. Brush, and tried at the Erie county Oyer and Terminer, in November, 1848. It was proved on tlie trial that on the 19th day of September, 1848, at about eleven o'clock in the evening, the deceased was passing down Seneca street, in the city of Buffalo, in company with some boys from fifteen to seventeen years of age ; that they were conversing and laughing about a negro char- acter that had been acted that evening at the theatre ; and that they passed the prisoner and another negro en the side-walk. The prisoner and the other negro walked behind for a few rods, and then came up^ with them, and the prisoner passed between the deceased and the boys, and as he passed a fight occurred between the deceased and the prisoner. One of the witnesses thought that the deceased had the best of the fight at first. None of the other persons interfered. After sev- eral blows had passed, the deceased hallooed, " he has got a knife," and he then retreated to the middle of the road. The prisoner followed him and blows were pass- ing between them, or else the prisoner was striking the deceased and the deceased defending against the blows, until he got to the middle of the road, when he fell down and died in about fifteen minutes. When he fell the prisoner and the other negro ran away. The evidence tended to show that the prisoner carried with him on the occasion a large dirk knife, with which he inflicted on the deceased nine or ten severe wounds, one of which entered the cavity of the heart and was mortal. One was also in the lungs and several were on 358 SHORTER V. THE PEOPLE. the back of the neck. It also appeared that when the deceased and the hoys passed the prisoner, some words occurred between them. The witnesses did not agree as to what the precise words were, but the evidence tended to show that the prisoner said as the deceased passed, *' wliat about negroes ? " The persons in company with the deceased testified, that the prisoner struck the first blow ; but the other negro testified that the first blow was struck by the deceased. There was no evidence of any previous acquaintance between them. The evidence having closed, Justice Hoyt presiding at the trial, proceeded to charge the jury at large upon the €ase ; and having done so, the counsel for the prisoner requested the Court to charge, that if the deceased struck the first blow, and if there was reasonable ground to ap- prehend a design on the j)art of the deceased to do the prisoner some great personal injury, and the prisoner believed that there was imminent danger of such design being accomplished, it was a case of justifiable homi- cide, although he might be mistaken in such beli'ef ; and that the question was not whether such danger existed, but whether the prisoner believed it to exist. The Court refused so to charge, but on the contrary charged that to render the killing justifiable, the jury should be satisfied that there was in fact imminent danger that the deceased would commit some great personal inj ury upon the pris- oner. The prisoner's counsel excepted to this part of the charge and to the refusal to charge as requested. The jury found the prisoner guilty of murder. A bill of ex- ceptions was made and the case removed by certiorari into the Supreme Court, where a new trial was refused. The prisoner brought error to this Court. Eli Cook, for the plaintiff" in error ; B. H. Austin, Dis- trict Attorney, for the people. BjioNSON, J. delivered the opinion of the Court : When one who is without fault himself, is attacked by another in such a manner, or under such circumstances as to furnish reasonable grounds for apprehending a de- sign to take away his life, or to do him some great bodily HOMICIDE UPON APPEARANCES OF DANGER. 259 harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, I think he may safely act upon appearances, and kill the assailant, if that be necessary to avoid the apprehended danger; and the killing will be justifiable, although it may afterwards turn out that the appearances were false, and there was in fact neither design to do him serious injury, nor danger that it would be done. He must de- cide, at his peril, upon the force of the circumstances in which he is placed ; for that is a matter which will be subject to judicial review. But he will not act at the peril of making that guilt, if appearances prove false, which would be innocence, had they proved true. I can- not better illustrate my meaning than by taking the case put by Judge, afterwards Chief Justice Parker, of Mas- sachusetts, on the trial of Thomas O. Selfridge*. "A., in the peaceable pursuit of his affairs, sees B. walking rapidly towards him with an outstretched arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude. A., who has a club in his hand, strikes B. over the head, before, or at the instant the pistol is discharged; and of the wound B. dies. It turns out that the pistol was loaded with powder only, and that the real design of B. was only to terrify A." Upon this case, the judge inquires, "will any reasonable man say that A. is more criminal than he would have been if there had been a bullet in the pistol ? Those who hold such doctrines must require, that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol was loaded — a doctrine which would en- tirely take away the right of self-defence. And when it is ■considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle." The judge had before instructed the jury, that, " when, from the nature of the attack, there is reasonable ground to believe that there is a design to Ante, p. ]8. 260 SHORTER V. THE PEOPLE. destroy his life, or commit any felony upon Ms person, the killing of the assailant will be excusable homicide, although it should afterwards appear that no felony was intended." Selfridge's trial, p. 160". 1 Russ. on Crimef?, 699, ed. of '24 ; p. 485, note, ed. of '36. To this doctrine I fully subscribe. A different rule would lay too hea^y a burden upon poor humanity. I have stated the case of Selfridge the more fully, be- cause it is not only an authority in point, but it is one which the revisers professed to follow in framing our statute touching this question. I shall not stop to con- sider the common law distinction, between justifiable and excusable homicide, because our statute has placed killing in self-defence under the head of justifiable hom- icide. 2R. S., 660, §3. The Massachusetts case lays down no new doctrine. The same principle was acted on in Levett's case, recited by JojSTES, J., in Cook's case, Cro. Car., 538, to the follow- ing effect : Levett was in bed with his wife, and asleep, in the night, when the servant ran to them in fear, and told them that thieves were breaking open the house. He arose suddenly, and taking a drawn rapier in his hand, went down and was searching the entry for the thieves, when his wife espying some one whom she knew not in the buttery, cried out to her husband, in great fear, " here they be that would undo us." Levett there- upon hastily entered the buttery in the dark, not knowing who was there, and thrusting with his rapier before him, killed Frances Freeman, who was lawfully in the house and wholly without fault. On these facts, found by special verdict, the court held that it was not even a case of manslaughter, and the defendant was wholly acquit- ted. IS'ow here, the defendant acted upon information and appearances which were wholly false ; and 3-et as he had reasonable grounds for believing them true, he was held guiltless. Foster, (Crown Law, p. 299,) says of this case, "possibly it might have been better ruled manslaughter at common law, due circumspection not * Ante, p. 18. HOMICIDE UPON APPEARANCES OF DANGER. 261 iiaving been used." I do not understand him as ques- tioning the principle of the decision, but as only express- ing a doubt whether the principle was properly applied. He calls it nothing more than a case of manslaughter, when, if a man may not act upon appearances, it was a plain case of murder. So far ' as I have observed, no other writer upon criminal law has questioned, in any degree, the decision in Levett's case ; and most of them have fully approved it. East, in his Pleas of the Crown, vol. 1, p. 274, 275, has done so. Hale, (1 P. C, 42, 474,) mentions it among cases where ignorance of the fact will excuse from all blame. Hawkins (1 P. C, 84, Curwood's ed.,) says the killing had not the appearance of a fault. RusseU (on crimes, vol. l,p. 550, ed. of 1836,) approves the decision, which he introduces with the remark that " im- portant considerations will arise in cases of this kind, [he was speaking of homicide in defence of one's person, habi- tation or property,] as to the grounds which the party killing had for supposing that the person slain had a felonious design against him ; more especially where it afterwards appears that no such design existed. Roscoe (Crim. Ev., p. 639,) says, " It is not essential that an actual felony should be about to be committed, in order to justify the killing. If the circumstances are siich as that, after all reasonable caution, the party suspects that the felony is about to be immediately committed, he will be justiiied." And he then gives Levett's case as .an example. The case of Sir William Hawkesworth, who, through' nis own fault, was shot by the keeper of his park, who took him for a stranger who had come to destroy the deer, went upon the same principle. 1 Hale P. C, 40 ; 1 East P. C, 275 ; 1 Euss. on Cr., 549. Other cases are put in the books, where the killing will be justified by appearances, though they afterwards prove false. A general, to try the vigilence or courage of his sentinel, comes upon the sentinel in the night in the posturaof an id that there is imminent danger of such design being accomplished." " There must, at least, be some attempt to ex- ecute the apprehended design ; or there must be reasonable ground for the iipprehension that such design will be executed, and the danger of its ac- ■complishment imminent." Wesley's case, post. It is to be observed that the Minnesota, as also the Missouri statute, fol- SYLLABUS. 269 lows that of New York, but modifies it so as to make it accord with the exposition placed upon it in the principal case, by using the words, and there stiall be reasonable cause for believing that there is imminent danger of such design being accomplished." 2 Taylor's Wis. Stat., p. 1827, 1 5, sub. sec. 2 ; 1 Wagner's Mo. Stat., p. 446, J 4. LOGUE V. COMMONWEALTH. [3 Weight, 265.] Supi-e7ne Court of Pennsylvania, January Term, 186 J. Walter H. Loweie, CMef Justice. George W. Woodward, ] James Thompsojst, William Strong, John M. Eead, Justices. Homicide — Acting upon reasonable appearances of danger. The kilUiig of one who appears to be an assailant is excusable, if there be reasonable apprehension of loss of life or of great bodily harm, so immi- nent at the moment of assault as to present no alternative of escaping the consequences but by resistance, though it afterwards appear that there was no actual danger. [Ace. Shorter's case, ante, and citations.] Error to the Oyer and Terminer Court of Clarion county. The defendant was jointly indicted with one Ira Davis in the Oyer and Terminer of Clarion county, for the murder of Jared Lewis, hut was tried separately. He had robbed the house of Thomas Stewart, and had absconded. On the information of Mr. Stewart, a war- rant was placed in the hands of Constable Cartwright for his arrest. Cartwright wrote a deputation on the writ, and gave it to Jared Lewis, a private citizen, to execute, for which service Stewart was to pay him. Lewis armed himself with a loaded pistol, and vrith 270 LOGUE V. COMMONWEALTH. two companions, WiUiam Thompson and Eli McOall, went in search of the prisoner. In attempting to arrest him, and another who was with him, Lewis, who with his associates, were lying in wait behind some bushes, about midnight, suddenlj' sprang upon them as they passed, and presented his pis- tol at Logue's breast, saying, " Stop, men." liOgue, who had a revolver, drew it and fired, the ball taking efi"ect in Lewis' breast. He then fired a second shot, whi.ch passed through Lewis' thigh, and lodged in the calf of McCall's leg ; and then fled with his companion. Lewis walked to a house near by, and died in a few minutes. Logue and his associate left the country, but were subsequently arrested and indicted for murder. At the close of the trial, the counsel for the defendant presented a number of points, which need not be repeated here, on which they requested the instruction of the Court, all of which were fully answered. The jury found the defendant guilty of murder in the first degree. There was a motion made for a new trial, which, on argument, was overruled, and the prisoner sentenced. The case was then removed into this Court by writ of error, where there were seventeen assignments of error presented by the defendant's counsel, only two of which were noticed by this Court. John D. Mahon and B. J. Reid for plaintiff in eri'or , William H. Corbett and Campbell & Laniberton for the Commonwealth. Thompson, J, delivered the opinion of the Court : We need not recapitulate the facts of this case, and will proceed at once to the consideration of what seem to be the debatable grounds in it, and they are to be found in the views of the learned judge on the subject of self-defence. But little else needs to be noticed; the charge and niling of the Court on every other point of the case being, so fe,r as we can discover, just and accu- rate. HOMICIDE UPON" EEASONABLE TEAES. 27] The sixth and tenth assignments of error present the ■questions now for consideration. The sixth is as follows, — and the tenth is the same in substance : " The Court erred in charging as follows, (which we suppose to be the qualifications referred to, in answer to the fifth, sixth and seventh points) : ' The prisoner's counsel contended that the homicide might be justifiable or excusable, if Logue, the prisoner, had reasonable «cause to apprehend danger to his life, and if it appeared imminent. I cannot so instruct you, unless there was actual danger to his life, and not occasioned by resist- ance.' " Divesting ourselves of impressions derived from cer- tain facts in the case, and viewing the prisoner in the light of one lawfully passing along the highway in the night-time (for we may not judge of facts which might change this aspect of the prisoner's case), was the in- struction right? It is only in this light that we, as a court of error, can deal with the instructions. We cannot determine their accuracy by a recurrence to matters of fact, which might ■defeat a hypothesis. "We must not be guided in our de- termination of the question whether the law was right- fully administered, because we may believe that the prisoner was a felon escaping from the commission of a flagitious crime at the time of the homicide, with a deter- mination to resist all who should attempt to arrest him. These were considerations for the jury, under the evi- dence, and if proved, would undoubtedly change the prisoner's chance of escape under the law of self-defence. It is only on the ^ound of entire blamelessness, that he might invoke the law to the extent of justifying or ex- cusing him in taking life, and then by showing that the assault was of such a character as to induce a reasona- ble apprehension that he was in danger of losing his own life, or suffering some enormous bodily harm, and so the Court should have charged. The learned judge thought that the apprehension of imminent peril would not ■excuse. " The danger must be actual." 272 LOGUE V. COMMONWEALTH. Here there was a wide diflference Ibetween the extent of the ground claimed as covered by the law of self- defence, and that laid down by the Court, namely : the difference between a reasonable apprehension of the danger of loss of life or limb, arising from circumstances appearing to indicate such a design on the part of the assailant, but which may, in fact, have been unreal ; and that announced by the Court, that nothing will excuse a homicide in self-defence but actual danger. It was of this last position that Parker, J., said in the cel- ebrated trial of Selfridge,^' in Boston, in 1806, that such" a rule would lay too heavy a burden on poor humanity." In treating of excusable homicide, "Wharton in his valuable work on Criminal law, in § 1021, says, " The assault may have been so fierce as not to allow him (the slayer) to yield a step without manifest danger of his life, or enormous bodily harm ; and then in his defence, if there be no other way of saving his own life, he may kill his assailant instantly." This is the principle of all the books, in case of actual danger. After treating of many aspects of self-defence iinder such circumstances, in § 1026, same book, another rule is given: "If the apprehension of an immediate and actual danger to life be sincere, though unreal, it is in like manner a defence;" and, it is added, "although this proposition, in its present shape, has been accepted with great reluctance, and in very recent times by the courts, and should be always applied with extreme caution, it has at all periods" been practically recognized." And Levett's case, Cro. Charles, 4§8, is cited. That was a case where an alarm having been given by a ser- vant that there were robbers in the house, the defendant, with a drawn sword in his hand, slew a servant girl of the neighborhood, who, being lawfully in the house at the time, concealed herself in the buttery, to avoid being seen by him. This was held to be excusable homicide M»<«, p. 1. i)"At all periods " is a misquotation. Wharton's text reads " frequently." HOMICIDE UPON REASONABLE FEAKS. 273 by misadventure. So in tlie case of Sir William Hawkes- worth, who was killed by his game-keeper, mistaking him for a deer-stealer. These are old cases. The principle of reasonable apprehension was laid down by the learned judge in Selfridge's case,*' to be found in Russ. on Or. p. 485. So it has been held in the State of Few York in The People V. Shorter," 4 Barb., 460, and affirmed in the Couj't of Errors and Appeals, 2 Comst., 197— opinion by Bronson, J. There the principle is thus stated : " Where one who is without fault, is attacked by another in such a manner or under such circumstances as to furnish reasonable ground for apprehending a design to take away his life, or to do him some great bodily harm, and there is reas- onable ground for believing the danger imminent that such design will be accomplished, I think he may safely act upon appearances and kill the assailant, if that be necessary to avoid the apprehended danger; and the killing will be justifiable, although it may afterwards turn out that the appearances were false, and there was, in fact, neither a design to do him serious injury, nor danger that it would be done." True, there is a statute on the subject in New York, but it has been held in many cases to be only declaratory of the common law. The same principle may be found decided in the State v. Green, 4 Ired. (N. C.) 409. So in Ohio, in Stewart v. The State,'= 1 McCord's Rep., 71. So in Oliver v. The State,' 17 Ala., 587. The case of The Commonwealth v. Seibert, Luzerne Co., 1852, cited with approbation in Wharton on Horn., 227, at length, is to the same effect. We might multiply authorities to sustain the accuracy of the point, but it is not necessary. I take the rule to be settled, that the killing of one who is an assailant, must be under a reasonable appre- hension of loss of life or great bodily harm, and the dan- ger must appear so imminent at the moment of the assault as to present no alternative of escaping its con- eAnie,^.!. ^Ante, last case, e^n/e, p. 191. fPost. 274 LOGUE V. COMMONWEALTH. sequences but by resistance. Then the killing may be excusable, even if it turn out afterwards that there was no actual danger. The law of self-defence is a law of necessity, and that necessity must be real, or bear all the semblance of reality, and appear to admit of no other alterna- tive, before taking life will be justifiable or ex- cusable. Whenever it is set up, the case will always call for a most careful and searching scrutiny, to be sure that it rests, where alone it can rest, on the ground of real, or apparently real necessity. As the books fully define the duty of all acting under this necessity, we will not encumber this opinion by restating it. Suffice it to say here, that as the law of necessity gov- erns this right, it follows that there must be no blame on the part of him who seeks immunity under it. If the slayer be in the wrong, the killing will not be excusable, much less justifiable. The oflPence then will, according as the facts may be, come under the definition of murder, murder in the second degree, or manslaughter. In the case in hand, the prisoner claimed the benefit of this view of the law ; of course, upon the hypothesis that there was nothing wrong on his part, and that the assault upon him was of such a character, and under such circumstances as to produce that reasonable appre- hension, that there was a design to take his life, or do him some great bodily harm, as justified him in firing on the supposed assailants and killing one of them. Now, as there were facts showing a sudden assault by men concealed in the bush until the moment it took place, one of them presenting a pistol towards the pris- oner, and the other with stones in his hands, as if about to be used, there was room to raise the points, and call for the instructions claimed by the prisoner's counsel. The Court could not say, nor can we, that the testimony in the case by the witnesses, deprived the prisoner of his right to an answer upon this hypothesis ; for the facta were alone for the jury, and they might believe or disbe- lieve them, as they might be credible or otherwise. REASONABLE PEAES — NEW TRIAL. 275 Under such circumstances, we think that the judge • Judges. Alvin Duval, ) Mutual combat with deadly weapons — ^Duty of kbtbeating — Acti.ng- upon appearances. 1. The law allows an individual, in defence of his person or property, to use such means as are necessary. In the selection and use of these means,, he must of necessity, exercise his own judgment. He acts at his peril, and if he goes beyond what is necessary to accomplish the object, and violates the law, he must abide the consequences : in the exercise of this judgment he must act rationally. 2. If one is threatened with death, or some great bodily injury, and has reasonable ground to believe that it will be immediately inflicted, unless prevented by an act of self-defence, which is in the power of the person assailed, he has the right to use such defence for his own safety, although it might afterwards appear that there was no real design to inflict the appre- hended injury. [Ace. Rapp's case, ante, last case • Shorter's case, ante., p. 256, and citations.] 3. Therefore an instruction that the defendant might lawfully kill his assailant, "if he had no safe means of escaping" ; and that he is not ex- cusable " if he could have safely retreated from the danger, and by that means have saved his life and person," is erroneous, because it leaves out of view or negatives the principle above stated.^ 4. Whether reasonable grounds for the belief existed on the part of the defendant that he was in imminent danger of death or great bodily harm, is a question of fact for the jury. [Ace. Selfridge's case, ante, p. 18 ; McLeod's case, fost ; Harris' case, ante, p. 276 : Wiltberger's case, ante, p. iJ9 ; Schnier's case, ante, p. 285.] The facts are stated in the opinion of the Court. McFerran, for appellant; James Harlan, Attorney- General, for the Commonwealth. a The instruction should rather have been that, if in the judgment of a reasonable man, placed in his situation, he could have safely retreated, etc., the killing is not excusable. See the opinion.— Eds. OPmiON — THE l^ACTS STATED. 299 Stites, J., delivered the opinion of the Court: This appeal is prosecuted by the appellant from the judgment of the Circuit Court, sentencing him to two years confinement in the penitentiary, for killing one Ii'eland The only important questions in the record arise upon the instructions given to the jury by the Circuit Court, and the propriety of its refusal to allow others asked for by the accused; and in determining these points, it becomes necessary to recite, briefly, the sub- stance of the testimony before the jury. The homicide occurred in a village in Grayson county,, in August, 1854, and was the result of an affray, origi- nating in a quarrel about a game of marbles. The proof conduces to show, that a number of persons had assembled near a grocery in the village, and were engaged, or some of them, in playing marbles. A bet of ten cents was made upon the game, and after it was finished, an enquiry arose as to who had the stakes. Meredith accused a bystander of having the money, who denied it, and caUed Meredith a liar, to which the former replied, he was joking; then Ireland, the de- ceased, said to Meredith, that language was too harsh for him to use ; to which Meredith replied, " K anybody took it up they might help themselves." It was then proposed that all should be searched to see who had the stakes, but to this Meredith refused to submit. He then left the crowd and proceeded to a house standing near, but upon the request of the bystander, whom he had before accused of having the stakes, came back, and when near the crowd, said, "Whoever accused me of having the stakes told a damned lie." Ireland, the deceased, then got up and said they all accused him of it, and immediately commenced throwing stones at Meredith, who backed ofi" from the crowd, retired a short distance and returned, saying to Ireland, he would see him another day. Ireland's friends then persuaded him to go out and fight Meredith, saying he should have a fair fight. He, then, and a number of his friends, pulled 300 MEREDITH V. COMMONWEALTH. off their coats, and "rolled up their sleeves," preparing for the fight, and " then walked off to one side," picked up a rock and threw it at Meredith. The " crowd stand- ing "by, commenced hallooing to Ireland to stone him," " kill him," "give it to him," and he continued to throw stones at him until Meredith retreated about seventy-five yards, occasionally throwing stones back at Ireland. Meredith continued to retreat from the ground until he reached his brother's house, about two hundred yards from the crowd and the grocery. He went into the house, and was soon seen coming out with a gun, carry- ing it in one hand by his side, and up the street towards the crowd. Ireland, who had returned from pursuing Meredith, was immediately informed that the latter had a gun, and was told to get a gun from Vinson, a bystander, who had one present. He at once stepped to Vinson, took his gun, cocked it, started out into the street in front of Meredith, holding the muzzle elevated ; when he reached the middle of the street he stopped, still holding the gun with both hands, pointing down the street towards Meredith. Meredith stepped to one side of the street, immediately raised his gun and fired, and Ireland fell. Ireland's gun and Meredith's were fired simultane- ously. The report sounded as though there was but one gun; and Ireland, as some of the witnesses say, was taking a hip-rest at Meredith, when the latter raised his gVLD. and shot. Upon these facts, or evidence conducing to establish them, the appellant moved a number of instructions, which were all refused, and instead thereof, the Court gave instructions, numbered from one to nine, to aU of which appellant excepted, as he did to the refusal to give those he had asked for. We perceive no serious objection to the instructions given by the Court, except No. 2. This conflicts with No. 5, and does not, in our opinion, correctly lay down the law of the case. No. 2, is as follows: "If the jurj" believe, from the evidence, that the defendant killed APPEAEANCES OF DANGER — EETKEATING. 301 Ireland in self-defence, they ought to find him not guilty ; and if Ireland assaulted the defendant, and he had reasonable grounds to believe he was in danger of sustaining great bodily harm, or the loss of his life from such assault, he might resist such assault ; and, if neces- sary to protect his life or person from^great bodily harm, he might kill Ireland, if he had no safe means of escap- ing. But if the defendant could have safely retreated from the danger, and by that means saved his life and person, he is not excusable for the killing of Ireland." The qualifications in the latter part of this instruction, excusing the homicide only upon the ground that the defendant could not have safely retreated, and thereby have avoided the danger to himself, however imminent it may have been, or he may have reasonably supposed it to be, virtually deprived him of a reasonable exercise of his own judgment, in determining what was necessary to be done for the protection of his person or life — a right which the law confers on every man, but which must be exercised at his peril, and subject to the re- vision of his peers. By this instruction the jury are substantially in- formed, that although the accused may, from the acts of Ireland — his sudden taking of the gun from Vinson, stepping out into the street with it in both hands, pre- senting it directly at him, and other attendant circum- stances, have had reasonable grounds to believe, and did believe, that he would immediately kill him, or inflict great bodily harm by shooting, and although he may have had reasonable grounds to believe, and did believe, that such injury to himself could only be avoided by shooting Ireland ; and that there was no safe escape from the threatened danger, still, if he could have safely retreated and escaped the danger, the killing was inex- cusable. He is thus allowed no opportunity of judging for himself as to the possibility of escape from the danger, and although he may have acted as any rational person in view of all the facts would have done, still, if he " could have safely retreated, and thereby saved his 302 MEREDITH V. COMMONWEALTH. life and person from danger," lie is not to be excused. The law allows in defence of a man's person or prop- erty, such, means as are necessary. In the selection and use of the means, he must, of necessity, exercise his own judgment. It is done at his peril ; and if he goes be- yond what is necessary to accomplish the object, and thus violates the law, he must abide the consequences. In the exercise of this judgment, he must act rationally ; this is required, and nothing less will suffice. In Rapp's case," 14 B. Monroe, 622, which was an in- •dictment for malicious shooting with intent to kill, and where the defence was imminent danger of great bodily harm from his antagonist, this Court said that " even if Rowland did not, in fact, intend to proceed immediately to cut off Rapp's ears, or otherwise to use his knife in inflicting bodily harm upon him, still, if from his offen- sive language, his movements, his threats, his attitude and proximity, and from the fact that he had called Rapp into his store, and from all other circumstances developed by the evidence as existing at the time, and which may bear upon the question of intention, the jury should be of opinion that Rapp did believe, and had reasonable ground to believe, that Rowland intended to proceed immediately to the infliction of bodily harm upon him with the knife in his hand, and that he would do so, unless prevented by such act of self-defence as was then in the power of Rapp, then the shooting of Rapp was excusable on the ground of self-defence and apparent necessity." In Shorter v. The People," 2 Comstock, 197, as stated in Wharton's Crim. Law, 466, it was said by Beonson, J., that "when one who is without fault himself, is at- tacked by another in such a manner^ or under such circumstances, as to furnish reasonable ground for ap- prehending a design to take away his life, or do him some great bodily harm, and there is reasonable ground for believing the danger imminent, that such design will be accomplished, I think he may safely act upon appear- ^Ante, last case. •'Ante, p. 250. APPEARANCES OF DANGEE— RETKEATING. 303 ances, and kill the assailant, if that be necessary to avoid the apprehended danger, and the killing will be justifiable, though it may afterwards turn out thab the appearances were false, and there was, in fact, neither design to do him serious injury, nor danger that it would be done. He must decide at his own peril, upon the force of the circumstances in which he is placed; for that is a matter which will be subject to judicial review. But he will not act at the peril of making that guilt, if appearances prove false, which would be innocence had they proved true." So here, if Meredith, having been assaulted, retreated to a place of safety, and procured a gun for his self- defence, appeared again on the street, going with a law- ful purpose, and not for the purpose or with the intent of renewing the fight, and while thus on the street, Ireland appeared with his gun presented towards him, in a menacing attitude, and within shooting distance, and from these and other attending circumstances, then occurring, Meredith had reasonable grounds to believe, and did believe, that he was in imminent danger of great bodily harm, or loss of life from Ireland, and that the latter was then about to take his life, or inflict such bodily harm, and could only be prevented by his using such means of defence as were then in his, Meredith's, power, then the shooting by the latter was excusable on the ground of self-defence and apparent necessity. Whether there was, in point of fact, an actual neces- sity for the resort to the means used by Meredith, was a question to be decided by him at the time ; and although he may have erred in his judgment as to the existence of such necessity, still, if from all the attending facts and circumstances, he in good faith believed, and had rea- sonable grounds for believing, that his only .safety was in using the means then in his power, to prevent Ireland from killing him, or infliqting great bodily harm, the use of such means by him was excusable. Whether such reasonable grounds for this belief, and the belief existed, was for the jury to determine. 304 DYSON V. THE STATE. The instructions asked for by appellant were properly- refused, and we perceive no substantial objection to the other instructions allowed; but for the error in the second instruction, as indicated, the judgment is errone- ous. It is therefore considered, that said judgment be re- ■oersed, and cause remanded for a new trial, and other proceedings consistent with this opini®n: which is ordered to be certified to said Court. Judgment reversed. DYSON V. THE STATE. [26 Miss., 362.] High Court of Error' a/nd Appeals of Mississippi^ Decemier Special Term, 1853. CoTESWORTH P. Smith, GMef Justice. Epheaim S. Fishee, ) t,,^„„„ Alexander H. Handy, [ -'^^Q^^- Killing in self-defence — ^Bakb fear — Overt act — ^Reasonable pear. 1. At common law, a bare fear of danger of death or great bodily harm, unaccompanied by any overt act, indicating a present intention to kiU or injure, would not warrant a party in killing another ; but there must have been some actual danger at the time. [1 East, P. C, 272 ; 1 Hale P. C, 52. And so by statute in several States : R. S. of Ark., 1858, p. 332, \ 24: ; Comp. Laws, Cal., 1853, p. 642, ? 30 ; Gross' lU. Stat., 1869, p. 172, ^ 14 ; Gen. Laws Dakota, 1862, p. 161, §29.] 2. The Mississippi statute renders homicide justifiable " when committed by any person in the lawful defence of such person, or of his or her hus- band, wife, parent, child, master, mistress, or servant, when there shall be a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of sucli design being accomplished." Hutch. Code, 957, ^ 3. 3. The only modification of the common law, made by this statute, con- sists in the justification extended to the accused, " when there shall be reasonable ground to apprehend a design to commit a felony, or to do some great personal injury," instead of the old rule, " actual danger at the time." STATEMENT OF THE FACTS 305 Held, that it was not the mtention of the Legislature to dispense with the necessity of showing some overt act indicating a present intention to kill, or to do some great personal injury, and that the danger was imminent at the time of killi ng. It was intended to alter the rule of the common law, so far as to justify a party, acting conscientiously upon reasonable fears, founded upon present overt acts to all appearances hostile, although there was really no actual danger at the time. [Ace. Wesley's case, post ; Evans' case, joosi; Head's case, ^josi. And see as to overt act, 1 Hale P. C, 52; Kippy's case, ;)os<; Williams' case, ^osf; Robert Jaclison's case, jDosi!; Lan- der's case, ^losi ; Cotton's case, joosi; Harrison's case ; areie, p. 73 ; Scott's case, ante, p. 163. And that an overt act is not necessary under certain cir- cumstances, PhiUp's case, joosi; Carico's case, ^osi; Young's case, past. And see Grainger's case, ante, p. 238, and note.] * 4. The foUomng principles declared by the Circuit Judge in charging the jury, are approved, and declared to be sound and salutary rules for the protection of society : a. In order to justify kOling, there must be some overt act indicating a present intention to kill the party, or to do him some great injury. h. The danger of such design being accomplished must be imminent, that is to say, immediate, pressing, and unavoidable at the time of the kill- ing. c. Mere fears of a design to commit a felony, or do some great personal injury to the party, though honestly entertained, unaccompanied by any overt act indicating a design immediately to commit the felony or do the in- jury, will not justify the killing. James H. Dyson was indicted in the Circuit Court of Panola county, for killing Samuel H. ]S"elms5 and was found guilty of manslaughter in the first degree, and sen-tenced to fifteen years imprisonment in the State penitentiary. It was proven that Nelms was riding along the road leading from the town of Panola to his house. Jennings Estell, a boy ahout sixteen years of age, was the only person in company with him. When within a mile of his own house, the accused, Dyson, who had previously taken his position about fifteen yards from the road, in a sink hole in a ravine, shot Nelms with a gun as he passed, who fell from his horse. Dyson then walked up to where Nelms -^as lying, badly wounded, and said to Nelms, " You were goiug to kill." Kelms said, "I was not." Dyson then said, " You tried to get Jones to kill me." Nelms answered, he "had not." Dyson then presented his gun to Nelms' head, who turned as he lay upon the ground, and said "Good- 306 DYSOisr V. the state. bye, Jennings." The gun fired and killed Nelms dead immediately, and the muzzle of the gun was so near him that the powder burnt his coat and shirt, and blistered his skin. The defendant offered in justification of this act of killing, threats made by Nelms against him, Dyson. The proof was in substance, that John E,. Dickens, a few days before the killing, heard Dyson say to Nelms, "You made a difficulty with me, and I don't want a difficulty with you." Nelms replied, " God damn you, I don't want to have any difficulty with you either," and added, "Mr. Dyson, you have treated me damned badly." W. B. Killebrue says, as Nelms and he were sitting in the court-house yard, Dyson came in sight ; Nelms looked up and said, " Here comes the damned son of a bitch now. I Avill have him in less than ten days, where he won't bother me or any one else. I have got my triggers set for him." It looked to him as if Dyson might have heard what Nelms said as he passed on. ' Another witness says he heard the above, and told Dyson of it ; says he heard Nelms say, if Jones would attack Dyson, and Dyson denied his charges, he Nelms, would settle it. This, also, witness told Dyson. It was also in proof, that Nelms told witness, that Turner had told him that he was in danger from Dyson, and Nelms said he would give Dyson a fair fight. Thomas B. Turner says, Nelms told him Dyson was a damned rascal, and he would give Dyson a fair fight. James M. Jones proved that Nelms never urged him to get into a difficulty with Dyson. Anthony Foster and John K. Dickens and some others, proved that Nelms was a man of violent character. The opinion of the Court contains all the instructions commented on by the Court. The Court below having refused to grant a motion for a new trial, Dyson prayed for a writ of error to this Court. THREATS — OVERT ACT — MISSISSIPPI STATUTE. 307 Watso7i and Estelle, for plaintiff in error; D. C. ^Olenn^ Attorney-General, for the State. Handy, J., delivered the opinion of the Court: 3. Again, it is urged that the Court erred in granting the 7th instruction asked in behalf of the State, and in qualifying the 2d instruction asked in behalf of the defendant. The 7th instruction is as follows : " 7th. That a bare fear that a man's life is in danger from the violence of another, however well founded and whatever may be the character of the man feared, as that such man lies in wait to take away the life of the party, unaccompanied by any overt act indicating an intention immediately to kill such party, or to do him some great personal injury, will not warrant him in kill- ing that other by way of precaution, if there is no actual danger at the time of killing ; that both the design to- commit a felony, or to do such person some great per- sonal injury, and the imminency of the danger of such ■design being carried into execution, must both exist to warrant the man thus in fear of his life to kill, and that this imminency of danger means danger at the time of the killing." The explanation of defendant's 2d charge is as follows : " In explanation of defendant's 2d charge, that al- though a party is not bound to retreat in some cases, and may pursue his adversary until he is out of danger ; yet, this only applies where there is immediate danger of a felony, or some violence being committed by the party killed." Without an extended recital of the evidence on the trial, it is sufficient for the present purpose to say, that the testimony on the part of the prosecution character- ized the killing of which the defendant stood charged, as premeditated, malicious, and aggravated to an extra- ordinary degree, the defendant lying in wait and shoot- ing the deceased as he passed unsuspectingly along the public highway. The only evidence in justification or 308 DYSON V. THE STATE. mitigation of the deed consists of the proof that the de- ceased had had a grudge against defendant, had made threats against his life, was a violent and desperate man, and that defendant's life was in danger at his hands.* It therefore becomes necessary for the Court to declare the law arising upon the facts alleged to con- stitute a justification or extenuation of this deed, and I see nothing in the rulings of the Court in doing so, in violation of law or sound policy. By the rules of the common law, in order to justify the killing, a bare fear of death or great bodily harm, unaccompanied by any overt act indicating a present intention to kill or injure, would not warrant a party in killing another. There must have been actual danger at the time. 1 East Cr. Law, 271, 272. Our laws render the homicide justifiable, "when committed by any person in the lawful defence of such person, or of his or her husband, wife, parent, child, master, mistress or servant, when there shall be a reas- onable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished." Hutch. Code, 957, § 3. The only modification of the common law made by this statute, consists in the justification extended to the accused, " when there shall be reasonable ground to ap- prehend a design to commit a felony or to do some great personal injury," instead of the old rule, requiring " actual danger at the time." But it was not the inten- tion of the legislature to dispense with the necessity of showing some overt act, indicating a present intention to kill or do some great personal injury, and that the danger thus indicated was imminent at the time of kill- ing. It was intended to alter the rule of the common law so far as to justify a party acting conscientiously upon reasonable fears, founded upon present overt acts to all appearances hostile, although there was really ]io actual danger. If this were not so, what is to constitute "For a similar state of facts, see Lander's case, post EEA80NABLE GROUNDS OF APPEEHENSIOlSr. 1-^09 " reasonable grounds of apprehension ? " By what limit is this dangerous rule to be defined? Must this reason- able ground of apprehension be founded upon a present and immediate emergency, unavoidable to the party, or may it consist of mere fear, which, though reasonable, all danger 'may be avoided? Are we to refer the reason- ableness of the grounds of apprehension to the judgment or feelings of the party implicated, and not to a just and dispassionate standard? The peace of society and the security of life require that " the reasonable grounds of apprehension," as justifying homicide, should be limited as strictly as possible to the right of self-defence, and this seems to have been properly regarded by the Court below, in the instructions under consideration. In substance, the entire instructions in the case, as given by the Court, contain the following principles : First. That in order to justify killing, there must be some overt act indicating a present intention to kill the party, or to do him some great personal injury. Second. That the danger of such design being accom- plished must be imminent, that is to say, immediate, pressing, and unavoidable at the time of killing. Third. That mere fears of a design to commit a felony or to do some great personal injury to the party, though honestly entertained, unaccompanied by any overt act indicating a design immediately to commit the felony or do the injury, will not justify the killing. And this exposition of the law meets my approbation as the law of this case, and the sound and salutary rule for the protection of society. .^** ** ** ** *** Judgment affirmed. NoTi!.— The learned Judge in this case, has certainly misconceived the common law rule as it is generally understood in this country, and proba- bly as it is understood in England. The Mississippi statute, above quoted, is simply in affirmance of the rule indicated in Levett's case, Cro. Car., 538, and in Meade's case, post ; and declared in Selfridge's case, ante. p. IS ; Shorter's case, ante, p. 256; Logue's case, ante, p. 269 ; and many others. ,See note to Shorter's case, ante, p. 256. 310 COTTON V. THE STATE. COTTON" V. THE STATE. [31 Miss., 504. J HigTi Court of Errors and Appeals of Mississippi, Octo- ber Term, 1866. CoTESwoRTH P. SMITH, CMef JusUce. Epheaim S. Fishee, ) 7,,^„.„ Alexander H. Handy, ] -^^^9^^- Homicide upon appearances op danger — Imminence of the danger — Arming with deadly weapon and seeking affray — Necessity of KILLING, a question FOR JURY. 1. Under the Mississippi Statute, Hutcli. Code, 957, reasonable ground' to apprehend a design to commit a felony or to do some great personal in- jury, and imminent danger of such design being accomplished, must both co-exist at the same time to make a killing justifiable self-defence. [See note to Shorter's case, ante, p. 268.] 2. What is reasonable ground to apprehend such design must always be as much, or indeed more, a question of fact for the jury, than a question of law for Court. [See Harris' case, anie, p. 276 ; and citations.] 3. As part of the means of arriving at the truth of (his fact, the peculiai- character of the hostile partj' is as much a fact for the consideration of the jury as any other fact in issue ; and the jury must determine from the hos- tile demonstrations whether there was such danger of this party'' s executing his felonious design, as to justify the party in killing. [See Tackett's case, post, and those following it.] 4. Although there may have been no actual danger at that very moment of time, the question in such a case is, whether by delay, the danger is not increased. 5. The only general rule which a Court can with any safety lay dowii' on this subject is, that whether the danger must be immediate and unavoid- able at the time of the killing to make the killing justifiable self-defence, must depend on the facts and circumstances of each particular case ; and: of these the Jury must be the judges. [Ace. Kobert Jackson's case, post;' Patten's case, post.l 6. It was erroneous to instruct the jury that if the accused was armed with a deadly weapon, and sought and brought about the difficulty with the deceased, and killed the deceased in the difficulty with such weapon, he is guilty of murder ; because the fact of a man's being armed with a deadly weapon, though he may be the aggressor in a difficulty, amounts to noth- ing, unless he provided himself with the weapon, with a ^iew to using it,, if necessary, in overcoming his adversary. [See Head.'s case, post,. STATEMENT OF THE FACTS. 311 7. In such a case, the party having commencetl the difHculty, he can only use his weapon in self-defence or take the life of the opposite party, when the danger is immediate and impending or unavoidable. [And he will. not be excused in. taking life, until he has used every honest endeavor to withdraw from the combat. Stoffer's case, ante, p. 213, and note ; Riley and Stewart's case, ante, p. 155.] Error from the Circuit Court of Yazoo county, Hon. E. (jT. Henet, J., presiding. John Cotton, the plaintiflFin error, was indicted in the Circuit Court of Yazoo county for the murder of one John Smith. At the February term, A. D. 1854, of said Court, he was tried and convicted of murder, and sen- tence of death pronounced against him, which judgment the High Court of Errors and Appeals, on writ of error, reversed, and awarded the prisoner a new trial. At the November term, A. D., 1855, of said Court, the prisoner was again tried and convicted, and judgment of death pronounced upon him. From this last judgment, he prosecutes this writ of error. The evidence for the State was in substance as fol- lows : Greenberry Anderson stated that in July, A. D., 1852, he, with several others, was in the store of Frawley, in Yazoo City, in company with John Smith, the de- ceased. That the prisoner came in the room and he and Smith exchanged salutations. Prisoner then told Smith that he wanted to speak with him, to which Smith re- plied " certainly." Prisoner then w^,lked out and Smith followed; both then turned down the street, and went about sixteen feet from the door of the store-room of Frawley. Witness soon afterwards heard Smith say, " I did not say it." Cotton replied " that he believed Smith was a liar, and did say it, and that he could whip him.'' Smith then said, "If you think so, 'pitch in.'" These words were spoken in an angry manner, and witness thinking there was about to be a fight, went out into the street, and immediately heard a blow struck by one of the parties, but he could not tell which one of them struck it. Smith was standing on the sidewalk with back towards the houses, and the prisoner was walking backwards across the street," in a direction from Smith. 312 COTTON T-. THE STATE. Witness then approached to within a few feet of the parties, on a line which would have led between them ; he then stopped; he then heard the prisoner say sev- eral times, "draw it." "Witness , looked at Smith "but did not see him draw anything." While prisoner was saying " di-aw it," witness saw him pull a pistol out of his pocket and shoot Smith. This_was about dark, and in Yazoo county, where Smith died on the same night. Witness went up to Smith after he was shot, and carried him across the street and laid him down in a house ; he saw no weapons upon him. Smith had blood in his mouth, which looked as if he had been struck. Upon cross-examination, witness stated that it was very dark that night ; there was no moon, and it was a little cloudy ; that it was so dark that he could not distin- guish Cotton, except by his voice ; that he could not see what Cotton was drawing from his pocket, until the pistol was fired ; that he was nearer to Cotton than Smith ; that Smith was standing with his left side towards wit- ness, and that he could not see his right hand, and did not know what he was doing with it ; that Cotton was going backwards with his face towards Smith, from the time witness first saw him, until he fired ; that it was not more than two or three minutes from the time Cotton and Smith left the store until the pistol was fired. Dr. Leake, for the State, described the character of the wound, and stated that it caused death. This was all the evidence, the prisoner ofiering none. The second instruction given on behalf of the State was as follows : That if the jury believe from the evidence, that the accused killed Smith, the deceased, and no accompany- ing circumstances appear in the evidence to excuse the act, the law presumes the killing was done maliciously, and that they will find him guilty of murder. The other instructions on behalf of the State which are necessary to be noticed, are fully set out in the opin- ion of the Court. The first, second and third instructions on behalf of INSTEUCTI0N8 TO THE JTJEY. 313 the prisoner, with, the modifications of the Court, are as follows : 1. That unless the jury believe from the evidence that the prisoner killed John Smith from a premeditated de- sign, formed beforehand to effect his death, or the death of some other person, they cannot find, him guilty of murder. The Court refused to give this instruction as asked, but added to it these words, " but if it was premeditated, the law does not regard how short beforehand the time was ; " and with this addition, gave it. 2. That to kill a human being with premeditated de- sign, the mind must have acted in regard to the killing before the killing was committed ; and the mind must have settled down resolved and determined to kill and murder ; and that the killing was done with a deliberate mind and formed design of so doing. Which the Court refused to give as asked, but added thereto the same modification as the one to the first in- struction, and then gave it. 3. That if the jury believe that Cotton killed Smith on a sudden quarrel, vrithout a premeditated and formed design so to do, they must not find him guilty of murder. To which the Court added, "unless he sought the quarrel, and used a deadly weapon ; " and with this ad- dition, gave it. To all which modifications and additions, so made by the Court, the prisoner excepted. Other instructions were asked by the prisoner, and given by the Court, but it is not necessary to set them out W. E. PugJi, for the prisoner ; D. O. Olenn. Attorney- 'General, for the State. FiSHEK, J., delivered the opinion of the Court : ******** Next as to the instructions of the Court. It is said that the second instruction limited the investigation of the jury to the crime of murder, or to the defence of ex- cusable homicide and that they were not permitted to 314 COTTON V. THE STATE. take into consideration the defence of manslaughter,, which, so far as the crime of murder is concerned, may be regarded as a defence to the prisoner. The instruc- tion was, no doubt, intended to leave the jury free to investigate according to the testimony, the degree of crime of which the accused, if guilty at all, was really guilty ; but it must be admitted at the same time, that the- instruction, if taken strictly according to its language,, might warrant the construction given to it by counsel, and might have confined the jury to an investigation toO' limited. The jury, no doubt, without the instruction,, would have clearly understood their duty ; and the ques- tion is, whether it tended to cramp their action. In an- swering this question, we think it barely possible that the- instruction could have produced such an effect. Our con- clusion upon this point, therefore, is, that while the instruc- tion was wholly unnecessary, and while we are of opinion that it did not in the least influence the jury, and we would not therefore reverse the judgment if this were the only error ; yet the safer rule, unquestionably is, that whisre- the Court undertakes to give even unnecessary instruc- tions in this class of cases, the instructions should not be framed so as, even by remote construction, to limit the free action of the jury in considering the question before them. It is next said that the Court erred in giving the fourth instruction, which is as follows: "That to render the homicide justifiable by law on the ground of self- defence, it must appear from the evidence that Cotton, the deceased, acted conscientiously upon reasonable fear,, founded on present overt acts by Smith, to all appear- ances hostile, threatening a felony or some great person- al injury ; and the danger of such felony being accom- plished, or great personal injury inflicted, to all appear- ances must be immediate, pending and unavoidable at the time of the killing, though there really might be no actual danger." The party interposing the plea of self-defence, on a trial for murder, must be understood as undertaking to IMMINENCE OF DANGER— MISSISSIPPI STATUTE. 315 show that in the perpetration of the deed he acted under a necessity, either actual or apparent, forced upon him by the party kUled ; for if such were not the case, his defence can avail him nothing, or certainly not further than to mitigate the crime. The very defence itself pre- supposes danger to the party's life or person, except in cases where he may act in defence of the life and person of another. "When he assumes the defence, he at the same time undertakes to establish the danger, or what is the same thing, what appeared to be the danger. The question presented by this instruction is, in what man- ner must the danger exist, to justify the party in tak- ing the life of his adversary ? The law says that there must be reasonable ground to apprehend a design to commit a felony, or do some great personal injury, and imminent danger of such design being accomplished. Hutch. Code, 957. Reasonable ground to apprehend the design, and imminent danger of its accomplishment, must both exist at the same time. What is a reasonable ground to apprehend such design, must always be as much, or, indeed, more a question of fact for the jury, than a question of law for the Court ; for while it is true in regard to inanimate objects, where the fact is the same, and law must also be the same ; this is not true, even as a general rule, in this class of cases. The hostile demonstrations of two men may be in every respect the same ; yet the party threatened may be placed in imminent peril from the one, and feel not the slightest apprehension from the other. A design to commit a felony, or to do some great personal injury, may be apprehended in the one case, and it may have no existence whatever in the other. One may excite fear and the greatest apprehensions of danger, while the same demonstrations on the part of another, may only excite mirth and ridicule. The question is in both cases the same — was there imminent danger to life or to the person of the party threatened ? As part of the means of arriving at the truth of this fact, the peculiar character of the hostile party is as much a fact for the 316 COTTON V. THE STATE. consideration of the jury as any other fact in issue ; and the jury must determine from the hostile demonstrations, whether there was such danger of this party^s executing his felonious design, as to justify the party killing. In doing so, though there may have been no actual danger from the deceased at that very moment of time, the question in such case is, whether by the delay the dan- ger is not increased. As, for instance, suppose the party threatened is in the upper story of a building, and the ground to apprehend the design to take his life, or to do some great personal injury, is there for the first time discovered, and his adversary leaves for the purpose of arming himself, and taking a favorable position at the foot of the stairs, with the known and avowed purpose of committing the deed while the party is descending to make his way out of the building, would a few moments, or even ten minutes make any difference in such a case ?" The very act of allowing the hostile party to es- cape might prove fatal to the party threatened, and de- prive him of all means of self-defence. It may be said that this is putting an extreme case. I grant it. It nev- ertheless serves the purpose for which it was intended, of showing the impropriety of laying down a rule, within the operation of which the Court declares a person, with- out regard to the peculiar circumstances of the case, must bring his defence in order to be successful. Wheth- er the danger must be immediate or unavoidable at the time of the killing to justify the party in the act, must depend upon the facts and circumstances of the case. This is the only general rule which a Court can with any safety lay down upon the subject. The jury must, of necessity, be the judges, whether »It was the fortune of the learned Judge who delivered the opinion hi this case, afterwards to sit as circuit judge and try a case, where, accor- ding to the theory of the defence, the facts were somewhat similar to the hypothetical case above put. We allude to Evans' case, post. In that case (according to the claim of the defence) the deceased was when shot, in thp act of running into the house to get a gun for the purpose of engaging in mortal combat with the accused. The learned Judge's charge in that case seems to be quite a departure from his views in this case. SEEKING APFKAY, "WITH DEADLY WEAPON. 317 reasonaWe ground to apprehend the design contem- plated by the statute existed, and whether there was im- minent danger, from all appearances, that such design would be executed. In arriving at their conclusion on this subject, they are expected to avail themselves of such knowledge as they possess, in regard to human transactions, from their intercourse with society. The right of self-defence is not derived from the law. All the law attempts to do on the subj ect is, to prescribe the rules of caution and prudence to be observed by persons before exercising the right, by ascertaining whether the danger exists, and whether it is imminent ; and, as be- fore remarked, whether it must be immediate and im- pending at the very time of killing, will depend upon the facts and circumstances surrounding the transaction. But it is not necessary to pursue this subject further; and we proceed next to notice the seventh instruction, as follows : " That if the accused was armed with a dead- ly weapon,- and sought and brought about the difficulty with the deceased, and killed the deceased in the diffi- culty with such weapon, he is guilty of murder." The fact of a man being armed with a deadly weapon, though he may be the aggressor in a difficulty, amounts to noth- ing, unless he provided himself vnth the weapon, with a view to using it, if necessary, in overcoming his adver- sary. It may be a man's habit, as it unquestionably is his right, under the law of this State, to carry a deadly weapon ; and whether he is permitted to use it or not, must depend upon the nature of the difficulty in which he may be involved. A man may begin a difficulty in- tending to inflict no violence, or next to none, on his an- tagonist, and may be so closely pressed as to be forced to use his weapon in self-defence. The rule is thus stated by Blackstone : " If the slayer has not begun the fight, or, having begun, endeavors to decline any further strug- gle, and, afterwards being closely pressed by his antag- onist, kills him to avoid his own destruction, this is hom- icide, excusable by self-defence." 4 Bla. Com., 184. In such case, the party having commenced the difficulty, he 318 COTTON V. THE STATE. can only use his weapon in self-defence or take the life of the other party, when the danger is immediate or im- pending or unavoidable. The first and second instructions asked on behalf of the prisoner, simply announce as a legal proposition, that to make out the crime of murder, it must appear that the prisoner " acted from a premeditated design, formed beforehand, to effect the death of the deceased." These instructions ought to have been given as asked, as they were entirely free from objection. The Court ma,y modify an instruction to make it correct, but if it be al- ready correct, it ought to be given as asked by counsel. The qualification by the Court, made to the third in- struction is clearly erroneous. The instruction is, in substance, that if Cotton killed Smith, not in pursuance of a premeditated design, but on a sudden quarrel, the crime of murder is not made out. The modification made is " unless Cotton sought the quarrel, and used a deadly weapon." The question was, whether malice prompted the accused to kill. He interposed as his defence, by the instruction, " no design to Mil, and that the killing was on a sudden quarrel." The Court say to him that this is no defence, not even to mitigate the crime, if he sought the quarrel and used a deadly weapon. Now, he may have done both without being guilty of murder ; for, he may not by seeking the quarrel, have intended the slightest personal injury to the deceased, and he may, from sud- den provocation, have used his weapon, or he may have been forced to do so in self-defence, although he was the aggressor in the quarrel. The modification amounts to this, that, although there must be a formed design to take life, to constitute mur- der ; yet such design is not necessary where the party killing seeks the quarrel and uses a deadly weapon. There must be proof of malice in some form ; the seek- ing of the quarrel and the using of the deadly weapon, may be evidence for this purpose. But this is what the defendant below was endeavoring to meet, by showing no design to take life, because the killing occurred on a SYLLABUS. 319 sudden quarrel. The modification virtually declares this to be no defence, if the party sought the quarre^. ********* Judgiwtat reversed, venire de novo awarded, and cause remanded. WESLEY V. THE STATE. [37 Miss., 327.] High Court, of Errors and Appeals of Mississippi, Octoher Term, 1859. CoTESWOETH P. Smith, CMcf JusUce. Alexander H. Handy, ) .„„„„.-„^„ Tii^fiet^'^ William L. Harris, j ^^^^ciate Justices. Justifiable homicide — ^Imminence op the danger — A bake fear not SUFFICIENT— Killing of overseer by slave — Character of over- seer FOR cruelty not ADMISSIBLE — CHARGING UPON WEIGHT OF EVI- DENCE NO GROUND OF REVERSAL, WHEN. 1. In trials for homicide, evidence of the character for violence of the person slain is not admissible, except when drawn into res gestas by testi- mony tending to show that the killing was done under an apprehension on the part of the defendant of immediate death, [or great bodUy harm], at the hands of the deceased. [See Tackett's case, post, and those following it.] 2. The rules which, in trials for homicide, exclude evidence of the gen- eral character of the deceased, apply with greater force when it is sought to introduce evidence in regard to the specLfic acts of the deceased, or to prove the general tenor of his conduct for a specified time, and in relation to par- ticular subjects. 3. A slave cannot show, in defence of a homicide by him of his overseer, the general management of the deceased on the plantation, with reference to violence and cruelty, or specilic acts of unmerciful cruelty committed by him on other slaves, while acting as such overseer. [See as to character of deceased, Tackett's case, post, and those following it.] 4. To make a homicide justifiable on the ground of self-defence, the danger must be either actual, present and urgent, or the slayer must have reasonable ground to apprehend a design on the part of the deceased, to •commit a felony, or to do him some great iJodUy harm, and that there is 320 " WESLEY V. THE STATE. imminent danger of such design being accomplished; and hence the mere fear, apprehension or beUef, however sincerely entertained by one person, that another designs to talie his life, wiU not justify the former in taking the life of the latter. [Compare Shorter's case, ante, p. 256, and note, and Sullivan's case, ante, p. 65.] 5. A man may have a lively apprehension that his life is in danger, and believe that the grounds of his apprehension are just and reasonable ; but if he act on them, and take the life of a human being, he does it at his peril. He is not the final judge, whatever his apprehension or belief may have been, of the reasonableness of the grounds upon which he acted. That is a question which the jury alone are to determine. [Ace. Evans' case, joosi; Harris' case, ante, p. 276, and cases cited.] 6. The following charge is not liable to the objection that it instructs the jury on the weight of evidence, viz. : " If a party, through mere fear of his life, there being no real or apparent danger, kQl another, it is not justifia- ble." [See as to the principle stated, note to Grainger's case, ante, p. 242.] 7. It is the peculiar province and exclusive right of the jury, to weigh the evidence and determine the facts of a case submitted to their considera- tion ; and it is error for the Court to instruct them upon the weight of evi- dence, or to assume in the charges given that any material fact is proven ; but this Com-t will not reverse a judgment for a violation of this rule, if it appear that the fact assumed as proven by this Court, was so clearly estab- Ushed by the evidence, that there could be no room for the jury to doubt on that subject. The prisoner, a slave, was indicted for tlie murder of William G. Ford. He pleaded not guilty and tlie cause was submitted to a jury On the trial, Mrs. Ford, the widow of the deceasea, proved that her husband had been overseeing for Walker, the owner of the prisoner, for about one month previous to his death ; that about sunrise on Sunday morning, the 1st of August, A. D., 1858, the deceased brought a negro man (who is admitted to be the pris- oner) to the door of the smoke-house, and called for the key, and for a strap with which he usually tied negroes. These were brought to him. He then tied the prisoner and pat him in the smoke-house, and locked the door, and then went into the dwelling-house. He did not ap- pear angry or excited. In a very short time, not exceed- ing five minutes, witness wanted to get out some meat for breakfast, and asked deceased to go with her to the smoke-house, which he did. Whilst witness was whet- ting a knife at the corner of the smoke-house and about STATEMENT OF THE* FACTS. 321 six yards from the door, deceased opened the door, and as it opened, witness heard a noise, and turning around, she heard the deceased fall over some cotton baskets that were near the door. The prisoner sprang so rapidly past her from the smoke-house, that she could not iden- tify him. He immediately ran off. Witness then saw deceased struggling, and ran to him and called for as- sistance. She told some of the negroes to go for a doctor, but they said they did not know where the doctor lived. She then sent her son for the doctor. Deceased was then assisted into the dwelling-house. He had a very bad wound on the right side of his head, and died that day about one o'clock. It was in proof that the prisoner, immediately after he inflicted the blow, ran to his owner's house, about one half mile distant, and not finding his owner at home left, and soon afterwards, being hunted with dogs, he went again to the owner's house. The wound inflicted was proven to be a fracture of fhe skull, and it appeared to be made with a stick, or some such instrument. There is some doubt as to whether the wound was in- flicted by a hexagonal piece of timber, of sufficient size, in the language of one of the witnesses, " to knock a bull down with," or a paddle some three feet long, and of sufficient thickness to inflict death, or a brick-bat. The prisoner, soon after his arrest, stated he did not know with what instrument he struck the blow, but thought it was a piece of timber "like a hoe-helve." It was also in proof for the defence, by three slaves, that just immediately preceding the carrying of the prisoner to the smoke-house, as testified to by Mrs. Ford, the deceased had conceived that the prisoner had not executed properly a command to curry a mule, had become very much enraged, and had beaten with his fist, and kicked the prisoner with great violence, and on starting to the house with him, told the prisoner " that he would know how to curry a mule when he had done with him." The prisoner's character was proven to be that of an 322 W.iSSLET V. THE STATJ; •obedient and submissive slave. The general character of the deceased vras also in evidence. He was proven to be cruel and violent in his treatment of slaves ; and one vritness who had employed Mm as overseer, and had dis- charged him for cruelty to his slaves, stated that his violence to slaves seemed to be a constitutional in- firmity. The exception taken to the rejection of evidence of- fered by the prisoner, is fully set out in the opinion, as weU as the instructions given and refused, which were made the subject of discussion in this Court. The prisoner was convicted, and upon his motion for a new trial being overruled, he excepted, and sued out this writ of error. Sale & Phelan, for the plaintiff in error ; T. J. Whar- ton, Attorney-General, for the State. Smith, Ch. J., delivered the opinion of the Court : The plaintiff in error was indicted and tried for the murder of one WiUiam G. Ford, and convicted. A motion was made in the Court below to set aside the verdict, and for a new trial, which was overruled ; where- upon the defendant excepted, and has brought the cause before us by a writ of error. The bill of exceptions taken to the judgment on the motion for a new trial, contains the evidence in the cause, and presents the grounds of error relied on for a reversal of the judgment. A detailed statement of the evidence is unnecessarj', as it will be quite sufficient to refer to only such parts of it as may be requisite to a proper comprehension of the questions raised by the assignment of errors, and discussed by counsel. 1. The first exception relates to the exclusion of cer- tain evidence offered by the prisoner. The deceased was, at the time of the alleged homicide, the overseer of one John A. Walker, and as such, had under his control and management the accused, who was a slave and the property of the said Walker. The com- mission of the homicide by the prisoner, and the facts OPINION — OHAKACTER DECEASED FOR VIOLENCE. 323 and circumstances immediately" attending the perperra- tion of the deed, are distinctly proved. ' The testimony of Mrs. Ford, the only witness, as it appears from the record, who was present at the killing, shows very clearly that the prisoner when he slew the deceased, was in no present danger either real or apparent ; and that there was not reasonable ground to apprehend that the deceased meditated taking the life of the accused, or designed to do him some great bodily harm, and there was imminent danger of such design being accomplished. On this state of evidence, the prisoner offered to prove the general management of the deceased on the planta- tion where he was the overseer, " with reference to vio- lence and cruelty," and also to prove " specific acts of unmerciful severity," committed by him while acting as such overseer, which had come to the knowledge of the witness subsequently to the killing. This evidence was excluded, and the prisoner excepted. And this ruling of the Court is assigned for error. In the estimation of the law, to murder rae most wicked is as great a crime as to murder the best and most innocent of the human species. Hence, as a general rule, it is held by all the Courts, that on the trial of an indictment for homicide, evidence to prove that the de- ceased was well known and understood as well by the accused as pthers, to be a quarrelsome, vindictive and dangerous man, is inadmissible. When, however, the character of the deceased is involved in the res gestcB, evidence in regard to it may be introduced. As when it is shown that the accused had reasonable ground to ap- prehend immediate danger to his life from the deceased, the character of the deceased in connection with previous threats, etc., may be given in evidence as explanatory of the motives upon the defendant's action. Am. C. L.. 235.» The Courts in North Carolina, in Alabama and Ten- nessee, while acknowledging the general doctrine as above stated, have gone a step farther, and nold, that a See Whiirt. Crim. Law. 6tli etl,, ?'(U1, vol. 1. 324 "WESLEY V. THE STATE. where the homicide has been committed under such cir- cumstances as to create a doubt as to the character of the offence, the general character of the deceased may sometimes be given in evidence. The State v. Tackett," 1 Hawks., 210 ; Wright v. The State, 9 Yerger, 342 ; Quesenberry v. The State," 3 Stew. & Port., 315. As in the case last cited, where it was held that " if the cir- cumstances of the killing were such as to leave any doubt whether the defendant had not been more actu- ated by the principle of self-defence than that of malice, it would be proper to admit any testimony calculated to illustrate to the jury the motive by which he had been actuated." The principle here recognized is m conflict with the generally received doctrine on the subject, which, as we have seen, excludes evidence in regard to the general character of the deceased, except when it is involved in the res gestae. But without asserting that extreme cases might not be presented, in which evidence of the general vindictive, revengeful and dangerous character of the party slain might properly be allowed to go to the jury, as explanatory of the state of defence in which the defendant placed himself, although not strictly a part of the res gestae ; if the question here presented were tested by the doctrine laid down in the cases cited, it seems clear that the Court did not err in ruling out the evidence. For here there is no pretence for the assumption that the homicide was committed under such circumstances as create a doubt as to the character of the offence. And it is clear that the reasons upon which the rule in reference to the admissibility of evidence as to the general charac- ter of the deceased is founded, apply with greater force where it is sought to introduce evidence in regard to spe- cific acts of the deceased, or to prove the general tenor of his conduct for a specified time, and in relation t(^ particular subjects. But the real question involved in the exception is not whether, in prosecution for murder, it is competent, l> Post. Post. KILLING OVERSEER — CHARACTER OE DECEASED. 325 under any circumstances, for the defendant to prove the general revengeful and dangerous character of the deceased. It is whether the general management of slaves, on a plantation, by the deceased, as characterized by violence and cruelty, and whether specific acts of se- verity and cruelty committed by him, while acting in the capacity of an overseer, may be proved as circumstances going to justify a homicide, by a slave, committed upon him while acting as such overseer. Whether considered abstractly, or in reference to the facts immediately connected with the killing in this case, it is manifest that the validity of this position rests upon the doctrine, not heretofore announced in this Court, that in an indictment for a homicide committed by a slave upon his master or overseer, the violent and cruel char- acter of the overseer or master, in the government of his slaves, and specific acts of severity and cruelty commit- ted by such overseer or master, may be considered by the jury in determining the guilt or innocence of the accused, although the killing may be proved to have occurred under circumstances which show that the party charged was at the time in no present danger, real or apparent; and that he had no reasonable ground for apprehending danger to life or limb from the deceased, or that the deceased designed to take his life or do him some great bodily harm, and there was imminent danger of such design being accomplished. In other words, that a slave charged with the murder of his master or overseer, may excuse or justify the deed upon the ground that, being about to be chastised by his master or over- seer, or being apprehensive that he would be punished for some real or imputed delinquency ; from the known violent and cruel character of the deceased in the man- agement of slaves, and from the fact that he had been guilty of particular acts of great cruelty iipon other slaves under his charge, he had good reason to appre- hend, and in fact, did believe that some great bodily harm would be inflicted upon him, or that his life would be taken. 326 WESLEY V. THE STATE. It is scarcely necessary to say that this proposition is utterly untenable. It lays down a rule, which, if recog- nized by the Courts, would produce the most disastrous consequences. If the slave, when he is about to be chas- tised, or has just reason to apprehend that he will be subjected to cruel and unmerited punishment, be in- formed, that in order to escape, he may innocently slay his master or overseer, if he really believes that by the apprehended punishment his own life will be taken or greatly endangered ; and that to make good his defence in a Court of justice, it will be sufficient to prove the general violent and cruel conduct of the deceased in the govern- ment of slaves ; the slave population of the State will be incited to insubordination and murder, and the life of the master exposed to destruction, either through the fears or by the malice of his slaves. But the principle contained in the proposition, when applied to homicides committed by white persons is equally untenable. To make a homicide justifiable on the ground of self- defence, the danger must be either actual, present and urgent, or the homicide must be committed under such circumstances as will afford reasonable ground to the party charged, to apprehend a design to commit a fel- ony, or to do him some great bodily harm, and that there is imminent danger of such design being accomplished. Rev. Code, 601, §34. Hence, the mere fear, apprehension or belief, however sincerely entertained by one man, that another designs to take his life, will not excuse or justify the killing of the latter by the former. Where the dan- ger is neither real nor urgent, to render a homicide ex- cusable or justifiable within the meaning of the law, there must, at the least, be some attempt to execute the apprehended design ; or there must be reasonable ground for the apprehension that such design will be executed,, and the danger of its accomplishment imminent. State V. Scott,'' 4 Iredell, 409. A party may have a lively ap- prehension that his life is in danger, and believe that berger's case, ante, p. 34 ; Adams' case, ante, p. 208.] 9. Grainger's case, ante, p. 232, as modified by Copeland's case, ante, p. 41, declared to be the law. Appeal by the defendant from a conviction of murder in the second degree. W. H. Wisener, for the plaintiff in error ; John L. T. Sneed, Attorney-Gi-eneral, for the State. Caextthees, J., delivered the opinion of the Court : James Rippy was indicted in the Circuit Court of Bedford County, for the murder orHouston Porter, and convicted of murder in the second degree, and sentenced to twenty-one years confinement in the penitentiary. The verdict is well sustained by the testimony. The defence, it seems, was rested upon the existence or ap- THEEATS — APPAEENT DANGEE, ETC, 347 prehension of danger to himself at the time of the homi- cide. It is now insisted there is error in the charge on that doctrine. The objection is confined to this clause: "It is argued that the deceased made violent threats against the life of defendant long before, and up to a short period of the killing, and that these threats coming to a knowlege of defendant, he had a right to kill the deceased on sight. Such is not the opinion of the Court ; but to excuse the defendant, and therefore acquit him,, the evidence ought to be such as to have reasonably satisfied the defendant that the deceased, at the time of the killing, was doing some overt act, or making some demonstration, showing a present intention to carry such threats into execution; otherwise it would not excuse him." The law as thus laid down by the Court is substan- tially correct. The doctrine of the Grainger case, as explained by that of Copeland, is undoubtedly the law. Yet no case has been more perverted and misapplied by advocates and juries. We have had one case before us in the last few years, in which the broad proposition stated in the first of the above extract, was charged as the law. But for this, and the indication that it has obtained to some limited extent in the legal profession^ it would scarcely be deemed necessary to notice it. There is no authority for such a position. It would be monstrous. No Court should for a moment entertain or countenance it. The criminal code of no country ever has, nor, as we presume, ever will, give place to so bloody a principle. The law on this subject is,' that to excuse a homi- cide, the danger of life or great bodily injury, must either be real, or honestly believed to be so at tl^e time, and upon sufficient grounds. It must be apparent and imminent. Previous threats, or even acts of hostility, how violent soever, will not, of themselves excuse the slayer, but there must be some words or overt acts at the time, clearly indicative of a present purpose to do the in- jury. Past threats and hostile actions, or [antecedent 348 EIPPT V. THE STATE. circumstances, can only be looked to in connection with present demonstrations as grounds of apprehension. To constitute the defence, the belief or apprehension of dan- ger must be founded on sufficient circumstances to author- ize the opinion that the deadly purpose then exists, and the fear that it will at that time be executed. The char- acter of the deceased for violence, as well as his animos- ity to the defendant, as indicated by words and actions then and before, are proper matters for the consideration of the jury on the question of reasonable apprehension. Even if sufficient cause to fear does exist, but the deed is not perpetrated under the apprehension it is calculated to inspire, or the fear is feigned or pretended, the defence will not be available. So a case must not only be made out to authorize the fear of death or great harm, but such fear must be really entertained, and the act done under an honest and well founded belief, that it is abso- lutely necessary to kill at that moment, to save himself from a like injury. It is scarcely necessary to remark that a real or apparent necessity brought about by the design, contrivance or fault of defendant is no excuse. If any less injury than death or great bodily harm is feared or indicated by the circumstances, the plea of self- defence will not be sustained, but the degree of the crime may be reduced. According to these principles, the guilt of the deceased is clearly made out ; there was no error in the charge, and the judgment will be affirmed. Judgment afflnned. SYLLABUS. 349* WILLIAMS V. THE STATE. [3 Heiskell, 876.] Supreme Court of Tennessee, NasTimlle, Decemher Term, 1871. A. O. P. Nicholson, Chief Justice. P. TUENET, Robert McFarland, Jas. W. Deaderick, \- Judges. Thos. J. Freeman, John L. T. Sneed, Old grudge — Killing in self-defence — ^Imminence op the danger — Overt act — Threats — Apprehensions of danger. 1. Where an old grudge is clearly proven, the law presumes that the killing occurred on this old grudge, unless the proof shows a new and suffi- cient provocation, and then the law would presume that the killing was on the new provocation ; and if that provocation was sufficient in law to rebut the presumption, of malice, the offence would be voluntary manslaughter, or in self-defence, dependent on the proof. [Ace. Hill's case, ante, p. 199 ; Copeland's case, ante, p. 41.] 2. Where self-defence is urged as an excuse for homicide, the important questions are : Did the accused really entertain the fear of death or great bodily harm at the time he did the killing ? and did he kill under an honest and well founded belief that it was absolutely necessary for him to kill the deceased at that moment, to save himself from a like injury ? [Ace. Lander's cAse, post ; Rippy's case, ante, last case ; Dyson's case, ante, p. 304; Wesley's case, a«. 'Ante, p. 41. 362 WILLIAMS V. THE STATE. great bodily harm, but such fear must be really enter- tained, and the act done under an honest and well-founded belief, that it is absolutely necessary to kill at that mo- ment, to save himself from a like injury. It is scarcely necessary to remark, that a real or apparent necessity, brought about by the design, contrivance, or fault of the defendant, is no excuse." The law as laid down in Grainger v. The State, ex- plained, analyzed and defined, in the case of Rippy v. The State, must govern the case now before us. The proof of previous threats and hostile acts by the de- ceased, indicating feelings of settled animosity, and purpose to have revenge, for injuries alleged to have been inflicted on him by the defendant, is abundant. His conduct about a year before he was killed, while riding along the road, repeatedly drawing his pistol, seeking persistently to provoke the defendant into a difficulty, shows clearly that he was then filled with hatred towards the defendant, and eager for a pretext to take his life. His acts afterwards at Pleasant Plains, when the defend- ant escaped from his violence by deserting his own house, show that there was no abatement of his hostility to the defendant. His conduct on that occasion, as well as other evidence, shows that when drunk, he was a most violent, reckless and dangerous man. The fact that his hostility towards the defendant was manifested, in this violent and dangerous manner, while he was drinking, furnishes strong evidence that his hatred, and his desire for revenge, were entertained and cherished in his sober moments. His declarations at the still-house, and just before his death, indicate distinctly a continuance of his vengeful purpose. That he was a violent, dangerous man when drunk, however harmless and peaceable he may have been when sober, we are fully satisfied. The proof is clear, that for about a year the defendant had been apprised of the violent hatred which the deceased entertained towards him. It is also in proof, that he was informed of the alleged ground of the deceased's hostility. But there is nothing in the DISCUSSION OJF THE FACTS. 363 evidence showing whether defendant was guilty of the outrage complained of by the deceased or not; nor is there anything, showing that defendant ever sought to explain the matter, or to relieve the deceased of his sus- picions. But it is in proof, that he knew of the deceased's hostility, and its alleged cause, and also, that the de- ceased was a dangerous man in liquor. He was so well apprised of these things, that when the deceased ap- proached him at the still-house, and gave him the look described by the witness, drank the vulgar toast, and struck the proof-vial in his hand, defendant at once understood these things as being "pitched" at him. To avoid a difficulty, he went to Edwards' house, where he had previously left his gun. That one inducement with him to go to Edwards' house was, that his gun was there, we think may be fairly in- ferred, from the fact, that so soon as he reached there, he got his gun, called for powder, and sat down to put it in order; and from the fact, also, that he informed the women at the house of fhe difficulty he apprehended, and his purpose to kill the deceased if he came there. He evidently apprehended that the deceased would come, and he determined to be prepared. In view of the known violence of deceased's character, when drunk, and of deceased's known anxiety to get de- fendant into a difficulty, we see nothing which was either- imprudent or wrong in the fact that the defendant left the still-house, went to Edwards' house, and put his gun in order. Whilst we discover nothing indicating cowardice,, on the part of the defendant, in leaving his house at Pleasant Plains, or the still-house, to avoid the drunken violence of the deceased, we can well understand that even a brave man would have fears from such an enemy as deceased is shown to have been. That defendant had fears of the deceased, and had good reason to have fears, we think the proof fully es- tablishes. But the important question now presents itself, did he really entertain the fear of death or great bodily harm at the time he fired the gun and did the 364 WILLIAMS V. THE STATE. killing ? and did he shoot under an honest and well- founded belief that it was absolutely necessary for him to kill the deceased at that moment, to save himself from a like injury? To make out his justification, all these things must concur. It is not enough that defendant honestly believed that his own life was in danger, or that he was in danger of great bodily harm from the de- ceased, at some future time ; but he must have believed that the danger was real at the tiTrie; that it was appar- ent and imminent. There must have been words or overt acts at the time of the shooting, clearly indicative of a present purpose on the part of the deceased, to take his life or do him great bodily harm. The proof is, that after arranging his gun at Edwards' house, he set it behind the door. After the deceased came to the house he made no hostile demonstration. He refused to go home when Edwards advised it, but there is more probability that he declined because he wanted more brandy, as he said, than that his purpose in going to the house was to have a difficulty with defendant. He aided defendant, Edwards and Tillery in unloading the wagon. He did nothing and said nothing offensive or indicative of any purpose to attack defendant. He had his six shooter in his pocket, but it remained there. "When Edwards gave deceased another drink, he got on his horse and rode off. Defendant and Tillery went into the house. In a short time deceased rode back within eight steps of the house, and called for Edwards. They were conversing about an exchange of brandy and bacon, and in that conversation, the deceased manifested his hatred for defendant, and his anxiety for revenge" by violent language already quoted. At that time defendant and Tillery were both in the house. There was nothing in the language, which indicated any present purpose to disturb the defendant. It was strongly indicative of his hostility and his anxiety for revenge. If it was heard by defendant, he could not have inferred that he was in danger of an immediate attack. If he did so understand the language, when he stepped to the door and saw the CONCLUSION UPON THE i'ACTS. 365 deceased sitting on his horse, with no pistol drawn, aUd no indication of an intended attack, with Edwards stand- ing by him, he could not have believed that he was in imminent danger. But he probably did suppose, that the deceased had returned for a difficulty, for he said to the deceased : " You have come for a fuss, and by Grod, if you don't mind, you can have it." This remark, as far as we can see, was provoked by no word or action of the deceased. Edwards proves, that at the time defendant made the remark, "You have come for a fuss, and by God, if you don't, mind, you can get it," the deceased " had not said anything to defendant or about defendant ; that is, did not mention defendant's name." But defend- ant assumed that deceased had returned for a fuss, and being well prepared, he determined to bring the matter to an issue at once, by telling deceased "if he did not mind, he could have it." The response of the deceased was, "just walk out and you can have it ; I will give you more than you can take, or carry off from here," The question here arises, was defendant then in such immi- nent danger, that, for the preservation of his own life, it was absolutely necessary that he should return into the house and get his gun from behind the door and step out and shoot deceased ? When the deceased responded to him and invited him out, he seemed to understand de- fendant's remark as a banter or challenge ; he said, "just walk out and you shall have it ; " but he remained on his horse and made no demonstration of getting ready, by drawing his pistol, or otherwise. The defendant was in no danger, when he was standing in the door, talking to deceased. It was only on condi- tion that he would walk out, that deceased proposed to let him have a fuss. He had no weapon drawn, and made no attempt to draw one. Much less was defendant in danger, after he returned into the house. The deceased could not then hurt him ; if he had dismounted and at- tempted to enter the house, with his drawn weapons, the danger might then have been real, apparent and immi- nent. But no such thing occurred. He remained on his 366 WILLIAMS V. THE STATE, horse witli his pistol in his pocket, when defendant re- turned with his gun and stepped on the puncheons. He was in no danger .then, real, apparent, or imminent ; for he then saw deceased on the horse, with no pistol in his hand. In this situation, with the deceased completely in his power, he asks him, " are you in the same notion still? " When the deceased saw him return with his gun, his only response to the question was, "Let it come." The defendant instantly fired, and the deceased was dead in a minute^his pistol still in his pocket. That the defendant did the killing under an apprehen- sion, honestly entertained, that the deceased might, or would, in some of his drunken moments, gratify his thirst for "blood, we think the proof fully shows ; but that at the time of the killing, he was in any danger whatever of then losing his life, or that he so believed, the proof wholly fails to show. We are, therefore, of the opinion that the verdict is sustained by the evidence, and we affirm the judgment. Judgment affirmed. LANDEK V. THE STATE. « [12 Tex., 462.] Supreme Court of Texas, Tyler, 1851),. John Hemphill, Chief Justice. Abner S. Lipscomb, \ . . , t ^- EoYALL T. Wheeler, [ ^^'ociate Justices. Homicide in self-defence — Declarations — Threats and hostile CONDUCT — Imminence of the danger — Killing on sight — Degrees OF HOMICIDE. 1. Where the attorney for the State had asked a witness how the accused was " equipped," as he rode into Jefferson with tlie witness on the morning- of the day of the Icllling, to which the witness answered that "he had pis- SYLLABUS. 367 tols tied to his saddle ; " and tlie defence thereupon proposed to prove by the witness that the accused " uttered no hostile expressions about the de- ■ceased, and spoke of no diflBculty with any one,'" it was held that the offer was properly rejected. , 2. The declaration of an intent to kiU a person on sight, hunting such person for that purpose, and being armed for that purpose with deadly weapons ; and although the parties, owing to their places of residence, can- not reasonably fail soon to encounter each other ; and although the jury believe from the evidence thiit the threats would have been executed at the first opportunity, will not justify or excuse the party threatened in lying in wait and kUling the party making the threats, nor, it seems, in com- mencing the attack, without lying in wait, where the encounter could have reasonably been avoided ; nor will such a state of circumstances reduce a killing by lying in wait, from mui-der in the first, to murder in the second ■degree. [Ace. Scott's case, ante, p. 163 ; Evans' case, ante, p. 329 ; Rippy's •case, ante, p. 315 ; Willianfs' case, ante, last C3,se. Contra, Philip's case, post; Carico's case,^osi!; Young's case, posi; Bohannon's case, ^os<.] 3. Mere naked threats, unconnected with acts, can never aflbrd a justi- fication or excuse for the commission of unlawful acts, or justify an attack, or even an assault; much less a killing by lying in wait with a deadly weapon. [Ace. Evans' case ante, p. 329 ; Rippy's case, ante, p. 845 ; and ■others.] 4. The right of self-defence discussed at length, and many authorities •cited to the general efiect that this right is founded in necessity, exists in a state of nature, and in every possible condition of society ; that it cannot be taken away, nor is it restrained, but its exercise regulated, by the munici- pal law, so as to prevent its abuse ; that this right does not extend to the right to kill in order to ward oft' a threatened or contingent danger, or a dan- ger which exists in machination only ; but that in order to justify such kill- ing, the danger must have been present and imminent, and no other means must have existed of escaping it ; or from the nature of the attack, the slayer must have had reasonable grounds to believe that such was the case. [Ace. McLeod's case, post, and other cases!] 5. In a trial for murder, where an attempt is made to prove that the homicide was committed in self-defence, the questions are, was the prisoner in present danger of great bodily harm at the time of the killing? and was the homicide committed in a bona fide eflbrt to preserve himself from the impending danger? [Ace. Williams' case, ante, p. 349.] 6. Every intentional killing is not necessarily murder. For, it may be from a principle of inevitable necessity, and then it will be self-defence ; it may be done in the transport of passion and heat of blood, upon a sudden and sufficient legal provocation, and then it will be manslaughter only ; or it may be done by the command or permission of the law, and then it vrill be justifiable or excusable homicide. But if it be unattended by any of these circumstances of alleviation, excuse or justification, which will relieve the party kilUng from the guilt of murder ; if it be murder within the proper legal meaning of that term, and be proved to be a " premeditated and deliberate killing," within the meaning of those terms, as employed in the statute, it will necessarily be murder in the first degree. 368 LANDER V. THE STATE. Alfred R. Lander was put upon his trial for the mur- der of Eli Ussery. It appeared in evidence, that there had been ill-feeling and threats of long standing between, the prisoner and the deceased. They lived in the same neighborhood, a few miles from the town of Jefferson^ and in going and returning, travelled the same road two or three miles. They went to town on the morning of the killing, both armed, — the prisoner with holster pis- tols, and the deceased with a double-barreled shot-gun. Same day the deceased was heard to make violent threats against the life of the prisoner, declaring he would kill him on sight ; and had his gun in his hand all the time, and said he was hunting the prisoner ; his manner of looking about attracting the attention of several of the witnesses. The prisoner was advised of these threats, and was cautioned to be on his guard, as the deceased might attempt to carry them into execution. He thereupon went some distance into the country, to the residence of one Jackson, where he procured a double-barreled shot-gun, and returned to town in com- pany with Jackson. He remained in town for some time, observing the movements of the deceased, but avoided being seen by him, until in the evening, when the deceased was seen to go to the Post-office and get the mail bags, preparatory to leaving town. The pris- oner thereupon proceeded by a back way or alley, to a place where he could intercept the deceased as he should go out of town by the usually travelled road. The deceased had a son, a lad, with him ; and after starting, delayed, to change the mail bags from the horse on which he rode to that on which his son was riding. In the meantime, the prisoner had taken his position in advance, by the wayside, concealed from the view of the deceased by an unoccupied blacksmith's shop, and there awaited his approach. The son was in advance of the father, and as the latter was passing, the prisoner hailed him, calling his name, which arrested his attention, and caused him to bring his horse to a halt, and turn towards the prisoner, who immediately discharged at him one CHARGE TO THE JURY. 369 barrel of his gun. The deceased did not fall upon the first fire, but seemed in the act of dismounting, when the prisoner fired a second time, upon which the deceased fell mortally wounded, and immediately expired. Under the charge of the Court, the jury found the prisoner guilty of murder in the second degree, and assessed his punishment at confinement at hard labor in the peniten- tiary for a term of five years. The prisoner appealed. There were several questions on the admission of tes- timony, reserved by bills of exceptions, only one of which was deemed worthy of notice, and that is suffi- ciently stated in the opinion. The charge of the Court, so far as the same was pe'culiar to this case, was as fol- lows: "In case you should find the defendant guilty, as charged, the law makes it your duty by your verdict, to find whether he is guilty of murder in the first degree or murder in the second degree. Therefore, should you conclude from the proof in the cause, that the defendant, with malice aforethought, and with a deliberate and spe- cific intent to take life, shot with a gun and killed the • deceased, the lavy declares it to be murder in the first degree, and it will be your duty so to find. " But if you believe that the defendant, not being moved by a wicked and malicious intent, but from a j ust and well- grounded apprehension, for the preservation of his own life from a threatened attack from the deceased, infiicted the mortal wound by which death ensued, then he is guilty of murder in the second degree, and not murder in the first degree, and it will be your duty so to find. " But if you find under the proof and law given you, that the defendant took the life of the deceased in what the law calls self-defence, he, then, is guilty of no offence, and the law acquits him of all blame, and justifies the act. If the deceased threatened the defendant with an attack, the law requires that he should avoid the conflict, if he could do so without endangering his own person ; if he covlA not avoid the difficulty, without endangering 370 LANDEE V. THK STATE. his own person and the danger was present and pressing, then such a state of affairs, if proved to your satisfac- tion, justified the defendant in taking the life of the de- ceased, and it will be your duty to find him not guilty. " In relation to the threats of the deceased, against the defendant, given in evidence before you, I feel bound to charge you, that they cannot be considered by you in justification of the offence charged, but may be looked to in connection with the proof in the cause (should any exist) in making up your verdict, reducing the offence from murder in the first to murder in the second degree, should such be the tendency of your investigations, under the legal rule which I before laid down in relation to the latter offence. In no case do threats, unaccompa- nied with actual or instantaneous meditated violence, justify the taking of human life. There must be an actual danger* at the time. In the language of the law, it must plainly appear by the circumstances of the case, as the manner of the assault, the weapons, etc., that one's life was in imminent danger ; otherwise the killing of the assailant will not be justifiable self-defence." Henderson and Jones, for the appellant; Thomas J. Jennings, Attorney-General, for the State. Wheelek, J., delivered the opinion of the Court : To reverse the judgment of conviction, it is urged that the Court erroneously excluded evidence proposed hy the accused ; and also that there is error in the charge of the Court. The attorney for the State had asked a witness how the accused was " equipped " as he rode into Jefferson with the witness on the morning of the day of the killing. To which the witness answered that '• lie had pistols tied to his saddle ; " and the defence thereupon proposed to prove by the witness that the accused " uttered no hostile " This is not the least important error of this singular charge, althoiigli overlooked by counsel and by the Court. The law is, a reasonable appear- juice ol danger. See Neeley's case, ante, p. 101 ; I^amb's ■ Judgcs. Belvaed J. Peters, ) MuRDBROnS THREATS — LyING IN WAIT AI^D KILLING THE THRBATBNBR. 1. Where there was proof tending' to show that the deceased, without -any reasonable cause, became exceedingly hostile to the dellndant ; as- saulted him more than once with deadly weapons ; frequently declared that he would kill him ; and the evening before the catastrophe, said that he would kill him before the next night ; and where it appeared that about four o'clock in the morning succeeding the last threat, the deceased, after passing the appellant's office, on his way to his own stable, apparently for the purpose of feeding his horse, without making any apparent demonstra- tion of an immediate assault, and without seeing defendant, was shot in the back by him and killed ; and the jury were instructed that, whatever de- ductions they might make from the evidence, and however assured the ac- cused may have felt that his life was in immediate and continual danger, nevertheless, he had no right to shoot as, and when he did, unless there was then imminent danger of an immediate and violent assault on him by the deceased ; — it was held, on the authority of Philips v. Commonwealth, ante, last case, which is an episode to this case, that the instruction was errone- ous. [Hardest, J., doubting, and Peters, J., dissenting.] 2. The principle is laid down in this case, that if a man feels sure that his life is in continual danger, and that to take the life of his menacing enemy is his only security, he may kill that enemy whenever and wherever he gives him a chance, and there is no sign of relenting. [Aoc. Philips' case, ante, last case. Overruled in effect by Bohannon's case, post, next case. Contra, Rippy's case, ante, p. 345^ Williams' case, ante, p. 349 ; Evans' case, ante, p. 329; Wesley's case, ante, p. 319; Dyson's case, ante, p. 304 ; Scott's case, ante, p. 163 ; Hinton's case, ante, p. 83 ; Harrison's case, ante, p. 71 ; 1 East P. C, 272; 1 Hale P. C, 52.] 3. But before a jury should acquit, they should be well satisfied that the killing was not the offspring of bad passion, but solely of a thorough and well-founded belief that it was necessary for security. 4. The accused had a right to prove that a man, then dead, had but a short time before the homicide, told him that the deceased had armed him- self with a shot-gun to kill him. This was not legal evidence of deceased 390 CAEICO V. COMMONWEALTH. arming himself to kill accused, but it was competent to prove that accused had so heard, and may have had a rfght so to believe ; and to that extent and for that purpose, it was admissible. 1 Greenl. Ev., 2§ 100, 101. W. D. ITarrison, for appellant; John Rodman^ Attor- ney-General, for the Commonwealth. Robertson, J., delivered the opinion of the Court — Judges Hardin and Peters delivering separate opinions. The appellant, John W. Carico, a young physician, residing in the village of Fredericksburg, Washington county, Kentucky, indicted for murder in killing his neighbor, David Smith, " by shooting him with a gun," was found guilty by a .jury and sentenced to confine- ment in the penitentiary for six years. He urges a reversal of the judgment for alleged error in instruc- tions, and in the exclusion of testimony by the Circuit Court on the trial. The appellant attempted to excuse the homicide by the proof of circumstances conducing to show that Smith, without any reasonable cause, be- came extremely hostile to him ; assaulted him more than once with deadly weapons ; frequently declared that he would kill him ; and the evening before the catastrophe said that he would kill him before next night. About four o'clock in the morning succeeding that last threat, Smith, after passing the appellant's office on his way to his own stable, apparently for the purpose of feeding his horse, was shot in the back and killed by appellant, without any apparent demonstration of an immediate assault on the appellant, and without seeing him. The testimony marks Smith as a man of violent passions and inflexible will, and characterizes the appellant as a moral, quiet, and prudent gentleman in his antecedent behavior. The shooting being before the dawn of day, the jury might possibly have inferred, from the unusual time and aU the other facts, that Smith's purpose in being out so early was to reconnoiter for a secret chance to assassi- nate the accused before he was up in his office, and that the latter was so prematurely ready with his loaded musket only to meet such a night attack, and that seeing RIGHT or ATTACK FOR PURPOSE OF DEFENCE. 391 Smith, he apprehended his speedy return to execute his threats. On these facts, the Circuit Judge by his rulings, ad- judged that whatever deductions the jury might make from the evidence, and however assured the appellant may have felt that his life was in immediate and con- tinuEtl danger, nevertheless he had no right to shoot as, and when he did, unless there was tTien imminent danger of an immediate and violent assault on him by Smith. This insured the verdict, and sealed the ap- pellant's doom ; and whether that decision was right or wrong, is the ruling question on this appeal. This case is an episode to that of Philips v. The Com- monwealth,* 2 Duvall, 328, in which this Court adjudged the philosophy of the law of self-defence, which we still approve and now reaffirm. In that case,. we could not judicially extend the principle therein defined and recognized to a homicide exactly like this ; and, there- fore, we expressly forbear even an intimation of an opinion as to such extension. The application of the principle is a difficult task for a jury, and is peculiarly hazardous. But its liability to perversion or abuse by juries cannot curtail the principle itself as a law for the Court. Speaking of assured and continual danger to life, this Court, in the case in 2 Duvall, defined the principle of self-defence, as follows: "Like the sword of. Dam- ocles, the threatened danger is continually impending every moment and everywhere. The threatened man may be waylaid, or otherwise attacked unawares, with- out the possibility of defence or of escape," and may never, day or night, feel safe, or actually he so, while his enemy lives : who, whenever he may see him, or wher- ever he may find him, may be anxious and able, to kill him. And does either human or divine law require such prolonged agony and peril? or can the best and most prudent men suicidally forbear to strike for riddance, •' Ante, last case, 392 CARICO V. COMMONWEALTH. if they have the courage to defend themselves, in the only way of secure and lasting escape ? " Now, if a man feels sure that his life is in continual danger, and that to take the life of his menacing enemy is his only safe security, does not the rationale of the principle as thus defined, allow him to kill that enemy whenever and wherever he gives him a chance, and there is no sign of relenting ? But iefore a jury should acquit, they should he well satisfied that the Jailing was not the offspring of had passion, hut solely of a thorough and well-founded helief that it was necessary for security. And here lies the danger of misapplica- tion. It is difficult to be assured that the act was thus necessary and done in good faith. Of that, however, the jury, and not the Court, must judge ; and in that judgment, they cannot be too self-poised and careful, before they conclude that the peril of the accused was imminent- and incessant, and that he, well assured of it, honestly helieved that his only safe remedy was to destroy the power to execute the threats. And if he was authorized to believe, and did considerately appre- hend that his own exile or the death of his persevering enemy, watching to kill him, was like the tabula in naufragio, the only safe mode of rescue, might he not lawfully choose his remedy and throw his enemy over- board? Why should he be required still to wait an assault, and to endure longer haunting and hazard, when he might at any moment become the victim of his own forbearance, and when self-defence might be impossible or unavailing? Why let the sword stiU hang over him? Why not remove it out of sight when he may, and not passively linger until it unexpectedly falls and strikes his heart unresisted ? The recognition of a per- fect right to do so, in such a crisis, appears to us con- sistent with both principle and policy. It seems to us conservative. It might aff'ord more security and prevent more assassinations than the lame law of punishment ever could, and the manly and opportune assertion of this universal birthright may teach the reckless, who EIGHT OF ATTACK TOE PUEPOSE OF DEFENCE. 393 thus maliciously beset the pathway of the peaceabxe, that they wiU be likely to bring destruction on their own heads. This preventive principle will go hand in hand with civilization and philosophical jurisprudence as a palladium of personal security and social order and peace. Properly guarded, it may do more good than harm.** Whether this case comes within the range of that principle we have no right to say. But assuming, as the Circuit Court ought to have done, everything which the facts conduced to prove, that Court ought not to have denied their right, on their own peculiar responsi- bility, to acquit the appellant on their own construction of the evidence and rational deductions, as hypotheti- cally assumed in some of the overruled instructions. Consequently, if we are right, the Circuit Court was wrong, and erred in rendering judgment on the verdict. But there is a minor error which might alone justify a reversal. The appellant offered to prove that a man named Offert, then dead, had, but a short time before the homicide, told him that Smith had armed himself mth a shot-gun to kill him. The Circuit Court adjudged this inadmissible, as hearsay. What Offert said was not legal evidence of Smith's arming himself to kill appellant; but it was competent to prove that the appellant had so heard, and may have had a right so to believe, and to that extent, and for that purpose, it was admissible. 1 Greenl. Ev., §§100,101.'= For the foregoing causes the judgment of conviction bit is seen that the doctrine here enunciated is not concurred in by the other members of the Court, and is discountenanced in Bohannon's case, next following. It is entirely unnecessary to cite authorities to show that it has never been the law in England or in this country. As was justly re- marked by Cakuthees, J., in Eippy's case, ante, p. 345, " there is no authority for such a position. It would be monstrous. No court should for a moment entertain or countenance it. The criminal code of no country ever has, nor, as we presume, ever will give place to so bloody a prin- ciple." •5 In Bohannon's case, next, post, it is said, that this was the groimd ou which this case was decided. 394 CAUICO V. COMMONVViiALTII. is reversed, and the cause remanded for a new trial, conformable with the principles of this opinion. The concurrence of Habdin, J., in the foregoing opinion, was qualified by him as follows : Judge Hardin entertains views of the case of Philips V. The Commonwealth,'' 2 Duvall, 328, which would lead him to concur in overruling it to some extent ; but as it is adhered to by the majority of the Court, and can not therefore be overruled, he recognizes it as authority, as he does other adjudications of this Court which have not been overruled ; and he regards at least one of the in- structions which were given in this case for the Com- monwealth, and the. action of the Court in jrefasing others, as conflicting with the controlling principles and reasons of said case of Philips. But without elaborat- ing his own views on this branch of the case, or fully concurring in the foregoing opinion of Judge Robertson, he is satisfied that the Court below erred to the prejudice of the defendant, in refusing to permit him to prove the fact, that shortly before the shooting he was informed by a person, since dead, of threats of Smith to take his life. The question of the admissibility of this evidence did not depend on the truths of the statement made to the defendant, but on the effect which it might produce' upon his mind, as an inducing cause for more prompt action on his part, to prevent the apprehended danger. 1 Greenl. Ev., §§100, 101. He therefore concurs in the reversal of the judgment. The following is the opinion of PETBiRS, J., dissenting in part, from the foregoing : Believing as I do, tliat the facts of this case do not bring it .within the principle decided in the case of Philips v. Commonwealth, I cannot concur with my brothers, either in their reasoning or conclusions, in condemning the instructions given by the Circuit Judge in this case; but as the cas is reversed by concurrence of a majority of the Court, and a new trial will be the ^Ante, last case. SYLLABUS. 395 result, I will forbear entering upon an analysis of the evidence, and a comparison of the facts in this case with those in the Philips' case, as such a course of argument might be prejudicial to a fair trial. On the question of the competency of the evidence offered on the trial and rejected by the Court, which is fully stated in the separate opinion of Judge Haedin, I think, according to the weight of authority, the evidence was competent, and should have been admitted, and to that extent only, I concur with the other members of the Court. Judgment reversed. BOHANNON V. COMMONWEATH. [8 Bush, 481.J Ccmrt of Appeals of Kentucky, Winter Term, 1871. William S. Pbioe, Chief Justice. MOEDECAI R. HaEDIN, ) Belvaed J. Petees, > Judges. William Lindsay, ) Malice aforethought — Shunning adversary — Killing to ward off threatened attack — killing after attempted assassination and continued threats. 1. 1)1 a prosecution for murder, where the defendant relies upon the plea of self-defence, it is error to instruct that malice aforetlioiight means a predetermination to kill, however suddenly formed in the mind of the person killing. To constitute murder, the killing must be unlawful, as well as predetermined. 2. The law of self-defence does not require one wliose life has been threatened to leave his home, or to secrete himself to avoid his foe. It is, therefore, error, in such a case, to instruct that the right of self-defence does not arise until the defendant has "donS everything in his power to avoid the necessity " of slaying such foe. [Aco. Philip's case, ante, p. 383 ; Contra, Sullivan's case, ante, p. 65 ; Shippey's case, ante, p. 133.] 3. Fear grounded upon threats, or upon information that one lies in wait, will not justify the party so threatened or endangered, in killing his antagonist, unless the threats or lying in wait have been accompanied by 396 BOHANWON V. COMMONWEALTH. an actual attempt to kill or commit some other known felony ; and not then, unless the person so circumstanced believes, and has reasonable ground to believe, that the presence of his enemy puts his life in imminent peril, and that he can escape such peril in no other way. 4. One whose life has been threatened and who has been attacked with a deadly weapon, may arm himself to resist his foe ; may leave his home for any legitimate purpose, and if he casually meets such foe, having good reason to believe him to»be armed and ready to execute his threats, and that his personal safety can be secured in no other way, he need not wait to be assaulted, but may secure himself from the impending danger, even by killing his adversary, if it be necessary to do so. [Ace. Philips' case, ante, p. 383 ; Carico's case, ante, last case. Contra, Scott's case, ante, p. 163 ; Harrison's case, ante, p. 71 ; Creek's case, ante, p. 253 ; Dyson's case, ante, p. 30i; Cotton's case, ante, p. 310; Hippy's case, ante, p. 345; Wil- liam's case, ante, p. 349; Robert Jackson's case, post; Evans' case, ante, p. 329.] 5. It is erroneous to instruct the jury in a trial for homicide, that they cannot acquit the defendant on account of any danger, real or apparent, not ■existing, or not on reasonable grounds believed by the defendant to exist, jind to be about then to fall upon him at the time of the killing. [Acc. Philips' case, ante, p. 383 ; and see the cases there cited.] 6. The opinion in Philips v. Commonwealth, ante, p. 383, is reaflSrmed in so far as it conforms to the views of the law of self-defence, as expressed in the opinion in this case. 7. The opinion in Carico v. Commonwealth ante, last 6ase, held not to be binding autlioi-ity upon the law of self-defence, as it merely expresses the opinion of one judge upon that branch of the law. P. U. Major, Robinson- and J. P. Force for appenant ; Jolm Rodman, Attornej-GI-eneral, for the Commonwealtli. LiNBSAY, J., delivered the opinion of the Court: At the September term, 1871, of the Shelby Circuit Court, Hiram Bohannon was indicted, tried and convicted for the murder of Addison Cook. His motion for a new trial was overruled, and from the judgment of that Court, sentencing him to be hung, he prosecutes this appeal. The deceased is shown by the evidence, to have been a man of lawless habits, overbearing, revengeful and vindictive, and resolute and determined in the execution of his plans of vengeance, against those who incurred his hostility. The testimony also conduces to show that he was at the head of a secret organization, which habit- ually set the laws of the Commonwealth at open defiance, and the members of which, under the pretence of inflict- STATEMENT OP THE FACTS. 39T ing punishment upon criminals who could not be reached by the process of the law, were themselves guilty of the commission of both penal and criminal offences. Several months before his death, for reasons not fully explained. Cook became the avowed enemy of the appel- lant. He more than once openly threatened to take his life. Of these threats Bohannon was informed. On the Saturday before the killing, which took place on Tues- day, the 15th day of August, 1871, Cook, in company with one Penn, and evidently in the execution of a pre- concerted plan, with a drawn pistol, attacked Bohannon upon the public highway, and the latter only succeeded in escaping assassination by deserting his horse, and concealing himself in the fields adjacent to the road. The assailants then pursued the witness, Blakely, and his wife, who were in company with Bohannon, and who resided at his house; and when they had overtaken them. Cook compelled Mrs. Blakely to retract certain statements she had made relative to his being the chief of a lawless organization known as Ku-klux, threatening her with immediate death in case she refused to make the required retraction. He then announced to Mrs. Blakely and her husband, that he intended to kill Bohannon on sight. This threat they communicated to Bohannon that night. They also gave him a detailed statement of Cook's con- duct at the time it was made. -On the morning of the killing, and but a short time before it took place. Cook asked a witness named Ham- ilton whether he could not frame some excuse for going to Bohannon's house, and ascertaining his whereabouts, stating that he was anxious to ascertain that fact. On that morning, Bohannon left his house, so far as the evidence shows, for the first time after he was attacked on the Saturday before. He took with him a double-bar- relledshot-gun. The deceased and the appellant met in the railroad cut near the village of Bagdad. Two shots were heard in quick succession. No one saw the ren- counter. Cook was found a few minutes afterwards, 398 BOHANNON V. COMMONWEALTH. lying dead by the side of the railroad track, with a revolving pistol in his pocket about half-way out. The shot had taken effect in the back of his head and neck, and in his body between the shoulders. Bohannon was seen coming from the spot where the shooting was done, and, in reply to a question, said that "he had shot a thief who had run him out of the road a few days before, but that he would not run anybody else out of the road again." Upon these facts the Court gave the jury a series of carefully prepared instructions, eleven in number, and refused all that were asked by Bohannon. It is com- plained that several of the instructions given are errone- ous, and that, taken together, they were misleading, and prejudicial to the substantial rights of the appellant. By the first instruction the jury were told that " by the term malice aforethought is meant a predetermination to kill, however suddenly or recently formed in the mind of the person killing before the fatal act, so that the determination actually exists in the mind before and at the time of the killing, and be not prompted alone by the first transport of passion, and under great provoca- tion." If the plea of self-defence had not been relied on, and the sole effort of the appellant had been to reduce the killing from murder to manslaughter, this definition might not have been calculated to prejudice his rights ; out standing as it does, without any subsequent modifi- cation or explanation, it is in effect a determination by the Court, that killing in necessary self-defence of one's person or property may be, killing with malice afore- thought, and, tlierefore, legally murder. A killing, to constitute murder, must be done unlawfully, and unless it be unlawful, it cannot have been done with malice aforethought, although it may have been predetermined. A party upon whom a murderous assault is made, when there are no other apparent means of escape, may determine to defend himself without attempting to flee, and if necessary, to kill his assailant ; and if, piirsuant to this predetermination suddenly formed, he does kill. SHUNNING THREATENED DANGEB — KETREATING. 399 it will be neither a malicious nor unlawful, but an ex- cusable homicide. 3 Greenl. Ev., § 550 ; 1 East's P. C, 271. By the seventh instruction the jury were told that ■' the right of self-defence is founded on necessity, and cannot be exercised in any case, or to any degree, not necessary. No instrument or power beyond what is necessary is to be used ; and when one expects to be at- tacked, Ms right to defend himself does not arise until he has done everything in his power to avoid the necessity.'' Human life cannot be tak-en by way of personal defence, only in extreme or apparently extreme necessity. But when the attack is made with felonious intent against the person, the party attacked is not bound to flee. * * When a known felony is manifestly about to be commit- ted upon the person of a man, by violence or surprise, he is not bound to flee ; but may even pursue his adversary iintil he is out of danger, but no further, and if death result in the conflict, he will be guiltless. * * * * * So, if it was manifest that decedent was about to commit one of these felonies (murder, manslaughter or malicious wounding,) by violence or surprise, upon the person of defendant, and he shot decedent, solely \o prevent the fommission of such felony, he shot justifiably, and was not bound to attempt to escape by retreat or otherwise." The eleventh instruction is in these words : " You can- not acquit the defendant on account of mere threats made by decedent against the defendant, unless you be- lieve from the evidence that at the time he fired the fatal shot, if he did fire it, the decedent was making some demonstration, from which the defendant had reasonable grounds to believe, that the decedent was then about to put his threats into excution, by killing the defendant or inflicting upon him some great bodily harm." It was misleading to instruct the jury, under the proof in this prosecution, that Bohannon's right of self-defence did not arise until he had " done everything in his power to avoid the necessity'''' of slaying his adversary. He might have avoided such necessity by secreting himself •This is the langiiuj^v of .Justice Johnsox, Sullivan',* case, anir, p. fin. 400 BOHAWNOK V. COMMONWEALTH. SO that lie could not be found, or by abandoning his home and seeking safety in some remote part of the country ; but under the law, he was not required to re- sort to either of these methods of securing his personal safety. Instruction No. 11 will be considered in conjunction with others given by the Court after the submission of the case to the jury. After considering the case for some considerable time,, at their own request they were" conducted into court by the SheriflF, and enquired of the Court : " Whether to ex- onerate the defendant from guilt on account of the kill- ing, they must confine themselves to the time of the killing, and disregard all danger that formerly existed,, all danger in the future, and all previous threats?" The Court instructed in answer to this question : 1. " That they cannot acquit the defendant on account of any danger, real or apparent, not existing, or not on reasonable grounds believed by the defendant to exist, and to he about tTien to fall upon Mm at the time of the killing. 2. "They should not disregard previous threats, but should regard and weigh them so far as they may shed light on the question as to the real or apparent danger defendant was in at the time he did the killing, if he did it, and also as to whether he did the killing with malice aforethought, or without malice. 3. "The jury asking whether they are to regard only the circumstances occurring immediately at the killing, and to disregard all other testimony in the case, are instructed that they are to regard and weigh all the tes- timony in the case." " The first of these three instructions is in direct conflict with the law of self-defence, as laid down by this Court in the case of Philips," 2 Duvall, 328, and also in the case of Young,'* 6 Bush, 312. •i For the construction of a similar instruction, see Johnson's caso, posi. ' Ante, p. 383. ■> Young V. Commonwealth, 6 Bush, 312. Court of .Appeals of Ken- YOtTNG'S CASE — EIGHT TO PURSUE. 401 The first of these cases has been the subject of much criticism, not so much on account of the conclusions of the Court on the point actually decided, as of the argu- ment of the writer in support of these conclusions. This argument is merely dictum, and not entitled to be re- garded as authority, and valuable only to the extent it accords with the reason of the law of self-defence. We adhere to the ruling of the Court in that case, in so far as it was decided that the principle of self-defence tucky, ^\lnte^ Term, 1869. The defendant was indicted for the murder of Jack McHone, found guilty and sentenced to be hung. He appealed. Extract from the opinion of the Court, delivered by Peters, J. : » * * * * * * * * * -!f The deceased had, on several occasions, in the presence of diiBferent per- sons, threatened to take the life of the appellant ; the threat made at one time at least, was communicated to him. What gave rise to these threats does not appear in proof; nor does it appear that the parties had ever been engaged in a personal altercation previous to the difficulty which termin- ated so fatally. On the evening of the homicide, appellant was at homo, quietly taking his supper with his own family, when the deceased was seen approaching the house. When first seen, he was not recognized by appel- lant, as he at first said it was his uncle, Thomas Young, and then that it was a Mr. Pendleton, as W. Wilder, a witness for the Commonwealth, proves; he came near the house, and appellant then went into the yard, and immediately after leaving the house, without any words having passed between them, deceased fired a pistol at appellant, which he had brought with him. Young then went into the house, met Thomas Y^oung near the door with a gun, and after a short struggle, succeeded in getting the gun, and went mider a shed, as the witness describes it, near the* door, and while there, deceased fired his pistol again at him, and Y'oung then shot at him ; neither shot took effect. Deceased started back in the direction he had come, cursing appellant, and inviting him to follow him. After having gone near a half mile, as the deceased was ascending a small hUl in the road about one hundred yards in advance of appellant, the latter shot at him bu ( missed him, and deceased having passed the summit of the hill, was out of .sight, and the pursuit then ceased ; but appellant remained near a fence and not far from Wilder's house. In a very short time after the last shot, deceased returned, his father with him, on horseback, both riding llie same horse, cursing and hallooing, saying to the Youngs, "If you ai-e fighting men, stand up and fight." Deceased jumped off the horse with his pistol in his hand, and ran towards the appellant and got on the fence, when, perhaps by the turning of a rail, he let go the fence and started to the house of Wilder, and was shot by the appellant near the door. Whether he liad been in the house and was returning, or was (fpproaching to go in, does not very satisfactorily appear ; the witnesses difier on that point. It is perfectly certain that appellant was neither seeking nor expecting a difficulty with the deceased, but, quietly at home in the bosom of his 402 BOHANNON V. COMMONWEALTH. does not equally apply in cases of mutual rencounters or affrays with deadly weapons, and one like this, where the life of the accused has been threatened loy a lawless, determined and vindictive enemy, when he has actually been assaulted with deadly weapons and compelled to fly for safety, and when, after he has thus escaped, this enemy announces to the members of his own family the intention to take his life whenever and wherever he may find him. This distinction is recognized by all the standard writers upon English criminal law. It is thus stated by family, where he had a legal right to remain unmolested and secure, he was sought by deceased, for the purpose, as his conduct proved, of execut- ing his threatened vindictive purpose ; and if he had in the first attack fallen by the hand of the man he had so causelessly assailed, it can be soarcicly doubted it would have been excusable homicide in Toung. But whether, after his adversary had apparently declined to continue the fight and turned to leave, he did not become the assailing party in the succeed- ing difliciilt}', is the only remaining question. In Philips V. Commonwealth, 2 Duvall, 328, this Court said the princi- ple applicable to a mutual rencounter or an affray with deadly weapons, does not equally apply to such a case as this, in which the first escape from threatened assassination by a determined and persevering enemy might not, and probably would not, secure the ultimate safety of the victim. The law of self-defence is in such a case more comprehensive, conservative and assuring ; and after quoting from 2 Starkie on Evidence, side page 523, say, if the principle illustrated in the first part of the extract be sound, must it not be pre-eminently applicable to continued danger to life, reasonably and actually comprehended from persistent threats? Applying these principles to the present case, if appellant had sufficient rca-jon to comprehend, and did actually comprehend, that MoHone would tmke his life, or that he was in continual danger of losing his life or suffer- ing great bodily harm from him, and that if he returned to his house the attack would be renewed upon him, he had a right to pursue his enemy, until he might reasonably believe he was secure from danger. And if, after having stopped the pursuit, the deceased returned and again assaulted him with deadly weapons, and he had cause to believe, and did actually beUeve, from his persistent attacks and previous threats, he would take his life or do him great bodily harm, and he slew him after having been as- saulted, it was excusable homicide in self-defence. The instructions given to the jury were in conflict with the principles here enunciated, and preju- dicial to appellant. * f- * » • « » ♦ # » ♦ * Judgment reversed. As to the right to pursue touched upon in this case, sec note to Stoffer's case, ante, pp. 230 et aeq. KILLlkG AFTEE ATTEMPTED ASSASSINATION. 403 East, 1 P. C, 271, 272 : " A man may repel force by force in defence of his person, habitation or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, such as rape, rob- bery, arson, burglary, or the like. In these cases, he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger ; and if he kill him in so doing, it is justiliable self-defence ; as, on the other hand, the killing by such felons will be mur- der. But a bare fear of any of these offences, however well grounded, as that another lies in wait to take away the party's life, unaccompanied by any overt act indica- tive of such an intention, will not warrant him in killing that other, there being no actual danger at the time." The doctrine of this author seems to be, that fear, tliough grounded upon the fact that one lies in wait to take a party's life, or upon the murderous threats of a desperate and determined enemy, will not, in the absence of actual danger at the time, justify the party so endan- gered or threatened, in slaying his adversary. But that when this lying in wait or these threats have been accompanied by an actual attempt to kill, and from all the attendant circumstances, the party in danger be- lieves, and has the right to believe, that he can escape the constantly impending danger, which becomes im- minent whenever his foe is present, in no other way except to kill such foe, he is not obliged when he may €asuaUy meet him, to fly for safety, nor to await his attack. However this may be, the threats of even a desperate and lawless man, do not, and ought not to authorize the person threatened to take his life ; nor does any demon- stration of hostility short, of a manifest attempt to com- mit a felony, justify a measure so extreme. But when one's life has been repeatedly threatened by such an enemy, when an actual attempt has been made to assas- sinate him, and when, after all this, members of his family have been informed by his assailant that he is to be killed on sight, we hold that he may lawfully arm 404 BOHANWON V. COMMONWEALTH. himself to resist the threatened attack. He may leave- his home for the transaction of his legitimate business, or for any lawful and proper purpose ; and if, on such an occasion, he casually meets his enemy, having reason to believe him to be armed and ready to execute his mur- derous intentions, and he does believe, and from the threats, the previous assault, the character of the man, and the circumstances attending the meeting, he has the right to believe, that the presence of his adversary puts his life in imminent peril, and that he can secure his personal safety in no other way than to kill him, he is not obliged to wait until he is actually assailed. He may not hunt his enemy and shoot him down like a wild beast ; nor has he the right to bring about an unnec- essary meeting in order to have a pretext to slay him ; but neither reason nor the law demands that he shall give up his business and abandon society to avoid such meeting. The instructions under consideration are in- consistent with this view of the law, and are therefore deemed erroneous. It is complained that incompetent and illegal testimony was permitted to go to the jury; but as the alleged error will not likely occur on the next trial of the appellant, it is not necessary that we should pass upon it. So far as any portions in the opinion in Philips' case are incon- sistent with this opinion, the same are overruled. In the Carico case, 7 Bush., 124, the judgment of the Cir- cuit Court was reversed upon a question growing out of the refusal of said Court to admit certain legal testimony. Judge Hardin, while expressing his inclination to over- rule the Philips' case to some extent, recognized it as authority until overruled by this Court, but did not fully concur in the opinion of Judge Kobbrtson as to the law of the Carico case ; and Judge Peters declined to express any opinion upon that branch of the case discussed by Judge Robertson, believing that the facts did not bring it within the principle decided in the Philips' case. For these reasons, it is manifest that the opinion of Judge Robertson, so far as it relates to the principle of NOTE — PURSUIT OF ENEMY. 405 self-defence, is but an expression of Ms individual views, and not binding upon this Court. For the errors pointed out in this opinion, the judg- ment appealed from is reversed, and the cause remanded for a new trial upon principles consistent herewith. Judgment reversed. Note. — The force of the three preceding cases would seem to be, that where a person has once escaped from assassination, and his enemy still persists in his murderous designs, he is not obliged to retreat from or avoid his enemy, but may liiU hiin wherever in his lawful way he may chance to meet him. This last case would seem to modify the conclusions of Rob- EKTSON, J., in Carico's case, only so far as to hold that a man may not, even under the circumstances above stated, seel^ his enemy to ijill him. These cases seem to stand alone, unsupported by any other cases in the boolis, old or new. Tliey enunciate new and startling doctrines, calculated to arrest attention, and apparently dangerous to the peace of society. They appear to have extended to dangerous limits the doctrine enunciated by Mr. East and other common law writers, that a man who is feloniously : assailed, may pursue his assailant until he has secured himself from all ■ danger. We have discussed this question of the right to pursue after felo- nious attempts, in the note to Stoflfer's case, ante, pp. 230 et seq., and conse- quently shall not enlarge upon it here. We think, however, that it is as plain as anything can be, that this right continues oiily while the danger continues immediate and impending, or ajiparently so" to a reasonable man, and that the expression of Mr. East, " until he finds himself out of all dantfer," is to be understood as meaning, "until he finds himself out of all present danger of a renewal of the attacli." This principle is declared in Dyson's case, ante, p.304 , and is to be inferred from the analogy of nearly every case in the boolis on this subject. As soon as tlie immediate danger has ceased, it is his duty to call in tlie preventive arm of the law, which, in every well organized society, stands ready to secure the safety of the citizen against threatened danger. But suppose that preventive arm is paralysed? Suppose that the community at large and the ministers of the law are kept in a state of terror and duress, by lawless bands ot desperate men secretly organized — and may have been the state of facts in the principal case — shall the same strict rules, defining the moment when an assailed person may lawfully strike in his defence, be held to apply, that obtain where society is well organized and the laws promptly enforced? If Sergeant Hawkins could see a distinction between the right to kill in self-defence where one is attacked in the highway, and where he is attacked in a town, ought there not to be a much greater distinction between the right of defence in states of society where the laws are rigidly enforced, and where they are enforced so feebly that lawless bands are per- mitted to take the lives of peaceable citizens with impunity ? That such .i state of things exists in any settled part of our country at the time of this writing, we do not mean to intimate ; but lliat such a state of things does exist in some of our unsettled territories, and has existed in some of the 406 BOHANNON V. COMMONWEALTH. older States, within a recent period, we are all well aware. Rules which would be just and salutary in the island of Great Britain, where the arm of the law is never relaxed, would surely be held inapplicable, in their full extent, to a state of society like that here indicated. It is universally con- ceded that the right of self-defence is not derived from the municipal law, but that all that the law attempts to do is to restrain it within those limits which are deemed most salutary, having in view the good of all the mem- bers of the society whoso safety and welfare it is its province to guard. Foster, 273, 274; Ruth. Inst., B. I., ch. 16; 1 Bish. Crim. Law, §841, 5th Ed.; 3 Bla. Com., 4. Where the threatened injury is so near that there is no time to appeal to the law for its prevention, and so great that the law wiU be unable to afford any indemnity if it is suffered, the right of private defence exists as per- fectly as in a state of nature. And with equal reason, if the law is unable^ or its ministers unwilling, to accord the citizen that degree of protection and indemnity which it promises, he must be considered as being remitted in some degree to a state of nature, in respect of his right of defence. What that right of defence is, in a state of nature, we shall not stop to dis- cuss. We may, however, be permitted to digress so far as to state that the conel,usion of Dr. Rutherforth seems more consistent with reason than any other. It is, that the right of self-defence in a state of nature, has but one limit, and that is the warding off of the threatened injurj' ; and that for this purpose, it is lawfid for the assailed to exert whatever degree of force the violence of the assailant puts upon him ; and that he is in no wise cul- pable, notwithstanding the injury inflicted by tliis necessary force upon his assailant may have been entirely disproportionate to the injm-y he would have suffered, had he forborne to exert his right of defence. Ruth. Inst., B. I.,ch. 16. These considerations, no less than the reasoning of the three preceding cases, point to the extreme difficulty of laying down fixed rules on the subject of homicide in self-defence, which shall be held applicable to all cases. And it would be difficult to say that a state of facts and condition of society did not exist, which warranted the application of the extreme rules which these cases enunciate. For manifestly, whatever general rules it may be necssary or expedient for Courts and text vroiters to lay do'WTi, the determination of each particular case must, in a great measure, depend upon its own exigencies. Thus, though the doctrine of the right to shoot an adversary " on sight," who threatens and seelis one's life, without wait- ing for an overt act, is, except in the above cases, universally repudiated as a rule of law ; yet there are manifestly, cases to which Courts should, and juries surely would, apply even this rule. For instance, there are In some parts of the American Union, desperate characters, whose hands are well known to be stained with the blood of many murders ; who are the con- stant terror and dread of every community in which they may happen to abide ; who talce human life on slight provocation, and frequently on no provocation wliatever; and who generally kill by taking undue and cowardly advantage of their victims. Now, if one of these desperadoes should threaten to kill a peaceable citizen " on siglit ; " should be foiled in an attempt to kill him ; and sliould afterwards lie in wait for liim, or hunt him for tlje purpose ; and they should accidentally meet ; and the peaceable- NOTE — EXTREME CASES. 407 citizen, without waiting for the desperado to draw his weapon, or without passing by and running the risk of being shot in the baclf, should instantly shoot and Isill him ; no court could with reason say that this was not self-defence, and no jury, not composed of a clan of outlaws, would con- vict him of any crime. And yet this would amount to nothuig more than that there are cases m which a person threatened with death may kill him who threatens " on sight." The simple fact of meeting such an adversary under such circumstances, would perhaps, be of itself, an overt act. Robert Jackson's case, post. Extreme cases of this kind do, no doubt, frequently arise ; and the reason why they do not get into the books seems to be, either that grand jmies will not indict, or that traverse juries, acting upon their prerogative of judging of the law as well as the facts, " take the bits in their teeth," as it is sometimes roughly termed, and, whatever the charge of the judge may be, acquit. It is, perhaps, fortunate, that juries are vested with this power in criminal cases ; for otherwise, accused persons might frequently find the tenure of their lives or liberties determined ac- cording to technical rules or unyielding precedents, not sufficiently ex- pansible to reach the merits of each particular case. In other words, the judge would frequently decide wrong, and give a good legal reason for so doing; while the jury would decide "according to the very right of the case," without being able to give any legal reason therefor. In this view, the right of juries to sit as judges of the law, as well as of the facts, may, perhaps, be said to belong to the equity side of our criminal jurisprudence. But whUe the law must be sufficiently expansible to provide for such oases, it is not from these that are to be deduced those general rules that are to govern society. The law is satisfied with reaching the ordinary exigencies of life ; and hence we find, that the general rules laid down by courts and text writers, do not appear to extend to such emergencies as those Indicated. JOHNSON V. THE STATE. [27 Texas, 758.] Supreme Court of Texas, Oalxeston, 1865. Oran M. Roberts, Chief Justice. Homicide in self-defence— Commxxnicated threats. 1. When a party who has taken the Ufe of another relies upon threats against his own life as an element in his defence, he must show that at the 408 JOHNSON V. THE STATE. time of the killing, some act was done by the deceased from which he, the accused, might reasonably infer an intention of immediately carrying such threats into effect; in which case the accused was justified in the use of such means as were in his power, for his own defence, and if death ensued thereby, the homicide was justifiable. [Ace. Lander's case, ante, p. 366 ; Rippy's case, ante, p. 345 ; Williams' case, ante, p. 349 ; Evans' case, ante, p. 329 ; Head's case, ante, p. 341. Contra, Philips' case, ante, p. 383 ; Cari- co's case, ante, p. 389 ; Bohannon's case, ante, p. 395 ; Robert Jackson's case, post ,- Little's case, post.'] 2. Nor is it the law that the mere fact of being encountered or overtaken in the street or public highway, by one who has threatened another's life some months before, without any act indicative of an intention of then carrying such threat into execution, is " an adequate cause " to excite such " anger, rage, sudden resentment or terror," as renders the mind " incapable of cool refiection," so as to reduce a killing to manslaughter, under Art. 596 of the Texas Penal Code. [Pasch. Dig. Tex. Stat., Art. 2251.] 3. But in no case can mere antecedent threats, not accompanied by some demonstration indicative of their immediate execution, either justify the homicide of the party who made them, or reduce It from murder to man- slaughter ; and there is nothing in the 596th article of the Penal Code to countenance a different conclusion. [See note to Sloan's case, post.] 4. The jury were instructed that they could " take into consideration aU the facts and circumstances surrounding the parties at the time of the Idlling." Held, that this authorized the jury to consider ol antecedent threats made by the deceased against the life of the accused, and which, it was also proved, had been communicated to the accused. [See Bohannon's case, ante, last case, where the same instruction was given.] 5. The aflSdavits of jurors are not admissible to impeach their verdict. The appellant was indicted at the Spring Term, 1862, of the District Court of McLennan county, for the mur- der of Demetrius Hays. The offence was charged to have been committed on the 21st day of December, 1861. After various orders and continuances, the case came to trial at the Fall Term, 1864, when the defendant pleaded not guilty. The defendant proved by two witnesses, whose testi- mony is substantially the same, that they and the accused stayed at the house of Mrs. Parsons in Waco, the night previous to the morning on which Hays was killed; that on that morning the defendant left Mrs. Parsons' for the purpose of going up town to attend to some business ; that defendant carried his gun and took with him his negro boy, also armed with a gun, as had been the habit of defendant ever since the killing of his STATEMENT OF THE FACTS. 409 "brother, Houston Johnson; that defendant took the street he usually took, when he went up town, he and his hoy being on horseback ; that some five or ten minutes before defendant left Mrs. Parsons', the deceased and his nephew, James D. Hays, had started down the hack way to the river. The witnesses were standing in the porch, and their attention was called by a negro girl remarking " there goes Hays after Dr. Johnson." They then saw Hays riding up in a walk from the river to the street, in the direction of the street that Johnson was in ; that after Johnson had passed the street that Hays was in, and had passed the corner of the picketing and the house in the yard. Hays put his horse into a pace or trot, and rode up and turned the corner of the picketing into the street after Johnson. That after Hays had come into the street behind Johnson, the latter turned and shot, and Hays fell from his horse. One of the witnesses heard but the one shot ; the other stated that Johnson fired a second time, after Hays had fallen from his horse. By Thompson Newby, a witness for the defence, it was proved that Hays had made threats against John- son ; witness did not tell Johnson of the threats, but told Miller that Hays was carrying his gun for Johnson, and Johnson told witness to tell Hays to quit carrying his gun for him, or he would be compelled to hurt him. That Hays said he had waylaid Johnson and Beau- champ, and if they had come along that night he would have got them. Hays told witness this just after John- son and Beauchamp had had a difiiculty with Hays. That Hays made the worst of the threats on the evening or night after the ditficiilty, which was while the leaves were green and before corn was gathered, in the fall before Hays was killed. That Hays was in the habit of carrying his gun and six-shooter. On cross-examination, the witness stated that he never heard Hays threaten to attack and kill Johnson but once, and that was when he came home on the night that he said Johnson and Beauchamp had attacked him on his way from town. 410 JOHNSON V. THE STATE. That his head was bleeding and cut with a stick, and he said Johnson had broken his walking stick over his head, and that Beauchamp had shot at him ; that after he had come back from lying in wait that night, he said if tliey had come along he would have got them ; that Hays showed witness the place he lay in wait for them ; it was in the corner of his own field which witness was cultivating. That Hays' way of making threats was that if Johnson did so and so, he. Hays, would do so and so ; and in this way witness had often heard Hays threaten Johnson up to the time of his death. C. B. Tuning, a witness for the defence, testified that he had heard Hays threaten Johnson ; that Hays came to witness' house and asked him if he had some large buckshot, saying that Ms shot were too small and he wanted some larger ones ; that he intended " to set them up, or fix them up," meaning Johnson and Beauchamp ; that this was a day or so after Johnson and Beauchamp had a difficulty with Hays. That witness told Johnson what Hays said about him, and about his wanting buck- shot ; and also told him that he thought he was not safe, and he had better take some one with him when he went about. Isam Farris, for the defence, testified that he heard Hays say that he and Johnson could not live in the same range and travel the same road. There is other evidence in the record introduced by the defence, and relating to the previous killing of Houston Johnson, a brother of the defendant, by one Ensaw ; in which, it seems, Hays had been accused of participation. With reference to the evidence of antecedent threats by Hays introduced by the defence, the Court charged the jury as follows : " The defendant, Johnson, seeks to justify or excuse the killing of Hays on the ground of threats made by Hays to take the life of him, Johnson. Now, threats by Hays to kill Johnson, do not afford a justification for Johnson's killing Hays, unless it be shown by the evidence that at the time of the killing, Hays, by some INSTRUCTIONS TO THE JUEY. 411 act then done, manifested an intention to kill Johnson. '' In ascertaining the guilt or innocence of the defend- ant, the jury have the right to take into consideration all the facts and circumstances surrounding the parties at the time of the killing, which were given in evidence before you. If the defendant, at the time of the killing, had a reasonable apprehension that it was the intention of Hays to make an immediate assault on him and take his life, or do him some great bodily harm, he had the right to defend himself, and it would make no difference whether the danger was real or imaginary, so that it had the appearance of being real. 'But, in order for Johnson to justify himself on this ground, you must believe from the evidence that the circumstances surrounding the parties were such as to create a just and reasonable apprehension, such as would convince the mind of a reasonable man beyond all reasonable doubt, that it was the intention of Hays to make an immediate assault on Johnson, and take his life or do him some great bodily harm ; and if you so believe, you will, by your verdict, find the defendant not guilty. But Johnson had no right to kill Hays under the apprehension that Hays might kill him at some future time ; and if that was the motive that induced Johnson to kill Hays, he was guilty of murder in so doing." The defendant, by his counsel, asked the Court to instruct the jury: " 1st. If the jury believe from the evidence that from aU the circumstances in the case the defendant had reasonable grounds to believe, at the time of the killing, that it was necessary to kill Hays to save his own life, or from great bodily harm, then the killing was neither murder nor manslaughter, but self-defence. " If the Court instructs as to threats under the statute,. § 612, then the following instructions are asked : " 2d. Section 612 governs and is applicable only'when the defendant seeks to justify under threats alone. "3d. No statute can abridge, circumscribe or lessen. the right of self-defence." 412 JOHNSON V. THE STATE. The Court refused these instructions, and the defend- ant excepted. The jury convicted the prisoner of murder in the second degree, and assessed his punishment at five years in the penitentiary, and judgment^ was given ac- cording. Motion for new trial on all the usual grounds, and also because "the charges of the Court were given in such a way that the jury were misled in the case, and said instructions were contrary to law." The motion being overruled, the defendant excepted, appealed, and assigned nine causes of error, nearly all of which are sufiiciently indicated in the foregoing state- ment of facts, and in the opinion of the Court. The sixth assignment was as follows : " The Court erred in its main charge to the jury, in instructing them only as to the offence of murder in the first and second degree, and omitting to instruct them as to what circumstances would reduce the ofience to manslaughter ; thus forcing the jury to the conclusion, that if they found the de- fendant guilty of any offence," it could not be less than murder in the second degree." F. W. Chandler, M. H. Bowers, and R. N. Goode, for the appellant ; the Attorney- Oeneral, for the appellee. MooRE, J., delivered the opinion of the Court: ******* * *** A detailed statement of, or comment upon, the facts of this case, would be an unpleasant as well as unprofit- able task on our part. It is sufficient for us to say that' we are clearly of opinion that the Judge in the court below was correct in holding, if the deceased was killed by the accused, which was not controverted, that the case was, unquestionably, either murder or justifiable homicide. The law upon this sul)ject, if it were not suffi- ciently so before, has been clearly and conclusively settled by the provisions of the Code,* so that " he who "See the provisions of the Texas Code on justifiable homicide, ante, p. 181, note. OPINION — THREATS NO EXCUSE FOB HOMICIDE. 413 runs may read." And it is time that it should be looked to by every one as his rule of conduct, instead of his own passions, or a pseudo popular sentiment, that any one who has threatened another's life is an outlaw, or beyond the pale of legal protection, and may be slain with im- punity by his enemy. If they do not, it is at least the imperative duty of those who do not make, but adminis- ter the law, to follow and enforce its plain and obvious commands. The circumstances under which a party, who takes the life of another, may rely upon " threats " as an element in his defence, is clearly shown by Art. 612 of the Penal Code." If, at the time of the homicide, there is any act from which the accused may reasonably infer an intention to carrj'^ them into eflfect, he is justified in resorting to such means &.s may be then in his power, to defend and protect himself against their execution. If death ensues, it is ju^ifiable homicide. But in no case under the provisions of the Code, or out of it, if we were permitted to look elsewhere to ascertain the law upon the subject, can it be held that mere threats, or threats imaccompanied by some demonstration, from which the accused may reasonably infer the intention of their execution by the deceased, either justify such hom- icide, or reduce it from murder to manslaughter. A dif- ferent view of the law has been sought to be maintained by a reference to the third clause of Art: 596 of the Penal Code, which is in the following language, viz: "The passion intended is either of the emotions of the mino. known as anger, rage, sudden resentment or terror, ren- dering it incapable of cool reflection." This clause is introduced into the Code in connection with the preced- ing clauses of the same article, for the purpose of more clearly defining what was meant, in the definition of manslaughter, by the expression, "under the immediate influence of sudden passion," and it is preceded by the d^aration, "that the provocation must arise at 'the time of the commission of the offence, and that the passion is not the result of a former provocation." Manslaughter ''Sec the article in question in the syllabus of Pridgen's case, pott. 414 JOHNSON V. THE STATE. in itself is defined in the Code as " voluntary homicide committed under the influence of sudden passion arising from adequate cause, but neither justified or excused by law." The doctrine contended for, must, therefore, be narrowed down to this simple proposition, that the mere fact of being encountered or overtaken in the street, or public highway by one who has threatened another's life some months before, without any act whatever, indicative of an intention of then carrying such threat into execu- tion, is " an adequate cause " to excite such " anger, rage, sudden resentment, or terror," as renders the mind "in- capable of cool reflection." The bare statement of this proposition is sufficient for its refutation. If such was the case, the language of passion,.forgotten with the occasion which gave it utterance, the idle tattle of the silly or the inebriate, must be paid for with the penalty of life. A full flood-gate would be given' to the most Avicked pas- sions, and murder, fearful as it already is, in a tenfold greater degree would stalk through the land, clothed in the panoply of the law. The seventh assignment of error is based upon the supposition that the charge' of the Court withdrew from the consideration of the jury the previous threats of the deceased to take the appellant's life. We cannot, how- ever, regard this as either a fair or legitimate construc- tion of the charge of the Court. Its import is obviously directly to the contrary. The jury were informed that they had " the right to take into consideration all the facts and circumstances surrounding the parties ait the time of the killing, which were given in evidence," etc. What facts and circumstances were the jury to under- stand, were here referred to ? Can any sane mind sup- pose that the Court was thereby restricting the jury to the mere consideration of what transpired at and imme- diately preceding the homicide? No facts or circun> stances had then occurred to which this part of the (iharge could have any appropriate reference. The ap- pellant had attempted the development of none such as the basis of his defence. Full two-thirds of the time the INSTRUCTIONS NOT EXCLUDING PREVIOUS THREATS. 415 Court was engaged in the trial of the case, however, must have been consumed in developing and expounding the evidence touching the alleged threats, conspiracy, and lying in wait by the deceased to take the life of the accused, as the ground of his defence. Although these things were antecedent occurrences, is it meant to be said that they were not vital, living facts and circum- stances surrounding the parties at time of the killing ? How can any facts and circumstances be said to surround parties, save as they connect themselves with, and are explanatory of their conduct and intention in the partic- ular matter drawn in question ? Shall not all those, which are legitimately so connected, be properly said to sur- round the parties? If more than we have said were necessary to vindicate this part of the charge from the severe criticism that has been passed upon it, it will be amply found in what is said in the same connection in the subsequent part of the charge. For the portion of it against which this objection has been j)ressed with so much zeal, is but an isolated paragraph culled from the body of the charge. The fair and natural construction of the entire charge, and especially when taken in con- nection with the facts transpiring during the progress of trials, leave not the slightest ground for its misconcep- tion. In connection with the objection to the charge, it is insisted that it was, in fact, misconstrued by the jury, and in proof thereof the affidavit of three of the jurymen was presented to the Court on the motion for the new trial. Aside from the fact that this is not recognized by the code as a' ground for a new trial, we may say that no case has yet occurred in which such affidavits have been tolerated in the Courts of this State for the purpose of impeaching a verdict. And when we consider the wide door which would be thereby opened for improper practices, we would hesitate long, and feel ourselves constrained by imperative necessity for accomplishing the ends of justice, before we could give our sanction to such a practice. Although a few isolated cases may be 416 PRIDGEN .V. THE STATE. found in wliich sucli affidavits have been received, the better practice seems to have been established in most, if not all the States except Tennessee, to reject them. The question has been before this Court heretofore on more than one occasion, and it has been uniformly decided adversely to the appellant. See Little v. Bird- well, 21 Tex. R., 612 ; Kilgore v. Jordan, 17 Id., 341. We see nothing in the present case to invite us to a different line of decision. The affidavit of the jurors is not more clear than the instruction by which it is alleged they were misled ; and if they failed to understand it, with all the light shed upon it by the transpiring events during the progress of the trial, it may be well questioned whether they fully understood the true import of the ex parte affidavit which was procured from them. » * * * * * * * * * 1(r Judgment affirmed. PRIDGEN" V. THE STATE. [31 Texas, 420.] Supreme Court of Texas, Austin, October Term, 1868. Amos Morkill, CJiief Justice.* Livingston Lindsay, \ Allen H. Latimer, j . ■ ^ r j- Colbert Caldwell, \ Associate Justices. Andrew J. Hamilton, J Homicide in selp-defbnob — Communicated threats. 1. Article 612 of the Texas Penal Code reads as follows: "Where a defendant accused of murder seeks to justify himself on the ground of threats against his own life, ho may be permitted to introduce evidence of the threats made, but the same shall not be ref>'nrcl('il as affording a justifi- cation for the offence, unless it be shown that at tlic lime of the homicide, * These judges held office by military appointment undi>r the Recon- struction Act of Congress of July 19, 1867. SYLLABUS. 417 the person killed by some act then done, manifested an intention to execute the threat so made. In every instance where proof of tlu-eats has been made, it shall be competent to introduce evidence of the general character of the deceased. Such evidence shall extend only to an enquiry as to whether the deceased was a man of violent and of dangerous character, or a man of kind and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made." Paschal's Dig., Art. 2270. Under this statute, it is the right of the accused to introduce evi- dence of threats made by the deceased against him, and communicated to him, without first establishing as a predicate to the introduction of such evi- dence, that at the time of the killing, the deceased was doing some act indi- cating an intention of carrying such threats into execution. Lindsay, J.. dissenting. [Ace. Robert Jackson's case, post. Contra, Myer's case, post; Hays' case, posi.'] 2. Whether such threats, taken in connection with the facts which existed at the time of the kiUiug, are sufHcient to justify the killing, is a question of fact for the jm-y ; and the judge cannot determine this question as a question of law, by ruhng that the facts immediately sun-ounding the killing do not afford a sufflcieut predicate for the introduction of evidence of the previous threats. 3. The whole object of proving threats is to ascertain the mind of the prisoner at the very moment of the commission of the homicide ; every circumstance which tends to prove this, is important, because a murder is a matter of intent, and cannot exist without malice. [See Little's case, ^osi; Scoggins' case, post; Sloan's case, post..] 4. Whenever threats of the deceased against the defendant are proved, evidence of the character of the deceased for violence is also, by the pro- visions of the statute, to be admitted 5. A denial of any legal right in a criminal case is sufficient to reverse the judgment; and to this class belongs the ruling above indicated. [Ace. Logue's case, ante, p. 269 ; Contra, Evans' case, ante, p. 329. And see note b. to Wells' case, ante, p. 151.] Indictment for murder and conviction of murder in the second degree. Several witnesses were present at tlie tragedy. Some were sworn for the prisoner and some for the State. Yet there was such near agreement as rarely oc- curs. The killing was at the store of Henry F. Spear, at the Missouri Valley post-office, in Victoria county, Texas, on the twelfth of October, 1867. The deceased, Cornelius Pridgen, and the witness, Daniel Weiseger, were sitting at the store-house door of Spear, when the accused, Pridgen, and Spear rode up and saluted them with usual politeness. Brown did not return the 418 PEIDGEN V. THE STATE. salutation. Pridgen entered tlie store and sat , down in a chair. Brown entered by another door and took a seat upon the counter. Both were armed with six-shooters. Brown asked Pridgen if he had found his horse. Prid- gen said that be had not. Brown said, " He is in your brother's field." Pridgen then said, "I think it was unkind and ungenerous in you to employ the young man Thompson. He had previously been in my employment, and I was on his bail bond, and could at -any time deliver him up." Brown replied that he supposed Thompson was a free man, and seemed to deny any knowledge of the suretyship. And here Brown com- plained that Pridgen had accused him with being con- cerned with Thompson in stealing the horse. This Pridgen denied, and demanded Brown's authority for the accusation. Brown pointed to the witness, Weis- eger. Weiseger, being appealed to by Pridgen, stated what he had told Brown, and who was his author. Pridgen concluded the conversation by saying, " I do not care for you," at the same time rising from liis chair. To which Brown instantly replied, "No, and nobody •cares for you," as he descended from the counter. No other words were spoken, except the remark by Pridgen, " Do you draw your six-shooter ? " or, " Don't draw your six-shooter." About the same moment Pridgen fired, and immediately followed it by another shot. Both shots took eff'ect. Brown fell, and died almost immedi- ately. His pistol was found girded on behind him. It had not been removed from the scabbard. One witness saw Brown during the dialogue put his hand behind him, as if to adjust his pistol ; another witness thought the pistol impeded Brown's descent from the counter, though Pridgen did not fire until he had descended to his feet and taken one step forward. Pridgen had the advantage •of having his pistol drawn when he first got upon his feet, or about the same time. Another witness swore positively that Brown made no attempt to draw his pistol, Tbut had his hands at his side when he got iipon his feet and until he was shot. OPINION — ADMISSIBILITY OF THREATS. 419 The whole dialogue was an angry conversation, (thongh one witness swore to Pridgen's coolness until he rose from his chair,) and when Pridgen said, "I don't care for _you," or, "I don't care who said it," as others had it, he was much excited. There was evidence that when Brown descended from the counter he took one step forward. Upon this state of the evidence, and at different periods, Pridgen offered evidence that Brown had the day previous and on two other days before, threatened his life, and that hp was a dangerous man, likely to execute his threats. The Court excluded this evidence, on the ground that no sufficient basis for this proof had been laid. The Court added that he was the judge of the circumstances at the time of the killing, and, therefore, of the admissi- bility of the evidence. The Court charged three degrees ■of felonious homicide, much in the language of the stat- ute. Paschal's Dig., Arts. 2251, 2252, 2266. And he re- fused all charges of excusable homicide in self-defence. The jury found the defendant guilty of murder in the second degree and assessed his punishment at five years' imprisonment. The points were all saved by bills of exceptions, counter-instructions, and motions for a new trial. The defendant appealed. James H. Bell, for appellant ; E. B. Turner, Attorney- General, for the State. Caldwell, J. — This was an indictment for murder, in the District Court of Victoria county ; trial at the spi'ing term, 1868, and a conviction for murder in the second degree. During the progress of the trial, there were several exceptions to the ruling of the Court, all embodied in a motion for a new trial, which was overruled, and the prisoner appealed. Two errors are relied on for a reversal, all others having been abandoned by counsel for the prisoner in this Court. \ . The Court erred in its rulings, " in refusing to permit 420 PRIDGEN" V. THE STATE. the defendant to make proof of previous threats immedi- ately preceding the shooting, which were communicated to the defendant." 2. The Court erred " in refusing to permit the defend- ant to introduce proof of the violent and dangerous character of the deceased, and that he was a man likely to carry his threats into execution." The admissibility of " threats " as evidence in justifi- cation of homicide, has ever been a perplexing question, and it cannot be safely said that there is any fixed rule, assented to by jurists as a uniform one, alike applicable to all cases. Each is impressed with its peculiar sur- roundings, and must be judged of by them. The Code of Criminal Procedure [Paschal's Dig., Art. 2270] provides that, "where a defendant accused of mur- der seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats made ; but the same shall not be regarded as affording a justification for the offence, un- less it lie shown that at the time of homicide the person killed, by some act then done, manifested an intention to execute the threat so made. In every in- stance where proof of threats has been made, it shall be competent to introduce evidence of the general character of the deceased. Sach evidence shall extend only to an enquiry as to whether the deceased was a man of violent or dangerous character, or a man of kind and inoffensive disposition, or whether he was such a person as might reasonably be expected to execute a threat made." This we do not regard as a new rule, but a statutory declara- tion of the old. The judge who presided on the trial in the court below, seems to have acted upon the theory that before evidence of threats could be introduced, there must have been laid a predicate in the nature of proof disclosing some act at the time of the homicide, manifesting an intention to carry the supposed threats into execution, and that such acts were questions of law for the Court, and not of fact to be submitted to the jury. Thus viewing the law, it waa OPINION — ADMISSIBILITY OF THREATS. 421 lield that the circumstances surrounding the parties at the time of the killing did not furnish the required pred- icate. It is an elementary rule, that if there be any evidence is a question for the Judge, but its sufficiency for the purpose relied on is for the jury to determine. 1 Grreenl. on Ev., § 49. K we hold that the defendant must first prove that his antagonist manifested a hostile purpose iby acts done at the time of the homicide, it would seem that antecedent threats of violence could be of no avail, because these ' acts of themselves would excuse, extenu- ate, or justify, according to their nature or grade. Thus the whole object of the law in acquainting the jury with previous threats would be defeated. The sole object .of introducing threats against a pris- oner is to ascertain his frame of mind at the very moment of the commission of the homicide. It follows, then, that every circumstance, however light or trivial, that can furnish any indicia of this frame or condition of the mind becomes highly important,' and is relevant to ascertain the intent with which the act was committed, because murder is essentially the creature of intent, and cannot exist without malice. A jury might with perfect propriety conclude that the acts of the deceased at the time of the killing were not sufficient to extenuate or justify, but, when these acts are coupled with the previ- ous threats of violence, communicated to the defendant, they may present an entirely new phase; "trifles light as air " then become pregnant with meaning, and com- pletely negative the idea of malice. In Rector's case,* 19 Wend., 589, counsel for the prisoner offered evidence of the rioters breaking in the prisoner's house on the previous Saturday night, and that the rioters threatened to return on another night and break in unless admitted. This was offered to establish a reasonable ground for the prisoner's apprehending the execution of a similar threat now repeated. Judge Cowen held that Ahe evidence ought to have been received, remarking '■Post. 422 PEIDGEN V. THE STAT'S. that real alarm on tlie part of the prisoner on apparent^ though, unreal, grounds, was pertinent to the issue. The jury might have laid no stress upon the circumstance^, but it should have been received, because we cannot say they would not. The lightness of a relevant circum- stance is no argument for withholding it from the jury. In Howell's case,** 5 Greorgia, 54, the distinct proposi- tion is, whether it was competent for the defendant to prove threats by the deceased against the prisoner. Judge Wakneb, in delivering the opinion of the Court,, said: "Whether the evidence was sufficient to excite the fears of a reasonable man * * was a question for the jury. The evidence was competent to show the quO' animo of the defendant. All we can say is, that the c[uestion propounded to the witness * * was a legal and competent question. What effect the answer would have had upon the j-ury, of course we cannot know. All we decide is, that on a trial for murder * * it is com- petent, under the provisions of our Code, for the defend- ant to ask a witness if he did not know that the deceased * * made any threats to drive the prisoner from the place or take his life ; " and Sector's case is cited with approbation. When it is borne in mind that in Howell's case, the 'deceased was approaching the prisoner without being aware of his proximity, the defendant discovered him- self and fired the fatal shot, it will be seen that it is a. much stronger case than the one at bar. Lander's cases'^ 12 Tex., 462, is relied on by the Attor- ney-General in support of the correctness of the ruling of the Court below. We think it rather in affirmance of the view we take. In that case, the evidence of threats. by the deceased against the prisoner was admitted -with- out objection. ISTor did this Court on appeal intimate that it was improperly done. It will be observed that in this case. Lander, the threatened party, went about com- passing the destruction of his enemy, waylaid and shot. him, when he was whoUy unconscioua of his presence^ i" Post, note to Monroe's case. ° Ante, p. 365. OPINION — ADMISSIBILITY OF THREATS. 423 There could be no pretence here of acts done by the de- ceased at the time of the homicide, and yet the threats were introduced. Lander acted upon the vulgar notion that he who threatens the life of another is an outlaw as to the person menaced, without the pale of the law, and may be circumvented and slain with impunity. The point made was as to the sufficiency of threats, unaccom- panied by acts at the time of the killing, to excuse, ex- tenuate, or justify, and it was rightly held that they were not sufficient. Johnson's case,** 27 Tex., 758, is to the same eflfect. Threats were introduced without objection, but it was assigned as error, that the Court, in the charge, withdrew from the consideration of the jury the threats as an element of the prisoner's defence. In upholding the suf- ficiency of the charge and its freedom from the alleged objection. Judge Mooee said: "Full two-thirds of the time the Court was engaged in the trial of the cause, must have been consumed in developing and expounding the evidence touching the alleged threats * * as the ground of defence." Although •' these things (the threats, among others) were antecedent occurrences, is it meant to be said that they were not vital living facts and circumstances surrounding the parties at the time of the killing ? How can any facts and circumstances be said to surround parties, save as they connect them- selves with, and are explanatory of, their conduct and intention in the particular matter drawn in question? Shall not all those which are legitimately so connected be properly said to surround the parties ? " From this it is plain the Court was of the opinion that the threats were circumstances from which legitimate deductions might be drawn, and should be referred to the jury. If, then, such an important element, in ascertaining- the prisoner's frame of mind, and the intent with which he committed the act, as previous threats against his life are withheld from the jury, can it be seriously insisted on that he has had a trial under the law of the land I « Ante, last case. 424 PBIDGEN V. THE STATE. It was insisted on in argument that this Court, upon inspection of the whole record, might affirm the judg- ment, if, in its opinion, there was sufficient evidence to sustain the verdict. This is not the law. The rule may be applicable in civil cases, but not in criminal prosecu- tions when life is involved. A denial of any legal right is sufficient to reverse the judgment. Phipps v. The State, 3 Coldw., 344. It is the right of the prisoner to have every relevant circunistance from which a conclusion can be drawn con- sistent with innocence, daguerreotyped on the mind of the jury and reflected back in the shape of their ver- dict. The effect of the ruling in the Court below was, that the circumstances surrounding the parties, developed on the trial, were not sufficient to extenuate or justify, not- withstanding the threats. This was a question of fact for the jury, to be responded to under a proper charge of the Court. As the case must be again referred to a jury, we will only notice the facts to observe, that at the time of the homicide the parties confronted each other. The proof showed there was a present ability on the part of the deceased to execute the supposed threats ; that there had been ill feeling between the parties ; and an angry conversation, growing out of their differences, was going on at the time of the killing ; that there were simultane- ous movements by the parties, of such menacing nature, as to induce one of the witnesses to seek safety in avoiding the apprehended shots of both. We think all these circumstances should have been interpreted by the jury through the mirror of the threat- ened attack. We do not say they ought to have had any weight with the jury. On this point we express no opinion at all. All we decide is, that a prisoner accused of murder may intro/iuce evidence of threats against himself by the deceased, and whether there are any acts done at the time of the killing by the deceased which will extenuate or justify, is a question of fact for the OPINION-T-ADMISSIBILITY OE THEEATS. 435 jury. It follows from this, that evidence also of the character of the deceased may be introduced, etc., as provided in the code. Paschal's Dig., Art. 2270. It may be said that the policy of permitting the intro- duction of threats as evidence before a predicate is laid, vrill have the effect of enabling the criminal to screen himself from the consequences of his crime ; that the Courts should scrutinize with jealous care every avenue by which the criminal might escape. To the former we reply, that Courts, as such, can have no policy of their own. To the latter, as men, we may lament the preva- lence of crime, and moreover, the decadence of public virtue, evidenced by the reckless disregard of human life ; but as jurists, we can only expound the law as it has been handed down to us by the fathers, and leave the consequences to God and the country. The judgment of the Court below, in overruling the motion for a new trial, is reversed, and the cause re- manded for another trial. Lindsay, J., dissenting. — I cannot concur in the con- clusion, arrived at by my learned brothers, in the determ- ination of this cause. In this case, an indictment was found by the grand jury of Victoria county, for murder, against appellant, Wiley W. Pridgen, upon which he was arraigned, tried, and found guilty by the petit jury, of murder in the second degree, and his punishment assessed to be confinement in the penitentiary of the State for a period of five years. The judgment of the Court was thereupon entered, from which the prisoner has appealed to the Court, and it is now here for re- vision. The grounds upon which a reversal is sought, are, that the Court below erred in excluding from the jury, upon the trial, testimony offered to prove that the deceased had made threats against the life of the prisoner, which threats were communicated to him prior to the homicide, and that the deceased was a man who might reasonably he expected to execute a threat made. 436 PEIDGEN V. THE STATJi:. It is insisted that the Court palpably erred in denying^ the admissibility of the testimony offered; that the- Court had no right to pass a preliminary judgment upon the testimony offered, even to determine upon»its rele- vancy, or to ascertain, if introduced, whether it would be sufficient in law to justify the homicide charged upon the prisoner. It is contended that article 2270, Paschal's Digest of the Criminal Code, has established a new rule of evidence in criminal trials, which completely divests the Judge of all discretion in the conduct of the trial in the admission, or exclusion of threats which have been brought to the knowledge of the accused previous to the commission of the homicide. We cannot think that such a scope was intended to be given to this enactment by the legislature. A latitude of interpretation so dan- gerous to social order, and, in its practical operation, sa subversive of the safeguards to all personal security,, should not be indulged, unless required by the most ob- vious and authoritative command of the law-giver. The article in the Criminal Code is in this language: " Where a defendant, accused of murder, seeks to justify himself on the ground of threats against his own life, he may be permitted to introduce evidence of the threats- made, but the same shall not be regarded as affording a justification for the offence, unless it be shown that, at the time of the homicide, the person killed, by some act then done, manifested an intention to execute the threat so made." Such is the language of our criminal code, which it is conceived has interpolated a new rule of evidence in the criminal jurisprudence of our State. In our view, it is not^ a change in the common-law rule of evidence in criminal cases, but a change of the nature and character of the homicide, committed upon a knowledge of previ- ous threats, coupled with a demonstrative attempt tO' carry those threats into execution at the time of the kill- ing. Instead of reducing such killing to manslaughter, as at the common law, it simply divests the killing of all malice, express or implied, and makes it justifiable OPINION — ADMISSIBILITY OF THREATS. 427 homicide, according to this provision in our criminal code ; while at ihe common law, such killing would he manslaughter, and punishable accordingly. At the common law, the accused was not debarred the privilege of proving previous threats of the deceased, when he had laid the foundation for their introduction, by showing that deceased, at the time of the killing, was- making an effort to carry them into execution. And in such case, if the deceased was the aggressor in the con- flict, it would be self-defence "^y the common law in the slayer, unless the proof developed that the accused had sought an occasion to bring on the coUison. It is, then,, no new rule of evidence. It is a change of the character of the homicide which this provision of the code gives to the effect of the evidence, making what was manslaughter at common law, justifiable homicide by the code. Both systems permit the introduction of previous threats : the one to rebut the presumption of malice implied in the killing; the other, enlarging the liberty, if not the right,, of self-defence, makes an act justifiable which by the common law was a felony. This article in the code hath this extent, no more. The peace and good order of society, the personal security of the citizen, the protection of life against the wanton violence of the desperate and the reckless, will be put in continual jeopardy, if the principle is once established by positive law, or by judicial determina- tion, that the judges, who preside over the public trials in criminal matters have no discretion in controlling the admissibility of testimony. This is the peculiar prov- ince of the judge, and one of the highest and most cherished attributes of the judicial function in all trials by jury. The judge must determine the law of the case ; the jury, upon both theory and principle, are the judges of the facts. It is true, in the practical operation of our judicial sys- tem, that the juries, by their general verdicts, do actually decide both upon the law and the facts of a case ; and in all acqtuittals, if they should decide erroneously,. 428 PEIDGEN V. THE STATE. the results are beyond the correction of the courts. It is for this reason, according to the philosophy of our judicial system, the power of control over the admissi- "bility of testimony is properly confided to the Judge. His errors are subject to correction, hy motion in arrest of judgment, for a new trial, or Iby appeal. The error of the jury upon a finding of " not guilty" is past all correction. In these determinations society has a deep interest, as well as the accused ; and it is as equally im- portant to its welfare that the guilty should be punished as that the innocent should be shielded and protected. Is it a principle of law, the suggestion of wisdom, the dictate of policy, or requirement of humanity, that a Court, while tenderly regardful of the rights and the- interest of a prisoner, should be totally indiff'erent to social order and personal security ? The judge is no less the guardian and protector of the public weal, than he is of the individual rights of the person who may be charged with a violation of the laws of the government. The rule of action on this subject is clearly laid down by Justice Stoet, in the case of the United States v. Bautista, 2 Sum., 343: "The jury should respond as to the facts, and the court as to the law." This is in perfect harmony with the common law, and with our own Crimi- nal Code, which declares, in article 3058, Paschal's Digest, that "the jury are the exclusive judges of the facts in every criminal cause, but not of the law in any case." It will be observed, from an examination of the article under consideration, that the language of it is permissive, not imperative. It is, that the accused may be permitted to introduce proof of threats. Why not have used the language of command, if it Was intended to deprive the court of all discretion, and give up the authority to the jury to decide the question of law, whether such threats were to be " regarded as affording a justification of the offence;" a pure and unmixed question of law, which, according to the code, must be judged of exclusively by the Court. The questions of fact for the jury to determine were, whether the threats OPINION — ADMISSIBILITY OF THEE ATS. 429 were made and communicated to the prisoner before the commission of the homicide, and whether at the time of the killing, the deceased manifested, by any act then done, an intention to execute the threats so made. These were the simple facts, of which the jury were to judge. If either of these facts was wanting in the proof, whose province was it to determine the legal question whether a justification of the homicide was established, the Court or the jury? In legal • contemplation both facts must concur to establish the justification. Is justifica- tion a conclusion of law, or a mere finding of facts by the jury? If it be a conclusion of law, then, by the code, the jury are the judges "of the law in no case." One of these facts being wanting in the proof embracing the threats proposed, and no promise or assurance being given by the party that this hiatus would be fiUed — that this link in the broken chain would be supplied in the further progress of the trial — the judge could not shirk the legal responsibility of declaring that there was no evidence conducing to establish a justification under the law, without proving false to duty and recreant to the interest of society. If this- view of the law be not correct, it is needless to seek in political causes a reason for the alarming and disgraceful frequency of homicides in our community. It may readUy be found as an in- herent vice in our criminal law, or in its judicial admin- istration. When, in fact, the res gestce had already been made manifest to the Court, who was to defermine the question of law, whether there was any evidence in the case which, in the language of the code, could be " re- garded as affording a justification of the offence," the Court or the jury ? "Who was to judge, after a full detail of all the "acts done" at the time of the homicide, whether any act was then done which superinduced the legal necessity or the judicial propriety of permitting the accused to introduce previous threats, brought to his knowledge before the killing took place? It was the province of the Court so to judge, and the Court alone. 430 PRIDGEN T. THE STATE. If there was no act then done manifesting an intention to execute the threats, the threats, however numerous and violent they might have been, were improper testimony for the j ury, because in the philosophy of the law, they woiild serve only to bias and prejudice the minds of the jury, and thus defeat the pure administration of j ustice. There was no evidence of justification. The question of justi- fication is a deduction of law from the facts. Threats alone cannot constitiite it. There was, then, no evidence of justification, unless the deceased at the time of the homicide was manifesting, by a positive act then done, an intention to execute the threats. It is an unquestioned rule of law that the judge alone is to determine whether there be any evidence to establish a legal proposition or consequence. The jury, when there is evidence, are the sole judges of its sufficiency. There was not a single witness who was present at the time of the homicide, and who testified on the trial, among the five who were present, who would venture to state that the deceased made any attempt, by any act then done, at violence upon the person of the accused. The immediate transaction was utterly barren of all such proof. If, upon the testimony given in this case of the " acts done " at the time of the homicide, they can be tor- tured into circumstances even conducing to prove that the deceased manifested an intention to carry previous threats into execution, then, in open, public homicides, the flash of the eye, the curl of the lip, the elevation of the nose, the passionate intonations of the voice, the crimsoned flush of the cheeks, the slightest deviation from the quiet repose of a statue, become legal synonyms of " acts done " at the time of the homicide, and every man- slayer will find his perfect vindication and legal jus- tification in the " acts done " by his unfortunate victim. Such an interpretation of our criminal law should not be given, unless its language be so plain and explicit as to leave no room for construction, because the mischiefs which will inevitably result in its practical operations upon society are beyond computation. In effect, it OPINION — ADMISSIBILITY OF THREATS. 431 stamps tlie signet of impunity upon every open, pulblic homicide which, may ever after Tbe committed in the com- munity. The judge, in our opinion, violated no rule of evidence, in exercising his discretion, by excluding the testimony offered. The enquiry then recurs, did he, when all the facts constituting the res gestce are taken into considera- tion, exercise that discretion soundly in rejecting the tes- timony offered to prove threats ? This certainly depended upon the facts already proved, or pledged to he proved, in the subsequent progress of the trial, which might establish their materiality as a ground of justification. If the proposition be true, as we think the law clearly settles, that the judge has the right to exercise his judgment in determining upon the rele- vancy of testimony, in revising, his judgment in this case, we, as judges of the law, are bound to make the extraor- dinary assumption, that the threats proposed to be proved, in conjunction with what had already been proved, of the immediate circumstances of the killing, were a justification in law, when, in fact, it might be that not a single member of the Court so believed. For, we are simply required to revise his judgment upon the law as to the conclusion, whether, if let in, the proof would be sufficient to establish the justification. With the exercise of the discretion of inferior tribu- nals appellate courts are little inclined to interfere. And they rarely ever do interfere, unless manifest and palpa- ble wrong has been committed. There is a philosophical reason why they do ordinarily refuse to interfere with the legal discretion of inferior tribunals. It is be- cause such tribunals are in closer contiguity with the scenes and incidents of the transactions upon which they are called to pass judgment, and they are required to hear direct and immediate rehearsals of the whole drama, which gives them better opportunities of considering and weighing all the concomitant and adventitious circum- stances, inseparable from all such trials, but which can- not be photogaphed and transferred to the record for the 432 MYERS ET. AL. V. THE STATE. revision of an appellate court. I capnot perceive that any manifest wrong has been done to the prisoner in this case. On the contrary, from the clear and explicit detail of the facts, occurring at the time of the tragedy, the prisoner received as favorable a verdict from the hands of the jury as he had any just right to expect. Judgment reversed. MYERS ET. AL. v. THE STATE. [33 Texas, 525.] Supreme Court of Texas, Tyler Term, 1870. Amos Moeeill, Chief Justice. Livingston Lindsay, ) MosES B. Walkee, V Associate Judges. Jambs Denison, ) Homicide ix self-defence — Comjiunicatbd threats— Expressions ow OPINION. 1. Though the Crimuial Code of Texas [Pasch. Dig. Stat., Art. 2270] is explicit that a party accused of murder may justify the homicide by proof of threats against his own life by tlie party slain, coupled with some act of the latter at the time of the homicide, manifesting an intention to execute the threat made, yet the rule which controls the mode of introducing proof of such threats, is left by the Code to be settled by the principles of the com- mon law. [See the statute in Pridgeu's case, ante, last case and quosre, as to the meaning of this dictum. See note, sub fin.] 2. The threat which will justify a homicide must bo an actual threat by the slain party, to talse the life of the slayer, and such threat must have been brought directly to the knowledge of the slayer ; and moreover, it must be unequivocally shown that, at the time of the killing, the party slain was doing some act which demonstrated his intention to carry the threat into execution. And if such positive demonstration is made by the party slain at the time of the homicide, the accused is always entitled to the benefit of such testimony as will show all such threats of his victim, as were communicated before the killing. [See note, sub fin.} 3. Expressions of an opinion by the party slain that the accused wa« pursuing a line of conduct which would endanger or cost him his life, STATEMENT OE THE FACTS. 483 canuot be considered threats against the life of the accused ; and it was not error to exclude from the jury testimony offered by the accused to prove such expressions, and that they had been communicated to him. [See note, sub fin.J^ The appellants, Robert C. Myers, David Myers and George W. Hardy, were jointly indicted for the mnrder of William H. Millican. They pleaded not guilty, and were jointly tried at the same term, the jury finding them guilty of murder in the second degree, and assessing their punishment at six years confinement at hard lahor in the penitentiary. The killing took place on the evening of Sunday, the sixth of February, 1870, in a " saloon " kept by Robert C. Myers in the town of Millican. Whatever evidence of antecedent ill will between the parties may be implied in the facts of the case, there had been no quarrelling nor previous conflict. The circumstances immediately at- tendant upon the killing, were thus stated by H. A. Long, the first witness for the State : On the sixth of February, 1870, witness was living vsath R. C. Myers, and was acquainted with Millican, the deceased. About six o'clock, p. m., of that day, Millican came into Myers' saloon, saying " good evening, gentle- men." R. C. Myers, G. W. Hardy and David Myers were in the saloon, but they made no reply to Millican's salutation. Millican walked in and passed along the side of the counter, when R. 0. Myers fired two shots in quick succession, one taking efiect in the side of the de- ceased, the other in his back. The gun used by Myers was a double-barrel shot-gun. Witness was in the saloon when Millican entered it ; he wore on that night a heavy black overcoat. The house was kept as a drinking saloon by R. C. Myers ; witness had seen Millican come into it often, and sometimes as late as nine o'clock at night. Drinking water was kept at or near the end of the coun- ter, towards which Millican was walking when shot by Myers. Deceased frequently came into the saloon and got a drink of water. After the second shot, witness ran out and reported that Millican was shot, and got one 434 MYEBS ET. AL. V. THE STATE Martin to return with him to the saloon. When they got there, defendants were all gone; and Millican was lying on his face on the iioor, dead. Martin raised the de- ceased's overcoat to see how he was shot, and found a six-shooter lying on the floor under him. The deceased did not have on any pistol belt or scabbard. "When MiUican came into the saloon, Allen Myers was follow- ing close after him, and before R. C. Myers shot, he called to Allen to get out of the way, and when Millican was shot he cried out "murder." Witness had been in the saloon about fifteen minutes before Millican came in. On cross-examination, the witness stated that Millican had his overcoat buttoned up around his neck and face. The gun used by Myers had been standing for weeks in the place from which Myers took it. On re-examination, he stated that he did not see Myers pick up the gun; only supposed he picked it up after Millican entered the saloon. This testimony shows substantially what occurred at the time of the killing. The controverted questions, how- ever, arise out of other and antecedent circumstances. T. C. Woodlief, a witness for the State, on examina- tion in chief, testified that about four o'clock in the after- noon of the day on which the killing took place, R. C. Myers went to witness' house in Millican, under great agitation and excitement, and entered one of the rooms and commenced loading a gun. On cross-examination, the defence asked the witness what was said by Myers at that time explanatory of his excitement and purpose, but the State objected, and the Court sustained the ob- jection, and the witness was not permitted to state the declarations made by Myers, to which the defendants duly excepted. The defendants introduced Leander Cannon, who testi- fied that about noon on the day of the killing, the deceased applied to witness for the loan of a pistol, and witness told him his pistol was at home. In the conver- sation which ensued, the deceased said to witness that old Robert Myers was taking a good deal of dish in fer- STATEMENT OF THE FACTS. 435 xeting out the hanging of that negro, and he would have to kill him to get him out of the way. This testimony was objected to by the State, on the ground that these statements of the deceased were not shown to have been communicated to Myers or any one else by the witness, before the homicide. The objection was sustained, the ■evidence ruled out, and the defendants excepted. W. L. Abbott, for the defendants, says, about four o'clock in the evening of the homicide, he informed K. C. Myers, that there was a plot to assassinate him, Myers ; that he, the witness, expected on coming to town that morning to have found him murdered ; that Myers asked him what he should do to avoid assassination, and witness told him to keep in the dark and away from the windows, and to send feelers ahead of him in passing between his residence and his grocery. Defendants also proposed to prove by this witness that great consterna- tion and excitement were produced in Myers' mind by this information and advice of the witness. But on objection of the State, this testimony of Abbott was ex- cluded, and the defendants excepted. This same wit- ness, however, was allowed to testify that about three or four o'clock in the afternoon of the day of the killing, he found R. C. Myers and Hardy together ; that he, witness, called Myers to one side and told him he had a secret to communicate to him, and informed him that on tbe day previous, Millican had told witness that Myers was trying to get the military to come to the town of Millican, to investigate the hanging of that negro, and he, Millican, would not be in Myers' boots for |100,000; that he would be shot all to pieces, or they would shoot him all to pieces, and that his old hide would not hold shucks. The witness further stated that Myers appeared to be greatly excited by the communication. • H. P. Edwards, witness for defendants, testified that he had a conversation with Millican on the day before the killing, in which Millican told witness he had better be careful how he talked before E. C. Myers, because Myers was trying to ferret out the hanging of that negro. 436 MYERS ET. AL. V. THE STATE. and he would not be in Myers' shoes for $10,000; and witness told this to Myers in the back room of Ms- saloon. But further statements of this witness, to the effect that he advised Myers that his life was in danger, etc., were excluded on objection of the State ; and the defendants excepted. The defendants further proposed examining Leander Cannon to prove that while Millican kept the keys and had charge of the prison house in the town of Millican, a freedman was taken out of the prison house and hung ; that Millican was implicated and engaged in the hang- ing ; and that R. C. Myers was on the inquest upon the body of the negro, and condemned the act as murder, saying that the people should hold an indignation meet- ing. The State objected to such testimony, and it was excluded, the defendants again excepting to the ruling. These several rulings of the Court below, excluding- proposed testimony for the defence, are those to which reference is made in the opinions delivered in this case. As an important fact in the case, however, it is proper to state that, by one Smith, the defendants proved that Millican, the deceased, borrowed a six-shooter from the witness about sundown on the day of the killing, and the witness identified the pistol found under Millican's body as the same loaned him by witness. When Milli- can borrowed it, he asked witness if it was sure fire, and witness told him it was. Allen Myers, for the defence, testified that Millican walked into the saloon hurriedly ; that he had a six- shooter in his right hand, holding it by his right side and rather behind him. This witness further stated, that when Millican entered the saloon, " he broke for behind the counter." Witness walked in close behind Millican, and saw E,. C. Myers take up his gun, and heard him call out to witness to get out of the way, and then R. C. ' Myers fired on Millican, shooting off both barrels of his. gun, one after the other. Enough has been stated to disclose the important features of the case. The evidence implicating David •OPIJTION — ADMISSIBILITY OF THREATS. 437 Myers and Gr. W. Hardy consisted of assistance ren- dered by tliem to R. 0. Myers, in the way of procuring and preparing arms, etc., shortly before the killing. The charge to the jury presented the case as one either of justifiable homicide on the one hand, or of murder in the first or second degree on the other. Davis & Beall, and Hancock & West, for the appel- lants ; E. B. Turner, Attorney-General, for the State. Lindsay, J., delivered the opinion of the Court : The language of the Criminal Code is very explicit, that when a party is accused of murder, he may justify ■ the homicide by proof of threats m.a5.e against his own life by the slain party. The rule which controls the mode of its introduction, however, is still left by the code to be settled by the principles of the common law. They must be actual threats to take the life of the accused, and those threats must be brought directly to his knowledge. If the justification is attempted upon the ground of such threats having been previously communicated to the slayer, it must be unecLuivocally shown that the party slain was doing some act at the time of the killing, which manifested an intention to carry the threat into execution. It is necessary at that moment there should be some positive demonstration of the fell purpose, to warrant the exercise of this extreme right of sacrificing the life of a human being. If such positive demonstra- tion is made by the party slain, at the time of the homi- cide, the accused is entitled always to the benefit of such testimony, as wiU. show all such threats of his victim, which were communicated to him before the killing. The communication made by the witness, Abbott, to the slayer, Myers, was no threat of the deceased Millican to do personal violence to the accused by himself. It was nothing but an opinion expressed by him of the probable conseqences which might result from the line of conduct he was pursuing ; and, instead of indicating .a purpose to "assassinate him, was expressive of some 438 MYEES ET. AL. V. THE STATE. solicitude about the peril in which he was placing him- self in that community. The language of the communi- cation of this witness cannot be tortured into a threat of personal violence intended by the decedent. All the false hue and false coloring of a threat of per- sonal violence by the deceased, the transaction borrows as the reflected light of the alleged actual threat set forth in the bill of exceptions, as the intended statement of Cannon as a witness, but which never was communicated to the slayer. The statement of the witness, Edwards, to the accused, had no more the complexion of a threat of ■ personal violence of the deceased upon the slayer, than did the testimony of the witness, Abbott. These were the only witnesses who made any commu- nications to the accused ; and these communications- ' were not threats, but the mere expressions of an opinion of the peril in which the accused, R. C. Myers, was plac- ing himself in an excited community. Without the tes- timony set forth in the several bills of exceptions, these- two witnesses who made the communication did not interpret them as threats of violence by the decedent. There being, therefore, no threat by the decedent tO' take the life of the accused, which was communicated to him, his action at the time of the homicide could not have been founded upon any reasonable expectation that de^ ceased was about to carry threats upon his life into exe- cution. The law, therefore, implies malice in the killing, and' the verdict of the jury, whose province it was to judge,, and who seemed to have judged reasonably about the facts, only respond to the just demands of the law. The excluded testimony presented in the bills of exceptions was properly excluded by the Court ; facts they might be, but they were inadmissible by the rules of law, and would not have shown any legal justification for the homicide. The judgment of the District Court is affirmed, and the new trial refused. NOTE — THE PRINCIPAL CASE CRITICISED. 439 Dewison, J., concurred fully in the above, but dis- sented on another ground. • Judgment affirmed, Note. — The dicta in the first and second paragraphs of the opinion in this,case, that the rule which controls the mode of introducing evidence of previous threats, is left by the code to be settled by the principles of the common law ; and that, " if such positive demonstration is made by the party slain at the time of the homicide, the accused is entitled always to the benefit of such testimony as will show all such threats of his victim, which were communicated to him before the kUling," would seem to indi- cate that the judge who delivered the opinion in this case, had in his mind the views expressed by him in his dissenting opinion in Pridgen's case, ante, last case. But as the question decided in that case, did not arise here, the language above quoted cannot be otherwise regarded than as obiter dicta, and this case cannot be quoted as overruling Pridgen's case. Apart from this question, and viewing this case upon the merits as disclosed in the reporter's statement, it seems to be one of those unfor- timate cases, where not only the plain rules of law, but the very right and justice of the case have been violated ; and what is worse, violated against that presumption which the law humanely indulges in favor of the inno- cence of every man wh6 is put upon trial for crime. In Pridgen's case, supra, the plain and just rule was laid down that " it is the right of the prisoner to have every relevant circumstance, from which a conclusion can be drawn consistent with innocence, daguerreotyped on the mind of the jury, and reflected back in the shape of their verdict;" and that "every circumstance, however Ught or trivial,that can furnish any indicia of the defendant's frame or condition of mind becomes highly im- portant, and is relevant to ascertain the intent with which the act was committed, because murder is essentially the creature of intent, and can- not exist without malice." This rule has been declared in numerous instances. Thus, we find in Keener's case, joosi!, the following language : " Itis stated by Mr. Starkie, Treatise on Evidence, p. 39, Mr. Roscoe, Ev. pp. 74: et seq., and all other writers on evidence, that the general rule is, that aJJ circumstances of a transaction may be submitted to the jury, provided they afford any fair presumption or inference as to the matter in issue. This proposition is exceedingly broad ; and if carried out in good faith, would produce the most beneficial results. Accordingly, in Richardson v. Royalton and Woodstock Turnpike Co., 6 Vt., 496, and Davis v. Calvert, b Gill & Johnson, 269, it was held that all facts upon which any reasonable presumption or inference can be founded, as to the truth or falsity of the issue, are admissible in evidence. The Court also examine and cite Cold- well V. State, 17 Conn., and G-oodrich's case, [posf], in support of the rule ; andm view of the frequent failure of justi:e from the failure of evidence, and being thoroughly convinced thai no competent means of ascertaining the truth ought to be negl cted, hold it error to exclude from the jury, testimony of threats not communicated to the prisoner." And in another case the same court say " This court stands pledged by its past history, for the abolition, to the extent of its power, of all exclusionary rules, which shut 440 MYEES EX. AIj. Y. THE STATE. out facts from the jury, wliich may serve directly or remotely, to reflect light upon the transaction upon which they are called upon to pass." Haynes v. The State, 17 Ga., 484. See also Goodrich's case, post ; State V. Nelson, 2 Swan, Tenu., 2(32 ; Little's case, post. But instead of keeping in view the plain and just principles declared in these cases, the circuit judge in the principal case seems to have labored studiously in his rulings to suppress every fact which could tend to exhibit tlie previous attitude of the parties towards each other, aud thus explain the motives which prompted the accused to do the ijiUing. For instance, it would be difficnlt to perceive under what rule of e'V'idence or of common justice the State was permitted to prove that, two hours before the IviUing, the defendant entered the witness' house, imder great agitation and excite- ment, and commenced loading a gun, while the Com-t refused to permit the accused to prove, by cross-examining the same witness, what he said ex- planatory of Ills excitement and pm-pose — as though his declarations made at the time were not as much a part of the res gestae as the act itself— as though they were not eminently calculated to characterize the act and de- termine its quality. 1 Greenl. Ev., § 108 ; Monroe's case, post ; Goodilch's case, post; Collin's case, in note to Scoggins' case, ^osi'. The testimony of Abbott aud of Myers, wliich was excluded, had a direct tendency to show that the defendant had been put in extreme fear of assassination at the hands of the deceased, and in so far-, tended to nega- tive the presumption of malice, arising from the fact of the killing, aud to show that the defendant acted under apprehensions of death or great bod- ily harm . Tills, unless the fears were reasonable, would not, it is true, excuse the liomicide ; but the Idlling of another under such an Impulse would, at most, be manslaughter. Keener's case, post; Grainger's case, ante, p. 238 ; Pasch. Dig. Tex., Statutes, Art. 596. Again, the testimony of Cannon, which was excluded, had a tendencj- to prove that tlie deceased had been implicated in the lynching of a negro, and that the accused had sat upon the inquest, and had denounced the act as miu-der ; and this, when taken in connection vdth the testimony of Ab- bott and Edwards, wliicli was excluded, and also that of the same witnesses wliich was admitted, liad a direct tendency to show tliat the defendant had reason to be in extreme fear of assassination at the hands of the deceased. For tlie declarations of the deceased, which had been communicated to the defendant, that he, defendant, was tiying to ferret out the hanging of the negro, and to bring the military to the town to investigate it ; that he, de- ceased, would not be in defendant's boots for one limidred thousand dollai's ; that defendant would be sliot all to pieces, so that liis old hide would not hold shucks, — could have had no other effect ; and how the revising Court could construe such expressions into a solicitude for the peril in which the defendant was placing himself in the community, is more than we can see. On the contrary, it seems to us, that these expressions, taken in connection with the testimony which was ruled out, assume the chiu-acter of covert threats, of the most dark and malignant character, and calculated to excite much more fear, on account of their very vagueness, than open threats of death or other violence. These declarations, in connection with the array of suppressed testimony, and viewed also in connection with the facts testi- fied to by Smith and Allen Myers, namely, that the deceased horrowed a NOTE — THE PEINCIPAL CASE CRITICISED. 441 pistol for the occasion, asldng if it was sure fire ; advanced into the saloon where the defendant was, holding it in his right hand and a httle behind him ; and that after he was Idlled, the same pistol was found under his body, would make it probable that the defendant did the killing through fear of immediate death, and that he had reasonable grounds for such apprehension. At aU events, it should have been left for the jury to deter- mine, with all the testimony before them which could cast light, on the transaction, whether this were so or not. In whatever lijiht we view this case, then, we are unable to see any grounds on which it can be supported. Another Texas case, where the ruling of the circuit judge was equally inexplicable, received very different treatment at the hands of the Supreme Court of that State. . We refer to Underwood's case, decided in 1860, and reported in 25 Texas Supplement, 389. In that case, Routh, a witness for the State, had met the accused in the morning at the spring, near the house of the witness. The accused rode on the road leading to PUot Point, in Denton county. Witness rode to his house, and, while misaddling his horse, the deceased, Thomas Spain, rode up and enquired for Underwood. Learning that he was on ihe road to Pilot Point, he.invited the witness to ride with him. They came within three hundred yards of Underwood, after riding about four miles ; Underwood left the road ; Spain drew his pistol and gave chase ; Routh, the witness, pursued also, but was soon left three hundred yards behind by the fleeter horse of Spain. Spain overtook Underwood. Spain's pistol seemed to have missed fire. Underwood flred and killed Spain, and continued his flight, still whipping his horse vrith a lariat. Several witnesses proved material parts of these facts. Sundry in- structions were asked on both sides, and the Court gave a long charge. The jury returned a verdict of guilty of murder in the second degree, and assessed the punishment at twenty years' imprisonment in the peniten- tiary. Judgment was rendered, but no sentence was passed, because of the appeal by the accused. Bell, J., delivered the opinion of the Supreme Court, as follows : " We ■deem it unnecessary in this case to notice either the instructions given by the Court to the jury, or those asked by the counsel for the appellant, and refused by the Court. The evidence is not sufficient to sustain the verdict of the jury, and the motion for a new trial ought to have been maintained by the Court below. The case is not one of a conflict of evidence, but it is one in which the evidence is not sufficient to establish the guilt of the party accused. " The judgment of the Court below is therefore reversed, and the cause remanded for another trial." It seems to us that this case and the principal case, placed side by side, illustrate in a strong light, the hazard to which the lives of imiocent men may be subjected under the best system of laws, administered by fallible agents. But for the interposition of a court of errors in the last case, the ■defendant would have suffered twenty years' imprisonment for performing an act of the most necessary self-defence ; and in the first, the defendants Are debarred the privilege of a fair trial, and compelled to suffer, perhaps unjustly, notwithstanding the interposition of such a court. 442 MONROE V. THE STATE. MONEOE V. THE STATE. [5 Ga., 85.] Bupreme Court of Georgia^ Americus, July Term, ISIfS. Joseph Henry LxiMPKiisr, Hiram Warner, \ Judges. , . EUGENIUS A. WlSBET, ) Homicide in self-defence— Declaeations— Threats— Chakactek op- DECEASED- Evidence of previous kblations op the partib* TOWARDS EACH OTHER. 1. When an act is done to which it is necessary to ascribe a motive, it is always considered that what is said at the time, from which the motive may he collected, is a part of the rea gestce. [See the last case, and note.] 2. In general, what a party says is not evidence in his favor, unless it he- a part of a conversation of which some other par£ has already been given m the testimony. But where the declarations of a party accompany an act, and are a part of the transaction, evidence of them is admissible. 3. It is a good rule, though in many cases difficult of application, that to be a part of the res gesice, the declarations must have been made at the "time of the act done, wliich they are supposed to characterize, and must be weU calculated to unfold the nature and quality of the facts they were intended to explain, and so harmonize with them as obviously to constitute one transaction. [See the last case, where this rule was violated.] 4. The declarations of a defendant, antecedent to the fact, are sometimes admitted, as tending to explain and reconcile his conduct, and to exhibit the guo animo with which the act was committed. [See Myel-s' case, anie^ last case, and note.] 5. Naked threats, unaccompanied -with personal violence, made by the deceased against the defendant, are admissible to show the reasonableness of the defendant's fears, provided a knowledge of the threats is broughti home to him. [Citing HoweU's case, sub. Jin.] 6. So, in this case, it is held competent to prove a continued series of threats accompanied by acts of -violence by the deceased toward the pris- oner, commencirig some months previously, and coming down to the time- of the killing, all showing a determination on the part of the deceased to take the life of the defendant before the next ensuing term of court ; and which threats and conduct were known to the defendant. [Ace. Robert Jackson's case, post; Pridgen's case, ante, p. 416; Sloan's case, post^ Scoggins' case, post; Rector's case, post; Meade's c&se, post.] SYLLABUS. 44S 7. As a general rule, the slayer can derive no advantage from the- character of the deceased for violence, provided the killing tools place under circumstances which showed that he did not believe himself in dan- ger. Yet, in cases of doubt, whether the homicide was perpetrated in malice, or from a principle of self-preservation, it is proper to admit any testimony calculated to iUustrate to the jury the motive by which the pris- oner was actuated. In such cases, the character of the deceased for-violence has much to do with the reasonableness or unreasonableness of the defend- ant's fears. [Ace. Robertson's case, ante, p. 154 ; Cotton's case, ante, p. 310; Hippy's case, ante, p. 345 ; Little's case, joosi! ; and see Wesley's case, ante, p. 319 ; and Tackett's case, post, and those following it.] 8. The doctrine stated, that if an assailant intend to commit a trespass- merely, to kill him is manslaughter; but if he design to perpetrate a felony, the lolling is self-defence, and justifiable. [To kill a mere trespasser against property is murder. Harrison's case, ante, p. 71, and citations. To kill a mere trespasser against the person is murder or manslaughter according to the circumstances of the case. Thompson's case, ante, p. 92 ; Hill's case, ante, p. 199 ; Stewart's case, ante, p. 191.] 9. As a general rule, it is expedient to receive all evidence, in a trial for murder, which goes to show the state of feeling of the prisoner and de- ceased towards each other at the time of the killing ; such as law suits, exist- ing between the parties. [Citing State v. Zellers, sub. fin. Ace. Keener's case, post; Pridgen's case, ante, p. 416; State v. Nelson, 2 Swan, 262;. Haynes v. The State, 17 Ga., 484. Contra, Myers' case, ante, last case.] 10. This principle applies with great force in a case like the present,, where the prisoner had acted as prosecutor agamst the deceased in certain indictments ; and from the time the same were returned until the time of the killing, the deceased kept up a continual series of threats and hostile demonstrations against the prisoner. Hence, in this case, it was held error to refuse to allow the defendant to prove, that as a justice of the Inferior Court of the county in which he and deceased resided, and at the request and by the appointment of his associates, he became the prosecutor of the deceased for embezzling the poor-school fund of said county ; and that in consequence thereof, the deceased vowed that the defendant should not be at the trial of said indictment, for he would kill him. This was an indictment for murder against Edward V. yLonxoQ, for the killing of James A. H. Macon. Ver- dict, guilty ; motion for new trial overruled, and writ of error. The evidence in the case showed that the prisoner and deceased lived in the same town. The prisoner was a physician. The deceased entertained a feeling of violent hatred toward the prisoner, arising, as it seemed, from the fact that the prisoner had acted as prosecutor against him in certain cases for embezzling the poor-school fund. 444 MONROE T. THE STATE. On the day of the killing, and about eight o'clock in the morning, the deceased, armed with a " Yauger " rifle, which he sometimes, though not usually, carried, walked back and forth past the prisoner's office, and from several positions, watched the prisoner's office, apparently in a great rage, and was seen to point the gun in the direction of the office. These movements were observed by the prisoner, who remained in his office until about eleven o'clock. About this time, George Monroe, brother of the prisoner, brought a double-barreled shot-gun down town, and carried it to prisoner's office. Immediately after this, an interview took place between the deceased and George Monroe, at which, according to the testimony of George Monroe, the following conversation took place : "Witness remarked, " I am sorry to see you so hostile to brother Edward." Deceased said, " I do not know what right any one has to say I am hostile to your brother." Witness replied that his brother Edward said that he, Macon, was carrying that gun for him, and had been trying that morning to shoot him. Macon replied that the prisoner must have come to that conclusion from the fact that he, Macon, had taken his gun out of his office. Macon said he had a right to carry his gun, and was in the habit of carrying it to kill birds and other things with it, and that no one could prevent him. Macon then asked George what he had taken the gun to his brother's office for. The latter replied, to enable his brother to defend himself in case of an attack from him, Macon. Macon then gritted his teeth and said fiercely that he would fight the prisoner any way but a fist and skull fight ; that he would give the prisoner one of his pistols, taking the smaller one from his pocket, and offering it to the witness ; that he would meet the prisoner with the other ; that witness might tell him to come out with his double-barrel gun ; he would allow him a fair chance, and "devil take the hindmost." Witness then told Macon that his brother would not injure him, except in self-defence. Macon then spoke of Tilman having a -double-barreled gun in his store for prisoner to shoot STATEMENT OF THE FACTS. 445 Mm mth. Witness replied, if it was a fact, it was under an apprehension of an attack from laim, Macon. The gun was for the defence of the prisoner. Macon re- plied, " if Dr. Monroe conies out of that office with that gun, I intend to pop him — I will pop him right between the eyes." Witness admonished deceased not to do it, as it would hang him and disgrace his family, and to put up his gun. Macon replied, that was his business. Witness then asked the cause of his animosity against the prisoner. He replied, " don't you know he is my prosecutor in all these cases against me ? " Witness re- plied that he did not know it. Deceased then told the witness to tell his brother he was a liar, a rascal and a coward. Deceased also said, that he could send prisoner to the penitentiary. Witness advised him to do so, and. not seek satisfaction in any other way. Deceased said no, he did not believe the law should have anything to do with such difficulties as that; he, Macon, did not settle his difficulties in that way ; and refused to reveal his intentions toward the prisoner, and went on to tell in how many cases he had befriended the prisoner, and mentioned the case of the prisoner and Dr. Steel. That he had regarded the prisoner as his best friend, and had nothing that he would deny him. Said that prisoner must have consented to become his prosecutor, and re- peated his charges of cowardice. During this conversa- tion, Macon kept his eye fixed on prisoner's office, point- ing and gritting his teeth. Another witness testified as to this conversation between George Monroe and the deceased. Deceased asked George Monroe what he had brought up that gun for ? George stated that he had brought it up for the prisoner ; that he understood deceased had his gun for him, prisoner, and that he, prisoner, wanted his gun to defend himself. Deceased observed that he, deceased, was not after the prisoner ; that he did not bring his gun up for that purpose, but that if Dr. Monroe wanted to play at that game, he was with him. That he, George, could say to his brother, if he would take his gun back, 446 MONROE V. THE STATE. • he would not interrupt him ; but if he came out with that ^un, he, deceased, would take him between the eyes. About one o'clock the prisoner was in Tilman's store. After being there about twenty minutes, he saw deceased approaching with his "Yauger;" stepped out of the door behind some boxes, cocking one barrel ; stepped back into the store ; cocked the other barrel ; called out to Macon, " If you want to shoot, shoot," and then fired one barrel, killing him instantly. After Macon fell, it was found that his " Yauger " was cocked and the trig- gers sprung. He had two pistols on his person, one of which was loaded with ball. 1. During the examination of Willis A. Hawkins, one ■of the witnesses for the defence, the counsel for prisoner proposed to prove by said witness, the declarations of prisoner while in the office in the morning with his gun, going to show that prisoner was alarmed and apprised of the intention of deceased to attack him ; particularly to prove the declaration of prisoner at that time, as fol- lows, to-wit : " Yonder comes Macon now with his Yau- ger ; he intends to shoot or kill me." 2. Defendant's counsel also offered to prove by said Hawkins, that when deceased was in the Court-house at the window,'' defendant said to witness, " don't you see Macon at the window trying to shoot me ? " 3. Defendant's counsel also proposed to ask said Haw- kins why he left the office where he and prisoner were on that morning, with the view of bringing home the knowledge to the prisoner of the conduct of deceased on that occasion, his violence, anger, threats, etc. 4. Defendant's counsel proposed to prove by said Hawkins, that defendant told him, Hawkins, that he, prisoner, had seen the conduct of deceased, (as described by witness in his testimony, as taken down by the Court,) after it occurred in the morning, and before the shooting took place. a One of the positions from which, on the morning of the killinf, t.J»'~ ■deceased watched the prisoner's office. EULtNGS m THE SUPEEIOE COUET. 447 5. That deceased had been seen to make an attack with deadly weapons, within six months, npon prisoner, and that prisoner fled at that time so hastily as to leave his cloak, nntil he, prisoner, had got beyond the reach of the arms of deceased. 6. A continued series of threats, commencing at the time of the returning of the true bill, at the fall term of the Superior Court of Lee county in 1847, followed up by repeated acts of violence, up to the time of the killing, by the said deceased against the prisoner, expressing a determination on the part of the deceased to take the life of prisoner, before the spring term of said Court, in 1848. 7. That deceased was a rash, violent, bloody-minded man, in the habit of taking secretly, the advantage of his adversaries in personal contests, and not willing to give his adversaries a fair and equal chance, and that prisoner was well acquainted with his character as such. 8. That on the morning of the day upon which the killing took place, after the violent conduct of deceased on that morning, and before the killing, defendant con- sulted with one Smith as a peace officer, as to the pro- priety of binding deceased over to keep the peace, and said Smith advised prisoner not to do so, as it would only enrage deceased, and make him more violent, and would do no good, as deceased could give the bond, and it would not restrain him from violence. 9. Defendant's counsel offered to introduce an order of the Inferior Court of Lee county appointing prisoner prosecutor of deceased for embezzling the poor-school fund of said county; and also the bill of indictment against said deceased for embezzlement of said fund, prisoner being prosecutor. 10. Defendant's counsel also offered to prove that the prisoner was one of the Inferior Court of said county. 11. Defendant's counsel also proposed to prove threats and acts of violence of deceased towards prisoner, at various times between the adjournment of the fall term 448 MOJSTEOE V. THE STATE. of the Superior Court of Lee county, 1847, and the kill- ing of deceased- All of the foregoing offers the presiding judge refused; to which rulings the prisoner's counsel, in each case, duly excepted. Defendant's counsel were also prepared to prove by Samuel C. Wyche, William Bodiford, Elija Warren, Clifford Monroe, J. P. Cocke, and others, that at the time the bill of indictment against the deceased, for embezzle- ment, at the previous fall term, was read, the deceased was heard to declare that the prosecutor of said bill, the prisoner, should not live till the next term of said court, and be at court to prosecute the same, and that threats of this and the like character, accompanied with acts demonstrative of a fixed determination to carry them into execution, were made by defendant up to the day of the killing. That the acts were such as prowling around the residence of the prisoner with fire-arms, walking by the house with pistols and gun, and watch- ing intently the while, as if for an opportunity to carry his threats into execution. That defendant, alarmed at such demonstrations, had kept close to avoid exposure, and often visited his patients by night stealthily, rather than expose himself by day to the danger of a rencoun- ter with deceased. That these demonstrations had become so frequent and notorious that it had become the universal opinion of the neighborhood and citizens that deceased would kill the defendant. But all of which evidence, by the stringent rule adopted by the presiding judge in rejecting the testimony already offered, as to the threats, and violence of the deceased, was excluded; and to which defendant's counsel believed they had a right to except. Each of the foregoing rulings was duly assigned as error. Warren, , Colguitt & Wellborn, Bartow & Williams, S. T. Bailey, Dudley & Crawford, In/on & ClarTc, Hawldns, Strozier, Sullitian & Moore, for plaintiff in error ; PerJcins, Solicitor-General, for the State. AEGUMENT OF COUNSEL. 449 Argument in brief of Francis 8. Bartow, of counsel for plaintiff in error. The prisoner was charged with murder. It was not denied that he had taken the life of James Macon. The presumption of law was of the sternest nature. It was incumbent on the prisoner to show his innocence. It was for him to prove whatever might mitigate, excuse or defend his act; it was for the jury to consider, carefully and anxiously, whatever he could offer in his behalf. Upon reason, then, he should have been allowed a full hearing of every circumstance which could have influ- enced his conduct. Justice would weigh with unwavering hand each atom thrown into her scales. The Common Law and the Statute Law alike affirm this doctrine. The Court below ruled, in effect that it would hear no evidence, except that which could exhibit the conduct of the parties at the time of the killing. The Court, in thus ruling, ap- plied to this case the 15th section of the 4th division of the Penal Code : " That if a person kill another in his defence, it must appear that the danger was so great and urgent, at the time of the killing, that, in order to save his own life, the killing was absolutely necessary ; and it must appear also, that the person killed was the as- sailant, and that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given." The Court erred in the application of this principle. Even under that section there is room for the prisoner's evidence. But there is another principle of the law of homicide which is distinct, and must not be confounded with the one just quoted. The Penal Code of Georgia has made no change in the common law of homicide, except by abolishing the shade of guilt, which the common law has fixed on " excusable homicide." In this it has only declared that " excusable homicide" at common law, shall be "justifiable" by the statute. But the Penal Code expressly affirms in words, the distinction which has always existed between these two species of homicide as applied to the law of self -defence. 450 MONEOE V. THE STATE. There are two species of justifiable homicide, and Sir Michael Foster draws the distinction with great clearness. See Foster's Crown Law, 273. Our code has borrowed its language from his treatise. " Justifiable homicide," says section 12, '' is the killing, etc., 1st, in self-defence, or, 2d, in defence of liabitation, property or person, against one who manifestly intends or endeavors, by vio- lence or surprise to commit a, felony on either." And the next section declares, that " a bare fear of these offences shall not be sufficient to justify the killing. It must ap- pear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing reaUy acted under the influence of those fears, and not in the spirit of revenge." This is what Mr. Foster calls justifiable self-defence. The 15th section which is quoted above, has manifestly no reference to that class of hom- icide. It refers to self-defence in a case of mutual com- bat, or what at common law was termed excusable hom- icide, or as Mr. Foster calls it, " excusable self-defence." And to that species of homicide he applies the language of the 15th section. There was capital error in confound- ing these two and distinct rules of law. There was error in applying, before hearing the evidence offered, the law of the 15th section, when the prisoner demanded a different and larger justification, under the law of the 12th and 13th sections of the Code. He claimed the principle of the statute and the common law, which authorized him " to repel force with force ; " " to pursue his adversary ; " not to retreat from him ; to kill the enemy who intended and endeavored to commit a felony upon him; to act upon the excitement of his reasonable fears, and not to wait for the accomplishment of a wicked attempt. This was a right derived from nature ; a right abo^e and be- yond human laws. Grotius, Book 1, c. 2, 53; Book 2, c. 1, 189. This is the principle affirmed by Lord Holt, in Mawgridge's case. "He that hath shown that he has the malice against another, is not fit to be trusted with a dangerous weapon in his hand." See also Guiscard's case, Foster, 274. ARGUMENT OF COUNSEL. 451 He claimed that he had a right to show, by evidence, that there was no malice in hia conduct. That he had acted from necessity in the maintenance of his personal and natural rights, or that, at least, the circumstances • attending the transaction had reasonably excited his fears. He had assumed the responsibility of deciding those questions for himself. The propriety of that de- cision was now the matter for the jury to try. Whether they would, or would not, affirm his act, was the fearful issue. To do him justice, they must stand just where he did ; they must feel as he felt ; they must know all that he knew ; they must see all that he had seen ; they must hear all that he had heard. That he had a right to make such a defence is unquestionable. In Selfridge's case, 160, Judge Paeker lays down this rule: "Where from the nature of the attack there is reasonable ground to believe that there is a design to destroy life, or to commit a felony upon his person, the killing of the assailant will be excusable homicide, although it should afterwards appear that no felony was intended." * To the same point is Levett's case, 1 Hale, 43. In Eex V. Scully, 1 Car. & Pay., 319, the Court say : " The life 6f the prisoner was tlireatened, and if he considered his life in danger, he was justified in shooting the deceased." The case of the People v. Anderson, 2 Wheeler, C. C, 407, is to the same point. There were, then two subjects of enquiry : 1st, The acts and intent of the deceased. 2d, The acts and intent of the accused. The evidence excluded on the trial, was offered to illus- trate both these material subjects. Was that evidence proper and relevant ji The object of judicial investiga- tion is the ascertainment of truth. Evidence is the means by which that is effected, and its rules are the same in civil and criminal cases. It is variously adjusted to per- form its task in the most certain and direct way. , Some • Ante, p 18. 452 MONROE V. THE STATE things are self-evident, some are proved by the senses. But there are other subjects which address themselves to no palpable standard of truth, but to human experi- ence of human motive, feeling and passion, and of the sources of hope and fear. We look at all the influences which have surrounded our fellow, and then we sound his heart by the plummet we have applied to our own. "We "judge not according to appearances." We trace the cause from the eff"ect, and consider whether there is any necessary connection between the act and the alleged motive of it. And when we have heard all and gone through with the anatomy of the heart, we who feel the influence of all motives which prompt to action, and all passions that stir the breast, know how to judge our fellow. Hence, the inestimable value of trial by jury. But what a mockery it becomes when the issue of life or death is tried, without evidence and without deliberation. The evidence offered and excluded, would have proved that the deceased and Monroe were in a s,tate of war ; war^ waged by a criminal against him who would bring him to justice; conducted with malice and perseverance in a secret as well as open way ; war, declared to the death against an unoffending man, who, so far from retaliating, made every effort to escape his adversary, until at last, threatened, goaded, pursued, hunted, until endurance was exhausted, he turned upon his adversary in the mo- ment of hot pursuit, and did that which nature prompted him to do, and used that sword which the law herself placed in his hands and commanded him to use. This evidence, then, was indispensable to show the acts and intent of the deceased. Other evidence was offered to show the acts and intent of Monroe. His apprehension, his alarm, his knowledge of the intention of his adversary to take his life; that he had heard the threats, had es"caped from the attempts to injure him; that he had been warned of his violent and vindictive nature, and had lived for weeks in a constant state of watchfulness, anx- iety and alarm. In short, the evidence offered sought to AEGXJMENT OF COUNSEL. 453 delineate the whole story from its inception to its termi- nation; to paint each shade, and bring to light every object in the scene ; to present it all for examination and for judgment. Surely, this evidence was pertinent ; nay, that it went to the very marrow of the case. Yet it was rejected. No principle of law, and no decisions of courts, can be invoked in aid of this exclusion. We refer to the following authorities in support of our position. Reynolds v. State, 1 Kelly, 236 ; State v. Zellers," 2 Hal- stead, 220, 230, 237. In that case, the Chief Justice says : "" The question is, what excited the prisoner to the com- mission of the act ? Everything which operated upon his mind ought to be proved." And see 3 Stewart v. Porter," 308, 315. I quote from that case, one sentence : " If the circumstances of the killing were such as to leave any doubt whether he had not been more actuated by the principle of self-preservation than that of malice, it would be proper to admit any testimony calculated to illustrate to the jury the motives by which he had been actuated. ■See also State v. Wright 9 Yerger, 342. For the general principles governing this kind of evidence, see 1 Starkie Ev., 56 et seq. And as to the acts and declarations of the prisoner prior to the killing, see 1 Starkie Ev., 61, 66. j\.s to the effect of this testimony. That we are not obliged to show, though it is an easy task. The jury are the best, as they are the legal judges of the testimony. Where there has been an improper rejection of testi- mony for the defence, or admission of testimony for the prosecution, a new trial will be ordered, though the Court be satisfied that the verdict was correct. Peck v. State, 2 Humph., 78 ; Wharton's Am. Crim. Law, 639. *********** Brief of the argument of S. T. Bailey for plaintiff in error. In discussing the questions raised by the bill of ex- ceptions, in behalf of the unfortunate, and I must say, much wronged plaintiff in error, I shall confine myself chiefly to two grounds of error, viz., rejection of evidence I' Note, suhfin. « Post, note c. to Keener's case. 454 MONROE V. THE STATE. by the Court below, and his charge to the jury. In view of the case made by this record, may I not ask, and may not every freeman with alarm enquire, do we live under a system of laws whose soul is despotism and not justice, or do we live where just laws are badly admin- istered ? Who but the strongest would trust the law, as expounded in this record ? Have we no chart to go by ? Have the canons of the fathers of the law become obso- lete ? or, have the expounders of the law become wiser than the law itself ? Every citizen, when he is arraigned for the criminal violation of the law, has a right to point the Court to, and require the Court to regard the follow- ing fundamental principles, standing at the head of the code by which he is to be tried, viz. : Prince 620.'' " A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be an union or joint operation of act and intention ; or criminal negligence." " Intention will be manifested by the circumstances connected with the perpetration of the offence, and the sound mind and discretion of the person accused." Prince, 622. "Murder is the unlawful killing of a human being in the peace of the State, by a person of Sound memory and discretion, with malice aforethought, either express or implied." "Express malice is that deliberate intention unlaw- fully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof.'''' " Malice shall be implied where no considerable provo- cation appears, and where all the circumstances of the killing show an abandoned and malignant heart." Prince, 623. "A bare fear of any of those oflFences, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing; it must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears,. and not in the spirit of revenge." •J Prince's edition Georgia statutes, anno, 18S7. ABGUMENT OF COUNSEL. 456 All these great safeguards were wholly overlooked, or disregarded in the trial of my unfortunate client. Ac- cording to the rulings in that trial, " Joint operation of act and intention," were divorced. In that trial, it was not permitted to " show the manifest intention by the circumstances connected with the perpetration of the offence and the discretion of the accused." In that trial it was not permitted to show " by external circumstances capable of proof," that the " deliberate inteation unlaw- fully to take away the life of a fellow being," was want- ing, and that, therefore, there could be no malice. In that trial it was not permitted to show " any consider- able provocation," and that the kiUing was not the work of " an abandoned and malignant heart." In that trial it was not suffered the prisoner to show that " the cir- cumstances were sufficient to excite the fears of a reason- able man, and that the party Mlling really acted under the influence of those fears, and not in a spirit of re- venge." The sole and only cLuestion before the Court below to try, was the intention to murder — the malicious inten- tion to take life — and yet, strange to tell, the elucidation of that question was prohibited by the Court. The Court says to the victim, the killing is proven, and thereby malice is prima facie proven ; the onus is on you to show by proof the absence of malice, and you shall not be permitted to introduce such proof. It is no answer — it is worse, it is mockery — to reply, you may show all that took place at the killing. It is not one time in ten that enough transpires at the killing to manifest absence of malice ; and yet the act of killing throws the onus on the slayer. No man may with safety defend himself, his family or estate, unless he has by him a witness to prove the first assault. The out- lawed desperado may prowl for the life of the innocent and honest ; he may lay his plans and his snares for the life of his victim, in the face of day, and in the face of society, and yet, if his intended victim is seen to kill the assassin within his very domicile, or if he confesses 456 MONEOE V. THE STATE. that he slew him in self-defence, nothing but the killing is legal proof. The assassin's bad character ; his threats and murderous plans ; and the good character of the prisoner go for nothing ; and the Court cruelly proceeds to perpetrate what the hand of God had not permitted the assassin to accomplish. Mr. Starkie, in his most learned and philosophical work on evidence, remarks, " The law constantly notices the universal principle of evidence, that a man shall be taken to intend that which he does, or which is the imme- diate and natural consequence of his acts. In many cases, therefore, the allegation of intention, though essen- tial to sustain the charge or claim, requires no other proof than that of the fact itself, the intention being the result or inference which the law draws from the act itself in the absence of a legal justification or excused In the absence of any principle or rule of law, by virtue of which either a conclusive inference, or any presumption as to intention ought to be drawn, from the act or its cir- cumstances, the specific intention of the agent is a matter of fact, on which the -jury are to exercise their discretion, on the emdence before them, as in ordinary cases, civil as well' as criminal. Thus, on a charge of homicide, it may be for the jury to say whether the act was done with a malicious intent to destroy another, or merely to alarm and terrify him, or resulted from mere unavoidable accident, independent of any intention to injure another, or even of carelessness or negligence ; and according to that determination, the offence may amount to murder, or- merely to manslaughter, or chance medley. In order, however, to arrive at a just conclu- sion upon such questions, the jury ought to act upon those presumptions which are recognized by the law as far as they are applicable, and their own judgment and " experience, as applied to all the circumstances and evi- dence.'''' When the particular intention is essential, evidence of former attempts with that intention, is admissible to prove the intent. It is a general rule that whenever the ARGUMENT OF COUNSEL. 457 t fact of intention is to be established by collateral evi- dence, it may be rebutted by contrary evidence." Starkie Ev., 417, 6tli Am. Edition. In the King v. Woodfall, 5 Burr., 2661, Lord Mans- field says, " That where an act in itself indifferent, if done with a particular intent becomes criminal, then the intent must be proved and found ; but where the act is in itself unlawful, the proof of justification or excuse lies on the defendant, and, on failure thereof, the law implies a criminal intent." In these short paragraphs from our code from Starkie and Burrows, the rules of law that ought to have gov- erned the Court below, are briefly but clearly laid down. By them, he ought not to have mistaken his duty in the admission of evidence to try the only issue before him ; viz, whether the malicious intent were present. How and by what better evidence than that repelled by the Court below, could such intent be disproved ? Griffin Smith was offered to prove that deceased, with- in six months, attacked prisoner with deadly weapons, and that he escaped by flight. It was also proposed to prove by Smith, by Wyche, by Bedford, by Warren, by Monroe, and by Cook, that at the fall term, 1847, of Lee ■court, prisoner, by the direction of the Inferior Court, " one of whom he was, had acted as prosecutor on a bill found by the Grand Jury against the deceased, for em- bezzling the county funds, and that deceased then declared that prisoner should not live to be at the trial of that bill ; that he would kill him, and that he continued such threats up to the time of the killing, together with violent acts and menacing conduct, such as lurking about the premises of prisoner, in a stealthy manner, armed; and that by such threatening conduct and violence, he compelled prisoner to abandon his practice in the day time, and to ride to visit his patients secretly in the night. By Hawkins, Smith, and others, it was proposed to prove that these threats and threatening conduct of -deceased were known to the prisoner, and that he, by his speech and conduct, manifested great alarm and ap- 458 MONKOE V. THE STATE. prehension of deceased. It was also proposed to prove "bj Smith and others, that prisoner applied to a magis- trate to bind deceased to keep the peace towards him, and that he was advised not to do it, as it wonld aggra- vate and make him worse. It was also proposed to prove that deceased was a violent, bloody-minded man, disposed to take secret advantage of an adversary ; all of which was repelled by the Court, most manifestly against law, as we strongly believe. The clear and ex- plicit directions of our statute, requiring a union of act and intention to be proved to convict of crime, and then that malice shall be judged of by the jury from all the circumstances connected with the killing, and that rea- sonable fear shall repel the conclusion of malice, and excuse the act, would seem to leave " the wayfaring man,, though a fool," no room to doubt the duty of the Court in such a case. But without such clear and explicit direction, with the rules of the common law before them as to the proof of malicious intent, no court in England or America, of any repute, ever committed such errors as those committed by the Court below. I ask the indul- gence of this Court, while I refer to some cases and authorities to prove this. Mr. Starkie says : " The legal distinctions which range- themselves under the head of provocation, seem to de- pend principally, if not entirely, upon the question whether, in the absence of previous malice, the act of the defendant, under all the circumstances of the case,, can be attributed to the general infirmity and weakness of our nahore, or on the contrary, the facts themselves- evince a wicked and vindictive disposition, and malig- nant spirit, fatally bent on mischief; for, as Sir Michael Foster observes, "it is to human frailty, and that alone,, that the law indulgeth in every case of felonious homi- cide." 2 Starkie Ev., 523. It is laid down in Bacon, "If a man, though in no great danger of serious bodily harm, through fear, alarm or cowardice, kill another, under the impression that great bodily injury is about to be inflicted upon him, it ARGUMENT OF COUNSEL. 459 is neither manslaughter nor murder, but self-defence." 7 Bacon Ah., 211.® The same principle is said to have been decided in Grainger v. the State/ 5 Yerger, 459. " A man may kill in defence of his person, habitation, property, etc., one who manifestly intends to commit a felony upon either, and he need not retreat : this must appear from the circumstances." 1 Russell on Crimes^ 549. Previous conduct may be looked into to show grounds of suspicion. Ibid. Lord Tenterdbn, in his charge to the jury, in The King V. Lynch, said, " You will also take into considera- tion the previous habits and connection of the deceased and the prisoner, with respect to each other." 24 Com. L. R., Con., 341. [5 Car. & Pay., 324.] In The King v. Scully, Garrow, Bar., said, "But here the life of the prisoner was threatened, and if he con- sidered his life in actual danger, he was justified in shooting the deceased as he had done, but if, not con- sidering his own life in danger, he rashly shot this man who was only a trespasser, he would be guilty of man- slaughter." 11 Com. L. R. Con., 406. [1 Car. & Pay.,. 319.] In the Queen v. Smith, 34 Com. L. R. Con., 335, [Ante, p. 130,] the Court allowed evidence of previous threats and violent conduct of deceased. So, in the Queen v. Fisher, lb., 345, [8 Car. & Pay.,. 182,] the previous aggravating conduct of the deceased toward the son of the prisoner, was gone into. So much for the law and the practice in England, where the officers of the crown were never accused of improper indulgence toward a delinquent subject. Let us now look for a moment to the practice in America. In The State v. Patrick Blake, Platt, Judge, says : "This, as an isolated fact, remote in point of time from We have been unable to find such a passage in Bacon's Abridgment. That work should not be cited by page, but by its titles and sub-titles. — Eds. ' AnU, p. 238. 460 MONROE V. THE STATE. tlie transaction forming the charge the prisoner is called on to answer, is inadmissible. So, a former quarrel, unconnected with the transaction wherein the death ensued, cannot be given in evidence. But if you can Jill up the cTiasm of time between that wherein the first and second wound was inflicted, showing that the latter flowed from the former occasion, or was connected there- with, or if you can show there were fi'equent quarrels between the prisoner and the deceased, taking place but a short time preceding her death, you are at liberty to produce such evidence." 1 City Hall Recorder, 100. In the case of Christian Smith, tried before Judge Van Ness, the witness. Lake, testified that he had a conver- sation with the prisoner ; that the prisoner complained that the deceased had trespassed upon him continually ; he further stated that prisoner and deceased had been at variance a number of years, and that the dispute extended to their respective families. 2 City Hall Rec, 78. Jacobson, another witness, testified that violent quarrels subsisted between prisoner and deceased, and frequent lawsuits were instituted; that the prisoner seemed disposed to live in peace, but the deceased refused to conciliate, or listen to terms of conciliation, •declaring that he would give the prisoner law, or words to that effect. During life, deceased was a bad man, and his wife a turbulent woman with whom he could not live in peace. 2 City Hall Rec, 77, 81. In the State-v. Zellers, when evidence of the provoking and harrassing conduct of the deceased long previous to the killing was objected to. Chief Justice Kikkpateick said, " No man can defend his property, other than his dwelling house, from a trespasser, by making use of a deadly weapon ; but inasmuch as the distinction between murder and manslaughter depends upon the impulse of the mind with which the act was committed, enery cir- cumstance which goes to show the feelings of the parties towards each other, may he proven. That temper which at one time might not be excited, might, under the ex- citement of other circumstances, be more easily roused , OPINION— DECLAEATIONS. 461 and, therefore^ it may he received hy tTiejury to show the state of mind of tlie parties. 2 Halst., 230. Again, the Chief Justice remarks, " The question is, what excited the prisoner to the commission of the act? Everything that could operate upon his mind may be proved. But you cannot give in evidence, conversations or acts of the deceased which never came to the knowl- edge of Zellers, for they could have no influence upon his mind, and could neither justify nor extenuate the crime." Ibid, 237.« In the State v. Drew, the Court went into eviaence oi the acts of the deceased some weeks prior to the killing. 4 Mass. R., 392.'^ If reported cases upon questions of this kind are not numerous, it is owing to the fact that the courts and the bar are generally too learned and too regardful of the lives, the feelings and the reputation of their fellow citi- zens, to commit such cruel errors as are manifest in this record. Lumpkin, J., delivered the opinion of the Court : [After stating at full length the testimony, the rulings excepted to, and the errors assigned thereon, he said :] And the first complaint is, the rejection by the presid- ing j udge, of the whole of the testimony, which went to establish, by the prisoner's own acts and declarations, his knowledge of the threats and violent conduct of the de- ceased, and of his constant alarm and apprehension by reason thereof, of death or some great bodily hurt, at the hands of Macon. This is a nice question, and one which requires to h treated with delicacy and discrimination. If we uncondi- tionally refuse to allow a defendant, under any circum- stances, to have his conduct interpreted by his acts and speech, we shall frequently deliver over the accused, a helpless and hopeless sufferer, to the penalty of the law. If, on the other hand, we permit him to manufacture tes- B See Zellers' case in note, sub Jin. ''Post. 462 MONROE V. THE STATE. timony for himself, the most mischievous consequences would often ensue. For how easy it is to feign fears which are not felt, and shape our course in such a way that premeditated revenge, while it gluts itself in the blood of its hapless victim, will refer to the past, as proof, not merely of innocence, but of the harassing alarm, from the bondage of which the accused had long groaned to be delivered. "When an act is done to which it is necessary to ascribe a motive, it is always considered that what is said at the time, from whence the motive may be collected, is a part of the res gestce. As, where the question is under the Bankrupt Act, whether a trader ordered himself to be denied when at home, or left his house in order to delay creditors, what he said at the time of the act done, must necessarily be admitted to explain it, though not what he said at another time. Kep. Temp. Hard., 267 ; 5 T. R., 512, So, in an action by husband and wife for wounding the wife. Lord Ch. J. Holt allowed what the wife said im- mediately upon the hurt received, and before she had time to devise anything for her own advantage, to be given in evidence as a part of the res gestce. Skin., 402. And Lawrence, J., in Aveson v. Lord Kinnaird, 6 East, 188, said that " it is every day's experience in actions of assault, that what a man has said himself to his siirgeon, is evidence to show what he suffered by reason of the assault." Lord Ellenborough, Ch. J., in the same case, stated that he should admit in evidence, in an action against the adulterer, the declaration of the wife, upon her elopement, that she fled from immediate terror of personal violence from the husband ; though not if it were a collateral declaration of some matter which hap- pened at another time. And the whole Court unani- mously held in the case in East, that in an action by the husband upon a policy of insurance on the life of his wife, declarations of the wife, made while lying on her bed, apparently ill, stating the bad state of her health, at the period of her going to Manchester, (whither she went a few days before, in order to be examined by a surgeon, OPINION — DECLAKATIONS. 463 to get a certificate of him of good health, preparatory to making the insurance,) down to that time, and her appre- hension that she conld not live ten days longer, by which time the policy had to he returned, are admissible in ev- idence to show her own opinion, who best knew the fact of the state of her health at the time of effecting the policy, which was on a day intervening between the time of her going to Manchester and the day on which said declarations were made. In Rex v. Elisha Smythe and three others, which was an indictment for a forcible ■entry, counsel for Groddard, one of the defendants, wished to ask the witness whether, at the time the house was .searched, Groddard having a warrant in his hand, did not state for whom he searched. Archbold, for the prosecu- tion, objected that what Goddard said could not be evidence in his own favor. But Lord Tenteeden, Ch. J., -overruled the objection, and decided that he would hear what the defendant, Goddard, said at the time, as to who he was searching for. 5 Car. & Pay;, 201. In Rex V. Crutchley, lb., 133, on an indictment on the 7th & 8th, Geo. IV., ch. 30, §4, for breaking a. threshing machine, the Court allowed William Davis, a witness, to be asked whether the mob by whom the machine was broken, did not compel persons to go with them, and then compel each person to give one blow to the machine, and also whether at the time the prisoner and himself were forced to join the mob, they did not agree together to run away from the mob the first opportunity; In general, what a party says is not evidence in his favor, unless it be a part of a conversation of which some other part has already been given by the opposite party. But where the declarations of a party accompany the act, and are a part of the transaction, it is admissible. These declara- tions are often extremely material in cases of mutiny on board ships, as it often happens that when the mutineers have deposed the captain, they find that none of them are able to navigate the ship, and they then force one of the officers to assume the command of her ; .and he is in many cases brought to trial, because he 464 MONROE V. THE STATE. appeared to be acting with and directing the mutineers. In The State of Maryland v. Charles Ridgley, 2 Harr. & McH., 130, an indictment for murder, the Court deter- mined that the declarations of the prisoner antecedent to the fact, were admissible, as tending to explain and reconcile his conduct, and to discover the quo animo with which the homicide was committed. I would re- mark, as it respects this case, which is so directly in point, that it seems from the meagre report of it, occupy- ing a half page only, that for aught that appears, it was decided without argument and without authority. HosMEE, Ch. J., in Enos v. Tuttle, 3 Conn., 250, thus laid down the rule : That to be a part of the res gestoi, the declarations must have been made at the time of the act done, which they are supposed to characterize, and well calculated to unfold the nature and quality of the facts they were intended to explain, and so harmonize with them as obviously to constitute one transaction. And we apprehend, the rule as thus stated, approaches as near to accuracy as is consistent with the nature of the subject. The difficulty will be found in its applica- tion. We wiU endeavor, however, to test the evidence offered and refused by this principle. And upon this point, I am free to acknowledge that I feel some embarrassment. The first inclination of my mind was to reject the whole of the testimony of Haw- kins and Smith, as to the acts and declarations of the prisoner. And I still think that the safer course will be to exclude much of this proof. The difficulty consists in sifting and separating that which is legal from that which is illegal. The exclamation of Monroe to Haw- kins, in the office of the latter, on the morning of the day when the killing took place, " Yonder comes Macon with Ids Tauger" is free from valid objection ; but what follows, " Tie intends to Mil we," is clearly inadmissible. The transaction as testified to, at the window of the court-house, and the conversation between the witness and the prisoner relative thereto, is of doubtful compe- tency. Were I presiding in a capital case, I should OPINION — DECLARATIONS. 465 dislike to reject it. Defendant's counsel proposed to ask the witness why he left the office, where he and the prisoner were in the morning, with a view of bringing home to the knowledge of the prisoner, the conduct of the deceased on this occasion, — his violence, anger, threats, etc., which evidence was disallowed. No sufficient rea- son occurs to us for repelling this proof. We cannot anticipate what it wotild have disclosed. There is noth- ing exceptionable in the question propounded. For aught that appears, the answer might have brought home to the prisoner, knowledge of the conduct of the deceased and of his threats, wholly independent of his own sayings. "We hold, too, that the statement of pris- oner to witness before the shooting took place, that he saw the conduct of the deceased on the morning of the day, as it was described by Hawkins, should have been let in. For whether he saw it or not, and even conceding that this declaration was false, still, it establishes the fact conclusively, and a most material fact it is too, that the prisoner was apprised beforehand, from hearsay or observation, of the hostile purpose of the deceased. As to the testimony of Smith in reference to the peace warrant, had the witness gone further, and swore that defendant actually applied for a warrant, and that upon Ms advice it was abandoned, I should be strongly dis- posed to hear the evidence. But it stops one step short of this. It only proposes to show that the prisoner consulted with witness touching the propriety of resort- ing to the proceeding, "We think it useless to examine into this branch of the case more minutely. It is contended that the Court erred in refusing to aUow the introduction of testimony, to prove a continued series of threats accompanied by acts of violence from the deceased towards the prisoner, commencing some months previously, and coming down to the time of the killing, and all showing a determination on the part of the deceased to take the life of the defendant before the next ensuing term of the Lee Superior Court ; and which threats and conduct were known to the defendant. My 466 MOIiTROE V. THE STATE. remarks will be short on this point, having already decided at this term, in the case of John D. Howell v. The State,' that naked threats unaccompanied with per- sonal violence were admissible to show the reasonable- ness of the defendant's fears, provided a knowledge of the threats was brought home to him. This doctrine may be inferred from what fell from the Court in Hud- gins V. The State,^ 2 Kelly, 17g. On the trial of Meade and Belt'' for the murder of Law, 1 Lewin CO., 184, the Court allowed evidence to be given of the threats of the boatmen, the day previous, that they would come at night and pull his house down. And HoLBOTD, J., in charging the jury, said: "If you are of the opinion that the prisoners were really attacked, and that Law and his party were on the point of breaking, or likely to do so, and to execute the tTireats of the day he- fore, they were justified, perhaps, in firing as they did." In the People v. Kector,' 19 Wend., 567, one of the ques- tions raised by the prisoner's counsel was that the Court should have received proof of the violent breaking of the prisoner's house, on the previous Saturday night ; that the inmates had been badly abused, and that the rioters threatened to return another night, soon after, and treak in if they were not admitted; and this was offered to establish a reasonable ground for the prisoner's appre- hending of a similar threat, now repeated and attempted. The Court say : " They do not understand it to be ob- jected that real alarm on the part of the prisoner, on. apparent, though unreal grounds, was not ^pertinent to the issue;" and Meade's case, already referred to, was cited with approbation. In Patrick Blake's case, 1 and 2 City Hall Eecorder, 99, the Court held that the prosecutor had the right to show repeated quarrels between the prisoner and the deceased, to establish the malo animo ; but that he could not go back to a remote period, and show a partic- ular quarrel, unless he followed it up with proof of a continued diflPerence, flowing from such quaiTel. 'See notu, sm6. I?™. 1 See note, sm6. ^«. '^Posi. 'Post. CHAEACTEE OF DECEASED TOE VIOLENCE 467 Sucli, precisely, was tlie object of the evidence which was repelled. What, I ask, really excited the prisoner to the commission of this act ? He seems, throughout, be wholly free from the dominion of passion. Did he really and iona fide believe that deceased was coming towards him with intent to kill or do him some great personal injury? Did not aU the circumstances justify this apprehension? In the opinion of this Court, any- thing which could have operated on his mind may be proved. Monroe seems to have lived in habitual fear and alarm, and he probably had good cause. It is further argued, that the Court erred in rejecting evidence that the deceased was a violent, rash and bloody-minded man, reckless of human life, in the habit of taking advantage of his adversaries in personal con- tests, and not willing to give them a fair and equal chance in fight, and that the prisoner was well ac- quainted with his character in this particular. As a general rule, it is true, that the slayer can derive no advantage from the character of the deceased, for vio- lence, provided the killing took place under circum- stances that showed he did not believe himself in danger. Yet, in cases of doubt, whether the homicide was perpe- trated in malice, or from a principle of self-preservation, it is proper to admit any testimony calculated to illus- trate to the jury the motive by which the prisoner was actuated. 3 Stew. & Port., 308." And in this view, we think the evidence was improperly ruled out. Reasona- ble fear, under our code, repels the conclusion of malice. And has not the character of the deceased, for violence, much to do in determining the reasonableness or unrea- sonableness of the fear under which the defendant claims to have acted ? Does it makes no diflference whether my adversary be a reckless and overbearing bully, having a heart lost to all social ties and order, and fatally bent on mischief, or is a man of quaker-like mien and deport- ment? — one who never strikes except in self-defence, and then evincing the utmost rehictance to shed blood ? ■"Referring' to Quescnberry's case, •post, in note to Keener's case. 468 MONROE V. THE STATE. We apprehend that the imminence of the danger, as well as the chances of escape, will depend greatly upon the temper and disposition of our foe. In these cases, every individual must act upon his own judgment, and in view of his solemn responsibility to the law. If the assailant iatend to commit a trespass only, to kill him is man- slaugMer ; but if he design to perpetrate a felony, the killing is self-defence, and justifiable. 1 Hawk. P. C, ch. 28, §23;» 1 East C. L., 272. Who, knowing the character of Kyd, the pirate, or of the infamous John A. Murrell, would not instantly, upon their approach, armed with deadly weapons, act upon the presumption that robbery, or murder, or both, were contemplated? We would not be understood as applying these terms, or using this illustration in reference to the actual char- acter of the deceased, but to the hypothetical case, made by the bill of exceptions. In the opinion of this Court, there, was error also, in refusing to allow the defendant to prove, that, as a justice of the Inferior Court of Lee county, and at the request, and by the appointment of his associates, he became the prosecutor of the deceased for embezzlement, as treas- urer, of the poor-school fund of said county ; and that, in consequence thereof, the deceased vowed that the defend- ant should not be at the trial of said indictment, for that he would kill him. As a general rule, it is expedient to receive all the evidence which goes to show the state of feeling of the parties towards each other, at the time of the act committed. And for the same purpose, testimony may be given of lawsuits existing between the parties. The State v. Zellers," 2 Halst., 220. How strong does this principle apply in the present case. The question to be settled is, was this homicide the result of malignity or of human infirmity or manly caution ? To answer this enquiry satisfactorily, we must transport ourselves back to the period when this rencounter took place. We must substitute ourselves in the shoes of the. defendant. By becoming the public prosecutor of the deceased, he had " Old edition. " See note mb fin. NOTE — HOWELL'S CASE. 469 kindled tlie most deadly grudge in his bosom. He pro- claimed Ms purpose to take his life before the prosecu- tion terminated. His threats and menacing conduct are continued down to the fatal moment when he fell. The prisoner is forced to abandon his practice by day, and to pursue it stealthily by night. To excuse the deadly shot, is he not entitled to have all these facts and circumstances submitted to the jury? Judgment reversed. Note. — The following is the full text of that portion of the opmion in Howell's case, which relates to the subject under consideration : Warner, J. : * * * With regard to the second ground of error assigned upon,the record, we are of the opinion the question pro- pounded to the witness, Green, as to threats made by Dill " to drive the defendant from the place or take his hfe," was legal evidence, and ought to have been answered by the vntness. The defendant was charged vdth an assault with intent to murder. This offence must be proved to have been committed, under such circumstances that if death had ensued, it would have been murder, Archbold's Criminal Pleading, 246. Whether the threats of DiU to drive the defendant from the place or take his life, were ever brought home to the knowledge of the defendant, the record is sUent. The distinct proposition made by the record is whether it was ■ competent for the defendant to prove such threats on the part of Dill, agaiast the defendant. By the 12th section of the 4th division of the penal code, it is justifiable homicide to kill a human being in self-defence, or in defence of habitation, property or person agaiust one who manifestly intends or endeavors by violence or surprise, to commit a felony on either. The 13th section declares, that " a bare fear of any of those oflences, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge." The 16th section declares, " aU other instances which stand upon the same footing of reason and justice, as those enumerated, shall be justifiable homicide." Prince, Ga. Stat., 623-4. The threats of Dill, pro- posed to be proved by witness, manifested an intent, on his part, to commit a felony on the person of the defendant. Whether the evidence was sufficient to excite the fears of a reasonable man, or only a bare fear that an attack would be made on the defendant's person, by Dill, was a ques- tion for the jury to decide. The evidence was competent to show the gtw animo of the defendant, the circumstances, under which he acted. If it had been shown that the threats did not come to the knowledge of the defendant, then, if proved to have been made, they would constitute no justiiication for him. The error consists in not permitting the whole of 470 MONROE V. THE STATE. the facts in relation to the threats, to have been proved to the jury. All we can say is, that the question propounded to the witness, as it appears on the record, was a legal and competent question. What effect the answer would have had with the jury, of course we cannot know. • All we decide is, that on a trial for murder, or on a trial for an assault with an intent to murder, it is competent, under the provisions of our code, for the defendant to ask a witness, if he did not know that the deceased, or the person assaulted, made any threats to drive the prisoner from the place or take his life. In the case of The People v. Rector, 19 Wendell's Rep., 569, IPosi, Part II.,] evidence of threats was held admissible, made a week previous to the transaction, by other persons than the deceased, who had broken into the prisoner's house, and treated the inmates badly, and who had threatened to return some other night soon after, and break in again, if they were not admitted. Although the threats were not made by the deceased, yet the testimony was oifered, and held admissible, to show that the prisoner had reason to apprehend violence upon his house at the time the deceased and his companions came there, and that was his reason for using, so much force as he did. Mr. Justice Cowbn, in delivering his opinion, says : " The lightness of a relevant circumstance is no argument for with- holding it from the jury. In the prosecution of a crime so essentially the creature ol intent as murder, everything pertinent should be submitted to the jury, from which they may infer the absence of malice." Whether the circumstances under which the threats were made by Dill, " to drive the defendant from the place or take his life," were such as to excite the fears- of a reasonable man, and to induce the defendant to apprehend violence to his person, so as to justify an attack upon the party making them, was a, question for the jury, under the law ; and if not a justification under the law, it might, in their judgment, have rebutted the presumption p( malice,. on the part of the defendant, which is a necessary ingredient to constitute the offence with which he was charged. ' Let the judgment of the court below be reversed, and a new trial granted. The case of The State v. Hudgins, 2 Kelly,— sometimes cited, 2 Georgia — 173, referred to in the principal case, was determined in the Supreme Court of Georgia, February Term, 1847. The prisoner was indicted for the murder of John Anderson. Anderson was hoeing in a field near Hudgins' house, when Hudgins, seeing Anderson's dog, shot and killed it, and sent his children to drag it away. Anderson seeing this, advanced towards Hudgins' house on a run, but dropped his hoe at the end of the cotton row, about two hundred yards from Hudgins' house, and advanced through the yard at a walk, with nothing in his hands, and unarmed. Hudgins waited his approach with a shot-gun, and when a few steps off, shot him in the left breast, and as he was about to faU, struck him on the left cheek with his gun, break- ing the barrel from the stock. Anderson immediately died. The defendant offered to prove, by Anderson Hudgins, his son, that he, Anderson Hudgins, said to his father, as the deceased approached, " Yon- der comes John Anderson, and he will kill you." The trial court refused to admit the latter portion of the answer, and the defendant excepted. Upon this point the Supreme Court, Lumpkin, J., delivering the opinr- NOTE — HTJDGINS' CASE. 471 ion, said : " Was the judge below right in ruling out the evidence of Anderson Hudgins, who testified that he said to the prisoner, 'Yonder comes John Anderson, and he will kill you.'' The witness was permitted to state that he had notified the defendant, that the deceased was approach- ing, and it was only his opinion as to the quo animo, or intention with which he was advancing, that was adjudged to be inadmissible. The doctrine on this subject, is this : where the question is, whether the party- acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence. And that portion of the proof which was received, comes strictly within the rule ; but the part excluded'was the opinion only of the witness. "To justify a homicide, the defendant must depend upon the circum- stances by which he was at the time surrounded, and under the influence of which he perpetrated the act. Were they sufficient to excite the fears of a reasonable man ? And is it evident that the slayer acted under the influence of those fears, and not in a spirit of revenge ? Was the danger so urgent and pressing, at the time of the killing, that, in order to save his own life, the killing of Anderson was absolutely necessary ? Does it appear, also, that the person killed was the assailant? "Now, all these pregnant enquiries must be solved by the facts which transpired, and not by the opinion of a bystander, whether that opinion was communicated to the accused or not. Had young Hudgins informed the prisoner, that Anderson was advancing in great haste, appai-entiy much enraged ; that he was using threats of personal violence^ armed with a weapon, and the like ; all this would be admissible to satisfy the jury that the homicide was in self-defence. The opinion of the witness, is a very diflerent thing. It would be dangerous in the extreme, to per- mit the belief of any one, whether sincere or feigned, much more the off- spring of accused, to afford a pretext for taking human life." The learned judge then quoted at length, in illustration, Levett's case, Cro. Car., 538 ; but as this case has been fuUy quoted elsewhere, it will not be repeated here. [Ante, p. 260.] The principle thus ruled in Hudgins' case, is affirmed in The 'State v. Hawkins, 25 Ga., 207, where it was held proper to refuse to allow the de- fendant to ask two witnesses, who were present at the killing, " whether, from the conduct, countenance and language of the deceased, immediately preceding the homicide, they (the witnesses) believed the deceased intended to kiU the accused." The facts of this last case are given in a note to Sloan's case, post. The principal case seems to be an excellent corrective of the unfortun- ate rulings in Myers' case which immediately precedes it. The case of The State v. Zellers, 2 Halst., 220, which is also cited in the principal case, and has been frequently cited elsewhere, was tried at an Oyer and Terminer session of the Supreme Court of New Jersey, in 1824. The indictment was for the murder of Zackariah Flommerfelt, esquire. Its value as a precedent cannot be fully understood without setting out the facts and rulings at considerable length. Flommerfelt had bought some land belonging to Zellers, at sheriff's sale, and was exercising acts of o\vnership over it, which Zellers and his; wife and daughters resisted. On the morning of the homicide, Flommer- 472 . MONEOE V. THE STATE. felt went to the barn where a neighbor, Hoffman, was working, told him that Zellers had goile to the field with his gun, and asked him to go with him and help to get the gun away from him. They went ; and when they ■came opposite to where Zellers was, they stopped, and Flommerfelt said to Zellers, "Good morning, Zellers." ZeUers replied, "Good morning." Flommerfelt then asked Zellers what he was making fence upon his pos- session for. ZeUers said'it was his own, and told him if he came on it, he would shoot him. Zellers then cocked his gun, and as Flommerfelt was ^oing toward him with a very quick step, setting one foot over the fence, which separated the road from the field where Zellers was, the gun was dis- charged. Flommerfelt sagged down with his right hand on his knee, and pitciiing forward, seized the gun with his left, and held it a short time. Flommerfelt let loose of the muzzle of the gun, and wheeled about on his left, holding his right hand upon his right knee, and very much bent, and got over the fence, and then fell down on the bank of the road. He died in three-quarters of an hour. Hofiinan caught Zellers and cried murder, as loud as he could. While hewas holding Zellers, the latter told his boy to take a stick and knock his brains out. The boy came towards Hofiinan with a stick, but did not strike him. Other neighbors arriving, they bound Zellers with a rope found in Flommerfelt's pocket. The cross-examination of Hoffman, the principal witness for the State, having assumed considerable latitude, Scott, for the State, objected. Vroom, for the prisoner : " We intend to prove that the defendant was in possession ; and the evidence is offered to make out that fact, and further, it is offered to show that Flommerfelt treated the wife and daughters of Zellers in a cruel and brutal manner, in order to show the state of irritated feeling and provocation under which the defendant acted." Scott objected as to the part which related to the possession, because no man had a right to defend his property, (other than his house,) by making use of a deadly weapon. 4 Mass. 396. [Drew's case, post.'\ And as to his treating the wife in a brutal and barbarous manner on Saturday, it could not extenuate the act committed on the subsequent AYednesday. Vroom : " We have a right to show in what manner he sought to obtain possession. The transaction offered in evidence took place on Satiu-day, and the offence was committed on the Wednesday following : and that this old man was authorized to defend his possession by force, and to defend his person against a person whom he had a right to believe (from tlie treatment his wife and daughters had received) was coming to do him some personal injury." KiRKPATEiCK Ch. J.: "It can never be set up that the mere trespass •can excuse him. No man can defend his property, (other than his dwell- ing house,) from a trespasser, by making use of a deadly weapon. But inasmuch as the distinction between murder and manslaughter depends upon the impulse of the mind \vith which the act was committed, every ■circumstance which goes to show the feelings of the parties towards each other, may be proper. Tliat temper, which at one time might not be excited, might, under tlie excitement of other circumstances, be more easUy roused, and, therefore, it may be received by the jury, to show the state of mind of the parties." Further on, John Anderson, for the State, testified that there had been NOTE — ZELLEKS' CASE. 473 lawsuits between the deceased and defendant ; that deceased had recovered a judgment against defendant in the spring of 1822; that defendant was put in jail by virtue of an execution upon that judgment, and witness un- derstood that defendant was released from jail upon an agreement to give up the possession of two of the fields in dispute to Flommerfelt ; it was upon one of the fields agreed to be given up, that Flommerfelt was shot. Vroom asked what the suit was brought for. KiRKPATRicK, Ch. J.: " Can we go into the investigation of all the lega* proceedings between these parties ? " Vroom said that he wished to show that the suit was unjust and mali- ■cious ; and that while the prisoner was in jail by virtue of thatjudgment, and under duress, he. in order to release himself from jail, made the agree- ment to deliver up the two fields. KiRKPATRiCK, Ch. J. : " You cannot go into the fact of proving that the suit was maUcious ; but may show that if there was any arrangement, it was while the party was in jail and under duress of imprisonment." Other testimony was heard as to this agreement, made while the defend- ant was in the jail. The counsel for the State then ofiered in evidence, the sheriff''s deed to Flommerfelt for the property on which Flommerfelt was shot. KiRKPATRiCK, Ch. J., said : "That cannot be received, as we camiot en- quire into the title in this suit." Much testimony was introduced by the defence, showing the quarrels of the defendant and deceased about the possession of the field in question ; attempts of the neighbors to bring about a compromise ; the fact that the defendant had given the deceased permission to sow the field with clover seed, and after deceased had got it plowed, had gone with his gun and sowed buckwheat on it himself; the fact that on the Saturday before the klUing, the wife and daughter of defendant had gone to the field and com- menced building a fence on it, and that deceased had ejected them, using, as it seemed, no unnecessary force. KiRKPATRiCK, Ch. J., charged the jury as tollows : Gentlemen — The defendant's counsel have charged the deceased with nnjust and fraudulent conduct towards the prisoner, and upon that unjust and fraudulent conduct, they found their defence ; they say, that was the cause which excited the prisoner to do the act. In what did this fraud and injustice of the deceased consist? First. The deceased purchased the de- fendant's estate at sheriff's sale, and paid a fair price for it. In this there was nothing unlawful, nothing which ought to excite the anger of the de- fendant. Second. He prosecutes the defendant in a suit at law, and obtains a judgment against him — sues out execution, upon which the defendant is taken and imprisoned. There is nothing unlawful in this. Third. He pur- chases the possession of a part of the property and enters upon it, and de- fendant gives him leave to sow grass seed upon it, thereby giving him possession. After this, the defendant interrupts him. Who, then, is the most to blame ? It appears to me that the deceased acted in this matter like a fair, rational and honorable man. Would it not, in these circum- stances, be right to say that deceased had lawful possession of the land ? I think it would. In this situation the event occurs. If it should be be- lieved that the prisoner did not shoot off the gun intentionally, but that 474 MOWKOE V. THE STATJE. the deceased closed in upon him, seized the gun, and that it went off ac- cidentally in the struggle, the prisoner is not guilty at all. But if you think that was not the case, but believe the principal witness, and that he fired the gun intentionally, he must be guilty either of homicide in self- defence, manslaughter, or murder. 1. Did the defendant believe that deceased was coming towards him with an intent to kill him or do him great bodily injury? There was nothing which could warrant a belief of that kind. If there was nothing to induce such a belief, then he must be guilty of manslaughter or murder- 2. Manslaughter is where a person kills another upon a sudden trans- port of passion or heat of blood, upon a reasonable provocation and with- out malice; as, for instance, such a sudden attack upon a man's person, that his mind becomes immediately inflamed, and in the fury of his passion, kiUs the aggressor. It is conti-aiy to the whole tenor of our law to allow a, man to excuse himself from the guilt of killing another by saying, " I got in a passion because he did an unlawful act, or because he entered on my land, and therefore, I shot him." No case can be found in the books to- warrant the position, that merely because a man is trespassing on my land,^ I may kill him. On the contrary, the law on this point is well settled, and has been read to you from 4 Mass. Eep., 396, viz : " That where the tres- pass is barely against the property of another, and not against his dwelling- house, it is not a provocation sufiicicnt to warrant the owner in using a deadly weapon : and if he do, and with it kill the trespasser, this will be murder, because it is an act of violence beyond the degree of the provoca- tion." [Drew's case, post.'] 3. Murder is the killing a reasonable being with malice aforethought, that is, with deliberate intention or formed design. And the law presumes aU homicide committed with malice aforethought, and, of course, amount- ing to murder, until the contrary appears from circumstances of alleviation, excuse or justification. And it is incumbent upon the prisoner to make out such circumstances to the satisfaction of the jury, unless they arise out of the evidence produced against him. Has the prisoner made out any such sudden provocation as will reduce the offence to manslaughter ? The mere attempt to come upon his land is not such a provocation. Whether there are any other circumstances sufficient for that purpose, you will judge. *********** Verdict, guilty of manslaughter ; sentence, three years imprisonment, and a fine of $1000. The necessity of making a pretty fuU statement of this last case has drawn us into a little digression. It is seen that it relates principally to- the defence of property, a matter which belongs to Pajit III of this vol- ume. It IS also seen that the jury are told that if the gun went off acci- dentally, the defendant was not guilty at all. This was I'learly a miscon- ception of the law. In the first place, Zellers was not defending his own possession ; for the possession had been surrendered to the deceased. He was, therefore, a trespasser upon the deceased's possession. In the second- place, if he had been defending his own possession, he was defending it against a mere civil trespass, not felonious in its character— not irreparable,, but for which he could have had full redress by law. Therefore, he had NOTE — ^EVIDENCE IN MITIGATION OF PUNISHMENT. 475' no right to defend it in the manner and by the means in which he did — that is, by the use of a loaded gun, cocked and presented at the trespasser. State V. Vance, 17 Iowa, 138 ; Drew's case, post. The means of defence then being unlawful, he was criminally responsible for the death that con- sequently ensued. See Beuham's case, ante, p. 115, where the doctrine is stated ; and State v. Vance, 17 Iowa, 146, where it is fully discussed on a state of facts similar to ZeUers' case. Upon the other point, namely, that the doing of a lawful act, however much it may in fact aggravate another, will not afford any extenuation of a homicide, see Hinton's case, ante, p. 83, and note. Lingo v. The State,. 29 Ga., 484 ; Dill's case, post. In a trial for murder in Louisiana, evidence of a previous quarrel be- tween the defendant and the deceased was excluded, and in the Supreme Court, on appeal, MERKiCK,'Ch. J., speakina: for tlie Court, said : * * * " The bUl of exceptions also shows, that the Court refused to allow the- accused to prove a previous quarrel between the deceased and the defend- ant. The tendency of this last mentioned evidence, if admitted, would have been to aggravate the homicide, and make that appear to be murder, which, under other circumstances, might perhaps, be considered as man- slaughter. Had the proof been offered by the State, for the purpose of showing a previous grudge and the malice aforethought, it might have been admissible. The prisoner certainly cannot complain that testimony un- favorable to his case has been excluded. Whart. Am. Crim. Law, p. 377 ;. Ibid, 234r-5; 5 La. An., 489." State v. Jackson, 12 La. An., 679. The questions of evidence discussed in the principal case, and in Keener'scase,^osi, and others, leads us to off'er a conjecture of our own upon a single point : Although it is a familiar principle that no threats or other mere words can justify a battery, yet it is equally true, that in civil actions for damages for assault and battery, evidence of provocation by words is admissible in mitigation of damages. Riddle v, Brown, 20 Ala., 412 ; Frazer v. Berkeley, 7 Car. & Pay., 621 ; Stellar v. Nellis, 60 Barb., 524 ; S. C. 42 How. Pr., 163 ; Richardson v. Northup, 56 Barb., 109. In prosecutions for murder, it is likewise a familiar principle, that no threats or other mere words can constitute such a legal provocation, as will reduce a kUling from murder to manslaughter. But, nevertheless, shoiUd not evidence of previous threats, libels, slanders, quarrels, or other injuries, not sufficient to reduce the degree of the crime, be received in evidence, as an ingredient to be considered in determining the quantum of the punish- ment, in case the verdict shall not be such as carries with it the punishment of death? Ought not the analogy to hold between the criminal prosecution for homicide and the civjl action for assault and battery ? Should a rule of evidence, which obtains in mitigation of civil damages, generally small in amount, be denied in mitigation of a grievous term of imprisonment? It is true, that this would open a wide latitude of enquiry, but no wider than some courts have opened on other grounds ; and would not such a rule lead to a more uniform standard of justice ? For, indeed, it seems at the present time, under the exclusionary rules of evidence which obtain in some States, and the great latitude allowed in others, that the quantum ot punishment which shall follow any crime, is a matter of chance and hazard,. 476 EOBEET JACKSON V. THE STATE. rather than the more uniform result of a sound discretion, exercised by judge or jury, accordingly as this function is reposed in the one or the ©ther, enlightened by all the circumstances surrounding the transaction. ROBERT JACKSON v. THE STATE. [Uneepokted.J ■Bwpreme Court of Tennessee, Jackson, April Term, 1873. A. O. P. Nicholson, Chief Justice. P. TUEWEY, Robeet McFaelawd, Jas. W. Deadeeick, \ Judges. ThOS. J. FEEEMAlSr, John L. T. Sneed, R0LES WHICH DETERMINE ADMISSIBILITY OF EVIDENCE OF COMMUNICATED THREATS IN TRIALS FOR HOMICIDE — APPEARANCES AND IMMINENCE OF DANGER — Overt act. 1. The general rule, subject, perhaps, to exceptions in extreme cases, is, t^at in trials of indictments for homicide, evidence of previous threats made by the deceased against the prisoner, and communicated to him be- fore the killing, is admissible, wthout reference to the question whether there is any evidence tending to show that at the time of the killing, the deceased was doing some overt act manifesting a present intention to carry such threats into execution ; or, without reference to the question whether there was proof tending to show that the defendant may have acted upon a reasonable belief that he was in danger of death or great bodily harm at the hands of the deceased. [Ace. Pridgen's case, ante, p. 416 ; Little's case, fost, next case. Contra, Myers' case, ante, p. 432 ; Hays' case, post.'\ 2. Ordinarily, the Judge cannot assume whether there is evidence tend- ing to prove such a state of facts as would make testimony of such com- municated threats relevant ; because this would be to decide on the effect of the evidence upon a material question in the case — a matter which belongs exclusively to the jury. [Ace. Pridgen's case, ante, p. 416.] 3. What constitutes such an overt act as will warrant a person in slaying his enemy in his own defence, is a question for a jury, to be resolved ac- cording to the circumstances of each particular case. No general rule can be laid down upon the subject. [Ace. Cotton's case, ante, p. 310 ; Patten's case, post. And see Harris' case, ante, p. 276, and the casfs there cited.] 4. Previous threats or acts of hostility, however violent they may be, ■will not justify a person in seeking and slaying his adversary. [Ace. Rip- OPINIOK — THE FACTS STATED. 477 py's case, ante, p. 345 ; Williams' case, ante, p. 349 ; Lander's case, ante, p. 366 ; and others. Contra, Carico's case, ante p. 389.] Wilkerson & WilJcerson and T. E. Richardson, for the . plaintiff in error ; Joseph B. HeisTcell, Attorney-General, for the State.* MoFakland, J., delivered the opinion of the Court : The prisoner was indicted for the murder of Martin Denioss, in Lauderdale county, and was tried and con- victed of murder in the second degree. His motions for a new trial, and in arrest of judgment were overruled and judgment rendered, from which the prisoner has ap- pealed to this Court. The bill of exceptions shows that the State examined three witnesses, two of whom were immediately present and vsdtnessed the homicide ; the other was sixty or sev- enty yards distant. The following is a brief statement of the facts deposed to by these witnesses : " The prisoner, in company with Lucy, one of the wit- nesses, was on his way home from the " Cross-Roads," late in the evening of Wednesday, the 15th of Novem- ber, 1871. They entered a lane running north and south, which intersected with another running at right angles. The deceased with his brother, one of the other wit- nesses, was in this latter lane, going out to pick cotton. Each party was moving towards the junction of these roads, and at about that point they met. The prisoner was carrying a shot-gun, and when he discovered the de- ceased, at a distance of forty or fifty yards, he took the gun off his shoulder and cocked it and put it under his arm. When they met, each party bore to the right hand side of the road ; nothing was said. When the parties were about opposite each other, the prisoner suddenly turned his gun, and, without raising it to his shoulder, fired, striking the deceased with ten or more buck-shot in the left side, between the ribs and hip bone, and a little to the front. The deceased was also shot through the back of the right hand with three shots, showing that at thejnoment, the deceased had his right hand * The counsel for the plaintiff in error made use of the brief filed by- Mr. Horrigan in the next case. 478 ROBERT JACKSON V. THE STATE. upon his left side. Of these wounds he soon after died. The only other material fact stated by the other wit- ness, who was further off, was, that when the deceased and his brother passed him on the road, they were con- versing in an ordinary manner, with no mark of excite- ment. This was the substance of the proof upon which the State rested the case. The prisoner introduced a number of witnesses, by whom he proposed to prove the following facts, in sub- stance : That the deceased had previously manifested very Tjitter and hostile feelings towards the defendant, and on "Wednesday before the homicide, had attacked him in a public road, and compelled him to seek safety in flight, and it was with difficulty the deceased was induced to desist by the interference of the bystanders. The de- fendant had armed himself with an ax after fleeing a short distance, and stood upon the defensive. The deceased armed himself with a billet of wood, and manifested a determined purpose to press the contest ; but finally left, saying he would see defendant and have satisfaction at another time. That on the same day he told a witness that he had just had a difficulty with the defendant that morning ; that he had sold his crop to Mr. Wakefield, and as soon as he got his pay, which would be in a few days, he was going to kill Jackson, the defendant, and go to Arkansas ; that he and Jackson both could not live. This conversation was repeated to the defendant the next day by the witness. The same threat in substance was made to another witness on the same day, and also repeated to the defendant on the next day. On the day before the homicide ±he deceased said to another witness, after a good deal of boasting in regard to his difficulty with the defendant, that he would have satisfaction out of Jackson before he left the country. This was communicated to the defendant the morning of the homicide. The defendant proposed to prove that the deceased had insulted and assaulted him on another occasion, previous to the affair on Monday first spoken of. OPINION— COMMUNICATED THREATS. 479 It was proposed to prove by a number of witnesses, that the deceased was one of the most turbulent, reck- less, relentless, revengeful, dangerous characters ever known to the witnesses ; a man of herculean physical power, and a terror to the whole neighborhood ; that de- fendant was informed by other witnesses of other threats ; was a feeble man, afflicted with rheumatism, and was ad- vised to go armed to defend himself. The judge sent the jury from the room when the testi- mony was offered, heard from the witnesses the testimony proposed as above, and held it all inadmissible. Except the Court held that the defendant might prove the exist- ence of unfriendly feeling between him and the deceased, but nothing more. It is manifest that the effect of this, taken alone, would be more against the prisoner than in his favor. This raises the question for our determina- tion. In the first place, we think the practice adopted by the judge, in sending the jury from the room while the question as to admissibility of the testimony was being discussed, not only not objectionable, but highly com- mendable. If the testimony was incompetent, it was certainly not error to refuse to allow the jury to hear the defendant propose to make proof. The question, however, is, was this testimony, or any part of it, admissible ? The reasoning upon which the judge acted, and the argument made here with much earnestness in support of his ruling, may be stated as about this : That no pre- vious threats or acts of hostility, however so violent, will justify the party in slaying his adversary. To excuse a homicide the danger of life or great bodily harm must be real, or honestly believed to be so, and must be immi- nent and apparent at the time. That there must be some overt act at the time, indicating a present purpose upon the part of the deceased to take the life of the defendant or do him some great bodily harm. That it is only when the proof shows some such overt act at the time of the homicide, that previous threats, previous difficulties, and 480 EGBERT JACKSON V. THE STATE. the character of the deceased, might Ibe introduced and considered, in connection with such overt act, to enable- the jury to determine whether the defendant acted under the honest and well-founded belief that he was at the moment in imminent peril of his life. That it is the province of the Court to say wTien there is evidence ; and as the judge was of opinion that there was no evidence of such overt act upon the part of the deceased at the time of the homicide, it resulted that it was within his province to exclude the evidence offered, of previous threats, etc., from the jury, as it could not be available as a defence. "We fully assent to the first proposition maintained by the Attorney-General, that is, previous threats or acts of hostility against the defendant, however violent they may be, will not of themselves justify him in seeking and slaying his adversary ; that it must appear that it is necessary to do so, in order to save his own life from the threatened danger. To excuse the slayer, he must act under an honest be lief that it is necessary at the time to take the life of his adversary in order to save his own ; and it must appear that there was reasonable cause to excite this apprehen- sion. See Rippy v. The State,* 2 Head, 317 ; John C. Wil- liams V. The State," 3 Heisk., 376. These are authorities holding a somewhat different, doctrine, but we cannot yield to them." But the question here is — what evidence may be heard by the jury, in order to enable them to determine whether or not the defendant is excusable under the principle above stated? We concede, as we have al- ready said, that to make out this defence, the defend- ant must act under an honest and well founded appre- hension, that it is necessary at the time to take the life of his adversary, in order to save his own. But, surely, in showing the grounds of this apprehension, he should ^Ante, p. 345. ^ Ante, p. 349. "Philips' case, ante, p. 383; Carico's case, ante, p. 389 ; Bohaniion's case, ante, p. 395. COMMUNICATED THREATS — "OVERT ACT." 481 not be confined to evidence of what occurred at the moment of the homicide. It is said, there must have been an overt act of the deceased at the time, showing his deadly purpose ; but what is an overt act, and who is to judge whether or not there was such an overt act ? If the parties, previous to the fatal meeting had been friends, with no hostile feeling, the- deceased, a person of mild temper, certainly an overt act upon the part of the deceased, that would have justified the defendant in taking his life, upon the assumption that it was neces- sary to do so in order to save his own, ought to be some demonstration of a very decided character, indicating a deadly or dangerous purpose. On the other hand, if the parties were deadly enemies, and the deceased had previously made attempts or threats against the life of the defendant, and was known to be a person of violent and dangerous character, likely to execute his threats, then, in such case, upon the parties meeting, the defend- ant would not necessarily be bound to wait until his adversary had actually drawn a deadly weapon, or wap in the very act of striking. The necessary overt act in the one case, might be dif- ferent from the other. It is difl&cult to lay down a rule strictly governing all cases, the circumstances of the cases diff"er so widely. The overt act that will justify a defendant, in assuming that his own life is then in danger, must depend upon the circumstances of each particular case. Cases may be readily supposed, and, no doubt, in reality often occur, when to require a de- fendant to wait until his adversary actually begins the combat, would be to require him to wait, until there would be but little chance left of successful defence; cases where the deadly purpose of the party is so fixed and determined, his character so reckless and bloody, his use of deadly weapons so expert and skill- ful, that to await his attack would be to await almost certain death ; and the result of the rencounter would often depend upon which party was the quicker in action. In cases of this character, where the parties 4B2 EOBEKT JACKSON V. THE STATE. meet, a very slight moyement might justify either party in acting at once upon the assumption that his life is then in instant peril ; or, cases might occur, where the fact that the deceased met the defendant under the particular circumstances, and in connection with prev- ious facts, might show that the deceased sought the meeting with a deadly purpose, and be itself an overt act. These are, doubtless, extreme cases ; but they are used to show that the " overt act " spoken of, is a question de- pending upon the entire circumstances of each particular case, and also to illustrate the meaning of the expression that "the danger must be imminent at the moment." These expressions must be understood in their proper sense, and as applied to the facts of each case ; and to show that the defendant's fear was honest and in good faith, it should appear that the circumstances were such as would naturally create this apprehension in his mind, not that he was in actual danger. One party might assail another with a gun or pistol in such a manner as to create an honest belief in the mind of the latter, that his life was in instant peril, and yet it might, in reality, afterwards appear that the gun or pistol was not loaded, and the attack was really feigned ; but if this was not known to the party assailed, and the circumstances were such as were reasonably calculated to deceive him, his defence would certainly be as complete as if the danger had been real ; and in this sense must be under- stood the remark, that there must be reasonable ground for the defendant's action. Now, it is very apparent, that in all cases where prev- ious acts of hostility and threats upon the part of the deceased, in connection with his character, and the facts immediately attending the homicide, may establish the fact, that the defendant, in taking his life, acted under the belief that his own life was in peril, the testimony should be heard; otherwise, the true attitude of the parties, and the grounds upon which the defendant acted, and his state of mind, would not appear. COMMUNICATED THREATS — CHARACTER 01^ DECEASED. 483 But the argument of the Attorney-General is, that this testimony should not only be heard, where the facts attending the homicide show that it might justify the defendant's conduct; that it is the duty of the Judge to determine, whether in the facts attending the homi- cide, there is any evidence showing an overt act of the deceased at the time ; if not, the testimony should be ex- cluded, as in this case. The cases put by the Attorney- General, by way of illustration, are extreme ; as if it should appear that the deceased at the time he received the fatal blow, was asleep, so he could not have com- mitted an overt act. It would seem very clear, that no amount of previous threats would justify a jury in such a case, in acquitting a defendant upon the ground that he then acted under fear of his life ; biit whether in such a case the judge should exclude the evidence altogether, we do not decide. Such, at any rate, is not the present case. The rule, that it is the province of the judge to decide, if there is any evidence, is, no doubt, a correct one, when properly applied ; but here, for the judge to decide that there was no evidence of an overt act or hostile , demonstration upon the part of the defendant at the time of the homicide, sufficient to admit proof of previous threats, was necessarily to decide the very question upon which the case turned, and which was the peculiar province of the jury. The evidence of the facts attending the homicide was before the jury. What was the effect of this evidence? what results were established by it ? were questions for the jury, and the judge was not authorized to decide, that in the facts deposed to by the witnesses, there was no evidence of self-defence, or that there was no evidence of passions excited by adequate provocation, to reduce the offence to manslaughter. However clear these propo- sitions may have appeared to the Judge, they are, nevertheless, questions for the jury. While the Judge was in form deciding, that there was no evidence of the given proposition, he was, in effect, deciding upon the 484 ROBERT JACKSON V. THE STATE. weight and effect of the evidence upon a point vital ta the case. "We are not aware that this direct question has been before, this Court. Tlie case of Harmon v. The State, 3 Head, 243, relied upon by the Attorney-Greneral, was a conviction for an assault and battery. The evidence rejected in that case, was offered to show the bad and dangerous, and desperate character of the prosecutor, of Ms numerous assaults upon other parties ; it was held that the evidence was properly rejected. Judge Wright said: "In an indictment for assault and battery, the character of the prosecutor can, as we apprehend, never be made a matter of controversy, ex- cept when involved in the res gestce. Since the fact that he may be an overbearing, tyrannical and dangerous man, in the habit of assaulting otlier parties, furnishes no legal excuse to the defendant to assault Mm. The defendant may prove that he was acting in self-defence,: or he may exhibit whatever provocations were given to him by the prosecutor, but he cannot set up general reputation, or the conduct of the prosecutor towards others as a defence. When, however, it is shown that the defendant was under reasonable fear of his life or great bodily harm from the prosecutor, the prosecutor's temper, in connection with previous threats, etc., is suffi- ciently part of the res gestce to go in evidence, as explan- atory of the state of defence in which the defendant placed himself : citing Whart. Cr. L., 234-5 ; 3 Iredell, 424" ; Wright v. The State,' 9 Yerg., 342. And he adds ^ State V. Tilly, /losi, note to Lamb's case. e The only point in this case necessary to be stated in connection with the law of self-defence, will be found in the following- extract Irom the opinion of the Court, delivered by Turley, .T. ; " The second cause as- signed as error is, that the Court refused to hear proof to show that the prosecutor. Underwood, who is a free man of color, is a turbulent, insolent, saucy fellow. We think there is no error in this ; for, supposing him to have been of the character described, we cannot see how this would have extenuated the offence of stabbing him, and most certainly the prisoner does not stand in such a relation towards him, as to justify his being very particular in demanding respectful treatment from him." ■COMMUNICATED THREATS — CHAEACTEK OF DECEASED. 485 that the proof of the prosecutor's bad temper would have been relevant and admissible in that case ; but the defendant's position was made too broad, and was, therefore, at fault. In the* ase of John C. Williams v. The State,' 3 Heiskell, 376, Judge Nicholson, in review- ing the facts, held that the conviction of murder in the second degree was well sustained by the evidence, upon the ground that it did not appear, that at the time of the homicide, the deceased was making any demonstration against the defendant, or that the defendant acted under apprehension of danger to himself, and yet the evidence of previous hostile demonstrations and threats by the deceased, was considered relevant and its effect discussed. It is true, no objection appears to have been taken in that case. This seems to have been the course in other cases. See Copeland v. The State, 7 Humph., 429. In fact, we think the practice has been very general to admit proof of this character, and leave its effect to be determined by the jury, with proper instructions. We are not to be under- stood as intimating any opinion upon the facts of this case, or as to the effect that a jury ought to give to evi- dence of the character offered, in connection with the acts immediately attending the homicide. The principle of self-defence, as laid down by this Court in the case of Grainger,^ and subsequent cases mod- ifying that case, while of vital importance, has, no doubt, been much perverted and misapplied, and when thus misapplied, has, no doubt, resulted often in the acquittal of guilty men; — but judges are not on this 'account to take away from the jury the trial of the accused. We regard the question presented as one of great im- portance. We do not find in the cases from other States, fur- nished by counsel, any satisfactory discussion of this precise question. They discuss other questions of inter- est bearing upon this, more or less directly, but ques- ' Ante, p. 349. s 4nle, p. 238. 486 BOBEET JACKSON V. THE STATE. tions generally satisfactorily settled by cases in this-' State. We confess the weiglit of the argument — that if the judge can see that proof of previous threats and hos- tile demonstrations, should constitute no defence to the prisoner, why permit the evidence to be heard. And we do not say that cases may not arise, such as the case supposed by the Attorney-General, when it appears absolutely impossible that the defendant could have acted under a fear of danger from the deceased at the time, that the court might not properly refuse to allow evidence of previous threats. We leave cases of this character to be determined when they arise. But such is not this case. It was not impossible that the defendant could have acted under an honest fear of his own life. We express no opinion upon the facts further than this. The effect the jiuy should give to the proof of previous threats, etc., would depend upon their opinion as the entire facts and circumstances. They should be fully instructed upon the principles applicable, and particularly that previous threats, etc., no matter of what character, would not of themselves justify the, defendant in slaying his adversary. We think the error of the Court below consists in this : the judge undertook to decide upon the effect of the evi- dence for the State ; that, in this testimony, there was no evidence that would have authorized the jury to find the defendant excusable upon the ground that he acted under a reasonable fear of his own life, no matter what previous threats and hostile acts might have been proved. For it results in this, at least : no matter how clear this may have been to the judge, it was a question for the jury. If he could decide this in one case, he could in all cases. We hold that the proof of previous hostile dem- onstrations upon the part of the deceased, towards the defendant, as well as previous threats, and the character of the deceased, which might illustrate how much im- portance should be attached to his threats, were all prop- erly admissible ; but the proof offered of particular acts of hostility towards other parties was properly re- STLLABTJS. 487 jected -^ and, for the error of the Court on this question, we reverse the judgment, and award a new trial. Judgment reversed. LITTLE V. THE STATE. [Uneepoeted.J Supreme Court of Tennessee, Jackson, April Term, 1873. A. O. P. Nicholson, Chief Justice. P. TUENEY, Robert McFaeland, Jas. W. Deaderick, \- Judges. Thomas J. Freeman, John L. T. Sneed, Uncommunicatbd threats — Character of deceased for violencb-t-Ist- 8tructi0ns to jury— manslaughter. » 1. Robert Jackson's case, ante, last case, refen-ed to as furnishing the reasons for the conclusion arrived at in this case. 2. In trials for homicide, evidence of the violent and aangerous charac- ter of the person slain is admissible, without reference, it seems, to the question whether there is any evidence in the case showing that at the time of the lulling, the defendant was in danger, real or apparent, of death or great bodily harm, at the hands of the deceased. [See Robertson's case, «»<«, p. 152; Cotton's case, areie, p. 310 ; Wesley's case, a»• Judges. Abiel Leonard, ) Admissibility of evidence of communicated threats in trials for HOMICIDE— Provoking difficulty in order to haae pretext for KILLING adversary. 1. Where It was clearly proved that there existed on the part of the prisoner, an intense feeling of hatred towards the deceased, and that the prisoner had made violent threats against the life of the deceased, and on the day of the killing made declarations indicating violent hatred towards him ; and that the prisoner armed himself with a deadly weapon, and de- liberately sought a diflHculty with the deceased, and killed the deceased ; — held, that the fact that the circuit judge refused to admit evidence of threats made by deceased against the prisoner, which threats had been communl- SYLLABUS. 493 cated to the prisoner — the record not showing when such threats were made —furnished no ground for the setting aside of a verdict of murder in the first degree. [Ace. Lindsay, J., in Pridgen's case, ante, p. 425; Myers' case, ante, p. 437 ; and as to the point that the threats must be recent in point of time, see Sloan's case, next following.] 2. But if the deceased had attacked the defendant, or made efforts to take advantage of him in a personal difficulty, in such a manner as to give the defendant reasonable ground to suppose that the deceased meant to do him some great bodily harm ; and the defendant liad, to prevent this, killed the deceased, then the proof of previous threats by the deceased against him, would have been highly important testimony, if recently made known to the defendant. 3. But the rule which the Court deduces from the cases is, that evidence of such threats will not be admitted, unless they were recent, or continued down so as to become nearly coeval with the killing ; and where, as in this case, the record does not show when the threats were claimed to have been made, this is a sufficient ground for excluding evidence of them. 4. Meade's case, post; Rector's case, post; and Monroe's case, ante, p. 442, reviewed and distinguished from this case. 5; The following instructions, embracing the law of self-defence as ap- plicable to this case, are held to be free from error : u. If the defendant, with a spade in his hand, took a position near the deceased, and gradually approached him, and pushed him, for the purpose of inducing an altercation and getting a chance to kill him, and commenced raising his spade at the same time the deceased commenced drawing his pistol, and then struck and killed the deceased, he is guilty of murder in the first degree ; and in such case it would be no defence, even if the evi- dence showed that the deceased drew his pistol before the defendant com- menced raising his spade ; for the law will not permit a man thus to induce a provocation, and so take advantage of it. [See Adams' case, ante, p. 208 ; Stewart's case, ante, p. 191 ; note to Stoffer's case, ante, p. 220.] b. In such case, although the deceased was attempting to draw his pistol, or had it drawn, at the time the defendant struck the fatal blow ; and all hough the defendant's life or person was in imminent danger ; yet, if the defend- ant intentionally brought on the difficulty for the purpose of killing the deceased, he is still guilty of murder in the first degree. [Ace. Hill's case, ante, p. 199.] c. If the defendant, with a spade in his hand, took a position near the deceased, and gradually approached and pushed him, for the purpose of inducing an altercation for the purpose of killing him, and did kill him with the spade ; then, although the deceased drew his pistol at the time defendant raised his spade, or even before he commenced raising his spade, the defendant is guilty of murder in the first degree. [Compare Baker's case, ante, p. 75.] d. If the defendant, with a spade in his hand, took a position near the deceased, and gradually approached and pushed him, in such a manner as to give the deceased reasonable cause to apprehend a design on the part of 494 ■ THE STATE V. HAYS. the defendant to do him some great personal injury, and to apprehend that there was imminent danger of such design being accomplished, then the deceased had a right to draw his pistol, and even to kill the defendant ; and if the defendant, under such circumstances, killed the deceased, he cannot be acquitted. [Ace. Baker's case, ante, p. 75 ; Hinton's case, ante, p. 83, jind note; Lingo v. State, in note sub Jin.'] t. If the defendant killed the deceased with a spade, the law presume? that it was murder in the absence of proof to the contrary ; and it devolves upon the defendant to show, from evidence in the case, to the reasonable satisfaction of the jury, that he was guilty of a less crime or acted in self- defence. [Ace. Head's case, (irafc, p. 341. But see Stokes' case, ;oos<.] The fact that this instruction does not state the degree of murder which will be presumed from the killing with a deadly weapon, does not render it erro- neous, although, under the Missouri Statute, the presumption is to be that rof murder in the second degi'ee. » /. But if the defendant, in the lawful defence of his own person, struck and killed the deceased, who was at the time attempting to draw from big pocket a loaded pistol to shoot the defendant, or do him some great per- sonal injury, and there was immediate danger of such injury being accom- plished, then the defendant had a right to strike the deceased in the neces- sary defence of himself, unless the defendant, with a design of killing the deceased, or doing him some great bodily injury, sought the difficulty and provoked the deceased to draw his pistol. [Ace. Selfridge's case, ante, pp. 24, 25 ; Neeley's case, ante, p. 96 ; Hill's case, ante, p. 199 ; Stewart's case, »nt', p. 191 ; Adams' case, ante, p. 208 ; note to Stoflfer's case, ante, p. 220 ; Evans' case, ante, p. 329 ; Rippy's case, ante, p. 345.] g. If the jury find from the evidence that the defendant, in the lawful defence of himself, gave the deceased the blow which caused his death, whilst the deceased was attempting to draw a loaded pistol, and there was reasonable cause to apprehend a design on the part of the deceased to nhoot the defendant, or do him some great personal injury, and there was immediate danger of such design being accomplished, then the defendant had a right to strike the deceased in the necessary defence of himself, un- less the defendant, with the design of killing the deceased or, doing him some great injury, sought the difficulty, and provoked him to draw his jjistol. 6. Malice in its legal sense, delined and discussed. The facts are stated in the opinion. J. B. Clark, and J. Davis, for the prisoner; Cfarden-. hire, Attorney-General, for the State. 'The statute referred to, after defining murder in the first degree, pro- vides that "all other kinds of murder at common law, not herein declared to be manslaughter, or justifiable or excusable homicide, shall be deemed murder in the second degree.'" 1 Wagner's Stat., p. 446, § 2. For the con- /struction of this statute, see State v. Joeckel, 44 Mo., 234. STATEMENT OF THE EACTS. 495 Ryland, J., delivered tlie opinion of the Court; * * * * 'A vf v.- In order properly to weigh the objections set forth in the second and third points, that is, as to the rejection of the testimony in regard to threats made by deceased against the prisoner, and the rejection of the evidence, ■showing that the prisoner was advised to abscond in or- der to save himself from mob violence, it will be neces- sary and proper to state the evidence, which I here set forth at large, as appears from the record. [Here ' the learned Judge quoted the testimony at full length, from which it appears that Hays, the defendant, was at Lewis & Co.'s store in Glasgow, on the day the killing took place. Brown, the deceased, came to the store. When Hays saw Brown, he picked up a spade, enquired the price of it, and commenced inching up to- wards Brown. Hays said " boo," to Brown, and afterwards accused Brown of pushing him ; said " Yoxi pushed me," or, "Do you push me, you damned rascal ? " Brown re- plied "No, you pushed me." Hays said, " I don't allow you to speak to me." Hays then dealt Brown a blow with the spade, which crushed in his skull and caused his death. There was testimony to the effect that Brown had drawn, or was in the act of drawing, a pistol, when he fell. The pistol was a six-shooter, loaded and capped. The defendant caUed as a witness, one Joseph Davis, who said that when Hays was in the store at the time of the difficulty, Brown came up to the door, and Hays, when he saw him, said " boo ! " at him, throwing his hands forward. Then Hays went to the further end of the store, took up a spade, and made a remark about spades, and walking out of the front door, took up his stand near Brown, who was standing in the door ; then kept gradually getting nearer to Brown ; gave him a hunch or push, and at the same time, exclaimed, " Don't push me ! " and Brown, stepping back, drew his pistol, and was holding it in both hands as if trying to cock it, at the time that Hays, advancing, struck him with the spade, with both hands, — the muzzle of the pistol being 496 THE STATE V. HATS. in the direction of Hays. Other testimony was intro- duced, tending to impeach this testimony of Davis, and it will be seen that it was not credited by the Supreme Court. Immediately after the killing, Hays made declarations indicating the most malignant feelings against Brown ; exhibited a knife, and said he had sharpened it for him ;. said, if that stroke did not kill Brown, he would have another chance ab him ; also enquired of the bystanders if they did not see the pistol Brown drew on him ; and said it was damned strange no one saw it. Before the aflfair happened, when Hays saw Brown come into town, he was heard to say that, whenever he saw that thing, it put the devil in him as big as a ground-hog, and that he could make a better fight than was ever made in that town. In July, previous to the killing. Hays and Brown had had some difficulty at a public speaking in Glas- gow ; and Hays on that occasion was heard to make the most malignant threats against Brown; said that he could wade in his heart's blood ; that he could kill him like a sheep-killing dog. During the fall before the kill- ing, Hays and some of his friends stopped on horseback before the place of Brown, where Brown was engaged burying scions ; Hays used abusive language towards Brown, and accused him of stealing money from him. Hays was drunk on both of these occasions. Hays in- troduced testimony, tending to show that Brown gave the first insult at this last quarrel, and that he did not draw a pistol upon Brown upon that occasion. The part of the testimony relating to the flight of the prisoner, we have omitted. The learned Judge then proceeded as follows :] Before the defendant closed his testimony, he oflfered to prove that Brown, before the day of the fatal affray with Hays, had threatened to shoot Hays, of which Hays had been informed before the difficulty. All of which, being objected to by the prosecution, the Court sustained the objection, and refused to permit said evidence to be given to the jury ; to which opinion the defendant ex- ADMISSIBILITY OF COMMUNICATED THREATS. 497 cepted. The defendant then oflFered to prove that, at the time he left the county of Howard, after being bailed out on the iirst commitment, he was advised to do so for a short time, until the excitement was over ; and that he was also advised that his life would be in danger from mob violence, unless he kept out of the way. The second point is in relation to the threats of Brown against the defendant. On this subject the record is very short, and is as follows : " Defendant then offered to prove that Brown, before the day of the fatal affray with Hays, had threatened to shoot Hays, of which Hays had been informed before the difficulty." In a case where threats of the deceased might be used in evidence, this statement would not be considered sufficient to warrant the admission. It is not stated here when the threats were made ; whether they were of long standing or of recent existence. For aught that appears, they may have been made months, perhaps years before, and they may have come to the knowledge of Hays months before, or they may have been very recent. From the record, we can not tell when the threats were made ; whether they were old or recent, or when Hays was first informed of their existence. This might be a sufficient answer to this point, but I will notice it yet further. Here the fact of killing, with all the circumstances, has been clearly proved. Hays, the defendant, has been proved to have manifested a most bitter and revengeful feeling toward his victim; he says to one of the witnesses, "that he never would be satisfied until he killed Brown, Harvey and Markland ; " to another, on the same day on which he inflicted the fatal blow, " that whenever he saw that thing (Brown) it put the devil in him as big as a ground- hog ! " and to a third, on the same day of the affray on which Brown received his death blow, Hays said, on see- ing Brown passing along the street, " that when he saw that man, it made his blood boil." "With this feeling of a heart festering with a rancorous hatred toward Brown, Hays saw Brown standing at the door of a store in which Hays was, and he immediately, on seeing Brown, threw 498 THE STATE V. HAYS. \vp Ms hands towards him with an exclamation; the clerks in the store observed it. He then walked back towards the rear of the store-room, some thirty or forty feet long, and that distance from Brown, picked up a spade, and walked with it out to the front of the store, and stood on the pavement with the spade in his hand. He began gradu- ally to approach his victim, (as the witnesses describe Mia,- inching up towards Brown,) and, at length nudged him with his elbow, exclaiming, at the same time, " Do you push me, you damned rascal ? " Brown replied, " No, you pushed me ; " then Hays struck Brown with the spade, breaking his skull, and causing his death in a few days. Brown had a pistol in his hand when he feU.; and one witness says he saw the pistol in the hands of Brown, pointing towards Hays, before Hays struck him. But other witnesses — three or four — did not see any pistol ; and some of the witnesses— two or three — are certain that Brown had not a pistol drawn when Hays struck him. He was talking with one of the wit- nesses about planting hedges, with his arms folded across his breast, when Hays pushed him. There can- not be a rational doubt in the mind of any one aquainted with criminal law, and conversant with its administra- tion, that the facts in proof in this case, make the hom- icide of Brown by Hays, murder in the first degree. Here is malice plainly and expressly proved ; here, the weapon is a dangerous one ; here, the blow is given with- out even an insulting word — not the slightest provoca- tion ; here, the prisoner voluntarily seeks the opportu- nity ; he takes a dangerous instrument in his hand and walks some thirty or forty feet towards the deceased. ; then, with sly and stealthy motion, inciting up towards his victim, he pushes him, and as his victim is retreat- ing, or giving back into the house, he strikes the fatal blow, and thus takes his life. Upon such a transaction as this, what good to the prisoner would proof of pre- vious threats against him by the deceased, have pro- duced ? Could they have changed the facts ? could they have altered the routine of events in their melancholy ADMISSIBILITY OF COMMUNICATED THREATS. 499 detail ? or would such, threats have altered the law ? Surely not. The proof of threats made by Brown against Hays, under the circumstances of the killing in this case, as they are set forth in the bill of exceptions, would, in my opinion, have been against the prisoner. It was his duty, if he had known or heard of such threats, to avoid his enemy, rather than to have sought him and killed him. Now, liad Brown attacked Hays, or made efforts to take the advantage of him in a per- sonal difficulty, in such a manner as to cause Hays to believe there was reasonable ground to suppose that Brown meant to do him great bodily harm ; and Hays had, to prevent this, killed Brown, then the proof of previous threats by Brown against Hays, would have been proper and highly important testimony, if recently made and known to Hays. But such is not the case here. Brown is attacked by Hays and is slain ; he does not seek the attack, nor does he attempt to defend him- self until he sees the instrument of death in Hays' hand, raised to take his life. Previous threats are but words, and words are no justification or mitigation of murder. " Words of reproach, how grievous soever, are not a pro- vocation sufficient to free the party killing from the guilt of murder; nor are indecent, provoking actions, or ges- tures expressive of contempt or reproach, without an as- sault upon the person." " And it ought to be remem- bered that in all other cases of homicide, upon slight provocation, if it may be reasonably collected from the weapon made use of, or from anyother circumstance, that the party intended to kill or to do some great bod- ily harm, such homicide will be murder. The mischief done is irreparable, and the outrage is considered as flow- ing rather from brutal rage or diabolical malignity than from human frailty ; and it is to human frailty, and to that alone, the law indulgeth in every case of felonious homicide." " But in these, and, indeed, in every other case of homicide, upon provocation, how great soever it be, if there is sufficient time for passion to subside, and . for reason to interpose, such homicide will be murder." 500 THE STATE V. HATS. " For, let it be observed, that in all possible cases, de- liberate homicide, upon a principle of revenge, is mur- der. No man, under the protection of the law, is to be the avenger of his own wrongs." "For he that deliber- ately seeketh the blood of another, upon a private quarrel, acteth in defiance of all law, human and divine, whatever his motive may be." (Sir Michael Foster's dis- course II, of Homicide, ch. 5.* There are cases in which the threats of the deceased party have been given in evidence ; also cases, in which such threats have been rejected. But in all such cases, where the threats have been admitted for the defence, they were recent, or continued down, so as to become nearly coeval with the killing, and were brought home to the knowledge of the party slaying. Meade's case" is one of those, where the threats were admitted in evidence. 1 Lewin's C. C, 184, cited in Roscoe's Crim. Ev., 772, 5th ed., 1854. In Meade's case, the boatmen, of whom Law, the deceased, seems to have been one, attacked Meade, ducked him, and were in the act of throwing him into the sea, when he was rescued by the police. As Meade was going away, the boatmen threatened him, that they would come at night and puU his house down. In the middle of the night. Law, and a great number of persons came about Meade's house, singing songs of menace, and using violent language. Meade, under an appre- hension, as he alleged, that his life and property were in danger, fired a pistol, by which Law, one of the party, was killed. Holeoyd, J., among other things, said to the jury, " If you are of opinion that Meade was really attacked, and that Law and his party were on the point of breaking into the house, or likely to do so, and exe- cute the threat of the day before, he was, perhaps, justi- fied in firing as he did." How widely different from this is the case now under our consideration. Meade had been rescued from the hands of a mob, and saved from being drowned. When he was going away, they threatened to puU his house down that night ; the mob • Foster Cr. L., 2C0. b Post. ADMISSIBILITY OF COMMUNICATED THREATS. 501 assembled at night around his house, menacing and using violent language. Now the acts of the mob, and the threats of the mob the day before, were proper evi- dence to explain their intentions the following night. The intentions of Law and his party were important matters. Were they likely to break into the house, or likely to execute their threats of the previous day ? If so, then the shooting by Meade was justifiable. Their present conduct was properly to be understood from their past, and from their threats on the day previous. But suppose Meade had, four or five days afterwards, shot Law and killed him. Is it pretended that he could give in evidence the threats of the mob, when he was rescued by the police? Surely not. How, then, can Hays, who voluntarily and maliciously seeks the life of his victim, expect to- justify or palliate his act, by giving evidence that his victim had before threatened to shoot him — threats, from all that appears to the contrary by the record, of long standing. In Eector's case," 19 Wend., 569. the counsel for the prisoner offered to prove that the house of the prisoner had been attacked on Saturday night, a week previous to the transaction, in which Robert Shepherd was killed by the prisoner, by •several persons, and broken into, and the inmates very badly abused, and that they threatened to return some other nieht soon after, and break in again, if they -were not admitted. The counsel avowed that this proof was offered to show that the prisoner Tiad reason to appre- Jiend violence upon Ms house at the time that the deceased and his companions came there, and that was his reason for using so much force as he did. It had been before proved, by a witness for the prisoner, that of those whom they had admitted as guests at the house of the prisoner, some were rioters. This testimony was rejected by the Court. In the Supreme Court, Justice CowEsr, after commenting on Meade's case, says : " The case at bar presents the same circumstance of alarm, one step more remote — the assailants not being identi- « Post. 502 THE STATE V. HAYS. fled with the previous rioters. That, per se, however, would not so absolutely remove apprehension, that the killing could not be referred to it. The jury might have laid no stress upon the circumstance, but I think it should have been received, because we cannot say they would not. The lightness of a relevant circumstance is no argument for withholding it from the jury. In the prosecution of a crime so essentially the creature of in- tent as murder, every thing pertinent should be sub- mitted to the jury, upon which they may infer an absence of malice." Bronson, J., said : " It is important here to notice, with accuracy, what facts the prisoner proposed to prove, and the purpose for which the evi- dence was offered. The bill of exceptions states that an offer was made in the course of the trial, to prove that the house of the prisoner had been attacked on Saturday night previous to the transaction in question, by several persons, and broken into, and the inmates badly abused,, and that they then threatened to return some other night, soon after, and break in again, if they were not admitted. This was the offer. The purpose for which it was made, as stated in the bill of exceptions, was to show that the prisoner had reason to apprehend violence upon his house, at the time that the deceased and his companions came there, and that was the reason for using so much force as he did." The Judge then said : " We are referred to Meade's case. There are some very important points of difference between that case and the one at bar." After commenting on the facts of Meade's case at some length, he continues : " In the case at bar, the pretended attack was not made the very next night after the threats of the rioters ; a whole week had inter- vened. The attack was not made by a great number of persons. There were only three young men; and the knocking or kicking at the door for admittance, was probably nothing more than the prisoner had been ac- customed to hear, without any apprehension for the safety of his person or property. But what is very material, there was no offer to prove that either of the ADMISSIBILITY OF COMMUNICATED THREATS. 503 three young men was of the party which had committed the riot, or had any connection or acquaintance whatever with the rioters. Nor was there any offer to show that the prisoner supposed or believed, or had any reason to suspect or believe, that either of these three men had anything to do with the previous disturbance, or the threatened assault on his house. There was no sugges- tion that either the rioters or the young men were strangers to the prisoners. So far as the offer goes, he may have known very weU that the deceased and his companions had nothing to do with the previous disturb- ance. Surely there is nothing in Meade's case to warrant the admission of such evidence as the prisoner proposed to give. Had the evidence been received, it would have furnished no just ground for the inference that the previous riot was at aU in the mind of the prisoner, at the time he made the attack. It was a mere after- thought ; an attempt to get up and distract the minds of the jury with a collateral question, foreign to the point in issue." After some further comments, the Judge said : " It seems impossible to maintain that the evidence was admissible. The facts, if proved, would not furnish even a colorable pretence for the attack on the deceased. Although it is never necessary that the evidence offered should be conclusive, it is always essential that it should have a direct tendency to establish the point in contro- versy. A different rule would lead to the most mis- chievous consequences in the trial by jury." Nelson, Chief Justice, said: "If I had been sitting upon the trial, I would have admitted the evidence, though I can- not but see, looking at the whole evidence, that it could not possibly have had much, if any, influence upon the minds of the jury. If the new trial turned upon it, I might hesitate before granting it." A new trial was granted, but not upon this point — principally upon another and different ground. In these cases, it will be observed that the prisoners, Meade and Eector, did not seek the persons killed. They were each in his own house; the mob came to them. They were at home. 504 THE STATE V. HAYS. They manifested no design nor disposition to bring on tlie attack. Such is not Hays' conduct. He saw Brown at the front of the store, and he prepared himself for taking his life. He does not even pretend that he was apprehensive of an attack from Brown. He does not avow, as Rector's counsel did, that he was apprehensive of an attack, and therefore used the weapon and the force he did, for the purpose of defending himself. I have not a shadow of doubt that such evidence would have been rejected by the court in which Meade and Rector were respectively tried, without hesitation. In the case of Monroe v. State of Georgia,* the facts were widely different from the facts in this case. There, the threats against the life of Monroe, coupled vdth the acts of Macon, were brought down to the time of the killing. The deceased, at his death, was armed with a Yauger and two pistols ; he had been watching and seeking the opportunity to kill Monroe. He had created such a dread of losing life in Monroe's mind, that, although a phy^cian, he was compelled to practice his profession by visiting his patients in the night time. Here, the threats by Macon against Monroe, and the acts of Macon of one continued hostile series down to the death, were important evidence to explain the killing on the part of Monroe. 5 Ga., 85, 135, 136. In the case from Georgia, Meade's case and Rector's case are quoted, and relied on as authority. This kind of evidence is permitted by the Court in Georgia, to show the reasonableness of the defendant's fears. In the case from Georgia, the testi- mony proved a continued series of threats, accompanied by acts of violence from the deceased towards the pris- oner, commencing some months previously, and coming down to the time of the killing, and all showing a deter- mination on the part of the deceased to take the life of Monroe, before the next ensuing term of one of the Courts of the county where the transaction happened. I repeat that the case at bar differs widely from the case of Mon- roe, just cited from 5 Georgia. J Ante, p. 442. ADMISSIBILITY OF COMMUNICATED THREATS. 505 The evidence, in criminal and civil cases, depends upon the same rules. There is no difference ; what may- be received in one case may be received in the other, and what is rejected in one, ought to be rejected in the other. A fact may be established by the same evidence, whether it is to be followed by a criminal or a civil consequence. Russell on Crimes, book 6, ch. 1, p. 726. What is done in the heat of blood, the law attributes to the infirmity of human nature, and extenuates ; what is done after time for reflection, proceeds from the wickedness of the heart, is revenge, and aggravates the deed. This is the law in civil cases, and evidence is admitted in pursuance thereof. 19 John., 319 ; 1 Mass., 12 ; 10 Conn., 459 ; 1 Bibb, 428 ; 3 Blackf., 219 ; 1 Bald., 58 ; 3 Har. & Johns., 162 ; 9 Mo., 529 ; 17 Mo., 534, 547. The bill of exceptions in this case does not make the evidence of the threats even a pretence for the conduct of Hays. There is not the slightest ground to suppose he was laboring under any apprehensions of an attack from his victim. View the whole transaction with an impar- tial eye, and it becomes impossible to divest one's self of the strong impression that Hays maliciously and revengefully sought this controversy; prepared for it: he said he had sharpened his knife at home for the very- purpose ; he was anxious to have another blow at his victim. Can any one suppose that Hays had any appre- hensions, any dread of an attack upon him by Brown ? I imagine not. Why, then, offer this evidence of a loose threat, without any date ? It was a mere afterthought, gotten up to distract the jury with a collateral matter utterly foreign to the issue on trial, and was properly rejected. ******* The instructions given for the State, as well as those given for the prisoner, and also those asked for by him and refused, are as follows : For the State : "1. If in the month of March, 1854, and in Howard county, the defendant wilfully, deliberately and premeditatedly, killed John W. Brown with a spade; the jury must find 506 THE STATE V. HAYS. him guilty of murder in the first degree. 2. If the killing was done as stated in the first instruction, it is no excuse that the defendant was intoxicated or under the influence of liquor at the time, and the killing, in such case, is still murder in the first degree ; for it is a settled princi- ple of law that drunkenness is no excuse for crime. 3. If the defendant with a spade in his hand, took a posi- tion near Brown and gradually approached him, and pushed him, for the purpose of inducing an altercation and getting a chance to kill him, and commenced raising his spade at the same time that Brown commenced draw- ing his pistol, and then struck him and killed him, he is guilty of murder in the first degree ; and in such case it would be no defence, even if the evidence showed that Brown drew his pistol before the defendant commenced raising his spade ; for the law will not permit a man thus to induce a provocation, and so take advantage of it. 4. In considering what defendant said after the fatal act, the jury must consider it altogether. He is entitled to the benefit of what he said for himself, if true, as the State is of everything he said against himself in any con- versation proved by the State. What he said against him- self, the law presumes to be true, because agsanst him- self ; but what he said for himself the jury are not bound to believe, because said in a conversation proved by the State ; they may believe or disbelieve it, as it is shown to be true or false by the evidence in the case. -5. They cannot acquit upon a mere possible doubt. It must be a reasonable doubt. 6. Although the jury may believe from the evidence that Brown was attempting to draw his pistol, or had it drawn at the time Hays struck, and that Hays' life or person was in imminent danger, yet,, if they further believe that Hays intentionally brought on the difficulty for the purpose of killing Brown, he is still guilty of murder in the first degree. 7. The delib- eration and premeditation necessary to constitute mur- der in the first degree, may be inferred from the circum- stances connected with the killing ; and if they existed for a moment, as well as an hour or a day before the OPINION — INSTRUCTIONS TO THE JURY. 507 killing, it is sufficient. 8. If defendant, with a spade in his hand, took a position near Brown, and gradually ap- proached him and pushed him, as testified to "by Davis, and he did this for the purpose of inducing an alterca- tion, as an excuse for killing him, and did kill him with the spade, then, although Brown drew his pistol at the time Hays raised his spade, as testified to l)y Davis, or even before Hays • commenced raising his spade, he is guilty of murder in the first degree. 9. If Hays, with a spade in his hand, took a position near Brown, and grad- ually approached and pushed him in such a manner as to give Brown reasonable cause to apprehend a design on the part of Hays to do him some great personal inju- ry, and to apprehend that there was imminent danger of such design being accomplished, then he had a right to draw his pistol, and even to kill Hays ; and if Hays, un- der such circumstances, killed Brown, he cannot be acquitted. 10. If Hays killed Brown with a spade, the law presumes that it is murder, in the absence of proof to the contrary, and it devolves upon the defendant to show, from the evidence in the cause, to the reasonable satisfaction of the jury, that he was guilty of a less crime, or acted in self-defence." All of which instruc- tions on the part of the State were given. The defendant then asked the Court to instruct the jury as follows : " 1. To find the defendant guilty of the charge in the indictment, the jury must believe, and that beyond a reasonable doubt, that the defendant killed John "W. Brown feloniously, wilfully, deliberately and premeditatedly, and of his malice aforethought, having, before the act was done, deliberately formed the design to take the life of said Brown. 2. To find the defendant guilty of the charge in the indictment, the jury must be- lieve, beyond a reasonable doubt, that the defendant, be- fore he committed the act, formed a deliberate intention to 'kill Brown, and that there was deliberate malice in the act, or circumstances of cruelty and malice, carrying in them the plain indications of a depraved, wicked and malignant spirit. 3. The law presumes that the defend- 508 THE STATE V. HAYS. ant is innocent of the crime charged against him, and the jury must find him not guilty, unless they believe, beyond a reasonable doubt, that he is guilty ; and if the jury have a reasonable doubt of his guilt, they are bound to find him not guilty. 4. To find the defendant guilty of the charge in the indictment, the jury must believe, beyond a reasonable doubt, that the defendant killed Brown with a formed design, with deliberation and pre- meditation, and that this deliberation and premeditation was formed by Hays before the blow was given. The fact that the killing was malicious and wilful, in the common law sense, is not suflBlcient. 5. That malice is a necessa- ry ingredient to constitute the crime charged in the in- dictment, and the State must prove, to the satisfaction of the j ary, beyond a reasonable doubt, the malicious in- tent with which the act was done ; and if the jury have a reasonable doubt of the malicious intent with which the act was done, that doubt must weigli in favor of the prisoner, and, unless removed by the State, they must find Mm not guilty. 6. If the jury believe from the ev- idence, that the defendant killed Brown under circum- stances where, by any statute, or by the common law, such killing is excusable or justifiable, then the jury shall return a general verdict of not guilty. 7. That, by the law of the State, the defendant was justifiable in tak- ing the life of Brown, if done in the lawful defence of Ms person, and there was reasonable cause to apprehend, on the part of Brown, a design to do him some great personal injury, and there was immediate danger of such design being accomplished. 8. If the jury believe from the evidence, that at the time the defendant struck the deceased, he was in Immediate danger of receiving some great injury from Brown, or thought himself so, then he had a right to kill him. 9. If the jury believe from the evidence, that the deceased drew a loaded revolver pis- tol on the defendant, with the design to shoot and kill him, or to do him some great personal injury, and there was immediate danger of such design being carried into execution, then the defendant had the right, in law, to OPINION — INSTRUCTIONS TO THE JTJEY. 509 Strike him in the lawful defence of his person. 10. To find the prisoner guilty of murder in the first degree, the jury must believe, and that beyond a reasonable doubt, that the prisoner killed John W. Brown feloniously, wil- fully, deliberately, and of his malice aforethought, and that before the act was done, he had deliberately formed the design to take the life of Brown. 11. To find the de- fendant guilty of murder in the first degree, the jury must believe, and beyond a reasonable doubt, that the prisoner, before he committed the act, had formed a de- liberate intention to kill Brown, and that there was a de- liberate malice in the act, or that there were circum- stances of cruelty and malignity, carrying in them the plain indication of a desperate, wicked and malignant spirit. 12. If the jury believe from the evidence, that Hays struck Brown with a spade, and that such stroke was in the lawful defence of his own person, and there was reasonable cause to apprehend a design on the part of Brown to do Hays great personal injury, and there was immediate danger of such design being accom- plished, then they ought to find the defendant not guilty, although they may believe from the evidence, that said stroke caused the death of Brown. 13. If Hays, in the lawful defence of his own person, struck and killed Brown, who was at the time attempting to draw from his pocket a loaded pistol to shoot Hays, or do him some great personal injury, and there was immediate danger of such injury being accomplished, then Hays had a right to strike Brown in the necessary defence of him- self, -unless they believe that Hays, with a design of killing Brown, or doing him some great bodily injury, sought the difficulty and provoked Brown to draw his pistol. 14. If the jury find from the evidence, that Hays, in the lawful defence of himself, gave Brown the blow which caused his death, whilst Brown was attempting to draw a loaded pistol, and there was reasonable cause to apprehend a design on the part of Brown to shoot Hays, or do him some great personal injury, and there was im- mediate danger of such design being accomplished, then 510 THE STATE V. HAYS. Hajs had a right to strike Brown in the necessary de- fence of himself, ilnless they believe that Hays, with a design of killing Brown, or doing him some great injury, sought the difficulty, and provoked Brown to draw his pistol. 15. If the jury entertain a reasonable doubt as to the existence of any fact necessary to constitute the guilt of the prisoner, they are bound to acquit him. 17. That, although the jury may believe the weight of ev- idence before them is against the innocence of the de- fendant; yet, unless they are satisfied of his guilt, be- yond a reasonable doubt, they will find him not guilty. 17. That, in considering the declarations of the defend- ant, given in evidence, the jury will take into consider- ation the time and circumstances under which they were made, and also the condition of the defendant when made. 18. That, although drunkenness is no justifica- tion for the killing, yet the jury may take it into con- sideration in determining the intent of the defendant in doing the act." Of these instructions, those numbered 1, 2, 4, 5, 6, 7, 8, 9, 11, 12 and 15 were refused by the Court, and those numbered 3, 10, 13, 14, 16, 17 and 18 were given. There is no error, as we conceive, in any of the ten instructions given for the State. The counsel for the prisoner in their arguments before this Court, complained mostly of the eighth and tenth instructions. There is no error in the eighth instruction. The Court does not endorse the statement, made by the witness, Davis, of the circumstances attending the killing, nor does the Court mis-state the evidence of the witness, Davis, but merely directs the jury to the law, if the facts be as Davis has stated them. This instruction is unobjec- tionable. It laid down the law properly, and it does not tend to mislead the jury. The tenth instruction is also literally correct ; nor can we see how the jury could be misled by it. If Hays killed Brown with a spade, the law presumes it is murder in the absence of proof to the contrary, and it devolves upon the defendant to show from the evidence in the cause, to the reasonable satis- PRESUMPTION FROM FACT OF KILLING. 511 faction of the jury, that he was guilty of a less crime, or acted in self-defence. Now this is literally correct. The law does presume such killing murder. The Court did not fix the degree of murder ; it did not say in the first nor second degree ; nor is there any reason to suppose that the jury were misled by this instruction. The counsel thinks that as the crime of murder in the first •degree had been mentioned all along before by the Court, that by saying murder, without mentioning any degree, the jury would believe the Court meant murder in the first degree ; but this is a non sequitur. This is not a fair interpretation of the instruction. Although with us the presumption under oxir statute from such a killing would be murder in the second degree, in accordance with the decisions of the Pennsylvania and Virginia courts, where similar statutes exist, yet, it is nevertheless murder. In the case of the State against Dunn, 18 Mo., 424, this Court said, in speaking of the statute of Penn- sylvania defining murder in the first degree, of which our statute is a transcript : " Under that statute it has been held, that, unless the circumstances of malice are proved, the law will presume the unlawful killing murder of the second degree. Under the act, the unlawful killing is presumed to be murder, but not murder in the first degree. Whenever it appears from the whole evidence, that the crime was at the moment deliberately or inten- tionally executed, the killing is murder in the first •degree ; as if one, without uttering a word, should strike another on the head with an ax, this would be deemed premeditated violence vsdthin our act. It wiU constitute the offence, if the circumstances of wilfulness and delib- eration were proven, although they arose and were gen- erated at the period of the transaction. If the party killing had time to think, and did intend to kill for a minute as well as for an hour or a day, it is a deliberate, wilful and premeditated killing, constituting murder in the first degree. So that, under our statute, there is no foundation for the notion that the crime must have been preconceived sometime before its perpetration." This 512 THE STATE V. HAYS. instruction, then, being taken in connection witL the tenth instruction asked for by the prisoner, and given by the Court, could not possibly have misled the jury ; but the tv70 put the law of the case properly before the jury, and as favorably for the prisoner as he had a right to ask. In looking over the record, vre find that the 3d, 10th, 13th, 14th, 17th and 18th instructions asked for by the defendant were given to the jury; and when we compare these instriictions, with those given for the State, and then look into the statement of facts in evidence, we cannot but see that the law of the case was as fairly and favorably for the defendant before the jury, as he had a right to ask and demand from the Court, The counsel for the prisoner in asking some of his instructions, evidently overlooked the law concerning malice. I shall not notice each instruction refused. It is not important to do so. If we find the law of the case 'fairly and plainly set before the jury, although some other instructions which were refused might lawfully have been given, still we will not reverse for that. This is the general course of proceeding in this Court. But as to the law of malice, I deem it important to offer a few observations. Malice, in its proper or legal sense, is different from that sense which it bears in common speech- In common acceptation, it signifies desire of revenge, or a settled anger against a particular person. But this is not the legal sense. Lord Holt says, upon this subject: " Some have been led into mistakes by not well considering what the passion of malice is ; they have construed it to be a rancor of mind, lodged in the person killing for some considerable time before the commission of the fact, which is a mistake, arising from the not well distinguishing between liatred and malice. Envy, hatred and malice, are three distinct passions of the mind." Kel., 127 Amongst us, malice is a term of law importing directly wickedness, and excluding a just cause or excuse. Where the question of malice has arisen, in case of homicide, the matter for consideration MALICE — PRESUMPTION FROM FACT OF KILLING. 51B has been whether the act was done with or without just cause or excuse. Malice, in its legal sense, denotes a wrongful act, done intentionally, without just cause or excuse. It is not, as in ordinary speech, only an expres- sion of hatred and ill will to an individual, but means any wicked or mischievous intention of the mind. Thus, in the crime of murder, which is always stated jn the indictment to be committed with malice aforethought, it is not necessary, to support such indictment, to show that the prisoner had any enmity to the deceased ; nor would proof of absence of ill-will furnish the accused any defence, when it is proved that the act of killing was intentional, and done without any justifiable cause. Rex V. Harvey, 2 Barn. & Cres., 268; McPherson v. Daniels, 10 Barn. & Cres., 272 ; Archb. Crim. Pract., 213. Such is the definition of malice by the English courts. Mr. Justice Batley, in Bromage v. Prosser, 4 Barn. & Ores., 255, said : " Malice, in common acceptation, means ill-will against a person ; but, in its legal sense, means a wrongful act, done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to pro- duce death, I do it of malice, because I do it intention- ally, and without just cause or excuse. If I maim cattle without knovring whose they are ; if I poison a fishery, without knowing the owner, I do it of malice, because it is a wrongful act, and done intentionally." In Commonwealth v. York, 9 Met., 93, Chief Justice Shaw lays down the same doctrine. " A sane man is a voluntary agent, acting upon motives, and must be pre- sumed to contemplate and intend the necessary, natural and probable consequences of his own acts. If, there- fore, one voluntarily or wilfully does an act which has a direct tendency to destroy another's life, the natural and necessary conclusion from the act is, that he in- tended so to destroy such person's life. So, if the direct tendency of the wilful act is to do another some great bodily harm, and death, in fact, follows as a natural and probable consequence of the act, it is presumed that he intended such consequence, and he must stand legally 514 THE STATE V. HAYS. responsible for it. So, where a dangerous and deadly weapon is used witli violence upon the person of another, as this has a direct tendency to destroy life, or do some great bodily harm to the person assailed, the intention to take life or do him some great bodily harm, is a neces- sary conclusion from the act." "But, however sud- denly any act is done, the intent to do it precedes the doing of it, and the act is done in pursuance of the intent and formed design. However short the interval, the intent necessarily precedes. This is manifest from the ordinary case of a blow given with a deadly weapon, immediately upon the words of provocation. Words, however aggravating, not being considered a sufficient provocation to extenuate the offence to manslaughter, it is imiversally held murder — an act done with malice prepense ; and it is not the less preconceived, because the act immediately followed the guilty intent." In looking over the whole case, the facts plainly show a most deliberate and wilful killing — plainly show a previous state of bitter hatred toward the deceased by the prisoner — plainly show a voluntary and unnecessary attack, with a deadly weapon, without provocation or excuse ; and that the homicide is a result of a violent and cruel act, instigated by a morbid desire for revenge, the offspring of a heart regardless of social duty, and fatally bent on mischief. The trial has been fairly conducted; the law properly laid down to the jury; the evidence given without objection; the grounds for rever- sal urged before us unsubstantial and unsatisfactory? There remains nothing further -than for the law to take its course. Judge Leonard concurring, the judgment is affirmed; Judge Scott, dissenting. Judgment affirmed. Note. — ^Upon the question that a person cannot provoke a difficulty and slay his adversary therein, and then be heard to urg'e that the killing was in self defence, see Selfridge's case, areie, pp. 24, 25 ; Neeley's case, ante, p. 96 ; Stewart's case, ante, p. 191 ; Hill's case, ante, p. 199 ; Ev- ans' case, ante, p. 329; Adams' case, ante, p. 208; note I. to Stoffer's case, NOTE — PROVOKING DIFFICULTY — LINGO'S CASE. 515 ■ante, p. 220. Upon the exception to this rule, which is, that a person hav- ing thus placed himself in the wrong, may place himself in the right, and re-acquire his full right of defence by fairly retreating, or by fairly en- deavoring to withdraw from the contest, see Stoffer's case, ante, p. 213, and note U. to the same, beginning on page 227. There is still another way of stating the principle involved in the prin- cipal case, and that is, that whatever degree of force the violence of the defendant rendered it necessary for the deceased to use in his defence, could not in law constitute such a provocation as would mitigate the act of kUl- ing to manslaughter, nor such a justification as would reduce it to excusa- ble homicide. For a discussion of the question in this point of view, see Baker's case, ante, p. 75, andHinton's case, ante, p. S3, and note to the same, pp. 90, 91. A very apt illustration of the same pimciple wUl be found in Lingo v. The State, 29 Ga., 470, 484. It would not be profitable to consume space in detaiUng the facts of this homicide at length, as they are fairly stated, though in a general way, in the following extract from the opinion of the Supreme Court of Georgia, delivered by Stephens, J.: * * * * " It is said the verdict was contrary to law and evidence, because the kill- ing in this case was not murder. We are constrained to say that it was mur- der — long planned and deliberately perpetrated murder. Lingo had de- clared he would have Duncan's heart's blood. At the time of the killing, he commenced a quarrel and rushed on him ; Duncan retreated and warned him not to pursue. He did pursue, with his hands behind him, and Dun- can still retreated, and warned him several times that he would shoot him if he persisted in the pursuit. He did persist, and Duncan did shoot. The shot took no effect and Duncan then fled, and Lingo then ex- claimed, ' Now, damn you, I've got you.' He then pursued until he overtook Duncan, and plunged a spear into his heart. Most literally and fearfully did he accomplish his threat. Where is anything to jus- tify this act, or to reduce it one shade below the crime of murder ? It was admitted in the argument that there was no provocation for the commence- ment of the attack, but it was suggested that the killing was induced by a provocation arising in the conflict ; that Duncan's shooting at him was a provocation ; that he did not begin the assault mth an intent to kill, but only to whip, and that the intent to kill did not arise till the shooting had furnished an excuse for H. The fallacy in this argument lies in assuming that Duncan's shooting was any_ provocation at all. It was justifiable shooting. Whether Lingo had, before that, intended to kill or not, he had at least, tried to make Duncan believe that such was his intention ; for he declared afterwards that he held his hands behind him, to make Duncan believe he had a pistol. There was certainly ground to excite the fears of a reasonable man, and this was enough to justify Duncan in shooting. Lingo had himself rendered the shooting necQSsary to Duncan's self- defence ; he had intentio7ially put himself in an attitude, which forced Dun- can to believe that his life was in danger. All that Duncan did was entirely justifiable, and could not, for that reason, be any provocation. But the case does not rest here. His own declaration, above quoted, shows that his intent to kill had been formed before Duncan shot. For what reason did he wish to make Duncan believe he had a pistol? It was in the 516 THE STATE V. SLOAW. expectation that he would shoot, and in the hope of destroying his ainv by putting him under terror. He proceeded with great nerve and sliill. He counted upon his antagonist missing his aim, and being then in his power. He had the nerve to take the hazard, and the slcill to render it harmless to himself. But why take this hazard ? It was to get his victim in his power; and the use which he intended to make of his power, is best shown by the use he did make of it." THE STATE v. SLOAN. [47 Mo., 604.] Supreme Court of Missouri. St. Louis, March Term, 1871, David Wagner, ) Philemon Bliss, V Judges. Waeren Cureiee, ) jVj)Missibility of evidence of communicated threats rsr trials for HOMICIDE — Declarations of deceased after the killing — Actinu UPON appearances of DjLNGER. 1. On the trial of an indictment for murder, where it apiDeared that the deceased began making threats that ho would kill the defendant some weelvs before, and that such threats were comminiicated to tlie defendant, and that the deceased continued to make them within an hour of the killing, it was error to reject evidence of all threats made more than thi-ee days be- fore the killing, as being too stale and remote. 2. The question, as to what lapse of time between the threats and the kUling will be sufficient to exclude evidence of the threats, discussed and authorities reviewed. And the rule appears to be that where the testimony proves a continued series of threats,.extending back for several weeks or months, if such threats were communicated to the defendant, they will not be excluded on the ground of being too stale or remote. [Citing and com- paring Monroe v. State, ante, p. 442. Also citing and distinguishing State v. Jackson, 17 Mo., 544, and State v. Hays, ante, last case. Aoc. Kobert Jackson's case, ante, p. 476 ; Little's case, ante, p. 4S7 ; Dupree v. State, 3.'i Ala., 300 ; Howell v. State, in note to Monroe's case, ante, p. 469 ; PridgenV case, ante, p. 416 ; and others.] 3. Threats made by the deceased against the defendant shortly before the killing, the deceased being at the time armed to carry out such threats, are admissible as a part of the res gestae. [Ace. Campbell's case, ante, p. 282: Little's case, anic, p. 487; Goodrich's case, joosi ; Holler's case, ^os<; SYLLABUS. 517 TCeener's case, post; Stokes' case, post; Cornelius v. Com., 15 B. Monr., 639 ; Pitman's case, post ; Howell's case, ante, p. 4G9, note to Monroe's ■case ; Riddle v. Brown, post, note to Goodrich's case ; Scoggins' case, post; Arnold's case, post, in note to Scoggins' case, post. Contra, Powell v. State, post; Chambers v. Porter, post; Atkins v. The State, post, in note to Pitman's case ; Coker's case, lb.; Lingo v. State, post, note to Keener's case ; Hoye v. State, post, note to Keener's case ; Newcomb v. The State, 37 Miss., 400 ; People v. Henderson, 28 Cal., 465.] 4. And this is especially so, where such threats form part of a continu- ous chain of antecedent threats, in which case they are all admissible in evidence together. [Ace. Cornelius v. Com., 15 B. Monr., 539 ; Holler's case, post.'\ 5. Declarations of the deceased, made immediately after the killing, that he, deceased, provoked the assault and would have killed the defendant if his pistol had not hung fire, are admissible as part of the res gesim. [Citing Brownell v. The Pacific R. R. Co., 47 Mo., 239 ; and distinguishing McMil- lan V. State, 13 Mo., 30. [Ace. Hurd's case, post. And see the cases cited by counsel.] 6. AVhere a person apprehends that another is about to do him great bodily harm, and there is reasonable ground for believing the danger immi- nent that such design will be accompUshed, he may safely act upon appear- ances, and even kill the assailant, if that be necessary, to avoid the appre- hended danger; and the killing will be justifiable, although it may afterwards turn out that the appearances were false, and that there was, in fact, neither design to do him serious injury, nor danger that it would be done. He must decide at his peril, upon the force of the circumstances in which he is placed, for that is a matter which will be subject to judicial re- view ; but he will not act at his peril of making that guUt, if appearances prove false, which would be innocence, had they proven true. [Citing Shorter v. People, ante, p. 256; Campbell v. People, ante, p. 282. Ace. Pond's case, post; Selfridge's case, ante, p. 18 ; Sullivan's case, ante, p. 65 ; Logue's case, ante, 13. 269 ; Harris' case, ante, p. 276 ; Schnier's case, ante, p. 285; Neeley's ease, ante, p. 101 ; John Doe's case, ante, p. 62; Robert Jackson's case, ante, p. 476 ; Rapp's case, ante, p. 293 ; Meredith's case, ante, p. 298 ; Dyson's case, ante, p. 304 ; Cotton's case, ante, p. 210 ; Wes- ley's case, ante, p. 319 ; Evans' case, ante, p. 329 ; and the cases cited in the note to Grainger's case, ante, p. 242.] The grounds on which, this case was decided are fully stated in the opinion, except that the tenth instruction given for the State is not there set out. This was as fol- lows : " The law of self-defence is, emphatically, the law of necessity, to which a party may have recourse under cer- tain circumstances, to prevent any reasonably appre- hended great personal injury which he may have reas- onable ground to believe is about to fall upon him. IX 518 THE STATE V. SLOAN. i you believe that tlie defendant had reasonable cause to apprehend a design on the part of the deceased to com- mit a felony on the defendant, or to do him some great personal injury, and that there was reasonable cause to apprehend immediate danger of such design being car- ried out, and that he shot and killed the deceased to pre- vent the accomplishment of such apprehended design,, then the killing is justified upon the ground of self-de- fence, and you should acquit. It is not necessary to this defence that the danger should have been real or actual, or that the danger should have been impending, and im- mediately about to faU. If you believe that defendant had reasonable cause to believe these facts, and he shot un- der these circumstances, as he believed, to prevent snch expected harm, then you should acquit. But, before you can acquit on the ground of self-defence, you ought to- beUeve that defendant's cause of apprehension was reas- onable. Whether the facts constituting such reasona- ble cause have been established before you by the ev- idence, you are to determine ; and unless the facts con- stituting such reasonable cause have been estab- lished by the evidence in the case, you cannot acquit on the ground of self-defence, even though you may believe defendant reaUy thought his cause of apprehension reas- onable. S. M. Chapman, for plaintiflF in error. I. It was error to exclude evidence of Moore's threats- and conduct before the affray, and in holding that all threats and demonstrations made by him, more than three days before the affray, were too stale to be given in evidence, although communicated before the shooting ; and that all such as had not been communicated were inadmissible, however recent. Campbell v. People," 16 111., 17 ; Dukes v. State, 11 Ind., 557 ; Cornelius v. Com- monwealth, 15 B. Monroe, 539 ; HoweU v. State," 5 Ga. 54-5 ; Keener v. State," 18 Ga., 224-9 ; Lingo v. State, 2&' Ga., 484 ; Stewart v. State," 19 Ohio, 306 ; Pitman v. 'Ante, p. 282. ^ Ante, p. 469, note to Monroe's case. 'Post. Mwie, p. 191. ARGTJMENT OF COUNSEL. 519 State,* 22 Ark., 356, and cases cited; Dupree v. State, 33 Ala., 380 ; Monroe v. State,' 5 Ga., 85, 121 ; Roscoe's Crim. Ev., 6th ed., 710. II. Defendant had tried to avoid his adversary, but all to no purpose ; and when he saw the danger imminent, he was justified in acting more promptly in his defence, and upon less demonstrations of hostility, than though his fears had not been aroused by Moore's threats and prior conduct. State v. Hicks, 27 Mo., 588 ; People v. Rector,^ 19 Wend., 569 ; Selfridge's trial,"^ 160 ; Philips V. Commonwealth,' 2 Duvall, 328 ; Pattison v. People, 46 Barb., 625 ; Grainger v. State,^ 5 Yerg., 459 ; 1 Bish. Crim. Law, § 384 ; Young v. Commonwealth,* 6 W. P. D. Bush, 312 ; Campbell v. People, supra ; 2 Whart. Crim. Law, 4th ed., § 1027, note. in. The Court should have admitted evidence of Moore's declarations to his surgeons, while engaged in extracting the ball and dressing the wound, made im- mediately after the affray, " that Sloan was not in fault, that he had drawn on the difficulty by attacking him," as part of the res gestae. Commonwealth v. McPike, 3 Cush., Mass., 181 ; King v. Foster, 6 Car. and Pay., 325 ; Aveson v. Kinnaird, 6 East., 197 ; T^ravelers' Ins. Co. v. Mosley, 8 Wall., 397 ; Rawson v. Haigh, 2 Bing., 104 ; Star- kie's Ev., Sharswood's ed., 89 ; Durant v. People, 13 Mich., 351 ; Marr v. Hill, 10 Mo., 320 ; Wadlow v. Perryman, 27 Mo., 279 ; Hanover R. R. Co. v. Coyle, 55 Penn., 396. Leonard, for defendant in error. Wagner, J., delivered the opinion of the Court : The defendant was indicted in the Circuit Court of Dunklin county, for the murder of one Chailes A. Moore. The indictment was in the usual form for murder in the first degree, and a change of venue having been awarded to Cape Girardeau county, a trial was there had, and he was convicted of manslaughter in the first degree. « Post. ' Ante, p. 442. e Post. ^ Ante, p. 18. ' Ante, p. 383. J Ante p. 238. ■■ Ante, p. 400, note to Bohannon's case. 520 THE STATJi A'. SLOAN. The exclusion of evidence offered by the defendant, the giving and refusing of instructions, and the finding of the jury, are the matters complained of. The evidence shows that Moore, the deceased, enter- tained the greatest ill-feeling toward the defendant, whom he accused of slandering him ; that he had made threats on various occasions that he would kill him; that he commenced to make these threats some weeks before, and continued to make them to within less than an hour of being shot, when he stated, while belting on his pistol and going in the direction of the defendant, that he " was going to kill George Sloan." At the time of the killing, the defendant had just come to town, and Moore immediately sought him out, and got into an altercation with him; the defendant started to leave, and Moore followed him, with his revolver buckled on his person ; defendant then turned round, saying to Moore, "Don't follow me," and immediately fired the shot, from the effects of which Moore died in a few days thereafter. The Court rejected all evidence of threats made by the deceased more than three days previous to the shooting, as being too stale and remote, and also refused to admit in evidence those threats which had been made just prior to the killing, and which had not at that time been communicated to the defendant. What length of time must elapse after threats are made, and under what cir- cumstances they are to be received in evidence, is not very definitely fixed, or clearly settled. In The State v. Jackson, 17 Mo., 544, it was held that evidence of threats was not admissible, if sufficient time had elapsed for the blood to cool. But that case is so entirely different in its features from this, that it can be regarded of very little authority.' ' The part of the opinion iu Jaclsson's case, 17 Mo., 544, here referred to, is as follows ; Eylakd, J. : * * * " It seems that Jackson and his wife had separated, and that Millsaps, [the prosecutor, it being an in- dictment for assault with intent to kill], had carried a pistol some months before, and threatened, if Jackson came across his waj', or laid his hands on him, lie would shoot him. But the evidence offered had no tendency to NOTE — JACKSON'S CASE. 521 In the case of State v. Hays,™ 23 Mo., 287, it appeared from all tlie evidence, that the prisoner was the aggres- briug the threats down to the immediate cause of the shooting. If there was time for the blood to cool — for the passion to subside, these remarlis and threats will not mitigate." In sui^port of this conclusion, the learned Judge cites Coxe v. Whitney, 9 Mo., 531 ; and Collins v. Todd, 17 Mo., 537. These cases decide that in actions for damage for assault and battery, no matter of provocation, such as abusive language or a libellous publication, <;an be received in evidence ire mitigation of damages, unless so recent as to create a fair presumi)tion that the violence was done under the influence of the passion excited by it. We presume that no other case of homicide or assault to kiU can be found where the grounds on which threats are admitted or excluded are confused with the doctrine of cooling time, unless the language of the Court, in Hays' case, ante, p. 505, can be so understood. It is a familiar principle that no threats, however violent, and no words or writings of what- ever character, will justify or wholly excuse an assault. Selfridge's case, ante, p. 24. Much less can any tlireats, or other words or writings, afford such a legal provocation as will reduce a killing from murder to manslaughter. Hill's case, ante, p. 206 ; Williams' case, ante, p. 349 ; State v. Butler, 8 Cal., 435; Hawliins v. State, 25 Ga., 207; Ray v. State, 15 Ga., 244. Heuce, the doctrine of cooling time can have no applicatiau to a case of threats merely ; nor can the period of time within which passion should subside, or the blood cool, furnish any criterion in determining how recent, or how remote in point of time, threats must have been, in order to permit evidence of them to be introduced. Because the object of introducing evidence of threats is cither — 1. Wiiere the threats were previously communicated, to show that the accused had reason to believe that the assailant at that time intended to kill him or do him some great bodily harm ; or, as it is sometimes expressed, to show the reasonableness of the defendant's fears. Scoggins' case, ^osi; Keener's case,^os^; Monroe's case, ante, p. 442. 2. Where the threats were not communicated, to show the design with which the assaUant advanced to the encounter ; or, to throw hght upon doubtful transactions ; or, where the proof is obscm-e, and the motives of the defendant unaccountable, to negative the legal presumption of malice ; or, to corroborate evidence of communicated threats which has already been admitted. Campbell's case, ante, p. 282 ; Little's case, ante, p. 487 ; Goodrich's case, ^osi; Arnold's case, post; Sooggins' case, ^osi; Stokes' case, post ; Cornelius v. Commonwealth, 15 B. Mom\, 539 ; Howell v. State, 5 Ga., 48. We have found no other case in whicli tlie doctrine of threats has been mentioned in connection with that of manslaughter ; except such as dis- tinctly repudiate the idea, that threats per se can afford any mitigation of the crime of murder ; such as Dyson's case, ante, p. 310, and Lander's case, •ante, p. 366. The theory of homicide in self-defence, and the theory of voluntary manslaughter, are entirely disconnected and distinct. In the former case, the killing may or may not be intentional ; but if intentional, the law justi- 522 THE STATE V. SLOAN. sor, and had sought the difficulty in wliich the aeceased was killed. This Court refused to reverse the judgment fles or excuses it on the ground that it was necessary to save the slayer's life ; or, if unintentional, that it unfortunately happened, while the defend- ant was exerting no more force tlian was necessary in his lawful defence. In voluntary manslaughter, the killing is intentional, but not necessary ; the law neither justifies nor excuses it, but out of regard for the frailty of human nature, mitigates the punishment, indulging the supposition that the killing, though intentional, was not done out of malice ; — that is, out of wickedness, or out of a heart lost to considerations of social duty, but out of passion or anger, superinduced by strong provocation. There is one case, however, that is not altogether unlike Jackson's case, in the particular here considered. We refer to Hawkins v. The State, 25 Ga„ 207. The language which we regard as peculiar we have italicized. It is true that it .reads like an unliappy confusion of the doctrine of threats witli that of cooling time ; but at most, it cannot be that the learned Judge could have intended more than that the threat of killing, made by the de- ceased, might, if it had been made very soon after the fight, and if it had been heard by defendant, have operated as a contimiance of the provoca- tion, if there had been any legal provocation, given by the blows in the combat. The facts of this case were as follows : Hawkins, the defendant, and Scott, the deceased, were gambling in a crib in a yard, when an alterca^ tion ensued, which ended in a fight ; Hawkins got out of the crib, and gathered up some rocks or brickbats ; Scott told Hawkins to lay down the rocks, and he would come out; Hawkins laid them down, but Scott remained in the crib ; Hawkins then took a stick and went up to the door of the crib and struck at Scott, and " punched " at Scott with the stick through the cracks of the crib : he then took some rocks and ithrew them at Scott iu the crib. After throwing the rocks, he left the yard and went to the house, some two hundred and fifty yards off. Scott said that Hawkins, was too mean to live iu the oonntrj, and that he intended to kill him. Just as Scott said this, Hawkins was coming towards him, and was about twenty-four steps from him ; Hawkins had a horse-pistol in his hand, and when he cam(^ within about ten feet of Scott, he raised it and shot him;, the shot took effect in the left breast of Scott, who fell dead, moving only three or four steps. The witnesses stated their belief that Hawkins was sufficiently near to Scott to hear the threat of Scott to kill him. The Court, among other things, charged the jury that if they should find, " tliat between the provocation given and the killing, there was suffi- cient time for the voice of reason and humanity to have resumed her sway, whether in this case she had done so or not, the killing was murder, and not manslaughter." To which charge the defendant's counsel excepted. 'The jury found the defendant guilty of murder. Lumpkin, J,, in pro- nouncing the opinion of the Court, said: "As to the charge of the Court,, it was in the terras arid language of the Code. Cobb's Dig., 4 Div., 1 7. Provocation by threats will not be sufl^lcient to free the slayer from the gmlt of murd(;r. And if sufficient time had elapsed for reason to resume her sway, the killing shall he attributed to deliberate revenge, and punished as murder^ NOTE — HAWKINS' CASE — PROVOCATION BY WORDS. 523 of conviction for murder, because the Court below re- jected evidence of threats made by the deceased against He7-e the menaces were evidently im.de after Hawkins had determined to kilt Scott, for they were made after he returned from, his house with dtadly weap- ons ; and it is very doubtful whether the words of Scott were heard at all by Hawkins. They were addressed to the witness, and not to Hawkins. Riiss., Cr. 433, 442, and citations ; Whart. Crim. Law, 375, 377, [old edi- tion] ; Rose. Crim. Ev., 724, 729, 730, 731. But what provocation was given in this case to justify the uncontrollable passion relied on in mitigation of the homicide ? Hawkins seemed to have got the best of the fight in the crib ; he continued to assault Scott after he came out ; he left him in the crib, hastened home, a distance of two hundred and fifty yards, procured his pistols, returns and executes his murderous purpose, evidently formed before he left Scott. It will never do to tolerate such a plea — I had almost said, such a pretence ; — no, never ! Ray v. The State, 15 Ga. , 244, 245. " This last named case does not deal with the question of threats, but as ics conclusion on the subject of provocation is somewhat peculiar, we shall quote so much of it as relates to that subject. Extract from the opinion of the Court, delivered by Starnes, J. : * * * The motion for a new trial was placed upon the ground that the verdict was contrary to the evi- dence ; that there was no evidence of malice, express or implied, in this homicide ; and that the jury should not have found the prisoner guilty of ^ higher crime than voluntary manslaughter. It is not pretended that there was any evidence of express malice found in the record ; but the case is put entirelj' upon the evidence of implied malice, which, it is said, appears there. Our Penal Code declares that " malice shall be implied where no con- siderable provocation appears, and where all the circumstances of the kill- ing show an abandoned and malignant heart." Let us enquire, then, 1. Was there no considerable provocation here ? 2. Did the circumstances of the killing show an abandoned and malignant heart? We learn from the record, that at the time when this difficulty com- menced, a buggy of the prisoner, or one that he had in charge, stood before the door of a grocery in the town of Perry, in which the prisoner was ; that the decedent recklessly, (as there was abundance of room for him to have avoided it), struck against this buggy, with the wheel of a wagon which he was driving, and did some damage to it ; that information was communicated immediately to the prisoner, who instantly left the house, hastened rapidly after decedent, who was moving on with his team, and overtook him, after going some one hundred and fifty yards. And now to answer the question which we submit, lot us look to the strongest testimony against the prisoner, for what ensued, namely ; that of Jesse Cooper, the principal witness for the State. What do we learn from him of the provocation? He testifies that the prisoner ran up, as we have stated, seized one of the decedent's horses ; stopped the wagon ; in his passion, cursed decedent for breaking his buggy, and demanded payment for it. Was his passion appeased by what decedent said or did? According to this witness, the latter said that if he had broken the buggy, he had 524 THE STATE V. SLOAN. the prisoner, the record not showing whether the threats were recent or of long standing. Of the propriety and done it accidentally, and would pay for it. But did he say this in a way which was calculated to soothe or to irritate Ray still further? That the reply must have been in manner and spirit of the latter character, is prob- able, from the still more angry reply of Ray, and his threat to whip him if lie did not pay '• right then." It is also probable from decedent's intoxica- tion, from his recklessness in driving against the buggy, and from his sub- sequent readiness to quarrel and light ; for he instantly said that "if that, .(a light,) was what the prisoner was up to, he would have a hand with liira." Without words of regret on account of what he had done, on account of the first wrong in the transaction ; at all events, without words of this sort expressed, in a way which might conciliate, he manifested a quarrelsome and pugnacious spirit — threatened the employment of a weapon, or some- thing like it; for he said, " he had a wagon-hammer he could use;" (this the witness admitted upon cross-examination) ; got off his horse, went, as the witness supposes, to get this hammer, but failing to get it, moved towards the prisoner ; (for on the cross-examination, the 'witness says : '•Taylor might have been approaching him, (prisoner) ; he thought so at the time, and he tliinks so now,") when he received the prisoner's blows. In the meantime, still smarting under a sense of the injury done him by the breaking of his buggy — Incensed by the decedent's manner, as pris- oner, no doubt, thought, of persisting in injustice — irritated and maddened by the offers of the latter to fight, and his movements to procure a danger- ous implement for that purpose, the prisoner ran rapidly to a board, which lay near, seized it, rushed upon the decedent, and struck the fatal blows. We do not hesitate to say, that such circumstances show a considerable — a very exasperating provocation. They present a stronger case of prov- ocation, in our opinion, than that which appears in Lanure's case, 1 East P. C, 283, where one violently and with insolence, whipped the horse of another out of his way, and the rider alighted, and immediately, in the fight which ensued, killed the assailant. This was held to be manslaughter •on account of the provocation. To this testimony of Cooper, let us add the evidence of Pranlcs, going to show decedent's efforts to get the hammer ; the evidence that decedent jnust have been meeting prisoner afterwards, from the fact that tlie board picked up by the latter was near the store, and that decedent was going -towards the store when Ray met him ; the testimony of Dr. Holt, that the j)risoner, from his position, could not have known whether or not dece- dent had gotten the hammer, (which leaves the inference that he may have supposed that decedent had it) ; the statements of the same witness, that "they were both meeting each other;'' that he (decedent) "proceeded to meet Ray," etc.; that " one seemed to be as anxious for the light as the other," etc. These facts greatly strengthen the view we have taken, and, to our minds, make the conclusion verj"- plain, that there was considerable provo- cation on the part of the decedent ; that there was great heat of blood between the parties, and something of mutual intention to fight. In forming this opinion wc have not been immindful, that, according to OPINION — hays' case EXAMINED. 52b justice of the decision upon the facts as developed in that case, there can be no doubt. At what time the threats were made, did not appear, and the murdered man was not trying to execute his threats, or commit any offence, when the prisoner met and killed him. A threat antecedently made, would, of course, furnish no justification or palliation for a homicide under such cir- cumstances. The books contain examples in which the threats of the deceased party have been given in evidence, and there are also cases in which such threats havebeen rejected. But, where such threats have been received, .they were generally recent, or continued down, so as to become very nearly coeval with the killing, and were brought home to the knowledge of the party slay- ing. See Lewin's C. C, 184 ; Rose. Grim. Ev., 772 ; Rec- tor's case, 19 "Wend., 569. But the Judge who delivered the opinion of the Court in Hays' case, distinguishes it from that class of cases where the threats are made and continued down to the time of the killing. Thus, in speak- ing of the case of Monroe v. The State," 5 G-a.; 85, 135, 136, he says : " In the case of Monroe v. the State of Georgia, the facts were widely different from the facts in this case. There, the threats against the life of Monroe, coupled with the acts of Macon, were brought down to the time of killing. The deceased, at his death, was armed with a Yauger and two pistols; he had been watching and seek- ing the opportunity to kill Monroe. He had created such a dread of losing life in Monroe's mind, that, although a physician, he was compelled to practice his profession law, the provocation which reduces such a homicide to voluntary manslaughter, must be one that involves some assault by the party killed upon the person killing. We think such assault may be found in this case, in the intention of the decedent to resort to violence, when it was unnecessary ; is to be found in the evidence, which shows a mutual design to fight, and in the fact that the decedent was approaching the prisoner in furtherance of this design. The Court then proceed to consider whether the evidence affords proof' of implied malice, and having also concluded this point in the negative,' reverse the judgment, and award a new trial. See also, note d. to Keener's case, post. ™ Ante, last case. ° Ante, p. 442. 526 THE STATE V. SLOAW. by visiting Ms patients in the night time. Here, the threats by Macon against Monroe, and the acts of Macon, of one continued hostile series down to the death, were important evidence to explain the killing on th^ part of Monroe. In the case from Georgia, Meade's case and Rector's case are quoted and relied on as authority. This kind of evidence is permitted by the court in Geor- gia, to show the reasonableness of the defendant's fears. In the case from Georgia, the testimony proved a con- tinued series of threats, accompanied by acts of violence from the deceased towards the prisoner, commencing some months previously, and coming down to the time of killing, and all showing a determination on the part of the deceased to take the life of Monroe before ' the next ensuing term of one of the courts of the county where the transaction happened. I repeat, that the case at bar differs widely from the case of Monroe, just cited from 5 Georgia." The facts in the case from Georgia are almost identical with the case we are now considering. The deceased, Moore, at a party, had sought a personal difficulty with Sloan, which Sloan shunned. Two or three days before the shooting, and again on the day before, he threatened to kill Sloan the " first time he saw him ; " that, on the occasion last referred to, he stated that he " intended to kill him the first time he saw him, as he was nobody but a God-damned Yankee, and should not associate with white folks," and this was communicated to Sloan before the affray. It appears, also, that when the defendant was in the store, Moore come to the door with a revolver, looked in, and requested the proprietor to shut up his store, as he " expected that he and Sloan would have a difficulty, and he did not wish to have it in his house." This remark of Moore the Court excluded, because it was not communicated to the defendant. In an analogous case in the State of Illinois, this same question arose, and the court there held that the evidence was admissi- ble. The Court remarks : " Upon the trial, the defence offered to prove that on the day, and at other times OPINION — CAMPBELL'S CASE. 527 sliortly before his death, the deceased had made threats against the prisoner. This evidence the Court ruled out, and an exception was taken. In this the Court unques-. tionably erred, althougli they may never have come to the knowledge of the defendant till after the homicide was committed. If the deceased had made threats against the defendant, it would be a reasonable infer- ence that he sought him for the purpose of executing those threats, and thus they would serve to characterize his conduct towards the prisoner, at the time of their meeting and of the affray. If he had threatened to kill, maim or dangerously beat the defendant, it would be a fair inference, especially so long as the evidence shows that he had a hatchet in his hand — that he had attempted to accomplish his declared purpose ; and, if so, then the prisoner was justified in defending himself, even to the taking of the life of his assailant, if necessary. While the threats of themselves could not have justified the prisoner in assailing and killing the deceased, they might have been of the utmost importance, in connection with the other testimony, in making out a case of nec- essary self-defence. The evidence offered was proper, and should have been admitted." Campbell v. People," 16 111., 17. In the present case, the evidence was highly important and proper to illustrate and explain the character of the act. The threats were continuous and frequent ; they were all blended and inseparable ; and the last threat, when the deceased had his revolver with him, showing an ability to carry out and accomplish his purpose, went to form a part of the res gestce, and must be considered as of the same transaction. Defendant proposed to prove, that, whilst the surgeons were dressing the wound, and immediately after the shooting took place, Moore, in speaking about the mat- ter, said that " Sloan was not in fault ; that he had drawn on the difficulty by attacking him, and that if his pistol had not hung when he went to draw it, he would have " Ante, p. 282. 528 THE STATE V. SLOAN. killed him." This declaration was excluded by the Court on the ground that it was no part of the res gestoe, and was not shown to have been made in articulo mor- tis. In McMillen, v. State, 13 Mo., 30, it was proposed to prove by the witness that she had heard Jackson Logsdon, the deceased, recently before the affray, threat- en to shoot one of the defendants. . The testimony was rejected. Judge Napton, writing the opinion of the Courts says : " As Jackson Logsdon was not a party to the prosecution, what he said is no more than the hearsay of any other man, and was, therefore, upon general prin- ciples, inadmissible. Had his declarations been in ar- ticulo mortis, or a part of the res gestoe, they would have come within the exceptions to the general rule. The bill of exceptions does not show wTien the declarations were made. 'Kecently' is a word of indefinite character." Here it is admitted that if the threat had been made at the time the crime was committed, or so soon thereafter as to have made it constitute a part of the res gestce, it would have been properly receivable. The question was directly presented to this Court for adjudication in the case of Brownell v. the Pacific R. R., 47 Mo., 239. There the point raised was in reference to the admission of the declaration of Brownell, the deceased, as to how the acci- dent happened. This declaration he made immediately, after the accident, and, upon a review of the authorities, we held the declaration admissible, as constituting a part of the res gestae. The ruling in that case is decisive of this, and there is no necessity for repeating the reasons for the conclusion we there arrived at. The evidence was admissible, and the Court erred in rejecting it. We will not enter upon an examination of the instructions in detail, but only re- fer to one or two given for the prosecution. The tenth instruction given for the State, in reference to the law of self-defence, is objected to, and complained of by the defendant. The instruction, though unhappily and inar- tistically drawn, is substantially correct. It is in accord- ance with the doctrine laid down by the best elementary OPINION — APPEAEANCES OF DANGER. 529 writers, and has been constantly acted upon and en- forced "by the Courts. When a person apprehends that some one is about to do him great bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, he may safely act upon appearances,. and even kill the assailant, if that be necessary to avoid the apprehended danger ; and the killing will be justifi- able, although it may afterwards turn out that the ap- pearances were false, and there was, in fact, neither design to do him serious injury, nor danger that it would be done. He must decide at his peril upon the force of the circumstances in which he is placed, for that is a matter which will be subject to judicial review.. But he- will not act at his peril of making that guilt, if appear- ances prove false, which would be innocence, had they proved true. Shorter v. People," 2 Comst., 193 ; Camp- bell V. People, supra. On the trial of Thomas O. Self- ridge,"* Judge Paekeb, afterwards Chief Justice of Massa- chusetts, puts this case as an illustration : "A., in the peaceable pursuit of his affairs, sees B. walking rapidly towards him with an outstretched arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A., who has a club in his hand, strikes B.. over the head, before or at the instant the pistol is dis- charged, and of the wound, B. dies. It turns out that the pistol was loaded with powder only, and that the real design of B. was only to . terrify A." Upon this case, the judge enquires, "will any reasonable man say that A. is more criminal than he would have been if there had been a bullet in the pistol ? Those who hold such a doctrine must require that a man so attacked, must, before he strikes the assailant, stop and ascertain how the pistol was loaded — a doctrine which would entirely take away the right of self-defence ; and when it is con- sidered that the jury, who try the cause, and not the party killing, are to judge of the reasonable ground of vAnte, p. 256. 'iAnte, p. 18, 530 THE STATE V. SLOAN. his apprehension, no danger can be supposed to flow from this principle." The judge had before instructed the jury that " when, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life or commit any felony upon his person, the killing of the assailant will be excusable homicide, although it should afterward appear that no felony was intended." Selfridge's Trial, 160. Any other doctrine would destroy the right of self-preservation, and im- pose a burden which would render persons in dan- gerous positions, powerless to protect themselves. Our statute has placed killing in self-defence under the head of justifiable" homicide, and hence the common- law rule applies in the fullest extent. The law, as announced by Judge Pakker, is of ancient origin. The principle was recognized and acted upon in Levett's case, recited by Jones, J., in Cook's case Cro. Car., 538, to the following effect: Levett was in bed with his wife and asleep, in the night, when the servant ran to them in fear, and told them that thieves were breaking open the house. He arose suddenly, and taking a drawn rapier in Ms hand, went down and was searching the entry for the thieves, when his wife, espying some one whom she knew not, in the buttery, cried out to her husband in great fear, " Here they be that would undo us ! " Levett thereupon hastily entered the buttery in the dark, not knowing who was there, and, thrusting with his rapier before him, killed Frances Freeman, who was lawfully in the house and wholly without fault. On these facts, found by special verdict, the Court held that it was not even a case of manslaughter, and the defendant was whoUy acquitted. Now here the defendant acted upon information and appearances which were wholly false ; and yet, as he had reasonable ground for believing them true, he was held guiltless. Koscoe, in his work on Criminal Evidence, says, that r Upon the distinction between justifiable and excusable homicide, see note to Selfridge's case, ante, p. 16. NOTE — KEOENT THREATS — KEENB'S CASE. 531 it is not essential that an actual felony should he about to be committed in order to justify the killing. If the circumstances are such, as that, after all reasonable cau- tion, the party suspects that the felony is about to be immediately committed, he will be justified. Roscoe's Crim. Ev., 639-. The books give numerous examples, and appl}'^ the principle approvingly. 1 Hale P. C, 42, 474; 1 Hawk. P. C, Curwood's ed., 84 ; 1 lEast P. C, 275 ; 1 Russell on Crimes, 540-50. * * v. * * * Judgment reversed. Note. — Tlio question of the admissft)ility of evidence of threats made hy the deceased against the defendant, and communicated to the defendant, , in trials for homicide, again came before the Supreme Court of Missoiu-i in The State v. Keene, 50 Mo., 357. Wagner, J., stated the case, and deliv- ered the judgment of the Court, as follows : ' ' The defendant was indicted for liilling one Evans, and on the trial the jury found him guilty ot murder in the second degree, and assessed his punishment at sixteen years in the penitentiary. ■' It seems that the defendant had been on terms of amity and good will ■ivlth Evans till the day before the killing tooli place. On that day, they met at the house of a friend, together with other company, when the de- fendant treated Evans with friendship and civility. But Evans had ascer- tained that the defendant was engaged to be married to a niece of his wife, and was greatly enraged about it, and instead of returning the kind treat- ment of the defendant, he violently assaulted him with a pistol and knife, and swore that ho would kill him, and nothing but his blood would satisfy him. •' Through the intercession of friends, he was kept from carrying out his purpose or hurting tlie defendant ; but the defendant, in order to save him. self from violence and death, was obliged to hide in another room, and finally make his escape from a back door. After this occurrence, Evans renewed his threats — declared that he would malce no compromise in refer- ence to the matter — that lie would kill defendant on sight, if it was the last act of his life. " These threats were c-ommunioated to defendant the same evening. " It further appears that on the morning of the occurrence above referred to, and some two hours prior to the killing, tlie defendant, in comi)any with another person, went out to hunt prairie chickens, and when they had reached a point near the railroad depot, and just after the defendant had discharged his gun at some chickens, Evans came out of the depot and hallooed to the defendant, saying to him that he was a damned cowardly son of a bitch, and that if he would come up there ho would thrash hell out of him, and that he intended to Idll him it he married his niece. The only answer defendant made to this abuse, was to ask Evans what he * wanted to kill liini for ; at the same time he told his companion that that would break up tlieir imnt; and they Immediately started home. On 532 STATE V. GOODRICH. his arrival at liome, defendant -went to his stable ta put his horse up, anil whilst he was stUl at his stable, Evans, in company with two other persons, rode up. Evans went into a store across the street from the stable. De- fendant wanted to go into the store to warm, for it was cold weather, but he was warned not to do so, as he would be in danger of his life if he met Evans. Defendant then stayed in the stable, and sent friends to have an interview with Evans, for the purpose of trying to arrange the difBcultj'. He was willing to almost anything, accept the most humiliating terms, and only desired that his life might be saved. But Evans was obdurate ; he would abate nothing of his hatred and his desire for blood, and the life of defendant only would satisfy him. Evans then came out on the street, and was in fierce altercation with the persons around him, when the defendant fired the shot from which he afterwards died. The defendant immediately gave himself up, declared that he fired the shot, and that he did it to save his own life. "At the trial, the Court excluded all evidence of what occurred on the day previous to the killing, and the threats made by the deceased in reference to his intention to kill the defendant. In this, the Court unquestionably erred. This whole transaction, and all the matters connected with the dif- ficulty, are so nearly allied that it is impossible to separate them. From the inception to the fatal consummation, less than twenty-four hours inter- vened. The threats continued down, uninterruptedly, and were all neai'ly coeval with the killing, and they were all brought home to the knowledge of the party who did the slaying. They constituted the chain of one con- tinued hostile series of acts by the deceased, down to the time he was shot. That they had created a dread in the breast of the defendant, that he was in danger of losing his life, there can be no doubt, and the evidence was admissible, to show the reasonableness of his fears. State v. Sloan, 47 Mo., 604." [Supra.] * * * The judgment was reversed. STATE V. GOODRICH. [19 Vt., 116.] Swpreme Court of Vermont, January Term, 181^7. Stephen Royce, Chief Judge. Isaac F. Redeield, ) MiLO L. Bennett, \ Assistant Judges. HiLAND Hall, 1 Indictment for assault — Admissibility of evidence of hostile dec- larations BY ASSAILANT, PREVIOUS TO ASSAULT, AND OF PREVIOUS THREATS AND AFFRAYS. 1. Where on the trial of an indictment for an assault, the prosecuting STATEMENT OF THE CASE. 533 witness was asked if he did not, while on the way to the defendant's house, on the night of the affray, declare to a particular person, that he wanted some powder to blow up the defendant's house, which he denied ; it was held competent to show by other witnesses that he did make such declara- tion. 2. For the purpose of showing with what intent he went to the defend- ant's house, ani also his feelings towards the defendant, all his declarations in connection with his acts, are competent from the time of his starting out on the expedition ; and these may be shown by himself or by any other witness, and probably without first enquiring of the prosecuting witness himself. [See Sloan's case, ante, last case, and citations.] 3. Evidence tending to show that there had been, at times previous to the assault charged upon the defendant, affrays at the dwelling house of the defendant, and that his house had been attacked and his property des- troyed, and that the prosecutor was one of the company, and that he had frequently threatened violence against the person of the defendant, would be admissible, if the testimony showed that the defendant, at the time of the assault, had just cause for alarm and to fear serious injury to his person or property : otherwise, if offered merely to show the temper and disposi- tion of the prosecuting witness towards the defendant. [Ace. Zellers' case, ■ante, p. 471, note ; Monroe's case, ante, p. 442 ; Hector's case, post; Meade's case, ^os<.] Indictment for assault upon one Green, by firing at Mm with a gun. Plea, not guilty, and trial by jury, June Term, 1846, BEmsTETT, J., presiding. On trial, evidence was given tending to prove that a quantity of hay had been attached, at the suit of Green against the respondent, as the property of the respond- ent ; that, on the evening of the 16th of October, 1845, Green, and one Conner, at the request of the constable who made the attachment, went to the house of the respondent, where the hay was, for the purpose of seeing that the hay was safe, and not in any way wasted ; that they arrived there between nine and ten o'clock in the evening ; and that, while quietly there, making no dis- turbance, the respondent fired his gun, loaded with pow- der and shot, upon Green, and wounded him. The respondent claimed, that the assault and battery, if committed by the respondent, were committed by him in defence of his person, or property ; and oflfered evi- dence tending to prove that there had, at previous times, been affrays at the dwelling house of the respondent, and that his house had been attacked and his property 534 STATE V. GOODRICH.' destroyed, and that Green was one of the company, and that Green had frequently threatened violence upon the person of the respondent. The Court decided that it was not competent, as defence to tliis proseciition, to enqiiire into previous affrays or contentions between the respond- ent and Green, and excluded the evidence offered, hut admitted evidence to show all tliat took place on the even- ing, or night, wlien the affray complained of took place, tending to show that the assaxilt and battery complained of were committed in defence of the person, or property, of the respondent. Green, who was a witness on the part of the prosecu- tion, was asked by the respondent, on cross-examina- tion, whether he did not say to a certain person, while lie was on his way to the house of the respondent, on the evening when the affray complained of took place, that he wanted to get some powder for the purpose of blow- ing up the house of the respondent ; and Green denied that he so said. The respondent then offered to prove that Green did so say ; but the Court excluded the evi- dence. The jury returned a verdict of guilty. Exceptions by respondent. Linsl&y & BecTcwitli. for respondent; G. W. Orandy, State's Attorney. Redfield, J., delivered the opinion of the Court: The question made in the defence of the present case was, whether the principal witness on the part of the State, upon whom the defendant is charged with making an assault, did himself mak(> the first assault, and whether what the defendant did was done in self-de- fence. Green testified that he did not make any disturb- ance fibout the defendant's dwelling, or assault upon liis person. He was then asked, if he did not, while on the way to the defendant's house, on the night of the affraj', declare to a particular person, tliat he wanted some pow- der to blow up the defendant's house, which he denied. The defendant then offered to show that he did make OPINION" — DECLARATIONS OF ATTACKING PARTY. 535 sucli declaration, and the Court rejected the evidence, upon the ground that the enquiry concerned a matter wholly collateral to the main issue. It is not always easy to determine, precisely, what is collateral to the main issue. Something on that head must be left to the discretion of the judge presiding at the trial. In the present case, if it was material to know with what intent the witness went there, that could only be shown by his acts and his declarations in connection with those acts. For this purpose, the efforts and enqui- ries which the witness made for help and implements, whether of offence or defence, would be material. As part of that intent it might have been shown, tliat he declared his intention to be only to see if the hay re- mained ; ■ and we apprehend what is stated in the bill of exceptions, in regard to the tendency of the testimony on the part of the State, to show that he went there with that intent, must have been derived, partly at least, from his declarations on the way and while there. That is the only way it could be shown, aside from his own testimony. And we think, that all of his declarations from the time of his setting out on this expedition, in connection with his acts, are competent to show with what intent he went there ; and if an innocent intent may be shown in this way, than the contrary may also be shown in the same manner, and this may be shown by Green or any other witness ; and in this view the evidence was in no sense collateral. If, then. Green denied making such a declaration, it might be shown that he in fact, did, both as tending to impeach the witness by contradicting him, and as going to establish the fact that he went there for the purpose of beginning an affray, and as tending to justify, per- haps, more vigorous defence of any supposed offensive movements on the part of Green. For a part of the evi- dence rejected was, that he had repeatedly threatened the defendant ; and it is not impossible, that, if this evi- dence had been admitted by the Court, the defendant might have satisfied the jury that he had been informed 536 STATE V. GOODHICH. of the fact of Green's approach, and of Ms declarations of Ms intent, although, from the case, this seems hardly probable. But these declarations are material, as showing the intent with which Green went there, and also his feelings towards the defendant ; and it has been held, both in this State and in England, that this last point is a suffi- iient ground of impeaching a witness, and that the dec- larations of the witness to this eflfect may be shown as substantive matter of proof, without first encLuiring of him. Lord Stafford's case, 7 Howell's State Trials, 1400, where it was permitted to be shown, that the wit- ness had attempted to suborn witnesses to testify falsely -against the prisoner. So in Thomas v. David, 7 Car. & Pay., 350, where a female witness was offered on the part of the plaintiff, to prove a promissory note, claimed to be forged, it was permitted to ask the witness if she was not the kept mistress of the plaintiff, for the purpose of showing that she had a motive to favor the plaintiff, or was easily controlled by him, and might thus be induced to give false evidence, and, upon the witness denying it, she was contradicted by other witnesses, the Court hold- ing the matter not collateral.. So it is always competent to ask a witness, if he has not said- he would be revenged upon the party against whom he is called, and this, with reference to the very suit on trial, and if the witness denies having made such declarations, to contradict him, by showing that he did make them. Harris v. Tippett, 2 Camp., 638 ; and in Pierce v. Gibson, 9 Yt., 216, it was permitted to show, that an ill state of feeling existed on the part of the witness, .as to the party against whom he was called, and this without first asJcing the witness. Whether, then, we consider the declarations of Green as tending to show, that he went there for the purpose, and with the intent of making a serious assault upon the defendant, as a part of the res gestae, and tending to characterize the whole transaction, both as to the de- fendant and the witness, and their several acts, and thus OPINION — DECLABATIONS OF ATTACKING PAKTY. 537 the better to enable the jurors to determine whether the one or the other was the aggressor, and whether the de- fendant acted in good faith in the matter ; or, as tending to show the state of mind, which the witness entertained towards the defendant, and the temptation which he would have, to put the most favorable construction upon his own acts, and the most exaggerated one upon those of the defendant, the evidence was clearly admissible; and probably without first enquiring of the witness ; and also, as tending to impeach the witness, by contradicting his main evidence, in which view he must first be en- quired of. 1 Stark. Ev., 189, 199. Upon the other point, the case is too indefinitely stated, to determine, with much certainty, how far the evidence was admissible. If the decision was intended to exclude all evidence of previous threats, or affrays, on the part of the witness, as to the defendant, unless upon that very night, it migM be clearly wrong, and would be, if the testimony had any tendency to show, lihat the defendant at the time, had just cause of alarm, and to fear serious injury to his person or property. A case might have been made out, coming within the offer, which would have justified the defendant, even if he had taken the life of the witness; and the decision of the Court, in the terms in which it is expressed, would have rejected it, unless occurring at that very time. But we are not to presume any such case was proposed to be made out by the defendant, or it would have been admitted by the Court. We rather presume, that the ■offer was intended to show, that the defendant and wit- ness had had frequent quarrels, which was not further important, than as it tended to show the temper and disposition of the witness. Green ; and not having been offered for any such purpose, it is impossible for us to say there was error in rejecting it. Judgment that the verdict be set aside, and the respondent have a new trial. Cause remanded for that purpose. Verdict set aside and new trial oranted. 538 STATE V. GOODRICH. - Note.— The case of Murphy v. Dart, 42 How. Pr. 31, is somewhat sim- ilar to the principal case. It was an appeal to the Supreme Court of New York, Fourth Department, in General Term, May, 1871, from a judgment entered in favor of the defendant, on the report of a referee in an action for damages for an assault and battery. The defence was that the plain- tiflr committed the first assault, and that the defendant acted wholly in self-defence. Evidence was given for the defendant that the plaintiff had threatened to whip him on the first opportunity ; and the defendant was allowed to show, subject to objections, that he had had previous difficulties, with the plaintiff. Mullen, P. J.: "The evidence on the part of the defendant justifies the finding tliat the injuries inflicted upon the plaintiff were inflicted in self-defence, after the plaintiff had struck him two or three times. It was for the referee to determine whether there was an excess of force on the part of the defendant, and he, liaving determined that there was not, we must as- sume there was none. I have some doubt whether the evidence of the defend- ant as to previous difliculties between him and the plaintiff was admissible. Evidence was given of threats on the. part of the plaintiff, that he would beat the defendant, whenever the latter would furriish him an excuse. This, in connection with previous difficulties between the parties, would aid the referee in arriving at a conclusion as to who was probably the aggressor on the occasion of the affraj'. In this view and for this purpose, I think the evidence was admissible." The judgment was affirmed. The case of Riddle v. Brown, 20 Ala., 412, is also similar in its character and conclusions. This was an action of trespass, vi et armis, brought by the plaintiff in error for injuries to the person. Both parties claimed the right to enter an enclosure and get ore from a certain ore bank. The plaintiff in error, in attempting so to enter, was set upon and severely beaten by the defendants in error. In the course of the trial, a witness testified that plaintiff had said, some- time previous to this difficulty, " that Brown and Atkinson (the defendants} were endeavoring to prevent him from getting ore from this ore bank, by threatening to beat him, but they could not do it ; the ore bank was his,, and he had possession of it ; that as to John P. Atkinson, he did not mind him any more than he would a negro ; that he could or would take a cow- hide to him, if he interfered with him, and run him off the place." On cross-examination, the witness said he did not tell this to defendants until long after the fight occurred. Upon this, plaintiff moved to exclude the testimony, which the Court refused, and plaintiff excepted. Extract from the opinion of the Court, deUveredby Phelan, J.: The next assignment of error relates to the admissibility of the evidence showing that plaintiff, after alluding to certain threats of the defendants, had spoken in a very contemptuous manner of the defendant, John F. At- kinson, and had made threats of what he would or could do -with him in certain contingencies, before the beating took place, although the witness stated that he had not told tlie defendant of this until sometime afterwards. One point made in the case of the plaintiff in the trial below, as appears from the record, was, that admitting the lawfulness of defendant's posses- sion, the heating was excessive, and beyond what was necessary for the defence and maintenance of their possession ; and that defendants were SYLLABUS. 539- guilty of a trespass on that ground. I must say, that the facts contained in the record, show a case of severe, and, it seems to me, unnecessary inflic- tion of personal injury upon the plaintiff; but this was a matter purely for the jury to determine, under all the facts and circumstances of the case, to whom the Court properly left it. We see no good objection to the evidence admitted, at least to a portion of it, and the objection was general. It was competent to show that angry feelings had arisen between these parties, in regard to their respective rights to the possession of the ore bank, previous to the beating, in order to show that plaintiff would natu- rally expect and come prepared to meet a vigorous resistance, if he was determined to proceed to assert his right to the possession by force, and this might serve to palliate or excuse the conduct of the defendants. There is no error in the record, and the judgment below is affirmed. KEENER V. THE STATE. [18 Ga., 194.J Suprem,e Court of Georgia, June Term, 1855.^ Joseph H. Lumpkin, | Ebenezer Staenes, >• Judges. Henry L. Benwing, ) Opinions op w;itnbsses — Charactbk of person slain, whex at par- ticular PLACE— Scope of the evidence in trials foe homicide — Uncommumcated threats — Threats, recent or remote — Charg- ing LAW OF SELF-DEFENCE — PROVINCE OF THE JURY — ACTING UPON APPEARANCES OP DANGER. 1 . Ordinarily, a witness who testifies, must state facts, and not his opinion or expectation, which is the conclusion of his mind from the facts. It was, hence, proper to exclude a question, " whether the tone of voice, with the language and manner of the deceased, were not such as to cause him, the witness, to look for a difficulty." [Ace. Hudgins v. State, ante, p. 470, in note to Monroe's case ; Hawkins v. State, note a., infra.'] 2. Where the character of a party, as to any particular trait, or as de- veloped under special circumstances, is put in issue, it would seem that it should be established by evidence as to general reputation, and not positive evidence of general bad conduct. [Ace. Dupree v. State, post; Franklin's case, post; Robert Jackson's case, ante, p. 486. But see Fahnestock's case,, note c, infra.'] 540 KEENER V. THE STATE. 3. It is a sound principle, that a man may have different general charac- ters adapted to diiferent circumstances and localities ; as a character for the rail cars, and a character for the hrothel ; a character for the church, and a character for the street ; a character when drunk, and a character when sober. Where the killing took place in a brothel, it was therefore compe- tent to ask a witness, "whether he was acquainted with the general character of the deceased for violence in the place where the difficulty oc- curred" and "what was the character of the deceased for violence at that particular place." [See Fahnestock's case, in note c, infra.'\ 4. The general rule, that all the circumstances of a transaction may be submitted to the jury, pro\'ided they afford any fair presumption or infer- ence as to the matter in issue, reaflRrmed in this case ; and it is said that if this rule were carried out in good faitli, it would produce the most benefi- cial results. [Aco. Pridgen's case, ante, p. 416 ; and see Myers' case, ante, p. 432, and note ; Monroe's case, ante, p. 442, and note.] 5. Therefore, recent threats, made by tlie deceased against the prisoner, but not communicated to the prisoner, are admissible for the purpose of showing the quo animo with which the deceased went to the place of the fatal encounter. [See the cases cited to this point in the syllabus of Sloan's case, ante, p. 516.] 6. The true distinction, as to the admissibility of evidence of threats, is this ; "When sought to be introduced bj^ the defendant as a justification of the homicide, and without any overt act, he must show that the}' have been communicated; but when offered to prove a substantive fact, namely, the state.of feeling entertained by the deceased towards the accused, it is com- petent testimony, whether a knowledge of it be brought home to the de- fendant or not. [See Scoggins' case, post, where the distinction is drawn.] 7. The remoteness or nearness of time, as to threats and declarations, pointing to the act subsequently committed, makes no diiference as to the competency of the testimony. [Citing 3 Strobhart's L. R., 517, note. Contra, Jaelison's case, ante, note, p. 520 ; Hays' case, ante, p. 492 ; Sloan's case, ante, p. 516.] 8. Where there is any evidence tending to raise a doubt whether the IviU- ing was in self-defence or of malice, it is the riglit of the jirisoner to have .all the law relating to self-defence and applicable to his case, given in the ■charge to the jury. [Ace. Burke's case, ante, p. 126 ; Benham's case, ante, p. 123. See Scott's case, ante, p. 163, and note ; Little's case, ante, p. 487, last point.] 9. Hence, under the facts of this case, it was held clearly erroneous for the Judge, after giving in charge the 15th section of the 4th division of the Penal Code of Georgia, to refuse to give in charge the 12th and 13th sec- tions. 10. The fact that the jury are not permitted to talce the Code into their consultation room, and that they know nothing of the law except, such parts of it as are given them in charge by the Court, is strongly suggestive of the propriety of withholding no law from them which they are entitled to consider. [As to juries taking books of the law to their consultation room, see Selfridge's case, ante, p. 24 ; State v. Patterson, 12 Am. Law Keg., N. S., 647.] STATEMENT OF THE CASE. 541 11. The province of th^ jury cnminal case^, to resolve, by their ver- dict, questions of law as well as of fact, discussed and upheld ; and it is said, that, in order that tliey may truly decide the law, they are entitled to the assistance of the Court. 12. If the prisoner, at the time of the IcUling', was under the fears of a reasonable man, that the deceased was manifestly intending to commit a personal injury upon him, amounting to felony, the IsiUing was justifiable liomicide. [Ace. Sloan's case, ante, p. 517, 6th res., and cases there cited.] 13. If the prisoner was under similar fears of some act of violence and injury less than a felony, his offence was manslaughter. [See Grainger's case, ante, p. 238, and note.] Henry C. Keener, was placed upon trial for the mur- der of James Reese. The testimony, so far as it is material to state it, and so far as it is not disclosed in the opinion of the Court, showed that the killing took place at a house of ill-fame, kept by a woman named Yarborough, on Mcintosh street, in the city of Augusta. The prisoner and deceased were there between ten and eleven o'clock at night. The prisoner was in the room of one of the inmates, undressed. . The deceased went to the window of the room where the prisoner was, with an open knife in his hand, made a noise at the window and demanded entrance. The prisoner replied, " You come in here, God damn you." The deceased responded, " You open, and I will come in." The deceased was then persuaded to go into the parlor. About ten minutes after. Keener came out upon the piazza, and said, " Here I am." A witness endeavored to persuade him to go off and not have any fuss. The prisoner said he would not ; that he had been run off several times ; had been woke up out of his bed time and again, and did not intend to be run off any more. The deceased then came out of the parlor, within ten feet of the defendant, and said, " You are afraid to point your pistol, you pusillanimous son of a bitch." , The defend- ant replied, " What was that you said ? " or dared the deceased to repeat the words again, at which the de- ceased repeated the words ; when the defendant raised a pistol in his right hand, fired at the deceased, and then 543 KEESTER V. THE STATE. ran. The testimony, which, in the original report is set ont in full, shows that the prisoner and deceased had both been in the habit of freqiienting the house where the killing took place; that they were rivals for the favor of the keeper of the brothel ; that the deceased had been in the habit of running the prisoner away from the house ; and the evidence makes it clear that he went there with a like purpose on the fatal night, and that the prisoner went there armed, with the expectation of a difficulty with the d-eceased. The deceased was sitting down when the shot was fired. One witness testified, that the deceased asked some one for a pistol, while he and the defendant were upon the piazza, im- mediately before the firing. The shot took effect in the abdomen of the defendant, and he died in an hour after- wards. On cross-examination of the State's witness, Grood- wyn, counsel for defendant, propounded the question, " Whether the tone of voice, with the language and manner of deceased, at the time he walked through the piazza to the room in which the defendant was, were not such as caused him to expect or look for a difficulty?" The Court refused to allow the question to be asked, objection having been made by counsel for the State, the Court holding that the witness could not give his opinion, but could only state the facts, which was suffi- ciently done by saying that the language was harsh and excited his attention. To which ruling, counsel for prisoner excepted. Counsel for prisoner having asked the witness, Prater, " Whether he was acquainted with the general character of deceased for violence, in the place where the difficulty occurred?" objection was made by the counsel for the State. The Court, thereupon, refused to allow the ques- tion to be asked ; to which ruling, counsel for prisoner excepted. And the further question having been asked, "What was the character of deceased for violence in that particular place?" and objection thereto having been made by counsel for the State, the Court refused to OPINIONS OF WITNESSES. 543 allow tlie question to be asked ; to which ruling, counsel for prisoner excepted. A verdict of guilty was rendered. Whereupon, counsel for prisoner, moved the Court for a new trial, upon grounds which are stated in the opinion. Lumpkin, J., delivered the opinion of the Court : * 'A * -» * ■!■;■ * * * As to the third ground: A witness, Goodwyn, intro- duced by the State, upon cross-examination, was asked, " Whether the tone of voice, with the language and man- ner of the deceased at the time he walked through the piazza to the room in which the defendant was, was not such as to cause him to expect or look for a difficulty ? " This question was not allowed to be put, but the witness was permitted to testify what the tone of voice, language and manner of Reese, at the time, were, which he did. We regret that this question was not suffered to be propounded, because of its entire immateriality. Every body at the house where this homicide was committed that night, expected a difficulty, as a matter of course. There could have been but one answer to the interroga- tory, and that would not have weighed a feather with the jury; and yet, hours perhaps, have been consumed, first and last, in discussing the rule of evidence applica- ble to the facts contained in the record. We subjoin the reasons given by the Judge, for rejecting this testi- mony, in his own language : "This question was not allowed to be asked, because the answer would not be as to a fact, but the expectation of a witness, arising out of a series of facts, either then in evidence, or capable of being put in evidence. Now, the expectation of the witness was nothing more than the deduction or conclusion of the mind of the witness, as to the effect which these facts produced on his mind, and inferentially, would be likely to produce on the mind of Keener. " It is not for a witness to draw such conclusions ; that belongs to the jury. This is the general rule of law — to 544 KEENEB V. THE STATE. which, however, there are exceptions ; as in questions of sanity or insanity, art or science, and others of a like nature, in which the opinion of a witness, founded on facts too multitudinous and minute to be presented to the minds of jurors, or of a skill, the witness' own, is ad- mitted. There is another class of exceptions, founded chiefly on defect of memory, in which the witness may give his belief; such as questions of personal identity, handwriting, &c., and others in which he may state Ms impressions or understanding. Such were the cases of Moody and wife v. Davis, 10 Ga., 403, and Fielding and others against Collier, 13 Ga., 495. But the Court does not find the case before it to be within any of the exceptions. The question asked the witness was, as to what he expected from the conduct of Reese — which con- duct was intended to be proved by the impression it made on his mind ; or, as expressed by one of the coun- sel, a daguerreotype likeness of his conduct, as reflected from the mind of the witness, was wanted. It was cer- tainly important to ascertain what was the conduct of Reese on that occasion, even to the minutest action. But the mirror from which it was sought to have it reflected, may not have been true. There may have been the seams of credulousness, timorousness, passion or preju- dice to disturb the likeness ; and which may have been very different from that which would have been made on the mind of the jury by a simple statement of facts." Our brother, we believe, has stated with accuracy the rule as laid down in the books. 1 Greenl. Ev., § 440. And yet, the writer from which it is taken, cites with approbation the case of McKee v. Nelson, 4 Cowen, 355, in which it was held, that in an action for breach of prom- ise to marry, a person accustomed to observe the mutual deportment of the parties, may give in evidence Ids opinion upon the question, wliether they were attached to each other ; and that, too, without it being made to appear that the witness was an expert in affairs of the heart. The Court admit the general rule as stated by Judge OPINIONS OF WITNESSES. 545 Holt, namely : that witnesses are not allowed to give their opinions to a jury, but suggest, that there are a thousand nameless things, indicating the existence and degree of the tender passion, which language cannot specify, and which cannot he detailed to a jury. Why, we would ask, may not the various facts which manifest the existence of attachment, be as capable of specifica- tion as any other matter whatever ? Why may not the existence of love, as well as revenge, being both of them elementary principles of human nature, be proven by external signs and the multiplied exhibitions of its en- ergy ? There is no radical difference ; and the rule of evidence should be the same, as applicable to both of these master passions. If it be allowable to ask, as in the case of McKee and Nelson, whether, in the opinion of the witness, the parties were not attached to each other, it would seem to justify the enquiry, whether the circumstances which surrounded the accused, were not sufficient to excite the fears of a reasonable man. The defendant, however, is required to act upon his own judg- ment, and not that of another, and is responsible to the law for the soundness of his conclusion. And, foresee- ing, as we do, the indefinite multiplication of collateral issiTes to which any other doctrine would lead, we affirm the judgment of the Court below upon this ground." "A similar question arose in a subsequent case in Georgia. It was assigned as error, that the Court refused to allow the defendant's counsel to enquire of witnesses who were present at the kUling, whether, from the conduct, coun- tenance and language of the deceased, immediately preceding the hom- icide, they believed the deceased intended to kill the accused. Upon this point, Lumpkin, J., speaking for the Court, said: "Was the Court right in refusing to allow the witnesses to testify as to their belief as to what was the purpose and intention of Scott ? In Hudgins v. The State, 2 Kelly, 173, [ante, p. 470,] this Court held that the opinion of a witness as to the intention of the deceased in approaching the slayer is not admissible. The same rule is laid down in the casp' of the State v. Scott, 4 Ired., 409, [ante, p. 169.] The Court say, ' the belief that a person designs to kill me will not prevent my killing him from being murder, unless he is making some attempt to execute his design, or, at least, is in an apparent situation to do so ; and thereby reasonably induces me to think that he intends to do it immediately.' Here, there was certainly no such purpose in the mind of the deceased, as he had no weapon of any sort. Prisoner must have known that Scott was unarmed. The witnesses were not asked if they 546 KEENER V. THE STATE. The place where Keese was killed, was a brothel of notoriety in the city ; and counsel for prisoner proposed asking the witness, Prater, " whether he was acquainted with the general character of deceased, for violence in the place where tl|.e difficulty occurred?" and, "what was the character of deceased for violence in that partic- ular place?" Objection was made to each of these ques- tions by counsel for the State, and the Court refused to allow them to be asked. To which ruling, the prisoner, by his counsel, excepted. And this constitutes the fourth error assigned. No authority was read for or against this point, except the cases of Boswell v. Blackman,'' 12 Ga., 591, and that establishes this principle only : that where a witness is sought to be impeached, and is shown to have a general reputation for truth and veracity in the county of his residence, that that may be considered the neigliborJiood in which he lives, for the purpose of satisfying the de- thought that Scott inteniied to kill Hawkins at the time of the homicide. To such a question, there could have been but one answer." Hawkins v. The State, 25 Ga., 207, 210. "Boswellv. Blackman, 12Ga., 591. ]SriSBET,J.: * * * "The usual form, with us, of putting the question with a view to impeach- ing the credibility of a witness is, as the Coiu-t below held that it should be put, thus : 'Are you acquainted with the general character of A. B. for truth and veracity in the neighborhood where he resides ? ' The question proposed to be put and ruled out in this case, was this : ' Do you know the general character of A. B. for truth and veracity in the county of RusseU?' Disconnected with any other proven facts, I should hold that the last- named question would not do ; but, before putting it, the plaintiff in error had proven, by the impeaching witness, that they had known the witness, sought to be impeached, for the last eight or ten years in the county of Russell, Alabama ; that he was generally known, and had a general repu- tation in the county. These things behig true, the question propounded comes within all the reasons upon which the other question is held proper. The impeachment must be by persons acquainted with the witness ; and they ar(; called to speak of his general character for truth and veracity — not the world over, or in London or Paris or Columbus, but in that circk' where liis real character is best known, to-wit : in the neighborhood where he lives. Now, when a witness is generally known, and has a general rep- utation in a county, that county may be fairly considered his vicinage. It is fair to infer, under such circumstances, that his true character for truth is as well known in that county, as men's character for truth ordinarily is known in their neighborhood." CHAEAOTEB FOR VIOLENCE IIST PAETICULAE PLACE. 547 mands of the law. I took occasion, when delivering the opinion in this case, to state, that for myself, I was in- clined to hold, that the rejection of the questions, in the form in which they were put, was error ; but that in defer- ence to the opinion of my brother Starneh, as well as to that of the learned Judge, who presided at the trial, I was content to affirm the judgment, with this distinct ex- planation : That it was competent to give proof as to the general conduct of the deceased for violence at this place — especially toward Keener — the testimony show- ing that they had long been rivals for the favor of the keeper of the brothel. Upon examination, I am satisfied that the questions propounded to Prater, were in the proper form. Mr. Greenleaf, in treating of the rule as to the admis- sibility of evidence of general character, concludes thus : " But it seems that the character of the party, in regard to anj- particular trait, is not in issue, unless it he the trait cJiarged against him; and of this, it is only evi- dence of general reputation, which is to be admitted, and not positive evidence of general bad conduct" And the author quotes Swift's Evidence, and numerous cases, English and American, to sustain this proposition. 1 Greenl. Ev., §55, note. The particular trait involved in the issue here, was the character of Mr. Reese for vio- lence in this place, a circumstance relied on by Keener, in part, for his justification in committing the homicide. And it would seem that the character of the deceased for violence, was to be established by general reputation, rather than positive evidence of general bad conduct." " 111 establishing the character for violence, of the person slain, in trials for homicide, the rule as to the mode of proof seems to be the same as that which obtains in the impeachment of witnesses : that is to say, evidence of particular acts of bad conduct, unconnected with the case, will not be heard. Thus, in Dupree v. The State, post, it is held that proof that the deceased was a convict, escaped from the Gcoi'gia penitentiary, was inadmis.Hble. So, in Franklin's case, post, it is held that the fact that the deceased had attempted to shoot a woman, was not admissible for the pur- pose of showing his bad and dangerous character. So, in Robert Jackson's case, ante, p. 486, it was held proper to exclude evidence of particular acts of hostility by the deceased towards other parties. 548 KEENER V. THE STATE. Either mode of proof will be satisfactory to the de- fendant's counsel in the present case, provided we repu- diate the doctrine, as we distinctly do, that a man may not have different general characters, adapted to differ- ent circumstances and localities ; that is, a character for rail cars, and a character for the brothel ; a character for the church, and one for the street; a character when And the same ruling was made in People v. Henderson, 28 Cal., 469, witli reference to the threatening and violent conduct of the deceased towards other persons, at a public meeting on the night of the killing, the defend- ant being present, but it not appearing that he knew of the same ; as well as of similar conduct towards others ten days before. And the same ques- tion is ruled in the same way in Duprec's case, post, with reference to violent conduct of the deceased towards a hireling of the defendant sev- eral weeks before the kiUiiig. And see Rector's case, ^os<. In Fahnestock v. The State, 23 Ind., 231, 237, the question was presented' in a manner much resembling the manner in which it is presented in the principal case. The facts and conclusions of the Court will appear in the following extract from the opinion of the Court, delivered by Elliott, J.: "During the progress of the trial, James Chizum was introduced and sworn as a witness on the part of the defendant, and diu'ing his examina- tion, testified with reference to a particular act of violence by the deceased, when intoxicated. The' defendant's counsel then asked the mtness this question : ' Do you know the general character of the deceased when he was intoxicated, from the reports of his neighbors ? ' Tlie Court refused ta permit tlie question to be answered, which refusal is assigned as error. The object of the question is very obscure, if at all perceptible. The general character of the deceased, whether sober or drunk, would seem to have little, if anything, to do with the defendant's guilt. If the deceased was in the habit of becoming intoxicated, and when in that condition was quarrelsome and violent, and that fact was known to the defendant; and, if it is further claimed that deceased wfis intoxicated at the time the defend- ant met him in the saloon, a short time before his death, and that the defendant's conduct on that occasion is claimed to have been influenced by a knowledge of the alleged violent habits of the deceased when intoxicated, the question of such habits or disposition would seem to be one of fact rather than of general character. The Court did permit proof of the temper and disposition of the deceased, and of particular acts of violence when he was intoxicated ; but if evidence of the general cliaracter of tlie deceased A\hen intoxicated, as to his being quarrelsome and viplent, were permissible in such a case, still the question propounded to the witness was correctly overruled. General character is the opinion, estimate or knowl- edge of those residing in the neighborhood generally ; but the question here propounded does not ask the witness if he has a personal knowledge of what that character is, as derived from the general opinion of the neighbor- hood, but if he knows the character from reports of his neighbors. Besides the question was not directed to any particular point of cliaracter, about which it could be at all niaterial that the jury should be informed.'' CHAEACTEE OF DECEASED — QUESENBEEBT'S CASE. 549 drunk, and a character when sober. Instead of a doc- trine like this being too loose for judicial investigation, we hold that it is in accordance with the soundest ele- mentary principles. In all cases, where evidence is ad- mitted, touching the general character of the party, it ought, manifestly, say the authorities, to bear reference to the nature of the" charge against him. A schoolmaster is indicted for an assault and battery upon one of his pupils ; he defends himself under his acknowledged right to inflict moderate correction. The charge puts in issue the character of the teacher for vio- lence ; and where, pray, would you go to ascertain that character ? among lils fellow-men or in the school-room ? There can be but one response to this question. An officer in the army or navy is tried for cruelty to a sol- dier or sailor ; what has his reputation in the commu- nity, generally, to do with the trait of character involved in the issue ? It is in the barracks, or on board the man-of war, that we look for what we wish to learn. There are thousands of men in this country, mild as a May-m®rning when sober, but demoniacs when drunk ; have not such two distinct characters ? Their moral identity is com- pletely lost — their individuality metamorphosed under the maddening effects of alcohol. Philip drunk and Philip sober, were altogether different persons. As a con- ductor, Mr. Reese was uniformly gentlemanly ; at the brothel, he was menacing, tui-bulent, rash, reckless and j-aging. The case of Quesenberry v. the State, 3 Stewart & Por- ter, 308, although not strictly applicable to the precise point which we have been considering, is, nevertheless, so pertinent to the case, that I am induced to make the following quotation trom the opinion of the Court, as de- livered by Chief Justice Lipscomb : ** * * * * d Hero the learned judge quoted at length from Quesenberry 's case. We omit the quotation from the text, and give in full that part of the opinion 'Which relates to the admissibility of evidence of the character of the deceased for violence. It is as follows : Lipscomb, Ch. J.: » * * •" The second point reserved for the opinion of this Court is, on the ad- 550 KEENER V. THE STATE. The next error complained of is, that the Court withdrew and excluded from the jury, all the testi- mony of James Cosby. This witness testified that on Friday night, before the death of Reese, which was on Sunday evening, he met Reese at the United States missibility of the testimony offered by the ijrisoiier, and rejected by the Court. " The circumstances under which this testimony was offered, are not shown, by the record, with sufficient clearness, and distinctness, to enable this Court to determine, whether it ought to have been admitteO. or not. That the good or bad character of the deceased, as an abstract proposition, can have no influence on the guilt of the accused, is too clear to admit of controversy. To murder tlie vilest and most profligate of the human race, is as much a crime, as if he had been the best, the most virtuous, and the greatest benefactor of manlvind. But, there can be no doubt, but that when the killing has been under such circumstances, as to create a doubt as to the character of the offence committed, that the general character of the accused, may sometimes aflord a clue, by which the devious ways, by which human action is influenced, may be thueaded, and the trutli attained. It is an acknowledged principle, that, if at the time the deadly blow was inflicted, the person who so inflicts, has well founded i-easons to believehimself in imminent peril, without having by his fault, produced the exigency, that such killing will not be murder. "If the deceased was known to be quick, and deadly, in his revenge of imagined insults — that he was ready to raise a deadly weapon, on every slight provocation ; or, in the language of the counsel, his 'garments were stained with many murders ' — when the slayer had been menaced by such a one, he would find some excuse, in one of the strongest impidses of our nature, in anticipating the purposes of his antagonist. The language of the law, in such a case, would be, obey that impvdso to self-preservation, even at the hazard of the life of your adversary. "It the killing took place, under circumstances that could afford the slayer no reasonable grounds, to believe himself in peril, he could derive no advantage, from the general character of the deceased, for turbulence and revenge. But, if the circumstances of Ihe killing were such, as to leave any doubt whether he had not been more actuated by the principle of self-preservation, than that of malice, it wovdd be proper to admit any testimony, calculated to illustrate to the jury, the motive by which he had been actuated. " To this course we can see no good objection ; and, it seems pretty cer- tain, that it would often shelter the innocent from the influence of that sound, but not unfrequently severe, maxim of law, that, when the killing has been proven, malice ■will be presumed, unless explained or rebutted. There can be but little danger of the guilty escaping, under the influence of a prejudice, created by such testimony, against the deceased. The dis- cretion of the judge will be able to control and prevent such a result. And [jurors vpill be able to comprehend the reason and object of such testir mony. TJNCOMMUNICATED THREATS. 551 Hotel, who remarked to witness that he had not seen him on Mcintosh street* for a good while. Coslpy replied that he had not been there for about ten months. Reese then said, that he, himself, did not go there as frequently as he used to do ; that Keener had taken his woman from him ; and he said that Keener was a damned coward, and that he had made him leave there two or three times ; and that if Keener crossed his path, he would kill him. He added, he was going out there before long, and would kick up hell. Nothing more was said. The testimony of Cosby was rejected, mainly, on the ground that the threats which it proves, were made in a private conversation between Reese and witness, which was never communicated to Keener, Without stopping to enquire whether the facts related by the witness, apart from the threats, were not admissi- ble, we prefer to confront the question directly ; and to consider whether or not the evidence of Cosby, taken as a whole, should not have been received? Keener is indicted for killing Reese; his defence is, that Reese manifestly intended, by surprise or violence, to take his life, or do him some bodily hurt; that the circumstances were such as to excite the fears of a reasonable man ; and that he acted under the influence of those fears, and not in the spirit of revenge. The proof is, that two nights before the tragedy occurred, Reese entertained the most deadly hostility towards Keener. Jealousy, another name for insanity, of the most malignant character, had taken possession of his bosom, and was shaking the throne of his reason to its very foundation. Keener liad taken his woman from Mm; and if the damned coward ever crossed his path, " As I before remarked, it does not appear, from the record, with suffi- cient clearness, under what circumstances this testimony was rejected, to authorize us to say that it was improperly rejected. We do not know that the views we have expressed were departed from, and we would hesitate to reverse the judgment on this ground. But, the judgment must be reversed on the first point reserved for our consideration ; and remanded foi; a new trial. And this is the opinion of the Court." • lieferring to the brothel where the killing took place. 553 KEENER V. THE STATE. ae would kill him; he was going out on Mcintosh street, before long, and would kick up hell there. Prophetic words ! He sowed to the wind, and reaped the whirlwind. What a terrible lesson! Well might the wise man say of the house of the strange woman— ''i?ie dead are there!" Ought not this conversation, whether communicated to Keener or not, to have been admitted as a substantive fact, to show the malus animus, or evil intent toward Keener, with which Reese went to that house that night ? Laying aside all technical rules and reasoning, we ask, with the knowledge of the mind and feelings of the deceased disclosed by this witness, would we not, and ought not the jury to listen more indulgently to the alleged apprehension of injury on the part of Keener; as well as to the facts and circumstances upon which he relies to justify his conduct? Do not these previous threats throw light upon Reese's conduct up to the time of the killing? Do they not serve to illustrate the transaction ? It is stated by Mr. Starkie, 1 Treatise on Ev., p. 39 ; Mr. Roscoe, Ev., pp. 74 et seq., and all the writers on evidence, that the general rule is, that all circumstances of a transaction may be submitted to the jury, provided they afford any fair presumption or inference as to the matter in issue. This proposition is exceedingly broad ; and, if carried out in good faith, would produce the most beneficial results. Accordingly, in Richardson v. Royalton and Woodstock Turnpike Co., 6 Vt., 496, and Davis V. Calvert, 5 Grill & Johnson, 269, it was held, that all facts upon which any reasonable presumption or inference can be founded, as to the truth or falsity of the issue, are admissible in evidence. In addition to the precedents quoted by Mr. Roscoe, to sustain the general rule of evidence above stated, we beg leave to refer to a few cases in illustration of the rule. The case from Vermont was this : An action was brought by the plaintiff for damages, occasioned on HOMICIDE — UNCOMMUWIOATED THREATS. 553 jiccount of the insufficiency of defendants' bridge; so that, in passing with a drove of cattle, some eighteen or twenty were precipitated into the river, and seven of these were so much bruised and wounded, as to make it necessary to kill them. It was shown that the reach of the bridge which fell in, had been erected about three years before the accident happened. The plaintiffs further offered to prove, that in 1831, the defendants built the two northern reaches of the said bridge anew, ■as the old ones had stood about nine years, and that the new reaches thus erected were stronger than the reach which fell in with the cattle. To the admission of this evidence, the counsel of defendants objected. But the objection was overruled and the evidence admitted, as having a tendency to show that the defendants con- sidered that the augmentation of business, and the necessities of the community, required a stronger bridge than the one first erected. The Court admit that the testimony is not very important, but that in modern practice the evidence that is admitted to go to the jury, is more natural, and not governed by rules so artificial as formerly. " Under the rule, then," says the Judge, referring to that taken from Starkie, " did the evidence afford any reasonable inference that the southern reach of the bridge, which broke, was insufficient, because, in 1831, the defendants built the two northern reaches stronger than the reach that did break ? Does it tend L< . confirm the plaintiff's testimony, or weaken or con- tradict the defendants' ? " In Cadwell v. The State of Connecticut, 17 Conn., 467, it was decided that where an information for keeping a house of ill-fame, charged the offence as having been committed after the Statute prohibiting it went into operation, and evidence was offered to prove that the house was reputed to be of ill-fame previous to that time, that such evidence was admissible, as conducing to prove that it sustained the same reputation after- wards. The State v. Goodrich, 19 Vermt., 4 "Washburn, 116, is. 654 KEENER V. THE STATE. almost identical with, the case under discussion. Good- rich was indicted for discharging a gun at one Green, and wounding him 5 and the person injured was a witness on the trial; and it appeared that the affray took place on the premises of the defendant. Goodrich insisted that the assault and battery, if committed by him, was in defence of his person or property, and offered evidence to prove that there had, at previous times, been fights between Green and himself ; and that his house had been attacked, and his property, by a company of which Green was one ; and that Green had frequently threatened violence upon his person. The Court decided that it was not competent, as a defence to this prosecution, to enquire into the previous affrays and contentions between the parties, or to prove a previous threat by Green, that he wanted to get some powder for the purpose of blowing up the house of the defendant. Redeibld, Justice, in delivering the opinion of the Supreme Court, stated the question to be, whether Green made the first assault, or whether Goodrich acted in self-defence. And, after stating that it is not always- easy to deteimine what is collateral to the main issue,, the Judge proceeds : [Here the learned Judge quoted at length from Good- rich's case. See the case in full, ante, last case.] The true distinction, we apprehend, as to the admissi- bility of evidence of threats, and one apparently over- looked in many of the cases, is this : when sought to be introduced by the defendant as a justification of the homicide, and without any overt act, he must show that they have been communicated; otherwise, they can . furnish no excuse for his conduct ; but when offered to prove a substantive fact, namely : the state of feeling entertained by the deceased toward the accused, it is competent testimony, whether a knowledge of the threats be brought home to the defendant or not. I will merely add, that the remoteness or nearness of time, as to threats and declarations, pointing to the act subsequently committed, makes no difference as to the. REMOTENESS OF THREATS — EOED'S CASE. 555 competency of the testimony. 3 Strob., 517, note.*" Upon the authority of the note, then, as laid down by Mr. Starkie and others, and as illustrated by numerous adjudicated cases, we are clear that the testimony of Cosby should have been admitted, as it condaced to prove, in connection with other evidence, the quo animo with which Reese resorted to the brothel on Mcintosh street that night; and that his manner and conduct correspond with that purpose, so as to warrant Keener in believing that the same scenes were to be repeated there that night, which had been re-enacted several times before, and that no alternative would be left but to retreat again, as he had done before, twice or three times, or take the consequences. In view, then, of the freq-uent failure of justice from the failure of evidence, and thoroughly codvinced, as we are, that no competent means of ascertaining the ' The case here referred to— The State v. Ford, 3 Strobhart's South Carolina Law Reports, 517, note — was an indictment for stealing slaves. The defendant was convicted, and appealed. He assigned as error {inter alia) that the Court had permitted the solicitor for the State to ask David Anderson, if, at any time, the prisoner had proposed to embark in a scheme of villainy like the present ; and that the witness was permitted to answer that two years ago the prisoner was drinking and made some impertinent observations to him ; commended witness' smartness, and told him if he would come over and join the lodge at his house, he would make a smart man of him ; and that, to James Anderson, the prisoner said tliere was an easier way of making money than by work. It is to be observed that the only direct evidence in the case was the testimony of a single accomplice ; and this and other testimony was introduced to show circumstances of corroboration. The evidence was held on general grounds, competent. " Remoteness of time," said O'Neal, J., speaking for the Court of Ap- peals, " cannot render the evidence incompetent. For years may roll over a felon's head while he is arranging his schemes, or while the guilty thought conceived in his mind is ripening into the deliberate purpose with which a crime is committed. A great lapse of lime may show that the probability is, that it could not be connected with the crime. This would, however, be always a consideration for the jury in giving eiTect to the tes- timony." It is seen that it is only by reason of its analogy, and that not very direct, that Ford's case can be quoted as illustrating the doctrine of threats in trials for homicide. As to the remoteness of the threats in point of time, see Sloan's case, an'e, p. 516, and cases there cited. 556 KEENEE V. THE STATE. truth ought to be neglected, we think the testimony of James Cosby was improperly ruled out. It was per- tinent to the issue, and ought to have been submitted to the jury. It showed the intent with which Reese re- sorted to this brothel ; and, also, his feelings towards the defendant.^ The conclusion of the principal case on the subject of uncommuni- oated threats, in trials for homicide, seems not to have been followed in subsequent oases in Georgia. In Lingo v. The State, 29 Ga., 470, 483, such evidence was excluded, and in the Supreme Court, Stephens, J., delivering the opinion, said: " We think that the evidence of Mrs. Duncan, respecting what her husband, the deceased, had said to her in the way of previous threats against the prisoner, was properly rejected, for two reasons. In the first place, it was inapplicable to the case. There was no single act in the whole drama of the killing, that could have been illustrated or modified by it. It was not proposed to show that these threats had been made known to Lingo. That would be a different case. How far these threats would have justified or palliated his act, if he had acted on a knowledge of them, is one question; but it is a very different one, where he knew nothing of them, and where the circumstances of the killing were such as to make it imma- terial, whether Duncan had made threats or not. Threats or no threats, he had a right to defend himself, and that was all he did. In the second place, this evidence was [sought] to be drawn from an illegal source, the wife, who was such wlien the declarations were made to her. The husband was dead, and so, it is true, that the relation had ceased when the declaration was offered ; but communications between husband and wife are protected forever." It is to be observed that this was, beyond question, a case where the ac- cused brought about the combat for the purpose of killing the deceased, and the deceased did no more than act in his necessary defence. In the subsequent case of Hoye v. The State, 39 Ga., 718, 722, the same •Court, Brown, Ch. J., said : " The new trial was also asked in this case, on the ground of newly discovered evidence of Edwards, who swears tliat deceased told him the day before the killing, that if Hoye, the prisoner, did not pay him some money which he owed him, he intended to kill him. It Is not pretended that this threat was communicated to Hoye before the fatal shot was fired. It could not, therefore, have influenced his conduct, find is not admissible evidence in justification of the killing. We are aware that such evidence was admitted in Keener's case, 18 Ga., 194, not by way of justification, but merely to show the state of mind or feelhig on the part of the deceased. But that ruling does not seem to have been followed in subsequent decisions. See 25 Ga., 207, [Hawkins' case, ante, p. 523], and 29 Ga., 470, [Lingo's case, supra]. While we do not overrule that decision, we hold that it is not applicable to this case. We do not see what the state of mind of the deceased had to do with the case, as the deceased was smarmed and made no effort to hurt the prisoner, further than to make threats, and put his hand in his bosom, where he had no weapon. We are. ESrSTRUCTIONS TO THE JURY. 557 We propose to consider and dispose of the 6tli, 7th, 8th and 9th assignments of error together. They present for our review, the main question in this case ; all the rest are, comparatively, of minor importance. In his charge to the jury, the Court, in the language of the bill of exceptions, " failed, omitted and declined, although requested by the counsel for the prisoner so to do, to read to the jury or comment upon the 12th and 13th sections of the 4th division of the Penal Code, upon which counsel for "prisoner had mainly relied for his defence. The Court having read the 1st, 2d, 3d, 4th, 6th and 7th sections, then charged the jury, that the section of the Penal Code, applicable to the- grounds on which the defence had been placed, was as follows : reading the 15th section ; to which failure, omission and refusal to charge, and to the charge as given, counsel for pris- oner excepted." The Court was also requested by counsel for pris- oner, to charge the jury as follows : 1st. " That, if they believed, from the evidence, that the prisoner at the time of the commission of the act, was under the fears of a reasonable man, that the de- ceased was manifestly intending to commit a personal injury upon him, amounting to felony, the killing was justifiable homicide. 2d. " That, if they believed, from the evidence, that the prisoner was under similar fears of some act of violence and injury, less than a felony, his offence was man- slaughter, and not murder. Which charge, so requested, the Court failed and re- fused to give ; to which failure and refusal, counsel for prisoner excepted. It is also assigned as error, that the Court failed and therefore, of the opinion that the evidence of previous threats, not commu- nicated to tlie prisoner before the kilUng, would not have been admissible, and that the Court did not err in refusing a naw trial on this ground." It is seen by examining these two cases, and that of Hawliins, ante, p. 522, that while they do not overrule the principal case, they hold that the facts proved arc not appropriate for the application of the rule as to uncom- municated threats therein laid down. 558 KEENER V. THE STATE. omitted to read to the jury and comment upon the 9th, 10th and 11th, as well as the 12th and 13th sections of the 4th division of the Penal Code, although requested by counsel to do so. I would remark that, by reference to the bill of excep- tions, I do not find that any request was made of the Court to give in charge and expound to the jury, the 9th, 10th and 11th sections of the 4th division of the Code. These three sections relate exclusively to involuntary manslaughter ; and there is not a particle of proof to make this killing that offence. It was murder, voluntary manslaughter, or justifiable homicide. The Court was right, therefore, in pretermitting that portion of the Code which defines, with its subdivisions, involuntary man- slaughter, and annexes a penalty for each grade of the offence. Counsel for prisoner do not pretend that this law is applicable to his case. To give it in charge to the jury, then, would be to distract and burden their minds unnecessarily and improperly. Whether or not there was error in the remainder of these assignments, de- pends upon the fact of whether there, was any evidence upon which the jury might have mitigated the offence from murder to a lower grade of homicide. We go one step further : If the circumstances of the killing were such as to leave any doubt whether Keener had not been actuated by the principle of self-preservation, rather than that of malice, we shall be constrained to remand this cause for a new trial. For the question whether Keener killed Reese to prevent Reese from killing or do- ing him some great bodily harm, has not, in the opinion of this Court, been fully submitted to the jury. A part of the law only, applicable to the defence, was given ; and, where a man's life is at stake, it is fit and proper to allow him the benefit of every provision of the Code. In every charge of crime, there must be a question of law and a question of fact. Is there any such rule of law as that on which the indictment is founded ? Has the defendant violated that rule ^ The decision of both of these is necessarily involved in the general verdict of JURY JUDGES OF LAW AND FACTS. 559 " guilty," or "not guilty" — the only form of verdict al- lowed by our Code. The former finding affirms both the existence of the law, and its violation by the accused ; the latter, either that there is no such law, pr that it has not been transgressed. It is the duty of the judge to declare to the jury what the law is, with its exceptions and qualifications ; and then to state, hypothetically, that if certain facts, which constitute the offence, are proved to their satisfaction, they will find the defendant guilty; otherwise, they will acquit him. In this State — in all free governments — in tenderness to the accused, great latitude has been allowed to coun- sel in stating and enforcing their views of the law in criminal cases. And a liberal confidence has been re- posed in those who are called to defend the liberty and life of the citizen in the hour of trial. And where coun-- sel, in their place, under their professional obligations to the court and the country, insist that certain portions of the law apply to the facts of their client's case, especi- ally where it is capital, it would be better to read the law to the jury, with such comments and explanations as the court, possessing the superintending power, might feel it to be its dutj^ to give. The theory of our system is, that the jury have not only the power, but the right to pass upon the law as well as the facts, in rendering their verdict ; and yet, this anomaly stares us iu the face, that they are not permit- ted to take even the Code to their consultation room.'' They know nothing of the law except so much and such parts of it as are given them in charge by the coui't. This fact alone is strongly suggestive of the propriety of withholding no law from them, which they are entitled to • consider. Suppose, as in the present case, it were doubt- ful whether this offence, as proven by the witnesses, •came under the 12th or 13th sections of the 4th division of the Penal Code, as contended for by ihe defendant's "See state v. Patterson, 12 Am. L. Reg., N. S. 647 ; Sargent v. Roberts, 1 Pick., 337 ; Taylor v. Betsford, 13 Johns., 487 ; Burrows t. Unwiu, 3 Car. & Pay., 310 ; Merrill v. Nary, 10 Allen, 410. 560 KEENER V. THE STATE. counsel, or under the 15tli section, according to the opin- ion of the presiding judge, should not hoth have been submitted? In Case's English Liberties, or The Freeborn Sub- ject's Inheritance, 201-2, it is said, "The office and power of juries, in criminal cases, is judicial; from their verdict, there lies no appeal; by finding guilty or not guilty, they do completely resolve both law and fact." And that in a criminal trial, the jury may deter- mine the law and the fact of the case, has been sup- ported by every English Judge, except Chief Justice Jepeeeys, in the case of Col. Sidney, 3 Hargrave's State Trials, 805. And to their credit be it spoken, that the juries have always been right on fundamental questions of liberty and popular right. 1 Chandler's Crim. Trials, 143, 149, 153, 269, 288 ; Zenger's case, 17 Howell's State Trials, 675, 724. But how can they judge of law which is not before them ? There is no alternative ; either the courts must refer to the jury the whole law of the case, or the sup- posed distinction between the power of j uries in civil and criminal cases should be abolished. With these preliminary remarks, we proceed to ex- amine the 12th, 13th and 15th sections of the 4th division of the Penal Code. By the 12th section, it is enacted, that, " there being no rational distinction between excusable and justifiable homicide, it shall no longer exist. Justifiable homicide is the killing of a human being by commandment of the law, in execution of public justice ; by permission of the law, in advancement of public j ustice ; in self-defence, or in defence of habitation, property or person, against one who mailifestly intends or endeavors, by violence or sur- prise, to commit a felony on either; or against any persons who manifestly intend and endeavor, in a riotous or tumultuous manner, to enter the habitation of another, for the purpose of assaulting or offering personal vio- lence to any person dwelling or being therein." Cobb's Digest, Ga. Stat., 784. JUSTIFIABLE HOMICIDE — GEORGIA STATUTE. 561 Section 13th declares, "that a bare fear of any of those offences, to prevent which, the homicide is alleged to have been committed, shall not be suflacient to jus- tify the killing ; it must appear that the circumstances were sufficient to excite the fears of a reasonable man ; and that the party killing really acted under the influ- ence of those fears, and not in the spirit of revenge." Ibid. Section 15th provides, that "if a person kill another in his defence, it must appear that the danger was so urgent and pressing at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary ; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith, endeavored to decline any further stmggle, before the mortal blow was given." Ibid, p. 785. It is clear that there is no conflict between these different sections. The last two sections may be con- strued,perhaps, to be qualifications of the first. The right of self-defence is given by the 12th section, against one who manifestly intends to commit a felony, by vio- lence or surprise, on the person or property of another. Section 13th limits this right, by requiring that the circumstances, to justify the killing, must be sufficient to excite the fears of a reasonable man ; and that the party killing, really acted under the infiuence of these fears, and not in the spirit of revenge ; and the 15th section still further restricts the right, by providing that the danger should be so urgent and pressing, at the time of the killing, that, in order to save his own life the kill- ing of the other was absolutely necessary, Either this is the true exposition of the three sec- tions taken together, and they should not, therefore, be separated ; or else the 15th section applies to a different class of cases than the one contemplated in the 12th; and we are not prepared to say that the latter would not be the sounder interpretation. Was there any evidence, then, which entitled the de- 563 KEENER V. THE STATE. fendant to have the 12th and 13th sections given in charge by the Court to the jury ? It is in proof, that Reese went to the house of Yar- borough, the night on which he was killed, with his bosom boiling with hate toward Keener, and breathing forth threats of revenge, should he encounter him. He finds him in the bed-room of the miserable mistress of the brothel; he kicked fuiiously at the door; he jobbed at the window with his knife, the blade of which was six inches long; he called out to Jane Yarborough, "Show up your Keener, I want to cut his damned throat." Keener dresses, and comes out upon the piazza, armed with a cane and pistol ; Reese walked out on the piazza and asked for a pistol ; he then seated himself on a bench, with folded arms. Reese called Keener "a damned, cowardly, pusillanimous son of a bitch " ; Keener asked him to repeat it ; he did so ; daring Keener to point his pistol at him, making at the same time, a motion with his arm ; Keener fired, and Reese fell ; he was shot in the abdomen ; and from the direction of the balls, Reese must have been in a rising attitude, or sitting and bending over, when the wound was received. We ask not whether this proof is sufficient to justify Keener in killing Reese, or even to reduce the homicide to manslaughter. That is not the question. Is there no emdence which tends to show that Reese intended, by surprise or violence, to commit a felony upon the person of Keener ? or, at any rate, that the circumstances were sufficient to excite the fears of a reasonable man, that such was the intention of Reese ? Without expressing or intimating the slightest opin- ion as to the sufficiencj'^ of the testimony, we are unani- mously of the opinion that the faicts which have been de- tailed, in connection with others in the record, were such as to have entitled the accused to the consideration, by the jury, of the law upon wliich he rested his defence; and, consequently, that it avms error in the Court to re- fuse to give this law in charge to the jury, when re- quested to do so by prisoner's counsel. MANTSTEE OF INSTRUCTING JURY. 563 J'he presiding judge instructed the j ury, very properlj, to enquire whether the homicide was murder, voluntary manslaughter, or done in self-defence, and read to the jury the law defining each ; and assigned as a reason the facts disclosed by Emma Burns and Dr. Felder. Why was not all fhe law respecting voluntary manslaughter and justifiable homicide given in charge ? How could it be said that there was evidence to authorize the reading of the 15th section, but none which was applicable to the 12th and 13th sections ; and that, too, when it is ad- mitted that stronger proof is necessary to acquit under the 15th, than under the 12th and 13th sections? K the evidence referred to by the Court tended to establish the defence of the prisoner, under the 15th section — (and if it did not, why waa it read ?) — why did it not likewise tend to the same purpose under the 12th and 13th sec- tions ? The jury who were sworn to try this traverse, had a right to find their verdict upon their own convic- tions and consciences'; for, as was very pertinently said by Chief Justice Vaughan in Bushell's case, Vaughan's E,., 148, "A man cannot see by another's eye, nor hear by another's ear. Ko more can a man conclude or infer the thing to be resolved by another's understanding or reasoning,." He continues: "Upon all general issues, as upon not culpable pleaded, the jury find upon the is- sue to be tried, wherein they resolve both law and fact complicately , and not the fact itself ; so as they answer not simply to the question, what is the law ? Yet, they determine the law in all matters where issue is joined and tried." Ibid. 150. Said Chief Justice Parsons, in Coflin v. Coffin, 4 Mass. R. 25, " the issue involves both law and fact, and the jury must decide both the law and fact. To enable them to settle the fact, they must weigh the testimony ; that they may truly decide the law, they are entitled to the assist- ance of the judge." How to the " assistance ? " By with- holding from them the law upon which the prisoner pro- fessedly grounds his defence? No; nor by having it read, and then taking the law, implicitly and without 564 KEENER V. THE STATE. questioning, from the Court ; otherwise, the verdict is not tTieirs, but in part only ; and general verdicts should be> abrogated, and special verdicts revived. They should find the naked fact instead of the criminal fact. It fol- lows, demonstrably, then, under our Code, that to make a wTiole verdict, a legal verdict, the jury must find the conclusion of law upon the facts ; and notwithstand- ing it is their privilege, as well as their duty, to receive " assistance " from the Court, still, the conclusion of law upon the facts, must be the result of their own convic- tion and understanding. If the power thus committed to the jury be exercised against the opinion of the Court to convict, the remedy is with the Court to set aside the verdict and award a new trial. If used to acquit, it miist be an extreme case ; and, although contrary to law, is rarely tainted with corrup- tion. It is produced, generally, by a liberal interpreta- tion of the law, in favor of liberty and life. In connection with the topics alr^dy discussed, the Court was requested by counsel for prisoner, to charge the jury— 1st. " That, if they believed, from the evidence, that prisoner, at the time of the commission of the act, was under the fears of a reasonable man, that the deceased was manifestly intending to commit a personal injury upon him amounting to felony, the killing was justifiable homicide." This charge the Court refused to give. And where- fore ? Is it not in exact accordance with the terms of code? 2d. " That if they believed, from the evidence, that pris- oner was under similar fears of some act of violence and injury, less than a felony, his offence was manslaughter." This request was likewise refused ; and, although not in the Code, in so many words, it would seem to be a necessary corollary from the sections we have been con- sidering. Indeed, it is a familiar principle, and one scat- tered everywhere, in works on criminal pleading. SYLLABUS. 565 " Neither can a man,'' says Hawkins, "justify the killing another in defence of his house or goods, or even of his person, from a bare private trespass ; and, therefore, he that kills another, who, claiming a title to his house, attempts to enter it by force or shoots at it, or that breaks open his windows, in order to arrest him, or persists in breaking his hedges after he is forbidden, is guilty of manslaughter.' 1 Hawkins' Pleas of the Crown, 372. The requests being legal, and refused, the judgment complained of upon these points, must be reversed. ^- * * * * * * * * * * New trial granted HOLLER Y. THE STATE. [37 Ind., 57.] Supreme Court of Judicature of Indiana, November Term, 1871. James L. Worden, Chief Justice. Samuel H. Buskiek, ) John Pettit, V Judges. Alexandee C. Downey, ) Homicide — Threats, communicated and uncommunicated. 1. On a trial for murder, in which the defendant's witnesses had testified that the deceased had a bowie-lcnife in his possession at the time of the killing, and the State had introduced evidence to the effect that he did not have or own any such knife ; held, that it was competent to prove that the deceased, within two days of tlie killing, exhibited a bowie-knife, and said he intended to take the defendant's life with it ; and that it was competent to prove threats made by the deceased against the defendant, either when exhibiting the knife or at other times, and whether such threats had been communicated to the defendant previous to the fatal meeting or not. [See Sloan's case, ante, p. 51G, and references.] 2. The rule of Cornelius v. Commonwealth, 15 B. Monr., 539, recog- nized, that where evidence of communicated threats has been admitted, it is competent, for the purpose of corroborating such evidence, to iatroduce .evidence of uncommunicated threats. 566 HOLLEE V. THE STATE. Appeal fr.om Wayne Criminal Court. W. A. Pelle and H. O. Fox, for appellant ; B. W. Hanna, Attorney-Gen- eral, for the State. DowwET, J., delivered the opinion of the Court : The appellant was indicted with his brother, for mur der in the first degree, in killing one Nathaniel Tihbetts, on the 17th day of October, 1864, in Wayne county. He was tried at the October term, 1871, found guilty of manslaughter, and his punishment fixed at ten years im- prisonment in the State prison. He moved for a new trial, for the reason, among others, that the Court had improperly excluded certain evidence oifered by him ; that the Court had misdirected the jury, and had im- properly refused to instruct the jury as prayed for by him; that the verdict of the jury was contrary to law, and not sustained by the evidence. This motion was overruled by the Court, and judgment was rendered against the defendant upon the verdict. The evidence, and also the instructions, are set out in bills of exceptions in the record. There are twelve al- leged errors assigned, all of which, with one exception, are simply reasons for which the Court might have granted a new trial, if deemed sufiicient. Only one, that is the second, which alleges that the Court erred in over- ruling the defendant's motion for a new trial, raises any question for our consideration. This assignment requires us to examine the reasons urged in the Criminal Court for a new trial, which we proceed to do. The State's theory of the case, as developed by her evidence, was, that the deceased and his sons, Jacob and William, at about seven o'clock in the evening, were at the store of Lyner, in the town of Abington, and started to go home. The defendant was sitting in front of the store on a horse-block. Afterward, his brother, Grranville, joined him. When the deceased and his sons got part of the way home, and near an alley and barn,, the defendant and his brother came out around the bam, and the defendant said to the deceased, " Tibbetts, OPINION — TJNCOMMUNICATKB THREATS. 567 God damn you, what did you strike me the other night for ? " Deceased spoke, and said, " Francis, I thought you were injuring my boy, or I should not have struck you." The deceased stepped on about two steps, when defend- ant said, " God damn you, I'll show j'ou," and drew up and hit him with a rock. The defendant was within about two steps when he threw at him. When defend- ant threw the stone, Granville Holler said to Jacob Tib- betts, "God damn you, don't you interfere;" and as Jacob went on towards home, he threw stones at him. The stone thrown at the deceased, struck him on the back part of the left side of his head, and he immediately fell to the ground. The defendant went up to him and stood over him after he fell. The other son ran home. The deceased was carried to his home in an unconscious condition, and died from the effects of the injury, at four o'clock the next morning. The stone thrown, and which struck the deceased, would have weighed two pounds. The defendant's theory of the case, as testified by his brother, supported, perhaps, to some extent by others, was that the deceased came to the barn, where he and his brother were, and where they or one of them kept a horse, or horses, accompanied by his two sons. The deceased said, " Here is the son of a bitch now." The defendant said "Why do you jump on me now, when you and your crowd jumped on nie the other night, and beat me up?" The deceased said, " I'll settle that with you, and that pretty damned quick," and drew a bowie-knife from his person. The defendant said, "Tibbetts, you are not going to strike me with that knife, are you ? " Tibbetts said, " Yes, I'll cut your damned guts out of you." xis he said this, he advanced two or three steps ' towards the defendant, and then halted. He motioned with his hands, and said, " Come up, Jake." While his head was turned, the defendant stooped and picked up the stone, and threw it at the deceased, knocking him down. He was eight or ten feet from the defendant when the stone was thrown. The defendant did not advance towards the deceased. Jacob Tibbetts, when his father called to him 568 HOLLER V. THE STATE. to come up, had a revolver in Ms hand, which he drew from his belt. These opposite statements of the facts are taken from the testimony of the principal witness on each side of the case. Two or three days before the killing of the deceased by the defendant, a difficulty had taken place, in which the deceased had beaten the defendant with a gun- swab; and this was the occurrence referred to in the conversation between the parties, at the time of the killing. It was testified, that, after this affair, and, of course, before the killing of Tibbetts, he made threats of further violence towards the defendant, which had been com- municated to the defendant. It became a question on the trial, whether or not the deceased had a bowie-knife at the time when he was killed. His son had testified that he had not, and that he did not own any such knife. The defendant ofifered to prove by Isaac Hunt, a com- petent witness, that between the time of beating with the gun-swab and the time of killing the deceased, the witness saw the deceased have a bowie-knife, with a blade six or eight inches long, and that he said at the time, that he intended to kill the defendant with it. This evidence, both as to the possession of the knife, and as to the declaration or threat of the deceased, was excluded by the Court. He offered to prove the same facts by Reuben Bobbins, with reference to the posses- sion of the knife by the deceased, and his threats as to what he intended to do with it. This evidence was also excluded. He proposed to prove by other witnesses, threats of violence to the defendant, made by the deceased, not connected with the possession and exhibition of the knife, within two or three days previous to the killing, which were also excluded. To all of these rulings there were proper exceptions. It was not shown that these threats of the deceased were communicated to the defendant before the killing, OPINION— UNCOMMUNICATilD THREATS. 569 and it was on this ground, we prfesume, that the learned Judge who presided at the trial, excluded the evidence. We infer that this wa^ the ground of the exclusion, for the reason that such threats as had been communicated to the defendant, were admitted in evidence. As the defendant's witness had testified, that the de- ceased, on the night when he was killed, had a bowie- knife, and the State insisted that he had not, we think the possession of such a knife by the deceased, so shortly before the occurrence, was proper evidence to go to the jury; and as to the threats made, both when the knife was produced and when it was not, we think they were admissible in evidence, without reference to whether they had or had not been communicated to the defend- ant. If the defendant had^made previous threats of killing the deceased, it is very clear that they would have been admissible in evidence, and we cannot see any good reason why the threats of the deceased against the defendant, are not also competent evidence. In Cornelius v. Commonwealth," 15 B. Monr., 539, " in a trial of a prisoner, charged with murder, he proved threats on the part of the person killed, to kill him, which threats had been communicated to the prisoner. He then offered to prove other threats, not communi- cated, which the Court refused to admit. Held by the Court of Appeals, that it was error to exclude such " Cornelius v. Commonwealth, 15 B. Monroe, 539. Extract from the opinion of the Court, delivered by Simpsox, J. : " The prisoner introduced testimony to prove that Hopson, the man he had killed, had, a short time previously, made threats against him, and had tried to hire persons to liill him, which facts had been communicated to him before he liilled Hopson. He then offered to prove by other witnesses, that Hopson had threatened to Ifill him, which threats were made by him a few days before he was killed, but were not communicated to the prisoner, and on this ground were excluded by the court. " We think that this testimony should, under the circumstances in this case, have been admitted. It tended to confirm the otlier evidence, that Hopson had made threats against the prisoner, and to counteract a pre- sumption of fabrication, by the witnesses who gave that testimony. Besides, Hopson's intention to make an attack on the accused, was an im- portant matter, as well as the belief of the existence of such an intention on the part of the prisoner." 570 HOLLEB V. THE STATE. proof; its tendency was to confirm the proof of the- threats already proved, and to show the intention of the deceased to attack the prisoner." In Campbell v. The People," 16 111., 18, upon the trial, the defence offered to prove that on that day, and at other times, shortly before his death, the deceased had made threats against the prisoner. This evidence the Court ruled out, and an exception was taken. The Supreme Court say : " In this, the Court unquestionably erred, although they may never have come to the knowl- edge of the defendant till after the homicide was com- mitted. If the deceased had made threats against the defendant, it would be a reasonable inference that he^ sought him for the purpose of executing those threats, and thus they would serye to characterize his conduct towards the prisoner at the time of their meeting, and of the affray. If he had threatened to kill, maim, or dan- gerously beat the defendant, it would be a fair inference, especially so long as the evidence shows that he had a hatchet in his hands, that he had attempted to accom- plish his declared purpose, and if so, then the prisoner was justified in defending himself, even to the taking of the life of his assailant, if necessary. While the threats, of themselves, could not have justified the pris- oner in assailing and killing the deceased, they might have been of the utmost importance in connection with the other testimony, in making out a case of necessary self-defence. The evidence offered was proper, and should not have been omitted." In Keener v. The State of Georgia," 18 Ga., 194, Eeese,, the deceased, had made threats against the defendant, to one Cosby, who was called as a witness. The testi- mony was rejected, mainly on the ground that the threats had not been communicated to the defendant prior to the killing of the deceased. In the opinion of the Court, delivered by Lumpkin, J., they say : [Here the learned Judge quoted at length from that ■i Ante, p. 282. » Ante, last case. OPINION — UNCOMMUNIOATED THREATS. 571 part of the opinion in Keener's case, which relates to the rejection of the testimony of the witness, Cosby, ante, pp. 550-56. He then continued, as follows :] In Stewart v. the State,-* 19 Ohio, 302, it was held " competent for the defendant to prove that the person alleged to have been murdered, and others, had agreed to go to the house where the defendant boarded, for the purpose of quarreling with him, and that they had ap- proached him with that intent at the time the aflfray com- menced, which resulted in the homicide ; and to prove the conversation of the parties in relation to such agree- ment, though the defendant had not been informed of the intent of the parties in approaching him." In Dukes v. the State, 11 Ind., 557, this Court say : " As a general rule, it is the character of the living — the defendant on the trial for the commission of the crime — and not of the person on whom the crime was committed, that is in issue, and as to which, therefore, that evidence is admissible. But in a case like the pres- ent, when the question arises, whether the accused acted in the cominission of the homicide, upon grounds that justify him in the deed, it would seem that the character of the deceased, might be a circumstance to be taken into consideration. Especially might this be the case, where the accused knew that character, and also knew, at the time, the individual by whom the attack upon him or his property was made." The Court add: "Where, as in this case, these facts may not have been known, we do not see how the evidence could be entitled to much weight." In this case, according to the report, it was evidence of the character of the deceased, ofiered by the State, of which the Court was speaking, and not evidence of threat.^ 4 Ante, p. 191. ' The citation of Duke's case, is hence, not quite relevant here. Besides, it was reversed on the grounds that the indictment was fatally defective ;. and hence, so far as it undertakes to decide other questions, it lias not, in &. strict sense, the force of authority ; although the above language has beeiL ,^72 HOLLER V. THE STATE. [The Court then considered a question relating to the impeachment of a witness, and concluded as follows :] There are many other points made to shew that a new trial should have been granted, but we need not examine more of them. The judgment is reversed, and the cause remanded for further proceedings, and the clerk is directed to certify to the warden of the State prison, to return the prisoner to the jail of Wayne county. Judgment reversed. quoted wfth approbation in many cases. Tlie following is that part of the opinion in full, which relates to the law of self-defence : Dukes V. State, 11 Ind., 557. Supreme Court of Indiana, November term, 1858. Extract from the opinion of the Court, by Perkins, J. : * * The State was permitted to give evidence of the character of the de- ceased, White. As a general rule, it is the character of the living — the defendant, on trial for the commission of crime — and not of the person on whom' the crime \Vas committed, that is in issue, and as to which, therefore, that evi- dence is admissible. But in a case like the present, where the question arises, whether the accused acted, in the commission of a homicide, upon grounds that justify him in the deed, it would seem that the character of the deceased might be a circumstance to be taken into consideration. Es- pecially might this be the case when the accused knew that character, and also knew, at the time, the individual by whom the attack upon him or his property was made. See 3 Greenl. Ev., pp. 27, 28, and note. Where, as in this case, these facts could not have been known, we do not see how the evidence could be entitled to much weight. Some other evidence was offered and rejected, to which rejection the defendant excepted. A brief statement of the facts of the case, will aid in understanding the bearing upon it of these rulings of the Court. On the night of the 20th and 21st of July, 1858, at about two o'clock, "Samuel Dukes, the appellant, was aroused from sleep and his bed, by noises about his dwelling. Rumors of a threatened attack upon it had previously reached him. It was a house of but one story, and three rooms with a porfh. In the back room was an unopened barrel of whiskey. Getting up from his bed, he attempted to open the door of his room and go out, but found it fastened upon the other side, so that it could not be opened. He then got his gun, raised the window, and discerning from it, upon the porch, some object, the character of which, owing to the darkness, he could not determine, he aimed his musket at it and fired. The object dis- appeared. Dukes went to work, forced open his door, and got out. He found that the back room had been bijakcn open, entered, and the head of the whiskey barrel knocked in with an axe ; and that the doors leading out of the other two rooms of the house, in which the family of Dukes were, had been fastened with ropes to prevent their egress from the house or en- DTTKES' CASE — CHARACTEE OF DECEASED — THREATS. 573 ts»nce into the back room which was broken open. Soon afterwards, intel- ligence came to Dukes that the unknown object upon his porch, at which he had aimed his musket, was Jolui G. White ; that the charge of shot with which it was loaded, had entered liis abdomen, and that he was mortally wounded. White, on being wounded, had hastened to his lodgings, in- formed his bed-feUow that Sam. Dukes had shot him, but had given no explanation of the circumstances, nor did he afterwards, and in a few hours he died. Dukes was indicted for the murder of White. On the trial, the State proved by Mrs. Smith, a sister-in-law of Dukes, who, on account of the absence from home that night of her husband, was lodging at the house ot Dukes, and was sleeping in the same room in which Dukes slept, and from which he shot White, that immediately upon the discharge of the gun she called to Mrs. Dukes, then in her husband's bed in the room, to light the candle, which was standing at tlie head of her bed ; that she at once did so, but that Dukes directed her to blow it out. The defendant then asked the witness to state the reason assigned by Dukes for the extinguishment of the light ; and also to state his appearance, manner, and condition of mind, as indicating alarm or otherwise, and the efforts made by him to sound an alarm to the public ; but the Court refused to allow the witness to answer. We think the question related to a part of the res gestae, and of one conver- sation touching the subject matter, and should have been answered. The defendant introduced upon the trial, as a witness, Andrew Dame, who testified that there existed in the village of Colfax, the place where the homicide was committed, a secret society called the " Good Templars ; " that the deceased. White, was a member of that society ; and then proposed to prove, by tlie witness, that in a meeting thereof, a short time before the attack upon Dukes' house, in which White was shot, the latter had made threats against Dukes, and had said that Sam. Dukes should stop selling liquor or lose his life, or he, Wliite, would lose his ; but the Court would not allow the proof to be made. It is a general proposition of law, — " it is justly called the primary law ot natnre " — that if a " party himself, or any of his relations ; viz., husband and wife, parent and child, master and servant, be forcibly attacked in his per- , son or property, it is lawful for him to repel force by force." "But care must be taken that tlie resistance does not exceed the bounds of mere defence and prevention." 3 Bla. Com., 3. And, when a party has assumed to act in the exercise of this right of self-defence, and is prosecuted therefor, we take it that it is competent for him to give in evidence, any facts tending to show the character of the attack which he resisted, the intention with which it was made, and that he had reasonable grounds to believe that it was necessary, as a means of prevention, to go to the extent ho did, in resisting it. 2 Wat. Arch., 225 et seq. That tlie threats proposed to be proved, constituted such a fact, in this case, we cannot entertain a doubt. The circumstance that they were made at a meeting of a secret society to the members thereof, instead of weakening, rather increased their force as evidence for the defendant. It tended to prove a secret conspiracy to sustain the threatened attack by numbers. The fact of such a conspiracy he had a right to enquire into, and if it existed, wen.t fer in justification of the act done. 574 PITMAN V. THE STATE. For the errors already noticed, the judgment must be reversed. We can not say that they may not have operated injuriously to the defendant. -*»***** Judgment reversed. PITMAN V. THE STATE. [22 xVrk., 354.J Supreme Court of Arkansas, October Term, 1860. Elbeet H. English, Chief Justice. Freeman W. Compton, ) .„„„.„•„/„ Tu^tice^ HuLBERT F. Faiechild, \ ^^^^ciate justices. Homicide — Uncommunicated threats. On the trial of an indictment for murder, threats and declarations of hostile purpose and feeling, made hy the deceased on the day and near the time of the kiUing, and his acts and conduct indicative of an intention to execute such threats, are admissible in evidence, as parts of the res gestae, though the throats were not communicated to the defendant. [Aec. Sloan's case, ante, p. 516. and references.] Error to Sebastian Circuit Court. Hon. J. M. Wilson, Circuit Judge. Vandever & G. J. CtarTce, for plaintiff in error ; J. L. Hollowell, Attorney-General, for the State : Threats, uncommunicated to the defendant, are not admissible in evidence in his defence. Coker v. State, 20 Ark., 55 [infra] ; Atkins v. State, 16 Ark., 584 [rnfra]. English, Ch. J., delivered the opinion of the Court : Jacob Pitman was convicted in the Sebastian Circuit Court on an indictment for murdering Blake Thompson, and sentenced to the penitentiary for fifteen years. A new trial was refused him, and he appealed. His coun- sel insist that the judgment should be reversed, because of the exclusion of the testimony of Weir and Knowles ; and this is the only question presented by the record that need be noticed. OPINION — THE CASE STATED. 575 In order to understand the materiality and relevancy of the facts proposed to be proven by these witnesses, it is necessary to state the substance of the testimony introduced upon the trial. Pitman resided in the town of Greenwood, and kept a boarding-house ; and Thompson and wife, (or a woman kept by him as such), had been boarding with him. A short time before the killing, which occurred on the 3d of June, 1859, Thompson left Pitman's and went to the house of one Tatum, who resided about two miles from Greenwood. Three days prior to that on which the fatal meeting between the parties took place. Pitman went to Tatum's to see Thompson about a debt which he owed him, and finding Thompson absent, made to persons there, offen- sive remarks about him and his wife, which were com- municated to Thompson the next day, on his return ; ■whereupon he made declarations impeaching the honesty of Pitman and the chastity of his wife. These declara- tions were made known to Pitman on the morning of the 3d. of June ; whereupon, he procured a double-barrel shot ^un, went to the woods, shot it off, charged it with buck- shot, returned to town, looked into several houses, as if he was hunting some one, and then took his seat on the porch of the store-house of T. & W. Kersey. It was also proven that Thompson had made threats against Pit- man, which had been communicated to him. In the meantime, Thompson had come into town, wearing upon his person, a pistol — one of Colt's repeaters — and being advised of Pitman's hostile conduct, he went into a store connected with Head's Hotel, procured a double-barreled shot gun, put fresh caps upon its tubes, came out into the street, walked a few steps, halted, raised his head and looked about as though he was looking for some one, then walked up the street in the direction of the porch where Pitman was, carrying his gun by his side, in his right hand, with the muzzle down. When he had advanced to within some forty yards of Pitman, he stopped and looked up, and Pitman threw his gun 576 PITMAN V. THE STATE. over, fired, and Thompson fell. While Pitman was m the act of bringing his gun over to fire, Thompson threw up his gun and sprung to the left, as if to shelter him- self behind the old court house. Thompson's character was that of a desperado ; he had the reputation of having killed several men, and of be- ing a dangerous man. Pitman proposed to prove by the witness, Weir, " that he saw Thompson about half a mile from Greenwood, on the morning of the killing, on his way to Greenwood ; that he had a large Colt's navy revolver, and procured of witness, powder, balls and caps to load the pistol with, and did load her. That he told witness at the. time, that he had been in Greenwood the day before, and kept old Jake Pitman, God damn Ms soul, housed all day, and that he was on his way then to Greenwood, and if he got sight of Pitman, he would be God damned if he did not kill him as quick as he would a rattle- snake." But the Court refused to permit such proof to be made, unless it was first proven that the same had been com- municated to Pitman before the killing. Pitman proposed to prove by the witness, Knowles, "that he had, just a few minutes before the killing, met Thompson in Greenwood, on his way down to Head's, between McCord's grocery and Head's, and that he said to witness that he had just passed Jake Pitman at Mc- Cord's grocery, and that he. Pitman, had a double-bar- reled shot gun in his hand ; and that he, Thompson, was going down to Head's to get him a double-barreled shot gun, and that he intended to return immediately and shoot Pitman down like a dog, God damn him." But the Court refused .to permit such statements and threats of Thompson to be introduced, unless it was first proved that they had been communicated to Pitman before the killing. In Atkins v. The State," 16 Ark., 584, it was held that « Extract from the opinion of the Court in Atliins' case, delivered by English, Cli, J. : * * * "Tlie defendant offered to read in evidence, OPINION — UNCOMMUNICATED THREATS. 577 proof of threats made by the deceased some four or five days before the killing, and not communicated to the ac- cused, was inadmissible. So, in Coker v. the State, 20»Ark., 55, the threats were made some months before the killing, and not communi- cated, and it was held, that evidence of the threats was properly excluded. Threats, when communicated, are admissible in evidence, as tending to show, that, in the assault on the deceased, the slayer may have acted un- der a just fear of danger to his own life ; but when not communicated, it cannot be supposed that he acted in reference to the threats in making the assault, or that the testimony of Richard Harvey, taken in his behalf, before the examining court, the witness being dead. Tlie Court, on the objection of the State, exchided so much of the deposition of Harvey as related to threats made by the deceased against the prisoner ; and he excepted. ' ' On looking into the statement of Harvey, which is set out in the bill of exceptions, it appears that he testified before the examining court, as follow : " 'I heard Wicker, the deceased, say, that he had liis knife ground for Atkins. He then asked if Atkins did not have some hoes at Jackson Wicker's ? I replied, I did not know ; and he said he had his knife whetted or scoured, but which, I do not recollect. ***** " ' Wicker had a decanter of whiskey, and asked me to drink. I then told him that my business was to malce up a school. He then asked me if Atkins was going to send to school ? I replied, I did not know. It was then that Wicker said: "I have my Icnife ground for Atkins." Wicker said he believed Atkins was a Murrell man. This was sonae four or five days betore Wicker was killed, or it might have been a week. This con_ versation occurred at Russell's old mill." Cross-examined by the State. "Walker came to the mill with me. When we got to the mill, we found Cook and Thomas Wicker, and several other gentlemen, I did not know. I never had seen Wicker before to know him. Wicker asked me and the other gentlemen to drink. I do not Ivuow vvliether the conversation about the knife was before or after we took the drink. I do not recollect whether any one else was present at the time when we had the conversation or not. I never informed Atkins of this conversation.' "It vrill be observed, that the conversation in which these threats were made, (if deemed such), occurred between the deceased and the witness, That he could not state that any one else was present when the conversa- tion took place, and that he never communicated the tlireats to the pris- oner." The learned Judge then reviewed at length Powell v. The State, post, p. 587, note, and Hudgins v. The State, ante, p. 470, note, and also cited Goodrich's case, ante, p. 532, and concluded tliat the testimony was not admissible. 578 PITMAN V. THE STATE. they in any way influenced his conduct. It was upon this reasoning that tlie rule was placed in Powell v. Htate, 19, Ala., 577, which was quoted with approhation in Atkins v. State, but the.learned judgt, who delivered the opinion in the case referred to, said, " We will not undertake to say, that no case could occur in which such threats, althoiigh unknown tcj the prisoner, might be ad- missible, " etc." b Coker's case contains one or two otlier points of interest, aside from ite riilu\g iijDon the question of uncommunicated threats. Wc shall, therefore, digi-ess so far us to quote fully that portion of the opinion of the Court which relates to the law of self-defence. ExGusH, Ch. J, : — Calvin Coker was indicted in the Marion Circuit CoUrt for the murder of Matthew Owens ; upon his application, the venue was changed to White county, where ho was tried, on the plea of not guilty, convicted of murder in the second degree, and sentenced to the peniten- tiary for seven years. He moved for a new trial, which was refused, and he excepted, and appealed to this Court. The grounds of the motion for a new triai, wUl be considered in the order in which they appear upon the record. 1. The Court excluded from the jury, part of the testimony of Dixon C. Williams. Williams testified, among other things, that he had a conversation with Owens, on the way to his house, some months before he was killed, in which Ou'ens told him, that he believed that Bill Coker, old Joe Coker and Calvin Coker had conspired against him, because he would not succumb to them ; but if they ever came in collision with him, ho would get one or two of them wliilc they were getting him, etc. That after witness and Owens got to the house, " Owens showed him a pistol^ and asked him if he did nvt think that would do to take them. He said it was sure fire— a dead shoty It seems that ^ViUiauis communicated to Calvin Coker, before the kill iiig, what Owens said to him on their wuj' to the house, and the Court pes mitted that to go to the jury, but excluded so much of Williams' testimony as related to what Owens said to him about the pistol, etc., after they got to the house; because it was not communicated to Colcer by the witness, before the killing. The ruling of the Court on this point was in accordance •\Tith the decision of this Court, in Atkins v. The State, 16 Ark., 584. * ********** 4. On motion of tlie attorney for the State, the Court instructed the jury as follows, against the objection of the prisoner : 1. "If the jury find from the evidence, that the defendant armed him- ' self with a deadly weapon, or l^eing armed with a deadly weapon, provoked the deceased, by insulting words, to resentment, >\ithout the use of a deadly weapon, intending to slay him, and did slay him under the pretence of self-defence, the killing is regarded, by law, as nmrder in the first degree. OPINION — UNCOMMUNICATED THREATS. 579 We tMnk tlie proposed testimony of Wei]- and Knowles was erroneously excluded, and that its admis- sion would have been no departure from the 'rule, under which the threats were excluded in Atkins' case. It was certainly competent for Weir to prove that he saw Thompson on the morning of the killing ; that he was on his way to Greenwood ; that he had one of Colt's large navy revolvers ; that he procured powder, balls, and caps from witness to load the pistol, and did load it ; 2. '"If tlicy believe, from the evidence, that the deceased was unarmed, .■ind that the defendant used a knife, whioli was a deadly weapon, no .threats made by the deceased before the homicide will excuse the offence, or reduce it to mimsliiughter if the combat was sought or willingly entered into by the defendant." In connection with those instructions, the Court also gave, at the re- quest of the prisoner, the following : "1. If the jury find from the -evidence, that the defendant was attacked in such manner and under such circumstances, as to furnish reasonable ground for apprehending a design to talie liis life, or to do him some great bodily harm, and that there was reasonable ground for apprehending a design to take away his life, or to do him some great bodily harm, and there was reasonable ground for believing the danger imminent, that such design would be accomplished, they should find for the defendant. " 2. If tbe jury find from the evidence, the deceased had made threats against the life of the defendant, and that these threats had been communi- cated to defendant before the killing, and that the deceased made a demon- stration in such maimer, or under such circumstances, as to furnish the belief that there was a design to talie away his life, or do him great bodily harm, and that there was reasonable ground to believe the danger immi- nent that such design would be accomplished, and that the defendant killed Owens, it, in law, would be justifiable homicide, and they shoiUd find for the defendant." Perhaps a killing under the circumstances supposed in the first special instruction given for the State, miglit be murder in the first degree, and, perhaps, there were some features of the testimony that warranted the giving of the instruction; but neilhei' of these points need be positively decided, as the appellant was acquitted of murder in the first degree, and was, therefore, not prejudiced by the instruction. The second special instruction, given at the Instance of the State, is un- objectionable, especially when considered in connection with the second instruction given on behalf of the appellant. 5, 6 and 7. The fifth, sixth and seventh grounds of the motion for a new trial, are substantially the same — that the verdict was contrary to law and evidence. Upon this point, the argument of the counsel for the appellant is silent. The testimony conduces to show that Coker and Owens difTered about 580 PITMAN V. THE STATE. and we think the declarations made by him, in connec- tion with the facts, manifesting the motive that was tak- ing him to ■Greenwood, his hostile feelings toward Pit- man, the use he intended to make of the pistol, etc., made, as they were, on the very morning of the killing, were admissible as part of the res gestce. State v. Good- rich," 19 Vermt., 119. So, we think the declaration made by Thompson to Knowles, a few minutes before the killing, while on his way to Head's, (where other witnesses proved that he got some change. Owens insisting that he had given Coker $2 50, by mistalce, in mailing change, which Coker denied. Owens .sued Coker for the- amount in controversy before a justice of the peace. The parties met at De Buque, on the 7th of February, 1857, for trial. After one witness had given his testimony, it was mutually agreed that the case should be sub- mitted to the justice, upon the statements of the parties. Whilst Owens was making his statement, Coker intimated that he was swearing falsely. The parties differing in their versions of the matter, the magistrate stated,, that he would take the case under advisement. Coker then went out of the justice's office, and returned with some liquor in a tin dipper, and passed it round to the company, offering it to Owens, perhaps, who de- clined to drink. Coker then sat down at the fire, by the side of Owens, and said to him that he had sworn to what he would not swear, for Marion county. Owens replied, that he had sworn it, and would swear it again. To which Coker responded, that if he did, he would swear a damned lie; whereupon Owens arose, saying he could stand it no longer. Coker arose at the same time, and they caught each other by the hands. A brother of Owens took hold of him, and pushed him back into one corner of the room ; the magistrate, at the same time, taking hold of Coker, and shoving him back to the door, some eight or ten feet from Owens. Coker then drew a bowie-knife, broke loose from the magistrate, rushed on Owens, and thrust his knife into his bosom, giving him a mortal wouud^ of which he very soon died. Some of the witnesses say, that whilst the magistrate held Coker back at the door, Owens pulled off his blanket over- coat, and dropped it down by him. None of the witnesses testify that he made any attempt to use a weapon, if he had any about him. They found none upon his person when he was stripped, after he was killed. One witness swore that he gave him a pistol before the trial, and slipped in and took it out ot his overcoat pocket immediately after he was stabbed. The above is the substance of the facts connected with the killing, as stated by most of the witnesses. One or two witnesses make a more favorable version of the facts for the prisoner. Upon all the facts of the case, the conclusion is inevitable that there was no want of testimony to sustain the verdict. » » * The judgment of the court below is affirmed. ' Ante, p. 532. OPINION — UNCOMMUNipATED THKJSATS. 581 the gun, and put fresh caps, on it), that he had just passed Pitman ; that he was armed with a shot-gun, and that he, Thompson, was going to Head's to get a gun, and intended to return immediately and shoot Pitman, ■etc., were admissible as part of the res gestcB. It was certainly competent to prove the conduct of Thompson, as well as of Pitman, immediately preceding the killing, and the declarations made by him, expressive of his feelings, and the motives and intentions which were prompting his acts, were admissible as part of the res gestcB. Campbell v. the People,** 16 111., 19 ; 1 Greenlf. Ev., § 108. If the testimony of "Weir and Knowles had been ad- mitted, it might, in the es'timation of the jury, have tended to show what the purpose of Thompson was, when he went into the street armed, and walked in the direction of the place where Pitman was — whether he in- tended to make an attack on Pitman, or act on the de- fensive ; and we can not say, that, if the excluded testi- mony had been admitted, it would have had no influ- ence on the minds of the jury in making uj) their ver- dict. It is true that the declarations of Thompson, in ques- tion, were not communicated to Pitman, but we put their admissibility upon the ground that they were of the res gestae — tending to explain the conduct and motives of the deceased just before the killing ; and if they conduced to prove that he did go into the street and advanced to- wards Pitman with the intention of making the attack, and not of acting on the defensive, it is not unreasona- ble to suppose that Pitman may have seen some indica- tion of his intention in his appearance, or in the manner in which he demeaned himself in approaching. We pass no opinion upon the sufficiency of the evi- dence introduced to support the verdict, but we reverse the judgment for the reason only that we think the ex- cluded testimony should have gone to the jury for what ■<^^nU, p. 282. 582 DUPREE V. THE STATE. it was worth, and we cannot say that it would have had. no iniiuence upon the result of the trial. The cause must be remanded for a new trial. Judgment reversed. DUPREE V THE STATE. [83 Ala. 380.] Supreme Court of Alabama, Januojry Term, 1859. A. J. Walker, Chief Justice. Homicide — Communicated threats — Conduct op deceased towaed- SERVANT of PRISONER— MoDB OE PROVING CHARACTER OF DECEASED PERSON — Character of prisoner, and competency of witnesses TO TESTIFY AS TO — INSTRUCTIONS ON THE LAW OF SELF-DEFENCE. 1. Threats made by the deceased a short time before the commission of the homicide, indicating an angry and revengeful spirit towards the pris- oner, and a determination to do violence towards his person, which were' communicated to the prisoner bifore the homicide, are evidence for him. [Ace. Monroe's case, ante, p. 442, and note; Pridgen's case, ante, p. 416; Robert Jackson's case, ante, p. 476 ; Sloan's case, ante, p. 516 ; Keene's case, ante, p. 531, note; Carroll's case, post; and many others.] 2. The conduct of the deceased, in going to the prisoner's premises, sev- eral weeks before the commission of the homicide, and there seeking a per- sonal difficulty with a person who was in the employment of the prisoner, is not admissible evidence for the prisoner. [Ace. Robert Jackson's case, ante, p. 486 ; People v. Henderson, 28 Cal., 469 ; Harmon v. The State, 3- Head, 243.] 3. The bad character of the deceased cannot be established by proof of particular facts, or oflences against the law, unconnected with the case ; as that he was an escaped convict from the penitentiary of another State. [Ace. Keener's ease, ante, p. 547, and note c] 4. The character of the prisoner for peaceable disposition and habits^ is competent evidence for him. 5. A person who is acquainted with the prisoner's character, and who» has known him for eight or ten years, is competent to testify to his char- STATEMENT OF THE CASE. 588 acter, although he may have resided more than twenty miles distant from the prisoner's residence. 6. The prisoner, having requested the Court to insti'uct the jury, " that. If they believed, from the evidence, there was a reasonable belief in his mind of some great personal injury or bodily harm about to be coniniittecl on him by the deceased," or "that there was reasonable ground on his part to believe that he was in danger of great bodily harm from the de- ceased, whether it actually existed or not, then the killing, under the cir- cumstances, would be excusable ; " and, the Court having refused to give the charge, " except with the qualification, that, if the danger appeared to be imminent or threatening, the prisoner would be excused," — held that, neither the refusal of the charge asked, nor the qualification added to it was erroneous. [Ace. Harrison's case, ante, p. 71 ; Scott's case, ante, p. 163 ; Dyson's case, ante p. 304 ; Wesley's case, ante, p. 319 ; Evans' case, ante, p. 329 ; Head's case, ante, p. 341 ; Rippy's case, ant-, p. 345 ; Wil- Uams' case, ante. p. 349 ; Landers' case, ante, p. 366 ; Johnson's case, ante, 407. But see Philips' case, a« Post. " Ante, p. 469, note. ■^ Ante, p. 442. « Ante, p. 471, note. 588 DUPKEE V. THE STATE. 230; Shorter v. People/ 2 Comst., 193; Am. Law of Homicide, 216 ; Campbell v. People,* 16 111., 17 ; Corne- lius V. Commonwealth," 15 B. Monr., 539. The facts proved as to the conduct of the deceased, some weeks before, towards Breedlove, were irrelevant to the issue in this case. They pertained to a distinct and independent transaction, having no connection, which we perceive, with this case, and were properly •excluded. *********** So, also, the proof that the deceased was a convict, es- caped from the Georgia penitentiary, was inadmissible. Particular acts of misconduct on the part of the deceased, and offences against the law committed by him, and not connected with this case, were inadmissible. For a still stronger reason, parol evidence of his having been a penitentiary convict, was inadmissible. It is not al- lowable to go into proof of particular acts, unconnected with the case, to show the cliaracter of the deceased. State V. Nugent,' 18 Ala., 521 ; Pritchett v. State,J22 Ala., 39 ; Franklin v. State,'' 29 Ala., 14. The character of the prisoner for peaceful disposition and habits was competent proof fo:f him. Felix v. The State, 18 Ala., 720. The witnesses by whom it w^s proposed to prove the character of the accused, had known him for eight or ten years, and were acquainted with his character. This was sufficient to qualify them to testify as to his char- acter, notwithstanding they may have resided more than twenty miles from him. Residence in the immediate vi- cinity of the person whose character is the subject of investigation, is not an indispensable qualification of a witness to testify as to the character. Such a remote- ness of residence would not prove that the witness did ' ^nie, p. 256, note, i Ante, -p. 282, note, "^niie, p. 569, note. 1 This cafse, an indictment for rape, held that it was not competent to prove particular acts of prostitution on the part of the mother of the pros- ecutrix, for the purpose of discrediting her testimony. I Post. " Post. HUGHEY'S case — COMMUNICATED THREATS. 589 not know what the character was, and, therefore, would not disqualify him to testify on the subject. Hadjo v. Gooden, 13 Ala., 718 ; Martin v. Martin, 25 Ala., 201. There was no error, either in the refusal of the Court to give the charges asked, without a qualification, or in the qualification of them, as stated in the bill of excep- tions. Oliver v. State,' 17 Ala., 587; Harrison v. State,™ 24 Ala., 67; Noles v. State," 26 Ala., 31. The charges asked might have misled the jury, by making the im- pression upon them that the plea of self-defence was sustained, although there was not a reasonable belief of a 'present necessity to strike for his own protection. This Court wiU. never reverse for the refusal of a charge, the tendency of which is to mislead the jury. The judgment of the Court below is reversed, and the cause remanded. Judgment reversed. NOTB. — A similar view is taken of th,e question of admitting evidence of threats made by the deceased and communicated to the defendant, in trials for homicide, in Hughey v. the State, 47 Ala., 97. This case was de- termined in the Supreme Court of Alabama, January term, 1872. Peck, C. J., Petees and Safford, .TJ. Two points are considered : the admissi- bility of evidence of threats made by the slain against the slayer, before the killing, and the effect of such evidence, when admitted. Hughey was tried for the murder of James W. Crumbia ; found guilty of murder in the first degree, and sentenced to the penitentiary for life. He was brother-in-law to the deceased. They lived near each other, and had been on bad terms for several months prior to the killing. The day before the killing, Crum- bia sent a message to defendant, to the effect, that if he would admit that he had stolen some hogs, he, Crumbia, would be at peace with him. Hughey replied, "What I would say once, I could say twice, and what I would say twice, I would die by ; and if Crumbia believes there is no hell in Georgia, let him go on." Hughey remarked to another witness on the same day, who had expressed a desire to see Crumbia and settle matters, that, if witness did not go soon, he would not get to see Crumbia. It seems that no one was present at the killing, except the defendant and the wife of the deceased. The defendant gave the following account of the kUhng to two wit- nesses, a few days after it happened : On the morning of the killing, he took his gun and went through the fields to Crumbia's house, and on get- tino- within about a hundred yards of the house, sat some time on the fence. He then started in the direction of the house, and, after going a short distance, he saw the deceased in the field, and immediately presented 1 Post. "■ Ante, p. 71. ° Post. 590 'dupree v. the state. his gim and popped a cap at dec(>ased, who threw up his >iands and asked, "What do you mean?" and tlicn ran into the house. Defendant went a little closer to the house, stopping at the root of a tree, and, while there, took out a memorandum book and wrote something in it, and gave as his reason for so doing, that, as he did not know who might be killed, what he wrote would show something. At this tree, Hughey remained for two hours, and then went up near the house and stopped. Defendant intended to get in front of the house, but before h(; 'got in front of the door, de- ceased opened it, stepped in, looked around, and immediately shut the door. Defendant thought deceased sa\\' liim, and he, defendant, immedi- ately cocked his gun, held his thumb on the hammer of the gun so that he might not shoot his sister by mistake, as he wanted to be sure it was de- ceased before he shot. '• As soon as deceased appeared at the door, and Hughey was certain that it was Crumtia, he pulled down on him." Another witness testified, that Hughey told him that while sitting at the root of the tree, ho dclibei-ated what he should do. Other witnesses testified, that shortly after the shooting, defendant told them that " he had killed Crumbia. and wanted them to see him decently buried at defendant's expense ; that he regretted he had killed Crumbia, but Crumbia had re- peatedly threatened his life, and waylaid the road the day before to kill him." Defendant then offered to prove by several witnesses, that on various occasions, and for some time before the killing, deceased had been threats eniug defendant's life ; that, on Saturday before the killing, deceased pre- sented a gun at defendant, and would have shot him, had he not been prevented by the bystanders ; that, on the Any before the killing, deceased waylaid the road with his gun, for the purpose of shooting defendant ; who, being warned of it, went another road ; and deceased, after waiting some time on the road, went to defendant's home, and tracked him a mile or two. The State objected to the admission of this evidence. The Court asked if the defendant expected to show any act done by the deceased at the time of the killing, indicating an intention on the part of the deceased, to kill the defendant, or do him some great bodily harm ; and upon the reply of his counsel, that they did not expect to show any such act on the part of the deceased, ■ later than the evening preceding the killing, the Court sustained the objection, and excluded tlie proposed testimony, and the defendant excepted. Later in the trial, the widow of the deceased, (who was sister to de- fendant), testified, that on the morning of the killing, Crumbia requested her to go to her father's to see if defendant was there ; that on her refusal to go just then, deceased said he would go, and, taking his gun, started oft. Soon, she hoard a cap pop^and saw deceased running, with his gun first on one shoulder and then on the other. He ran into the house, and she shut the door. Deceased then hunted for a crack to shoot through, and asked her to go out and look for defendant, which she did. but saw nothing of him. After this, at deceased's request, she went to her father's, which was half a mile distant, to hunt for defendant, but saw nothing of him, and returned. Deceased went to the door and turned away, and soon looked out again, when the gun fired, and lii> fell, shot through the body, and expired in a few minutes. HUGHEY'S case — COMMUNICATED TllEEATS, 591 After the testimony of this witness, defendant again ofifered to prove the tlireats and attempts of deceased as proposed before; but the Coui£ ex- duded the evidence, and defendant excepted. Tlie Court cliarged the jury as follows : 1. "If the jury believe, from tlie (.■\idencc, that there was bad and un- friendly feeling existing bcti\x'en defendant and deceased at the time of the Ivilling, and that deceased had made threats against defendant, and on the day before the Ivilling, waylaid the defendant, and should fiu-ther believe that, at the time of the killing, no attempt was being made to execute said threats, and nothing done to sliow an intention to execute said threats by the deceased, that then the threats so made would afford no excuse or jus- tification for the killing of the deceased. 2. "That, if the jury shall believe, from the evidence, that bad and un- friendly feeling had grown up between the deceased and the defendant, and existed at the time of the killing, and that, on the morning of the killing, tlie defendant left his home with the intention to .take the life of the de- ceased, and that, on the way to deceased's house, defendant met deceased about 150 j'ards from hi-s home, and popped a cap at deceased, and that de- ceased ran into his house, and his wife closed the door ; and that defend- ant, after deliberating some time, went up to the house of the deceased, and, as soon as the deceased slio\\ed himself, the defendant shot and kill ed the deceased, this would be murder on the part of the defendant, notwith- standing deceased may have made prewous threats to take the life of de- fendant, and may have waylaid him for that purpose on the day be- fore. 3. "That, if the jury believe, from the evidence, that defendant may have believed he would have either to take the life of the deceased, or lose Ids own at some future time, this would not justify or excuse the killing of the deceased, unless, at the time of the killing, deceased did some act show- ing an intention of taking the life of defendant, and which act was notpro-. voked by some act of defendant at the time of the killing, showing an intention on the part of defendant, to take the life of deceased." These charges were written, and the jury, with the consent of the Court, took the charges with them when they retired. The defendant excepted to each of the charges, and to the action of the Court in allowing the jury to take the charges with them. The defendant then requested the Court to give the following written charges : 1. "Tliat, if the jury believe from all tVie evidence, that defendant believed it was necessary to take the life of deceased, and defendant acted upon that belief alone, then it would rebut the presumption of malice, an(i the defendant would not be guilty of murder. 2. "That the delusion on the part of defendant, that deceased would take his life, and that it was necessary for him to kiU deceased, in order to prevent the loss of his own life, brought about from his threats and lying in wait — if, froin these circumstances, defendant really and honestly be- lieved it was necessary to take the life of deceased to save his own, then defendant is not guilty of any offence. The necessity which will justify the takiag of life need not be actual, but the circumstances must be such 592 DUPBEE V. THE STATE. as to impress the mind of tlie slayer with a reasonable belief that- such necessity is impending, and the jury are to determine that fact from all the circumstances. 3. "That if the jury believe from the evidence, that there vs^as such a derangement of defendant's mind at the time of the killing, that he be- lieved that if he did not kill deceased, the deceased would take his life, and that the killing was done under such a state of mind, thev should find the defendant not guilty. 4. " If the jury, after weighing all the testimony, have a reasonable doubt whether defendant killed deceased with malice, or to protect his own Ufe, then they must acquit." The Court refused to give any of these charges, and the defendant duly excepted. W. S. Earnest, for the prisoner, contended that, according to Pritchett's case, post, there is a, distinction between the doctrine of threats, and the doctrine of attempts ; that where previous attempts to kill defendant have been made by deceased, such as waylaying him for that purpose, and the like, the law does not require, in order to excuse the defendant in slaying him, that there should have been at the time of the kiljing an actual attempt, or overt act, indicating a design to kill, or do great bodily harm. This position is in accordance with the cases of Philips, Carico and Bohan- non, ante, pp. 383, 389 and 395, as we understand them, although the counsel did not cite these-cases. J. W. A. Sanford, Attorney-General, for the State. Peters, J. — [After stating the case.] " No threats, unaccompanied with acts whicli threaten the life or limb of the slayer, will justify or excuse a felonious homicide. The threats insisted on in this case, were not of this character. The Court properly excluded them, as they could have been oflftred for no other purpose. United States v. Wiltberger, 3 Wash. C. C, 515, [ante, p. 34] ; 2 Arch. Cr. PL, 223 (marg.) et seq., and notes. Water- man's ed., 1853. "Tlie objections to the charges given by the Court, and to the refusal of those moved for by the defendant on the trial below, proceed upon the same mistake, that mere antecedent threats are an excuse or justification for a felonious homicide. This is not so. There must be actual danger to the slayer at the time of the fatal blow, or such a state of facts as are justly calculated to impress his mind with the existence of such danger, before he is justified to strike in self-defence. Self-defence is simply the resistance of force, or seriously threatened force actually impending, by force suffi- cient to repel the danger, and no more. If it goes beyond this, there is guilt, which is not excusable or justifiable. This is the result of the cases and authorities above cited. 2 Bouv. Law Diet., p. 509, Selp-Defekce, and cases there cited. On the trial below, there was no proof of actual impend- ing danger, or any seeming danger, which would have justified the prisoner in his heartless destruction of his victim's life. He sought, the occasion to- kill, with the purpose to kill, when there was no sufficient necessity for it, and when it might have been avoided, and when it was clearly within his^ power to have resorted to peaceful means, to restrain the deceased, had it been his wish to have assaulted him. Kev. Code, p. 741, 53956, et seq.. THREATS — LYIKG IN WAIT— HUGHET'S CASE. 593 We think the conviction was eminently proper and regular, and it must stand. " The judgment of the Court below is aflSrmed ; and that Court wUl proceed to execute its sentence, as required by law." Upon the point that in trials for homicide, evidence of threats made by the deceased and communicated to the slayer before the killing, will not bo heard, unless there is evidence tending to show that at the time of the kill- ing, there was some overt act on the part of the deceased, showing a design then to execute such threats, this last ease is in accord with Hays' case, ante, p. 492; with Myer's case, ante, p. 432; and with the dissent- ing opinion of Lindsay, J., in Pridgen's case, ante, p. 425. But the reverse is held by the majority of the Court in Pridgen's case, ante, p. 416, and also by a full Coiu-t in Robert Jackson's case, ante, p. 476 ; and upon the high ground that the judge cannot determine whether a predicate has been laid for the introduction of such testimony, by proof tending to show an overt act, without trespassing upon the prov- ince of the jury. And this reasoning would seem to apply with consider- able force to the present case ; for clearly the circuit judge, in excluding the testimony of previous threats and lyings in wait, did, in effect, pass upon the weight and effect to be given to the testimony of Mrs. Crumbia — ^whereas, the jury ought to have been left to view that testimony, if pos- sible, without any knowledge or intimation of the judge's opinion as to its force and effect. Selfridge's case, ante, p. 19. The better practice ^\ ould seem to be tb admit evidence of this character in trials for homicide, and then to instruct the jury, not as to its weight, but as to its legal effect, if believed. Instead of this, this case presents this singular feature : the cir- cuit judge excluded the evidence, and then instructed the jury as to its legal effect, as though it had been admitted. Upon the whole, the ex- cluded testimony, had it been admitted, may have shown that both of these parties were diUgently seeking each other's blood, and that the solution of the question, which of them should succeed in his work of vengeance, de- pended upon which of them should be able to obtain, by stealth or by sur- prise, a cowardlj' advantage of the other. They were probably as much at war with each other as two savages ; and it seems unfortunate that cases of this character should be submitted to a jury upon one side of the testi- mony only. It is not a little singular, that while the Court should, in this case, have adopted a restrictive and exclusionary rule of evidence, the policy and jus- tice of which has been questioned in several well considered cases, such as that of Pridgen, ante, p. 4-16, Monroe, ante, p. 442, Robert Jackson, ante, p. 476, Keener ante, p. 539, and Eector, post, the same Court in another ease — Fieldsv. The State, 47 Ala., 603, which we shall consider hereafter— have, in effect, declared that, in trials for murder, evidence of the bad character of the person slain is admissible in mitigation of the punishment to be assessed by the jiu-y— thus making itself, as we apprehend, the first court that has had the distinction of deciding that it is less a crime to murder a bad man than a good one. The same question arose in Louisiana, in the State v. Mullen, 14 La., An., 577. Extract from opinion of the Court, by Meerick, Ch. J. ; '-Neither can we say that he erred, to the prejudice of the accused, on the two other 594 DUPREE V. THE STATE paints, 5th and 6th, requested by the counsel for the accused, to be given in cliarge to tlie jury. We will copy the charge requested, and the charge as given. '■Tlie judge was requested to charge, 5th: 'That, if the jury flnd,from the evidence, that there had been threats of personal violence by the de- ceased towards the prisoner, wliich liad been communicated to the prisoner before the Ivilling, and the jury think that tliese threats were sufficient to cause Mullen to tliinl;; that McGlone was about to assail his life, or thought that liis life was in danger, then, in law, there was no malice in the pris- oner, and he cannot be found guilty of murder.' " The Judge said : ' The charge asked for on this point, s not sufficiently distinct. The Court charges, if McGlone threatened to take Mullen's hfe, or to do him great bodily harm, and Mullen was informed of the threat, and thereupon armed himself for the true and sole purpose of self-protec- tion, and McGlone and Mullen subsequently met without design, and McGlone drew a deadly weapon and approached Mullen with the apparent intention to assault him with it, and Mullen believed he was in danger of his life, or great bodilj- harm, and had no way of avoiding his adversaiy, and advanced upon McGlone and slew him, and the jury are satisfied of these facts, and are of opinion that Mullen acted upon a bona fide reasona- ble ground of apprehension as stated, then the killing was justifiable, in self-defence, and the jury are bound to acquit the defendant. But if McGlone threatened MuUen with personal violence, and assault and bat- tery, or great bodily harm, and the threat was communicate'd to Mullen, and Mullen thereupon armed himself with a deadly weapon, and met McGlone and slew him, while McGlone was not making any hostile dem- onstrations against him, the killing was wilful, deliberate and malicious, and is murder.' " The same question had previously arisen in Louisiana, in The State v. Leonard, 6 La. An., 420. Indictment for murder. Extract from the opinion of the Court, delivered by Preston, J. : " The defendant offered to prove, that within a month previous to the homicide, of which he was accused, the deceased had, while in the parish prison, declared to a fellow- prisoner, that he would kill the defendant. The object of the evidence was to alleviate his offence into manslaughter or excusable homicide. "Foster informs us, that in every case of homicide upon provocation, how great soever it be, if there is sufficient time for passion to subside and for reason to interpose, such homicide will be murder, p. 296. The time that intervened between the utterance of the words and the perpetration of the homicide, forbid the idea that the offence might bo reduced to man- slaughter, on account of the menaces. For, even if the defendant heard of them, which does not appear by the bill of exceptions, and was excited to such a degree at the moment, as to have alleviated an immediate homi- cide into manslaughter; j'et, tliere was sufficient time for passion to cool, and reason to resume her sway. "Besides, East, in commenting upon Lord Morley's case, relied upon by the counsel of the accused, concludes ' that menaces of bodily harm, to be a sufficient provocation to reduce the offence of killing to manslaughter, hhould, at least, be accompanied by some act denoting an immediate inten- tion of following them up by an actual assault.' [1 East P. Q., 233.] THREATS — CHAEACTEE OF DECEASED. 595 "Nothing of this kind is pretended in the bill of exceptions. On the ■contrary, it is stated, that ' the accused sought, pursued and killed the deceased.' " We know of no cases in which it is held that menaces without dan- gerous action, will excuse a homicide. Blackstone, on the contrary, informs us, that ' no affront by words or gestures only, is a sufficient provo- cation, so as to excuse or extenuate such acts of violence, as manjfestlj' endanger the life of another.' 4 Bla. Com., 200." This last case is somewhat like Jackson's case, ante, p. 520, note ; and what is there said with reference to the connection between the doctrine of threats and cooling time, will be to some extent, applicable here. The same question was considered in The State v. Collins, 32 Iowa, 36, determined in the Supreme Court of lov/a, June Term, 1871. The case is stated in the opinion. JIiLLEK, J.: 1. The evidence shows that the defendant and several others were in a restaurant in Mason City at the time of the alleged crime ; that one James R. McMillin, in company with one Babcock, came in while Collins the defendant, was still there ; that at the time McMillin came into the room wliere the defendant was sitting, McMillin was excessively intoxicated — as the witnesses express it, " as drunk as a man could be and stand up ;'" — that McMilUn staggering towards one Kirk, who was sitting near the tlefendant, took liold of Kirk and pulled him off a box on which he was sitting; that Kirk told him to " hold on, or he would step on Bill Collins' toes ; " that McMillin said, "he did not care for Bill CoUins or any other man ;"' and letting go his hold of Kirk, he staggered away from him, and put his hand on the defendant's shoulder and turned him partly around, at which time the defendant sprang to his feet, took hold of McMillin with his left hand (some of the witnesses say by the throat) and stabbed him with the large blade of a common-sized jack-knife, which he held in his right hand,"and with which he had been whittling. The wound made by the Icnife was a little to the left of the middle line of the body, two and a half inches from the navel, about one-half inch wide, and from two and a half to three inches deep, and entered the stomach. On the trial, the defendant offered to introduce evidence to show that McMillin, the person stabbed, was a large, powerful and muscular man, who, when under the influence of liquor, was quarrelsome, ugly, danger- ous and vindictive ; that defendant knew these facts ; and in connection ^vial this offer, he also proposed to prove, that on the same-day, and shortly before the commission of the assault, McMillhi had threatened to take defendant's life, of which threat he had been informed only a few minutes ]ire\'ious to the assault. The Court refused to admit this evidence, and this ruling is assigned as error. A man may repel force by force, in the defence of his person, habitation or property, against one who manifestly intends and endeavors, by violence or surprise, to commit a known felony on either. In such cases, he is not obliged to retreat, but may pursue his adversary until he finds himself out of danger. Wharton's Am. Crim. Law, 3d ed, 4.56. And it has been held by this Court, that a person is not required to flee fom his adversary, when assailed with a deadly weapon, and retreat to the wall, before he can jus- 596 THE PEOPLE V. SOOGGINS. tify the killing of his assailant. The State v. Tweedy, 11 Iowa, Soff, [post.J But to make a homicide justifiable, on the ground of self-defence, there must be an actual and urgent danger. lb. 457, the State of Iowa v. Neeley,, [ante, p. 96] ; 20 Iowa, 108, the State v. Thompson, 9 lb., 188, [ante, p. 92.] It is not necessary, however, that the danger should in fact exist, but that there be actual and real danger, to the defendanfs comprehension, as a rear sonable man. The enquiry is not whether the harm apprehended was ac- tually" intended by the assailant, but was it actual and real to the accused j as a reasonable man, as compared with danger remote or contingent. The State V. Neelej , 'supra ; 1 Bishop's Cr. Law, 385; Wharton on Homicide, 407. Without expressing any opinion in respect to the sufficiency of the rejected evidence in this case, to justify the alleged assault, or even to mit> igate its degree, we are of the opinion it should have been admitted to the jury, under proper instructions from the Court upon the law, so that the jury, with all the facts and circumstances connected with the transaction before them, might he enabled to judge of the intent and motive of the defendant in the commission of the assault ; whether to his comprehen- sion, as a reasonable man, there was such an actual and urgent danger as to justify the alleged assault, or whether it was made wantonly and with- out actual apprehension or danger from McMilliu. * * * The judg- ment was reversed. THE PEOPLE V. SCOGGIJSTS. [37 Cal., 677.] Supreme Court of California, July Terra, 1869. Lorenzo Sawtee, Chief Justice Augustus L. Ehodes, Silas "W. Sanderson, Royal T. Sprague, Joseph B. Crockett. Associate Justices. Principles which govern the admissibility of evidence of threats in trials for homicide. 1 Threats made by the defendant are admitted for the purpose of show- ing malice, and thereby increasing the probabilities that he committed the offence. 2. Threats made by the deceased or injured party, if known to the de- fendant at or prior to the transaction, are admitted for the purpose of show- ing that the circumstances of the offence were such as to excite the reason- OPINION — THE CASE STATED. 597 able fears of the defendant that his life was In danger, or that he was in danger of serious, bodily injury, and thus justify his act. [Aco. Sloan's case, ante, p 516, and citations ; Keener's case, ante, p. 539.] 3. In a case of homicide, where it is doubtful which party commenced the affray, tlireats made by the deceased are admissible on the part of the defendant, although unknown to him at the time of the homicide, as facts tending to illustrate the question as to which was the first assailant. [Ace. Sloan's case, ajite, p. 516 and references.] 4. But it would be the duty of the Court to explain to the jury carefully, that the proof was admitted only as tending to corroborate whatever other ovidenoe there was that the deceased was the assailant, and for no other purpose. Appeal from the District Court, Second. Judicial Dis- trict, Butte County. The facts and the points, and authorities cited by counsel, are fully stated in the opinions delivered in the case. Coffortli & Spaulding, for appellant ; Jo. Hamilton, Attorney-Greneral, for the people. Crockett, J., delivered the opinion of the Court : The defendant vs^as indicted for the crime of murder, in the killing of one Joseph B. Lowery. On the trial, another question was raised as to the ad- missibility of certain evidence offered by the defendant, and ruled out by the Court, under ^n exception by the de- fendant. The facts, as established by the evidence, were, that on the day of the homicide, Lowery (the deceased), with his wife and two children, left his house, which is several miles . distant from the i*esidence of the de- fendant, with the intent to visit the town of Dayton ; that after remaining at Dayton some hours, he started to return to his home, and in doing so, went into a stub- ble field of defendant, and broke down the fence for the purpose of allowing his hogs to enter the enclosure ; that the defendant was present and resisted these proceed- ings, but was unarmed ; that considerable angry discus- sion ensued, during which the defendant dragged the deceased from out the vehicle in which he and his wife and children were riding ; that the deceased had on his 598 THE PEOPLE V. SOOGGINS. person a pistol, which he had placed in his breast pocket the day before, never before then having been in the habit of carrying a pistol; that a scuffle ensued be- tween the deceased and the defendant, during which, one Crouch, took the pistol from the deceased, but sub- sequently handed it to the wife of the deceased, after both had returned into the vehicle ; that deceased then drove off, but shortly stopped again, and, rising up in an angry manner, threatened to tear down the fence, and ti:AT8. 599 would kill hijn inside of ten days," and that, on the very- day of the homicide, the deceased threw open the breast of his coat, and exhibited a pistol to the witness, and said "he would make the son of a bitch of Scoggins (the defendant), bite the dust before night with this," referring to the pistol. It was admitted that these threats were not communicated to the defendant at any time before the homicide, and the proof, as stated at the time by counsel, was offered as tending to show the bit- ter enmity and feeling of the deceased towards the de- fendant at the time of the killing, and his purpose in having the pistol in his possession, and that it was his intention to use it on the occasion when he was shot ; and as tending to prove the animus and intention of the deceased towards the defendant at the time of the homi- cide. The evidence was excluded by the Court, and the de- fendant, having excepted, relies on this ruling as error. If the threats of the deceased had been communicated to the defendant before the killing, the evidence would have been clearly competent. A person, whose life has been threatened by another, whom he knows, or has reason to believe, has armed himself with a deadly weapon for the avowed purpose of taking his life, or inflict- ing a great personal injury upon him, may reasonably infer, when a hostile meeting occurs, that his adversary intends to carry his threats into execution. The previ- ous threats alone, however, unless coupled at the time with an apparent design then and there to carry them into effect, will not justify a deadly assault by the other party. There must be such a demonstration of an im- mediate intention to execute the threat, as to induce a reasonable belief that the party threatened will lose his life, or suffer serious bodily injury, unless he imme- diately defends himself against the attack of his adver- sary. The philosophy of the law on this point is suffi- ciently plain. A previous threat alone, and unaccom- panied by any immediate demonstration of force at the time of the rencounter,' will not justify or excuse an 600 THE PEOPLE Y. SCOGGINS. assault, because it may be that tlie party making the threat has relented or abandoned his purpose, or his courage may have failed, or the threat may have been only idle gasconade, made without any purpose to exe- cute it. On the other hand, if there be at the time such a demonstration of force as vs'ould induce a well-founded belief in the mind of a reasonable person, that his ad- versary was on the e\e of executing the threat, and that his only means of escaping from death or great bodily injurj", was immediately to defend himself against the impending danger, the law of self-defence would justify him in the use of whatever force was necessary to avert the impending peril. In such a case, proof of the pre- vious l^ireat, and that it was communicated to the de- fendant, would be competent, as tending to show the animus of the party, and that the defendant acted upon a well-grounded apprehension that his adversary was about immediately to put liis threat into execution. But the question in this case is : whether or not pre- vious threats of the deceased, not communicated to tJie defendant, were competent evidence for any purpose on the trial. In the case of The People v. Arnold," 15 Cal., 476, the same question, substantially, was before this Court. * * * " The learned Judge here stated the facts of Arnold's case, and quoted at considerable length, from the opinion. This we omit from the text, and here give in full that part of the opinion of tlie Court in Arnold's case, -which relates to tlie doctrine of uncoHimuiiicated threats : Baldwin, J., — Cope, J., concurring: — The main question arises on the admissibility of certain testimony. Tlie defendant was indicted and tried for felouiouijly killing one John M. Sweeney. His plea was, that the homi- cide was in self-defence. The testimony was somewhat conflicting as to the facts occurring at the time of the killing, or, at least, was claimed to be so by the defendant. On the trial, one Lawrence Morris was a witness for the prosecution, and among other things, testified, that he was present on the twenty-fourth of August, 1859, at the difficulty that then occurred be- tween this defendant and Sweeney, in the course of which, the defendant discharged a double-barreled shot-gun at Sweeney, the charge from which took effect in his thigh, whereupon Sweeney fell forward ; that immediately thereafter, the witness approached Sweeney, and saw, lying on the ground, about six feet forward of him, a pistol, which the witness had previously seen in Sweeney's possession. The witness then proceeded to detail cir- UNOOMMUNICATED THREATS — AENOLD'S CASE. 601 "VVe have- made this liberal extract from the opinion, because, in our view of the case, it expounds the law of this case. If a deadly rencounter occurs between two persons, in which one is killed, and if the survivor claim that he acted in self-defence, the evidence of those who witnessed the transaction, may leave it in doubt which of the two was 'the assailant. There may even be very slight proof that the deceased was the aggressor ; and yet, if it be established, that, shortly before the affray, the deceased armed himself with a deadly weapon, de- claring, with apparent sincerity and earnestness, that he had procured it with a fixed determination to take the life of his adversary on sight, it cannot be denied that this would tend, in some degree, to corroborate cumstaiioes immediately comieoted with the difficulty, in which the witness himself, armed with a pistol, took an active part with Sweeney against the defendant and his sous ; and he then says, the pistol he saw lying on the ground after Sweeney fell, Sweeney borrowed from Mr. Cordes, some time before the twenty-fourth of August, 1859 ; that Oordes had, in the presence of witnesses, given the pistol to Sweeney, who said he would clean it ; and that he, (the witness), had often since that time, and before the twenty- foui'th of August, 1859, seen said pistol in Sweeney's possession. The defendant's counsel then asked the witness the following question : '• At the time Cordes gave the pistol to Sweeney, was ayij'thing said by Sweeney, with reference to using the pistol against the defendant, Phi- lander Arnold?" To this question, the counsel for The People, objected, on the ground that it was irrelevant and incompetent. The Court decided that the testimony was inadmissible, unless evidence was produced, tending to show that the thing said, had come to the kuowl- ■edge of the defendant, and sustained the objection ; to which decision, the defendant excepted. We do not understand that the testimony rejected was offered for the purpose of proving a threat on the part of the deceased. It is clear, that the mere fact that one man threatens to kill another, is no sort of justifica- tion to the latter to kill the former. The threats must be shown to have been communicated to the accused, before they are admissible for any purpose, and then the effect aad bearing of the testimony should be ex- plained by the Judge to the jury before the case is finally submitted to them. In this case, there is no pretence that this threat, if there was any, was so communicated. The ground taken by the defendant's counsel is, that the question presented to the jury by the proofs, was the question of fact, as to which one of these parties first assaulted the other ; and the de- fendant contended that the deceased was the aggressor in the fatal ren- counter, and had placed defendant in danger of his life, from which peril 602 THE PEOPLE V. SCOGGIWS. wliatever other evidence there was, tending to show that the deceased was the assailant. Of itself, and unsup- ported by other facts, it might, and probably would, be deemed wholly insufficient to establish the fact pro- posed. Nevertheless, it would constitiTte an item of proof, tending, it might be slightly, but still in some degree, toward the conclusion proposed to be estab- lished. The weight to be attached to it, is for the jury to consider, in connection with the other proofs ; and it would be the duty of the Court to explain to the jury, carefully, that the proof was admitted only as tending to corroborate whatever other evidence there was that the deceased was the assailant, and for no other pur- pose. he could only extricate himself by slaying his assailant. The couustl contends, that any fact wliich conduces to show that this theory is true, was legitimate evidence, and that this fact of the declarations of Sweeney at the time of borrowing the pistol, does so tend. The object of a trial is to elicit the real state of the transaction, and the rules which govern or determine the introduction of testimony have relation to this end. These rules are not mere arbitrary, conventional regulations ; they are founded in reason and good sense. Generally speaking, whatever has a tendency to prove a material part of the issue is admissible. This proof may be direct or inferential, or positive. It may be more or less conclusive, l)ut if it be relevant, this want of conclusiveness is no bar to its Introduction. The question in this case, as made by the prisoner, was the fiict of th& assault by the deceased ; and, in a conflict of proofs, the solution of this fact was, or might have been, dependent upon a variety of considerations ; and these were to be passed upon, and the conclusions reached by the jury, as the exclusive arbiters of this question. The defendant was entitled to urge all the considerations conducing to establisli liis theory, and to dis- prove that of the prosecution, which could be fairly presented to the jury. He had a right to urge, as well expressly proven fiicts, as the probabil- ities and inferences to be drawn from the conduct of the parties connecte, or great bodily harm, and therefore justified in taking the life of the plaintiff. We are unable fully to concur in this proposition. The rule of law which will excuse a homi- cide, as declared by this Coui t, m the case of Rippy v. The State, 2 Head, 217, [ante, p. 345,] is as follows : " The law on this subject is, that to excuse a homicide, the danger of life, or gi-eat bodily injury, must either be real, or honestly believed to be so at the time, and upon sufficient grounds. It must he apparent and imminent. Previous tlireats, or even acts of hostility, how violent soever, will not of themselves, excuse the slayer ; but there must be some words or overt acts at the time, clearly indicative of a present purpose to do the injury. Past threats and hostile actions, or antecedent circumstances, can only be looked to in connection with present demon- UNCOMMUNICATED T1[BEATS. 613 strations, as grounds of apprehension. To constitute the defence, the belief or apprehension of danger must be founded on sufHcient circum- stances to authorize the opinion that the deadly purpose then exists, and the fear that it will at that time, be executed." The question in this class of case-;, is always one of reasonable appre- hension; and to justify or excuse a homicide upon such ground, a case must not only be made out to authorize the fear of death or great bodily liarm ; but such fear must be really entertained, and the act done under an honest and well-founded belief that it is absolutely necessary to kill at this moment, to save himself from a lilie Injury. Morris v. Piatt, 4 Amer. Law Register, New Series, 523. [Post.'] The character of the deceased for violence, as well as his animosity to the defendant, as indicated by words and actions at the time, and before that time, are all proper matters for the jury, in the determination of the question of reasonable apprehen- sion. But how antecedent threats, not so recent as to constitute a part of the res gestw, which were unknown to the defendant at the time of com- mitting the act, can, in the .slightest degree, contribute to the formation of a well-grounded belief in the defendant, that he was in danger of life or limb, is more than we'can comj^rehend. If the question was a question of malice, the rule under some circumstances might be otherwise, and ante- cedent threats be admissible on a question of damages, or to establish the identity of the person committing the act. 2 Hilliard on Torts, 78, note a. But sucli is not the question in the present case, or the grounds upon Avhich the evidence is oifered. It is in justification of tlie act, or tending to establish such justification: and we know of no reason or authority under the facts of this case, by which the evidence was admissible, unless communicated to the plaintiif. 1 Hilliard on Torts, 206, note a. It may be added that this case, so far as it establishes the doctrine, that threats made hy the slain before the killing, and not communicated to the slayi-r, are not competent evidence for the slayer, has been overruled in Tennessee, by the subsequent case of Little v. The State, ante, p. 487. InNewcomb v. The State, .37 Mis.s., 383, the defendant was indicted for murder and convicted. The deceased was shot down deliberately, while sitting on a wagon-load of wood, and docs not appear to have been making any demonstration, or using any language to the defendant. 'I'he the. ory of the defence seems to have been mental derangement, produced by a severe beating the accused had received at the hands of the deceased, some six weeks before. Evidence of this transaction fl'a? admitted, but evidence of ijrevious tlireats made by the deceased against the accused, but not com- municated to him before the killing, hiiving been offered and excluded, and these rubngs, having been assigned as error, were disposed of as fol- lows in the High Court. Handy, J.: * * * "Tlietliird assignment of error relates to the exclusion of the testimony offered in behalf of (lie ac- cused, and set forth in the second bill of exceptions. This testimony ^^•as in substajice, that about six A\eeks or two months before the killing, the deceased liad commenced a quarrel with the accused, during which the de- ceased assaulted the" accused and struck him one or two severe blows on the head, with a loaded cane, which felled him to the ground, inflicting a severe wound on his forehead. That the witness ani others helped the ac- cused up, and took him to water in abranch which was near, to wash off the 614 SCOGGINS V. THE PEOPLE. blood and the accused stepped into the water, and the witness pulled hiui' back, and told him to stop and wash oil the blood ; and he asked how the blood came-on him, and when told that deceased had struck him, he enquired' what he had struck him for, as he had nothing against the deceased. And iu order to show the relevancy of this testimony, other witnesses were oflfered to prove that the deceased said on that day, that he expected he had killed the accused and would have to leave the country ; tliat if he had not, he would kill him, that he afterwards said that he had not killed the accused but would do so, if he ever crossed his path. It was admitted hy the ac- cused that these threats of the deceased were not communicated to him be- fore the kUliiig. This evidence was excluded, except that part of it which related to the assault and beating with the cane, and the conduct and con- yersation of the accused when taken to the water, and whilst the witness was washing oif the blood ; and this part of the testimony was allowed to go to the jury, in order to show the condition of the mind of the accused,^ and upon the subject of his sanitj'. " It is insisted that tlie testimony thus rejected was competent to show the intent with which the killing was done, by presenting to the consid- eration of the jury, the cruelty and ferocity of the conduct of the deceased in assaulting and beating the accused, showing the character of the de- ceased, and the just apprehension of the accused at the time of the killing, that he was then in danger of his life, or of great bodily harm from the de- ceased. But this view is wholly untenable. It does not appear, from the evidence, that the deceased made any hostile demonstrations against tlie accused at the time of the killing, nor even that the threats, which he had previously made against the accused, were known to the accused. The lat- ter had no reason to believe that the feelings of hostility which caused the deceased to assault and beat him on a previous occasion, still continued in his mind, much less that there was danger of a deadly assault upon him by the deceased at the time of the killing. It is well said by Cliief Justice JRuFFLN, ' The belief that a person designs to kill me, will not prevent my killing him from being murder, unless he is making some attempt to exe- cute his design, or, at least, is ift an apparent position to do so, and thereby induces me reasonably to think that he intends to do it immediately.' State V. Scott, 4 Ired., 415, [ante, p. 163.] In this case, the accused could not reasonably have acted upon such a belief at the time ; for the deceased was unarmed, and does not appear to have been in possession of any instru- ment with which to make a deadly assault, and the accused was armed with a gun and pistol, and was so located towards the deceased tliat he could readily have used his arms in case of any hostile demonstration on the part of the deceased. "The etfect of this evidence, had it gone to the jury, might have been,, then, to operate in justifioation of the killing, by the mere fact that the de- ceased had severely beaten the accused some six weeks or two months pre- viously ; which would have been clearly incompetent. The testimony was, therefore, properly excluded." The effect which ought to be given to evidence of threats in trials for homicide is fully passed upon in Wall v. The State, 18 Tex., G82. Wall met Prayter and dunned him for some money. Prayter denied owing him any money. Wall insisted that he did, and Prayter replied, "Its THREATS — wall's CASE. 615 a damned lie," or " You are a damned liar." Wall immediately dreAT a knife, called a hack-knife, and stabbed Prayter under the ribs, of which he died. This was on the 29th of May. Wall was immediately pursued arid arrested; was indicted the next day ; June 2d, a special venire was sum- moned and the list furnished him. Being unable to employ counsel, two members of the bar were appointed to defend him. June 3d, the case was called for trial, when the defendant presented an affidavit for a continu- ance, alleging that he could not safely go to trial for want of the testimony of James T. Kelly, by whom he expected to prove that Prayter had made threats against him. It was held by the Supreme Court, Wheeler, J., that the motion was properly refused — 1. Because it did not appear that the attendance of the witness might not have beeu procured, or that he could not prove the facts by other ynt- uesses ; 2. Because testimony of mere threats of the deceased, would have been, If received, no extenuation of the crime. We shall, in the index, make a summary, giving briefly what appears to be the result of the cases included in this volume on the doctrine of threats ; showing — 1. Under what circumstances evidence of previous threats made by the plaintiff, prosecutor or deceased, in trials for homicide or prosecutions for assault or actions for civil damages, is admissible : (a). Where the threats were communicated to the defendant before the issault or killing ; (6). Where the threats were not communicated to the defendant prior to the assault or killing. 2. The effect which ought to be given to such threats as evidence. TACKETT V. THE STATE. [1 Hawks, 210.] Supreme Court of North Carolina, December Term, 1820. John Louis Tatloe, Chief Justice. John Hall, \ r ^ Leonard Henderson, [ •^^^*5'«*- Homicide — Character op deceased for violence. 1. It is competent for one charged with the murder of a slave, where the 616 TACKBTT V. THB STATE. proof of the killing is circumstantial only, to give in evidence, that the deceased was turbulent, impudent and insolent to white persons. [See the next case, where this case is examined and limited.] 2, What degree of danger will excuse a homicide ; and what degree of provocation will extenuate it to manslaughter. Indictment for the murder of a slave. The prisoner offered to prove that the deceased was a turbulent man, and that he was insolent and impudent to white per- sons ; but the Court refused to hear such testimony, un- less it would prove that the deceased was impudent and insolent to the prisoner, in particular. Taylor, Ch. J., delivered the opinion of the Court : After stating the points, he observed, that it does not appear, from any direct proof in the case, what was the immediate provocation under which the homicide was committed. The evidence relative to that is altogether circumstantial and presumptive, and its weight and ef- fect required the most careful examination and delibera- tion of the jury. The conclusion they might arrive at, was all-important to the prisoner, since the degree of the homicide depended upon it ; and whether it was ma- licious, extenuated or excusable, must have been deter- mined by tliem from such lights as they could gather from the facts, actually proved, and such inferences as they might deduce from them. It cannot be doubted, that the temper and disposition of the deceased, and his usual deportment towards white persons, might have an important bearing on this enquiry, and according to the aspect in which it was presented to the jury, tend to di- rect their judgment as to the degree of provocation re- ceived from the prisoner. If the general behavior of the deceased was marked with turbulence and insolence, it might, in connection with the threats, quarrels and ex- isting causes of resentment he had against the prisoner, increase the probability that he had acted under strong and legal provocation. If, on the contrary, the behavior of the deceased was usually mild and respectful to- wards white persons, nothing could be added by it to the force of the other circumstances. They must still CHARACTER OF DECEASED FOE VIOLENCE. 617 ■depend upon their own weight, and the probability be lessened that the prisoner had received a provocation sufficient in point of law to extenuate the homicide. The evidence, therefore, ought to have been received, and this will be the more apparent when the charge to the jury is considered. [The remaining portion of the opinion considers (1) what degree of danger will excuse a homicide, and the rule is said to be, that in order to reduce a homicide to excusable self-defence, it is incumbent on the accused to prove that he killed his adversary through mere ne- cessity, in order to avoid immediate death ; and (2), what degree of provocation will extenuate a homicide to manslaughter, and the sound principle is said to be, that if any assault made with violence or circumstances of indignity upon a man's person, be resented immedi- ately by the death of the aggressor, and he who is as- saulted act in the heat of blood, and upon tliat provocar tion, it will be but manslaughter ; and, also (3), what degree of provocation on the part of a slave toward a white man will extenuate the killing of such slave, and the rule is laid down, that a less degree of provocation on the part of a slave than on the part of a white man will suffice, and that in such a case, a charge " that a slight blow, not threatening death or great bodily harm, will not extenuate a homicide, if the weapon be a deadly one," is erroneous.] NoTK. —The rule of evidence declared in this case, in behalf of a white person, indicted for the murder of a slave, was held not to obtain where a slave was indicted for the murder of his overseer, so far as to admit evidence of the violence and cruelty which characterized deceased in the genera management of slaves ; and one of the reasons given for the exclusion of this testimony was, that to admit it would be in contravention of the policy of slavery. Wesley's case, ante, p. 319. How far the law of homicide was affected by slavery, constituted at one time an interesting chapter in American criminal law. See Whart. Horn., 286. But the learning on that subject is now a thing of the past. in Bottoms v. Kent, 3 Jones' Law (N. C), the principal case is said by Pearson, J., to be overruled by Tilly's case, or " so emasculated as not to be able to generate aprinciple, and is expressly confined to its peculiar circum- stances. * * * Indeed, Tackett's case is not supported by any authority, either in the English reports or in our own, and the judges yielded to the 618 THE STATE V. BAKFIELD. seeming- hardship in the application of the general rule. Had the case beea reversed, so as to present the question, was it admissible for The State to prove the deceased was mild and submissive in his temper, we presume an exception would not have been made to the general rule." THE STATE v. BAKFIELD. [8 Ieebell, 344.] Supreme Court of North Carolina, June Term, 184B. Thomas Kuefib", Chief Justice. Frederick Nash, ] t j William H. Battle, [ '^^^^^*- Homicide — Evidence of charactbk of deceased for violence. 1. On a trial for murder, evidence of the general character and habits of the deceased as to temper and violence cannot be received, unless, pos- iibly, in cases where the evidence as to the homicide is wholly circumstan- tial. [Tackett's case, ante, last case, criticized. Ace. Wesley's case, ante, p. 319; Wright V. State, anie, p. 484, note; Field's case, yosi; and other cases collected in the note to Lamb's case, post.} 2. Battle, J., dissenting : Testimony of the character of the deceased for violence may be offered by the prisoner in all cases, where the enquiry is, whether he acted from malice or upon legal provocation or excuse. [Ace. Copeland's case, ante, p. 41 ; Robertson's case, ante, p. 151 ; Cotton's case, ante, p. 310; Rippy's case, are^e, p. 345; Monroe's case, ante p. 467 ; Robert Jadikson's case, ante, pp. 476, 486 ; Little's case, ante, p. 487 ■, Keen- er's case, ante, p. 546 ; Quesenberry's case, ante, p. 549, note ; Tackett's- case, ante, last case; Pritchett's case, post; Franklin's case, post; and see Lamb's C!ise,post; and other cases collected in the note to the same.] The prisoner was indicted for the murder of Alfred Flowers ; was tried and convicted, but, upon an appeal to the Supreme Court, the judgment was reversed, and a venire de novo aw^arded. 7 Ired., 299. Mrs. Flowers, widow of the deceased, stated that the prisoner came to her husband's about one o'clock of the day on which the homicide was committed ; that he and her husband appeared to be friendly, and her husband CHARACTER OF DECEASED FOR VIOLENCE. 619 invited him to drink ; that, shortly afterwards, a quarrel arose between them, in consequence of some offensive language used by the prisoner, and after a short time, she heard her husband complain to the prisoner that he had cut his pantaloons ; and the witness said the pan- taloons were cut, but she did not see by whom, or how it was done ; that the parties then appeared to become friendly, and continued to drink together until her hus- band became very drunk, and the prisoner excited by liquor, but not drunk ; that the prisoner and her hus- band were connected by the marriage of the former with an aunt of the latter, and, that the latter frequently called him Uncle Jack; that towards night, another quarrel arose between them, and her husband went out of doors, when the prisoner shut the door on him, and refused to let him come in ; but upon her husband's getting a pestle to beat down the door, and her interpo- sition, the door was opened; that her husband then took a chair and sat down, and told the prisoner that he had come there uninvited, and he might take the road and go home ; that the prisoner then commenced giving the damned lie to everything said by her husband or her- self; that her husband rose from his chair, saying he could not stand it, and, as he did so, the prisoner came towards him with his knife drawn, and thrusting it at him ; that her husband, thereupon, raised his chair and pitched it over the prisoner's head, without intending, as she thought, to strike him ; that, in the effort to throw the chair, her husband staggered and fell, upon which the prisoner instantly rushed upon him, and gave him several stabs while he was down ; that she assisted him to rise, and he went towards the door, where the prisoner followed, and stabbed him once or twice more in the back ; that she then assisted him to the bed, upon which she laid him down, and soon after he died. She also testified, that the prisoner mocked her, and said he had laid Alfred cold. On the part of the prisoner, Eobert Flowers, a son of the deceased, fifteen or sixteen years old, testified ; That 620 THE STATE V. BAKFIELD. he was not at home until late in the day on which the homicide was committed ; that when he went into the house, he saw the prisoner sitting on the table with a gun in his hand, and that he requested the prisoner to give it to him, and he immediately complied; that he Avent out of doors, and when he came back, he found the prisoner lying on the bed ; that his father sent him to draw some liquor, and when he returned, he found his father sitting on a chair near the door ; that some angry words passed between his father and the prisoner, and that the latter was standing near the middle of the room, and cursed the liquor ; that his father rose up and took a light chair in his hand, and pitched it over the head of the prisoner, without touching him, and, as the witness believed, without intending to strike the pris- oner ; that, in doing so, his father staggered and fell, when the prisoner rushed upon him instantly and stabbed him ; that he did not see the prisoner have a knife in his hand, when he first came towards his father, but he saw the prisoner draw it from his pocket at or about the time his father raised the chair ; that immediately after his father was stabbed, he got up and went towards the door, and the prisoner followed him and stabbed him in the back, and his father then went to the bed, laid down, and in a few minutes, died ; that he did not see his mother assist his father to get up, or to get to the bed, and that he thought if it had been so, that he would have seen it ; that, after his father was dead, he went out of the house, and saw the prisoner at the gate, and asked him vrhy he had killed his father ; to which the prisoner replied, " that if he did not clear out, he would send him off with a cut throat." John Flowers, a son of the deceased, still younger, testified for the defendant substantially the same as his brother, except, that he said the prisoner was advancing on his father when he raised the chair. The counsel for the prisoner then offered to prove, by a witness who had formerly lived with the deceased, that his general character was that of a violent, over- CHARACTER OP DECEASED FOR VIOLENCE. 621 bearing and quarrelsome man, and that such were his domestic habits; but, tlie State objecting, this evidence was rejected. An unsuccessful effort was made to impeach the testi- mony of Mrs. Flowers. The counsel for the prisoner urged before the jury, that she was not entitled to credit, and that, taking the case on the testimony of the two sons, there was such a provocation as mitigated the killing to manslaughter. The Judge charged the jury that, if Mrs. Flowers was to be believed, the killing was murder. But, if they did not believe her, then they would look to the testimony of Robert and John Flowers, in order to ascertain the degree of the homicide; and, in regard to their testi- mony, the Court stated to the jury, that, if the deceased pitched the chair over the head of the prisoner, without intending to strike him, and that was manifest to the prisoner, then there was no such legal provocation as would mitigate the killing to manslaughter; but the prisoner would, in that view of the case, be guilty of murder. The .jury found the prisoner guilty of murder; and the counsel for the prisoner, besides an objection not necessary to note, moved for a venire de novo, (1), be- cause the jury were misdirected; (2), because of the ex- clusion of the evidence of the violent character of the deceased. RuFFiN, Ch. J., delivered the opinion of the Court : [After reviewing the facts of the case, and concluding that in the instructions there was no error to the preju- dice of the prisoner, he proceeded:] It is of great importance to the due dispatch of busi- ness, and the correct decision of controversies, that no evidence should be heard which is foreign to the issue ; and this rule is no less applicable and useful in crimi- nal, than in civil cases, Upon this principle, and be- cause, if received, the evidence of the general character and habits of the deceased, as to temper and violence, 622 THE STATE V. BAEFIELl*. could not rationally and legally affect the degree of homicide in this case, but might mislead the jury, the Court holds that it was properly excluded. The law no more allows a man of bad temper and habits of violence to be killed by another, whom he is not assaulting, than it does the most peaceable and quiet of men. But it is said, that it ought to be heard as some evidence to weigh with the jury ; that the de- ceased being, habitually, a brawler and breaker of the peace, was, probably, in this particular controversy, the aggressor, or, at least, that the slayer might, for that reason, have thought himself in danger from him, and acted on that apprehension. Now, no such principle or decision is found, as that a person may kill another, be- cause from his former course of life as a fighter, he ap- prehends an assault from him, though it be even a vio- lent one. A person may, indeed, receive such sure in- formation of the intention of another to attack his life upon sight, as to cause him fully to believe it ; and, in a moral point of view, he may, in such cases, be excused for getting the advantage on a favorable opportunity, and killing first, or even for seeking private means of killing the other, in order, as he thinks, to save his own life. The pardoning power would, doubtless, be strongly moved by those palliating considerations, to stay the punishment annexed by the law to the offence. But, it is clear that the legal guilt would be that of murder ; because there was not, at the time, a pressing necessity to kill, arising out of an assault, and immediate danger to the person killing, nor any accompanying provocation to arouse the passions, and acted on before the passions had cooling time.*^ It would be murder, because the killing would be de- liberate ; and we know of no deliberate killing that is not murder, unless it be commanded by the law, or jus- tified by the urgent necessity of self-defence, when the party is in impending peril of the loss of life, or great bodily harm, from an actual and iinavoidable combat. •Ace. Scott's case, ante, p, 10,3. CHABAOTEE OF DECEASED FOR VIOLENCE. 623 It is too much to stake the life of one man upon the fears of another of danger from him, merely upon his charac- ter for turbulence, and when he is making no assault. Such would be the case here, if the evidence had been received ; for the prisoner's own witnesses proved that there was no assault on him. It is the fact, and not the fear of an assault, that extenuates the killing, upon the supposition that it instantly arouses the resentment to an uncontrollable pitch. It is possible, where the case is one of circumstantial evidence, and there is no direct proof of the quarrel and combat, that evidence of the character of the deceased might be mercifully left to the jury, in aid of their enquiries into the origin and progress of the conflict, in which the prisoner took the other's life. It was allowed, and, on that principle, in Tackett's case,"! Hawks, 211. That is the only instance, in which even in a case of circumstantial evidence, such proof was held to be proper, as far as our researches and those of the bar have discovered. It is stated in the notes in the American edition of Phillips on Evi- dence, as a solitary case, and as one, in which the Court admitted that such evidence must be confined to the killing of slaves. Cowen & Hill's notes to Phil, on Ev., 461, note 345. Although the case is not, we think, ob- noxious to the sneer of the annotator, in respect to its application to the killing of slaves alone, yet, we cannot act on it as an authority in this case. It does not pro- fess to be founded on any precedent, and the reasoning of the Court confines its application to the case of pre- sumptive evidence before it, in which there was " not any direct proof" of the immediate provocation or cir- cumstances under which the homicide was committed. In such a case, the Court say, " if the general behavior of the deceased was marked with turbulence and inso- lence, it might, in connection with the threats, quarrels and other existing causes of resentment against the prisoner, increase the probability, that the latter had acted under strong and legal provocation ; while, on the I" Ante, last case. 624 THE STATE V. BAEPIELD. contrary, if the behavior of the deceased was usually mild and respectful towards white persons, nothing- could be added by it to the force of the other circv/m- stancesy It is plain, therefore, that the decision is put distinctly upon the ground, that the case was one of cir- cumstantial evidence only, in which the existence or want of provocation was matter merely of presumption, to be deduced, therefore, by the jury, from every slight thing that could add a shade to the presumption fa- vorable to the accused. The case has never come di- rectly under consideration hitherto ; though it was urged in Tilly' s case," 3 Ired., 424, where evidence nearly of the same kind was rejected, and in which the Judges meant to intimate their doubts of it by saying, that temper and deportnient, " if they were evidence at all," were to be established as facts, and not by repu- tation.'* But, whether Tackett's case be law or not, it has no application here ; because, this is a case of the opposite kind — one in which three witnesses were pres- ent, from beginning to end, who deposed directly to the different occurrences — and even those who were called by the prisoner prove, affirmatively, that the deceased did not not make an assault, or give the prisoner any legal provocation, but that the prisoner was the aggres- sor." What possible, legitimate end, could evidence of the character and temper of the deceased answer in that state of facts ? If good, and ther^ was direct evidence that the deceased assaulted the prisoner, it would not aggravate the prisoner's guilt, and make it murder. So, if bad, it could not mitigate it to manslaughter, where it appears directly, that, notwithstanding his temper, he was, for that time, at all events, not in fault, but that ' Post, note to Lfimb's case. "■But see note c. to Keener's case, ante. p. .^47. But why was the defendant put to the disadvantage of calhiig tht'.-c children of the person slain, and mailing them his own witnesses? In tlu^ very nature of the case, they were the State's witnesses ; and, it would seem, that the State's attorney should have been required to call and ex- amine them in behalf of the State. See Kurd's case, post, where (h(- rule of practice in such cases is stated. CHAEACTER OF DECEASED FOR VIOLENCE. 625 the prisoner was. The evidence of the deceased's char- acter neither disproves the facts proved by the wit- nesses, nor impeaches their credibility. For these rea- sons, and because, we think, if there were any such gen- eral rule of evidence, as that urged for the prisoner, it would have been laid down in some one of the numerous treatises on this branch of the law, the Court hold the evidence was properly rejected. *********** Battle, J., dissenting : I cannot concur with the ma- jority of the Court upon the question of the admissibil- ity of the testimony offered by the prisoner, to show the character of the deceased for violence. It is with unaf- fected diffidence that I place my opinion in opposition to their's ; but, in doing so, I am consoled by the reflection, so often felt and expressed by j udges placed in a similar situation, that the conclusion to which I have been led, however erroneous, will, at least, be harmless. A homicide committed otherwise than by virtue of a legal precept, must be either mxirder, manslaughter, or excusable homicide. With malice, it is murder ; and even in the absence of express malice, it is still mur- der, unless the prisoner can show, from the attendant cir- cumstances, that it was prompted by legal provocation, committed by accident, or rendered necessary in self-de- fence. Every fact and circumstance which surround the main fact of the homicide, become, therefore, matters of vital importance, and ought to be admitted in evidence when they can throw the least light upon it. It seems to me that the character of the deceased for violence, is one of those attendant circumstances, which wiU always have some, and often an important bearing upon that which must necessarily be the subject of investigation ; that is, what were the motives which impelled the slayer to act. Take first the case where the prisoner defends upon the ground that he killed his assailant in his necessary self- protection. To sustain his defence, he must show to the satisfaction of the jury, he was assailed, and that he had retreated as far as he could with safety to his own life, 626 THE STATE V. BABFIELD. before giving the mortal stroke, or that the violence of the assault was such that retreat was impracticable. Is it not manifest that his apparent danger would de- pend much upon the character of the assailant for mild and amiable temper, or for violent and ungovernable pas- sion ? "With an assailant of the former character, he would have little to fear, under circumstances in which, with the latter, his life would be in great peril. Let it be recollected, too, that he has to judge and to act at the in- stant, upon the most tremendous responsibility. If he strike too soon, he is condemned to a felon's death upon the gallows ; if he strike too late, he falls by the hand of his adversary. Surely the jury who tries him, ought not to require from him proof of the same forbearance when attacked by a man of blood, as when attacked by a man of peace. His danger would, undoubtedly, be greater in the one case than in the other. Why, then, not allow him to prove it ? There is certainly nothing in the nature of the testimony which ought to forbid it. Proof of the su- perior physical strength of the deceased, is always admit- ted.'' Why, then, not admit proof of that which gives to the physical strength much of its force and all of its dan- ger ? It appears to me, too, that the privilege which the prisoner has of giving in evidence his own peaceable gen- eral demeanor, is of an analogous nature. Testimony of the kind is not only admissible for the prisoner, but it is said by very high authority, that it is often testimony of much weight. Chief Justice Hewdeeson says, in the case of the State v. Lipsey, 3 Dev., 493, that the peaceable and orderly character which the prisoner had ever borne, had, I think, 7)ioTe tlian" 'but little weiglit,'' ^\viQh. the judge in the Court below had been disposed to allow, when the facts, attending the homicide, had been positively sworn to. The character of the prisoner is offered only as pre- sumptive evidence, and the character of the deceased is offered for no more ; but as presumptive evidence, it does ' Ace. Selfiklge's case, ante, p. 1 ; Copeland's case, ante, p. 41 ; Ben- liam's case, ante, p. 115 ; Hiuton's case, ante, p. 83 ; Wells' case, ante, p. 145, and others. CHAEACTER OF DECEASED FOE VIOLENCE. 627 seem to me to be as strong, and, therefore, ought to "be as readily admitted as the other. If I have "been successful in showing that the testi- mony of the violent character of the deceased ought to "be admitted for the prisoner, when he defends upon the ground of killing in self-protection, the same process of reasoning will lead to the conclusion, though • in a less striking manner, that it ought to be admitted to show that the prisoner acted upon a legal provocation. That, which would be considered legal provocation, when of- fered by a man apt to strike and ready to shed blood, might, very properly, not be so regarded when offered by one of a contrary disposition. But it is said that the right to kill does not depend upon the character of the slain — that the law throws its mantle of protection equally over the violent and the gentle, as the rain falls from heaven, equally upon the just and on the unjust. That is admitted, but it proves nothing. It is true that the kill- ing of a violent and blood-thirsty man, without provoca- tion or excuse, is as much murder as the killing of any other person ; but in ascertaining the fact whether there was such provocation or excuse, I contend that the character of the violent man affords important presump- tive testimony in favor of the accused. It is urged again, that where the proof is positive and clear, that there was no legal provocation, the evidence of character can have no effect, and on that account ought to be rej ected. To this I answer, that, plenary proof on one side can never justify the rejection of testimony, otherwise competent, on the other. The argument confounds the effect and the competency of testimony. Testimony which is compe- tent, which may be introduced at all, may be introduced, no matter how little may be its effect — nay, even, if it be perfectly manifest in the particular case that it can have no effect whatever. It is urged, further, in the case be- fore us, that the jury havefoiind that there was no legal provocation, and, therefore, the evidence must be rejected as being entirely immaterial and useless. The reply is, that it was offered hefore the jury had so found, and if 628 THE STATE V. BAEFIBLD. it had been admitted, it is possible that their delibera- tions might have led them to a different conclusion. But it is urged, finally, that there is no authority in favor of the admissibility of such testimony. However this may be elsewhere, I contend that it is not so in this State. In the case of the State v. Tackett,*^ 1 Hawks., 210, the pris- oner was indicted for the murder of a slave. No witness was present when the homicide was committed ; and the testimony against the prisoner, consisted, principally, of his declarations, and of circumstances connected more or less remotely with the transaction. In the progress of the cause, the prisoner offered to prove " that the de- ceased was a turbulent man, and that he was insolent and impudent to white people ; " but the Court refused to hear such testimony, unless it would prove that the deceased was insolent and impudent to the prisoner in particular." The prisoner, having been convicted, and having appealed to this Court, it was decided that the testimony was proper, and ought to have been admitted. Taylor, Chief Justice, delivered the unanimous opinion of the Court, in which, after remarking upon the charac- ter of the testimony, and the nature of the enquiry, he said : " It cannot be doubted that the temper and dispo- sition of the deceased, and his usual deportment to- wards white persons, might have an important bearing upon the encLuiry, and, according to the aspect in which it was presented to the jury, tend to direct their judg- ment as to the degree of provocation received by the prisoner. If the general behavior of the deceased was marked with turbulence and insolence, it might, in con- nection with threats, quarrels, and existing causes of re- sentment, he had against the prisoner, increase the prob- ability that the killer had acted under a strong and legal provocation." Here, there is a case in which it was dis- tinctly declared, that the character of the deceased might be offered in evidence in behalf of the prisoner. An attempt is made to destroy the effect of this decis- ion, and of its applicability to the case before us, by say- e Ante, last case. * SYLLABUS. 629 ing that it is an authority only in a case where the de- ceased was a slave, and where there was no direct testi- mony as to the provocation under which the prisoner -acted. To the first of these objection^, the reply is, that the Court certainly did not assign the fact of the de- ceased being a slave, as a reason for admitting the testi- timony. It is true that a slighter cause would be a legal provocation in the case of a slave, than in the case of a white man ; but they did not intimate that the provoca- tion was to be proved by a different kind or degree of testimony. The second objection is better founded ; but I cfoU see no reason for the distinction. The testimony as to character, may, perhaps, be stronger in the case where there is no direct and positive evidence as to the provocation, than where the evidence is only circumstan- tial ; but, its object and its office are the same in both cases ; that is, to ascertain whether the slayer acted upon, or without, a sufficient provocation. If admissible, then, in one case, it ought not to be rejected in the other. Upon the whole, I am of opinion that the testimony of the character of the deceased for violence, may be offered by the prisoner, in all cases, where the enquiry is whether he acted from malice, or upon legal provocation or excuse. Judgment affirmed. THE STATE V. FIELD. [14 Maine, 244.] Supreme Judicial Court of Maine, April Term, 1837. Nathan Weston, Chief Justice. Nicholas Emery, ) r,.„^,.,.„ Ether Shepley, \ '^^^^*^«*- Homicide — Character of Deceased for Violence. It is not competent for one indicted for manslaugliter to prove, on the •trial,.that the deceased was well-lcnown, and understood, generally, by the accused and others, to be a drunken, quarrelsome, savage and dangerous 630 THE STATE V. FIELD. man. [Ace. Barflekl's case, ante, last case ; Wesley's case,, ante, p. 319 ; Wright V. State, ante, p. 484, note; Fields' case,^o«i!; and other cases col- lected in the note to Lamb's case, post. Contra, Copeland's case, ante, p. 41 ; Robertson's case, ante, p. 151 ; Cotton's case, ante, p. 310 ; Hippy's case, ante, p. 345 ; Monroe's case, ante, p. 467 ; Kobert Jackson's case, ante, pp. 476, 486 ; Little's case, ante, p. 487 ; Keener's case, ante, p. 546 ; Quesen- berry's case, ante, p. 549, note ; Tackett's case, ante p. 615 ; Pritchett's case, post; Franklin's case, jdosi;; Lamb's case, ^o«if ; and other cases col- lected in the note to the same.] Hanson Field was indicted for manslaughter, in kill- ing one Nathaniel Field, on the 22d of December, 1835. The prisoner and the deceased both occupied different parts of the same house. It appeared, at the trial, that the prisoner and the deceased had both been drinking on that day, and had had a violent quarrel about half an hour before the one in which Nathaniel was killed, in which both were badly injured, the injury to Nathan- iel having been inflicted with an axe. Afterwards, Na- thaniel, who was a much younger, and more vigorous man, than the prisoner, went into a room in the part of the house occupied by the prisoner, but which each had an equal right to occupy, where the prisoner was, and, immediately on entering, was struck by the prisoner with an axe, and instantly killed, It was proved, that Hanson Field was passionate, and accustomed to use threatening language, when intoxicated, but was not considered dangerous ; and that, when sober, he was a kind and peaceable man, and a good neighbor. The counsel for the prisoner offered to prove, that the deceased was a man in the habit of drinking to excess, whenever he could get rum, and, that drinking spirits of any kind, uniformly had the eff"ect to make him exceed- ingly quarrelsome, savage and dangerous ; that he had, when in liquor, frequently threatened the life of his wife and others ; and that the prisoner had, more than once, been called upon to protect his wife and family from his drunken fury ; and that his habits and character were well known and understood by all about him. Emeey, J., who presided at the trial, refused to permit this evidence, and ruled, that no evidence of his drink- ing or habits could be received at any other time, 4;haiiL CHAEACTER OF DECEASED FOR VIOLENCE. 631 on the day that the deceased was killed. The verdict was, " guilty." To this ruling and decision of the Judge, the counsel for the prisoner excepted. W. P. Fessenden, for the prisoner, said, that guilt or innocence depended on the state of mind and uiotiTes of men. To ascertain this, the evidence offered was perti- nent and proper. The accused had the right to show such facts as would convince the jury, that he had good reason to believe, from his knowledge of him, that the deceased would kill him, unless he protected himself. If the accused thought, from his knowledge of the char- acter and conduct of the deceased, when he broke into the room, that his own life was in danger, he was justi- fied in cutting him down for the preservation of his own life. The evidence should, then, have been admitted. The authorities go to that extent. 5 Yerger, 459 ;'' U. States V . Wiltberger,^ 3 Wash. C. C, 515. Clifford, Attorney-General, for the State. The opinion of the Court, after a continuance, was drawn up by Emeey, J., as follows : The defendant, on an indictment for manslaughter, for killing Nathaniel Field, on the 22d of December, 1835, has, by the verdict of a jury, been found guilty. In the course of the trial, evidence was proposed to be offered, that the deceased was a man in the habit of drinking to excess, whenever he could get rum, and, that drinking spirits of any kind, uniformly had an effect to make him exceedingly quarrelsome, savage and danger- ous ; that he had, when in liquor, frequently threatened the life of his wife and others, and, that the prisoner had, more than once, been called upon to protect his wife and family from his drunken fury, and, that his habits and character were well known and understood by all about him. The Judge refused to admit the evidence, and ruled that no evidence of his drinking or habits, could be re- ceived at any other time than on the day aforesaid. » Grainger's case, ante, p. 238. '^Ante, p. 34. 632 THE STATE V. FIELD. The argumeni of the defendant's counsel is : that if the defendant had good reason to believe, that JSTathan- iel, the deceased, intended to kill him, and that he burst open the door with that intent ; that the evidence of the savage and dangerous character of Nathaniel, when in liquor, and his habit of drinking ardent spirits, should have been admitted, to relieve the defendant from the imputation of guilt, because, it would be inferred that he acted promptly to preserve his own life ; that his mo- tive was justifiable. A case in 5 Yerger, 459,° and the cases of the United States V. Wiltberger,'' 3 Washington's C, C. E,., 515, and Selfridge's " case, are cited in support of the positions assumed bv the counsel for the defendant. Wiltber- ger's case was finally decided in the Supreme Court of the United States, on a question of jurisdiction, in favor of the prisoner, notwithstanding the verdict against him in the Circuit Court. 5 Wheat., 76. But to the law, as stated to the jury by Judge Washington, upon the branch of the case, in any degree applicable to the present topic, we cordially assent. "A man may oppose force to force in defence of his person, his family, or property, against one who manifestly endeavors by sur- prise or violence, to commit a felony, as murder, rob- bery, or the like. But to justify killing the aggressor, 7us apparent intent must be to commit a felony. That apparent intent is to be collected from the attending circumstances, the manner of the assault, the nature of the weapon used, and the like, and it must appear that the danger was imminent, and the species of resistance used, necessary to avert it." Of the benefit of all these attending circumstances, the defendant. Field, availed himself on the trial, through the faithfulness and ability of his counsel The trial of Selfridge took place in 1806. That of the United States v. Wiltberger, in 1819. And, perhaps, it would be doing no injustice to the high desert of the "Grainger's case, ante, p. 238. ^ Ante, p. 34. -Ante, p. 1. CHABACTEE OP DECEASED FOR VIOLENCE. 633 learned Judge Washington, who presided in the latter trial, to imagine that he might have had the benefit of the lucid charge of the late Chief Justice Paesons to the grand jury, so far as it is made known, in the com- mencement of the report of Selfridge's trial, as well as of the interlocutory decisions, so to speak, of Judge Paekee, and his charge on summing up to the jury of trials. The coincidence of expression is striking. Pae- sons, Ch. J., had charged the grand jury, that a. bare fear, however well-grounded, unaccompanied by any open act, indicative of such an intention, will not war- rant him in killing. Austin, the young man slain, was the son of a gentle- man, against whom the defendant, Selfridge, had pub- lished in a newspaper a libel on the morning of the con- flict. The deceased was standing with a hickory cane in his hand, near the corner of Suffolk buildings, in Boston. Having cast his eyes upon Selfridge, who was coming down, crossing State street diagonally toward the U. S. Bank, his hands behind him, outside of his coat, without anything in them, Austin shifted his cane to his right hand, stepped quick from the sidewalk to the pavement, advanced upon the defendant with his arm uplifted. As the deceased approached, the de- fendant put his right hand into his pocket and took out his pistol, while his left arm was raised to protect his head from an impending blow. The defendant turned, stepped one foot back, a blow fell upon the head of the defendant, and the pistol was discharged at the deceased, at one and the same instant. Several blows were afterward given, and attempted to be par- ried by the defendant, who threw his pistol at the de- ceased, seized upon his cane, which was wrested from him by deceased, who, becoming exhausted, fell down, and in a few minutes, expired. The late learned and excellent Judge Paeker, alike distinguished for native sagacity, courtesy of manners, benevolence, and intrepidity in discharge of duty, who, previous to his advancement to the station of Chief Jus- 634 THE STATE V. FIELD. tice, presided at the trial of Selfridge, in charging the jury, doubted whether self-defence could, in any case, he set up, when the killing happened in consequence of an assault only, unless the assault be made with a weapon which, if used at all, would probably produce death. The stress of the case, in the Judge's mind, was,, for the jury to settle whether the defendant could prob- ably have saved himself from death, or enormous bodily harm, by retreating to the wall, or throwing himself into the arms of friends, who would protect him. The case probably is cited more particularly to show, that the ruling excepted against was too circumscribed, because in Selfridge's case an examination was had to see whether the assault was by the procurement of the defendant, when the whole story of the misunderstand- ing between the defendant and the deceased's father was heard by the jury. But the Judge declared, in his charge to the jury, that he thought it was going too far back to have an influence on the trial, but which the urgency of the Attorney-Greneral, and the consent of the defendant's counsel, finally induced the Judge to admit. On the motion to admit the evidence, he observed, that his own opinion was, that nothing was proper evidence excepting what took place on the same day, or very shortly before; and, more particularly, that anything which went to show a previous quarrel with another person, or even with the same person, was not proper, the law being clear that no provocation by words would justify blows. So far, then, as we apprehend the law on this subject, we perceive nothing in two of the cases cited by the defendant's counsel, militating with the ruling of the Judge in the case at bar. The case cited from Yerger's Reports,^ we have not been so happy as to see. We re- gret it the more, because of the high reputation of the Court and of the reporter. We must be contented to take the law as we find it on this side of the AUegha- nies. eGraiiiger's case, anfe, p. 238. SYLLABUS. 635 It would not be allowable to show, on tlie trial of an indictment, that the prisoner has a general disposition to cojnmit the same kind of oflFence, as that charged against him. 1 Phil. Ev., 143. Although the deceased may have been a savage and cLuarrelsome man when intoxicated, he still was entitled to the protection of the law. He was not, from any evidence, unlawfully in the house. We look in vain among the attending circum- stances of the melancholy catastrophe, for a provocation or an excuse, for the resort to the deadly weapon, which the defendant used, to destroy the life of his victim. And, to allow the introduction of evidence of the char- acter of the deceased, and his habits of drinking at other times, and their consequences, could have no le- gal efficacy in reducing the crime of which the defend- ant stood charged, to justifiable or excusable homicide. The permission given to the defendant, as to evidence of what transpired that day, was as liberal as the prin- ciples of the administration of criminal justice would, authorize the Court to grant. The exceptions are overruled. PRITCHBTT V. THE STATE. [22 Ala., 39.] Supreme Court of Alabama, January Term, 1853.. William P. Chilton, QMef Justice. David Gr. Ligon, Geoegk Goldthwaite, John D. Phelan, Lyman Gibbons, Associate Justices. HoMiciBB— Character of deceased for violence— Communicated- THREATS. 1. An act performed by a quick, impulsive, blood-thirsty, abandoned: 636 PEITCHETT V. THE STATE. man may afford much stronger evidence that the life of a person assailed was in imminent peril, than if performed by one known to possess an ■entirely different character and disposition, and might very reasonably jus- tify a resort to more prompt measures of self-preservation. In such case, the act and the status of the actor must be taken together, id order to arrive at a just conclusion respecting its nature ; and thus the character of the deceased may become a legitimate subject of enquiry, as connecting itself with the transaction which it may serve to explain. 2. But however bad and desperate the character of the deceased may have been, and however many threats he may have made, he forfeits no right to his life, until, by an actual attempt to execute his threats, or by some act or demonstration at the time of the killing, taken in connection with such character and threats, he induces a reasonable belief on the part of the slayer, that it is necessary to deprive him of life in order to save his own, or to prevent some felony upon his person. [This principle Is sub- :Stantially declared in aU the cases upon the subject, except Philips' case, ante, p. 383; Carico's case, ante, p. 389; Bohannon's case, ante, p. 395, and Fields v. The State, post.1 3. When a homicide is committed under such circumstances as tend to show that the slayer acted in self-defence, the previous threats of the deceased, and his conduct upon the fatal occasion, construed with refer- ence to his known character and peculiarities, having relation to such conduct and tending to explain it, all enter into, and form parts of the transaction, and may properly be received in evidence. [Ace. Copeland's case, ante, p. 41 ; Kobertson's case, ante, p. 151 ; Cotton's case, atite, p. 310 ; Hippy's case, ante, p. 345 ; Monroe's case, ante, p. 467 ; Kobert Jackson's case, ante, pp. 476^ 486 ; Little's case, ante, p. 487 ; Keener's case, ante, p. 546; Quesenberry's case, ante, p. 549, note; Tackett's case, areie, p. 615 ; Franklin's case, post; Lamb's case, post ; and cases collected in the note to Lamb's case, ^os<. Contra, Wesley's case, ante, -p. 319 ; Wright v. State, ante, p. 484, note ; State v. Field, ante, last case ; and cases collected in the note to Lamb's case, post.1 4. Where an ill-feeling existed between the prisoner and deceased ; and the deceased had made violent threats against the prisoner which had been communicated to him, and had, the day before the killing, made an assault upon the prisoner with deadly weapons ; and the prisoner loaded his gim and went to the house of the deceased, and there shot and killed the de- ceased, it was held, that evidence of the character of the deceased for violence was properly excluded. Error to the Circuit Court of Madison county. Tried before tlie Hon. John E. Mooee. I). 0. Huvfyphreys, for plaintiff in error ; M. A. Bald- win, Attorney-Greneral, for the State. Chilton, Ch. J., delivered the opinion of the Court : The prisoner was indicted in the Circuit Court of Mad- ison county, for the murder of one Henry Stammers. CHAEACTER OF DECEASED FOE VIOLENCE. 637 Upon his arraignment he pleaded not guilty ; was tried, and convicted of murder in the second degree, and sen- tenced by the Court to confinement in the penitentiary for the term of ten years. The proof conduced to show, that ill-feeling had grown up between the deceased and the prisoner, on account of a warrant sued out by the latter against the deceased, before a justice of the peace; that the deceased had made threats of personal violence against the prisoner, which had been communicated to him, and that, on the morning preceding the day when he was killed, the deceased had gone to the field in which the prisoner had been plowing, and, with a pistol in one hand, and a rock or stick in the other, had forbid the prisoner's going to his plow; that, just before the killing, the prisoner was seen starting from his house, priming his gun, and pick- ing his flint, and crying ; that he proceded to the prem- ises of the deceased, and found him near his home ; told him, in a loud voice, " stop, I have come to shoot you ; " that the deceased stopped and turned round, was fired at by the prisoner, and killed immediately. The prisoner proved that he was a peaceable and or- derly man, hitherto ; and the same witness who proved the prisoner's good character, was asked by the prison- er's counsel, "if he knew the character of the deceased; whether he was a turbulent and quarrelsome man, or a peaceable and orderly one ? " The Circuit Court, on ob- jection of the solicitor, refused to permit the witness to answer this question, and this refusal is the only matter complained of as error. "We are referred, by the counsel for the prisoner, to the case of Quesenberry v. the State,* 3 Stew. & Porter, 308, as an authority favoring the admission of the proof sought to be elicited by this interrogatory. In that case, while it was admitted, that the good or bad character of the deceased could have no influence as an abstract prop- osition, upon the guilt of the accused, yet, it was said, there might be cases where the killing was attended with * Ante, p. 549, note. 638 . PEITCHETT V. THE STATE. such circumstances as rendered its character doubtful, and in which the general character of the accused might sometimes aflPord a clue to the truth ; that it was an ac- knowledged principle that, if, at the time the deadly blow was in:5icted, the prisoner who so inflicted it had well-founded reasons to believe himself in imminent peril, without having, by his fault, produced the exi- gency, such killing would not be murder. The Court further says : " If the deceased was known to be quick and deadly in his revenge of imagined insults — was ready to raise a deadly weapon on very slight provoca- tion, or, in the language of the counsel, ' his garments were stained with many murders,' when the slayer had been menaced by such an one, he could find some excuse in the strongest impulses of our nature, in anticipating the purposes of his antagonist. The language of the law in such case would be, ' obey that impulse to self- preservation, even at the hazard of the life of your ad- versary.' " I have quoted thus largely from that case, in order that, upon a principle of law of so much delicacy and im- portance, this Court might avail itself of the occasion' to limit and guard the strong expressions employed by the judge who delivered the opinion, and to correct any mis- apprehensions of the law to which it may have given rise. That there may be cases where the known temper and disposition of the deceased, prompting him to cru- elty, deadly revenge and recklessness of human life, may be so connected with acts indicating an intention on his part to take the life of the slayer, or to inflict some great bodily harm, as to become a part of the res gestcB, and to justify the slayer in resorting to more prompt and ener- getic measures of self-defence, we do not deny. But, whatever may be a man's character for desperation and recklessness, he is entitled to the protection of the law ; and it is as much a crime in the eye of the law to slay him, as it is the most peaceable and law-abiding citizen in the community. Yet, the law, having respect to the nature of man, and aiming to arrive at the true intent and CHAKACTEK OF DECEASED EOE YIOLENCE. 639 motive which, characterize acts prohibited by it, allows ■every fact and circumstance immediately connected with the act, and which tends to elucidate and explain its na- ture and character, or the motive and intent which moved to its perpetration, to be given in evidence. It endeavors to adjust the measures of defence to the nature of the assault, and, in doing this, it permits the party assailed to view the assailant just as he is ; for it is chiefly from a knowledge of the true condition of the parties at the time the act is done, that we can arrive at the motives which may reasonably be supposed to have influenced them. Oliver v. the State," 17 Ala. Rep., 598. An act performed by a quick, impulsive, bloodthirsty, aband- oned man, might afford much stronger evidence that the life of the party assailed was in imm.in,ent peril, than if performed by one known to possess an entirely different ■character and disposition, and might very reasonably justify a resort to more prompt measures of self-preser- vation. In such case, the act and status of the actor must be taken together, in order to arrive at a just con- ■clusion respecting its nature. Thus it is, the character of the deceased may become a legitimate subject of en- ■quiry, as connecting itself with the transaction, which it may serve to explain. But, however bad or desperate that character may be, and however many threats such person may have made, he forfeits no right to his life, until, by an actual attempt to execute his threats, or by some act or demonstration at the time of the killing, taken in connection with such character or threats, he in- duces a reasonable belief, on the part of the slayer, that it is necessary to deprive him of life, in order to save his own, or to prevent some felony upon his person. And when a homicide takes place under such circumstances as tend to show that the slayer acted in self-defence, the pre- vious threats of the deceased, his conduct upon the fatal ■occasion, construed with reference to his known charac- ter, and peculiarities, having relation to such conduct, and tending to explain it, all enter into and form parts " Post. 640 PRITCHETT V. THE STATE- of the transaction, and may be properly received as evi- dence. If the quotation we have made from the case of Que- senberry v. The State, goes to support the view taken by the counsel for the prisoner in this case, namely, that because a man of " turbulent and quarrelsome disposi- tion" has threatened to take the life of another, the party menaced may seek him out at his own house and kill him, thus " anticipating his antagonist's purposes in obedience to the impulse of his nature to self-preser- vation," we should not hesitate to declare that it was not the law ; but, taking the whole decision together, we do not so understand it. In such case, the character of the deceased is altogether immaterial, as it affords, be it never so bad, no justification or excuse for the killing; and the Court should exclude all evidence concerning it. " The rule," says an American author, " undoubtedly is, that the character of the deceased can never be made a matter of controversy, except when involved in the res gestcB; for it would be a barbarous thing to allow A. to give as a reason for Ms killing B., that B.'s disposition was savage and riotous." Wharton's Or. L., 172 ;° see. also, State v. Field,"* 14 Maine Rep., 248; Commonwealth V. York,« 7 Law Rep., 507; Wright v. The State,' 9 Yerg., 342. Under the view of the law which we have above ex- pressed, and the circumstances described by the proof in this cause, it is very clear the Court did not err in ex- cluding the proof. The judgment and sentence of conviction must conse- quently be affirmed. Judgment affirmed. «6thecl, §641. ^ Ante,\a&t cs&e.. « Pos<, note to Lamb's case. fAnte. p. 484, note. SYLLABUS. 641 FRANKLIN V. THE STATE. [29 Ala., 14.] Supreme Court of Alabama, June Term, 1866. Samuel F. Rice Chief Justice. A. J. Walker, ) . . , -, ,. Geo. W. Stone, \ ^^'^ciate Justices. Homicide — Evidence of charactek op deceased foe violence. ±. The character of the deceased for turbulence, violence, revengeful- ness, bloodshed and the like, where it qualifies, explains, and gives meaning and point to the conduct of the deceased, is propei* evidence. [Ace. last case and references.] 2. The rule should not extend on the one hand, to excuse the taking of one's life because he is a bad man, nor, on the other, should it he limited to those cases where the facts are such as to make it doubtful whether the homicide was commited &e defendendo. 3. When the conduct of the deceased is such that, illustrated hy his char- acter, its tendency is to excite a reasonable belief of imminent peril, the evi- dence ought to be admitted, and its effect left to the determination of the jury- 4. But the judge should determine in every case, as a preliminary ques- tion, whether the facts are such as will justify the admission of such evi- dence. But see the strong reasoning in Pridgen's case, ante, p. 416, where a contrary rule is held as to the admission of evidence of threats. Consult, also, on the same point, Robert Jackson's case, ante, p. 476.] 5. Where the prisoner and deceased were brothers, and the deceased came to the house where prisoner was, with a loaded gun, and used reproachful language, but no threats ; and the prisoner complained that he was unarmed, and the deceased thereupon gave him his gun and walked away a few steps, and was in the act of sitting down, when the prisoner shot and killed him with the gun ; — it was held, that evidence of the char- acter of the deceased for violence was properly excluded. 6. Where it is proper to prove the character of the deceased for violence, this cannot be done by proof of isolated acts of violence. [Ace. Keener's case, ante, p. 547, and note; Com. v. Ferrigan, 44 Penn. State, 388. So, the character for chastity of the prosecutrix in an indictment for rape, may be impeached generally, but not by evidence of particular acts of uu- dtiastity. Rex. v. Clarke, 2 Stark. R., 243.] 642 I'KANKLIN V. THE STATE. Indictment against Philemon J. Franklin, for the murder of His brother, Christopher Franklin, by shoot- ing him with a gun. The only evidence in relation to the killing, was the testimony of a young man, then about sixteen years of age, who was an eye-witness of it, and whose testimony, in substance, is stated in the opinion of the Court. On the part of the prisoner, evidence of his peaceable character was produced ; and lie then .offered to prove, " that the deceased, some time before the killing, attempted to shoot a woman in Coffee county, without any cause." This evidence, on objection by the State, was excluded, and the prisoner excepted. Tlie prisoner then offered to prove, " that the general character of the deceased, was that of a turbulent and dangerous man ; " but this evidence also was excluded by the Court, and the prisoner excepted. E. C. Bulloch, for the prisoner; M. A.^ Baldwin, Attorney-General, for the State. Walkee, J., delivered the opinion of the Court: It has been twice decided in this State, and must now be regarded as law, that the testimony, in prosecutions for murder, may be such as will justify the admission of the bad character of the deceased as evidence for the accused. Quesenberry v. The State," 3 Stew. & Port., 808; Pritchett v. The State,* 22 Ala., 39. In Quesen- berry's case, this Court declined to decide in favor erf the reception of such evidence, because the facts not being disclosed upon the record, it could not be per- ceived that the case presented an aspect justifying it. In Pritchett's case, the object of the Court seems to have b('en, to limit the admission of the evidence to cases where it may be considered a part of the res gestce. In both cases, it is carefully and properly denied, that the bad character of the deceased can, of itself, lessen the criminality of his murder. The rule is laid down in Ol- iver's case,'' 17 Ala., 599, that " the necessity which ex- culpates the accused from guilt, need not be actual ; that » Ante, p. 549, note. ^ Ante, last case. ° Post. CHAEACTEE OF DECEASED FOE VIOLENCE. 643 if the circumstances be such as to induce a reasonable belief that such necessity exists, the law will acquit the slayer of all guilt." It seems to result, as a sequence from this principle, that the character of the deceased for turbulence, violence, revengefulness, bloodshed and the like, where it qualifies, explains, and gives meaning and point to the conduct of the deceased, should be proper «vidence. Conduct of a man of peaceable character, and harmless deportment, might pass by without exciting a reasonable apprehension of impending peril; while, on the other hand, the same conduct, from a man of notori- ously opposite character and habits, might reasonably produce a consciousness of the most imminent peril, and a conviction of the necessity of prompt defensive action. Whenever such bad character on the part of the deceased, thus illustrates the circumstances attending a homicide, and the circumstances, so illustrated, tend to produce a reasonable belief of imminent danger in the mind of the slayer, the character, as mingled with the transaction, is a part of it, and is indispensable to its correct understanding. Such we understand to be, in ef- fect, the decisions in Quesenberry's and Pritchett's cases. To avoid detriment in the practical application of the rule, it must be understood neither, on the one hand, to excuse the taking of one's life because he is a bad man, nor, on the other, to be limitedjto those cases where the facts are such as to make it doubtful whether the homi- cide was committed se defendendo. The law cannot ap- portion the criminality of the homicide to the character of the deceased, and it cannot confine the rule to cases of doubt, because, in such cases, the defendant is entitled to an acquittal ; and, therefore, so to limit it, would deny to it all practical effect. "When the conduct of the de- ceased, although in itself innocent, is such that, illus- trated by his character, its tendency is to excite a reas- onable belief of imminent peril, the evidence ought to be admitted, and the question of its effect left to the deter- mination of the jury. It would be for the Court to deter- 644 FKANKLIW V. THE STATE. mine, in every case, whether the facts are such as will justify the admission of the evidence, as it is its duty to determine, before receiving in evidence the declarations of third persons, whether they are part of the res gestce. We are of the opinion, also, that there are cases in which the character of the deceased might be looked to, in determining the amount of provocation, and thus fixing the degree of the homicide. "We cite below, the authorities which we have examined in reference to the questions above decided, some of which will be found to militate against our opinion, and to be less favorable to the accused. But the principles which we have laid down, have the fullest sanction of our judgment, because they are consistent with the prev- ious decisions of this Court, and are, we think, founded in justice and reason. Wharton's American Criminal Law, 172; Roscoe's Criminal Evidence, 39; Wharton's American Ijaw of Homicide, 249, 229 ; State v. Barfield,* 8 Iredell's Law, 344, dissenting opinion of Battle, J.; State V. Thawley,'^4 Harr., (Del.,) 563; Wright v. The State,' 9 Yerger, 842 ; Dyson v. The State,« 26 Miss., 363. We now turn to the testimony, for the purpose of en- quiring whether the circumstances were such that, under the rule we have laid down, the character of the deceased, " as a turbulent and dangerous man," ought to have been admitted in evidence. The prisoner and the deceased were brothers, and worked together in a blacksmith shop. The deceased went to -the prisoner's house with a loaded gun, late in the evening, and near the door of the prisoner's house, used reproachful and angry words for some time, but did not use any language of menace, or indicating an intention, either present or prospective, \o perpetrate violence upon the prisoner. The deceased afterwards went into the house, where the prisoner was at the time lying upon a bed. Immediately afterwards, the prisoner said to the deceased, " You have come here with your arms, and I have nothing to defend myself" ■> Ante, p. 625. « Post, note .to Lamb's case. , 'Ante, p. 484, note. Ante, p. 304. CHARACTER OF DECEASED FOR VIOLENCE 645 The deceased then placed his gun on the bed on which the prisoner was lying, and turned and walked off about ten feet to a table, and turned and sat down on the table, with his face to the prisoner. As the deceased turned to walk off from the bed, the prisoner seized the gun, cocked and presented it ; and at the instant when the deceased sat down on the table, the gun fired, and the load entered the breast of the deceased, who fell forward, with his head towards the bed, and his feet three or four feet from the table, and expired in about half an hour. The evi- dence conduced to show that the deceased carried the gun for the purpose of shooting birds, and it does not appear that he had other arms. The deceased, upon the prisoner's suggestion of his defenceless condition, not only disarmed himself, but placed his gun in the power of the prisoner, and then walked away, with his back to his slayer; and at the instant when he was seating himself, he received the contents of his own gun, from the hand of him in whose power he appears to have placed it, — a token of trust, and a sign of his own peace- ful intention. There was not a word spoken, not an act done, which, illustrated by the character of the deceased, and construed by the prisoner in the light of that char- acter, could tend to* produce a reasonable belief of immi- nent peril. Nor was there any act or word from the prisoner, which, explained by his character, could aggra- vate his conduct into such a provocation as to mitigate the offence to a lower degree. The fact that the deceased had attempted to shoot a woman, was not admissible in evidence. If it had been a case in which the character of the deceased would have been competent evidence, it would not have been permis- sible to make out the bad character by isolated facts. Nugent V. The State," 18 Ala., 521. The judgment of the Court below must be affirmed, and its sentence executed. Judgment affirmed. ^Ante, p. 647, note. 646 THE PEOPLE V. LAMB. THE PEOPLE V. LAMB. [41 New Yokk, 360.] Nev) York Court of Appeals, January, 1866, Henet E. Davies, CMef Justice. Wm. B. Wright, ) John K. Porter, > Judges. Ward Hunt, ) William H. Leonard, ~ RuEUS W. Peckham, Leroy Morgan James E. Smith, Justices of the Supreme Court, and ex-officio Jus- tices of the Court of Appeals. [The report does not show what Judges and Justices were present, except Davies, Chief Judge, and Smith and Morgan, Justices.] Acting upon appearances of danger — Character of deceased for VIOLENCE— Presumption of malice. Per Davies, Ch. J . . 1. No apprehension of danger previously entertained, will justify the commission of homicide ; it must be an apprehension existing at the time the prisoner struclt the blow. [Ace. Harrison's case, ante, p. 71 ; Scotfs case, ante, p. 163 ; Hippy's case, ante, p. 345 ; Dyson's case, ante, p. 304 ; Lauder's case, ante, p. 366; Williams' case, anie, p. 349; and many others. Contra, Philips' case, ante, p. 383 ; Carico's case, ante, p. 389 ; Bohannon's case, ante, p. 395.] 2. In trials for homicide, the character of the person slain cannot in general be drawn in question ; for equality before the law, is a maxim of miiversal justice, and the life of the humblest and most abandoned is equally entitled to the protection of the law as that of the most cultivated, refined or elevated. [See Pritchett's case, ante, p. 636, and the references there collected.] 3. Evirlenec of the violent character of the deceased can only be ad- mitted, where the evidence shows that there was an assault committed or threatened by the deceased upon the prisoner, and where a doubt is created whether the homicide was committed from malice, or to repel such assault, and from a princiijle of self-defence. 4. The evidence in this case set out at length, and held that no such question could arise thereon. SYLLABUS. 647 5. Before evidence of the violent character of the party slain can be admitted, it must be shown that an assault was committed or threatened by the person slain at the time of the homicide, or so immediately preced- ing it, or so intimately connected with it, as to justity the taking of life in self-defence, or to ward off great, impending and imminent danerer of bodily hai'm. 6. Before proof of the violent character of the deceased can be admitted in any case, it must be made to appear that the defendant knew of such character, and although a husband may be presumed to know the character of his wfe, yet it seems that in such a case, such knowledge ought to be affirmatively proven. 7. It is not error to tell the jury that the law presumes malice from th« mere act of killing. [See Stokes' case, post.] Per Smith, J. : 8. To maintain that a killing was justifiable on the ground of self- defence, it is necessary to show : (1) that the defendant himself was acting in no wise against law in the encounter which resulted in the homicide ; (2) that at the time of giving the fatal blow, he had reasonable ground to apprehend a design to do him some great personal injury ; and (3) that there was imminent danger of such design being accomplished. 9. The right of attack for the purpose of defence, does not arise until the party claiming such right, has done everything in his power to avoid its necessity. [Ace. Sullivan's case, ante, p. 65 ; Shippey's case, ante, p. 136. Contra, under certain circumstances, Bohannon's case, ante, p. 395.] Per Davibs, Ch. J., and Smith and Morgan, JJ. : 10. The Judge charged the jury as follows : " A man is not bound, if his life is in imminent peril or danger, to wait until he receives a fatal wound, or has some great bodily injury inflicted on him. If he think his life is in imminent peril, he has a right to act upon that thought and take life ; but if he does it, it is at the risk of a jury saying, when all tlie facts are developed before them, whether he was justified in forming that opinion or not. K you are satisfied from the evidence, that the circum- stances did not warrant the conclusion that he arrived at, and that he took life, it is no justification, and you have a right to convict. It is not his im- pressions alone, but the question is, whether those impressions at the time he formed them, were correct. If they were correct, it is a protection ; if they were incorrect, then it affords him no immunity or protection." This charge was, in the opinion of Davies, Ch. J., Smith, J., and Morgan, J., not erroneous, when taken as a whole ; and Smith, J., and Morgan, .!., were of opinion that there were no facts proved to which a. charge on the law of self-defence was applicable, and hence that it was not, if erroneous, calculated to prejudice the defendant. [See note w., infra.} A. Oakey Hall, for the plaintiflFs in error; Wm. F. Kintzing and A. 8. CoTien, for the defendant in error. Davies, Ch. J. : The prisoner was indicted and con- victed in the New York General Sessions, for the muv- 648 THE PEOPLE V. LAMB. der of his wife, Joanna Lamb. The prisoner and his wife occupied a room in Oak street, in that city, and, at the time of the homicide, there were present in the room, the prisoner and his wife, Ann Kennedy, Mary Riley, Bridget Curtis, and a little girl named Joanna Clitford, who was the daughter of the deceased by a former hus- band, and then aged about eight years. The prisoner and his wife, according to the testimony of Kennedy, came together into the room about six or seven o'clock in the evening. The first thing the witness observed, was the prisoner, applying a vile epithet to the deceased, and then made at her with his fist. The prisoner was prevented from assaulting his wife by the witness and another woman, or, rather, the assault intended for her, was inflicted upon the witness. The prisoner then took a stick, and attempted to hit his wife, but was prevented by the woman, Riley. He then struck the deceased with his fist. Saw the prisoner have a knife in his hands. This witness then left the room to procure some water for the deceased, which she said she wanted, and, on her return, she met the prisoner going out ; he passed her. She found the deceased in the room, all covered with blood. Mary Riley, the little girl, and Bridget Curtis, were then in the room with deceased. She testified, that at this time the deceased made no attempt to strike the prisoner. She identified the knife as that of the pris- oner, and there was no question made but that the pris- oner inflicted the fatal wound, of which the deceased died. Mary Riley testified, that the deceased came in about two minutes before the prisoner, and her state- ment of what occurred up to the time Ann Kennedy left the room, was similar to that made by her. The pris- oner, according to the witness' statements, got his two hands on her chest, and pitched her over against the bed, and she fell between the bed and the stove. When she arose, the deceased was bleeding, and the witness said to the prisoner : " You murderer, you have killed your wife." He made no reply, but stopped down, tied his shoes, and walked out. She also testified, that the OPINION — THE PACTS STATED. 649 deceased did not go near tlie prisoner at all, but he ran at her. On this night, she never saw the deceased raise hand ,or foot against the prisoner. Bridget Curtis, the other person present in the room, as testified to by the other witnesses, was in bed, and, she says, asleep ; that the noise of the tussle awoke her. When she awoke, the deceased was bleeding, lying on the floor. The prisoner was then in the room, but did not remain, but went out. Joanna Clifford, the other person present, testified to the same facts as the other witness, as to the conduct of the prisoner, and his assault of the deceased; and added, that after he had knocked Mrs. Riley down, he came alongside of the deceased and stabbed her in" the neck with a black-handled penknife; he stabbed her once ; the witness was sitting on her lap at the time he stabbed the deceased. For the defence, Mary DriscoU was called, who testi- fied, that she was in this room on the evening of the homicide, and that the prisoner went out, and, as -he went out, the deceased flung the lid of an iron kettle after him at the door, and he came back and made a blow at her with his hand. She afterward testified, that at the time she threw the lid at him, he went out and came back in fifteen minutes, and sat on the chair. The little girl, Joanna Clifford, testified, that she went for officer O'Day, and he testified, that when he went to the prem- ises, he found Ann Kennedy, Mrs. Riley, and Bridget Curtis there; and the little girl was there. He also tes- tified, that he did not see Mary DriscoU there ; and Ann Kennedy and Mary Riley both swore, that Mary Dris- ■ coll was not there that evening , and the same inference may be drawn from the testimony of Bridget Curtis and the little girl, Joanna. I think the jury might have teen warranted in finding that Mary DriscoU was not present at the time of the homicide; and, even if she was, that her testimony, as to any provocation having been offered by the deceased, ar any assault made upon the prisoner by her, or any attempted or threatened, 650 THE PEOPLE V. LAMB. were wholly unsupported by any evidence, or any cor- roborating circumstance. The jury might well say, there was not a scintilla of evidence to sustain the theory of the prisoner's defence, namely, that when the prisoner struck the blow which caused her- death, he had a rea- sonable ground to apprehend a design on the part of his wife to do him some great personal injury or bodily harm, and that, therefore, he believed there was iilimi- nent danger of such design being accomplished. I cannot discover, from a very careful examination of the testimony in this case, any ground upon which such a theory can rest. Assuming, for the sake of the argu- ment, that Mary DriscoU was present at the time of the occurrence, and that her statement of what transpired is to be credited, then this defence is equally baseless. For, according to her statement, the only ground he had to apprehend a design on the part of his wife to do him some great personal injury or bodily harm, and from which he could believe there was imminent danger of such design being accomplished, was the circumstance that, as he was leaving the room in which the deceased was, she threw the lid of an iron kettle after him at the door. Now, there was no evidence that he knew or saw this thing thrown after him, but the strong inference is, that he knew nothing about it. He was going out of the room, and it was flung after him at the door, that is, as I understand it, as he was passing out of the door. There is no evidence that it attracted 'his attention in any way, or that it hit him, or came near hitting him. It was not a weapon in the hands of a woman thus thrown, of a very deadly character, or if he had seen it, or known of its being thrown, much calculated- to ex- cite an apprehension in his mind that his wife intended to do him some great personal injury or bodily harm. As it does not appear that he knew anything about it, it is an obvious an d natural inference that no such ap- prehension was excited, or had any existence. Again, this occurrence was at least, according to Mary Dris- coll's statement, fifteen minutes before the altercation CHAKAOTER OF DECEASED FOR VIOLENCE. 651 arose in which he inflicted the fatal wound upon the de- ceased. During that period, he had sufficient time to cool ; and, as no renewed attempt was made, either by threats or acts, to inflict any injury upon him, it is not seen how this circumstance can be invoked to aid the prisoner in establishing the existence of any such ap- prehension at the time of the homicide. It cannot be contended that any previous apprehension can afford any justification. It must be an apprehension existing at the tiine the prisoner struck the blow. It becomes now necessary to examine the particular evidence offered by.' the counsel for the prisoner and excluded. The prisoner called a witness not present at the time of the homicide, to speak of the general character of the deceased. Good character on the part of the prisoner has always been admitted, as it tends, when established, strongly to show that the accused could not have been guilty of the crime charged \ and when the testimony is doubtful and uncertain in its nature, such good character is a lea ling element in estab- lishing the innocence of the party accused. But it is certainly novel in the administration of criminal justice, that the general bad character of the person slain can either tend to show that the party charged is not guilty of the homicide, or in any sense mitigate the crime of taking human life. Equality before the law, is a maxim of universal justice ; and the life of the humblest and the most abandoned is equally entitled to the protection of the law, as that of the most cultivated, refined, or ele- vated. It is not for man to say which may be taken and which spared. The defendant's counsel put these questions : Do you know the general character of Mrs. Lamb ; that is, whether she was of a fighting, vindictive, brutal nature or not? Was Mrs. Lamb of a quarrelsome, vindic- tive, and brutal character? What was her general character for peace and quietness ? These three questions were severally objected to by the counsel for the people, and the objections sustained, and 652 THE PEOPLE V. LAMB. the counsel for the prisoner excepted, and these excep- tions present the only questions arising upon the evi- dence. It is conceded, that such evidence can only be proper in a case, where the evidence shows that there was an assault committed or threatened by the deceased upon the prisoner, and a doubt was created whether the homicide was perpetrated from malice or to repel such assault, and from a principle of self-defence. Now, it has been shown, and it is submitted conclusively, that no such question legitimately arose upon the evidence in this case. The deceased was not shown to have com- mitted any assault upon the prisoner, nor did she threaten to commit any. There was no foundation, there- fore, for the position that the prisoner committed the homicide in self-defence, or from any apprehension of great or any bodily harm. The testimony could, therefore, have been properly excluded on the ground of its irrelevancy, and I cannot see that it was admissible upon any principle, upon the facts proven in this trial. The defence set up must be such as the facts developed will sustain, and if no assault upon the prisoner has been committed or threatened, then the defendant's counsel concedes the evidence of character of the deceased is inadmissible. It must be an assault committed or threatened at the time of the homi- cide, or so immediately preceding it, or so intimately connected with it, as to justify the taking of life in self- defence, or to ward off great, impending and imminent danger of bodily harm. It is unnecessary to recapitulate the evidence to show that no such state of circumstances existed here. That these views are abundantly sus- tained by text-writers and authority, a reference to some of them will satisfactorily appear. Wharton, in his American Criminal Law, §641, thus lays down the doc- trine: "On the trial of an indictment for homicide, evi- dence to prove that the deceased was well known, and understood generally by the accused and others, to be a quarrelsome, riotous and savage man, is inadmissible. In the eye of the law, to murder the vilest and most abject CHAEAOTEE OF DECEASED FOR VIOLENCE. 653 of the human race, is as great a crime as to murder its greatest benefactor. In one or two cases, however, while the law as above laid down was distinctly recognized, it has been said, that where the killing has been under such circumstances as to create a doubt as to the char- acter of the offence committed, the general character of the deceased may sometimes be drawn in evi- dence, but the rule undoubtedly is, that the character of the deceased can never be made a matter of controversy, except when involved in the res gestce ; for it would be a barbarous thing to allow A. to give as a reason for killing B., that B.'s disposition was savage and riotous." And Wharton, in his American Law, of Homicide, p. 249, says : " It has already been briefly considered, how far the character of the deceased for peace and order may be diawn into question, where the defence taken is, that the defendant, from all the circumstances in the case, of which the deceased's character was one, had reason to be in fear of his life. As was then shown, there have been cases in which courts have been obliged to allow such evidence to be introduced, and it is easy to imagine cases in the future in which it would be impossible to ex- clude it ; biit, as a general principle, the rule continues unbroken, that evidence that the deceased was riotous, quarrelsome and savage, is inadmissible, even though such knowledge be brought home to the defendant him- self ; any other rule would allow a private citizen to take upon himself the province of government in the punish- ment of crime." Thus it is seen, that, as a general princi- ple, such evidence is inadmissible. When admissible, it must be in a case where the defendant had reason to be in fear of his life, or had reasonable ground to appre- hend great bodily harm. Neither of these essential prerequisites appeared in this case. Again, it is fundamental to the admission of this class of testimony, in a proper case, that knowledge of the character of the deceased must be brought home to the knowledge of the defendant himself. It might be presumed that a man would know the character of his 664 THE PEOPLE V. LAMB. wife in this respect. Yet, I think this would not dis- pense with the rule, that it should affirmatively appear that the defendant had such knowledge, before a foun- dation can be laid for the introduction of this tes- timony. The authorities cited to maintain these propositions are: Quesenberry v. State," 3 Stew. & Port., 315 ; Tackett V. State," 1 Hawks, 210; White v. State,'' 9 Yerg., 342; State v; Jackson," 17 Mo., 544 ; State v. Tilly ,= 3 Ired., 424 ; State v. Field,^ 14 Maine, 248 ; Com. v. York,s 9 Mete, 110; State v. Thawley," 4 Harr., 562; Com. v. Bil- liard,' 1 Gray, 294; Oliver v. State,' 17 Ala., 587; Com. v. Seibert,'' Whart. L. H., pp. 227-228. To which others may be added : Monroe v. State,' 5 Ga., 85 ; Pritchett v. State," 22 Ala., 39 ; Franklin v. State," 29 Ala., 14 ; Dukes V. State," 11 Ind., 557 ; State v. Hicks," 27 Mo., 588 ; Staie V. Barfield,i 8 Ired., 344. [The learned Judge here reviewed most of these cases at length. As we print them fully elsewhere, we omit this part of the opinion. He proceeded :] "I think these cases abundantly and satisfactorily show that the ruling upon the trial in this case, exclud- ing the testimony offered, was correct. Indeed, I have not met with a case where such evidence was offered and insisted on, when it did not distinctly appear that the deceased had assaulted the prisoner, and when that fact thus appeared, then the evidence is admitted upon the principle that it tends to rebut the presumption of mal- ice, or, that the killing was in self-defence, or under the reasonable apprehension of great bodily harm. But, on the facts proven in this case, the principle contended for has no application.'' ''Ante, p. 549, note. ^Ante, p. 615. " Ante, p. 484, note. *Note, sub fin. •Note, sub fin. 'Ante, p. 629. « Note, sui j^n. 'Note, sub fin. ' Note, sub fin. i Post. ^ Note, sub fin. ' Ante, p. 467. -"Ante, p. 635. ° Xn!!*, last case. ' Ante,-p.51\. rNote, stiJyjn. of murder in the first degree was affirmed. In a subsequent case m California, The People v. Lombard, 17 Cal., 316, determined in the Supreme Court of that State, in 1861, the prisoner was indicted for the murder of one Lucas. On the evening before the killing, the deceased had threatened to kill the defendant, and these threats were •communicated to him that night. Two or three days before this time, the deceased had made like threats, which were then communicated to the de- fendant. Lucas, on the evening named, was drunk in the street, threaten- ing to kill a man named Williams or defendant; the cause of trouble appearing to be a woman with whom the defendant was intimate, and whom Lucas had whipped. About seven o'clock the next morning, Lucas was crossing the street from a barber's shop, with a bundle of clothes, and 682 THE PEOPLE V. LAMB apparently without any weapon, when detendant came rapidly up the street, and addressed him thus : " Defend yourself, you son of a bitch," at the same time drawing a pistol and shooting Lucas in the right side, of which wound he soon died. Defendant then ran up the street. Lucas does not seem to have seen defendant until addressed as stated. On the trial, after the evidence of the threats and their communication had been introduced, the defendant offered to prove by a witness that the deceased was a quarrelsome, vindictive and revengeful man, for the pur- pose of showing that the defendant had reason to believe, and did believe, his life to be in danger at the time he met the deceased, and that he acted under that belief at the time the pistol was fired. The Court of its own motion, without objection upon the part of the prosecution, excluded the evidence, defendant excepting. The defendant was convicted of murder in the second degree, and ajjpealed. Cope, J., delivered the opinion of the Court — Field, Ch. J., and Bald- win, J., concurring : " The defendant was convicted of murder in the second degree. On the trial of the case, it was shown that the deceased had threatened to take the- life of the defendant, and that these threats were communicated to the latter before the killing. It did not appear that the threats were followed by any overt act, and under the circumstances, the mere apprehension of danger was insufficient to justify the homicide. The evidence offered in relation to the character of the deceased, was properly excluded. Such evidence is admissible only where the immediate circumstances of the kill- ing render it doubtful whether the act was justifiable or not." * * The judgment was affirmed. The question again arose in the Supreme Court of California, in 1871, ire the case of The People v. Edwards, 41 Cal., 640. Edwards was convicted of murder in the second degree, and appealed. Upon the point in question, Wallace, J., speaking for the Court, said : "The prisoner offered to show that the deceased was a man of violence,, of turbulent character, and blood-thirsty. The evidence was excluded,, and, we think, properly. The deceased was unarmed when he was assaulted ; and the prisoner approached him from behind, and, wliile the deceased was peaceably conversing with an acquaintance, shol him in the back, the ball entering his body ' a little to the left of the backbone, nearly at the edge of the shoulder blade,' giving him a mortal wound ; and when he had fallen, the prisoner shot him again, and a third time, each wound being, in the opinion of the medical witness, mortal. It is said, in People V. Murray, 10 Cal., 310 , [supra], that if a contest has occurred between the deceased and the prisoner, ' the reputation of the deceased may sometimes be given in proof, to show that the defendant was justified in believing himself in danger, when the circumstances of the contest are equivocal.' But here there was, confessedly, no contest, nor even an altercation between the deceased and the prisoner at the time of the killing ; for, as we have seen, the shot was fired from behind ; and the deceased does not seem to> have been even aware of the proximity of the prisoner at the moment.. Under such circumstances, the character of the deceased, as being peace- able or otherwise, is of no import. Bad as it may have been, the prisoner OHAEAOTEE OF DECEASED — WISE's CASE. 68iJ had no right to kill him on that account. The bad character of the de- ceased, when allowed to be proven, should tend, in some degree, in con- nection with the immediate circumstances under which the killing was done, to show that the prisoner had sufiScient grounds, as a reasonable man, to fear that he was himself about to receive at the hands of the deceased, some great bodily hai'm, and that he acted under the influence of that fear in killing him. There must.be some fact transjDirij'g at the time of the killing, indicating the then immediate purpose of the djoeased towards the prisoner to be hostile, or, at least, equivocal in its character, and which may be illustrated by the known reputation of the deceased, if he had one in the community, as a man of violence, etc. Here there was no such fact, and the enquiry into the character of the deceased was cor- rectly disallowed." . The judgment was reversed on other grounds. The question came before the Supreme Court of Kansas, in 1864, in Wise V. The State, 2 Kan., 419. Bailey, J., delivering the opinion of the Court, said : " The second exception was to the ruling of the Court refusing to permit Mrs. Bailie to answer the following question, to-wit : ' If you know, state to the jury the character and temper of the deceased, Robert Bailie, when augry and excited, and whether or not he was, at such times,, a dangerous or desperate man.' " The general rule on this subject is thus stated by Wharton : ' On the trial of an indictment for homicide, evidence to prove that the deceased was well known and understood generally by the accused, and others, to be a quarrelsome and savage man, is inadmissible.' " ' The rule ^undoubtedly is, the character of the deceased can never be made a matter of controversy, except when involved in the res gestae.^ Am. Crim. Law., § 641." The learned Judge then quoted from Com. v HUliard, {supra} and peo- ple V. Murray, (supra), and concluded that the testimony was inadmis- sible. The question was ruled otherwise in Payne v. Commonwealth, 1 Met- calf, Ky., 370. This case was determined in the Court of Appeals of Ken- tucky, in 1858, by Simpson, Ch. J., Stitbs, Duvali, and Wood, JJ. The facts of the case are not stated in the report. Extract from the opinion of the Court, delivered by Duvall, J. : " The other point relied upon by, the appellant, may be very briefly dis- posed of. The record contains two bills of exceptions, one of which is cer- tified by the Judge, the other by two by-standers, and filed, also, as part of the record, according to section 367 of the Civil Code, which, by section 227 of the Criminal Code, regulates the mode of preparing and signing biUs of exteeptions in criminal cases. Numerous afiidavits were procured by the appellant, for the purpose of maintaining the truth of the excep- tions certified by the two by-standers. From the bill of exceptions certi- fied by the Judge, it appears that testimony was admitted on the trial which conduced to show that White was a man of violent, cruel and blood-thirsty temper and disposition ; that he was in the constant habit of carrying con- cealed deadly weapons, and was scarcely ever known to be out of his house 684 THE PEOPLE y. LAMB. without them. It is stated in the other bill of exceptions, however, that all the evidence to this effect was excluded by the Court. There thus ap- pears to be no difference of opinion between the Court below and the coui> sol for tlie appellant, as to the competency of the testimony, but the whole controversy is confined to tlie question of fact whether it was rejected or admitted upon the ti'ial. This question it is wholly unnecessary that we should consider or determine, iuasmuch as the judgment must be reversed upon other grounds. We are of opinion that the testimony in question was admissible, in view of aU the otlier proof as presented by this record. The general principle upon whicli the admissibility of such evidence de- pends, was recognized by this Court in the eases of Eapp v. Common- wealth, 14 B. Hon., 640, ante, p. 293 ; of Meredith v. Commonwealth, 18 B. Mon., 49, ante, p. 298 ; and Cornelius v. Commonwealth, 15 B. Mon., 546; ante, p. 569 ; although the point was not in either of those cases directly presented. Numerous cases decided by the Courts of other States, furnish conclusive authority upon this subject, a reference to which is to be found in Wharton's American Law of Homicide, p. 229, where the doctrine is thoroughly and ably discussed. See, also, Pritchett v. State, 22 Ala. Eep., 39, ante, p. 635. " The following view was taken by the Supreme Court of Minnesota, in the case of The State v. Dumphey, 4 Minn. ,438, which came before it in 1860. Plandrau, J., delivered tlie opinion of the Court. * * * '■ The fomth point made by tlie counsel for the prisoner, has been a little more difiicult of solution. But we are fully satisfied that the authorities do not sustain the position of the prisoner's counsel in his offer. The character of the deceased, per se, can never be material in the trial of a iiarly for kill- ing him, because it is as great an offence to kill a bad, as it is to kill a good man, or to kill u quarrelsome and brutal man, as it is to kill a mild and in- offensive man. Therefore, if the killing is proven to have been with a felonious intent, the character of the deceased can in no manner affect the re- sult. The rule in respect to the admission of proof of the quarrelsome or violent character of the deceased, is this : ' Where the kUliug is under such circumstances, as to create a doubt as to the character of the offence com- mitted, the general character of the deceased may be shown, because then it becomes a material and, per-haps, necessary fact, to enable the jury to as- certain the truth, and, as such, is involved in the res gestae; but, without the character is in some way an essential part of the res gestae, it cannot be examined into; because it would be a barbarous thing to allow A. to give as a reason for killing B., that B.'s disposition was savage and riotous.' Am. Cnm. Law, 3d ed., 296. It was held in the trial of an overseer for the mur- der of his employer, that it was not competent for the prisoner to prove the general temper and deportment of the deceased towards his overseers and tenants. State v. TiUy, 3 Iredell, 424, [supra.] When, however, it is shown that the defendant was under a reasonable fear of his life from the de- ceased's temper, in connectio)i with previous threats, etc., it is sufficiently part of the res gestae to give in evidence as explanatory of the state of of de- fence in which the defendant placed himself. Wharton on Homicide, 215, 220 ; Am. Crim. Law, 296. " x'iieprinciple upon which this testimony alone is admitted, [arises from some peculiar condition in which the facts of the killing, as proved, leave CHARACTKK OF DECEASED — DUMPHEY'S CASE. 685 the crime. If the facts, as established, free the case from uncertainty and doubt, and leave the killing an act of premeditated design on the part of the defendant, the quarrelsome character of the deceased can in no manner change the nature of the offence ; but if circumstances surround the trans- action, which leave the intention of the defendant in committing the crime, doubtful, or evenly balanced, or in any manner indicate provocation on the part of the deceased, testimony of the quarrelsome cliaraoter of the de- ceased would then become sufficiently part of the res gestce to be admitted to explain or throw light upon the encounter. " The boolis make a distinction between allowing proof of the bad char- acter of the deceased, and the good character of the accused, and place it upon the ground, that, as all reasonable doubts are to be weighed in the bal- ance in favor of the defendant, he is, therefore, entitled, in all cases, to give his good character in proof, because, what would be a clear state of facts and circumstances to warrant a conviction against a man of bad or un- known character, might, when applied to a man of high standing and un- impeachable character, appear inconsistent with liis guilt, or so enshroud the transaction with doubt as to justify an acquittal. It will also be found, as a general rule, that when the facts are clear that the crime has been per- petrated, the good character of the accused should have no weight with the jury, because it is none the less a crime for a man of good character to kill another, than for the vilest of the human race to commit the same act. " We will not undertake to discuss these distinctions ; suffice it to say, that the rule is well established that proof of the good character of the ac- cused may always come in, and, after it is in, its weight wUl be matter of consideration for the jury, under the instructions of the Court, which will always vary, as the other proof is clear or doubtful, positive or circumstan- tial, in each particular case ; and we think it is equally well settled that proof of the quarrelsome character of the deceased, can only be allowed when, from the nature of the main proof in the case, sucfi character be- comes in some way involved in the res gestce ; when admitted, its weight with the jury should be governed very much by the same rules that apply to the good character of the accused." In Reynolds v. The People, 17 Abb., 413, cited in the principal case, in the note on page 655, the defendant was indicted for murder in stabbing one Patrick Mathews. The facts are not stated in the report. In the coiu-se of the trial, the counsel for the prisoner propounded the following question to a witness : " Do you know what the character of Patrick Math- ews was in this community for the ten years during which you knew him, as a dangerous, violent and quarrelsome man ?" The question was objected to and excluded, and the prisoner excepted. The jury returned a verdict of manslaughter in the third degree ;■ and the case was brought before the Supreme Court of New York, in general term, by certiorari, in February, 1864. SuTHBRLAND, P. J.: "The only material question in this case is as to the admissibility of the evidence offered by the prisoner to show that the character of Mathews, the deceased, in the community, was that of a dan- gerous, violent and quarrelsome man. The Recorder excluded this evi- donce. In my opinion the evidence was properly excluded. ^86 THE PEOPLE V. LAMB. " I cannot find any evidence in the case tending to show that the pris- oner and Mathews were acquaintances, or that they had ever seen each other before the affray. There was no proof of any previous relation, from which it might he presumed that the prisoner knew Mathews' character, good or bad. If Mathews' character was so notoriously that of a danger- ous, violent and quarrelsome man, 1 find nothing in the case authorizing the inference that the prisoner supposed, or thought, when he stabbed the deceased, that he was Patrick Mathews. At or about the commencement of the affray, some one called out, 'Pat.' There was no evidence that it was the prisoner ; the inference from the evidence is, that it was one of the Mathews' party. " Under these circumstances, how would proof of Mathews' notorious character for violence, etc., have tended to show that the prisoner believed himself in danger, when he saw Mathews approaching him ? How Math- ews' character could have influenced, or had anything to do with the motives of the prisoner's action, I cannot see. In my ophiion, under the circumstances of this case, the evidence was properly excluded. " Perhaps such evidence might be admissible, when, from the previous relationship of the parties, or from other circumstances of the case, it would J)e reasonable, to presume that the prisoner might hacpe acted from a knowledge of the character of the deceased for violence, etc. See Whart. Hom.,-229; Whart. Crim. Law, J 641 ; State v. Field, 14 Maine, 428, ante, p. 629 ; State v. Tilly, 3 Ired., 424, \_supra.1 " The proceedings in the court of General Sessions should be affirmed, and that court should proceed, and sentence the prisoner on his convic- tion." Clerke and Barnakd, JJ., concurred. In the Commonwealth v. Seibert, a case which has been often quoted upon the question under discussion, and which will be found quoted at considerable length in Wharton on Homicide, 227-229, the prisoner being upon trial for murder, contended that the killing was done to save his own life from a furious attack of the deceased. Dr. Wharton states that "the Court, for the purpose of aiding in the discovery of the ■chm-acter of the homicide, permitted the defendant to prove the general character and disposition of the deceased, as a quarrelsome, fighting, vin- dictive and brutal man, of great physical strength, rejecting, however, evi- dence of particular instances of his brutality in fighting, etc." And CoNYNGHAM, J., in charging the jury, said : "When you ascertain from the evidence, the manner of the admitted killing, if you find it to have been done in defence of an attack by the deceased, in deciding upon the character of the offence, you are called upon to examine and revise every- thing which goes to explain the true situation of the parties at the time ; their respective feelings and intentions, shown^ by their acts, their threats and menaces, as may be proven ; and you may consider, too, their relative characters as individuals, including their strength and physical ability. Vou may enquire, too, whether the deceased, making, as is contended, the first assault, was bold, strong, and of a violent and vindictive character, and the defendant much weaker and of a timid disposition, and how far their power was equalized by the weapons in the hands of the latter. Le- gal rules are general, but in their application they must at times depend CHAKACTER OP DECEASED — SEIBERT'S CASE. 687 upon the special circumstances of particular cases. In the assault of a strong man upon a boy or female, of a powerful individual upon a weaker, the necessity of tailing life in self-defence under an ordinary attack, will be more easily discoverable, than in an attack by one man upon another under more equal circumstances. The probable ability to defend without the fatal resources, must depend upon the means and power of de- fence in the assaulted. Moral power, too, is important in sustaining physical power. Timidity of disposition will never excuse rashness, and will not justify the creation or sustaining of imaginary fears, so as to excuse the talking of the life of another ; but we say novsr, as we had occasion to say in this court some years since, in the trial of Josepli Davis, that the jury may, in deciding upon the degree or kind of homicide, the nature of the attack and the necessity of the defence, consider this ingredient in the character of the slayer, as an adjunct to his proper physical power, or rather weakness. You are to look at the parties in this unhappy transaction, in their relative knowledge of each other's character and strength, and to consider the circumstances attendant upon the contest of Satm-day, their respective feelings, and all the other circum- stances as already called to your notice ; to enquii-e whether the defeud- -ant, as the evidence shows him to be, the man that he is and was— not as one of greater courage and strength may be, but as he was when he did the act— had clear reason to believe that in case of an attack upon him by the deceased, (the man that the evidence shows him to have been,) he would be in danger of loss of life or common bodily harm ; and if you do so find, and further, that an attack, apparently of such intent and character, was made ■upon him, and in a room described as this has been, with no other means ■of escaping the contest, as contended by the defendant's counsel, under the -evidence, but by taking the life of the assailant ; he would be excused in so doing, even though this, to him, reasonable belief of the horrible result of such a contest, should be produced partially by the constitutional timidity of his own character, doubly excited by the comparative weakness of his own bodily ability, proved in the contest with the assailant of the day previous. Look you into the heart of the defendant at tlie time of the transaction ; search out his motives, as his acts and declarations show them, and say whether he, constituted as nature made him, and with all his means of defence, had reason to believe, and did believe, that he was in .the serious danger spoken of It may be stated that the view above taken by Judge CojfYNGHAM, that the constitutional timidity of the prisoner may be looked to in determin- ing whether he ought to be excused in using the means and degree of force he did in his defence, is contrary to the almost unanimous weight of au- thority. See note to Grainger's case, ante, p. 242, et seq, and particularly pp. 249, 250, where Bryson's case and Shultz' case are cited. But contra, Oli- ver's case, post. The language of Judge Conyistgham, however, accords with the dictates of humanity, if not with the principles of reason ; and there is, doubtless, much room for debate upon this question in its general aspect. A man is obliged to act, in every emergency, with the faculties, physical, mental and moral, which God has given him ; and when he has acted in good faith, though upon cowardly fears, shall he be punished criminallj- for doing that, which a man favored by nature with stronger nerves and 688 THE PEOPLE V. LAMB cooler judgment would not have done? The real obJectioTi to the admis- sion of such testimony consists in the danger of imposition being practiced upon juries, which are generally composed of inexpert,and frequently of ig- norant men. And it is believed that the exclusionary rules of evidence, so termed by Bentham and Best, are, in point of fact, grounded more directly upon this difficulty than on any supposed inconvenience that would accrue from the investigation of collateral issues. Could it be found consistenit with the liberty of the citizen, and the policy of republican institutions, to try criminal causes by mixed juries, composed in part of legal and medical experts, and in part of laymen, it is believed that objections to the ad- mission of testimony of tlireats made by the deceased or prosecutor against the defendant, or of the character of the deceased or prosecutor for violence,, or of the peculiar mental or moral weakness of the defendant, would lose much of their force, and would soon pass out of the books. These thoughts are, however, thrown out as speculations merely ; for, while it is true that the common law system of trial by jury is being tested to its utmost limits in the United States, and is frequently as uncertain in its results as the old trial by wager of battle, and has shown itself, in some instances, oblivious of the rights of accused persons, and, in many others, utterly inadequate to the protection of society ; yet, it is also true that the substitution of a new system for an old, not only in many cases fails to remedy existing- evils, but, what is worse, not unfrequently produces a train of new evils,, unanticipated and unprovided for. Upon the facts of a later case, a different conclusion was reached by the Supreme Court of Pennsylvania. We allude to Commonwealth v. Ferri- gan, 44 Penn. State, 386, determined in 1863. The prisoner had been convicted of murder in the second degree, and applied to the Supreme Court for a writ of error. This was refused. The facts are not stated,, but Thompson, J., in pronsunoing the opinion, said : "The questions, what was the deportment of the deceased generally as to violence of char- acter? and vyhat were his threats towards Ferrigan? and what was Wil- liamson's deportment when he came from the army, towards his family ?■ were properly overruled by the Court. The bad conduct of the deceased, and his violence of temper, did not justify or excuse the prisoner in taking his life. Society had not appointed him to be his keeper and executioner. For infirmity of temper and abuse resulting from it, the law has provided its appropriate punishment. Certain it is, that there was no evidence that we have seen to show that the prisoner was impelled by any such vio- lence to kill him in self-defence." The views of tlie Court of Appeals of South Carolina on this question, are found in the State v. Smith, 12 Kich. Law, 430, 440. This was a case of murder. The original reporter has omitted the testimony, not deeming it necessary to a proper understanding of the case. We think, however, that the value of this case as a precedent upon the point under discussion, is greatly diminished by reason of this omission. In pronouncing the opin- ion of the Court, Johnston, J., said: " It appears from the report of the trial, tliat when Daniel Fogartie, a witness for the defence, was on the stand, Mr. Simons, the prisoner's counsel, proposed to show by this and other testimony, that the deceased was a tui'bulent and violent man, and carried arms about him, and that this was generally known, which evidence. CHAEACTER OF DECEASED — SMITH'S CASE. 689 as to deceased, was ruled out. This forms the flrst ground of appeal. Wlicu Michael McFeeny was sworn for the prisoner, Mr. ^imons said : ' I pro- pose to show, that on the day before the occurrence, (the deatli of Saflfroii) the deceased and witnesses were employed together, and that this witness was with them ; that deceased then exhibited a quarrelsome and violent disposition, and attaclied the witness : and that, on this occasion, the pris- oner interposed and separated them, and that the deceased had threatened the prisoner. ' The question was argued, and the testimony finally ruled out. This constitutes the second ground of appeal. " The Circuit Judge says : ' In reference to the first ground of appeal, I did exclude the evidence which was offered in reference to the character of the deceased, upon the authority of the doctrine laid down in 3 Greenl. Ev., 2 37, at the same time intimating the opinion that if it had been doubt- ful whether the killing was from a just apprehension of danger, and in self-preservation, I should have held it admissible, upon the authority erf Monroe's case, 5 Ga.,-^5, {ante, p. 442). I also excluded the proposal re- ferred to in the second ground of appeal.' ' ' The appeal fropi this ruling raises questions of no ordinary impor- tance, though the principles governing them do not appear to be unusually difficult. "Lord Camden, in the memorable debate on Fox's bill, [16 May, 1792, 5 Camp. Lives of Chancellors, 342,] while contending for the right of ju- ries to render a general verdict, in cases of libel, illustrated his position by referring to cases of homicide. Speaking of intention, he argued : ' A man may kiU another in his own defence, or under various circumstances wliicli render the Idlling no murder. How are these things to be explained ? By the circumstances of the case. What is the ruling principle ? The inten- tion of the party. Who decides on the intention of the party? the Judge ? no, the jury. What is the oath of the jury? Well and truly to try the is- sue joined, which is the plea of not guilty to the whole charge.' " This passage shows, in a striking manner, that the intention and not the mere formal act, is the essence of crime ; and that the necessity of em- bracing the fact and intention in a verdict of guilty or not guilty, gives the solution of the whole issue to the jury. As this great master of the law truly says, ' the ruling principle is, the intention _of the party to be de- cided, not by the Judge, but by the jury, from the circumstances of the case.' " When the State proves the kUling^ithout more, the law infers a crim- inal intent, and throws on the prisoner the necessity of explaining away this legal presumption ; and how can he do it, his intention depending upon the circumstances, unless he be allowed to show what the circum- stances were ? I have been accustomed to think that the circumstanci's that surround a man always serve to throw light, not only upon his lan- guage, which is known law in another forum, with which I am more famil- iar than with this [see 5 Rich. Eq., 155], but also upon his acts. The words uttered, the language written, the acts done, speak for themselves, and arc the only subject of interpretation ; but they are read and interpreted in the light of the circumstances which prompted them, and to which they always tacitly refer. The same act done under different circumstances, may have a very different meaning. If a man slay another in battle, he if 690 THE PEOPLE y. LAMB. a hero and a patriot; if, while repelling a criminal and dangerous assault on his person or his lHuse, it is a defensive and rightful act. If it is done under tliat degree of provocation, which would worlc up the infirmities of a man of proper social feelings and of peaceable disposition, to the hasty shedcUng of blood, it is manslaughter. The circumstances must deter- mine the intention and the case. "I do not mean the mere circle of facts immediately surrounding the parties at the moment of the fatal act ; but the facts more or less remote, according to the case, which may reasonably be supposed to have been in the niinds or contemplation of the parties at that time ; the facts to which their conduct may be supposed to have tacitly referred— the facts which may be reasonably intended to have prompted the fatal act. When the jury who are to decide on the intent have these facts before them, and not till then, they have the means of intelligent and conscientious judgment, " The authorities quoted in argument for the prisoner, give full support to hjs motion. I regret that, in the heavy business of this Court, neither my time nor my strength permits me, as I would desire, to bring out in this opinion, such portions of the authorities as would, in my judgment, show the law to be as I ha\e stated. I cannot, however, refrain from pointing particularly to the case of Monroe, plaintiff in error v. The State of Geor- gia, [ante, p. 442,] as a controlling authority on the points before us — a case argued and decided wth ability, and in which nearly all the cases referred to A\ ere cited. Contenting myself with this reference, I proceed to the few . other observations I deem it essential to make " It seems hardly necessary to observe that evidence of the character and habits of the party slain, is -proper only so far as they can be supposed to have affected the intention of the slayer, in the fatal act. And, therefore, his general bad character is inadmissible. The evidence should be conflAd to a character and habits of violence, treachery, etc., sucli as might beget reasonable apprehensions of grievous bodily harm, and reduce the other party to the apparent necessity to slay in self-preservation. '• Such an appreliension may be, also, created by particular preceding acts, reasonably connected in point of time, or occasion, with tlie fatal ren- counter ; or by threats, as well as by the general habits or conduct of the deceased ; and may, therefore, be the proper subjects of evidence. " But .whether the general character, or conduct, or particular acts of the description menSoned, bo offered, it appears to be essential to their re- ■cpption, that it should, somehow, reasonably appear that the prisoner knew, or may be supposed to have known, such character or conduct; for, if he was ignorant of them, they could not possibly liave modified his in- tention in the act of slaying. "And, of course, if the relevancy of the testimony does not appear from the prior evidence in the case, the party offering it must lay a foundation foritsreceptionin the proof of facts making it relevant, and the Court must, necessarily, have the power to decide, subject to review upon its relevancy. '■ We are aU of opinion that the Circuit Court was in error in rejecting the testimony proposed, which the circumstances showed to be proper; and, therefore, as it should have gone before the jury, however trivial its effects might have been, (of which we are not the judges,) we feel con- strained to grant the motion for a new trial ; and it is so ordered.' CHAEAOTER OF DECEASED — FIELDS V. STATE. 691 We shall now proceed to examine what seems to us the most singular ruliag to be met with in the books. We allude to the case of Fields t. The State,47 Ala., 603, which we have already quoted, are-fall, he was ar- rested by the defenilant and shot down with a weapon prepared for the oc- casion, and with every circumstance of deliberation and express malice. It is true there had been, five or six hours before, a great provocation ; but there had been abundant time for passion to subside, and reason to resume- CHAEACTJER OF DECEASED — FIELDS V. STAT«. 695 her sway. The killmg, under the circumstances, then, was dehberate mur- der, and would have been no less so, had the character of the deceased been as blood-thirsty as that of a Mexican bandit. Under such rulings, the ad- ministration of justice becomes a farce and a mooliery; and human life will become very cheap in Alabama, if such doctrines are upheld. We are tempted here to make a suggestion. Tlie practice of the crim- inal and civil departments of the law, is becoming of late years separated into two distinct branches. We know of criminal lawyers of considerable standing, who never have had a civil case in court. On the other Iiand, there are many lawyers who have attained, eminence in their profession, who have never apJDeared as counsel in a criminal case, and to whom the criminal law is almost a sealed book. Under the system of electing judges which obtains in many of the United States, judges are chosen hap-hazard by poUtioal caucuses, from men of standing or reputation as lawyers, with- out reference to their special qualifications for the positions they are called upon to fill. It thus not unfrequently happens that judges are found, even in courts of last resort, who are unacquainted with the criminal law, ex- cept in a general way, and through their early reading. We Icnow of one instance where a court of last resort was composed of three able judges, not one of whom was in a tolerable degree conversant with the criminal law. That such a court, however able, conscientious and laborious its mem- bers may be, should at times render crude and erratic decisions in criminal cases, is no more than is to be expected ; and there seems to be no safe- guard against a recurrence of the evil, unless some better mode can be de- vised for the selection of judges, or unless political caucuses can be so edu- cated as to distribute their favors in such a manner as to place upon each bench of last resort at least one good criminal lawyer. We expressly dis- claim applying these observations to the respectable Court which decided the case we have just examined. ■ The foregoing oases, and others which are included in this volume, do not leave much room to doubt that in proper oases, evidence of the charac- ter of the deceased for violence, in trials for homicide, ought to be admit- ted. What circumstances are appropriate for the admittance of such testi- .mony, must, in a great measure, depend upon the circumstances of each particular case. It is thought that the following rules, however, are founded on sound principle, and weU supported by the reasoning of the preceding cases : Such evidence ought to be admitted — 1. Where the evidence is wholly circumstantial, and the character 'of the transaction is in doubt ; as in Tacltett's case , ante. p. 615. 2. Where there is evidence tending to show that the killing may have been done from a principle of self-preservation. There is a plain miitter of sense underlying this branch of the question. Where one is attacked or drawn into a combat, he is obliged by the constitution of Iiis nature, in estimating the danger in which he is placed, and the degree and kind of resistance necessary to his defence, to consider not only the size and strength of his antagonist, the manner in which he is armed, and the threats which he has made, but also his character for reclvlessness, cruelty, revengCj and resolution. Now, the object of a jury trial, in such cases, is, or ought to be, to place each member of the jury precisely in the situation 696 THE PEOPLE V. LAMB. in wliich the defendant was placed ; to surround him with the same appear- ances of danger ; to give him the same degree of Ituowledge of his antago- nist's probable purposes which the defendant possessed, and no more; and then to require him to say, under the obligation of his oath, whether the defendant did any more than a reasonable man should have done under the circumsc/aiiees. We thinlc that, in this view, the cases above quoted from Massachusetts, were appropriate ones for the admittance of such testi- mony; and in York's case in particular, we humbly conceive that the Court did not, and could not, answer the argument of Mr. Dana, in sup- port of the admission of the testimony proposed. The ruling in Mead's case, excluding evidence of the size and strength of the deceased, is not only, we venture to suggest, clearly repugnant to reason, but contrary to every other case we have met with, in Massachusetts and elsewhere, where that question has been raised. See, for instance, Selfridge's case, ante, p. 23 : C'opeland'scase, asnie, p.41; Thompson's case, ante, p. 92; Benham's case, ante, p. 115 ; Riley and Stewart's ca^e, ante, pp. 156, 157 ; Floyd v. State, 36 Ga., 91. We believe it is the universal practice to admit sucli testimony, wliere the killing was done in combat, and do not recollect having met with any other case where it was excluded. Such evidence is admissible against the prisoner, as well as for him. Hindi v. State, 25 Ga., 699. Of course, in this xinyv of the case, and for this purpose, evidence of the character for violence of the deceased would be inadmissible, unless known to the defend- ant; but when such character is proved by general reputation in the neighborhood where the deceased and the defendant both lived, it would seem that it ought to be presumed that the defendant knew it. Such knowl- edge in many cases could only be established by presumptive evidence. We confess that the remark of Chief Justice Davies, in Lamb's case, supra, pp. 653, 654, that a man in such cases ought to be required to prove afiirm- a lively the character of his own wife, does not appear to us to be of much force. The fact that she was his wife, and that they liad cohabited together, would of itself be presumptive proof that he knew her character, and, per- liaps, the only proof, certainly the most satisfactory and convincing, that could be presented. 3. Wherever it is proper to admit threats, either communicated or un- I'ommunicated, made by the deceased or prosecutor against the defendant, evidence of the character of the defendant for violence, firmness of pur- pose, and the like, is equally admissible. This principle has been declared in Texas by Statute. See syllabus of Pridgen's case, ante, p. 417. The reason of this rule will appear from the argument of Ciiief Justice Pbar- sox, in Bottoms v Kent, supra, p, 673, namely, that where threats have been made, the character of the person making them is the principal ele- ment to be considered in determining their value. If this view be cor- rect, the conclusion reached in Lombard's case, supra, pp. 6S1-2, is unten- able. The American books contain other cases on the subject under considera- tion. Such of the'ie as wo have found, we shall merely cite in the index ; where we shall also endeavor to show the effect of all the cases in this vol- nme which relate to the subject. SYLLABUS. 697 E —DEFENCE AGAINST UNLAWFUL ARREST. NOLES V. THE STATE. [26 Ala., 31.] Supreme Court of Alabama, January Term,, 1855. William P. Chilton, Chief Justice. George Goldthwaitb, ) .„„„„.„/. Tu.itice^ Samuel F. Rice ] ^^'^^^^^^^ Justices. Defence agalnst unlawful arrest — Acting upon appearances of DANGER. 1. To excuse a homicide, there must exist, on the part of the slayer, au actual necessity to liill in order to prevent the commission of a felony or great bodily harm, or a reasonable belief in his mind that such necessity ex- ists. [Aco Sloan's case, ante., p. 517, 6th res., and cases cited.] 2. While every citizen has the right to resist any attempt to put an ille- gal restraint upon his liberty, his resistance must not be in enormous dis- proportion to the injury threatened. He has no right to Isill, to prevent a mere trespass which is unaccompanied by any imminent danger of great bodily harm or felony, and which does not produce in his mind a reasona- ble belief of such danger. [See note following next case.] 3. The charges of the Court in this case, and its refusal to give the charges asked by the prisoner, tested by these principles, and held correct. 4. Any fact which tends to prove the real motive of the prisoner in liill- ing the deceased, or the purpose of the deceased in going to the prisoner's house, or that the prisoner Icnevv, at the time of the Ivilling, that the de- ceased and his companions did not intend to commit any felony, nor to do him any great bodily harm, is relevant evidence ; as that an affidavit for the arrest of the accused had been sworn out before a j ustice and the deceased deputed to execute it. [So, evidence tending to show a state of facts the converse of the above, is admissible in behalf of the accused. Goodricli's case, ante, p. 532 ; Monroe's case, ante, p. 442 ; Keener's case, ante, p. 539 ; Pridgen's case, ante, p. 416 ; Campbell's case, ante, p. 282 ; JRapp's case, ante, p. 293 ; and others.] Joseph Noles was indicted, at the spring term, 1853, for 698 NOLES V. THE STATE. the murder of one George T. Sharp ; was tried, convicted and sentenced to be hung, but the judgment was reversed at the June term, 1854, of the Supreme Court,' and the cause remanded. .See 24 Ala., 672. A second trial was had at the fall term, 1854, which resulted in another con- viction, from which this writ of error is prosecuted. Burns, a justice of the peace, was permitted to testify that Noles' wife had made an affidavit against him, and that he thereupon issued a warrant for Noles' arrest. It is to be observed in the outset, that the circuit judge vio- lated a plain rule of evidence and of common sense in ex- cluding this affidavit and warrant from the jury, and afterwards in charging them as though no such warrant had been issued. We are, hence, left in doubt as to the nature of the charge contained in the affidavit, but^ it would seem from the charge of the circuit judge, that it was a misdemeanor only. Burns read to the prisoner the affidavit which his wife had made against him, and the prisoner demanded an investigation. Burns told the prisoner that he had no constable or officer to arrest him, and that he would not try him unless he was regularly arrested, but if he would surrender himself to some one, he, Burns, would investigate it. Noles replied that he would see about it, and then left. This testimony the judge admitted against the objection of the prisoner, after excluding the affidavit and warrant which had been offered by the State. Burns then appointed Sharp, the deceased, a special constable to arrest Noles, there being no regular consta- ble in the beat, and gave Mm the paper which he had issued.. Sharp then summoned a posse of seven or eight men, and started for Noles' house. When they had arrived within forty or fifty yards of the house, Noles came out into the yard with his gun, and ordered them to stand off; said that if they abused him, he would shoot some of them ; that they were a drunken, rowdy set, and if they would go away, and send some old man, he would go with him, or if they would send a ten-year-old-boy, he would go with him. The party halted, and Sharp STATEMENT 0¥ THE FACTS. told Noles not to shoot; that they would not rush upon him, but that he would return in the evening and arrest him ; and Noles replied that he would be at home. The party were quiet and orderly, and were unarmed. Sharp returned to Burnsville, the place where the jus- tice lived ; sumnioned two additional men older than the others ; got a double-barreled shot-gun, and started back vdth his posse to arrest Noles. When the party had arrived within sixty or seventy yards of Noles' house, Noles came out into the yard and ordered them to stop, raising his gun to his face, and saying if they advanced, he would shoot some of them. They all stopped, and Sharp dismounted quickly on the left side of his horse, holding the gun in an elevated position, it being grasped about mid-way in his left hand. As soon as Sharp was on the ground, and fairly erect," Noles' gun fired, the ball hitting Sharp, who died in ten minutes. Noles fled. Hall, one of the posse, when he observed that N'oles was about to shoot, called out to Sharp, " He is about to shoot," or " We are about to catch it." A single witness testified that the language used by Hall, was " Shoot, he is about to shoot us ;" but Hall did not recollect using such language, nor did any other member of the posse, except the witness mentioned, hear such language. After Sharp fell, his gun was found near him, the right hammer down, and the cap either off^ or burst; but the gun was not examined to see whether a barrel was discharged. One member of the posse heard two reports, but thought that one was from the echo of the house. It was admitted by the State, that Mrs. Barrett, if pres- ent, would swear that she heard two distinct reports, between a quarter and a half mile from the place, and at the time Sharp was shot. A medical witness testified, that, from the direction of the ball, the left arm of Sharp must have been raised horizontally at the time he was shot. A witness testified that Hall, one of the elderly men that Sharp had added to his party, said that when they went to Noles' house, they did not want to take him, but wanted him to go away. 700 HOLES V. THE STATE. His Honor, among other things charged the jury ; 1. " That Sharp and his party, in going to the house ■of Noles to arrest him, not having any warrant to do so, and no charge of -felony against him, were all trespass- ■ Justices. George Thatchee, ) Eesistancb op umawful arrest — Resistance of Trespassek — Defbk©- ixG another person. 1. A bare trespass ag linst the property of another, not his dwelling- house, is not a sufficient provocation to warrant the owner in using a deadly weapon in its defence ; and, if he do, and with it kill the trespasser, it will he murder. But if the beating be with an instrument, and in a manner not likely to kill, it will be no more than manslaughter. [Ace. Harrison's case, anie, p. 71, and citations.] 2. If one under color or claim of legal authority, unlawfully arrest, or actually attempt, or offer to arrest another, and this latter, in his resistance, kUl the aggressor, it will be no more than manslaughter. [See note, sub Jin.} 3. In such case, if one, not a stranger, aid the injured party by endeavor- ing to rescue him , or to prevent an unlawful arrest when actually attempted, and, in so doing, kill the aggressor, it will be no more than manslaughter. [See upon this point, note, sub Jin.'] The defendants were indicted at this term for the wilful murder of Ebenezer Parker. The indictment con- tained two counts. The first count charged Drew and Quinby with assaulting Parker at Falmouth, on the 11th day of January last, then a deputy sheriff, and in the due execution of his office ; and that Drew then and there, gave the deceased the mortal wound, of which he thereafterwards, on the 18th of the same January, died ; and that Quinby was present, aiding and abetting Drew in giving the mortal wound. The second count was like the first, with this difference 706 COMMONWEALTH V. DEEW. only, that it was not alleged therein that Parker was a deputy sheriff, in the execution of his office. The prisoners, on their arraignment, pleaded not guilty ; and not agreeing in their challenges to the jurors, they were separately tried. Drew was first put on Ms trial. It satisfactorily appeared in evidence, that, on the day alleged in the indictment, Drew gave the de- ceased a mortal wound with a bludgeon, by which Park- er's skull was fractured ; that the bludgeon was of hard wood, about four or five feet in length, and about two inches in diameter, having formerlj- been used as a han- dle to a pitchfork ; and that Parker, seven days after- wards, died of that wound. It was proved that at the time the wound was given, and long before, the deceased was, and had been, a deputy sheriff, duly appointed and qualified to execute that office ; that an execution, duly issued on a judgment legally recovered by one Josiah Grould against Quinby, had been, some time before the assault, delivered to the deceased to be executed ; that, about a fortnight before the assault, the deceased had lawfully arrested Quinby on that execution, and had delivered him to one Rich- ard King for safe keeping, Avho took charge of him ; that, without the knowledge of the deceased. King, at Quin- by's request, permitted him to go at large, Quinby prom- ising King that he would be ready to settle the execu- tion at any time when the deceased should call on him ; that Parker, who lived at several miles' distance from Quinby's place of lesidence, came thither, about a week afterwards, to see Quinby, and procure satisfaction of the execution, but Quinby could not be found by him; that Drew and Quinby were hired men, in the service of Daniel Conant, Drew's employment being at a black- smith's forge of Conant's, and Quinby's in working at Couant's saw-mill; but when the mill was not going, Quinby worked with Drew at the blacksmith's shop, which was at a distance from, and not part of, any dwelling-house ; that, on the day when the mortal wound was given, the deceased again came to see Quinby, and, STATEMENT OF THE FACTS. 707 if he would not satisfy the execution, to arrest his body ; that Quinby knew that the deceased had come with that intent, and being at work in the saw-mill, and seeing the deceased coming to the mill, he left his work and went to Conant's house ; there taking with him a bottle of rum, he passed out of Conant's back door, and went to the blacksmith's shop, where Drew was at work, making nails, when Drew and Quinby fastened the door, to ex- clude the entrance of any person ; that in the evening, the deceased, having been informed that Quinby had shut himself in the shop with Drew, sent one William Babb, Jr., to the shop, to inform them that he was coming, and to advise Quinby to settle the execution ; that Babb went, and finding the door fastened, knocked ; Quinby called, "Who is there?" Babb then told his name. " Who is with you ? " asked Quinby ; upon Babb's answering, " No one," he was admitted into the shop, and the door was again fastened, and Babb de- livered his message from the deceased, advised Quinby to settle the execution, and told him that Conant was ready to settle it for him, if he would consent; but Quinby refused, and said it should not be settled that night ; that the deceased then came to the shop with Richard King, Samuel Cox, and some others to assist him, and knocked at the door ; Drew was drawing nails from a rod then in his hand, and Quinby was blowing the bellows, one hand being on the bellows-pole, and the other resting on the bludgeon, with which the mortal wound was afterwards given ; that when the deceased had knocked, Drew enquired who was there ? " Parker," answered the deceased ; that Drew then threw some burning cinders towards the door from the nail rod in his hand; that Parker then asked for admission, and Drew asked him if he was well; "Yes," answered Parker. " Then I advise you," said Drew, " to stay where you are;" that the deceased then told Drew, that he did not want him, that he wanted Quinby, who was his prisoner, and that he would have him ; that the de- teased then put his hands under the door, which was 708 COMMONWEALTH V. DREW. about four feet wide, and wMch opened outwards on a lane leading to Conant's house, and to his mills, and, without much apparent difficulty, pulled it open ; that Drew immediately threw down the nail-rod, caught up a sledge, and came to the door; that he went out in a great passion, saying, "What are you breaking open my shop for? stand by, or I will throw the sledge through you ; " that he then, with the sledge, struck at the deceased, who was without any weapon, and who dodged behind the door ; that he then struck at King, who retreated from the sledge, and Drew threw in at him, and it glanced against his breast, and fell without hurting him; that Quinby, when Drew had left the shop with the sledge in his hand, threw down the bludgeon he had held, towards the door ; and it fell about two feet distant from it; that Drew, after throwing the sledge at King, returned to the shop-door, and saw the bludgeon lying there ; that he reached in his hand, and took the bludgeon, and turned to the deceased, who had pushed the door partly forward, had come from behind it, and was standing against the edge of it, and struck at him three times with the bludgeon, holding it in both his hands, and striking with great violence; that the first blow fell on the edge of the door, and forcibly shut it ;. the second blow was on the head of the deceased, and inflicted the mortal wound; and the deceased, when falling under the weight of it, received the third blow on his back or shoulders, it not being clearly ascertained on which ; and one witness also testified that the first blow struck the head of the deceased ; that Drew then turned to King, and with the bludgeon knocked him down, and immediately went into the shop, carrying the bludgeon with him, and then told Babb that he had better take Parker up, as he had got enough of it ; that Babb left the shop to take up the deceased, and Drew and Quinby again fastened the door, and, opening the window, defied the people who were outside ; Drew saying, that as many might come as had a mind to, and he would give them all sore heads. AKGUMENT OF COUNSEL., 709 Upon tliis evidence, tlie counsel for the prisoner argued, that the offence was manslaughter, and not murder. That Parker, having before arrested Quinby on the execution, and his servant having permitted him voluntarily to escape, he could not again lawfully arrest Quinby on the same execution ; and therefore, the de- ceased was a trespasser in breaking open the shop-door, ' and his entry might lawfully be resisted by Drew, who was in possession of the shop. And they argued further, that the deceased was killed in attempting un- lawfully to arrest Qainby, by color of a legal warrant ; that the attempt was an unlawful act; that not only Qainby, but any stranger, might lawfully oppose the officer in his unlawful attempt, and a fortiori^ might Drew, as he could not be considered as a stranger, being a fellow-servant with Quinby, working with him for Conant, who had hired them to labor in his service ; and if the officer was killed in pursuing his unlawful attempt, the killing was, at most, but manslaughter. And upon this point, they cited, and relied on as authorities, Sir Henry Ferrer's case, Cro. Car., 371 ; Hopkin Huggett's case, 1 Hale, 465, and Kel., 59 ; Rex v. Tooley, et al., 2 Ld. Eaym., 1296 ; Mary Adey's case, 1 Leach 0. C, 245 ; 1 East C. L., 329, in the note. The Solicitor-General for the Commonwealth argued that when the mortal wound was received, the deceased had not given to Drew any provocation, sufficient, in law, to reduce the homicide below the crime of murder. And he cited Foster's C. L. Disc, 2, ch. 8, §§ 10, 11, 12, 13, 14; and 1 East's C. L. 325, ch. 5, § 89. The Chief Justice charged the j ury . After stating to them the evidence, he observed that, if they believe the witnesses, the deceased, when he received the mortal wound, was not in the execution of his office, as a dt'p- uty sheriff; that, having arrested Qainby fourteen days before, and committed him to the custody of King, who had voluntarily permitted his prisoner to go at large, this permission must also be considered as the act of the deceased, whose servant King was ; and that a vol- 710 COMMONWEALTH V. DREW. untary escape of Quinby having been suffered, the de- ceased could not lawfully arrest him again on the same execution ; and, therefore, that the prisoner ought to be acquitted of the felony and murder charged in the lirst count of the indictment. In the second count, the prisoner was charged with murdering the deceased, then in the peace of God, and of the commonwealth, without any allegation that he was in the execution of his office as a deputy sheriff;, and the jury were instructed that it was their duty to consider the evidence, as it applied to this second count.. If they believed the witnesses, there was no question but that the deceased was killed by the prisoner at the bar. If they were satisfied of tiiis fact, the implication of malice would arise, unless the circumstances of the killing were such as would reduce the crime below mur- der. If the act of killing was in itself attended with probable dangerous consequences to the deceased, and was committed deliberately, the malice will be presumed, unless some sufficient excuse or provocation should be shown ; for the law infers that the natural or probable effects of any act, deliberately done, were intended by the agent. It had been argued that there were two causes of provocation, which would reduce the killing below the crime of murder. One was, that the prisoner was in the peaceable possession of his shop, engaged in his lawful business, when the deceased unlawfully forced, open the door, with an intent to enter, against the pris- oner's consent. The other provocation was, that the de- ceased forced the door, with the intent unlawfully to en- ter, and to arrest Quinby, who was the prisoner's fellow- servant, and at work with him, the deceased having no legal warrant therefor. The Chief Justice then observed that it was necessary for the jury, before they considered the nature and suffi- ciency of these provocations, to determine whether the bludgeon used by the prisoner, in killing the deceased, was, or was not, a deadly weapon, which would necessa- rily kill, or do great bodily harm ; that this was a ques- CHAEGE— EEPELLING TRESPASSER. 711 tion of fact for the jury exclusively to decide. If the jury were satisfied that the weapon used was not likel}- to kill, or to-do great bodily harm, he was of opinion that either of the provocations was sufficient to free the pris- oner from the guilt of murder. For, by using a weapon which would not probably do great injury to the de- ceased, it was a reasonable inference that the prisoner did not intend to kill the deceased,, but accidentally killed him, against his intention, and the presumption of malice would be sufficiently rebutted ; and without malice, the killing could not be murder. But if the jury were satisfied that the instrument of death was a deadly weapon, which would probably kill the deceased, or do him great bodily injury, these grounds of excuse or provo- cation would deserve a different consideration. That the provocation arising from the trespass committed by the deceased in breaking open the shop door, for the pur- pose of unlawfully entering, was not a provocation suffi- cient to reduce the killing below the crime of murder, if the prisoner killed the deceased with a deadly weapon ; because the trespass was not a sufficient excuse for such a barbarous act, admitting the prisoner, and not Conant, his master, to have had possession of the shop. For it is a rule of law, that where the trespass is barely against the property of another, not his dwelling-house, it is not a provocation sufficient to warrant the owner in using a deadly weapon, and if he do, and with it kill the trespasser, this will be murder, because it is an act of violence beyond the degree of the provocation ; but if the beating be with an instrument, and in a manner not likely to kill, and the trespasser should, notwithstand- ing, happen to be killed, it will be no more than man- slaughter. The other provocation, which, it was argued, would reduce the killing below murder, was the forcibly breaking of the shop door by the deceased, with the intent unlawfully to enter, and to arrest Quinby. It was a principle of the law, that, if any man, under color or claim of legal authority, unlawfully arrest, or actiially attempt or offer to arrest another, and, if he resist, and 712 COMMONWEALTH V. DEEW. in the resistance, kill the aggressor, it will 'fee man- slaughter ; and that any person aiding the injured party by endeavoring to rescue him, or to prevent an unlawful arrest when actually attempted, is guilty only of man- slaughter, if he kill the aggressor in opposing him, unless, perhaps, the party aiding be a stranger to him, whom he shall endeavor to assist. That whether the principle will, or will not, comprehend a stranger, it was not necessary then to decide ; for it was the opinion of the judges then present, that, in this case the prisoner was not to be considered as a stranger to Quinby, as they were fellow-servants, hired by the same master, and were at that time laboring together in his service. Although, from the testimony of the witness, (if the jury credited him,) it appeared that, on the door being broken open, the prisoner rushed out with his sledge, saying, ''What are you breaking open my shop for? Stand by, or I will throw the sledge through you," whence it may be inferred that the fatal blow was given to chas- tise the deceased for the violence done to his shop ; yet the jury would decide, whether it must not be reason- ably presumed that the intent of the prisoner was also to prevent the deceased from entering the shop to arrest Quinby, as tlie door had been fastened for his protection, and as the deceased had just before declared that he was his prisoner, and that he would have him. That in this view of the evidence, the jury would apply the facts to the law. In three of the cases relied on for the prisoner, the unlawful arrest had been made before there was any resistance or quarrel. And in the last case, the officer and his assistant, before the latter was assaulted, were in the room with the party to be arrested, had him in their power, and had ordered him to go with them. In the case of the prisoner, Quinby had remained all the time in the shop, and the deceased had not entered it, but when the prisoner went out, had retreated behind the door, to avoid a blow from the sledge. That, before the mortal blow was given, a stroke with the bludgeon CHARGE — UNLAWFUL ARKEST. 713 iad forcibly shut the door : and that the deceased and the prisoner Were out of the shop, with the door closed, when the mortal wound was inflicted. If the jury were satisfied that the evidence established these facts, they would conclude that, although the deceased had forced open the door, with the intent to enter the shop, to arrest or to attempt the arrest'of Qiiinby, yet when, he received his death wound, he had not arrested Quinby, nor had he, in fact, attempted or offered to arrest him. The Chief Justice concluded by observing that he had con- sidered the evidence in a light as favorable to the pris- oner as was consistent with the testimony of the wit- nesses ; and it was with regret that he was obliged to declare, that, if the facts were as he had stated them, of which the jury were the judges, the killing of the deceased by the prisoner, if the instrument was a deadly weapon, amounted to the crime of murder. The jury acquitted the prisoner on the first count, and found him guilty of the felony and murder charged in the second count. Verdict, guilty. XoTE. — The above two cases sufficiently make clear the extent to which a person may go, in resisting an unlawful arrest. Prom them the follow- ing conclusions may be deduced expressive of the usual rule in such •cases : _ ' 1. That an attempt unlawfully to arrest or restrain the liberty of a per- son, stands on much the same footing, as any other non-felonious assault, or as a common assault and battery. In neither case is the injury, in a legal sense, irreparable, as in case of a felony committed upon the person. For, in case of an illegal arrest, the law jDromiscs a writ ot habeas corpus to discharge the person so arrested, and also damages for the false impris- onment. Therefore, the person defending against the illegal arrest, can no more justify the slaying of the person attempting the arrest, than he can justify the slaying of a person who attempts any other kind of nor.- felonious assault, or trespass upon his person. This point is, in. effect, de- cided in the first of the two preceding cases ; and it is a question about vi^hich there is no dispute. It results from the fact, that an unlawful arrest is a trespass merely, and not a felony. But, nevertheless, a person is not obliged to submit to an unlawful arrest, any more than to any other as- sault or trespass. He may stand his ground and repel force by force, tak- ing care that the force employed does not exceed the bounds of mere de- fence and prevention, and that it does not become enormously dispropor- tionate to the injury threatened. This is the law of non-felonious assaults as we shall see by the case of Gallagher, next following, and as we have 714 COMMONWEALTH V. DREW; already seen by the case of Thompson, ante, p. 92; of Benham, ante, p- 115 ; of Shippey, ante, p. 133 ; and otliers. And there is no reason why it should not apply to the case of an imlawful arrest, which is an assault of an ao:gravated character, as will be seen by the cases cited under the next head. Thus, it is said in a late case in Delaware : " If an officer comes without lawful authority to arrest a man in hU own house, the party is not bound to yield, and may resist force with force ; but he is not authorized to go beyond tlie line of resistance proportioned to the character of the assault, or he, 'In turn, becomes a wrong-doer." The State v. Oliver, 2 Houston, 606. And in such case, "it will be an unlawful killing; but unless there is malice, it will not be murder — it will be manslaughter only-." Ibid. And the Supreme Court of Texas, in a case where a constable was resisted in attempting to arrest a person to prevent a threatened breach of the peace, and the defendant was consequently indicted for an assault,, reason as follows — stating precisely the law applicable to the resistance of other non-felonious attacks : " But admitting that the defendant was not then doing anything, nor was about to do anythiiig which justified the constable in arresting him, and that therefore he had a right to stand on his own defence, and prevent himself from being arrested by the constable, (who had no warrant.) or by any private person, the jury were still authorized to find him guilty of an assault, from the dangerous and unnecessarj' and improper means which he used to protect himself from the arrest. If the constable, without any law- ful authority or just cause, had arrested him, it would have included an illegal assault, which he would have had a right to prevent instantly him- self. But by what means? Could he do it by an assault with a deadly weapon? It is not shown that such extreme means were necessary or proper on that occasion. His antagonist had already been arrested, and it does not appear that the constable either had in possession or was attempting to procure or use any weapon of any sort in making the arrest. Our code provides that any one may protect himself from all unla'v\'ful assaults or other forcible injuries, and it also prescribes the manner in which he may do it. ' Where violence is permitted to effect a lawful pur- pose, only that degree of force must be used which is necessary to effect such purpose.' Penal Code, 484. ' The resistance which tlie person about to be injured may make to prevent the commission of the offence, must be proportioned to the injury about to be Inllicted. It must be only such as is necessary to repel the aggression.' Code Crim. Pro., 69 and 70. This is in entire harmony with the spirit of the common law. Although a man has a right to bear arms of the most deadly character in his own defence, it does not therefore follow that he has a right to defend himself \\ ith them, and by using them on all occasions, however trivial the attempted Infringement of his rights. Under ordinary circumstances ho could have no right to use them to repel a slight assimlt or trespass. The serious char- acter of tlie aggression alone can produce the necessity, and hence alone his right to make use of them in defending himself. The law does not permit the lives of individuids to be thus hazarded." Stockton v. The State, 25 Tex., 776. This right to repel force by force continues until the person at- DEFENCE AGAINST UNLAWFUL AKKEST 715- tempting the unlawful arrest presses forward with so much force, that the person defending is obliged to choose between three tilings : to re- treat, to surrender, or to kill his adversary. And here, as in other cases of non-felonious assault or mutual combat consequent thereupon, he is probably obhged to retreat, if he safely can, before he can justify killing. If he cannot disable his adversary without killing him, he must eitlier surrender, retreat, or incur the guilt of manslaughter. We do not, how- ever, recall any case where the doctrine of " retreating to the wall " has been applied to cases of combat arising in resistance of unlawful arrest. On the other hand, it was said, in a case where the officer and his party preceeded to unlawful extremities in firing into a man's house, while attempting to arrest him on a peace warrant, " Under this view of the case, the resistance of the prisoner to an unlawful attack, though such re- sistance should result in the death of the aggressor, could not amount to murder, but manslaughter only, or homicide in self-defense. The law of self-defence justifies the repelling of force by force in such cases, even unto death, but gives no protection to wanton or unnecessary aggression.." The State v. OUver, 2 Houston, (Del.,) 608. a. We shall now state an exception, or rather a limit to this principle.. In the foregoing paragraphs, we have been speaking only of ordinary cases of arrest by persons acting under color or claim of legal authority. Other cases which might be denominated arrests, but which partake rather of the character of felonious assaults, do not fall within the above principle; such as kidnapping a person for the purpose of selling him into slavery ; or carrying him into a foreign country; or impressing him as a seaman on board a foreign ship ; or an arrest by a vigilance committee. In such cases as these, a person would undoubtedly be justified in protecting his. liberty, even unto the death. Mr. Bishop refers to a case of this kind when he says, "And if a case should arise, in which an attempt was made to convey a person by force beyond the reach of the laws, and there con- fine him perpetually, doubtless the courts would hold him justified legally, as every man would pronounce him to be morally justified, in i-esisting to the death. And this proposition would seem in legal reason, to extend to an attempt to convey the individual into another State or country." 1 Bish. Crim. Law, \ 868, 5th ed. So, it has been said, referring to a case of ordinary arrest by a peace ofiicer, that " circumstances of threatened difll- culty with dangerous weapons in the hands of others, may surround a party so that it would be unsafe for him to sufler an unlawful arrest by a consta- ble, which might place him at disadvantage with his antagonists by disarm- ing him, and he might not be in a situation in his emergency to await the delay of a milder means of self-protection. In any such case the facts which constituted the emergency must be shown, to justify the immedi- ate use of such deadly weapons." Stockton v. The State, 25 Tex., 777. 2. Again : ''A lawful power to arrest may be exercised in such a wan- ton and unnecessary manner as to make the officer a trespasser, and justify resistance. * * * Thus, if an officer having a warrant to arrest a man for a crime or misdemeanor, finds him at his house, he may not break into the house until he has demanded admittance and been refused ; he may not attack the house or the person within with violence, until he has been resisted and thus obliged to resort to violence ; he may not fire 716 COMMONWEALTH V. DEBW. upon the house or the person within it, until he has been so fiercely resisted and opposed, as to malce that liind of attack prudent and neces- sary ; and if he does proceed to execute even lawful authority in this unlawful way, he justifies resistance." The State v. Oliver, 2 Houston, {Del.,) 605, 606. 3. Although a man will not be justified, then, if he Jiill in defence against an illegal arrest of an ordinary character; yet, the law sets such a high value upon the liberty of the citizen, tliat au attempt to arrest him unlawfully is esteemed a great provocation, such as will reduce a killing in the resistance of such an arrest to manslaughter. This priuclple is declared in the second of the two preceding cases, and is well established, both in England and in this country. ReX. v. Curvan, 1 Moody, C.C, 132; Buok- uer's case, Style, 467 ; Tooley's case, 2 Ld. Raym., 312 ; 1 Hale, F.C., 457 ; roster, 312, I 9 ; Reg. v. Phelps, 1 Cur. & Marsh., 180 ; S. C, 2 Moody, (J. C, 240 ; Stooklfey's case, 1 East, P.C., 310 ; Ferrer's case, Cro. Car., 371 ; W. Jones, 846; Kelyng, 59; Rex v. Patience, 7 Car. & Pay. , 775 ; Rex v. Thompson,! Moody, C.C, 80; Roberts v. State, 14 Mo., 146; Com. v. Carey, 12 Cush., 246; Tackett v. State, 3 Yerg., 392; Galviu v. State, 6 Coldw., (Tenn.), 291 ; The State v. Oliver, 2 Houston, (Del.), 605. But while this is the general rule, yet the killing may be done under such circumstances of deliberation or cruelty, as will afford proof of ex- press malice, in which case it will be murder. Foster, 137, 138 ; Rex. v. Pa- tience, 7 Car. & Pay., 775; Reg. v. Allen, 17 Law Times, N. S., 222; Roberts v. The State, 14 Mo., 146; Galvin v. The State, 6 Coldw. (Tenn.,) 292. As where prisoners had been some time in custody, and the inform- ality of the warrant^ under which they were held, was unknown to them, and they deliberately devised and carried out an attack which resulted in the death of one of the officers, — this was held murder, and not man- slaughter. Reg. V. Allen, ut supra. Or if the killing be done with a weapon joreparerf beforehand to resist the illegal violence. Rex v. Patience, 7 Car. & Pay., 775. And it has been said in a case already quoted, that if the defendant, " having a right to resist, resisted with unlawful fierceness, the killing would be manslaughter, or, at most, murder in the second de- gree "—The State v. Oliver, 2 Houston, (Del.), 610— indicating, it would seem, (hat malice might be presumed from a wanton degree of force in resisting. 4. The law applicable to defence against unlawful arrests, differs from that applicable to defence against trespasses upon property, in this : If a person resisting a trespass upon his property, makes use of a deadly weapon, and with it kills the trespasser, it is murder, wliile in other cases it IS ordinarily but manslaughter ; but, although a person resisting au illegal arrest, makes use of a deadly weapon, and with it slays his adversal-y, the crime is not, because of the use of such deadly weapon, raised above the grade of manslaughter. This coacliision is dodu^ible from Drew's case, supra, and is stated in Roberts v. the State, 11 Mo., 147 ; and the doctrine in its two dillerent branches may be found in in;iny other cases. Harri- son's case, ante, p. 71, and citations. Tooley's case, and others, supra. The rule of the Scotch law is different. Tlius Baron Ilunio says : " If instead of submitting for the time, and looking for redress to the law he fihall take advantage of the mistake, to stab or shoot the oflicor, when no DEFENCE AGAINST UNLAWFUL AREE8T. 717 great struggle has yet ensued, and no previous harm of body has been sus- tained, certainly he cannot be found guilty of a lower crime than murder." 1 Hume Crim. Law, 250. "The distinction appears to be," says Mr. Ali- son, " that the Scotch law reprobates the immediate assumption of lethal weapons in resisting an illegal warrant, and will hold it as murder if death ensue by such immediate use of them, the more especially if the informal- ity or error be not known to the party resisting ; whereas, the English practice makes such allowance for the irritation consequent upon the ir- regular interference with liberty, that it accounts death, inflicted under such circumstances, manslaughter only." 1 Arch. Prin. Cr. Law, 28. And there is an evident tendency, both in England and in the United States, to depart from the rule which makes a killing in resistance of an unlawful arrest, manslaughter only, and to throw a fuller measure of pro- tection around officers who proceed, frequently at the risk of their lives, in the execution of an honest, but mistaken duty. Reg. v. Allen 17 Law Times, N. S., 222; Rex. v. Ford, Russ. & Ry., CO., 329; Rex. v. Wool- mer, 1 Moody, CO., 334 ; Galvin v. The State, 6 Coldw., 282 ; Drennan v. The People, 10 Mich., 169 ; Noles' case, ante, p, 697. 5. But since, in. tliis, as in other cases of non-felonious assault, the de- fendant is justified in resisting with a degree of force and kind of weapon not disproportionate to the injury threatened, it would seem to follow, that if, in resisting without an unnecessary degree of force, and without using a weapon deadly in its character, he should unfortunately happen to kill the person attempting the unlawful arrest, it would be no more than excusa- ble homicide by misadventure, done in the performance of a lawful act. See Benham's ease, ante, p. 115, and note. Thus, it is said in the case from Delaware, above quoted, that " If the arrest be without lawful authority, and the resistance is only sucli as is provoked by, and in due proportion to the assault, and the kill- ing was without malice. It would not be murder of any grade, or man- slaughter." The State v. Oliver, 2 Houston, 604. And again, referring to the same point : "If the prisoner had the right to resist, either because Barker [the officer] had no right to assail his house, or assailed it with un- lawful violence, a kUling in the proper and prudent exercise of such right of resistance, would be neither murder nor manslaughter ; but, if he, hav- ing the right to resist, resisted with unlawful fierceness, the killing would be manslaughter, or, at most, murder in the second degree." Ibid., 610. 6. A sixth question to be considered in connection with this subject is, whether a third person who interferes and assists in resisting an illegal arrest, will incur the guilt of murder or of manslaughter. This question is raised in the last of the two precedingcases, and it is there said, that if a third person interferes in behalf of his fellow-servant, and kills the per- son attempting the unlawful arrest, he incurs the guilt of manslaughter only ; but how it would be in case a stranger should interfere, is not de- cided. It is no doubt a correct principle, that whatever a man may lawfully do in defending himself, he may lawfully do in defending another. 1 Bish. Crim. Law, I 877, 5th ed. But here, in either event, the act is unlawful. The question therefore presented is, whether the unlawful arrest or re- straining of the liberty of a third person, will be a sufficient provocation to 718 COMMONWEALTH V. DEEW. me, in case I kill Sie person attempting such arrest or restraint, to reduce the killing to manslaugtiter. And it was first resolved in Tooley's case, 2 Ld. Raym.,1296, above cited, that it is. In this case, a woman was ar- rested as a lewd person, by a constable out of his precinct ; and after she had been secured in the round-house, three strangers interfered with drawn swords, and killed the constable's assistant, hi attempting her rescue. The arrest having been proven to be unlawful, the question arose, whether the rescuers were guilty of murder or manslaughter ; and it was held, seven Judges against five, that they were guilty of manslaughter only. But this case has been so severely and forcibly criticized by Sir.Miehael Foster, that it is doubtful if it possesses much value as an authority. Foster, 312-317. " They saw a woman," says he, " for aught that appears, a perfect stranger to them, led to the round-house under a charge of a criminal nature. This, upon evidence at the Old Bailey, a month or two afterwards, oometh out to beau illegal arrest and imprisonment, a violation oi magna, charta; and these ruflSans are presumed to h.ave been seized, all on a sudden, with a strong fit of zeal for magna charta and the laws, and, iu this frenzy, to have drawn upon the constable and stabbed his assistant. It is extremely difficult to conceive, that the violation of magna charta, a fact of which they were totally ignorant at that time, could be the provocation that led them to this outrage.'' Foster, 315, 316. Jlr. Wharton thinks that Tooley's case was greatly shaken by Foster's criticism, and may now be regarded as entirely overruled. Whart. Horn., 91. It is to be observed, that the five dissenting Judges were agreed that if the woman had been a friend or ser- vant of the rescuers, it would have been manslaughter only ; and this is like the conclusion of the Chief Justice in Drew's case, supra. See Sub- division H., infra. 7. Another feature of this subject is, that the officer or other person at- tempting the arrest, must make his official character, for his purpose of arresting, known to the defendant, if it is not already known ; otherwise, the defendant stands on the same footing as in any other case of assault. And, since the defendant is entitled to act according to the appearances of danger as they would present themselves to a reasonable man, possessing the same degree of knowledge that he possessed in regard to his situation, it follows that a homicide that in the one case would' be either murder or manslaughter, accordingly as the attempted arrest was legal or illegal, would, in the other case, be excusable, as done under a reasonable belief of impending death or great bodily harm. Logue's case, ante, p. 2G3, fur- nishes a striking example of this principle. The case of Yates v. The People, 32 N. Y., 509, furnislies an illu-tration equally striking. The pris- oner was pursued in the night time, by a shouting mob, threatening his life, and, while endeavoring to escape, under a just apprehension of great bodily harm, if overtaken, was, in his flight, seized by a person, whom, in self-defence, he instantly killed. The person slain turned out to be an offi- cer seeking his arrest. It was lield incumbent on the prosecution to prove that the prisoner had knowledge of the, official character of the deceased. But it has been held that killing an officer who attempts to arrest a man will be murder, though the officer has no warrant, and thougli the man has done nothing for which h" is ]\i\hh\ to be arrested, if the officer has a charge against him for felony, and the man knows him to be an officer, DEFENCE AGAINST UNLAWFUL ARREST. 719 thougli the officer does not notify him that he has such a chai-ge. Eex v. Woolmer, 1 Moody, CO., 334. 8. An eighth question, and one upon which most of the cases turn, re- lates to the circumstances under which an arrest is lawful or unlawful. This opens up a wide field of enquiry, and one which the little space left at our disposal, will not permit us to enter. The question has been treated by Mr. Bishop, with his usual discrimination and accuracy, in his work on Criminal Procedui-e, vol. 1, ?J 612 tt aeq. There is one feature of the ques- tion, however, which would seem peculiar : If the attempted arrest is un- lawful, and the person attempting it is slain, the liilling will be no more than manslaughter, although the slayer did not Itnow, at the time, that the attempted arrest was unlawful. Thus, in Tooley's case, 2 Ld. Kaym, 1296, above cited, it did not appear that the defendants Icnow, at the time they at^ tempted the rescue, that the arrest was unlawful. Foster, 316. So, in Tackett v. The State, 3 Yerg., 392, where a constable attempted to arrest a man under authority of a warrant which had no seal, and was killed in the attempt, it was held manslaughter and not murder, although it did not ap- pear that the defendant had inspected the warrant or objected to its iuform- aUty. This point, however, cannot be said to be clearly established. It arises by inference merely, from some of the cases, and does not seem to be consistent with reason. We have seen from Sullivan's case, ante, p. 65, and Rippy's case, ante, p. 345, that if a person kills his antagonist out of malice, and not upon a principle of self-preservation, it will be murder, al- though the circumstances sm-rounding him were such that he would have been justified in slaying his adversary in self-defence. The inward /ear, as well as the outward danger, must co-exist to excuse the killing. Upon a similar principle, it would seem to follow that where the ille- jgality of the attempted arrest is unknown to the defendant, there can be no provocation — notliiug which should arouse in him a fury of passion ; be- cause to his mind, the arrest would not be unlawful. In the absence of provocation, the law would, therefore, in the case of a deliberate killing, presume malice, and it woiUd be murder. Instances like the case from Yerger, and that of Tooley, seem to savor of technicality ; but then it may be said tliat the criminal law aims at cer- tainty in its rules wherever it is possible to attain it ; and in this case, the rule, if it be a technical one, operates in favor of human life, although, as iSir Michael Foster ^strongly argues, it may operate to the prejudice of soci ner v. Sliker, 33 N. J. Law, 99 ; Ogden v. Claycomb, 52 111., 365 ; Stockton V. The State, 25 Tex., 776. And in such case his assailant, thougli first in the wrong, may maintain an action against him for damages. Adams v. Waggener, supra. The rule was well stated in a case in Tennessee: "Cases may occur where the plaintiff brings on the difficulty, and the defendant in the first instance acted lawfully, but aftervirards, by an unnecessary degree of vio- lence, became a trespasser ab initio. In cases of assault and battery, both parties may be guilty of a breach of the peace, and liable to indictment; but a civil action cannot be brouglit by each against the other. The plain- tiff may have been the aggressor. Yet, if the plaintiff had used not only more force than was necessary for his self-defence, but had unnecessarily abused the plaintiff, he cannot, in a civil action, recover damages, but must pay damages." Chambers v. Porter, 5 Coldw., 282. So, it has been said that, " If A. and B. are engaged in a quarrel, and A. assault B. with his fist, without any intention of serious injury being manifested, and B., to prevent the attack, present a pistol loaded and cocked at the bosom of A., intending to shoot him if he struck him, this would be an assault in B. ordinarily. Because he had no right, in the first instance, to resort unnecessarily to such extreme, hazardous and reckless means of defence against a slight attack. It is entirely dispro- portioned to the threatened aggression." The State v. Stockton, 25 Tex., 777. Again : it has been said, that, vmless there is a great superiority in phys- ical strength of an assailant who strikes a blow with his fist, or ill-health in the assailed at the time, or other circumstances, producing relatively great inequality between them in combat, the assailed will not be justi- fied, if he resent the blow by stabbing the assailant. Floyd v. The State, 36 Ga., 91. On the other hand, if a person who is assailed with a deadly weapon, knock his assailant down with a stic'k, he is not guilty of an as- sault and battery. The State v. Btirwell, 63 N. Car., 661. Said Gaston, J., in an important ease in North Carolina : " When it is said that a man may, rightfully, use as much force as is necessary for the protection of his person or property, it should be recollected that this rule Is subject to this most important modification, that he shall not, except in extreme cases, endanger human life or great bodily harm. It is not every right of person, and still less of property, that can lawfully be asserted, or every wrong that may rightfully be redressed by extreme remedies. There is a recklessness— a wanton disregard of humanity or social duty — in tak- ing, or endeavoring to take, the life of a fellow-being— which is essentially wicked, and which the law abhors. You may not kiU, because you can- not otherwise effect your object, although the object sought to be effected is right. "Y on can only kill to save life or limb, prevent a great crime, or to accomplish a necessary public duty." State v. Morgan, 3 Ired., 193. But is unnecessary to extend citations on this branch of the question. SYLLABUS. 725 Much of what is said iu the preceding note will apply here ; and the princi- ples governing the subject are stated iu many of the cases in the first two hundred pages of this volume. The rule may be summed up in the language of Blackstone, that " care must be taken that the resistance does not ex- ceed the bounds of mere defence and prevention ; for then the defender would himself become the aggressor." 3 Bla. Com., 4. G.— RESISTANCE TO COMMISSION OF FELONIES. OLIVER V. THE STATE. [17 Ala., 587.] Supreme Court of Alabama, January Term, 1850. (Names of the Judges not in the original report.) 1. The law wll justify the taking of life, when necessary, to prevent the commission of a felony ; but not to prevent the commission of a mere trespass on the person or property of another. This rule applied to a killing to prevent the taking away of the defendant's children. [See note, aub fin.'\ 2. Whether the taking away and detaining of a man's children is a fel- ony under the Alabama statute, or a trespass merely, depends upon the intent with which they are taken : and the question of intent is a question of fact for the jury. Hence, it was erroneous to charge the jury that the taking of the defendant's children, under the circumstances, would not have amounted to a felony. 3. The necessity that will justify the taking of life need not be actual, but the circumstances must be such as to impress the mind of the slayer with the reasonable belief that such necessity is impending. [Ace. Sloan's case, ante, p. 517, 6th resolution ; Morris v. Piatt, post.'\ 4. Whether the circumstances are such as to create a reasonable belief in the mind of the slayer that a necessity exists for taking the life of an- other, is a question for the jury. [Ace. Harris' case, ante, p. 276, and ref- erences.] 5. In the solution of this question, the jury may consider the condition of both the parties. [Ace. Seibert's case, ante, p. 686, note. Contr:i, Shoultz' jcase, ante, p. 249, note, and other cases collected on pp. 242 et scq.] 726 OLIVER V. THE, STATE, The plaintiff in error was indicted for the murder of" one William E. Hammond. The e-vidence, sO' far as it is necessary to a proper understanding of the questions raised by the assignments of error, was substantially this: The accused and the deceased married sisters.. During the absence of the deceased from home, Mrs,. Oliver, becoming dissatisfied with her husband, left Ms- house, and went to that of the deceased, carrying with her her children, then under the age of twelve years. After the deceased returned, and on the day before the homicide, the accused requested one Alexander, to see the deceased, and ask him to meet him at Alexander's house, for the purpose of conversing with him in refer- ence to his wife and children, which was done, and they met accordingly. On the morning of the homicide, the accused went to the house of Alexander, and informed him that the deceased was to bring his wife and children there on that day, and that they were to endeavor to settle the matter between him and his wife. About one o'clock on that day the deceased arrived, and with him the wife and children of the accused, and as he rode up, he said to the accused, "Here they are ; I deliver them to you." It appears that Mrs. Oliver was desirous of going with her children to the house of one Raiford, who lived in Marshall county, Mississippi, and that the ac- cused was willing that she should do so, upon being- assured that the children would not be removed from there, and would be delivered to him when required;, and for the purpose of obtaining this assurance, the accused drew up an instrument, whicli he required Airs. Oliver to sign and swear to, binding her not to remove the children from the house of Raiford, and to deliver them to him whenever he should. demand them. Mrs. Oliver was willing to sign the instrument and take the oath, but upon its being read, the deceased remarked, that it was too binding, and that she should not do it ; that Raiford was in a moving condition, and if he moved, Mrs. Oliver would have to go with him. To this the accused replied, that if she did not sign the writing^, STATEMENT OF THE FACTS. 727 she should not have the children, and that he would take them himself. The deceased then said, slapping one hand in the other, that he would take them, that he was not afraid, and he thereupon rose from his seat, and " took hold of the accused from behind, and pushed him along before him out of the passage in which they were sitting, some thirty steps." The deceased was much the stoutest man of the two, but did not strike the accused, nor the accused him. Whilst the deceased and the accused were thus engaged, one of the witnesses proposed to part them, when Mrs. Oliver said, " Let thefli alone, if he kills him." When the witness ap- proached them, he discovered that they were struggling for a pistol, which was held ifi front of the person of the accused, each having hold of it. The parties fell, either by the deceased throwing the accused, or by the accused sinking down to elude the grasp of the deceased, and the witness then seized the pistol, and took it from them. The deceased being on top, asked the accused if he would behave himself, to which he replied at first, that he would not, but afterwards that he would, where- upon the deceased got off of him. On rising, the accused drew another pistol, and said, " I be damned if I haven't another pistol," and he shook it at the deceased, but said further, " I did not bring it for you, nor do I intend to hurt you." The deceased replied, " I have weapons too, and am not afraid," and drew a knife, but made no effort to use it. It also appears, that, during the scufile, the accused said all he wanted was his children. After the accused had drawn his second pistol, one of the wit- nesses told him to put it up, and he thereupon dropped it to his side and walked towards the house, where his wife and children were, and the deceased and the wit- nesses followed him in a slow walk. The accused put his hands before hi'm, but what he did was not seen, and on reaching the entrance to the house, wheeled and fired at the deceased, inflicting a wound of which he died in fifty-two days thereafter. 728 OLIVER V. THE STATE. Rice, for the plaintiff in error; M. A. Baldwin, Attorney-General, for the State. Daegais", Ch. J., delivered the opinion of the Court : Stephen P. Oliver was indicted and tried for the mur- der of William E. Hammond, in the Circuit Court of Talladega. The jury returned a verdict of guilty of manslaughter in the first degree, upon which the Court sentenced him to he imprisoned in the penitentiary for the term of two years. On the trial, several exceptions were taken to the ruling of the Court, and the cause la brought here for our revision by a writ of error. ********** Upon the testimony that was introduced, the Court charged the jury : 1st. That if Hammond had taken the childi-en of Oliver under the circumstances, he would not have been guilty of a felony. 2d. That if there was an apparent necessity for Oliver's killing Hammond, in order to get possession of his children, he then was justified in killing him; but unless Oliver had reason- able grounds to believe that the necessity was apparent and pressing, that it did not justify Oliver's killing him, although Oliver might believe it did exist. 3d. That if Oliver shot Hammond as stated, without reasonable ground to believe that there was a necessity to kill him, in order to prevent his taking his children from him, then the homicide could not be less than manslaughter in the first degree. The 20th section of the third chapter of the Penal Code, enacts " that every person who shall maliciously, forcibly or fraudulently lead, take or carry away, or decoy or entice away any child under the age of twelve years, with the intent to detain or conceal such child from its parent, guardian, or any other person having the lawful charge of such child, shall, upon conviction, be punished by imprisonment in the penitentiary for a period not less than five years. Clay's Dig., 415. And by the 8th section of the eighth chapter, all offences punishable by imprisonment in the penitentiary, are OPINION — DEFENCE OF CHILDEEN. 729 imade felonies. lb., 439. The Court, by the first charge, undertook to pronounce that the deceased would not have been guilty of a felony, had he carried out his threat and taken the children of Oliver from him by force. That the judge overstepped the law that sepa- rates his duty from that of the jury is manifest; for whether Hammond would have been guilty of a felony or not, if he had consummated the threatened act, would have depended on the intent with which it was done. If the intent had not been such as would have rendered the deceased guilty of felony, the act would have amounted to a trespass only, for we cannot imagine that every taking of a child from a father, would amount to a felony; as, if a grandfather or other relative should in- duce a child to leave its father's house and go with him, though this should be done without the knowledge of the father ; yet, if the act was the mere result of affec- tion for the child, or the desire to have its company, and did not spring from a corrupt intent to detain or conceal the child from its parent, it could not amount to felony. Nor can we think that if the father and mother quarrel, and, being about to separate, they both contejid for the possession of their infant children, that a stranger would necessarily be guilty of a felony, if he interfered and protected the possession of the mother, or even took the child from the father and gave it to the mother ; for he might not be influenced by the felonious intent of de- taining the child from the father. Such conduct, how- ever, without regard to the intent, would be a violation of the rights of the father ; for every father is entitled to the possession and control of his child ; but whether it would be a trespass or a felony, would depend upon the intent with which the act was done. To constitute the offence, the criminal intent and the act must both con- cur, and this intention is a fact to be inferred from the evidence, and can be ascertained only by the jury. The presumption of one fact from another, is a presumption of fact, and unless the law itself draws the inference, the jury alone can do it. In the case of Castello and 730 OLIVER V. THE STATE. Keho V. Thompson, 9 Ala., 937, it was said, that the- court cannot pass upon the effect of testimony, when the- question to be determined is, whether an act was done witli a fraudulent intent. To the same effect is the case of Weed & Fanning v. Evans, 2 Speer, 232 ; see also, 3 Whart., 143 ; 9 Leigh, 678 ; Lindsay v. Lindsay, 11 Verm., 621. There are cases, as we shall presently see, where the law will itself imply one fact from the existence of another. This, however, would be a legal presumption. But in reference to the question now under considera- tion, there was no one fact proved, from which the law would or would- not have drawn the inference of a felonious intent, or from which it would have denied the existence of such intention. It was, therefore, peculiarly the province of the jury to determine the intention that influenced the deceased; for on that would have de- pended his guilt or innocence. And as the judge under- took to pronounce that the deceased would not have been guilty of a felony, without regard to his intention,, or without leaving the question of intention to the jury,, he assumed to determine the facts, and consequently erred. If the second charge was erroneous, the error was favorable to the prisoner. The law, it is true, will justify the taking of life, when it is done from necessity, to prevent the commission of a felony, or to preserve one's own life, or his person from great bodily harm. 4 Bla. Com., 184; 1 Russ. on Cr., 513; 1 Hale P. C, 445. So one may strike to protect his wife, child, or servant, and if the assailant, who intended the felony, be slain, the law considers it homicide in self-defence. But it is not to be understood that the law will justify the taking of life for the purpose of preventing a mere trespass to property, or an assault upon the person, that does not threaten a felony or great bodily harm. 1 Russ. on Cr.,. 520 ; Grainger v. The State,'' 5 Yerger, 459. The law has never justified the shedding of human blood, to prevent » Ante, p. 238. UWNION — BESISTANOE OF FELONIES. 731 slight injuries to the person or the property of others. Nor can we suppose that our predecessors ever intended to hold a different rule, or to depart from those principles which have received the sanction of wisdom, and stood the test of time. In the case of Johnson v. The State, 12 Ala., 841, the Court merely affirmed the general rule, that every one had the right to defend his person and property against the unlawful violence of another ; but we apprehend that if the accused had been indicted in that case for an assault, instead of resisting process, he would have been convicted. If, however, it was intended by that decision to hold that life may be taken to pre- vent a mere trespass to property, we should, without hesitation, overrule it. To justify the taking of life, there must be an imperious necessity to prevent the commission of a felony or great bodily harm. Without this necessity, the law, although under some circum- stances it will mitigate the crime to manslaughter, can- not hold the party slaying altogether justified. The charge, however, justifies the accused in taking life, without regard to the fact whether the act was done to prevent a felony or not. "We can see no reason why he should complain of it. But the latter part of the second charge informed the jury, that unless the prisoner had reasonable ground to believe that the necessity was pressing, then he was not justified. It is true, that the necessity which exculpates the accused from guilt, need not be actual. If the cir- cumstances be such as to induce a reasonable belief that such necessity exists, the law will acquit the slayer of all guilt ; but if there is no reasonable ground for be- lieving that there is such a necessity, then the law can- not acquit him. Wharton's Grim. Law, 210 ; 1 East P. C, 272 ; State v. Scott," 4 Ired., 415. It has been said, that if a man kiH another through fear, alarm or cowardice, under' the belief that great bodily harm is intended him, it is neither murder nor manslaughter, although at the time of the killing, he was in no danger of injury. 5 Yerg.^. " Ante, p. 163. 732 OLIVER V. THE STATE. 459. "We think it wliollj immaterial to enquire, in lay- ing down the principle of law, whether the party slaying was in a state of fear or alarm — whether he was a man of firmness of character, or of a weak or cowardly disposition. The question is, whether the circumstances were such as to produce a reasonable belief upon his mind, of a pressing necessity to take the life of the assailant. If they were not, he cannot be justified by law. It may be said that the belief of imminent danger will exist in the minds of some, from circumstances that would produce no idea or belief of danger in the mind of another. This, however, will not alter the principle of law applicable to both. The law requires that the circumstances should be such as to create a reasonable belief of impending necessity. The circumstances are to be ascertained by the jury, and they may consider the condition as well of the party kiUing as that of the party slain ; and if they find the circumstances such as to create a reasonable belief in the mind of the accused that his danger was imminent, then the law would say that he might strike in his own defence. In no point of view has the prisoner been injured by this charge. *********** The cause, however, must be reversed and remanded for another trial, for the error we have before pointed -out. Judgment reversed. Note.— The doctrine of defence against felonious attempts has been -discussed in most of the foregoing cases, and will be further considered in those wliich follow in Parts II and III. Wo have adverted elsewhere to. the difference between the doctrine of resisting felonies and other cases of private defence. To recapitulate briefly: 1. It is the duty of every man who sees a felony about to be committed, to interpose and prevent its consummation ; Pond's case, post; ante, p. 30, note; ante, p. 159, note; ante, pp. 231, 232, note. 2. In performing this duty, he is not obliged to retreat, in order to justify liilling tlie felon, although he may not kill him, if he can arrest him or otlierwise prevent the commission of the felony. Ibid. We shall add a few short cases and extracts from cases, and then pass on to the next subject. RESISTANCE OF FELONIES — KUTHEKFOKD'S CASE. 733: State V. Rutherford, 1 Hawks, 457. Supreme Court of North Carolina, December Term, 1821. This was an indictment for an assault on one Spurlin, with an Intent to kill him. The case as proved before Norwood, J., was, that the de- fendant and one Magness, in whose employment Spurlin was, lived near each other; that, during a temporary absence of Magness from his home, one of his slaves had been much injured by the bite of a very fierce dog, owned by Rutherford ; on the return of Magness, hearing what had hap- pened, he requested Spurlin to take a gun, go to Rutherford's house, and tell him that if he would permit his dog to be killed, he (Magness) would be satisfied ; otherwise, he would seek redress by law.; and also instructed Spurlin, if Rutherford consented, to kill the dog. At dark, Spurlin according went, and took the gun for the double pur- pose of defending himself from the dog, and of killing him, should Ruth- erford assent. On arriving within eighty yards of the house, he coughed, and the dog immediately attacked him ; after trying in vain to keep the dog off with the gun, he fired, and injured the animal slightly. Rutherford thereupon, immediately came out of his house with his gun, encouraged his dog, and ordered his negroes to pursue the person who had fired the gun ; Spurlin, hearing this, ran towards the house of Magness, which was at some small distance, and was pursued by Rutherford, who, when within forty paces of him, without speaking, fired and wounded Spurlin in the head. On discovering who it was, Rutherford expressed his regret that the whole load had not passed through Spurlin. The Court, after instructing tlie jury generally, as to the law, was requested by defendant's counsel, particularly to charge them, that if they believed the defendant, Rutherford, had a well-grounded belief that if the person who fired the gun intended to commit a felony, it would extenuate the offence, and the defendant would be entitled to a verdict. The Court declined doing so, and instructed the jury that there must be a felony committed, or strong and convincing evidence that a felon;- had been committed, or the party slaying, summoned by a proper otflcer, to extenu- ate a killing in pursuit ; and that even then, if it should be apparent there was no necessity to kill, the offence would not be extenuated, but would be murder ; and that an intention to commit a felony, abandoned by the party, would not warrant a violent arrest. The jury found the defendant guilty ; a new trial was refused ; and from the judgment and sentence of the Court, defendant appealed. Henderson, J., delivered the opinion of, the Court : The defendant's counsel prayed the Court to instruct the jury, that if they believed tliat the defendant, Rutherford, had a well-grounded belief that the person who fired the gun, intended to commit a felony, it would extenuate the offence, and the defendant be entitled to a verdict. The Court declined to do so, and instructed the jury that there must be a felony commit ed, or strong and convincing evidence that a felony had been committed, or the party slaying, summoned by a proper office', to extenu- ate a killing in pursuit. The judge, if he erred at all, erred in favor ot the defendant, and against the State. A well-grounded belief that a known felony is about to be committed, will extenuate a homicide committed in 734 OLIVEB V. THE STATE. prevention of the act, but not a homicide committed in pursuit, by an individual, of his own accord. To extenuate a homicide committed in pursuit, there must be an actual felony committed ; and it is said, that no evidence, however convincing, even the finding of the grand inquest on oath, will supply the want of an actual felony being committed, where an individual of his own accord, commits a homicide in pursuit ; because the pursuit by the individual is an officious act, it not being his duty to arrest, unless called on by an officer ; and from the tenderness of the law towards the life of a citizen, with which, I presume, is intermixed some l)ortion of policy — for it might be a means of gratifj'ing private revengf. It is to be observed, that some doubts are expressed by Mr. East, where the grand inquest has found that a felony has been committed ; but no ■case is brought forward to support that doubt, and lie concludes, that at least, if will be prima facie evidence that a felony was committed. But, as I said before, a well-grounded belief that a known felony was about to be committed, will extenuate a homicide committed in prevention of the sup- posed crime — and this ui^on a principle of necessitj' ; but \\hen that ne- cessity ceases, and the supposed felon flies, and thereby abandons his sup- posed design, a killing in pursuit, however well grounded the belief may be, that he had intended to commit a felony, will not extenuate the offence of the prisoner. This extenuation rests upon an actual felony committed, iind a necessity for the killing to prevent the escape of the felon : the re- quest of the counsel, and the charge of tlie Judge in answer thereto, have more the appearance of the discussion of an abstract proposition, than the subject-matter then under consideration ; for I am at a loss to perceive, how, in this case, an idea could be entertained by Rutherford, that the person who fired the gun was about to commit a felony. A savage and fierce dog, at an early hour in^the night, before bed-time, attacks a person in his owner's yard ; a gun is fired at him, but misses him ; the dog con- tinues the attack ; no attempt is made to take the dog off, the person who fired retreats towards a near neighbor's house ; is pursued by Rutherford and fired upon, and struck with shot in a vital part ; how it could be sup- posed that Rutherford entertained a weU-grounded belief that the person intended to commit a felony, under these circumstances, 1 am at a loss to say ; and the Judge might have expressed an answer to the counsel's re- quest either way, without aflecting the merits of the case ; the verdict ot the jury would have been the same. On the doctrine of reasonable ground to believe a felony was about to be committed, see East's Cr. Law, 273-4; Cro. Car., 538; Levet's case, 1 Hale, 42, 474; Browne's case. Leach, 76; that there must be a fel- ony actually committed, East, 300, and the authorities there cited. I think, therefore, that the defendant has no reason to complain, and that the rule for a new trial be discharged. Taylor, Ch. J., and Hall, J., concurred. Rule for new trial discharged. State V. Roane, 2 Devereux, 58, Supreme Court of North Carolina, De- cember Term, 1828. The defendant was indicted for the murder of Levin, the slave of oue Mclutlre. KESXSTANCE OF FELONIES — ROAJSTE'S CASE. 735 On the trial, the evidence was that the deceased, a waiter in the tavern •of liis master, at 12 o'clock of the night of his death, went to the lot of the But, upon the whole, I am disposed to think this rather an unfortunate than a wicked ease ; for it appears that the whole of it is taken from the defendant's free and voluntary statement, without which, there would have been no evidence against him. I am, therefore, disposed to think, from what the defendant said, that there was no actual intent to kill, but only to frighten ; but he certainly executed the intent in a careless manner. It is, therefore, manslaughter. Judgment affirmed. Eegina v. John Bull, 9 Car. & Pay., 22 ; Central Criminal Court, Eng- land, February Session, 1839. Before Mr. Justice Vaughn and Mr. Justice Williams. From the evidence, it appeared that the deceased was one of a party of six men who had been drinldng together at several public-houses, and were proceeding home along a road between twelve and one o'clock, on the night of the 18th of January, when they met the prisoner, who stabbed the deceased with a knife in the arm-pit. There was some discrepancy be- tween the testimony of the witnesses, as to the conduct of the deceased and liis friends, previous to the infliction of the wound by the prisoner. C. Phillips addressed the jury on the part of the prisoner, and con- tended that he was entitled to an acquittal, on the ground that what he did was in self-defence, and amounted in law to justifiable homicide. Vaughn, J., (Williams, J., being present), in his summing up, among other things, said, that it wa^ not justifiable homicide, unless there was an incention on the part of the deceased and liis companions, to rob or murder the prisoner, or to do some dreadful bodily injury to him ; and that it was not the law that a man would be justified in taking away the life of an- other, merely because he feared he might be assaulted, or, indeed, if he were actually assaulted. His Lordship told the jury that the question for their consideration was, wlicther the conduct of tlie prisoner made it nec- essary for the prisoner to inflict tliat blow which almost immediately ter- minated in the death of the deceased — whether he inflicted the wound in self-defence, to save his own life, which was in danger, or to protect liini- self from some dreadful bodily injury. EESISTAKCE Off FELONIES — JOHN BULL'S CASE. 737 The jury found the prisoner guilty, but recommended him strongly to mercy, believing that he committed the act under the apprehension of per- sonal danger. Sentence — three years' imprisonment, with hard labor, and three months' solitary confinement in the course of therimprisonment. The reporters, in a note to this case, quote from Archbold's Criminal Law, p. 221, title. Murder, kUling in defence of property, etc., the follow- ing paragraph, which contains so fair a summary of the law of justifiable homicide in the prevention of felonies, that it is, perhaps, worth repeating here : " If any person attempt to rob or murder another in or near the highway, or in a dwelling-liouse, or attempt to break into any dwelling- house in the night-time, and be killed in the attempt, the slayer shall be acquitted and discharged. 24 Hen. 8, chap. 5. And the same where a man is killed in attempting to burn a house. 1 Hale, 488. Or where a woman kills a man who attempts to ravish her. Bac. Elem.,341; Haw"k.,ch. 28, \ 22. Or where a man is killed in attempting to break open a house in the day-time with intent to rob. 1 Hale, 488. Or to commit any other forcible or atrocious crime. IBracton, 155 ; Foster, 273 ; Kel., 128, 129 ; 1 Hale, 484. See R. v. Levet, Cro. Car., 538 ; and see Fost., 299; R. v. Ford, Kel., 51. And not only the party whose person or property is thus attacked, but his servants and other members of his family, and even strangers who are present at the time, are equally justified in killing the assailant. 1 Hale, 481, 484; Fost. 274. The above rule, however, does not extend to felonies without force, such as picking pockets. 1 Hale, 488. Nor to misdemean- ors of any kind ; and even in cases within the rule, it must be proved that the intent to commit such forcible and atrocious crime was clearly mani- fested by the felon. 1 Hale, 481. Otherwise the homicide wiU be man- slaughter at least, if not murder. But in cases within the rule, it may be necessary to observe, that the party whose person or property is attacked, is not obUged to retreat, as in other cases of self-defence, but may even pursue the assailant, until he finds himself and his property out of danger. Fost., 273." It may be observed, that this author states accurately the law on the subject of retreating in case of felonious assaults and attempts. See note to Selfridge's case, ante, p. 28 et seq. But is not accurate when its says that the rule which justifies homicide in defence of person or property, does not extend to misdemeanors of any kind ; for we have seen in the note above alluded to, ante, p. 30, that it extends to homicides necessarily com- mitted in the suppression of riots. It is the duty of every good citizen to endeavor to suppress a riot, [although this may be misdemeanor only. Pond's case, post ;] and when he finds a mistaken multitude engaged in treasonable practices, to the subversion of all peace aild good order, he is protected by law in coming forward with other well .disposed characters to repel them by force. Respublica v. Montgomery, 1 Yeates, 421. The rule extends further : Any person, if an affray be made to the breach of the peace may, without warrant, restrain any of the offenders, in order to pre- serve the peace ; but after the aifray is over, he cannot arrest one of them without a warrant. Phillips v. Trull, 11 John., 486 ; 2 Inst., 52 ; Burn. Just., 92. Dill's case, -post. And see 1 Bish. Crim. Proc, 628. It also ex- tends to the protection of property in warehouses against nocturnal thieves. Gray v. Coombs, post; State v. Moore, post. 7"?8 DILL V. THE STATE. A person detected in an attempt to commit a felony at night may be lawfully detained without warrant, until lie can be carried before a magis- trate. Rex V. Hunt, 1 Moody 0. C, 96. -DEFENCE OF OTHER PERSONS. DILL V. THE STATE. [25 Ala., 15.] Supreme Court of Alahama, June Term, 185 J,. William P. Chilton, Chief Justice. GX.**aoSw^.., } ^«»«»'« •^-«-' Malice— Defence of third persons— Interfering to stop brawl, or to prevent felony — appearances of danger. 1. The law implies malice from the use of a deadly weapon. [Ace. Head's case ante, p. 342, and many others. But see Stokes' case, post.'] 2. Where one interferes to stop a brawl, and exercises no other force than is necessary for the object, having previously amaounced his purpose, the killing of him by one of the assailants will be murder. 3. If one sees a person about to perpetrate a felony upon another, he may use such force to prevent it as may be necessary, and if while so en- gaged, he is intentionally kUled, it will be murder in the slayer. [See preceding case and note.] 4. As to reasonable apprehension of imminent danger to life or limb, when relied on as a defence. [See Sloan's case, anie, p. 517, 6th res., and references.] LiGON, J., delivered the opinion of the Court : The appellant was indicted in the Circuit Court of Walker county, for an assault with intent t j murder. On the trial, as appears by the bill of exceptions, several OI'INIOK — THE FACTS STATED. 730 "witnesses were examined, who deposed to the following facts: That some time in the month of January, 1851, the appellant and one John Irwin, were quarreling in a retail grocery, in the town of Jasper, while one Burden, stood between them, endeavoring to pacify them. John Henson took off his coat and stepped up to the parties, but said nothing to either of them. The quarrel was Tiept up from before sunset until after dark. One Jeffer- son Henson, a relative of John Henson, was also engaged in the quarrel with Dill (the appellant), and both of them had become angry with him about a horse race, and frequently declared during the quarrel that they would have the race, the forfeit, or blood. Some time after night-fall, (the moon giving light), it was announced that the race was ready to be run. John Henson then left the grocery, in company with several others, among them John Irwin and the appellant; the former before and the latter behind the witness. The appellant called out to Irwin, naming him, and saying, "You are a damned liar ; you said you could whip me, and that is a damned lie." Irwin and the accused were at this time near each other, and John Henson stepped between them, and proposed that they should leave the matter to him to adjust. This was agreed to by both parties-; and he decided they should drop the quarrel and make friends. "While this was going on, Irwin was on the left, and the accused on the right side of John Henson, who was thus engaged in attempting to reconcile the matter. The accused attempted to go around John Henson, to get within reach of Irwin ; but John Henson moved his body so as to interpose it between the two, and the accused made an attempt to stab Irwin. John Henson seeing this, pushed him off ; the accused recover- ing from the push, exclaimed, " God damn you," and instantly stabbed John Henson, with a large pocket- knife, near the left nipple, inflicting a wound which con- fined him to his bed for three or four weeks. . The knife penetrated the cavity of the body near the heart, or was turned aside by a rib ; the physicians could not say 740 DILL V. THIS STATE. which, but they pronounced the wound dangerous. The- accused was proved to have had his knife in his hand for ten or fifteen minutes before John Henson was stabbed ; he was told to put it up, but denied having it out. Several persons had persuaded the accused to go home during the evening, but had failed to get him to do SO. This is the substance of the proof. The Court charged the jury in effect: 1st. That unless the prisoner would have been guilty of murder, if Hen- son had died from the eflTects of his wound, he could not be found guilty under this indictment of an assatilt and battery with intent to murder ; that the assault and battery not being denied, the only question to consider, was the intent with whicii the blow was given ; and this they were to ascertain from all the circumstances of the case. The Court then correctly defined malice, and pro- ceeded : that, if, on applying the law to the facts as proved, the jury should find the intent to kill coupled with malice, it would be their duty to convict as charged in the indictment. 2d. That if the testimony of the witnesses for the State were true, and the blow struck by the defendant was aimed at John Henson, the defendant would have been guilty of murder, if John Henson had been killed by the blow. 3d. That when one interferes to stop a brawl, and exercises no other force than is necessary for the object, having previously announced his purpose, the killing of him by one of the assailants will be murder. 4th. That where, from the nature of the attack, a man has reasonable ground to believe that there is an attempt or design to take his life, a man will be excusable for killing his assailant, although it should afterwards appear that no felony was intended ; yet the man who thus acts, acts at his peril, and these grounds must appear on the trial to the jury to. have been reasonable grounds, in order to excuse or justify him. 5th. The Court further charged the jury, that, if the evidence did not satisfy them that the defendant was INSTRTJOTIONS TO THE JURY. 741 ^guilty of an assault with, the intent to kill and murder, they could, if they saw fit, find him guilty of an assault and battery, and assess a fine of not less than one cent, and not to exceed two hundred dollars. The defendant then asked the Court to charge the jury, that, if they believed from the evidence, others had made threats of great bodily harm, and were improperly fol- lowing the defendant, and detaining him, and the party assaulted had, by words or acts, induced the defendant to believe that the assailed was one of the parties, or ready to aid the parties in any assault that might be made upon the defendant, and the defendant was in fear of great bodily harm, and that he acted from a sense of personal danger, and not from malice, then they may ac- quit, although the defendant was mistaken in the actual danger. This charge the Court refused to give, and charged the jury, that, to justify a person acting under apprehension from threats, there must appear to the jury reasonable ground for that person to believe that the threats are, at the time he acts, about to be exe- cuted. The defendant further asked the Court to charge the jury, that, if they believed the circumstances surround- ing him were sufficient to create in his mind a reasona- ble impression of impending danger, or that great bodily harm was about to be infiicted upon him, he was ex- cused in using such force as he thought necessary to pro- tect him, even though death ensued, and the prisoner was honestly mistaken in the circumstances. This charge the Court refused to give, and re-charged the jury, that, the party thus acting must satisfy the jury that he had reasonable ground to believe that the threats of vi- olence were about to be put in execution. The accused excepted to the charges given, and the re- fusal to give those that were asked, and he now assigns them for error. The first charge given by the Court is free from any just exception. By its terms, the jury are told that they must look to every fact and circumstance which was 742 DILL V. THE STATE. in evidence before them, in order to ascertain the inten- tion of the accused, and, if from these they believed the stab with the knife was made with malicious intent, it, would be their duty to convict. The facts of the case very clearly show that the accused had his knife in his hand, ready to use, before the parties left the grocery ; that shortly after leaving it, the accused attempted to renew the quarrel with Irwin, and Henson interposed as a peace-maker, when, on his own proposition, he was se- lected by Irwin and the accused to settle the dispute be- tween them. While thus engaged in adjusting the quar- rel, he saw the accused in the act of attempting to stab his antagonist, Irwin, and he, (Henson) getting between them, pushed the accused back, who, on recovering him- self, cursed Henson, and plunged his knife into his left breast near his heart. The person thus stabbed had not quarreled with the accused, had taken no part in the dis- pute between the parties, but was acting as peace-maker between them. Had the blow been fatal, there can be no question the accused would have been guilty of murder, as the absence of all provocation on the part of John Henson, the weapon used by the accused being deadly in its character, and the force with which its use was accompanied, are circumstances from which the law im- plies malice. 1 Eussell on Crimes, 514, 515, 516, 519. The second charge simply asserts, that if the jury be- lieved the witnesses on behalf of the State, the accused would have been guilty of murder, if John Henson had died from the blow given with the knife by the accused. We were, at first, inclined to doubt the propriety of this charge, as it appears that witnesses were examined on behalf of the accused, in the Court below, and the charge refers the jury only to the testimony on behalf of the State, and seem to indicate that they might look to this alone in passing upon the guilt or innocence of the ac- cused. This is clearly improper, where there is the least conflict, on a material point, between the evidence offered in defence and that produced by the prosecution ; but if there is no conflict in the testimony, and it clearly goes DEFENCE OP OTHER PEESONS. 743 to establish, the conclusion contained in the charge, there would be no error in giving it. In this case there is no conflict whatever, and the conclusion drawn by the Court in the charge referred to, is the only one, which the facts and the law arising upon them will warrant. The third charge was correct, but more favorable to the accused than the facts of this case will warrant. All the evidence tends strongly to show, that the only pur- pose of John Henson, at the time he was stabbed by the accused, was to hinder the latter from assaulting John Irwin with his knife, and in all probability killing him ; and this, too, when Irwin was off his guard, and neither attempting nor threatening to do the accused any bodily harm. If one see another about to perpetrate a felony, he may use such force to prevent it as may be neces- sary for that purpose, and, if, while so engaged, he is in- tentionally killed, it will be murder in the slayer. The foijrth affirmative charge, and the two charges asked by the accused and refused by the Court, as well as the charges accompanying the charges refused, have, in our opinion, no predicate in the testimony as set out in the bill of exceptions ; and, as far as the charges given are concerned, the Court erred in favor of the accused. The testimony does not show any attack made on the accused, nor any design on the part of Irwin or Henson to make such attack. The accused renewed the quarrel with Irwin after they left the grocery, without any prov- ocation on the part of the latter ; and was himself in the act of making a deadly blow at Irwin, when he was hin- dered by the timely interference of John Henson, whom he immediately stabbed with the evident intent of kill- ing him. In such a case, we are wholly at a loss to see, how the accused could invoke the aid of a legal principle, which is too favorably set out in the fourth charge, and perverted in the charges asked and refused. Pritchett V. The -State, 23 Ala., 39. "We are unable to see any error in the record, prejudi- » Ante, p. 635. 744 BIGG-S' V. THE STATE. cial to the appellant, and the judgment and sentence of the Circuit Court must be allowed to stand. Judgment affirmed. BIGGS v. THE STATE. [29 Ga., 723.] Supreme Court of Georgia, January Term, 1860. Joseph H. Lumpkin, Charles J. McDonald, Henry L. Benning, EicHARD F. Lyon, Judges. Defence of wife's chastity — Exposition op the [Georgia Statute OF 1856, IN KEGAED TO SHOOTING "NOT IN SELF-DEFENCE" — CaSES "standing ON THE SAME FOOTING OF REASON AND JUSTICE" — ^PkOVO- C ATION — E VIDENOE . 1. Where a husband is on trial for having made a violent assault upon one who was attempting the seduction of his wife, and the character of the wife for virtue is implicated by the evidence offered for the State, it is competent for the husband to give evidence in support of her general character for chastity. 2. The Georgia statute, which punished shooting, done by one person against another, "except in his own defence," did not make that shooting a crime, where, had the person shot at been killed, it would have been jus- tifiable homicide under the provisions of the Penal Code. The Court is obliged to depart from the letter of the statute, in order to preserve its spirit and intent. 3. The Georgia statute, which, after defining what kinds of homicide shall be deemed justifiable, provides that " all other instances which stand on the same footing of reason and justice, as those enumerated, shaU be justifiable homicide," is held to embrace a case where a husband shoots one who is attempting the seduction of his wife ; and in such case it is for the jury to say whether the shooting stands on the same footing of reason and justice, as those instances expressly enumerated in the statute. [See note (7), sub fin.'] 4. Where one who on the previous night had attempted the violation of the defendant's marriage bed, deliberately took his seat near the wife the next morning at the breakfast table, and the husband thereupon flred ASSIGNMENTS OF EEROR. , 745 a pistol at him, it was held, on trial of the husband for the assault, proper to give in evidence the occurrences of the preceding evening ; and it was error to teU the jury that whatever had occurred on the night previou» could not amount to a justification or excuse. The plaintiff in error was indicted in tlie Court below for an assault with intent to murder. There was also a count for shooting at another, not in his own defence, contrary to the statute in such cases made and pro- vided. The cause was submitted, under the testimony, and charge of the Court, to the jury, who found the de- fendant guilty under the second count in the indictment, with a recommendation to the mercy of the Court. The following are among the grounds on which the defend- ant's counsel moved for a new trial : 4. Because the Court ruled out the evidence of George A. Gates, as to the general character of Mrs. Biggs, for virtae and chastity. 5. Because the Court charged the jury, that, if a man kill another, that other being a-t the time in the act of adultery with the slayer's wife, the killing would be vol- untary manslaughter, and not justifiable homicide. 6. Because the Court held that shooting at the adul- terer, under such circumstances, would be a violation of the act of 1856, on the same subject; but, that unless a criminal connection be shown in this case, these remarks had no application to the case, and are principles not necessary to be considered by the jury. 7. Because the Court charged the jury, that, under no circumstances of aggravation, however gross and direct, would a man be justifiable in taking the life of another who attempts the seduction of his wife. 8. Because the Court charged the jury, that, if a man shoot at another under such circumstances, and fail to kill, he is guilty of an assault with intent to murder, if there be malice ; or, shooting at another, under the Act of 1856, if there be no malice. 9. Because the Court charged the jury, that, although the shooting at another might, if it resulted in death, be 746 BIGGS V. THE STATE. justifiable homicide, yet, if death did not ensue, it would be a crime, under the Act of 1856, unless it were done in self-defence. 10. Because the Court charged the jury, that, the only defence to the crime of shooting another, is that it was done in the prisoner's own defence. 11. Because the Court charged the jury, that, what- ever may have occured on the night previous to the diffi- culty, at the breakfast table, it could not amount to a jus- tification or excuse for the act of shooting on the morn- ing after that difficulty ; and that, if the prisoner com- menced the assault at the breakfast table, by laying vi- olent hands upon Parish, and by first shooting at him,, even the plea of self-defence is taken away from him. In the progress of the trial, and in the argument of the case before the jury, the defendant's counsel relied, for his defence, not only on the 12th, 13th and 14th sec- tions of the 4th division of the Penal Code, in relation to self-defence, but also, and mainly upon the 16th sec- tion ; insisting that this case presented one of those in- stances which stand upon the same footing of reason and justice, as those enumerated in the previous sections. They contended that if death had resulted from the shooting, it would have been justifiable homicide, and that as death did not ensue, the shooting was not a crime, but was justifiable. The facts proved are not stated in the original report — an omission which greatly impairs the value of the case. Millers & Jackson, for plaintiff in error ; the Attorney- General, for the State. LuMPKiK, J., delivered the opinion of the Court : Ought the testimony of George A. Gates, as to the general character of Mrs. Biggs for virtue and chastity^ to have been rejected ? Her reputation in this respect was implicated, both by the conduct and evidence of Eleazer M. Parish. And, if she was the woman he took her to. be, the conduct of her husband would have been less SHOOTING "except IN HIS OWN DEFENCE." 747 justifiable in resorting to the means he did, to rescue and protect her from insult and importunity. We hold,, therefore, that the proof should have been received. The ninth charge given by the presiding Judge to the jury, was in these words : " That, although the shoot- ing at another might, if it resulted in death, be justifia- ble homicide, yet, if death did not ensue, it would be a. crime, under the Act of 1856, unless it were done in self- defence." Such we concede is the letter of the third section of the Act of 1856. It provides that from and after its passage, " any person who shall be guilty of the ofience of shoot- ing at another, or at any slave or free person of color, except in Ms own defence, with a gun, pistol, or other in- strument of the like kind, shall, on conviction, be pun- ished by a fine not exceeding one thousand dollars, and imprisoned not less than twelve months, or confinement in the penitentiary, at the discretion of the Court." Pam- phlet Acts, 1855-56, p. 265. By the Penal Code, it is justifiable homicide to kill another, not only in self-defence, but in defence of one's habitation, property or family, against one who mani- festly intends to commit a felony on either. Can it be believed that the Legislature intended, that if a hus- band or father shoots at one who is attempting to com- mit a rape on his wife or daughter, and fails to kill him,, he is liable to be convicted under this act and impris- oned in the penitentiary ? Never, we apprehend. The effects of such a construction would be too monstrous. We must deviate, then, from the letter of the law, seeing that, if literally interpreted, it leads to such absurd con- sequences, upon the same principle that it was decided, after long debate, that the Bolognian law, which enacted that, whoever drew blood in the streets should be pun- ished with the utmost severity, did not extend to the sur- geon who opened the vein of a person that fell down in the street in a fit. If it be justifiable homicide to shoot down a burglar who forcibly invades your house with intent to commit a. 748 BIGGS V. THE STATE. felony, as it undoubtedly is, and yet, if you fail to kill Mm, you subject yourself to the penalty of the Act of 1856, the title of the statute should be amended. It should be, " An Act to encourage good shooting." And yet it would seem to be passed for the purpose of pre- venting shooting altogether, except in cases of self-de- fence. His honor, the presiding Judge, charged the jury, " that, under no circumstances of aggravation, however ^ross and direct, would a man be justified in taking the life of another who attempts the seduction of his wife." This instruction brings up broadly the meaning of the 16th section of the Penal Code. After treating of the va- rious grades of homicide, murder, manslaughter — volun- untary and involuntary and justifiable — it is provided that, " all other instances, which stand on the same foot- ing of reason and justice as those enumerated, shall be justifiable homicide." What is the meaning of this section ? It signifies something ; and it is the duty of the courts to give it ef- fect. It has been suggested that, to bring cases within this provision, they must be accompanied with force. But has the Legislature so limited it ? Is it not more reason- able to suppose, that it was their purpose to clothe the juries, in criminal cases, in which they are made the judges of the law as well as the facts, with large discre- tionary powers over this class of offences ; and leave it with them, to find whether the particular instance stands on the same footing of reason and justice, as the cases of justifiable homicide specified in the Code? Hasan American jury ever convicted a husband or father for killing the seducer of his wife or daughter ? And with this exceedingly broad and comprehensive enactment standing on our statute book, is it just to juries to brand them with perjury for rendering such verdicts in this State? Is it not their right to determine whether, in reason or justice, it is not as justifiable in the sight of Heaven and earth, to slay the murderer of the peace and respectability of a family, as one who forcibly attacks EVIDENCE — EES GEST^. , 749 habitation or property ? "What is the annihilation of houses or chattels by fire and faggot, compared with the destruction of female innocence? — robbing woman of that priceless jewel which leaves her a blasted ruin, with the mournful motto inscribed on its portals, " thy glory is departed ? " Our sacked habitations may be re-built ; but who shall repair this moral desolation ? How many has it sent suddenly, with unbearable sorrow to their graves ? In what has society a deeper concern than in the protection of female purity and the marriage rela- tion ? The wife cannot surrender herself to another. It is treason against the conjugal rights. Dirty dollars will not compensate for a breach of the nuptial vow. And if the wife is too weak to save herself, is it not the privil- ege of the jury to say whether the strong arm of the husband may not interpose to shield and defend her from pollution ? Finally, the Court charged the jury, " that whatever may have occurred on the night previous to the diffi- culty at the breakfast table, it could not amount to a jus- tification or excuse for the act of shooting, the morning after the difficulty." And this instruction was based, no doubt, upon the idea that sufficient time had elapsed for passion to subside, and for reason to resume her sway. In many cases this doctrine is true ; but we cannot think it a sound proposition, under the facts and circumstances which surrounded these parties. The husband had heard and seen the personal indignity offered his wife the night before. He permitted Parish to escape, with threats of punishment, should he remain in the city. The very next morning, at the breakfast table, he unblushingly re- sumes his seat in the immediate neighborhood of his in- tended victim. Was it human to keep cool in such a sit- uation ? To see the man who had attempted to desecrate the family altar the night before, seat himself within two chairs of his wife ! And was it not right and proper, in order to account for his violence, to give in proof to the jury, the occurrences of the preceding evening ? To shut out the scene which transpired in the bed-chamber, is to 750 BIGGS V. THE STATE. ■deprive the jury of the power of appreciating the trans- port of passion kindled in the Ibosom of Biggs, by the presence of Parish. With our view of the law, we feel constrained to award a new trial in this case. Judgment reversed. NOTB. — 1. It is laid down by the writers on criminal law, that under the ■excuse of self defence, the principal civil and natural relations are compre- hended. Therefore, master and servant, parent and child, husband and wife, Idlling in the necessary defence of each other, respectively, are ex- cused ; the act of the person who bears such a relation assisting, being construed the same as the act of the party himself. 1 Russ. Cr., 662 ; 1 Hale, P. C, 484 ; 4 Bla. Com., 186 ; Foster, 274 ; Pond's case, post ; Sharp V. The "State, 19 Ohio, 387 ; Staten v. The State, infra. And the principle extends to the case of a servant assisting his fellow-servant. Drew's case, anti, p. 712. Or a guest his host. Cooper's case, Cro. Car., 544; Curtis v. Hubbard, 1 HiU (N. Y.), 336 ; S, C, 4 Hill (N.Y.), 437. But there may be cases where a father and son combine together in an unlawful attack upon a third person, in which it will be improper to permit the jury to consider the relationship between them. The true principle is said to be, that a son may aid his father, If the father be not in the wrong. But if the father ■wantonly attack a third person, and the son come into the conflict for the purpose of aiding the father in the unlawful assault, the son cannot avail himself of this relation as a defence. Sharp v. State, 19 Ohio, 389. 2. Upon the question, under what circumstances a stranger may defend another, we have suggested elsewhere, that, as a general rule, whatever a man may lawfully do for himself, he may lawfully do for another. Ante, p. 717. Thus, where a felony is attempted upon another person, it is the duty of a bystander to interpose and prevent it. Dill's case, ante, p. 738 ; Pond's case, post; 1 Hale, P. C, 484. " Every man," says Lord Hale, "is thus far an officer." lb. The promptings of humanity, as well as the duty which one man owes to another, and to the laws under which he lives, de- mand, that when a person sees great bodily injury being inflicted upon an individual, and the looker-on has a means or ability to prevent the injury, he shall use such means ; and if he do not, but idly stand by without inter- fering to prevent the commission of the crime, although the law will not hold him in any degree guilty of the particular crime committed, yet he , is by no means guiltless in the eyes of the law. Connaughty v. The State, 1 Wise, 165. He is guilty of a substantive misdemeanor, called misprision of felony. Ante, p. 30. And, furthermore, he incurs the danger of being prosecuted as a principal. Thus, in the case just quoted from, the defend- ant, Connaughty, awakened by a midnight brawl in the street, stood pas- sively in the door of his dwelling, and saw a murder committed. He was indicted for murder jointly with the person who did the killing ; was con- victed of murder in the first degree, and sentenced to death ; and but for the interposition of a Court of Errors, would probably have been execu- ted. 1 Wise, 159-171. It has been held, that when a house is feloniously Attacked, although it be a public-house, a lodger therein may justify kill- KILLIKG TO PREVENT MUEDBR— 'MITCHELL'S CASE. 751 ing the assailant. Cooper's case, Cro. Car., 544. Likewise, private per- sons may justify breaking and entering another's house and imprisoning the owner to prevent him from murdering his wife. Handock v. Baker, 2 Bos. & Pul., 260. And it was long ago held, that a man might lawfully dissemble his friends for the defence of his habitation, although it was not lawful for him to assemble them for his defence elsewhere. 21 H. 7, 39 ; 5 Coke, 92. But this is a branch of the subject which belongs more prop- erly to Past II. of this volume. 3. Again : where the injury threatened is less than a felony ; where, manifestly, nothing more than an ordinary battery is intended, a third per- son may likewise interpose in defence of the person who is being assailed and beaten ; but here, as in cases of self-defence, he must talce care to use no unnecessary degree of violence. Ante, pp. 723, 724. Thus, where A. was fighting his brother, and to prevent this, B. laid hold of A., and held him' down upon a locker on board a barge on which thej' were, but struck no blow, and thereupon A. stabbed B. ; it was held, that if B. did nothing more than was sufiicient to prevent A. from beating liis brother, And had died of this stab, the offence of A. would have been murder ; but that if B. did more than was necessary to prevent the beating of A.'s brother, it would have been manslaughter only. Rex v. Bourne, 5 Car. & Pay., 120. Likewise, a stranger in one's hoase may lawfully resist an un- lawful attempt of an officer to break into the house and remove the goods of the owner. Curtis v. Hubbard, 1 Hill (N.Y.), 336 ; S. C, 4 Hill (N. Y.), 437. 4. It would seem that where one espouses the quarrel of another, and Is slain, the homicide will be of the same degree that would attach to it, had the person whose quarrel he espoused been slain instead of him. Thus, where a wife had made so gross an assault upon the defendant, that had he killed her, it would have been no more than manslaughter, and her husband espoused her quarrel and was immediately slain, it was held manslaughter only. The State v. Roberts, 1 Hawks, 351. It likewise holds that one who, being present, assists another, and the person as- sisted slays his antagonist, the assistant stands on the same footing in re spect of his guilt or innocence, as the person wliom he assists. Riley and Stewart's case, ante, p. 163. And this rule is applicable where the assist- ant and the assisted occupy some of the natural or civil relations to each other, as well as where one stranger assists another. Sharp v. The State, 19 Ohio, 389. 5. We have seen, ante, pp. 220 et seg., that if a person brings about a ■difficulty or quarrel, or voluntarily engages and continues therein, and if, In the course of the combat, he is obliged to kill his adversary in self- defence, he wiU not be heard to urge this necessity produced by his own wrongful act, as an excuse or justification of the homicide. This principle seems to apply equally to a case where a person advises and brings about a combat beween two others, and then kills one of them to prevent him from kiUiug the other. A case in Georgia will illustrate the meaning we intend to convey. The three actors in the tragedy were Cole, the deceased ; Thompson, whom Cole had accused of committing adultery with his wife ; and Mitchell, the defendant. Cole had frequently declared that he had caught Thompson in adultery with his wife, and that he would kill him on 752 BIGGS V. THE STATE. sight ; and Mitchell had declared that he would not permit Thompson to> be killed. The three met at a grocery. Mitchell took Thompson one side, and said to him, " Spring your triggers and cock your gun ; shoot him first, if you can, God damn him, for its his notion to shoot you."^ Cole got on his horse and rode towards Thompson and Mitchell. Thomp- son, from behind a tree, snapped at him, but his gun missed fire. Cole then threw up his hand and cried, " Lord have mercy, he is going to shoot me," and immediately drew a pistol from his saddle wallet. In drawing it out, it went off accidentally, in an opposite direction from where Thomp- son and Mitchell were. Thompson then threw down his gun and ran, and Cole sprang from his horse and pursued Thompson, and while pursuing, Mitchell fired and kiUed Cole. Mitchell was convicted of murder, and the conviction was afiirmed in the Supreme Court. In the course of the trial, the presiding judge charged that " the pris- oner had the right to kill to prevent the commission of an atrocious crime, such as murder, manslaughter, or the like, upon another ; but he must have acted in good faith, and must first have used all reasonable means in his power to prevent the perpetration of the crime ; that if, after using all reasonable means in his power to prevent Cole from killing Thompson, he was unable to prevent it otherwise than by killing Cole, he had a right to do so, provided he acted for the public good ; or, to say the least, he must have acted in good faith ; iut that this principle of law would not avail him, if he acted in concert with Thompson in bringing about the difficulty — took part in the quarrel — made himself a party to it, and aided and assisted in bringing about the fatal rencounter." L0MPKIN, J., said: "We do not think the prisoner had any cause to complain of this charge. Concede the common law doctrine that a homi- cide is justifiable for the prevention of any forcible and atrocious crime,, must there not be an apparent necessity on the part of the slayer — yea, an absolute necessity for the act — ^to make the killing justifiable ? And must it not have been done bona fide to save life, and not wantonly or wickedly to destroy it? Under the pretext of punishing a felony, had Mitchell, the author and finisher of this whole tragedy, the right to kill in a spirit of revenge, and in the execution of a preconceived plan and purpose? Upon the proof in this case, does this killing stand on the same footing of reason and justice, as that of a woman who kills another to save her person from lustful violence? And ought not the Court, in stating the principle, to- have qualified it as he did ? Had he failed to do so, the grossest abuse of a very delicate doctrine would have been the inevitable consequence. Is it probable that Cole would have killed Thompson, had he not been shot by Mitchell? There was a time when trespassers In aristocratic parks might be slain, provided they refused, upon summons, to surrender themselves to the keepers. That day is past. The law is more tender of human life. But even under the statute de malifacioribus inparcis, it was incumbent on the keeper to show, that the deer-stealers could not but-escape unless they were killed. The burden is upon the defendant in this case, to show that he was without fault on his part. That he killed to prevent mui-der." 6. Whether a person who interferes and kills one man to prevent him from killing another, will be excused if he acted upon appearances which proved to be false. It will be observed that Lumpicin, J., goes so far in the- DEFENCE OF WIFE'S CHASTITY — SXATEN'S CASE. 753 case last quoted from, as to say that in such a case, there must have been an absolute necessity for the act. But this is evidently a hasty remark of the learned judge, not called for by the question under consideration, and it is doubtful whether it is entitled to much weight. In a nisi prius case in New York, however, the rule is laid down in the same way. After stat> ing the usual doctrine that a man who is himself assailed is justified in kill- ing his assailant, if he has reasonable grounds to believe that such killing is necessary to his own preservation, EjMott, J., told the jury that they "must be satisAed that it was actually necessary to prevent the commission of a homicide upon Kipp, [a third person,] at the time the shots were flred, for the prisoner to kill Aaron Cole, in order to sustain his defence. If you think so, you will acquit the prisoner. But if this act was not necessary^ — clearly and strictly necessary — you will be unable to acquit the prisoner." The jury did acquit the prisoner, and therefore this instruction was never reviewed in a court of error. We shall see by Pond's case, post, that where a man kills another in defence of his servant, the doctrine that reason- able appearances of danger excuse the homicide, applies as in other cases. And the same principle is applicable where a husband kills a man who has entered his viife's bed-room with the apparent purpose of ravishing her. This wiU appear from the Case of Staten v. The State, 30 Miss., 619, which was heard in the High Court of Errors and Appeals of Mississippi, in 1856^ before Smith, Ch. J., and Handy, J. Extract from the opinion of the Court, by Hamdy, J. : " The Court in- structed the jury at the instance of the State, as follows : " ' If the jury believe from the evidence, that the defendant killed the deceased at a time when there was no danger from the deceased to the de- fendant's family or sister, and upon revenge for a supposed insult to his family, and in heat of blood, this is, at least, manslaughter. " ' If the jury believe from the evidence, that HambUn was unarmed at the time the defendant kUled him, and there was no real or apparent dan ger from him at the time of the killing, either to Staten himself, or to his wife, or sister, or family, then the killing is neither justifiable nor excus- able.' "Without 'a particular detail of the evidence, cr of the circumstances under which the killing was done, it is suflSoient, for the purpose of testing the propriety of these instructions, to observe, that there was testimony tending to show that the deceased had entered the bed chamber in which the wife of the accused, (she being sick at the time,) and his sister were •sleep, and after midnight ; that he aroused the sister by putting his hand on her ; that she told him to go away, and that he went under Mrs. Staten's bed, which was in the same room ; that, after a short time, she went into the room where Staten was sleeping and awoke him, and told him that the deceased was in his wife's room ; and he arose and went im- mediately into his wife's room, and a noise like the falling over chairs was heard ; and that shortly afterwards the deceased was seen bleeding, and lived but a short time, being stabbed in several places. There was also evidence tending to show that the deceased took supper that night at Staten's house, and was there after supper, and in the room where Staten's wife was, in company with Staten ; but that Staten supposed he had gone home, when he was informed by his sister that he was in his wife's room. 754 BIGGS V. TJIE STATE. "The statute provides that homicide is justifiable ' when committed in file lawful defence of a person, or of his or her husband, wife, parent, child, master, mistrejss, or servant, when there shall be a reasonable ground to apprehend a design to commit a felony, or to do some great personal in- jury, and there shall be imminent danger of such design being accom- plished.' Hutch., Code, 957. " The instructions above stated, do not declare the rule in conformity to this statute. If the accused had a 'reasonable ground to apprehend a design to commit a felony or do some great 'persoiial injury to his wife, and there was imminent danger of the design being accomplished,' he was justi- fied in killing. But the mstruetions do not give the accused the benefit of the apprehension of danger, in the particulars specified in the statute ; and the jury were left free to put whatever construction they deemed proper on the general terms, ' danger to himself or his wife,'' etc. They might kave supposed that it required danger to life, in order to justify the killing, and hence concluded that, as there was no evidence of such danger, the killing was unjustifiable ; whereas, the statute distinctly recognizes a just apprehension of immediate danger of the commission of a felony, or of some great personal injury or bodily harm, as a j ustificatlon. The plaintiff in error was entitled to have the rule thus distinctly declared to the jury ; and for the error in this respect in the instructions, the judgment is re- versed, and the cause remanded, and a new trial awarded." There would seem to be no reason why the same rule should not apply where one stranger interposes to save the life of another ; although a stranger would doubtless be held to a greater degree of caution and prud- ence, than would bo required in one who was himself assailed. In accord- ance with this view. Lord Hale states the rule upon a hypothetical case, a-s follows : "If A., B. and G. be of a company together, and, walking in the field, C. assaults B., who flies ; C. pursues him, and is in danger to kill hhn, unless present help ; A. thereupon kills C.,in defence of the life of B. It seems that in this case, of such an inevitable danger of the life of B., this occisiou of 0. by A. is in the nature of se defendendo. But then it must appear plainly by the circumstances of the ease as the manner of the assault, the weapon with which C. made the assault, etc., that the im- tainent danger of the life of B. be aijparent and evideat." 1 Hale P. C, 484. lu y rjijjg gj^ji^ jjf Biggs, mpra, is certainly a very peculiar case. It might Mot be going beyond the bounds of moderate criticism to pronounce it an extraordhiary case. The judge who pronounced the opinion was deservedly eminent. He was the " old man eloquent" of the Supreme Court of Geor- jfia. Before committing his opinions to paper, he pronounced them orally from the bench, and crowds gathered to hear him. This habit, no doubt, contributed to make his otherwise vivid imagination at times heated be- yond that degree of calmness and moderation, which should characteriz* legal judgments. Hence, the reasons with which his conclusions' are sup- ported, as well as the conclusions themselves, deserve at times to b» closely scanned, before being accepted as law. With reference to the case under consideration, it may be observed — a. That seduction does not appear to have been punished as a crime in Ueorgia at the time of this decision. It is not found in the catalogue Bf THE PRINCIPAL CASK EXAMINED. 755 offences enumerated in the fourth division of tlie Penal Code of Georgia, whicti treats of offences against the person ; nor, in the tenth division, which treats of offences against public morality and decency. By section tive of the tenth division, adultery and fornication are punishable by fine not exceeding five liundred dollars, and imprisonment not exceeding sixty days. These offences are thus misdemeanors only. b. Even if the seduction of a man's vs^ifo were a felony, stiU, it is not, like rape, a felony of a. forcible chara^oter, and, hence, may not be resisted by killing the person attempting it. See ante, p. 737, note ; Pond"s case, post. The reason of the rule is, that homicide is justified only on the ground of necessity ; and there is no necessity in resisting a secret and cow- ardly crime by such extreme means. e. The rule applicable to kilUng upon provocation produced by such offences is, that if a husband immediately slay one taken in the act of adultery with his wife, it is manslaughter only. State v. Samuel, 3 Jones, Law, 74; State v. Neville, 6 Jones, I^j-w, 433; State v. John, 8 Ired.. 330, 336; Foster, 296; 4 Bla. Com., 191; 1 Hale, P. C, 486; Manning's case; llaym., 212; People v. Hortou, 4 Mich., 83. But to slay one because lie had, before that time, committed adultery with Ids wife, is murder. State v. Samuel, 3 Jones, Law, 74 ; State v. John, id supra; State v. Neville, «< 5M;?!'a; Foster, 296. Thus, in a prosecution for murder, it was held that evidence, that the evening preceding the hom- icide, the deceased came to the prisoner's house, and liad the prisoner's wife on the bed with her clothing up and attempted to ravish her, was properly rejected ; because, if admitted, it could not have had the effect of mitigating the crime. State v. Neville, ui supra. Sir Michael Foster expresses the reason of this "rule, as follows: "For let it be observed that in all possible cases, deliberate homicide upon a principle of revenge is murder. No man, vinder the protection of the law, is to be the avenger of his own wrongs. If they are of such a nature for which tlie laws of'society will give him an adequate remedy, thither he ought to resort. But, be they of what nature soever, he ought to bear his lot with patience, and remember that vengeance belongeth only to the Most High." Foster, 296. d. The Georgia statute, expounded in the principal case, is substan- tially In affirmance of the common law. The only point of difl'erenee we have been able to discover is, that it makes killing justifiable under some circumstances, in repelling a forcible invasion of one's property, without reference to the question whether the invasion would have amounted to a felony, or to a trespass merely. Even the language of section 16, that " all other instances which stand on the same footing of reason and justice as those enumerated, shall be justifiable liomioide," contains nothing new. It is simply a repetition of the language used by Foster and East with ref- erence to the statute 24 Hen. VIII. , ch. 5. Foster, 276; 1 East, P. C, 273. It cannot bo supposed that these eminent writers, when they used this language, intended to hint that juries should have unrestrained power to determine what offences shall be deemed to stand upon the same footing of reason and justice, as those enumerated in the statute of Ilenry VIII. It has been well said, in a case in Tennessee, that " the facts being found or admitted, what shall constitute homicide excusable, or manslaughter, 756 BIGGS V. THE STATE. ' is a coiiclusiQn of law, and not of fact." Claxton v. State, 2 Humph., 183 ;- and see State v. Craton, 6 Ired., 172. And the judge may tell the jury that if they believe certain facts, such facts do or do not, make out a case of homicide se defendendo. 2 Humjph., 172. And we have already seen, that, the law upon this subject being expounded to the jury, it is their province to determine whether the facts do or do not malve out a case ■within the law. Harrison's case, ante, p. 276, and references. The rule declared in the principal case, would make the law of justifiable homicide a subject of legislation by juries ; and* the law would become as uncertain as the whim of each successive jury, that might be empanelled in a capi- tal case. Even the authority of the Court, in this instance, to depart from the settled principles of the common law, and to set up a new rule of jus- tifiable homicide, under the •authority of a statute which simply states a pre-existing rule of the common law, may well be questioned. " With respect to the case of adultery," said Ruffin, J., in the case from North Carolina last quoted, " the law is found in the most ancient archives of the common law, and h^ been brought down to us in the same plain and precise terms by the ablest Judges, and the most eminent writers on the criminal law, and a Court at this day has no more authority to interpolate new qualifications or exceptions into it, than power to make a statute. But the rule of the common law on this head, stands not alone on its authority. It is commended, as well, by its wisdom. Homicide is extenuated to man- slaughter, not by the fact that it was perpetrated in a fury of high pas- sion, but by the fury's being excited by a present provocation, which the law deems sufficient for the time, to deprive men in general, of that power of reason and reflection, wliich ought to lead them to appeal for redress tO' the law, and instead thereof, prompts them to take the law into their own hands. The wrong is thus infallibly known and the wrong-doer is thus made instantly to expiate it with his blood. But when a husband only hears of the adulteiy of his wife, no matter how well authenticated the information may be, or how much credence lie may give the informer, and kUls either the wife or her paramour, he does it not upon present prove • cation, but for a past wrong — a grievous one indeed ; but it is evident ho kUls for revenge. Let it be considered how it would be if the law were otherwise. How remote or recent must the offence be? How long or how far may the husband pur-sue the offender? If it happen that he be the deluded victim of an lago, and after all, that he has a chaste wife, how is it to be then? These enquiries suggest the impossibility of acting on any rule but that of the common law, without danger of imbruing men's hands in innocent blood, and certainly of encouraging proud, heady men to slay others for vengeance, instead of bringing them to trial and punish- ment by law. It is obvious that these observations apply with equal force to an alleged rape, or an attempt to commit a rape on a wife at a past time ; and this case furnishes a forcible illustration of the extreme hazard of eytenuatingthe offence of taking the life of a fellow-man upon inform- ation.'" State V. NeviUe, 6 Jones, Law, 433, 434. On the other hand, it has been held, that when a man finds his wife in the road with a man whom he has good reason to believe has either com- mitted, or is about to commit, adultery witli her, he may lawfully stop »uch person in the road, and detain him until he surrenders up the custody SYLLABUS. 757 of his wife ; and if, while so doingj he is Icilled by such person, it will be murder, and not manslaughter. State v. Craton, 6 Ired., 164. In a case in Texas, the defendant, a freed person of color, had cohab- ited for several years with a freed woman of color, and in this relation they hal had two children. They occupied the same bed in a room with other freed people. The defendant being up and but partly dressed in the morning, the deceased came in and told the woman he had come for a fuss, and struck and kicked her. He then went out, saying that he would go and feed his mules, and then return and have the fuss out. But the woman continuing to talk, he returned immediately, and again commenced beating her ; whereupon, the defendant fired a pistol from the stairway, killing the deceased. It was contended, that the relation of concubinage, or whatever it was, having been established, the accused had a right to take life in defence of the woman ; and the accused undertook to read to the jury the provisions of the Texas Code in relation to defence of person or property, ante, p. 182 ; but the Court told the jury that that law had no application to the case, and the defendant excepted. The prisoner was convicted of something — the imperfect report does not state of what — and was sentenced to the penitentiary for seven years. Without noticing this question, the Supreme Court, (Lindsay, J.), 'state that they have carefully examined the record, and find no error to the prejudice of the accused. Parker v. The State, 31 Tex., 132. -SELF-PRESERVATION BY THE DESTRUCTION OF INNOCENT PERSONS. UNITED STATES v. HOLMES. [1 "Wallace Jr., l.J Circuit Court of the United States, for the Third Circuit, April Sessions, 18Ji,2. Mr. Justice Baldwust, Presiding. Selp-Prbsbrvation by destruction of innocent persons— Sailors throwing over passengers at sea. Seamen have no right, even in cases of extreme peril to their own lives, .40 sacrifice the lives of passengers, for the sake of preserving their own. 758 [JJSriTED STATES V. HOLMES. On the contrary, being common carriers, and so paid to protect and carry the passengers, the seamen, beyond tlie number necessary to navigate the boat, in no circumstances can claim exemption from the common lot of the passengers. On the 19th of April, 1841, the American ship William- Brown, having on board sixty -five passengers and sev- enteen of a crew, struck an ice-berg and foundered in mid-ocean, two hundred and fifty miles S. E. of Cape- Race. The captain, second mate, seven of the crew, and one passenger got into the jolly boat. The first mate, eight seamen, (of whom the prisoner was one), and thirty- two passengers got indiscriminately into the long boat. The remainder of the passengers, thirty-one in number, went down with the ship and perished. The first mate was placed in the long boat, with a chart, quadrant and compass, because he understood navigation. The following morning, the captain, being about to part company with the long boat, advised its crew to obey all the orders of the mate as they would obey his, the captain's ; and this the crew promised they would do. Six days after the disaster, the jolly boat was picked up by a French fishing lugger. The long boat was loaded nearly to the water's edge,, and was in great jeopardy. She could only be kept afloat by constant bailing. A moderate blow, or collis- ion with a piece of ice, or a mishap in steering, would surely have swamped her. She could never have been rowed to shore with the load she carried. On Tuesday morning, after the long boat and jolly boat parted company, it began to rain, and continued to rain throughout the day and night of Tuesday. At night the wind began to freshen ; the sea grew heavier, and once or oftener the waves splashed over the boat's bow, so as to wet all over the passengers who were seated there. Pieces of ice were still floating, and dur- ing the day ice-bergs were seen. About ten o'clock of Tuesday night, after the long boat, freighted as before stated, had been afloat fully twenty-four hours, tlie prls- STATEMENT OF THE FACTS. 759 »ner and the rest of the crew began to throw over some of the passengers, and did not cease until they had thrown over fourteen male passengers, and, it seems, two women. These, with the exception of two married men and a small boy, constituted all the male passengers on board. I^ot one of the crew was thrown over, although one of them, the cook, was a negro. No lots were cast. The only principle of selection was that dictated by the mate, not to part man and wife^ and not to throw over any woman. Early on the following morning, the long boat was picked up by the ship Crescent ; and all who had not been thrown over were thus saved. The testimony was not clear as to the degree and im- minence of the danger at the time the throwing over began : but it appeared that the boat had provisions for •ix or seven days. The prisoner was the only one who did not finally become prostrated; and it was through his exertions that the boat was discovered and picked up. Among the passengers thrown overboard by the defendant was one Charles Askin; for whose mart- slaughter he was indicted, imder the Act of April 30, 1790, § 12, "/or the punishment of certain crimes against the United States." William Meredith, District Attorney, for the United States ; with whom was Mr. Dallas and Mr. 0. Hopkin- son. Mr. David Paul Brown, Mr. Hazeltmrst and Mr. Arm- strong, for the prisoner. Mr. Dallas argued the case with great force for the Gor- ernment, citing (among other things,) Bacon's "Works, by Montagu, vol. 13, p. 161, Lond. 1831. Mr. Armstrong opened for the defence ; and was fol- lowed by Mr. Brown, who, in the course of his eloquent argument, cited Rutherforth's Institutes of Natural Law, Book I, ch. 16, § 5, to the effect that the law of nature " cannot be supposed to oblige a man to expose his life 760 UNITED STATE V. HOLMES. to such danger as may be guarded against ; and to wait till the danger is just coming upon Mm, before it allows him to secure himself." Also the following passage from the same section : " I see not, therefore, any want of benevolence which can be reasonably charged upon a man in these circumstances, if he takes the most obvious way of preserving himself, tliougli perTiaps sorAe otJier method might have been found out, which would have preserved him as effectually, and produced less hurt to the aggressor, if he had been calm enough, and had been allowed time enough to deliberate aboiit it." He also cited Grainger's case, 5 Yerg., 459, ante, p. 238, to the effect that, " if a man, though iiino great danger of serious bodily harm, through fear, alarm or cowardice, Mil another, under the impression that great bodily in- jury is about to be inflicted on him, it is neither man- slaughter nor murder, but self-defence.^'' He also cited The Mariana Flora, 11 Wheat., 51 ; The Loui^ Dodson, 264 ; Bacon's Works, by Montagu, vol. 13, p.' 160, Lond., 1831 ; and 4 Bla. Com., 186. Mr. Justice Baldwin charged the jury. He alluded to the touching character of the case ; and after stating to the jury what was the offence laid in the indictment, explained with particularity the distinction between murder and manslaughter. Malice was of the essence of murder, while want of criminal intention was consistent with the nature of manslaughter. Thfe mere absence of malice did not render homicide excusable; the act might be unlawful, as well as the union of the .act and intention; in which union consisted the crime of murder. After giving several familiar instances of man- slaughter, to explain that, although homicide was com- mitted, there was yet an absence of bad motive, his honor proceeded with his charge nearly as follows : In such cases the law neither excuses the act nor permits it to be justified as innocent; but, although inflicting some pun- ishment, yet she looks with a benignant eye through the thing done, to the mind and to the heart ; and when, on THEOWnSTG OVER PASSEN'GEES AT SEA. 761 a view of all tlie circumstances connected with the act, no evil spirit is discerned, her humanity forbids the ex- action of life for life. ****** It is a different thing, when we are asked not to ex- tenuate, but to justify the act. In the former case, our decisions may, in some degree, be swayed by feelings of humanitj?^ ; while in the latter, it is the law of neces- sity alone, which can disarm the vindicatory justice of the country. Where, indeed, a case does arise, em- braced by this law of necessity, the penal laws pass over such case in silence ; for law is made to meet but the ordinary exigencies of life. But the case does not become " a case of necessity," unless all ordinary means of self-preservation have been exhausted. The peril must be instant, overwhelming ; leaving no alternative but to lose our own life, or to take the life of another person. An illustration of this principle occurs in the ordinary case of self-defence against lawless violence, aiming at the destruction of life, or designing to inflict grievous injury to the person ; and within this range, may fall the taking of life under other circumstances, where the act is indispensably requisite to self-existence. For ex- ample : Suppose that two persons who owe no duty to each other that is not mutual, should, by accident not attributable to either, be placed in a situation where both cannot survive. Neither is bound to save the other's life by sacrificing his own; nor would either commit a crime in saving his own life in a struggle for the only means of safety. Of this description of cases are those which have been cited to you by counsel, from writers on natural law ; cases which we rather leave to your imagination than attempt minutely to describe. Again, I state, that when this great "law of necessity" does apply, and is not improperly exercised, the taking of life is divested of unlawfulness. But, in applying this law, we must look not only to the jeopardy in which the parties are, but also to the relations in which they stand. 762 UNITED STATES V. HOLMES. The slayer must be under no obligation to make his own safety secondary to the safety of others. A familiar illustration of this principle presents itself, in the obligations which rest upon the owners of stages, steamboats, and other vehicles of transportation. In consideration of the payment of fare, the owners of the vehicle are bound to transport the passengers to the place of contemplated destination. Having in all emer- gencies the conduct of the journey and the control of the passengers, the owners rest under every obligation for care, skill, and general capacity ; and if, from defect of any of these requisites, grievous injury is done to the passenger, the persons employed are liable. The pas- senger owes no duty but submission. He is under no ob- ligation to protect and keep the conductor in safety ; nor is the passenger bound to labor, except in cases of emer- gency, where his services are required by unanticipated and uncommon danger. Such is the relation which exists on ship-board. The passenger stands in a position different from that of the officers and seamen ; it is the sailor who must encounter the hardships and perils of the voyage. Nor can this relation be changed when the ship is lost by tempest or other danger of the sea, and all on board have betaken themselves, for safety, to the small boats ; for imminence of danger cannot absolve from duty. The sailor is bound, as before, to undergo whatever hazard is necessary to preserve the boat and the passengers. Should the emergency become so extreme as to require the sacrifice of life, there can be no reason why the law does not still remain the same. The passenger, not be- ing bound either to labor, or to incur the risk of life, can- not be bound to sacrifice his existence to preserve the sailor's. The captain, indeed, and a sufficient number of seamen to navigate the boat must be preserved ; for ex- cept these abide in the ship, all will perish; but if there be more seamen than enough to manage the boat, the su- pernumerary sailors have no right, for their safety, to sacrifice passengers. The sailors and passengers, in fact, THROWING OVER PASSENGERS AT SEA 763 cannot be regarded as in equal positions. The sailor, to use tlie language of a distinguished writer, owes more benevolence to anotJier than to himself. He is bound to set a greater value on the life of others than on his own. And while we admit that sailor and sailor may law- fully struggle with each other for the plank which can save but one, we think that, if the passenger is on the plank, even the law of necessity justifies not the sailor who takes it from him. This rule may be ' deemed a harsh one towards the sailor, who may thus far have done his duty ; but when the danger is so extreme that the only hope is in sacri- ficing either a sailor or a passenger, any alternative is hard ; and would it not be the hardest of any to sacri- fice a passenger in order to save a supernumerary sailor ? But, in addition : If the sources of the danger have been obvious, and destruction ascertained to be certainly about to arrive, though, at a future time, there should be consultation, and some mode of selection fixed, by which those in equal relations may have equal chance for life. By what mode, then, should selection be made ? The question is not without difiiculty ; nor do we know of any rule prescribed either by statute or by common law, or even by speculative writers on the law of nature. In fact, no rule of general application can be prescribed for contingencies which are wholly unforeseen. There is, however, one condition of extremity for which all wri- ters have prescribed the same rule. When the ship is in no danger of sinking, but all sustenance is exhausted, and the sacrifice of one person is necessary to appease the hunger of the others, the selection is by lot. This mode is resorted to as the fairest mode ; and in some sort, as an appeal to God for selection of the victim. This manner, obviously, was regarded by the mate in parting with the captain, as the one which it was proper to adopt, in case the long-boat could not live with all who were on board on Tuesday morning. The same manner as would appear from the response given to the mate, had already suggested itself to the captain. 764 UNITED STATES V. HOLMES. For ourselves, we can conceive of no mode so conso- nant, both to humanity and to justice; and the occasion, we think, must be peculiar, which will dispense with its exercise. If, indeed, the peril be instant and overwhelm- ing, leaving no choice of means, and no moment for de- liberation ; then, of course, there is no power to consult, to cast lots, or in any such way to decide. But even where the final disaster is thus sudden, if it have been foreseen as certainly about to arrive ; if no new cause of danger have arisen to bring on the closing catastrophe ; if time have existed to cast lots and to select the victims ; then, as we have said, sortition should be adopted. In no other than this, or some like way, are those having equal rights, put upon an equal footing ; and in no other way is it possible to guard against partiality and op- pression, • violence and conflict. What scene, indeed, more horrible, can imagination draw, than a struggle be- tween sailor and sailor, passenger and passenger, or, it may be, a mixed affray, in which, promiscuously, all de- stroy one another! — this, too, in circumstances which have allowed time to decide, with justice, whose life should be calmly surrendered. "When the selection has been made by lots, the victim yields, of course, to his fate, or, if he resist, force may be employed to coerce submission. Whether or not " a case of necessity " has arisen, or whether the law, under which death has been inflicted, has been so exercised as to hold the executioner harm- less, cannot depend on his own opinion ; for no man may pass upon his own conduct, when it concerns the rights, and especially when it aff'ects the lives of others. We have already stated to you, that, by the law of the land, homicide is, sometimes, justifiable ; and the law de- fines the occasion in which it is so. The transaction, must, therefore, be justified to the law ; and the person accused rests under obligations to satisfy those who ju- dicially scrutinize his case, that it really transcended ordinary rules. In fact, any other principle would be followed by pernicious results ; and, moreover, would not THROWING OVER PASSENGERS AT SEA. 765 te practicable in application. Opinion or belief may be assumed, whether it exist or not ; and if this mere opin- ion of the sailors will justify them in making a sacriiice of the passengers, of course the mere opinion of the pas- sengers would, in turn, justify these in making a sacri- fice of the sailors. The passengers may have confidence in their own capacity to manage and preserve the boat ; or the effort of either sailors or passengers to save the, boat may be clearly unavailing; and what then, in a struggle against force and numbers, becomes of the safety of the seamen ? Hard as is a seaman's life, would it not become yet more perilous, if the passengers, who may outnumber them ten-fold, should be allowed to judge when the dangers of the sea will justify a sacrifice of life ? We are, therefore, satisfied, that, in requiring proof which shall be satisfactory to you, of the existence of the necessity, we are fixing the rule which is not merely the only one that is practicable, but, moreover, the only one that will secure the safety of the sailors themselves. The Court said, briefly, that the principles which had been laid down by them, as applicable to the crew, ap- plied to the mate likewise ; and that his order, on which much stress had been laid, if an unlawful order, would be no justification to the seamen; for that, even seamen are not justified in law, by obedience to commands which are unlawful. The Court added, that the case was one which involved questions of the gravest consideration ; and, as the facts in some sort, were without precedent, that the Court pre- ferred to state the law, in the shape of such general prin- ciples as would comprehend the case, under any view which the jury might take of the evidence. Verdict, guilty, with a recommendation to the mercy of the Court. On the same day a rule was obtained to show cause why a new trial should not be granted ; because the Court, instead of telling the jury, that, in a state of im- minent and deadly peril, all men are reduced to a state 766 UNITED STATES V. HOLMES. of nature, and that there is, then, no distinction between the rights of sailor and passenger, adopted a contrary doctrine, and charged the jury accordingly. The defendant subsequently showed cause ; but the United States did not reply. The Court held the application, for some days, under advisement; and, at a subsequent day, discliarged tJie rule. They said that, during the trial, (aware that no similar case was recorded in judicial annals), they had given to the subject studious and deliberate considera- tion ; and they had paid like regard to vd||twas now urged. But that, notwithstanding all that M^B^en said, and the arguments, it was admitted, were powerful, no error had been perceived by the Court in its instructions to the jury. It is true, said the Court, as is known by every one, that we do find in the text writers and in judicial opinions, the phrases, " the law of nature ; " " the prin- ciples of natural right ; " and other expressions of a like signification ; but, as applied to civilized men, nothing more can be meant by those expressions, than that there are certain great and fundamental principles of justice, which, in the constitution of nature, lie at the founda- tion, and make part of all civil law, independently of express adoption or enactment. And to give to the ex- pressions any other signification ; to claim them as show- ing an independent code, and one contrariant to those settled principles which, however modified, make a part of the law in all Christian nations ; would be, to make the writers who use the expressions, la^ down, as rules of action, principles, which, in their nature, admit of no practicable ascertainment and application. The law of nature forms part of the municipal law ; and, in a proper case, as in self-defence, homicide is justifiable, not be- cause the municipal law is subverted by the law of na- ^ ture, but because no rule of the municipal law makes homicide, in such cases, criminal. It i^, said the Court, the municipal or civil law, as thus comprehensive ; as founded in moral and social justice ; the law of the land, SELF-PEESERVATION — ^LAW OP NATURE. 767 in short, as existing and administered amongst us and all enlightened nations, that regulates the social duties of— the duties of man towards his neighbor everywhere. Everywhere are civilized men under its protection ; ev- erywhere subject to it's authority. It is part of the uni- versal law. We cannot escape it in a case where it is applicable ; and if, for the decision of any question, the proper rule is to be found in the municipal law, no code can be referred to as annulling its authority. Varying, however, and however modified, the laws of all civilized nations, and, indeed, the very nature of the social constitution, place sailors and passengers in dif- ferent relations. And, without stopping to speculate upon over-nice questions not before us, or to involve ourselves in the labyrinth of ethical subtleties, we may safely say, that the sailor's duty, is the protection of the persons en- trusted to his care, not their sacrifice, — a duty, we must again declare our opinion, that rests on him in every' emergency of his calling ; and from which it would be senseless indeed to absolve him exactly at those times when the obligation is most needed. The prisoner was sentenced to solitary confinement at hard labor for six months, and to pay a fine of twenty dollars. Pardon was refused by the President, but th« penalty was remitted. 768 MORKIS V. PLATT. J.— CONCERNING THE DEGREE OF CAUTION AND PRUDENCE WHICH A PERSON MUST EX- ERCISE IN HIS DEFENCE, TO AVOID INJURING THIRD PERSONS. MOREIS V. PLATT. [32 Conn., 75.] Supreme Court of Errors of Connecticut, New Ho^en^ February Term, 1861f,. iJoEL HiNMAN, Chief Justice. Henry Button, ) Toi^nt^o Thomas Belden Btjtlee, j '^^'^S^^- Acting upon appearances of danger — Injuring third persons in lawful self-defence. 1. A man who is assaulted under such circumstances as to authorize a reasonable belief that the assault is made with a design to talje his life, or inflict extreme bodily Injury, wiU be justified, both in the civil and the crimmal law, if he kill, or attempt to kill, his assailant. [Ace. Sloan's case, anU, p. 517, 6th res., and references.] 2. The question, whether the belief was reasonable or not must be passed upon by a jury, but a person does not act in such a case at the peril of making that guilt, if appearances prove false, which would be innocence, if they prove true. [Ace. Sloan's case, ante, p. 517, 6th res., and refer- ences.] 3. A person who, in his lawful defence, fires a pistol at his antagonist, and accidentally wounds a bystander, is not liable in damages for the in- jury, if guilty of no negligence. [See note, ml fin.l Trespass for an assault, tried by a jury in the Superior Court, before Park, J., on the general issue, with notice that the acts were done in lawful self-defence. On the trial, it was admitted that the plaintiff received the injury complained of, by means of two pistol sliots, fired by Delos Piatt, one of the defendants. The defend- STATEMENT OF THE FACTS. 769 &.nts introduced evidence to prove, and claimed that they had proved, that, at the time of the occurrence, one of the defendants, Sylvester Piatt, vras assaulted hy one Holihan, a brother-in-law of the plaintiff, and that a personal struggle ensued between them; that immedi- ately after, the said Sylvester was surrounded by a large number of the friends of Holihan, among whom was the plaintiff, several of whom had clubs in their hands, and that they joined in the attack upon him, and were beating him upon the head with clubs and fists, to the imminent peril of his life; and that ger. If a person takes forcible possession of another man's close, so as to be guilty of a hreach of the peace, it is more than a trespass. So, if a man with force invades and enters into the dwelling of another. But a man is not authorized to fire a pistol at every intrusion or invasion of his house. He ought, if he has a reasonable opportunity, to endeavor to remove him without having recourse to the last extremity. But, the making an attack upon a dwelling, and especially at night, the law regards as equivalent to an assault upon a man's person ; for a man's house is his castle, and, therefore, in the eye of the law, it is equivalent to an assault. But no words or singing are equivalent to an assault, nor will they authorize an assault in return. If you are sat- isfied that there was nothing but the song, and no appearance of further violence — ^if you believe that there was no reasonable ground for apprehend- ing further danger, but that the pistol was fired for the purpose of killing, then it is murder. There are cases where a person in the heat of blood kills another, that the law does not deem it murder, but lowers the oflence to manslaughter ; as, where a party coming up by way of making an attack, and without there being any previous apprehension of danger, the party attacked, instead of having recourse to a more reasonable and less violent mode of averting it, having an opportunity so to do, fires on the impulse of the moment. If, in the present case, j'ou are of the opinion that the prisoners were really at- tacked and that Law and his party were on the point of breaking in, and likely to do so, and execute the threats ef the day before, they were, per- haps, justified in firing as they did. If you are of opinion that the prison- ers intended to fire over and frighten, then the case is one ot manslaughter, and not of self-defence. With regard to Belt, there is no evidence one way or the other, whether there was or was not any other person in the house with Meade ; although there is no doubt that he was there. You are not, however, to assume in a case where a man's life is at stake, that, because a man's voice was heard, it was the voice of Belt, The jury found Meade guilty of manslaughter and acquitted Belt. 80J THE PEOPLE V. RECTOR. have been received, because we cannot say they would not. The lightness of a relevant circumstance is no ar- gument for withholding it from the jury. Rex v. North- ampton, 2 Maule & Selw., 262. In the prosecution of ■ a crime so essentially the creature of intent as murder, everything pertinent should be submitted to the- jury, upon which they may infer the absence of malice. The instrument, as used in this case, proved to be most dan- gerous, but it was not deadly in its own character ; and, connected with the prisoner's manner, as described by Grillespie, could the jury have been brought to believe him, the whole might have presented fair matter of ar- gument, on the question whether the resistance offered was out of proportion to the injury, which there was reas- onable cause for apprehending. Evidence that the kill- ing was for such a cause, if it would not make out a jus- tifiable or excusable homicide, (2 R. S., 660, §§ 3, 4), would have brought down the crime to the lowest degree of man- slaughter. 11)., 662, § 19 ; and see Roscoe's Cr, Ev., 643, Phila. ed., 1836. It may be proper to observe that, after the prisoner had given notice to the deceased and his companions to depart, his house was, in respect to them, a mere private one ; and, in the eye of the law, entitled to the same measure of protection as the house in Meade's case. Any further assault, theiefore, or any apprehended assault, might be repelled, upon the same principles as in that case. By Bronson, J. : * * * The next exception, in the order in which they were presented by the prisoner's counsel, is that which relates to the rejection of evidence to prove a riot in the prisoner's house, a week before the deceased received the fatal wound. It is important here to notice with accuracy, what facts the prisoner proposed to prove, and the purpose for which the evidence was offered. The bill of exceptions states that an offer was made in the course of the trial, to prove " that the house of the prisoner had been attacked on the Saturday night previous to the transaction in question, by several per- DEFENCE OF HABITATION — THREATS. 801 sons, and broken into, and the inmates very badly abused, and that they then threatened to. return some other night soon after and break in again, if they were not admitted." This was the offer : the purpose for which it was made, as stated in the bill of exceptions, was " to show that the prisoner had reason to apprehend yiolence upon his house, at the time that the deceased and his companions came there, and that was his reason for using so much force as he did." We are referred on this point to Meade's case, 1 Lewin C. C, 184, as cited in Roscoe's Cr. Ev., 645. There are some very important points of difference between that case and the one at bar. In that case, the boatmen, of whom Law, the deceased,, seems to have been one, attacked Meade, ducked him, and were in the act of throwing him into the sea, when he was rescued by the police. As Meade was going away, the boatmen threatened him that they would come at night and pull his house down. In the middle of the night, Law and a great number of persons came about Meade's house, singing songs of menace and using violent language. Meade, under an apprehension, as he alleged, that his life and property were in danger, fired a pistol by which Law, one of the party, was killed. Belt was also indicted with Meade, as having been present, aiding and abetting the alleged murder. Hol- EOTD, J., among other things, said to the jury : " If you are of opinion that the prisoners were really attacked, and that Law and his party were on the point of break- ing in, or likely to do so, and execute the threat of the day before, they were, perhaps, justified in firing as they did." In the case at bar, the pretended attack was not made the very next night after the threat of the rioters ; a whole week intervened. The attack was not made by a great number of persons ; there were only three young men ; and the knocking or kicking at the door for admittance was probably nothing more than the prisoner had been accustomed to hear, without any apprehension for the safety of his person or property. But what is very natural, there is no offer to prove 802 THE PEOPLE V. RECTOR. tliat either of the three young men was of the party which had committed the riot, or had any connection or ac- quaintance with the rioters. Nor was there any offer to show that the prisoner supposed or believed, or had any reason to suspect or believe, tliat either of these three young men had anything to do with the previous dis- turbance, or the threatened assault on his house. There was no suggestion that either the rioters or the young men were strangers to the prisoner. So far as the offer goes, he may have known very well that the de- ceased and his companions had nothing to do with the j>revious disturbance. Surely, there is nothing in Meade's case to warrant the admission of such evidence as the prisoner proposed to give. It is not improbable that the prisoner knew the per- sons who had broken into his house, and abused the inmates a week before, especially as the case states that rioters had been admitted as guests in his house. But if he did not know their names, he might be very well able to distinguish between them and the three young men. It was " a clear, moonlight night, very light," when the deceased and his companions went to the house. The prisoner came to the window, and held a conversation with them before he made the attack, in which there was no intimation that he regarded them as rioters, or that they had ever done any act to excite his apprehension. But, aside from the probability, that the prisoner knew the deceased and his companions had nothing to do with the previous assault, the offer did not go far enough to show any connection between the two transactions. Had the evidence been received, it would have furnished no just ground for the inference that the previous riot was at all in the mind of the prisoner, at the time he made the attack. It was a mere after-thought — an attempt to get up and distract the minds of the jury with a collat- eral question utterly foreign to the point in issue ■ The bill of exceptions states the purpose for which the evidence was offered. It was to show that the defendant had reason to apprehend violence upon his house at the DEFENCE OF HABITATION — THREATS. 803 time the deceased and Ms companions came there, and that that was his reason for using so much force as he did. Here we have the inference which the prisoner wishes to draw from the evidence ; and it is worthy of notice that he does not pretend, that the evidence would warrant any inference that violence upon his house was to he appre- hended from the deceased and his companions. He only contends that he had reason to expect violence at that time, but does not venture the suggestion that it was to come from the deceased or his fellows. "What, then, do this offer and the inference from it come to ? The pris- oner says, rioters broke into my house a week' before, abused the inmates and threatened another attack ; therefore, I had reason to apprehend violence upon my house at the time the young men came there — not that I had any reason to expect violence from them, but from the rioters : this is my reason for sallying out of the house, and attacking the deceased with a dangerous weapon. It seems impossible to maintain that the evi- dence was admissible. The facts, if proved, would not furnish even a colorable pretence for the attack on the deceased. Although it is never necessary that the evi- dence offered should be conclusive, it is always essen- tial that it should have a direct tendency to establish the point in controversy. A different rule would lead to the most mischievous consequences in trial by jury. By the Chief Justice : My brethren having arrived at different conclusions upon some of the material ques- tions involved in this case, it becomes necessary that I should express my views, which I will proceed briefly to do. . ^ * * * % * * -» * * ■* "With respect to the exclusion of the evidence on be- half of the prisoner, of a riotous assault, upon his dwell- ing upon, the night of the previous Saturday (seven days previous), and of the threat to return and repeat it, it may be proper to say a word. This proof was offered vnth a view to show that the prisoner had some ground for the apprehension of violence upon his dwelling and 804 SYLLABUS. inmates, when the deceased and his companions first appeared and commenced beating at the door ; and that, under the influence of it, a degree of resistance was ex- cusable, which might otherwise be considered dispropor- tioned to the actual danger. That the law regards this sort of palliation for an excess of resistance in case of an unlawful assault upon the person or property of the citizen, is not denied ; the only question here is, whether the proposed proof brought the case within it. If I had been sitting upon the trial, I would have admitted the evidence ; though I cannot but see, looking at the whole case, that it could not possibly have had much eifect upon the minds of the jury. If the new trial turned upon it, I might hesitate before granting it. It has already appeared that some of these rioters were subsequently admitted as guests in the house — a fact that goes far to satisfy the mind that no well-founded apprehension ex- isted. New trial granted, hut principally upon other grounds. CAEEOLL V. THE STATE. [23 Ala., 28.] Supreme Court of Alabama, June Term, 1853. William P. Chilton, Chief Justice. David G. Ligon, greoege goldthwaite, John D. Phelan, Lyman Gibbons, Associate Justices. Defence against felonies — Forcible trespass — Defence against- ASSAULTS IN THE HABITATION — RbTKBATING — RuLE AS TO EXTENT OP PROTECTION OP DWELLING. 1. The rule of common law is, that a man may repel force by force in defence of his person, habitation or property, against one who manifestly endeavors, by violence or surprise, to commit a knOwn felony, such as STATEMENT OJF THE FACTa. 805 Tape, robbery, arson, burglary, or the like ; and in these cases, he is not obliged to retreat, but may pursue his adversary until he has freed him- self from all danger. [Ace. Selfridge's case, a«■ Associate Justices. Benjamin F. Gbaves, ) KlOTODS ATTACK UPON HABITATION — EVIDENCE — RbS GESTiE— JuSTIFIABUE HOMICIDE — Defence of parent by child — ^Appearances of dan- ger—Killing IN DEFENCE OF HABITATION. 1. On a trial for homicide, where it appeared that the riotous assembly (of which the deceased was one) gathered at the time, grew out of and was connected with one which had assembled there the night before, and with the same object, — it was held that all the proceedings and objects of both, gatherings, together with the provocation to the defendant and his acts, constituted together one entire transaction. [See Rector's case, ante, p- 795; Meade's case, ante, p. 798.] 2. The homicide haying resulted directly from said assemblages, and their riotous conduct, it was the right and duty of the prosecution to show the transaction as a whole, its nature and its objects, whether tending tO' show the guilt or innocence of the defendant. [Maher v. People, 10 Mich., 212 ; Brown v. People, 17 Mich., 429.] 3. Whether the prosecution failed to do so or not, it was the right of the defendant, either by cross-examination or by his own witnesses, to go fuUy into all matters thus constituting the res gestae, and to show any act or dec- laration of any one of either assemblage, in furtherance of the common ob- ject, or in reference to it, from its inception to its close — the combination once being shown. 4. A witness for the prosecution, (one of the rioters,) having testified fully in reference to the proceedings of the first night, and that defendant had confessed to having struck deceased on the second night, denied, on cross-examination, that he had stated to different persons soon after, that he was present as a "horner," but was a mere looker-on, and took no part in the matter whatever. The Court refused to permit the defendant to contradict said testimony. Held, that said statements related to the res oestcE, and their contradiction was. competent. [Ace. Goodrich's case, ante, p. 532.] 5. There is no positive rule for the definition of justifiable homicide. SYLLABUS. 827 It must depend upon the circumstances and surroundings of each case. [Aco. Cotton's case, ant -, p. 316 ; Rohert Jackson's case, ante, pp. 481, 482.] 6. It, from the defendant's knowledge of his mother's peculiar physical condition, he had reason to believe that her life was endangered by the riotous proceedings, and if the rioters were informed of her condition, or if all reasonable or practicable efforts had been made to notify them of the fact, it was suflEicient to excuse his conduct toward them to the same extent as thougli tlie danger to her life had resulted from an actual attack upon her person, or as though in the like danger from an attack upon himself; and he was justifiable in using the same means of protection in the one case as in the other. [See authorities cited in note, ante, p. 750.] 7. If the noise and tumult of the rioters prevented defendant giving them notice of the danger to his mother, he was excused from doing so. 8. The defendant was justifiable in acting for his defence according to the circumstances as they appeared to him; and if from those circum- stances, he believed there was imminent danger of death, or great bodily harm to himself, or any member of his family, and he had tried all reason- able means which would, under the circumstances, naturally occur to a humane man to repel the attack, he might resort to such forcible means, even with, a dangerous weapon, as he believed to be necessary for protec- tion ; and if such means resulted in the death of any of the supposed assail- ants, the homicide would be excusable. [Ace. Hurd's case, post; Pond's case, a7ite, last case ; Carroll's case, 'ante, p. 804 ; Meade's case, ante, p.798 ; Sloan's case, ante, p. 517, 6th res., and references.] Error to Oakland Circuit. The defendant was tried and convicted for the homi- cide of one Elias Cowles. Upon the trial, the people offered proof, tending to show that a few days prior to the 17th day of Decem- ber, 1867, the defendant, John Patten, who was then re- siding in Highland, in said county, got married to a Miss Sarah Grow ; that on the night of the 17th, Luther Mills, George Mills, James Lockwood and others, to the num- ber of from eight to fifteen, got together and went to said respondent's to " horn " him. That they went there in the night time, between nine and ten o'clock; that one of the party had a gun ; others, tin horns, cow-bells, etc ; that they went in upon the premises of said Patten, who was then living upon a farm with his father and mother ; and commenced their " homing " by shooting the guns, blowing the horns, ringing bells and yelling, and soon after defendant came out and ordered them off, and they all ran off. It further appeared, that defendant 828 PATTEN V. THE PEOPLE. heard that the horners proposed to visit his house the next night. The people further offered proof, tending to show that Eli-as Cowles, the deceased, on the following day, made preparations to go the next night to " horn " the pris- oner ; that he met with some fifteen or twenty others, and on the night of the 18th, was elected captain ; that they had guns, tin pans, a horse fiddle, and other instru- ments to make noises with ; that they had seven or eight guns, army muskets, so-called, and shot-guns ; that one -of the party had a shot-gun loaded with powder and :shot, which had been loaded a few days before to shoot rabbits with, and that the boy who had this gun, fired it ■off" in the air after they got to Patten's ; that they went into the yard of the premises of defendant, and there fired their guns into the air, and blew their horns, rang their bells, and made as much noise a» they could upon these instruments ; that they passed from the road into the yard through a large gate ; that they walked along still without making any noise, until the word was given, ' and then all the guns were to be fired at once, and then the other noises to commence; that Elias Cowles re- quested William Lee, one of the party, and a witness, to give the word, as they, the Pattens, would not be so likely to know his voice ; that he, William Lee, did ^ive the word, and all the guns were fired ; that the said Cowles had a gun ; that he (Lee) had a joint of a flute, ^nd blowed on it ; that there was considerable yelling ; that after the noise had been going on a few minutes, -John Patten came to the door, near where they were, but said nothing; he went back into the house, and soon came out and went towards Elias Cowles, who was stand- ing facing him, with the butt of his gun on the ground ; that John Patten ran up to him ; that said Lee heard a blow ; that he looked and saw Elias Cowles down on his hands and knees; that Patten struck a second blow; that he then saw that he had an axe; and this blow struck Cowles on the head and knocked him clear down ; •that the witness hallooed, " For God's sake, don't let STATEMENT OF THE CASE. 829 him kill this man," and stepped towards the prisoner, and he ran back into the honse; that Cowles got np, picked np his hat and his gun — some one asked him if he was hurt ; he said he guessed not much, but he must go and get a drink of water ; that he died next day from wounds received that night. The prosecution asked Lee, under objection: " Did you go to Patten's for any other purpose than to ' horn ' Patten ? " The Court overruled the objection and admitted the evidence, and defendant excepted. The counsel for the defendant asked the people's wit- ness, on his cross-examination, if Cowles did not tell him that the boys running away the night before, was a cowardly act, and that night they were going to get a company together, and go there and stand their ground. The prosecution objected, and the Court sustained the objection. On the part of the defendant, it appeared that he re- sided with his father and mother, who were aged and in- firm people ; that the old lady was quite feeble, and had for many years suffered from palpitation of the heart, and also from spells of dizziness ; that any unusual ex- citement brought on the palpitation of the heart, and any overdoing or prostration was likely to be followed by attacks of dizziness. That the defendant, on being aroused by the noise out of doors, went down stairs ; that his mother was in great terror lest violence should be done. That she begged him to drive them off; that he then stepped to the door and ordered them off; they paid no attention to it ; the .noise kept on ; he stepped to the door again, and took the axe and stepped out ; and several voices cried out, " Shoot him, damn him, shoot him ;" that as he stepped out towards them, the crowd saUied on to him, and he was struck with a gun or other weapon ; that he struck deceased, and then went into the house, and that several gun wads were fired through the open door. 830 PATTEN V. THE PEOPLE. The counsel for the prisoner submitted several re- quests in writing, and asked the said Court to charge thereon, among which were the following : First — " That private persons may forcibly interfere to suppress a riot or resist rioters ; and although a riotous attack be not a felonious one, yet, if the riot be directed against the property or the house of the person who resists it, in making such resistance he has a right to the use of such means as will make the resistance effectual ; and if, in making such resistance effectual, one of the rioters be necessarily kiUed, the killing will be excusable homi. cide." The Court refused, but did instruct the jury "that if the rioters were there upon the premises of the pris- oner, and did no injury to the property, and did nothing but make their noises, it would be but a mere trespass, and the owner could not eject them or expel them by force, to the extent of taking life, unless to prevent some felony about to be committed or attempted by the riot- ers, or to save life or limb." The following requests to charge were all refused and ■excepted to : Second — " That persons have a right to the peaceable possession of their premises and property, and if, while in the peaceable possession of such property, a riotous assemblage takes possession of such property in the night-time, and undertakes to maintain such possession by force, the owner may repel such riotous assemblage by force, and if, in making such resistance effectual, one of the rioters be necessarily killed, the killing will be ■excusable homicide." Third — " That the law of self-de/ence is a law of na- ture. It extends not only to the person himself, but to those who bear the relation to him of parent, wife, and it also extends to his house, called in the law his ' castle,' and a person may make effectual this defence ; and if, in making this defence, it becomes necessary to take the life of the aggressor, it will not be felonious, but will be excusable homicide." STATEMENT OP THE CASE. 831 Fourth — " That if, from all the evidence and circum- tBtances proved, the jury find that the prisoner had reas- onable grounds to believe that there was, before he struck the blow, a design to commit any felony upon his house, or upon any member of his family, and that the deceased was either principal in such design or pres- ent as accessory, the killing of the deceased will be ex- cusable homicide, although it afterwards appear that no felony was intended." The Court refused, except with the following qualifi- cation and amendment, to- wit : after the words, " mem- bers of his family," insert these words, " and the dan- ger imminent," and at the end of said request, add the words, " provided he first used all other means in his power to prevent the accomplishment of the supposed intended felony." Fifth — " That the prisoner had a right to judge, and upon the facts and circumstances which surrounded him, a.s they appeared to him at the time of the homicide ; and if, from all the evidence, the jury find, that the hom- icide was committed in repelling an unlawful and ma- licious assault upon his dwelling-house, and he used only reasonable and necessary means to prevent it, the act of the killing will be excusable homicide." The Court refused, except with the following qualifi- cation and amendment, to-wit : after the words, " ap- peared to him at the time of the homicide," insert the following words, "but at his own peril; and it is the province of the jury to determine, from all the facts and circumstances, whether the accused had reasonable cause to apprehend imminent danger to life or limb, or that a felony was about to be committed." Sixth — " That if the jury shall find that the prisoner was laboring under a reasonable apprehension that his mother was so affected, by the riotous assemblage, that she was likely to die, or to receive grievous bodily harm, and he could not remove the rioters from his premises vdthout force, and by resort to force the deceased was killed, the kUling will be excusable homicide, provided 832 PATTEK V. THE PEOPLK no more force was used than was necessary, nnder tlie circumstances, as they appeared to the prisoner at the time, in repelling the riotous assemblage." After the Judge had concluded his general charge to the jury, he further charged, that a riot was not a felony^ but only a misdemeanor. The defendant was convicted of manslaughter. M. E. Crofoot, for plaintiff in error; DwigM May, Attorney-General, for the people. Christianot, J., delivered the opinion of the Court : The evidence on the part of the prosecution, as well as that on the defence, shows very clearly that the riot- ous assembly, which gathered about the house of the defendant, on the night of the homicide, grew out of, and was directly connected with, that which had assem- bled there the night before, and had the same object in view : that Cowles, the deceased, on the day intervening, went around to several boys and young men, to induce them to go the next (second) night ; that he was active in getting up the second riotous assemblage, and was elected their captain. All the proceedings and objects, therefore, of both assemblages, the provocation thereby to the defendant, and his action in opposition to them, constituted together one entire transaction, or the res gestcB. And it was also clear that the homicide, what- ever the legal character, resulted from these assemblages, and their riotous conduct, and would not otherwise have occurred. It was not only the right, but the duty of pros- ecution, to show generally the transaction as a whole, its nature and its objects, whether its tendency should be to show the guilt or innocence of the defendant. Maher V. The People, 10 Mich., 429 ; Brown v. The People, 17 Mich., 212. This was not only necessary in fairness to the prisoner, but to enable the jury, from a view of the whole, to estimate and apply each particular item of evi- dence which might be adduced in any stage of the case. But whether the prosecution did this or not, it was the clear right of the defendant, either by cross-examination, CEOSS-EXAMHSTATION — RES GESTiE, 833 or by witnesses introduced in Ms defence, to go fully into all matters thus constituting the res gestce. He could not be bound by the showing on the part of the prosecu- tion, but was at liberty to show that the transaction as a whole, or in any of its parts or purposes, was different from that shown by the prosecution. And for this pur- pose, it was competent for him to show any act or decla- ration of any individual of either assemblage, in further- ance of the common obj ect, or in reference to it, from the inception to the close of the transaction ; their combina- tion or concert having already sufficiently been shown. The defendant undertook to do this by the cross-ex- amination of the prosecutor's witnesses ; and the pro- posed cross-examination was strictly legitimate, under any rule ever applied to cross-examination, as it related directly to matters called out on the direct examination. The prosecutor's witnesses, some of the rioters them- selves, had already giv6n evidence, tending to show, that the only object of the rioters was, to go upon the de- fendant's premises for the purpose, as they expressed it, of "horning the defendant," who had lately been mar- ried, and that they contemplated no violence nor injury to person or property. The defendant offered to show, on cross-examination, that at the time the rioters made the arrangement to assemble the second night on the de- fendant's premises, their running away the night before was talked of by them, and was called a cowardly act ; that they were going to get a company together that (second) night, who were not afraid, and would stand fire, and stay on the premises, and horn the defendant, whether he liked it or not ; and that they would not go off the premises or be driven off. This cross-examination the Court erroneously refused to permit ; and the error would not have been less, had the defendant offered to show the same facts by witnesses of his own. The Court equally erred in refusing the de- fendant the right to show that Cowles, the deceased, had said substantiallythe same thing to one of the witnesses on the part of the prosecution. 834 PATTEN V. THE PEOPLE. Henry Butler, who was one of the rioters on the first night, (though not upon the second), and who had testi- fied fully on the part of the people, in reference to the proceedings of that night, and had also testified, that defendant had confessed having struck the deceased three times on the last night, was asked on cross-ex- amination, whether he did not, at the house of Mrs. Bar- ret, a few nights after, state to her, that he was not there the first night as one of the company of the horners, but that he happened there as a mere looker-on, and took no part or lot in it whatever ; to which he answered in the negative. Similar questions were asked him as to simi-. lar statements to • other persons — all which he denied. These questions were avowedly asked for the purpose of laying a foundation for impeaching him, by showing that he had made statements out of court in reference to the matter, different from those now made under oath. The Court, holding that such statements, if made, re- lated to matters wholly collateral, and not to the res gestae, refused to allow the defendant to contradict him, by showing that he had made the statements which he denied having made. This, also, was erroneous. The statements related to the res gestw, and the proposed contradiction, if shown, would have tended seriously to weaken his credibility. Various questions were raised upon the charge to the jury, and several special requests were made by defend- ant to charge upon specific points, some of which were refused, or charged in a modified form ; and some were based upon hypotheses, not warranted by any evidence in the cause. We think it better to indicate what should have been the principles of the charge, as a whole, upon the points ih dispute, than to consider the detached parts presented by the several requests to charge, which would tend rather to confuse, than elucidate the real questions in- volved. No fault seems to have been found with the charge, as it related to the distinction between murder in the HOMICIDE IN SELF-DEFENCE. 83r- lirst and second degree, or between murder or man slaughter. The object of all the defendant's special re- quests was, to obtain from the Court a charge, which should authorize or require the jury, upon certain sup- posed states of facts, to find the killing excusable homi- cide. A correct idea of excusable homicide is not, perhaps, easily expressed by a brief abstract definition, without special reference to the facts of particular cases. We accordingly find the latter more adopted in all the books. -It has been thought safer to illustrate by particular in- stances, than to undertake to define, in advance, all the particular elements or combinations of facts which may render homicide excusable. Of course, the enumeration of particular cases, does not exclude any others falling within the like principles. But the principles which underlie and result from all the cases in which the homicide has been held excusable in self-defence, or in defence of one's family, or persons standing in particular relation to him, or of his prop- erty, are so fully and accurately stated in the opinion of my brother Campbell, in Pond v. The People," 8 Mich., 150, that an attempt to enumerate them here, would be a mere repetition. The principles there laid down, ap- ply equally to the present case, upon certain states of fact, which it was competent for the jury to find from the evidence. That case, however, differed from the pres- ent, in certain important particulars. There, an actual attack upon the defendant's dwelling was going on, and the rioters were in the act of demolishing it, and a ser- vant of the defendant, then in the house, was being violently and, to all appearances, dangerously assailed, when the fatal shot was fired. In the present case, no actual attack had been made upon the defendant's house, nor forcible attempt to en- ter; and, unless the defendant, when he stepped out. of the house with the axe, was, as in his statement he claimed to be, actually struck by some one or more of '■Ante, last case. 836 PATTEN V. THE PEOPLE. the rioters, there was no actual attack made on the de- fendant, or any one of his family. There was, however,, evidence tending to show that, when the door was stand- ing open, and the defendant and his father and mother were ordering the rioters off, the wads from some of the guns were fired into the house. The evidence, also, tended to show, that the defendant knew or understood that the general and original object of the rioters in as- sembling there, was to annoy him and his family by the blowing of horns, ringing of bells, firing of guns loaded only vdth powder and wads, and by other noises, rather- than personal injury to himself or any of his family. But there was also evidence that, before the defend- ant stepped out, there were threatening cries among the rioters "to bring him (or fetch him) out," or to "bring or fetch them out," which must have referred to the de- fendant, and perhaps to his wife, and possibly to his father and mother. Considering the case first, with reference only to the facts existing prior to the time when the defendant went out with the axe, and without reference to the peculiar effects produced by the conduct of the rioters upon his mother, there was nothing, I think, in the evidence, fairly tending to show a state of facts, which would justify or excuse the defendant in rushing out and attacking any of the rioters with an axe, or other dangerous weapon, for the purpose of compelling them to desist or leave, though he might have been excused for attempting tO' drive them off by force, and, even by blows, with any instrument not calculated to endanger life or limb. But, though, from the sudden, violent and capricious impulses to which an excited mob is always subject, danger may always naturally be apprehended, especially about a man's dwelling at night, whatever the original object of the assemblage may have been, and no one can esti- mate the nature or extent of the danger — yet, until some ' actual violence had been done, or attempted, in this case against either the house, or its inmates, the necessity which alone could excuse taking the life of any of the DEFENCE OF HABITATION — EIOTOUS ATTACK. 837 ^assailants, had not yet occurred, and might never occur. And, though the defendant had the right to act under the circumstances as they appeared to him, yet, up to this point, (without reference to the defendant's mother), there was nothing in the circumstances which fairly tended to show that he could have believed the dire necessity to have arisen. We will next enquire, how far the case may be af- fected by the peculiar effects produced upon the defend- ant's mother by the conduct of the rioters. There was evidence from which the jury might have found that, owing to the feeble health of the mother and her peculiar infirmities, the fear and excitement caused by the conduct and threats of the rioters produced upon her alarming effects, from which the defendant might well have apprehended her speedy death if such conduct were allowed to continue. But to render this available to the defendant as an excuse for the homicide, the jury should also find that the rioters were informed of this condition of the mother, and the effects produced by their conduct ; or that every reasonable and practicable effort had been made to notify them of the facts — as suoh are not the ordinary effects of such causes upon people gen- erally, and, therefore, would not naturally be anticipated by the rioters. But, if they had such notice, or the defendant was prevented from giving it, by the noise and tumult of the rioters ; then I can see no sound reason why the danger to the mother from their conduct, should not have excused the conduct of the defendant towards them, to the same extent as if the danger to her life had resulted from an actual attack upon her person, or the like danger to the defendant from an attack upon him. And the defendant would, I think, have the right to resort to the same means of protection in the one ■ case as in the other. What these means are, in what I contingency they may be used, and how they are to be judged of by the defendant, will be considered under £he next head. There was evidence — and the statement of the prisoner 838 PATTEN V. THE PEOPLE. made on the trial must for this purpose Tbe treated as' such — from which the jury might have found, (as sup- posed in part of the charge given by the OOurt Tbelow) that the defendant took the axe from the house for the purpose of self-defence, and stepped out of the door, for the purpose of inducing the rioters to leave, or of dispers- ing them ; and that, as he stepped out, the crowd cried out, " kill him, damn him, kill him," and that rushing towards him, some one or more of them hit him with a gun or cluh or other weapon. If this hypothesis should be found to be true, instead of the charge given by the Court, the jury should, I think, have been told substantially,, that the defendant was excusable for acting according to the surrounding circumstances as they appeared to him: and if, from these circumstances, he believed there was imminent danger of death or great bodily harm to him- self or any member of his family, then, if he had already tried every other reasonable means, which would, under the circumstances, naturally occur to an honest and hu- mane man, to ward off the danger or repel the attack, he might resort to such forcible means, even with a danger- ous weapon, as he believed to be necessary for protec- tion ; and if such means resulted in the death of any of the supposed assailants, the homicide would be excus- able. It is not to be forgotten that the rioters assembled there for an illegal object ; for the purpose, by their own confession, of a wanton and unprovoked insult and de- fiance to the defendant and his family ; that the unpleas- ant, and, as it turned out, the terrible crisis, was forced upon the defendant against his will, by their criminal conduct. And while provocation, as such, cannot lender the homicide excusable ; yet, in estimating the nature and imminence of the danger, in the choice of means to avoid it, or the amount of force, or kind of weapon to be used in repelling it, the excitement and confusion which would naturally result from the surrounding circum- stances, for which the rioters alone were responsible,, should not be overlooked. To require of the defendant. DEFENCE OF HABITATION — EIOTOUS ATTACK. 889 wMle under a high degree of mental excitement, induced by their wrongful and criminal conduct, and without his fault, the same circumspection and cool, deliberate judg- ment, in estimating the danger or the choice of means for repelling it, as we, who are unatfected by the excite- ment or the danger, may new exercise in contemplating it, would be to ignore the laws of our being, and to re- quire a degree of perfection to which human nature has not yet attained. Of the weight a jury should give to these considerations, no safer standard can be found than their own individual consciousness, and the considera- tion of what they, with the honest purpose of avoiding the danger, without unnecessarily taking life, might, under the circumstances in which the defendant was placed, be likely to do. As no fault was found with the charge, in reference to the distinction between murder in the first and second degree, or between murder and manslaughter, it is unnec- essary to consider the phases of the case which might call for a charge upon those questions. A new trial must be granted. *********** The other justices concurred. New trial granted. NoTB. — See further, as to riotous attacks upon the habitation, Temple V. The People, 4Lansmg, 119. 840 HURD V. THE PEOPLE. HURD V. THE PEOPLE. [25 Mich., 405.] Supreme Court of MicUgan, October Term, 187S. Judges. J. P. Chbistiancy, J. V. Campbell, T. M. COOLEY, B. P. Graves, Defence in habitation— Excusable homicide— Manslaughter— Cool- ing TIME— RES GBST^ - PROSECUTION TO PRODUCE ALL ATTAINABLE EVIDENCE- Character of deceased for violence— Dying decla- rations—Declarations OF deceased after being shot— Acting UPON APPEARANCES OF DANGER. 1. Ill this case the prisoner and the deceased had an altercation about the alleged ill-treatment by the prisoner, of a boy at the supper table of the prisoner, and the deceased, who was much the larger and apparently the stronger man, seized the prisoner by the lapels of the coat and shook him several times, and threw him on the ground; and the prisoner thereupon went mto his house and loaded his pistol, and a few minutes afterwards, came out to where the deceased was at work and requested him to come into the house and ask the women folks whether he had abused the boy ; and the deceased threw down his work and ran after the prisoner in a threatening manner, but without any weapon in his hands, and pursued the prisoner into his house, although the prisoner at the threshold com- manded him not to enter ; and continued the pursuit, until the prisoner had run into a room irom which there was no egress, whereupon he turned and shot the deceased, then but four or five feet from him ; and, the de- ceased still advancing, he shot him a second time ; of which wounds the deceased died. Held, that this was not murder in either degree, but was a case of excusable homicide or manslaughter; — excusable homicide, if the jury were satisfied, that the defendant being in his own house, had reason to believe, and did believe, from Hubbard's actions and manner, and what had already taken place, that it was necessary to shoot the assailant to save his own life, or to protect himself from danger of great bodUy harm ; manslaughter, if he did not so believe, but committed the act under a less degree of fear, and the excitement and confusion caused by the first as- sault, coupled with the then threatened repetition of the attack, and that but for these, he would not have fired the fatal shot. 2. Not more than half an hour, and probably not more than fifteen minutes, having elapsed between the first and second parts of the trans, action, as above stated, it is held, that the whole is to be taken together as one transaction, and as constituting the res gesioe. It is not proper to treat them as two distinct transactions, with an interval, for the purpose of raising the question of cooling time. SYLLABUS. 841 3. The duty of the prosecution in criminal cases to present all the at- tainable evidence of the transaction stated and discussed. [See Barfield's ■case, ante, p. 624, and note e.] 4. Where a person is assailed and kUls his assaUant, it is competent for him to prove on trial for the homicide, that the deceased was a man of high temper and quarrelsome disposition, and known by him to be such at the time of the killing-; for such knowledge on the part of the assailed is a most important circumstance, from which he is to estimate the proba- fbility and the character of the attack, and what course of conduct he is to •expect of the assaUant, as well as the means which, at the moment, arc aiecessaxy to save himself from immediate danger ; and the exclusion of such evidence in such cases is a serious error. [Ace. Copeland's case, anti,Tp. 41; Robertson's case, ante, p. 151; Cotton's case, ante, p. 310; -Kippy's case, ante, p. 845 ; Monroe's case, ante, p. 467 ; Garbutt's case, 17 Itlich., 16 ; Eobert Jackson's case, ante, p. 486 ; Little's case, ante, p. 487; Keener's case, ante, p. 546; Quesenberry's case, ante, p. 549, note; Tackett's case, ante, p. 615 ; Battle, J., in Barfield's case, ante, p. 625 ; Pritohett's case, a^ite, p. 635 ; Franklin's case, ante, p. 641 ; Lamb's case, 'Unte, p. 646 ; Collins' case, ante, p. 595, note ; State v. Hicks, ante, p. 680, note; State v. Keene, ante, p. 681, note; Payne v. Commonwealth, ante, p. 683, note ; Commonwealth v. Seibert, ante, p. 686, note ; State v. Smith, ■ante, p. 688, note ; Fields v. State, (Ala.), ante, p. 691, note. Contra, Wes- ley's ease, ante, p, 319 ; Wright v. State, ante, p. 484, note ; Field's case, ^Maine), ante, p. 629 ; State v, Tilly, atite, p. 665, note ; Bottoms v. Kent, ■ante, p. 666, note ; State v. Hogue, ante, p. 673, note ; State v. Thawley, ■ante, p. 675, note ; State v. Chandler, ante, p. 676, note ; Commonwealtli V. York, ante, p. 676, note ; Commonvrealth v. Hilliard, ante, p. 678, note ; ■Commonwealth v. Mead, ante, p. 679, note ; State v. Jackson, ante, p. 679, aiote ; People v. Mui'ray, ante, p. 681, note ; People v. Lombard, ante, p. 681, note ; People v. Edwards, ante, p. 682, note ; Wise v. State, ante, p. 683, note ; State v. Dumphey, ante, p. 684, note ; Reynold? v. People, ante, p. 685, note ; Commonwealth v. Ferrigan, ante, p. 688, note.] 5. Dying declarations. 6. It is competent to show that the deceased, after the shooting, and while he believed he was going to die, had an interview with the defend- :ant, at which the shooting was talked over, and then and there acknowl- ■edged that he was to blame, and asked defendant to forgive him. [Contra. Adams' case, ante, p. 211.] 7. One who is threatened with an immediate attack by an assailant, is authorized to act, and his actions are to be judged, in the light of the cir- cumstances as they appeared to him at the time ; and if the assailant follows him up in a threatening manner, in order to frighten him, and so as to make him believe that a violent attack is imminent, it is immaterial -whether a forcible attack was actually intended or not. [Ace. Patten's ■case, ante, last case ; Pond's case, ante, p. 814 ; Carroll's case, ante, p. 804 ; .Sloan's case, ante, p. 517, 6th res., and references.] Error to Ionia Circuit Court : Wells & Morse, and John C. Blanchard, for the plain- 842 HUKD V. THE PEOPLE. tiff in errror ; DioigM May, Attorney-General, for the people. The plaintiff in error (defendant below,) was tried in the Ionia Circuit Court, upon an information charging- him with having murdered Chauncy M. Huhbard. The jury, by their verdict, found him gliilty of murder in the second degree ; upon which, judgment was rendered against him, and he now brings the case to this Courts upon writ of error and bill of exceptions. For a full understanding of the questions raised by the exceptions, it is proper to state the nature of the whole transaction, including the material circumstances which led to, accompanied and followed the homicide. It was admitted, and not disputed on the trial, that Hubbard was shot by the prisoner, and that he died from the effects of the wounds caused thereby. The only questions, therefore, which could arise, were, whether the circumstances, under which the shooting took place, Avere such as to render the shooting justifiable or excus- able, and, if not, then, whether they were such as would negative malice aforethought, and reduce the offence to manslaughter. Hubbard was much the larger, and, apparently, the stronger man of the two. Hurd had been seriously in- jared some five or six years before, by a log rolling over him, and seems not to have fully recovered, but was, in consequence, easily excited, his nervous system some- what shattered and unstrung, and not fully under his control. They had always been on good terms with each other, with no evidence of ill-feeling from Hurd, though there was some slight evidence of previous ill-feeling on the part of Hubbard. The transaction occurred on ..ae evening of the 8th of August, 1871, in and near the house of Hurd. Hubbard had, for some time, been at work building a barn for Hurd, and, having been absent that day, returned about supper-time, while Hurd and his family and some work- men were at supper, and, without coming to supper, went to work at the barn, a few rods from the house. OPINIOK — THE CASE STATED. 84? At tte supper-table tliere were present, besides Hurd, himself, several hired men, some working for him, and some upon the barn for Hubbard, and several women and a child. A slight difficulty occurred at the supper table, artd some words passed between Hurd and a young man or boy, by the name of Mapes, who was at work for him, in reference to helping the boy to a piece of pie, the boy, or some other person, as it would seem, seeking to help himself, and not succeeding very well. Hurd pro- ceeded to take the pie and help him, at which some re- mark was made by Mapes, to the effect, that " perhaps he (or the other person helped, for it is not certain,) would prefer to help himself;" at which, Hurd replied, in sub- stance, "You are in my house and at my table, and if you live to be older, you will know more than you do now." At this,'"the boy Mapes took offence, left the ta- ble and went out to the barn, (a few rods off,) and re- ported to Hubbard what had taken place ; Hurd, and the other workmen, almost at the same time, being through supper, going out also. Immediately after this, Hurd and Hubbard are seen coming from the road toward the house, apparently in earnest conversation, the first words heard being from Hubbard, saying, " the boy has no friends here to take care of him," (or, to take up for him.) Jerome Evans is present, (who was at the supper-table and saw what occured there,) and Hurd turns to him and says, " Jerome, did I abuse the boy ? " He repeats the question, but Evans makes no answer. Hubbard then, steps up to Hurd, as it would seem, in an excited man- ner, and Hurd says, " do you think I am afraid of you,. Mr. Hubbard ? " to which, one witness, (Dow) says Hub- bard replied, saying, " I do not want you to be afraid of me," and the other, Evans, (for these having been the only two who saw the transaction at this stage,) says, Hubbard then, with his fists doubled, (though Dow does- not mention the fists,) got him by the lapels of the coat and shook him six or seven times, (as he himself af- terwards admits to several witnesses,) severely; jerking: or throwing him down. Evans then steps up and' says,. 544 HDED V. THE PEOPLE. 'Don't; I wouldn't have any fight here, Mr. Hub^bard, Oh ! don't ; I wouldn't." To this, Hubbard, acting, as Evans says, as if he was endeavoring to pick up a stick or a stone, (though Dow does not notice this,) rises up and comes towards Evans, saying, " Get right away, Jack, or I'll go through you like a yoke of oxen." Evans steps back a few paces ; Hubbard comes towards him. While this is going on, Hurd starts hurriedly for the house. Hubbard foUows him up in an angry manner, and says to Hurd, as the latter is entering the house, " Come back, Hurd;" to which Hurd replies, "No, you don't get me out there to shake me again ; " and, going into his house, locks the doors. He asks his vdfe where his pistol is, and goes in search of it, and not at once finding it, he takes his Spencer rifle in his hand. Dow comes to the door to come in ; Hurd, supposing it to be Hubbard, re- fuses to let him in, but being told it is Dow, lets him in and locks the d^or again. Dow goes to his supper, and Hurd, presently finding his pistol, loads it ; he then goes •out, having his pistol in his hand, leaving in the house his wife, two young ladies (his step-daughters), Mrs. Frear and her chUd, and Dow, who was eating his sup- per. Hurd goes out towards the barn, and calls to Hub- bard, saying, in substance, "Mr. Hubbard, if you are not satisfied, or if you think I abused the boy, come in and ask the women folks ; come, and ask Mrs. Hurd." Hubbard, who is engaged in ripping a board with his saw, •drops the saw and starts rapidly towards Hurd, (some saying that he ran, others, that he walked very fast) ; using his own language, as given by himself afterwards, he "went for him," "meaning," as he several times reit- erated after he was shot and expected to die, " to frighten him, or to scare him." Hurd retreats rapidly to the house, saying to him, " come and ask Mrs. Hurd, ask Mrs. Hurd." Hubbard is close upon him as Hurd en- ters the house, and coming on, in a threatening manner, directly towards him ; as Hubbard gets near, Hurd, look- ing back, tells him to stop, but he still advances, Hurd jstill telling him to stop ; hurries through a part of the OPINION — THE CASE STATED. 845 room where the family are (and where Dow was at his supper), into the door of the bedroom opening from this room, the door of which had no fastening, and, turning around, with one hand on the door, fires his pistol at Hubbard, then from three to six feet from him, and still advancing upon him ; this shot wounds him in the breast, and penetrates his lungs, but he does not stop ; Hurd retreats a little, and Hubbard advances and reaches for the pistol, but receives a second shot in the bowels ; he then puts his hand to his breast, saying, " you have hurt me, Charlie;" and turns to go out the front door, but this being locked, he goes out at the back door at which he had followed Hurd. in; goes out into the road, and up towards a neighbor's, Mr. "Wheeler's ; but, before get- ting there, is compelled to stop and lie down. As soon as Hubbard leaves, Hurd comes out and sends at once for the doctor, saying he had shot Hubbard ; he exhibits the greatest distress and sorr'ow, weeping and shedding tears; goes to Mr. Alderman, tells him what has hap- pened, giving him his pistol. He hurries to where Hubbard was lying, wants to take him back to his own house and take care of him, but Wheeler's being nearer, or Hubbard preferring to go there, Hurd goes there, gets a settee and assists in taking him there ; while there, with the physicians and neighbors around him, and under the belief that he will not recover, he at several times states the main facts of the occur- rence, fully admitting in all his statements, the assault he made upon Hurd, and the cause of it, as above stated, and fully admitting in all these statements, that at the time he followed Hurd into the house, he went fast, or in other words, that " he went for him," and in a threaten- ing manner, with the intention of frightening or scaring him, but to some of the witnesses, as they testify, he said he did not know whether Hurd told him to stop or not ; to others, as they testify, admitting that Hurd did order him to stop, and that, after the first shot, he was still "going for him " to get the pistol from him. The next day, (the 9th,) when Hurd came in, he called S46 HUBD V. THE PEOPLE. him, and said to him : " Charlie, we have always been friends ? " Hurd said " Yes," and they asked each other to forgive. Huhlbard died on the 10th. I have said that Hurd, when Hubbard was following, him up into the house, ordered him to stop, when at, or near the threshhold, and after he got in ; I have stated this because the testimony is so absolutely overwhelm- ing to this point, that if this distinct question had been left to the jury, and found in the negative, it would have been the proper if not imperative duty of the Court, promptly to have set aside the verdict : the people hav- ing called but two witnesses to what took place in the house. Dow, who was the nephew of Hubbard, and who saw the assault made by Hubbard out doors as well as in the house, and swears positively to Hurd telling Hub- bard to stop, and Mrs. 'Frear, who only saw what took place in the house, and who did not, or says she did not, hear this, though she admits that from the way Hubbard came in, she was frightened, expected a fight, that her child was frightened, and that she was much engaged in taking care of it, and trying to get out, while all the other women in the house, (three of them,) as well as Dow, swear positively that Hurd did repeatedly tell Hub- ' bard to stop and come no further, but that he kept on and was shot, as already stated. That she did not hear it under such circumstances, can hardly be said to con- tradict at all, the evidence of the others who did, or to be any evidence that Hubbard was not ordered to stop ; but however this may be, there was no controversy upon the facts, admitted and repeatedly declared by Hubbard himself after the shooting, and when he had given up all hopes of living, that he did follow Hurd up into the house in a threatening manner intending to scare or frighten him : in other words, to make him believe that he did intend again to attack him, and that in Ms own home, in the presence of his family. And Hurd had a right to act upon that belief, or upon circumstantces as they appeared to him— though Hubbard might not have intended actually to make the attack ; and if Hubbard DEFENCE IN ONE S HABITATION. 847 had been armed with a deadly weapon, this would have tended very clearly and strongly to show a case of ex- cusable homicide ; but, as he was not armed with a dan- gerous vreapon, the main question upon the evidence would seem to be, between excusable homicide and man- slaughter ; excusable homicide, if the jury were satisfied that Hurd being in his own house, had reason to believe, and did believe, from Hubbard's actions and manner, and what had already taken place, that it was necessary to shoot the assailant to save his own life, or to protect himself from danger of great bodily harm; man- slaughter, if he did not so believe, but committed the act under a less degree of fear, and the excitement and confusion caused by the first assault, coupled with the then threatened repetition of the attack ; and that but for these, he would not have fired the fatal shot. "What provocation and what degree of excitement or confusion of mind will reduce a homicide to manslaughter, as we.ll as the nature of the circumstances which will render it excusable, have been fully explained in Maher v. The People, 10 Mich., 212 ; Pond v. The People,* 8 Mich., 150, and Patten v. The People," 18 Mich., 314, (clearly rec- ognized in the charge in this case), that we do not deem it essential to go fully into these questions here. I have detailed the whole transaction or res gestae / and it must be considered a single transaction, at least from the first assault or attack upon Hurd out doors, to the final shooting of Hubbard. The witnesses difier as to the length of time intervening, some stating it to be not more than three minutes ; others, not more than twenty or thirty ; the weight of the testimony would make it less than fifteen minutes. It was entirely idle for the prosecution to attempt to divide this into two separate transactions : 1st. The assault upon Hurd out doors — a transaction which was, as they claimed, complete and ended when Hurd retreated into the house ; - and, 2d. An entirely new and separate transaction occurring in the house at the time of the shooting, and thus to raise Ante, p. 814. ^'Ante, last case. 848 HXJKD V. THE PEOPLE. the question of cooling time. The transaction was mani- festly one and entire, all its parts inseparably connected ; and when Hubbard followed Hurd up into the house,, threatening another attack, Hurd was authorized to, and manifestly must have construed his actions and inten- tions then with reference to, and in connection with, what had previously taken place out of doors. Now, it is quite manifest, and no one, in the face of the facts stated, would have the assurance to deny it, that if Hubbard had not made the first assault upon Hurd out doors, and then followed him up with the apparent intention of attacking him again, the shooting would not have occurred. These acts, in fact, constituted the provocation, without which, the act would not have been committed. The provocation may not have been sufficient, it is true, to excuse the act, or entirely take away its criminality ; that depends upon the question, whether, as already stated, the acts of Hubbard and the circumstances as they appeared to Hurd, under the ex- citement, haste and confusion of the moment, rendered it necessary, in his opinion, for the protection of his life, or to avoid grievous or dangerous bodily harm. The fact that he armed himself before going out the second time, when taken in connection with what preceded and what followed, cannot be considered as tending to show mal- ice, however strong may be its tendency to establish a case of manslaughter. His conduct showed that he was anxious to have the matter of the difiiculty with the boy, which had so excited Hubbard, fully explained to him ; and, for that purpose, wished him to enquire of the wo- men. His arming himself before he went to invite him to come and hear the explanation, would seem to have been only to protect himself against the rashness which he had reason to apprehend from Hubbard ; and, upon the evidence, there is no room for doubt, that had Hub- bard come in quietly and listened to the explanation, the difficulty would have been amicably settled. AU the evidence tends to show that, but for the foolish and reckless bravado of Hubbard, in following up in a threat- CONCLUSION FROM THE FACTS. 849 ening manner, so as to make him apprehend an instant attack, Hurd would never have fired. But there being no evidence of previous malice, and the contrary being shown, there was clearly no evidence in the case tending to show murder, either in the first or second degree ; un- less it be the evidence of Mrs. Frear alone, and not even her's, unless the whole transaction was such only as ap- peared by her testimony, to the exclusion of all the other evidence in the case. But, aside from the improbability of such a conclusion, the prosecution were not at liberty to -put the case to the jury upon any such hypothesis ; for, confessedly, the whole transaction did embrace much more than that shown hy her testimony. She only saw what occurred in the house ; she knew nothing of what had taken place out doors, and, therefore, contradicted nothing stated by other witnesses, as having occurred there. The prosecution had already, by Dow, their own witness, on his direct examination, proved the assault- made by Hubbard upon Hurd out of doors, and by him and Mrs. Frear, the occasion of it. They proved, also,, that Hubbard followed him up in a hurried and threat- ening manner, when he went into the house a second -time, and by Hubbard's own admissions, that this was done to scare or frighten him ; and these facts were un- contradicted and admitted. But Mrs. Frear spoke only of what occurred in the house, which, therefore, was con- fessedly but a portion of the transaction. Had what she testified to, constituted the whole transaction, her evidence would have had some tendency to prove the transaction to be murder, as she says she heard Mr. Hurd tell him to come in and ask Mrs. Hurd, and did not hear him tell him to stop and come no further ; still, even she admits, that from the way he came in, she was frightened and tried to get out doors with her child; tending to show, at least, that Hurd had some cause of alarm, and reason for acting hastily and without due consideration. But the prosecution can never, in a criminal case, prop- erly claim a conviction upon evidence, which expressly 850 HUED V, THE PEOPLE. or "by implication shows but a part of the res gestcB, or whole transaction, if it appear that the evidence of the rest of the transaction is attainable. This would be to deprive the defendant of the benefit of the presumption of innocence, and to throw upon him the burden of prov- ing his innocence. It is the res gestce, or whole transac- tion, the burden of proving which rests upon the prose- cution (so far, at least, as the evidence is attainable.) It is that which constitutes the prosecutor's case, and as to which the defendant has the right of cross-examina- tion : it is that which the jury are entitled to have be- fore them, and, " until this is shown, it is difiicult to see how any legitimate inference of guilt, or the degree of the offence, can be drawn." The prosecution, in a crimi- nal case, is not at liberty, like a plaintiff in a civil case, to select out a part of an entire transaction which makes against the defendant, and then to put the defendant to the proof of the other part ; so long as it appears at all probable, from the evidence, that there may be any other part of the transaction undisclosed, especially if it ap- pears to the Court that the evidence of the other portion is attainable. The only legitimate object of the prose- cution, "is to show the whole transaction as it was, whether its tendency be to establish guilt or innocence." The prosecuting officer represents the public interest, which can never be promoted by the conviction of the innocent — his object, like that of the Court, should be simply, justice; and he, has no right to sacrifice this to any pride of professional success ; and, however strong may be his belief of the prisoner's guilt, he must remem- ber that, though unfair means may happen to- result in doing justice to the prisoner in the particular case, yet that justice so attained is unjust and dangerous to the whole community ; and, according to the well-estab- lished rules of the English courts, all the witnesses present at the transaction should be called by the pros- ecution before the prisoner is put to his defence, if such witnesses be present or clearly attainable. See Maher v. The People, 10 Mich., 225, 226. The English rule goes STATE TO CALL ALL MATERIAL WITNESSES 851 SO far, as to require the prosecutor to produce all pres- ent at tlie transaction, though they may be the near rel- atives of the prisoner. See Chapman's case, 8 C. & P., 559; Orchard's case, Ih. (note), Roscoe's Cr. Ev., 164. Doubtless, where the number present has been very great, the production of a part of them might be dis- pensed with, after so many had been sworn as to lead to the inference, that the rest would be merely commu- tative, and there is no ground to suspect an intent to ■conceal a part of the transaction, "Whether the rule should be enforced in all cases, where those not called are near relatives of the prisoner, or some other special cause for not calling exists, we need not determine ; but, certainly, if the facts stated by those who are called, show prima facie, or even probable reason for believ- ing, that there are other parts of the transaction to which they have not testified, and which are likely to be known by other witnesses present at the transaction ; then, such other witnesses should be called by the prosecution, if attainable, however nearly related to the prisoner. But, (though no objection seems to have been made on the trial) we allude to this subject for the purpose of ■calling attention to the evident disregard on the trial of this case, of the rule laid down by this Court in People V. Maher above cited. According to the rule there laid down, and from which we see no reason to depart, the prosecution should have been put to call Jerome Evans, at least, who was present at the first assault, and took part in stopping the fray; as shown by the witness, Dow, on the part of the prosecution. In the very nature of the case, he was the people's witness, and should have been called by them, he being, as is evident, attainable, and subsequently sworn for defendant, and it appeared from his testimony that he heard the conversation leading to the first assault, at an earlier stage than Dow, and no relationship to, or complicity with the defendant being shown or pretended. We now proceed to the special exceptions. It la assigned as error that the Court allowed Abraham Alder- 852 HUED V. THE PEOPLE. man on the part of the people, to testify what the deceased said to him after the shooting, as to the manner in which the defendant called the deceased into the house, as evidence had already been given, tending to show that the deceased at the time of making the state- ment, was under the apprehension and belief of speedy death, and the statement related to an important part of the transaction. Connected with the shooting, we see no force in the objection. It is also alleged as error, that the Court declined to allow the counsel for defendant to examine Doctor Joslin, to show that after the shooting, while the deceased believed that he was going to die, the defendant and the deceased were present together, and talked the matter of the shooting over, and that the deceased then and there acknowledged that he was to blame, and asked defend- ant to forgive him. But this error (for it would other- wise have been an error), was cured by the witness himself stating what was actually said on the occasion alluded to, viz : that when Hurd came to the house where Hubbard lay, Hubbard called Hurd, and said, " Charlie, we have always been friends ? " Hurd said " Yes," and they asked one another to forgive. " I don't know," said the witness, " as he said anything in particular about who was to blame." The defendant, therefore, could not have been prejudiced, by the refusal to admit the pro- posed evidence when oflfered. But it is further alleged as error, that the Court refused to allow the defendant, to show by the witness, Jerome Evans, that the deceased was a man of high temper, and quarrelsome disposition, and known by the defendant to be so at the time of the shooting. This, we are satisfied, was a serious error, directly affecting the question of the defendant's guilt, and if the defendant when threatened with immediate attack by an assailant, is authorized to act, and his actions are to be judged from the circum- stances as they appeared to him at the time, as held by this Court in Pond v. The People," 8 Mich., 150, as ad- ' Ante, p. 814, CHARACTER O^F DECEASED FOR VIOLENCE. 853 .mitted by tlie Court in his charge, (a principle of natu- ral justice — which must never be overlooked in such cases), then it necessarily follows that the evidence offered was admissible, since the knowledge or belief of the prisoner that the person threatening him with an imrae- •diate personal attack, is a man of high temper and quar- relsome disposition, is a most important circumstance, from which he is to estimate the probability and the character of the attack, and what course of conduct he has reason to expect from the assailant, as well as the means which, at the moment, he may dfeem necessary to guard himself from the threatened danger. This must, in the nature of the case, be so with any man placed in the situation the defendant occupied at the moment' of the shooting. ■' And after what has already been said, it is hardly necessary to remark, that it is quite immaterial in this case, whether Hubbard actually intended to make a forcible attack upon Hurd or not, at the time he was shot; since from Hubbard's own repeated statements after being shot, he was following Hurd up in such a manner as to frighten him, which he could not expect to do, without making Hurd believe from his actions that a violent attack was imminent. The judgment must be reversed and a new trial awarded. Judgment reverse'' 854 GKESCHIA V. THE PEOPLE. GRESCHIA V. THE PEOPLE. [53 III., 295.] Supreme Court of Illinois, January Term,, 1870. Sidney Beeese, Chief Justice. Chaeles B. Laweence, I T,,„/t. PiNKNET H. Walkee, f -J^^suces. Combat in habitation — ^Lawful degree op force in expelling as- sailant. 1. Upon the triil of a party on the charge of murder, it appeared that the deceased went to the room of the prisoner for a lawful purpose, and wliUe there demeaned himself properly, though some altercation occurred between them, and hard words were exchanged. The deceased, however, left the room and proceeded down a stairway, remarking as he went, to the prisoner, " Go with all the money you have got ; hasn't your wife to beg every day?" To which the prisoner replied, "You go, you rascal, go." At this, the deceased turned to go up the stairs again in an angry mood,, when the prisoner said, "Come back, I will fix you." As the deceased advanced to the door of the prisoner's room, iniarmed, in the act of enter- ing, it being open, the prisoner seized a rolling pin, and wielding it with both hands, struck deceased three or four blows, fracturing his skull so- severely that he died therefrom the following day. Held, that the homi- cide was entirely inexcusable, and that the punishment assessed, to-wit, one year in the penitentiary, was much lighter than the jury would have- been warranted in inflicting. 2. It was not erroneous in such case for the Court to instruct the jury, that, in considering whether the killing was in defence of habitation, they should consider the attending circumstances, the conduct of the parties at the time and immediately preceding the killing, and the means and force used, as bearing upon that question. 3. And the jury might properly further consider, in determining whether the killing was in self-defence, whether the force used in repelling the deceased, in its amount and character, was not such as a reasonable mind would regard as unreasonable, under the circumstances. 4. If the use of a deadly weapon was not necessary, or apparently necessary, in order to prevent the deceased entering the room of the pris- oner, and committing, or offering to commit, an assault upon him, and he could reasonably and safely have avoided using the weapon, it was his duty to have done so, even though the deceased was returning to the pris- oner's room with a quarrelsome intent. [Ace. Carroll's case, ante, p. 804 ; Pond's case, ante, p. 814.] mSTEUOTIONS TO THE JURY. 855 5. Reins v. People, 30 111., 256, examined and distinguished from the present case. Writ of error to the Superior Court of Chicago. Indictment against Carl Gresur, alias Carlo Grreschia, for the murder of Stephania Langarmarsen. The cir- cumstances attending the homicide are stated in the opinion of the Conrt. On behalf of the prosecution, the Court instructed the jury among other things, as follows : 4. "The Court further instructs the jury, in the words of the statute, that if a person kill another in self-defence, it must appear that the danger was so urgent and press- ing, that in order to save his own life, or, to prevent his receiving great bodily harm, the killing of the other was absolutely necessary. "A bare fear of any of these offences, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge. 5. "The Court instructs the jury, that if they believe from the evidence beyond a reasonable doubt, that the deceased, Langarmarsen, and the defendant, Greschia, had a quarrel, with words, in or near the defendant's room, and on the stairs leading to said room ; and that the deceased, after going a part way down stairs, turned about and went up the stairs, as if going to said room to meet said defendant, with the purpose further to continue said quarrel, and that the deceased had ho weapon or dangerous instrument ; and that when the deceased got nearly to the door of said room, or to it, the defendant wilfully jintentionaUy and feloniously, struck the deceased several violent and severe blows on the head with the club mentioned by the witnesses, and shown in evidence ; and that such club was a dangerous and deadly weapon; when it was not necessary or apparently necessary, in S56 GEESCHIA V. THE PEOPLE. order to prevent the deceased from entering said room and committing or offering to commit, an assault upon said defendant, and when the defendant could have reas- onably and safely avoided using such club, in the man- ner aforesaid, then the jury should find the defendant guilty of manslaughter, if they believe from the evi- dence, that deceased died from the effects of such blows." The following instructions were given for the defendant, that portion in brackets being modifications of the in- structions asked : 1. "If the jury believe from the evidence, that the de- fendant inflicted the fatal blow upon the deceased in self-defence, while the deceased was manifestly intending and endeavoring, in a violent manner, to enter the hab- itation of the defendant, for the purpose of assaulting or •offering personal violence to the defendant, being therein, then the killing was justifiable, and the jury ought to acquit the defendant. [But the jury, in considering whether the killing was justifiable, on the ground that the killing was in self-defence, while the deceased was endeavoring, in a violent manner, to enter the prisoner's habitation, should consider the circumstances attending the killing, and the conduct of the parties at the tini,e, and immediately previous thereto, and the means used, j&ud the degree of force used by the prisoner in making what is claimed to be this self-defence, as bearing upon the question, whether the blows given were actually given in self-defence, or whether they were given in car- rying out an unlawful purpose. If the force used was unreasonable in amount and character, and such as a reasonable mind would have so considered under the circumstances, it is proper for the jury to consider that fact, in determining whether the killing was done in self- defence.] 2. " If the jury believe from the evidence, that just prior to his death, the deceased attempted, in a violent man- ner, to enter the dwelling of the defendant, for the pur- OPINION — THE CASE STATED. 857 pose of assaulting or oflfering personal violence to the defendant, being in said dwelling, or any other person dwelling or being therein, and that the defendant in '[reasonably] resisting such attempt of the deceased, un- intentionally and without malice killed the deceased, then the killing was justifiable or excusable, and the jury ought to acquit the defendant. [The jury, in con- sidering whether the killing was in defence of habitation, .should consider the circumstances attending the killing, .and the conduct of the parties at the time, and immedi- .ately previous thereto, and the means and force used, as bearing upon the question of whether the killing was in defence of habitation.] '" Yerdict, guilty of manslaughter, and punishment fixed at confinement in the penitentiary for one year, and judgment accordingly The defendant thereupon sued out this writ of error. Miller, Van Arman and Lewis, for the plaintiff in error ; Charles H. Heed, State's Attorney, for the people. Eeeese, Ch. J., delivered the opinion of the Court: The plaintiff in error was indicted in the Superior Court of the city of Chicago, for murder, and a verdict Tendered of manslaughter, and sentencing him to con- finement in the penitentary for one year, on which the Court entered judgment. The* points made here by the plaintiff in error, ques- tion the correctness of this finding, and also the ruling of the Court upon the instructions. As to the finding, we have examined with care, all the evidence in the record, and are constrained to say, it is of such a character, as to have justified the jury in im- posing a sentence upon the prisoner, much more severe than they did impose, for we are unable to see a single mitigating circumstance in favor of the prisoner in the whole case. The deceased was at the prisoner's room for a lawful purpose. He had been an inmate of his family, a 858 GEESCHIA V. THE PEOPLE. boarder in it, keeping Ms clothes there. His business or inclination induced him to leave Chicago for Kock Island, and while there, he wrote to one of the witnesses to get his clothes from the prisoner's room, and send them to him by express. This was not done, and after an absence of some weeks, deceased returned to Chicago, and went to the prisoner's room for his clothes, where some altercation occurred between them, and hard words exchanged. The deceased got his clothes, and was pro- ceeding down stairs with them under his arm, when the deceased said to the prisoner, " Gro with all the money you have got ; hasn't your wife to beg every day ? " To which the prisoner jeplied, "You go, you rascal, go." At this, the deceased turned to go up the stairs again, when the prisoner said, " Come back, I will fix you." As the deceased advanced to the door of the prisoner's room, «,nd was in the act of entering it, it being open, the prisoner seized a rolling- pin, and wielding it Avith both hands, struck deceased three or four blows with it, on his head, fracturing the skull, the fracture extending clear through from the orbital process to the occipital bone, inflicting a wound " past all surgery," and of which the man died on the following day. The deceased did not, as insisted by the prisoner's counsel, seek to enter the prisoner's room forcibly. He was there in the first place rightfully, to get his property which he had left there. The prisoner made no objection to his going there for that or any other lawful purpose, and while in the room he demeaned himself properly. He had no weapon, nor did he give any indications of a quarrel- some intent. When he was leaving peaceably with his clothes, irritated by a remark the prisoner had made while deceased was descending the stairs, he suddenly turned, and in angry mood went towards the prisoner, the prisoner having told him to " come on." The case has but few points of resemblance to the case of Reins v. The People,* 30 111., 256, on which the a Reins v. People, 30 111,, 256. The facts of this case are set out at length in the reporter's statement. The following portions of the charge reins' case— geeat bodily harm, etc. 859 prisoner's counsel seem to rely. In that case, the pris- to the jury, and the comments of the Supreme Court thereon, are all that is deemed material to insert here. The Court charged, among other things, for The People, as follows : " 4. If the jury believe from the evi- dence, that the deceased, John Kaine, and the defendant, Michael Keins, had words aud blows with and against each other shortly before the alleged kiUing, and that after having such words and blows, they were separated, and that Kaine thereupon left the shanty of Foley ; and if the jury further believe from the evidence, that the defendant, after Kaine went out, followed him to the door with a view to renew the fight, and that Kaine thereupon turned back to attack and beat the defendant, and that the defendant, while Kaine was entering the door, stabbed and killed him, then the defendant is guilty of manslaughter, and the jury should so find, unless the jury further believe from the evidence, that said stab was given by the defendant, while actually fearing loss of life or great bodily harm to himself from the assault of Kaine, and not in a spirit oT revenge. The bare fear of injury to the body is not a sufficient justifica- tion in any case, for killing. The threatened danger must be so great as to create a reasonable belief, in the mind of the person assaulted, of im- minent peril to life or the most serious bodily harm." The defendant then asked the following instruction, among others,, which was refused : " 1. If the jury believe from the evidence, that the defendant Reins, in defence of himself, inflicted upon the deceased the wounds aud stabs which caused iiis death, while the deceased was mani- festlj' intending and endeavoring in a violent manner, to enter the habita- tion of the witness, Mrs. Foley, for the purpose of assaulting or ofiering personal violence to the .defendant Reins, being therein, the killing was justifiable, and the jury must acquit the defendant." Breese, J., delivering the opinion of the Supreme Court, to which the- cause had been removed by writ of error, commented upon the above instructions as follows : " A portion of the fourth instruction given for The- People is also objectionable. The charge was manslaughter, and th3 defence was justification. The words of the statute are in substance, tiiat a person indicted for this ofl'ence, may prove that in order to save his own life, or to prevent his receiving " great bodily harm," he may kill his antagonist. " Great bodily harm " falls far short of " the most serious bodily harm." The one may endanger life ; the other not. The first in- struction asked by the defendant should have been given. Section thirty- two of our criminal code, defines justifiable homicide to be ' the killing of a human being in necessaiy self-defence, or in the defence of the habitation property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, such as murder, rape,, robbery, burglary, and the like, either upon person or property, or against any person or persons who manifestly intend and endeavor, in a violent, riotous or tumultuous manner, to enter the habitation of another, for the purpose of assaulting or offering personal violence to any person dwelling- or being therein.' " For the reasons given, the judgment of the Court below is- reversed, and the cause remanded." 860 GEESCHIA V. THE PEOPLE. oner had retreated to Mrs. Foley's house, and seeing the deceased, with whom he had been fighting, coming to the house, the door was closed, and in the forcible attempt of deceased to open the door, the fat^l blow was inflicted. To make this case like Reins' c£»,4;h.e pris- oner, instead of using this murderous weaj^ " against an unarmed man, crushing his skull with it, even at. the very threshold of his open door, had, on seeing' "the approach of the deceased, quietly shut and bolted the door, and the deceased had then attempted to force an entrance, it might be, the prisoner would have been jus- tified in using the weapon he did, if there were real grounds for apprehending violence from the deceased, should he succeed in forcing the door, and if no other ready means of self-preservation were at hand. But the prisoner invited the deceased to " come on." Reins did not, but sought to keep the aggressor beyond his reach, by fleeing to a house and closing the door. To say that a man having ready means at hand to protect himself from an assault, if one was threatened, which there was not in this case, and this, too, without running away or leaving his tracks, shall neglect such means, and, on the instant before ah assault is made, or any force or vio- lence used, or even threatened, shall seize a deadly weapon, and with it inflict deadly blows upon an unre- sisting victim, is justifiable, would be placing human life in a most precarious condition indeed. It would be making human blood very cheap. The facts in this case show malice on the part of the prisoner, and he may thank the jury that they have viewed his outrage so leniently. There is not the least particle of justification apparent in the prisoner's act, and community, while he himself ought to exult, must regret that the criminal law of the country should be so mildly dispensed as in this case. As to the instructions, we can perceive no error in them. Those given by the Court for the prisoner, are as favorable to him as he had any right to expect, or the law of the case allowed. DEFENCE OF HABITATIOK — NOTE. 861 There being no error in the record, the judgment is affirmed. Judgment affirmed. Note. — On the subject of the defence of the habitation, it will not be necessary to say much in a note, since it will be seen from the above cases, that there has been no change in the law in this respect : the modern cases- develope no rule of law that is new. It will be useful, therefore, to refer only to those distinctions which exist between defence of the habitation,, or defence of the person within the habitation, and other instances ot defence of person or property. 1. And first, the leading distinction between defence of or in the habi- tation, and other cases of personal defence, consists in the rule, that where a person is defending his house, or defending himself or his family, guests or dependants, in his house, he is not obliged to retreat before he can jus- tify killing, as he ordinarily is in cases of defence in combat. The reason of this rule is, that in law, a man's house is his castle, or, as the old books express it, his tutissimmn refugium; and, having retired thus far, the law does not expect him to yield further. 1 Hale P. C, 486 ; Pond's case, ante, p. 814; Carroll's case, ante, p. 804; State v. Patterson, 12 Am. Law Reg., N. S., 653; Haynes v. The State, 17 Ga., 483. 2. The second distinction relates to the diiference between defence of the habitation and defence of other property. And here we encounter the' principle that an attack upon a man's habitation is equivalent to an assault upon his person. Meade's case, ante, p. 798, note ; Johnson v. Patterson, supra. Therefore, if one kill another in resisting an attack upon his habitation, although the attack be not felonious, but in the nature of a trespass merely, the homicide is extenuated to manslaughter, and is not murder. Cook's case, Cro. Car., 537 ; 1 Hale P. C, 485-6 ; 1 East P. C, 321 ; State V. Patterson, supra. On the other hand, an attack or trespass upon property other than the habitation, is not such a provocation as will reduce a deliberate killing to manslaughter. Harrison's case, ante, p. 71, and references ; »Drew's case, ante, p. 705 ; State v. Patterson, supra. 3. A third question relates to the defence of the habitation, against an unlawful breaking for the purpose of arresting the dweller or an inmate. And upon this subject we have already seen, ante, p. 716, that according to an ancient rule of the common law, an attempt unlawfully to arrest a per- son, is such a provocation as will reduce the killing of the person making the attempt, to manslaughter. The same prmciple, of course, obtains with greater force, where the ofBcer or other person who seeks to make the arrest, attempts to break into the dwelling of the person whom he seeks to arrest. The killing of such a trespasser is manslaughter only. 1 Hale P. C, 458 ; 1 East P. C, 321 ; Drew's case, ante, p. 705 ; State v. Oliver, 2 Houston, (Del.,) 606. Unless, perhaps, there be evidence of express malice. State v. Oliver, supra. The question, under what circumstances the protection of a dwelling extends to a person therein, so as to make it unlawful to break in for the 862 GRESCHIA V. THE PEOPLE. purpose of effecting an arrest which would otherwise be lawful, is one of considerable extent ; and the limits which this voluihe has already reached, preclude us from entering upon its discussion. It may be briefly stated, however, that a leading distinction of the common law is, that the person seeldng to make the arrest, cannot lawfully break the outer doors or outer windows of a habitation in order to effect such purpose, if the attempted -irrest be under civil process only. 1 East P. C, 321 . And the rule appears to be the same, where the breaking is to levy upon a man's goods under legal process. Curtisv.Hubbard, lHill,{N. Y.,)336; S. C.,4HilI,437. This immunity does not, however, extend to arrests in criminal cases, where the arrest would be otherwise lawful. 1 East P. C.,_321 ; State v. Oliver, supra ,- 1 Bish. Grim. Proc, JJ 653 et seg.; 1 Chit. Cr. Law, 51-59. Nor does it ex- tend to the case of a person fleeing from arrest into the house of another person ; for, in such a case, the house is not his castle, and the owner may not lawfully afford him asylum against the process of the law. 1 East P. C, 328. 4. A fourth question relates to the circumstances under which a man may defend the habitation of another ; or under which the owner may de- fend others in his habitation. This question has been adverted to in a preceding subdivision. Ante, p. 738.. While, as we have just seen, a per- son may not afford asylum in his habitation to another fleeing from the process of the law, though it be from civil process merely, yet the general principle, applicable, of course, to persons being lawfully in the habitation, undoubtedly is, that the guest may defend his host and the host his guest, to the same extent that either might defend himself. Semayne's case, 5 Coke, 91. So, of course, a man may defend his family or servants. Pond's case ante, p. 714. Or a servant his fellow servant. Drew's case, ante, p. 705. It seems, however, that a person who oiBoiously conceals himself in the house of another, for the purpose of detecting a person in committing adultery with the wife of the owner, and kills the trespasser, is guilty of murder. People v. Hortou, 4 Midi., 67. 6. It remains to consider what degree of force a man may use in expell- ing a trespasser from his habitation who entered lawfully or peaceably therein. H(?may use proper force after requesting the intruder to leave. 1 Bish. Cr. Law, 5th ed., ? 859. He may not give him a kick to induce him to go. Wild's case, 2 Levrin C. C, 214. He may not use violence for that purpose, until he has first made a fair trial of gentle means. McCoy v. The State, 3 Eng. (Ark.), 454. And if, under such circumstances, the owner kills him, it seems he is guilty of murder. State v. Smith, 3 Dev. & Batt., 117. See also Reg. v. Sullivan, Car. & Marsh., 209. Eeferriug to thisheadof our discussion, Mr. Bishop says: "The doctrine undoubtedly is, that cases like those mentioned in this section, must be determined by the principles which govern the defence of goods and estate, not by those peculiar ones which give to the party the right of killing another who attempts to break and enter his castle. This is a clear deduction of legal reason, though there appear to be no decisions preciselj' in point." 1 Bish. See Birge v. Gardiner, 19 Conn., 501, where this case is cited by the Court. Burns v. Housatonic E.E. Co., 19 Conn. , 567 ; Hyke v. VanLeuwen, 4 Denio, 127 ; S. C, 1 Comst., 515 ; Clark v. Syracuse and Utica R.R., 11 Barb., 112. STATE V. MOORE. [31 Conn., 479.] Supreme Court of Errors of Connecticut, April Term, 1863. Joel Hinman, Chief Justice. David Curtis Sakpobd, ) Thomas Beldew Butlek, > Judges. Henry Duttow, ) Defence of property by spRiNG-GiiNa, etc., in the absence op the OWNER — SpKING-GUNS AS A NUISANCE — RiGHT TO TAKE LIFE IN DE- FENCE OF PROPERTY. 1. The mere act of setting spring-guns on one's own premises for their protection, is not unlawful in itself, but the person doing it may be re- sponsible for injuries caused thereby to individuals, and may be indict- able for the erection of a nuisance, if the public are subjected by it to any danger. 2. What a man may not do directly, he may not do indirectly. A man may not, therefore, place instruments of destruction for the protection of his property where he would not be authorized to take life with his own hand for its protection. [Ace. Johnson v. Patterson, ante, last case ; and see Gray v. Coombs, ante, p. 867.] 3. The right to take life in defence of property, as well as of person and habitation, is a natural right ; but the law limits its exercise to the preven- tion of forcible and atrocious crimes, of which burglary is one. [Ace. Gray 892 STATE V. MOOEE. V. Coomb?, ante, p. 867 , Pond's case, ante, p. 814 ; Oliver's case, ante, p. 725, and note, p. 732.] 4. Ill the absence of any statutory provision making it burglary to brealc and enter a shop in the night time with intent to steal, and by the early strict rules of the common law, a man may not take life in the prevention of such a crime. 5. The habits of the people and other circumstances, have, however, so greatly changed since the ancient rule was established, that it is very ques- tionable whether, in view of the large amount of property now kept in warehouse.?, banks, and other out-buildings, it should not be held lawful to place instruments of destruction for the protection of such property. £Acc. Gray v. Coombs, ante, p. 867.] 6. Breaking and entering a shop in the night^season with intent to steal, is by the law of Connecticut, burglary ; and the placing of spring-guns in such a shop for its defence, would be justified, if the burglar should be killed by them. 7. The guns would, however, constitute a nuisance, if they cause actual danger to passers-by in the street ; but the danger to the public must be of a real and substantial nature. 8. Where, upon a prosecution for a nuisance, the jury, by a special ver- dict, found that the defendant placed spring-guns in his shop for its pro- tection against burglars ; that the guns were loaded with large shot, and so placed as to discharge their contents obliquely towards the highway, the travelled path of which was about a rod and a half from the shop ; that the shop was lathed and plastered on the inside and double-boarded on the outside, but that it was possible that scattering shot might pass through the boards at places where, by reason of the cracks between them, there was not a double thickness of boards ; and that the travel- ling public were annoyed and apprehensive of harm from the guns ; it was held that it did not appear that tliere was such real and substantial danger to the public as to warrant a conviction. Information for a nuisance by the defendant in placing spring-guns in his shop for its protection against burg- lars, by reason of which the public were endangered in passing by upon the adjacent highway. The jury re- turned the following special verdict : "In this case, the jury find the following facts : " The defendant owned and occupied a blacksmith's shop, adjoining a public highway in Colebrook, about one and a half rods from the travelled path. It had been entered by burglars, and subsequent efforts made to enter it again. The defendant, for the purpose of pro- tecting his premises, placed at divers times three loaded guns, loaded with powder and large shot, when leaving STATEMENT OF THE PACTS. 893 and locking the shop at night, with strings attached to the triggers, and extending to other objects, with intent that persons who should enter or attempt to enter said shop in the night season, should fire said guns, and kill or injure themselves thereby. One or more of said guns were pointed obliquely towards the said highway. The shop was lathed and plastered on the inside, and double boarded on the outside ; but it was possible that scatter- ing shot might pass out through the places where the boards, by reason of cracks between them, did not make a double thickness of boarding. The travelling public having occasion to pass upon said highway, were annoyed and alarmed, and apprehensive of danger from an accidental discharge of said guns, and some of them remonstrated with the defendant. The defendant gave notice of the placing of said guns to the public. The defendant had no intent to endanger and annoy the public on said highway, but acted with the sole purpose and intent of protecting his property in said shop from burglars, supposing he had a lawful right so to do ; and upon the commencement of this prosecution, he desisted from placing said guns as before. And thereupon the jury find that if upon the facts so found, a verdict and judgment of guilty can be legally rendered, the defend- ant is guilty ; but if said facts will not authorize in law a verdict and judgment of guilty, then we find the de- fendant not guilty, and submit the question as a ques- tion of law to the Court." The questions of law arising on this verdict were reserved for the advice of this Court. ' Sedgwick, State's Attorney, and Goodwin, for The State, cited 1 Hale P. C, 473 ; Foster C. L., 291 ; 2 Bish. Crim. Law, §§ 558, 597 ; 1 Russ. Crimes, 519, 545 ; 3 Chit. Crim. Law, 627, 641, 647 ; 4 Bla. Com., 167, 181 ; State v. Morgan, 3 Ired. (Law), 186. Hall, with whom was Hitchcocit, for defendant, cited 1 East P. C, 219, 271 ; 1 Hawk. P. C, 108 ; Poster C. L., 273 ; 1 Russ. Crimes, 550 ; 1 Hale P. C, 445, 481, 484 ; 2 894 STATE V. MOOEE. Swift Dig., 284 ; Johnson v. Patterson,'' 14 Conn., 1 ; Sarch V. Blackburn, Mood. & Malk,, 505 ; Blackman v. Simmons, 3 Car. & Pay., 138; Brock v. Copeland, 1 Esp., 203 ; Ilott V. Wilkes, 8 Barn. & Aid., 804 ; United States v. Wilt- berger,'' 3 Wash., C. C, 515, 521 ; Gray v. Coombs," 7 J. J. Marsh., 478. BuTLBE, J. — It is not easy to see how the mere act of setting spring-guns on his own premises by the defend- ant, can be holden unlawful in itself. That such an act could not be so holden, seems to have been admitted in the leading case of Ilott v. Wilkes, 8 Barn. & Aid., 304. But it may, nevertheless, be true, that he may be respon- sible for any injury occasioned thereby to individuals ; and be indictable for the erection of a nuisance, if the public were thereby subjected to any danger and con- sequent annoyance. What a man may not do directly, he may not do in- directly. If by the rules of the common law the defend- ant could not, if present, have discharged the guns which he placed in his shop, by his own direct agency, against a thief, who had broken and entered for the purpose of stealing, he certainly could not place and leave them, so that the thief, if he entered, would dis- charge them against hiniself. This principle was also admitted by the Court of King's Bench in Ilott v. Wilkes, but the action was trespass, and the judges held that the rule did not apply where the trespasser had notice that the engine was so placed, and that the danger ex- isted. But the fallacy of this reasoning in that respect was clearly shown in this Court by Judge Sheeman, in Johnson v. Patterson, 14 Conn., 1 ; and it is settled law here, that if the wrong or guilt of the trespasser or thief is not such as to justify the injury, if inflicted directly, it cannot be justified because inflicted indirectly, and by the assisting agency of the wrong doer. The first point made by the defendant in this case, must therefore, turn on the question, whether a man may take the life of any one who attempts to commit a » Antt, last case. * Anie^ p. 34. o Ante, p. 867. DEFENCE OF PEOPEETY BY SPRING-GUNS. 895 felony ; and, therefore, of a thief who attempts to break and enter a shop or out-house in the night season, with intent to steal. In this case, from the view we take of the nature of the offence charged against the prisoner, a determination of the question is not necessary, but as it has been raised and fully argued, and as it is of great practical interest, we will consider and settle it. It is clear, that in the absence of any statutory pro- vision making the offence of breaking and entering a shop in the night season burglary, and by the early and strict rules of the common law, a man may not take life in the prevention of such a crime. Those rules recognize a right in every man to defend his property as well as person and habitation, by taking the life of the aggressor, as a natural rigid; but they also limit and restrain the exercise of that right, to the prevention of a certain class of forcible and atrocious crimes, of which breaking a shop in the night season is not one at common law. The class of crimes in prevention of which a man may, if necessary, exercise Ms natural right to repel force by force, to the taking of the life of the aggressor, are felonies which are committed by violence and sur prise ; such as murder, robbery, burglary, arson, break- ing a house in the day time, with intent to roi, sodomy and rape. Blackstone says : " Such homicide as is com- mitted for the prevention of any forcible and atrocious crime is justifiable by the law of nature; and also by the law of England, as it stood as early as the time of Bracton;" and he specifies as of that character those vrhich we have enumerated. No others were specified by Hale or Hawkins, who wrote before him on the Pleas of the Crown, or have been specified by any writer since. Mr. East, in his Pleas of the Crown, and Mr. Foster, from whom Judge Swift quotes the law on this subject in his Digest, (vol. 2, page 283,) state the rule thus : " A man may repel force by force in defence of his person, habitation or property, against one who manifestly in- tends or endeavors, by violence and surprise, to commit 896 STATE V. MOOEE. a known felony, such as murder, rape, robbery, arson^^ burglary, or the like, upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and if he kill him in so doing, it will be justifiable self-defence." 1 East P. C, 271 ; Foster C. L., 259. Neither of these writers specifies any other crimes than those enumerated,, and both except from the list simple theft, and even an attempt to pick a pocket. No writer has enumerated breaking and entering a shop as one of that class of crimes . If it was technically burglary at common law, it would be included; but it is not. "To break and enter a shop, not parcel of the mansion house, in which the shop-keeper never lodges, but only works or trades there in the day time, is not burglary, but only larceny." 1 Hale P. C, 557, 558, cited in 1 Tomlin's Law Diet., 278. Nor have we been referred to any case in England where it has been holden that life might be taken in defence of property in a shop ; nor any in this country, with the single exception of Gray v. Coombs,' 7 J. J. Marshall, 478 ; and in that case, the Court did not hold that the offence was burglary, or within the class of felonies to prevent which life may be taken, by the strict letter of the common law ; but rather that " the time and circum- stances constituted a case of necessity, that legitimated the means resorted to." We are satisfied, therefore, that by the strict letter of the common law, a man may not take life in defence of property in a shop, and therefore, may not justify a homicide committed by placing spring-guns therein. But these rules of the common law were originally founded on reasons, and adapted to circumstances which do not now exist ; and it is a question of great import- ance and deserving serious consideration, whether that change of circumstances has not created a necessity for an extension of a right to take life in defence of property in a shop. The offence is a felony, and has all the elements of a felony by violence and surprise that burg- " AnU, p. 867. DEFENCE OF PEOPEKTY BY SPBING-GUKS. 897 lary has, except that it is presumptively committed when no person is present, and unaccompanied by danger of personal injury to the owner or his family or guests. But that, if a reason originally for the distinction between mansion house and a shop, is now to some extent, practically disregarded; for burglary may be committed in a barn, wood-house, or even smoke-house and hen-roost, though separate structures, and uncon- nected with the dweUing-house, and unenclosed by a common fence, if in close proximity, and "in their nature serviceable with respect to the abode ; " and in such cases, no danger of personal collision exists. 1 Bish. Or. L., § 171. So, doubtless, in the olden times, aU the valuables were contained in the castle (dwelling- house and curtilage) for protection, and shops were few, and did not require such protection. Now our banks, stores, warehouses, manufactories and shops contain, in large q[uantities, our most valuable property and goods, and those which are the most readily transported, and least easily identified and recovered. And it certainly seems very absurd to permit a man to protect his smoke- house and hen-roost, by taking the life of the nocturnal thief, and deny him the right to defend a bank, or a store full of costly jewelry or valuable silks by the same means. "We are aware, that writers on the criminal law deem certainty of the utmost importance ; and that out of various ancient common law distinctions, grow general rules, which give that certainty, and operate to establish practical justice; and that changes and innovation should be made by legislation, rather than judicial decision; and we admit the force of their reasoning. Still, it is a question, whether the great quantity and value of property contained in what the law terms out- houses, the ease with which it may be transported, the great extent of our country, and the means of escape by railroads, and the opportunity to dispose of stolen prop- erty and enjoy its fruits undetected in distant States and cities, and the fact that property so held is exposed, not only to the ordinary number of criminals incident to our STATE V. MOOKE own population, but to great numbers who escape, or are induced to emigrate from other countries, do not constitute the offence an aggravated and exceptional one, which in the absence of legislation, should be holden to be such an atrocious felony, as to justify the use of spring-guns for its prevention. The Court so held in the case cited from the Kentucky Reports; and, an obvious leaning that way, is observable in other cases in this country. The taking of life by spring-guns or otherwise, is con- fessedly lawful by the common law, and now in England, by statute, to prevent a burglary ; and the breaking and entry in the night-season of " a shop in which goods, wares and merchandise are deposited," was by express statutory provision, made burglary, identical in charac- ter and punishment with burglary in a dwelling-house, at an early period in our history. In the edition of the statutes published in 1808, at page 297, there is a statute entitled " An act for the punishment of certain atrocious crimes and felonies," and the first clause of the statute is in these words, viz : " That whosoever shall commit burglary by breaking up any dv^elling-house, or shop wherein goods, wares or merchandise are deposited" etc. The compiler, in a note, informs us, that the clause was originally passed in 1650, and it is therefore, among the earliest acts of the State ; and in the case of the State v* Carrier, 5 Day, 131, decided in 1811, the fact that the statute had "extended the crime of burglary to the breaking and entering of a shop," was admitted by all the judges. And burglary, whether in a dwelling-house or a shop, under the ancient statute, was punishable, for the third ofi'ence, by death. In the act referred to, as found in the edition of 1808, several offences for which the same punishment was pro- vided, were embraced in a single section. In 1821, the revisors separated them into distinct sections, and, in so doing, placed burglary in one section, and the breaking and entry of a shop in another, adding to the latter the words, " store, warehouse and out-house, wTietTier parcel of any mansion-house or not" but provided the same DEFENCE OF PROPEET:? BY SPRING-GUNS. 899 punishment, viz : three years imprisonment for each. It is apparent from the words, '^^rhether parcel of any man sion-house or not," and the similarity of the punishment, that no change in the character of the offence was in- tended, and such has "been the understanding of the pro- fession and the courts. In the revision of Swift's Digest toy Judge Button, the offence is treated as burglary, (vol. 2, h. 330,] and in our forms the word " burglariously " is used in informations upon the statute. In the act of 1830, respecting crimes, the punishment of burglary was in- creased to a maximum of five years, and the breaking and entering a shop to four years, but that distinction in the punishment has not been regarded as changing the nature of the offence. In 1840, in the case of Lewis v. The State, 16 Conn., 32, it was distinctly recognized and treated as burglary Breaking and entering the shop in question, in the night-season, with intent to steal therefrom, would have been by our law, burglary ; and, as by the settled rules of law, life may be taken to prevent a burglary, the placing of the guns in the shop was an act which the defendant could have justified, if the death of a burglar had been thereby occasioned. We are also satisfied that if the guns had actually been dangerous to the public, who had occasion to pass the highway, they would have constituted a nuisance. The statute relative to nuisances in highways, embraces specifically objects placed or acts done within its limits. The other acts committed or omitted upon the adjoining land by the owner thereof, which endanger and annoy travellers, are nuisances at common law. An overhang- ing tree whose limbs actually interfere with the use of the way, or are rotten and liable to fall, is a nuisance, and the limbs may be lopped. So, it is a nuisance to suffer the highway to be incommoded', or travellers endan- gered, by adjoining foul ditches, or to permit a dangerous and ruinous house to stand upon it, which is liable to faU into it and injure passengers ; or to keep gunpowder in dangerous quantities near a public street, carelessly; 900 STATE V. MOOBB. (People V. Sands, 1 Johns., 78 ; Anon., 12 Mod., 342 ; My- ers V. Malcolm, 6 Hill, 292 ;) or od do any other act out- side of the highway which endangers the public who have occasion to pass over it, and who are entitled to the same protection from danger and annoyance while there, as when at their respective homes. Doubtless, the annoy- ance must be of a real and substantial nature ; for " the fears of mankind, though they may be reasonable ones, will not create a nuisance." 3 Atk., 750. But placing a loaded gun so as to range over a highway, cocked, and with strings attached to the trigger, so that it may be discharged by a cat or a rat, or any other object coming in contact with the string, and sufficiently near and un- protected to inflict injury, if any one should be within its range upon the highway, creates a real and substantial danger, to which passengers on the highway should not be subjected. We are not, however, satisfied that the facts found by the special verdict, wiU authorize a judgment against the prisoner. It is found that scattering shot might pass between the ' cracks of one thickness of the boarding, and through the other to the outside. But it is not found that they would pass through with sufficient force to inflict injury, or even to cross the intervening space be- tween the shop and the highwaj. It is not, therefore, sufficiently found that the apprehended danger to the public was real and substantial, and judgment must b& rendered for the defendant. In this opinion, the other judges concurred. Judgment for defendant. Note.— 1. That a person is not obliged to surrender the possession ot his goods, his lands, or other property to a wrong-doer, without resistance, does not admit of question. People v. Hubbard, 24 Wend., 309 ; Curtis v. Hubbard, 1 Hill, 336 ; S. C, 4 Hill, 437 ; Commonwealth v. Kennard, 8 Pick., 133, 137 ; Commonwealth v. Power, 7 Mctcalf, (Mass.), 596 ; People V. Honshell, 10 Cal., 87 ; Harrington v. People, 5 Barb., 611, 612 ; McAuley V. State, 3 G, Greene, 435; 1 Bish. Crim. Law, J 861, 5th ed. He may, by the doctrine of these and all the cases where the rule is stated, use, within a certain prescribed limit, as much force as is necessary to preserve his possession— taking care that the degree of force used does not exceed what NOTE — DEFENCE OF PROPEETY. 901 3s necessary, or v/hat reasonably appears to be necessary, for the purposes ■of defence and prevention. 2. The limit above spoken of, is the limit at which it becomes necessary ■to take life, in order to protect one's possession. And here, the criminal law, which seeks certainty in its rules, as far as possible, divides offences against property into two general classes, namely, felonies and trespasses, for the purpose of determining whether a kUling in prevention of such ■offences, shall be deemed justifiable or culpable. a. And the first rule which may be stated is, that a killing which is necessary, or which appears to be reasonably necessary, to prevent a forci- "ble and atrocious felony against property, is justifiable homicide. The preceding cases of this Paet are referred to as authority for this statement •of doctrine. See also McPherson v. State, 22 Ga., 478. This rule, the common law writers do not extend to secrei felonies, or felonies not accompanied with force. 1 Hale P. C, 488 ; 1 East P. C., 273; Foster, 274. Though we do not find this principle adjudged in any modern •case which we have seen, yet -it has been quoted with approbation in ^several. Pond's case, ant', pp. 820, 821 ; Moore's case, mpra. Mr. Bishop, however, is of opinion that upon principle there can be found no such dis- tinction in the law itself; but why he is of this opinion, he does not satis- factorily tell us. 1 Bish. Crim. Law, § 853, 5th ed. It is pretty clear, that the right to kill in defence of property does not extend to cases of larceny, which is a crime of a secret character ; although the cases which illustrate this exception, are generally cases of theft of articles of small value. Thus, in Eeg. v. Murphy, 2 Crawf. & Dix C. C, 20, the prisoner was in- dicted under the statute for maliciously shooting with intent to do grievous bodily harm, etc. It appeared that on the day in question, the prisoner, who was a game-keeper and wood-ranger of Lord Dunsany, and armed -with a fowling piece, detected the prosecutor in the act of carrying away ■from his employer's lands a bundle of sticks, consisting of branches severed from growing timber by a recent storm ; that the prisoner hailed him, when he dropped the sticks and ran, upon which the prisoner called out, " If you don't stop, I'll fire ; " but the prosecutor still going on, the pris- oner fired, wounding him in the iiead, back and arms. Dohbrty, Ch. J. : '•Theie is no doubt that the prosecutor, in carrying away the branches previously dissevered from the trees, was committing a felony, and the prisoner was clearly entitled to arrest him ; but in discharging his gun at the prosecutor, and periling his life, the prisoner has very much exceeded his lawful powers, and I cannot allow it to go abroad, that it is lawful to fire upon a person committing trespass and larceny; for that would be punishing, perhaps with death, offences for which the law has provided milder penalties." * * * Verdict, guilty. And see to the same effect, McClelland v. Kay, 14 B. Monroe, 106; Gardiner v. Thibodeau, 14 La. An., 733; State v. Vance, 17 Iowa, 144; Priester v. Augley, 5 Rich., ■(Law), 44. It may be observed, however, that the right extends to statu- tory felonies, as well as felonies at common law. Gray v. Coombs, ante, p. 867 ; Pond's case, ante, p. 824 ; Moore's case, supra. And it would seem that the fact that a common law felony has been reduced by statute to a misdemeanor, does not diminish the right of defence applicable to such «ases. Gray v. Coombs, supra; Drennan v. People, 10 Mich., 169. 903 STATE V. MOOKE. And it Is evident from the preceding cases, that there are many nice andS curious questions growing out of this right to take life in the necessary prevention of felonies against property, to be settled by future adjudica- tions, or by future legislative action. Thus, if I discover a man riding away with my horse, as a thief, it would seem that I may not lawfully kill him to prevent the commission of the theft ; for larceny is a secret and not a forci- ble felony. Perhaps in Tennessee, where horse-stealing is a capital felon}^ there would not bo much question as to the right to kill the thief in order to recapture the horse ; and perhaps it would be difficult to find a jury any where, tliat would convict the slayer of felonious homicide in such a case. On the other hand, if a man endeavor to take my horse by force, as a rob- ber, there is no question that I may lawfully kill him, if necessary to pre- vent the consummation of the crime, and protect my possession. But if a man endeavor, maliciously, to kill my horse, this offence being a statutory misdemeanor only, denominated malicious mischief, I would not, techni- cally speaking, be permitted to kill him to prevent the mischief; but in the eye of reason and justice 1 clearly would be; for the attack is of a forcible and violent character, and involves the loss of my beast more com- pletely than if carried off by a robber; for, in the latter case, I might re- capture it, while, in the former case, I could not bring it to life. Again : property of trifluig value, intrinsically, may, from some peculiar circum- stances, become of such value to the owner, as to justify taking life in its preservation. Thus, to borrow a far-fetched illustration, if a man sees a. thief running away with his water-skin in a desert, he might be justified in killing him to prevent the theft ; for the contents, though in themselves of no value, might, under the circumstances in which he is placed, be of equal value with his life — the only means of sustaining him to his jour- ney's end. And, doubtless, extreme cases of this kind may arise in civil- ized communities. b. But the ordinary rule is, that a killing to prevent a mere trespass upon property, or any asportation of or injury to it, which does not amount to a felony, is a felonious homicide ; or, viewed in the light of a civil action, unlawful. Harrison's case, ante, p. 71 ; Drew's case, ante, p^ 70.5 ; United States v. "Williams, 2 Cranoh, C. C.,'439 ; Priester v. Augley, 5 Rich. (Law), 44; State v. Morgan, 3 Ired., 186 ; State v. McDonald, 4 Jones (Law), 22 ; State v. Brandon, 8 Jones (Law), 467 ; State v. Vance, 17 lowa^ 144; Gardiner v. Thibodeau, 14 La. An., 733; McClelland v. Kay, 14 B. Monroe, 106. As where a person kills an officer who comes unlaw- fully to distrain his goods. United States v. Williams, supra. Or where a person kills a slave who is stealing sugar-cane. Priester v. Aug- ley, supra. Or stealing chickens. McClelland v. Kay, supra ; Gardiner V. Thibodeau, supra. Or where a person kills another who lets down a. dividing fence, and hauls off manure as to which there is a disputed claim. State v. McDonald, supra. Or kills one who is taking corn from a bin, the right to which is in dispute. State v. Brandon, supra. Or where a person fires among a party of boys who are stealing his melons,, and kills one of them. State v. Vance, supra. Or shoots and wounds a person who is carrying off branches severed from his master's trees. Reg. V. Murphy, supra. c. The next distinction is, that a bare trespass upon property, not the. NOTE — DEFENCE OF PROPERTY. 903 habitation, unaccompanied with force against the owner, is not sucn a provocation as will reduce a deliberate killing of the trespasser 'from mui- der to manslaughter. Harrison's case, ante, p. 71 ; Drew's case, ante, p. 705; State v. Brandon, 8 Jones (Law), 467 ; State v. McDonald, 4 Jones (Law), 22 ; State v. Morgan, 3 Ired (Law), 186 ; State v. Vance, 17 Iowa, 144. From this also results a correlative proposition that a man may not lawfully use a deadly weapon in defence of his property, not his dwelling- house, against a bare trespasser. Drew's case, supra; State v. Vance, supra; Harrison's case, supra; Eeg. v. Murphy, supra ■ State v. Morgan, 3 Ired, 186. But while this is true, such a killing is not necessarily murder. It may be either murder or manslaughter. United States v. Williams, 2 Cranch C. C, 438. The trespass may be mixed with other ingredients involving an attack upon the owner, or an unlawful resistance to the reasonable force he may have used in defence ; or the force used by the owner, whilst excessive, may not have been characterized by wanton cruelty or inten- tional of death — in which case Hie killing might well be adjudged man- slaughter, and not murder. Again, the killing may have been accidental, while the owner was employing no more than a lawful degree of force and without negligence ; in which case it would excusable homicide by mis- adventure. Hinchcliflf's case, 1 Lewin C. C, 161. And see, for an ex- tended discussion upon this question. State v. Vance, 17 Iowa, 144-149. 3. As stated in the principal case, the rule in Hott v. Wilkes, 3 Barn. & Aid., 304, turned upon the fact that the plaintiff had notice that spring-guns were set in the wood, and hence, the plaintiff, having gone into the wood voluntarily, and discharged one of them, whereby he was injured, the injury was the result of his own act. So, in Deane, v. Clay- ton, 7 Taunt., 518, there was notice that dog-spears, etc., were placed in the wood. In both of these cases the judges agreed that it would not be allowable, without notice, to expose even a trespasser to mortal injury. And agreeably to this view, in a subsequent case — Bird v. Holbrook, 9 East, 628 — where the defendant for the protection of his property, some of which had been stolen, set a spring-gun, without notice, in a walled garden, at a distance from his house ; by which the plaintiff, who had cUnibed over the wall in pursuit of a stray fowl, was shot, it was held that the defendant was liable in damages, on the ground that there had been no notice ; but the correctness of this ruling is doubted in Jordin v. Crump, 8 Mee.=. & Wells., 789. So, in Jay v. Whitefield, an unreported case, cited in 3 Barn. & Aid., 308, and in 4 Bing., 644, the plaintiff, a boy, having entered the de- fendant's premises for the purpose of cutting a stick, was shot by a spring- gun, for which injury he 'necovered £120 damages ; but it does not appear whether or not notice had been given in this case. In Wootton v. Dawkins, 2 Com. Bench, N. S., 412, the plaintiff entered the defendant's garden at night, and without his permission, to search for a stray fowl, and, whilst looking closely into some bushes, he came in con- tact with a wire, which caused something to explode with a loud noise, knocking him down and slightly injuring his fiioe and eyes. It was heldi— (1.) That the defendant was not liable for this injury at common law ; (2.) That, in the absence of evidence that it was caused by a spring-gun or 904 STATE V. MOOEE. other engine calculated to inflict grievous bodily harm, he was not liable '■\nler the 7 and 8 Geo. 4, ch, 18, § 1. In Jordin v. Crump, 8 Mees. and Wells., 782, the rule i& laid down thM a person, passing with his dog through a wood, in which he knows dog- spears are set, has no right of action against the owner of the wood, for the death or injury to his dog, who, by reason of his own natural instinct, and against the will of his master, runs off the path against one of the dog- spears, and is killed or injured ; because the setting of dog-spears was not in itself an illegal act, nor was it rendered so by the 7 and 8 Geo. 4, ch. 18. In a case ea,rlier than any of the above, it was held that if a man place dangerous traps, baited with flesh, in his own ground, so near to a high- way, or to the premises of another, that dogs passing along the highway, or kept in his neighbor's premises, must probably be attracted by their instinct into the traps ; and, in consequence of such act, his neighbor's dogs are so attracted, and thereby injured, he is liable in damages. Town- send V. Wathen, 9 East, 277. But in this case it was proven to have been his intention to kill dogs by this means, as well as other animals ; several dogs having been killed in such traps, and he having allowed his game- keeper a reward of one shilling for every dog so killed. In a still earlier case, where the action was brought to recover damages for an injury received from the defendant's dog, it was proved that the defendant was a carpenter, and that the dog was kept for the defence of his yard ; that he was kept tied up all day, and was at that time very quiet and gentle, but was let loose at night. It was further proved that the plaintiff, who was foreman to the defendant, had gone into the yard after it had been shut up for the night, and the dog let out ; at which time the injury happened, the dog having then bit and torn him. On the evidence. Lord Kenyon ruled that the action would not lie. He said that every man had a right to keep a dog for the protection of his yard or house ; that the injury which this action [case] was calculated to redress, was where an animal known to be mischievous was permitted to; go at large, and the injury therefore arose from the fault of the owner in not securing such animal, so as not to endanger or injure the public ; that here the dog had been properly let loose ; and the injury had arisen from the plaintiflTs own fault, in incautiously going into the defendant's yard after it had been shut up. Brook v. Copeland, 1 Esp., 202. The present English statute on the subject of spring-guns, man-traps, etc., appears to bo the 24 and 25 Vict., ch. 100, § 31, by which it is enacted, in substance, that whosoever shall set or place, or cause to be set or placed, any spring-gun, man-trap, or other engine calculated to destroy human life or inflict grievous bodily harm, with the intent that the same, or whereby the same may destroy or inflict grievous bodily harm upon a trespasser or other person coming in contact therewith, shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the Court, to be kept in penal servitude for the term of five years, [27 and 28 Vict., ch. 47,] or to be imprisoned for any term not exceeding two years, without hard labor. And by thg subsequent provisions, whosoever shall If nowingly and wilfuUypermit such traps to be set, is deemed to have set them himself; provided this act shall not apply to traps set to destroy vermin, nor to engines set at niglit for the protection of dwelling-houses. SYLLABUS. 905 PAET ly. OF THE BURDEl ATO QUANTUM OF PROOF UNDER THE PLEA OF SELF-DEFENCE.* TWEEDY V. THE STATE. [5 Iowa, 433.] Supreme Court of Iowa, June Term, 1857. George W. Weight, Chief Justice. Wm. G. Woodward, ] t -t- L. D. Stockton, f -^y^^ttces. Homicide in self-defence — Burden and quantum of peoof. 1. In criminal cases the rule is, that the person charged is presumed to be innocent, until he is proven guilty. 2. If, upon a consideration of all the evidence, there be a reasonable doubt of the guilt of the party, the jury are to give him the benefit of such doubt. 3. Neither a preponderance of evidence, nor any weight of preponderant evidence, is sufficient in a criminal case, unless it generates a full belief of the guilt of the party charged, to the exclusion of all reasonable doubt. [Ace. Stokes' case, joosi! ,- The State v. Patterson, 12 Am. Law Eeg., N. S., 602.] 4. When the evidence in a criminal case relates solely to the original transaction, and forms a part of the res gestae, the defendant has a right to claim that the proof made does not manifest his guilt, because it is left in doubt, whether the act was committed under unjustifiable circumstances. 5. Hence, where the matter of excuse or justification of the ofiFence charged, grows out of the original transaction, the defendant is not driven * Of course there is no formal " plea of self-defence." This defence is raised under the general plea of not guilty. But the expression is fre- quently used to avoid a circumlocution. 906 TWEEDY V. THE STATE. to the necessity of establishing the matter in excuse or justification, by a preponderance of evidence, and much less beyond a reasonable doubt. 6. On the trial of an indictment for murder, proof of the killing will not change the burden of proof, where the excuse or justification is apparent on the evidence offered by the prosecution, or arises out of the circum- stances attending the homicide. 7. A party is not compelled to flee from his adversary, who assails him with a deadly weapon, and go to the wall, (as it is termed,) before he can justify a homicide. [See note, p. 28 ; note, p. 139.] 8. "Where on the trial of an indictment for murder, the Court instructed the jury as follows: "1. The facts of excuse or self-defence, must be proven to the minds of the jury, clearly, and beyond a reasonable doubt ; otherwise, they must find the defendant guilty of murder or manslaughter. 2. If the jury find that the defendant did kill the deceased, they must be convinced, beyond a reasonable doubt, of the facts offered in justification of the killing ; and unless other justifying facts have been proven, they must be satisfied, beyond a reasonable doubt, that the deceased did attack the defendant with a deadly weapon, and drive him to the wall, before the defendant can justify." H^ld, That the instructions were erroneous^ [Ace. next case.] Indictment for murder in the second degree. The de- fendant was found guilty of manslaughter, sentenced to the penitentiary for five years, and from this judgment sues out this writ of error. AU the facts material to an understanding of the questions decided, will be found in the opinion of the Court. J. O. Hall and Miller, Rankin & Euster, for the appellant; C. Ben Darwin, and S. A. Rice, Attorney- Greneral, for The State. Wright, Ch. J., delivered the opinion of the Court : During the progress of the trial in the Court below, various exceptions were taken to the rulings and de- cisions there made, which are now assigned for error. Without intimating an opinion upon many of them, we shall briefly refer to a few of those brought to our atten- tion. It seems that there was testimony tending to show, that the defendant had acted in self-defence. Upon this subject, the Court instructed the jury as follows : First. " The facts of excuse, or self-defence, must be proven to the minds of the jury, clearly and beyond a HOMICIDE — SELF-DEFEKCE — QUANTUM OF PROOF. 907 reasonable doubt, otherwise they must find the defend- ant guilty of murder or manslaughter." Second. "If the jury 'find that the defendant did kill the deceased, they must be convinced, beyond a reason- able doubt, of the truth of the facts offered in justifica- tion of the killing; and unless other justifying facts have been proven, they must be satisfied, beyond a reasonable doubt, that the deceased did attack the defendant vfith a deadly weapon, and drive him to the wall, before defendant can justify." Several other instructions, embodying substantially the same principles, were given, and others, as asked by defendant upon the same subject, were refused. With- out giving them, however, we shall consider those above set out, our views thereon sufficiently indicating the opinion entertained upon the general subject. We think these instructions were clearly erroneous. In criminal cases, the rule is, that the person charged, is, presumed to be innocent until his guilt is proved. If^ upon a consideration of all the evidence, there be a rea- sonable doubt of his guilt, the jury are to give him the benefit of such doubt. What is meant, or what will amount to such reasonable doubt, we need not at present consider. If however, the prisoner shall concede the fact of the killing, or if it be found that he is the author of the homicide, and he relies upon matter in excuse or justifi- cation of the act, the enquiry arises, whether he must prove such matter beyond a reasonable doubt. What- ever the rule may be, where he relies on some distinct substantive ground of defence, not necessarily connected with the transaction upon which the indictment is founded, (such as insanity), we know of no case that has gone so far as to hold, that where the defence is confined to the circumstances accompanying the original trans action, (as that he acted in self-defence), that he must prove such justification beyond a reasonable doubt. In criminal cases, the jury, in finding a verdict, do not weigh the evidence, in the sense that they are required "908 TWEEDY V. THE STATE. to, and do, weigh it in civil cases. In the one class of cases, they are to weigh it carefully, and decide accord- ing to its preponderance, although it may not be free from reasonable doubt. In criminal cases, however, neithet a preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless' it generate a full belief of the fact, to the exclu- sion of all reasonable doubt. 3 G-reenleaf Ev., §29; Whart. American Cr. Law, 327. Now, applying this rule to the defence contemplated by this instruction,, taking for the present the strongest view of it against the prisoner, and how does it stand ? He is presumed to be innocent. " This presumption," says the prosecu- tion, "is rebutted and removed, when it is found, or conclusively established, that he was the author of the homicide." Grant this, and that he does then stand in the attitude of guilt. Then, it seems to us, that if the circumstances, whether proved by him or the State, pre- ponderate even in favor of the matter in excuse or justi- fication, there instantly arises a reasonable doubt of his guilt, and an acquittal should follow. Whereas, if he is required to establish such defence, beyond a reasonable doubt, then most manifestly, they should entertain a reasonable doubt of his guilt. And this process of reasoning, is quite as favorable certainly, as the State could ask; and yet, by this, it must be obvious, that the instructions were erroneoiTS. But we. need not stop here ; for the prisoner, in such cases, is entitled to even a more favorable rule. The defence of the defendant, related to and grew out of the transaction, or res gestce, which constituted the supposed criminal act. To establish it, he was not required to, .and need not, assume to prove anything aside or out of the case, on the part of the Grovernment. He had a right to claim and insist, that taking the facts and circum- stances all together, as proved on both sides, he was not shown to be guilty ; and if the facts constitutihg the transaction, on which the prosecution rested, did not prove beyond a reasonable doubt, that he committed the HOMICIDE — SELF-DEFENCE — QUANTUM OF PROOF. 909^ offence with which he was charged, (or one necessarily included in it), he was entitled to an acquittal. To con- stitute the crime of murder, the prisoner must have killed the person named in the indictment, with malice aforethought, either express or implied. If the killing was justifiable, then there was no malice aforethought ; it was not murder — nor was it manslaughter. Now, if the evidence fails to show that the act was un- justifiable, or, if that question is left in doubt, how can it be said, that the criminal act is proved, or that the jury should not acquit. The defendant has a right to claim, when the evidence relates solely to the original transaction, and forms part of the res gestce, that the proof, so made, does not make manifest his guilt, be- cause it is left in doubt whether the act was committed under unjustifiable circumstances. And thus we see, that he is not driven to the necessity of establishing the matter in excuse or justification, by a preponderance of evidence, much less beyond a reasonable doubt; and that proof of the kUling, will not change the burden, when the excuse or justification, is apparent on the evi- dence offered by the prosecutor, or arises out of the cir- cumstances attending the homicide. Commonwealth v. McKee, 1 Gray, 61 ; Com. v. York, 9 Metcalf, 116 ; Com. V. "Webster, 5 Cush., 305. If, upon a consideration of all these circumstances, the jury entertain a reasonable doubt of any fact essential to establish the guilt, this doubt should be solved in favor of the prisoner, and they should acquit. The foregoing remarks apply to the first, and a portion of the second instruction. But the jury were also told, that "unless other justifying facts have been proven, they must be satisfied, beyond a reas- onable doubt, that the deceased did attack the defendant with a deadly weapon and drive him to the wall, before the defendant can justify." Upon what principle this instruction can be sustained, it is impossible for us to understand. However the rule may have been at one time, it is certainly now well settled, that the prisoner is not compelled to flee from his adversary, who assails 910 THE PEOPLE V. 9CHBYVER. him with a deadly weapon, and go to the wall, (as it is termed), before he can justify the homicide. And much more clearly is it true, that the prisoner need not satisfy ihe jury, beyond a reasonable doubt, that he did go to the wall, before he can justify. If this was the rule, it would be next to impossible for any man to successfully urge such a defence. Though the danger might be ever so actual, and imminent— though his efforts to escape a conflict might be all that his personal safety could reas- onably dictate— still, if the jury entertained a reasonable doubt, whether he had retreated as far as he could, they would be bound to convict. Such a rule is contrary to every correct idea of the rights of self-defence, and finds no support either from authority or reason. Without further enlarging upon propositions that are, to our minds, so clear, we conclude that the judgment must be reversed, and a trial de novo awarded. Judgment reversed. THE PEOPLE V. SCHRYVER. [42 N.Y., 1.] Court of Appeals of New York, March Term, 1870. RoBEET Eael, Chief Justice. Maktin Geover, Ward Hunt, John A. Lott, Judges of ihe Court of Appeals. 1. Ill trials for homicide, it is incumbent upon tlio people to establish all the facts alleged in the indictment, beyond a reasonable doubt; but if the defendant seek to justify the homicide on the ground of self-defence, the burden is upon him, to make out such defence ; and it is not sufficient in so doing, that he raise a reasonable doubt in his own favor, nor is it required that he establish such defence beyond a reasonable doubt ; but he must make such defence appear to the jury by the same preponderance of evidence that is required in civil cases. STATEMENT OE THE CASE. 911 2. But if, in such cases, the facts which give him the right to insist upon such a defence are brought out by the prosecution, it is error to instruct the jury that it is incumbent upon the prisoner to malce such defence good^ by proof, or to tell them that, lie having offered no proof tending to malte out such a defence, the question is not before them. [Ace. Tweedy's case> ante, last case.] 3. Patterson v. The People, 46 Barb., 625, overruled ; People v. McCann, 16 N. Y., 58, commented on and followed, but the opiiiion of Brown, J., doubted. Error to the Gi-eneral Term of the Supreme Court in the third judicial district, to review the judgment of that court reversing the conviction of defendant in error, at the Ulster sessions, for manslaughter in the third degree. Abraham Schry ver, the defendant in error, was in- dicted for manslaughter in the third degree, for killing John Kavanagh, at Kingston, Ulster county, on the 17th day of November, 1868. The indictment was brought to trial at the Ulster sessions, in June, 1869, and the defend- ant was convicted and sentenced to imprisonment for the term of three years. The judgment of conviction was taken, by writ of error, to the Supreme Court, and at the General Term, held in the third district, in September, 1869, was reversed, and a new trial was granted. The case was then brought into this Court by writ of error on the part of the People. On the trial it appeared that the defendant and Kava- nagh met, having had little previous acquaintance. After a few angry words, Kavanagh knocked defendant down two or three times with his fist, upon slight, if any, provocation. There was evidence tending to show that after Kavanagh knocked the defendant down, he got upon him, and struck him while he was down, and threat- ened to take his life. After he was knocked down, and either while he was down, or while he was standing, (the evidence leaving that point somewhat in doubt), the defendant stabbed Kavanagh with a knife, inflicting a wound of which he died the next day. The evidence tended to show that when the defendant used the knife, 912 THE PEOPLE V. SCHEYVER. he had reason to believe, and did 'believe, tliat Kavanagli intended to kill him, or do him great personal injury. There was no dispute upon the trial, that the defend- ant killed Kavanagh in the manner alleged. But the- dispute upon the evidence was whether the killing was necessary in self-defence, and whether the defendant really believed it to be necessary. The Court charged the jury, among other things, as follows : " In all criminal cases there are two funda- mental rules to be borne in mind by the jury ; the on& is that the prisoner is to be presumed innocent until proved guilty ; the other is that the prisoner is entitled to the benefit of any reasonable doubt. But in this case,, this last rule is only to be applied by you, subject to the- conditions and modifications that I shall lay down to you. The killing, in this case, has been proved, and is conceded, and there is no doubt as to the identity of the prisoner. " With these conceded facts, the prisoner asserts that the killing was in self-defence, and was justified by the; law. It is for him to make this allegation good by proof. If the defendant has given no proof tending to show that the act was committed in self-defence, the necessary defence of his person, there is no question before you on this point. If he has given evidence, or if any of the evidence in the case tends to show such a de- fence, then the question before you is, whether such evi- dence is satisfactory and sufficient." To each and every portion of said charge, the defend- ant then and there duly excepted. The Court further charged the jury : " It is for the pris- oner to satisfy the jury beyond a reasonable doubt, that he did apprehend, and had reason to apprehend, that he was in imminent danger of his life, or of the infliction of some great personal injury. " If the evidence falls short of this, and only raises a doubt whether or not the prisoner stood in fear of his life or his person, that is not sufficient to acquit the- BRIEF OF COUNSEL. 913 prisoner. The evidence must go one step further, ai^ satisfy this jury, beyond reasonable doubt, on this point." To each and every of which propositions, the defend- ant then and there duly excepted. Frederick L. WestbrooTc, District-Attorney, for the plaintiff in error, insisted that the killing with a danger- ous weapon being proved and conceded, the burden of proof of justification was upon defendant, and the* defence of justification must be proved heyond a rea^cm- aSZe doubt, citing: Cases cited in Wharton's Cr. Law, 614; The King v. Oneby, 2 Ld. Raym., 1485; 1 Alison's Cr. Law, 49 ; Com. v. York, 9 Met., 115 ; Darry v. People,. 2 Park, 638; People v. McLeod," 1 Hill, 436; T: O. Self- ridge's case,*" Wharton's Law of Homicide, 457 ; Bex v.. Thomas, 7 Car. & Pay., 817 ; Com. v. Poke, Lewis' C. L., 394-7; Wharton's Law of Homicide, 189-191; Burr, on Cir. Ev., 446 ; Roscoe's Cr. Ev., 18 ; Tweedy v. State," & Iowa, 534 ; State v. Knight, 43 Maine, 11 ; Com. v. Knapp^ 10 Pick., 484; Com. v. Webster, 5 Cush., 324; Fife v. Com., 29 Penn., 429 ; People v. Cotteral, 18 John., 120 ; Lord Maksfield's charge in Bellingham's case, 1 Collin- son on Lunacy, 671, and 1 Russ. on Cr., 11 ; McNaughten'^s case, 47 Eng. C. L. R., 131 ; Com. v. Rogers, 7 Met., 500 ; State V. Spencer, 1 Zabriskie, 196 ; East's Crown Law, 279; Foster's Crown Law, 290; 4 Bla. Com,, 201; 2 Starkie on Ev., 489; 1 Russ. on Cr., 614-616; Reg. v. Smith,* 8 Car. & Pay., 160 ; People v. Stonecifer, 6 Cal., 405; State V. Neely,* 20 Iowa, 108 ; People v. Arnold,' 15 Cal., 476 ; Bacon, J., in Patterson v. People, 46 Barb.^ 625. As to the term " beyohd a reasonable doubt," he cited Will's Cir. Ev., 7; Burr, on Cir. Ev., 200; 2 Colby [?] Cr. L., 189 ; People v. McCann, 16 N. Y., 69, in view of the language of the charge in Com. v. Rogers, 7 Met., 505 ; State V. Spencer and Patterson v. People, swpra. Wm. Lomishv/ry, for the defendant in error. » Ante, p. 784. * Ante, p. 1. ' Ante, last case. * Ante, p. 130. « Anity p. 106. M7i!!e,p. 600. 914 THE PEOPLE V. SCHRTVEE. Eael, Ch. J., delivered the opinion of the Court: On the trial, the people endeavored to show that the killing was manslaughter in the third degree ; and the prisoner that the killing was in self-defence, and thus justifiable homicide. The Court charged the jury that the prisoner was bound to prove his defence of justifi- able homicide " beyond a reasonable doubt." In this I think the Court erred. The statute defining manslaughter in the third degree, is as foUows : " The killing of another in the heat of passion, without a design to effect death, by a dangerous weapon in any case, except wherein the killing of another is herein declared to be justifiable or excusable, shall be deemed manslaughter in the third degree. " 3 R. S., 5th «d., 940, §12. Homicide by any person is declared by the statute, lb., p. 939, §3, to be justifiable in the following cases: 1. When resisting any attempt to murder such person, •or to commit any felony upon him, etc ; or 2. When committed in the lawful defence of such per- son, etc., when there shall be a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent dan- ger of such design being accomplished." Then it is provided by section 5, on page 940, that "whenever it shall appear to the jury on the trial of any person indicted for murder or manslaughter, that the a,lleged homicide was committed under circumstances or in cases, where, by law, such homicide was justifiable or excusable, the jury shall render a general verdict of not guilty." 'Now, what is the rule of evidence as to the burden of proof, not in a case where the prisoner is attempting to show that the homicide is manslaughter instead of mur- der, but in a case where he is attempting to show that .an admitted homicide was justifiable under the statute ? In civil cases, \vhere the mischief of an erroneous conclu- sion is not deemed remediless, it is not necessary that BUEDEN" AND QUANTUM OF PEOOi'. 915 the minds of the jurors be freed from all doubt; it is their duty to decide in favor of the party on whose side the weight of evidence preponderates, and according to the reasonable probability of truth. But in criminal cases, because of the more serious and irreparable nature of the consequences of a wrong decision, the jurors are required to be satisfied beyond any reasonable doubt of the guilt of the accused, or it is their duty to acquit him, the charge not being proved by that higher degree of evidence which the law demands. In civil cases, it is sufficient if the evidence on the whole agrees with and supports the hypothesis which it is adduced to prove ; but in criminal cases it must exclude every other hy- pothesis but that of the guilt of the party. 1 G-reenleaf 's Ev., §13 a; 3 lb., §29; People v. McCann, 16 IST. Y., 58. Reasonable doubt is defined by Chief Justice Shaw, in ■Com. V. Webster, 5 Cush., 320, to be " that state of the case which, after the entire comparison and considera- tion of all the evidence, leaves the mind of the jurors in that condition, that they cannot say they feel an abiding •conviction, to a moral certainty of the truth of the charge." This degree of certainty is never required in civil cases, but is required in criminal cases by reason of the humane regard which the law has for the life and liberty of the persons put upon trial for crimes. It is a rule, applicable to criminal as well as to civil trials, that the party having the affirmative of any prop- osition, has the burden of proof, and the people must, in all cases, sustain this burden beyond a reasonable doubt. But this does not mean that they must thus establish every fact involved in the trial. They must thus establish all the material allegations contained in the indictment They must thus prove the crime, the corpus delicti. In all cases of voluntary, intentional homicide, it is sufficient for the people to prove, beyond a. reasonable doubt, that the prisoner killed the person, whose life is alleged to have been taken, and then the burden is upon the prisoner to show that it was justifi- able or excusable, if he claims that it was either. In 916 THE PEOPLE V. SCHEYVBB. Foster's Crown Law, 255, it is said : "In every charge of murder, the fact of hilling being first proved, all the cir- cumstances of accident, necessity or infirmity are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him, for the law pre- sumeth the fact to have been founded in malice, until the contrary appeareth, and very right it is that the law should so presume. The defendant, in this instance,, standeth upon just the same ground that every other defendant doth ; the matters tending to justify, excuse or alleviate, must appear in evidence before he can avail himself of them. ''^ In Legg's case, Kel. 27, John Legg- was indicted for the murder of Robert Wise ; and " it was upon the evidence agreed, that if one kill another and no sudden quarrel appeareth, this is murder, and it lieth on the party indicted to prove the sudden quarrel." This was approved in the leading case of the King v. Oneby (2 Ld. Raym., 1485), in which one objection to the verdict was, that the homicide was upon a sudden quarrel, and so but manslaughter, whereupon the Court stated the rule, thus : " In answer to this ob- jection, I must first take notice that when a man is killed, the law will not presume that it was upon a sud- den quarrel unless it is proved to be ; and, therefore, in Legg's case it was agreed upon evidence, that if A. kills. B., and no sudden quarrelappears, it is murder; for it lies on the party indicted to prove the sudden quarrel."' In Hawkins, ch. 31, § 32, it is laid down that whenever it appears that a man killed another, it shall be intended prima facie that he did it maliciously, unless he can make out the contrary, by showing that he did it on a sudden provocation, etc. In 4 Bla. Com., 201, it is said: " We may take it for a general rule, that all homicide is malicious, and, of course, amounts to murder, unless when justified, excused or alleviated into manslaughter ; and all these circumstances of justification, excuse or alleviation, it is incumbent upon the prisoner to make out to the satisfac- tion of the Court and jury." In Best's Right to Begin BURDEN AND QUANTUM OF PROOF. 917 and Reply, page 19, it is said: "Although the law never presumes guilt or fraud in the first instance, yet it is held that where a homicide has once been proven, the law will presume that it was done maliciously, and cast on the party accused, the onus of proving either his com- plete justification or excuse, or such palliating circum- stances as may reduce the offence to manslaughter." To the same effect, see 1 Alison, Cr. Law, 49 ; 1 Russell ■on Crimes, 1st Ed., 614-616; 1 Greenleaf, §34; 1 Whar- ton's Cr. Law, §§ 614, 708, 709 ; "Wharton's Law of Homi- cide, 458 ; People v. Stonecifer, 6 Cal., 405 ; People v. Cotteral, 18 John., 115 ; People v. McLeod, 1 Hill, 377, 436 ; Com. v. York, 9 Metcalf, 93. In York's case. Chief Justice Shaw has discussed the question with a great wealth of learning and thorough- ness of research, and he says : " Suppose a party in- dicted for manslaughter, and that the defence should be -excusable self-defence. Suppose the fact of killing should be clearly proved, but an attempt to prove a previous violent attack upon him by the deceased should fail, although the evidence might tend to raise some doubt whether there was not such previous attack. The •conviction in such case must rest on proof establishing the corpus delicti byond reasonable doubt, although the whole evidence would raise a doubt, whether there had not been such previous attack. The proof establishing the necessity for such taking of life in self-defence, must be satisfactorily made out. Raising a doubt would be insufficient." In the case of The People v. Mc Cann, 16 N. Y., 58, the presiding justice at the trial charged the jury, that the prisoner was bound to prove his defence of insanity "beyond a reasonable doubt." Whether this charge was correct or not, was the only question for the consid- eration of the Court of Appeals, and it was held to be incorrect, and the judgment was reversed. Two opinions were written ; Judge Bowen held that it was enough for the prisoner to establish this defence, as insanity would be proved in a civil case, by a preponderance of evidence. 918 THE PEOPLE V. SCHRYVEE. Judge Broww held, that while the law presumed every man to be sane, when the prisoner introduced evidence tending to show his insanity, the burden devolved upon the People to prove his sanity, like any other material fact in the case, beyond a reasonable doubt. It does not appear that the Court concurred in this view. It was sufficient for the Court to hold that the charge was too unfavorable to the prisoner. Before Judge Beoww's opinion shall be taken as the settled law, the question will need further consideration, as it does not seem to be supported by the current of authorities. The j udge presiding at the trial of this case, is said to- have followed in his charge, the case of Patterson v. The- People, 46 Barb., 625, in which, in a case of homicide, it was held in substance, that the prisoner was bound to- prove his j ustification beyond a reasonable doubt. Ifo authority is cited to uphold this rule, and it is clearly against every authority that can be found in the books. The rule that the corpus delicti must be proved be- yond a reasonable doubt, was intended as a shield to prisoners, and must never be used as a sword. In the language of Lord Hale, tutlus semper est errare in ac~ quittando, quam in puniendo, ex parte miser icor dice,, quam ex parte justiticB. The People, in every case of homicide, must prove the corpus delicti beyond a reasonable doubt, and if the prisoner claims a justification, he must take upon him- self the burden of satisfying the jury by a preponder- ance of evidence. He must produce the same degree of proof that would be required if the blow inflicted had not produced death, and he had been sued for assault and battery, and had set up a justification. When a man takes human life, upon which the law sets a high value, it is not sufficient for him to raise a reasonable doubt, whether he was justifiable or not, but he must go- one step further, and give satisfactory evidence that he was justified. This rule is sufficiently humane to the prisoner, and at the same time gives some protection to human life. BURDEN AND QUANTUM OF PROOF. 919 If the conclusion which I have thus reached were not sufficiently clear upon reason and authority, I might rest it upon the wording of the statute as above cited. The statute, after defining murder, manslaughter, and justifi- able and excusable homicide, provides in section five, that whenever "it shall appear to the jury" that the homicide was justifiable or excusable, the jury shall render a verdict of not guilty. Here is the rule just as I claim it to be. The prisoner must make it appear to the jury that he was justified. It is not sufficient for him to raise a reasonable doubt, neither is it necessary for him to establish his justification beyond a reasona- ble doubt. He must make his defence appear to the jury; availing himself of all the evidence in the case given on either side. Nothing more and nothing less is required. The judgment should therefore be affirmed. Sutherland, J., said: The case made by the testi- mony of the witnesses on the part of the People in this case, was the case of an affray between the deceased and the prisoner, commenced by a most unjustifiable and violent assault of the deceased upon the prisoner, in or during which affray, the prisoner stabbed the deceased with a knife, and killed him. I think on the case made by the testimony of the wit- nesses for the People alOne, the prisoner, without being^ sworn and testifying himself, and without calling a wit- ness, had the right to have the question, whether the homicide was, under the circumstances, justifiable, sub- mitted to the jury in a proper way. The case made by the evidence on the part of the People, relieved the prisoner from the burden of show- ing, on his part, that the fatal wound was given, during or in an affray, and under' circumstances which gave him the right to have the question as to the justifiableness of the homicide submitted to the jury. It is not necessary, therefore, in this case, to determine whether the charge of the Court to the jury would have been right, had the burden been on the prisoner to show 980 THE -PEOPLE V. SCHEYVEE. that the homicide was committed in an affray, and under circumstances which gave him the right to have the question of justifiableness submitted to the jury. It is clear, taking the case made by the evidence on the part of the People, that the following part of the charge, to-wit: "The killing in this case, has been proved, and is conceded, and there is no doubt as to the identity of the prisoner. With these conceded facts, the prisoner asserts that the killing was in self-defence, and justified by the law. It is for Mm to make tMs allega- tion good by proof. If the defendant has given no proof, tending to show that the act was committed in self- defence, the necessary self-defence of his person, there is no question before you on this point," etc., was errone- ous, and was likely to have, and probably did have, a very unjust and improper influence with the jury, in producing their verdict. The charge tended to deprive the prisoner of the bene- fit of the circumstances under which the homicide was committed, as shown even by the testimony on the part of the People. The judgment of the General Term of the Supreme Oourt, reversing the judgment of the Court of Sessions, sJiould be affirmed. All the judges concurring for affirmance, except IifGALLS, J., who did not sit. Judgment affirmed. SYLLABUS. 921 SILVUS V. THE STATE. [22 Ohio State, 90.] Supreme Court of OMo, December Term, 1871. John Welch, Chief Justice. William White, Luther Day, George W. McIlvaine, William H. West, Judges. Homicide in self-defexce — Burden and quantum of proof. 1. On the trial of an Indictment for murder, the bm-den of proving that the homicide was excusable on the ground of self-defence, rests on the defendant, and must be established by a preponderance of the eyidence. [Ace. last case.] Error to the Court of Common Pleas of Athens County. The defendant was indicted for murder in the second degree, and convicted of manslaughter. It appears from the evidence, that the deceased, Lester Wines, came to his death from a wound in the neck, which severed an artery, and that the wound was inflicted with a knife, hy the defendant, while he and the deceased were togetlier in a corn-field, no third person being present. The State among other things, gave in evidence certain confessions of the defendant, in which he stated that what he did to the deceased was done in self-defence. The defendant testified on his own "behalf, and, in «flEect stated that, a dispute arising between him and the deceased, the latter threatened to beat him, and did strike him, and that he, through fear, and in self-defence, struck the deceased with the knife. The evidence of the State tended to disprove the grounds of self-defence claimed by the defendant. The evidence being closed, the Court among other 922 SILVUS V. THE STATE. things, charged the jury as follows: "The defendant having admitted the taking the life of the deceased, Lester Wines, and seeking to show that he took it in self-defence, the burden of proof is on him to show, "by a preponderance of eyidence, that what he did was necessary to be done in order to save his own life, or to protect himself from enormous bodily harm." And the Court also charged as follows : " In order that the defendant may avail himself of the plea of self- defence, it is necessary that he show the jury, by a. preponderance of evidence, that when he struck the mortal blow, he was actuated by fear and apprehension of death or great bodily harm, at the hands of the^ de- ceased, Lester Wines ; and, moreover, that he had reas- onable grounds for entertaining such fear and apprehen- sion. The mere fact that the defendant is an old man is not conclusive of this question. But the jury will look to all the circumstances of the transaction, as well as the relative age and strength of the parties." To these instructions, the defendant excepted. And the defendant's counsel asked the Court to in- struct the jury as follows : " That the State must prove to the jury, beyond a reasonable doubt, that the killing of Lester Wines was unlawful, and that the blow that caused the death of Lester Wines, was struck unlawfully and not in self-defence, and if the State shall fail to satisfy the jury, beyond a reasonable doubt, that the said killing was done unlawfully, then the verdict must be for the defendant." This instruction the Court re- fused to give, and the defendant excepted. Sentence having been pronounced against the defend" ant, the case is brought here, on writ of error, for reversal of the sentence and for a new trial, on the ground that the Court erred in its charge to the jury, and in refusing to charge as asked. W. Reed- Oolden, and C. H. Golden, for plaintiff in error ; Charles Townsend, Prosecuting- Attorney, for the State. BURDEN ATSTD QUANTUM OF PEOOF. 923- White, J. : The cliarge of the Court in this case is to be understood in the light of the case made by the evi- dence on the trial. There was no dispute as to the fact that the deceased came to his death from a wound in a vital part, inflicted by the defendant with a deadly weapon. This was admitted by the defendant in his testimony ; and he sought to justify or excuse the act on the ground that he did it in self-defence. The only question, therefore, is, whether the law de- volved upon him the burden of showing the existence of the circumstances necessary to constitute a justification or excuse. The Court in its charge, ruled that it did, and that a preponderance of evidence was all that was required for the purpose. The gist of the instruction which the- Court refused was, that the burden was on the State to- show, beyond a reasonable doubt, by affirmative evi- dence, otherwise than by the presumption arising from the homicide^ that the fatal wound was not inflicted by the defendant in self-defence. The proposition contained in the instruction would not only destroy the presumptions arising from the homicide, but, by its adoption, what is recognized in the books as a defence, would cease to be such in any just sense, because the burden would be cast upon the State, of de- stroying its existence in order to support the indictment. We think the ruling of the Court was right, both upon principle and authority. In Best on Presumptions, it is said to be a presumptio jurii, founded partly on the principle that every person must be taken to intend that which is the immediate and natural consequence of his deliberate acts, but deriving additional force from con- siderations of public policy, that, where the fact of slay- ing has been proved, malice must be intended, and that all circumstances of justification or extenuation, are ta be made out by the accused, unless they appear from the evidence adduced against him. Sec. 129, p. 177. The same doctrine is laid down in Foster's Crown Cases, :924 siLVcrs V. the state. 225; 1 Hawk. P. C, ch. 13, §32; 1 Bast P. C, 224, §12; 4 Bla. Com., 201. The text writers are fully supported by tlie adjudged ■cases. In Legg's case, reported in Kelyng, 27, John Legg was indicted for the murder of Robert Wise ; and " it was upon the evidence agreed, that if one kill another and no sudden quarrel appeareth, this is murder, and it lieth upon the party indicted to prove the sudden quarrel." In the leading case of The King v. Oneby, 2 Ld. Raym., 1493, the question arose on a special verdict. The objec- tion was, that the homicide was on a sudden quarrel, and so but manslaughter ; whereupon. Lord Raymond, €h. J., delivering the unanimous opinion of the Court, stated the rule thus: "In answer to this objection, I must first take notice that when a man is killed, the law wiU not presume that it was upon a sudden quarrel, unless it is proved to be ; and, therefore, in Legg's case, it was agreed upon evidence, that if A. kill B., and no sudden quarrel appears, it is murder ; for it lies upon the party indicted to prove the sudden quarrel." The same principle pervades the later English cases. Thus, in the case of The King v. Grreenacre, 8 Car. & Pay., 42, Tindal, Ch. J., instructed the jury, thus : " There are several principles of law relating to this subject, one of which is perfectly clear, viz : that where it appears that one person's death has been occasioned by the hands of another, it behooves that other to show from evidence, or by inference from the circumstances of the case, that the offence is of a mitigated character, and does not amount to the crime of murder." See also Regina v. Kirkham, lb., 116. The same rule was recognized and applied by the Su- preme Court of this State in the case of the State v. Turner, where the presumption was held to be limited under our statute, to murder in the second degree. Wright, 20. And by the Supreme Court of Massachu- setts in the case of The Commonwealth v. York, 9 Metcf., BTJEDEN AND QUANTUM OF PROOF 925 93, and in the subsequent case of The Commonwealth v, Webster, 5 Cush., 305. True, in the foregoing cases, the question was on reducing the homicide from a higher to a lower grade. But if the burden is on the defendant to show circum- stances of mitigation, a fortiori, is the burden on him to show the circumstances to wholly excuse the act. In Rex. V. Morrison, 8 Car. & Pay., 21, the defendant was on trial for manslaughter. It was argued that as no witness was present at the giving of the wounds from which death ensued, it could not be said that it was not accidental. In response to this claim, Park, J., said: " I cannot agree in that view of the case. Because no person was present, is it to be inferred that it was an accident, without any evidence on the part of the pris- oner? I say not."* And the learned judge goes on to say, that if the homicide be shown to have been oc- casioned by the prisoner, "it will be murder or man- slaughter, as the circumstances may turn out, unless it is shown by the prisoner to have been occasioned by accident." And in the late case of The People v. Schryver,? before the Court of Appeals of New York, (42 K Y.,' 1,) the defendant, on a charge of manslaughter, set up that he killed the deceased in self-defence. The Court held that " the People, in every case of homicide, must prove the corpus delicti beyond a reasonable doubt, and if the prisoner claims a justification, he must take upon him- self the burden of satisfying the jury by a preponderance of evidence." And it was said : " He must produce the same degree of proof that would be required, if the blow inflicted had not produced death, and he had been sued » The very absurdity of this conclusion carries with it its own refuta- tion. In England, and in most of the American States, the prisoner's mouth is sealed, and he is not allowed to utter a word of explanation which can have the effect of evidence before the jury. And, what is more barbar- ous, his wife could not, if she were present. How, then, in many cases, is he to show by evidence, if no person was present, that the killing was accidental ? — Eds. b Ante, last case. •926 SILVUS V. THE STATE. for assault and battery, and had set up a justification." A like principle prevails where the defence of insanity- is set up. The materiality of the fact of insanity upon the issue, is to rebut the criminal intent of the injurious act, which is presumed to exist from sanity. In regard to this defence, the rule is, that the burden is on the de- fendant to establish it by a preponderance of evidence. •Clark V. State, 12 Ohio, 494 ; Loeffner v. State, 10 Ohio St., 599 ; Commonwealth v. Eddy, 7 Gray, 583. The principle of these decisions is, that, in judicial investigation, facts legally presumed are, until rebutted, .as effectual as facts proved. And where a party claims to control the legal effect of facts by the alleged exist- ence of other facts, the burden is on him to show a pre- ponderance of evidence in favor of the existence of the latter. Facts which are neither proved, nor to be pre- sumed, are, for judicial purposes, regarded as not ex- isting. In regard to the suggestion that the charge was calcu- lated to mislead the j ury, by depriving the defendant of the benefit of grounds of jui^tification or excuse arising out of evidence produced by The State, we' deem it only necessary to say, we do not think the charge can be fairly understood as withdrawing from the consideration of the jury, any evidence in the case, tending to show such justification or excuse. We understand the mean- ing of the charge to be no more than this, that the burden was on the defendant to show, from the evidence in the case, that the grounds of self-defence existed, which would justify him in taking the life of the de- ceased. Judgment affirmed. SYLLABUS. 927 STOKES V. THE PEOPLE. [53 N. Y.— ] Court of Appeals of New YorTc, June, 187 S. - Judges. Sanpord E, Church, Chief Justice. William F. Allen, Rupus W. Peckham, Martin Grover, Charles J. Folger, Charles A. Rapallo, Charles Andrews, Homicide — Threats, commdmicated and uncommunicated — ^Malice not presumed from fact of killing — bukden does not shift upon prisoner — sufficient if prisoner raise a doubt that the killing was felonious. 1. In trials for homicide, evidence of threats made by the deceased against the accused, and communicated to the deceased before the killing, is admissible as tending to create a belief in the mind of the accused that his life was in danger, or that he had reason to apprehend some great bod- ily harm from the acts and motions of the deceased. 2. Where evidence has been given, making it a question for the jury whether the killing was excusable self-defence, evidence of threats made by the deceased against the accused a short time before the killing, but not communicated to the accused before tlie killing, is equally admissible. [Ace. Campbell's case, ante. p. 282 ; Little's case, ante, p. 487 ; Goodrich's ■case, are constitute the crime of murder in the first degree, and further, that he correctly instructed them that the People must prove all these facts, to authorize the jury tO' render a verdict convicting him of that crime. But how does this cure the error of the instruction,, that the law implied all the necessary additiofial facts from the proof of the killing ? It was in eff'ect instruct- ing the jury, that although the People must prove all these facts, yet they have done so by proving the killing, and by that the case of the prosecution was fully and: entirely made out, and that this proof made it the duty of the prisoner to satisfy them that it was not murder^ which the law would imply from that proof, thus in efi^ect instructing the jury that the proof the killing cast the burden of proof upon the prisoner to show that it was not murder, but manslaughter or justifiable homi- cide. No such burden of proof was by that cast upon the- prisoner. Lamb v. C. & A. R. R. Co., 46 IST. Y., 271. The further instruction to the jury, to the effect that the law required no particular length of time between forming the design to kill, and the act by which the death was effected, had no relation to or bearing upon the point in question. The jury may as matter of fact find the design to kill from the act by which death was- effected, and all facts, except that of the killing itself,^ required to constitute murder in the first degree, hy proof of circumstances which convince them of the truth of such facts. They are to pass upon the whole case,, inferring facts from the proof of other facts which con- vince their judgment of the truth of the facts inferred^ bearing in mind that the burden of proof is upon the prosecution, as to all the facts necessary to constitute- guilt during the entire trial, and that their verdict should be the conscientious expression of their convictions de- rived from all the evidence. It is unnecessary to pass upon any of the questions PRESUMPTION OF MALICE — BURDEN OE PROOF, ETC. 935 arising upon the offer of the plaintiff in error, to assign error in fact upon the judgment. As to these we will simply remark, that we think they were properly dis- posed of upon the motion for a new trial. But for errors m rejecting competent evidence offered by the prisoner, and in receiving incompetent evidence against him, and in the part of the charge excepted to, the judgment must be reversed and a new trial ordered. Rapallo, J. : I am satisfied that the conviction in this case cannot be sustained without the violation of settled principles of law, and it necessarily follows that I must vote for a reversal. While concurring in the reasons assigned by my learned associates for coming to the same conclilsion, I will briefly state the considerations which to me seem controlling, independently of the numerous other points which have been discussed. It is a cardinal rule in criminal prosecutions, that the burden of proof rests upon the prosecutor, and that if, upon the whole evi- dence, including that of the defence, as well as of the prosecution, the jury entertain a reasonable doubt of the guilt of the accused, he is entitled to the benefit of that doubt. The jury must be satisfied on the whole evidence, of the guilt of the accused, and it is clear error to charge them, when the prosecution has made out a prima facie case, and evidence has been introduced tending to show a defence, that they must convict, unless they are satisfied of the truth of the defence. Such a charge shows the burden of proof upon the prisoner, and subjects him to a conviction, though the evidence on his part may have created a reasonable doubt in the minds of the jury, as to his guilt. Instead of leaving it to them to determine upon the whole evidence, whether his guilt is established beyond a reasonable doubt, it constrains them to convict, unless they are fully satisfied that he has proved his innocence. The charge in this case, was, in my judgment, calcu- lated to convey to the jury that erroneoias rule for their guidance. They were virtually instructed that the kill- STOKES V. THE PEOPLE. ing being conceded, they should convict of the crime of murder, unless the proofs adduced hy th« prisoner satis- fied them that the circumstances under which the killing took place, were such as to justify his act, or reduce the grade of his oifence. Though, upon the whole evidence, they might be in doubt as to what the circumstances really were, the killing being conceded, this charge indi- cated that it was their duty to convict. The language of the charge to which exception was taken, is as follows : " The fact of killing in this case being substantially conceded, it becomes the duty of the prisoner here to ■satisfy you that it was not murder, which the law would imply from the fact of the killing under the circumstances, in the absence of explanation that it was manslaughter in^the third degree, or justifiable homicide; because, as I have said, the fact of killing being conceded, and the law implying malice from the circumstances of the case, the prosecution's case is fully and entirely made out ; and, therefore, you can Jiave no reasonable doubt as to that, unless the prisoner shall give evidence sufficient to sat- isfy you, that it was justifiable under the circumstances ■of the case." Argument «eems unnecessary to demonstrate the error 'Of this charge. It was a necessary part of the case of the prosecution, to establish that the homicide was per- petrated, with a premeditated design to effect the death ■of the person killed — yet the Court, assuming to deter- mine what the circumstances of the killing were, solemnly instructed the jury that the fact of killing being conceded, the law implied malice from the circumstances of the ■case, and that the case on the part of the prosecution was fully made out, and that the jury could have no reasona- ble doubt as to that, unless the evidence on the part of ihQ^xisoneT satisfied them that the killing was justifi- able. The Supreme Court in sustaining the judgment of the Court of Oyer and Terminer, do not attempt, to defend the legality of this charge. On the contrary, PRESUMPTION OF MALICE — BURDEN OP PROOF, ETC. 937 the very able opinion of Fancher, J., conclusively de- monstrates upon authority, that it is at variance with numerous adjudications and the settled law upon the subject. But it is claimed that the error may be overlooked, on the ground that the prisoner was not prejudiced there- by, and cases are cited which decide, that where it appears to the Appellate Court that error has been committed, yet, that the error could not possibly have prejudiced the party complaining, it will not be made a ground of reversal either in civil or criminal cases. In all these cases it will be found that the Court has been exceedingly careful so to limit this rule, as to ren- der it applicable only where by no possibility could the error have produced injury, and even this was an inno- vation upon ancient rules, under which it was a matter of course to reverse when error appeared, without en- quiring into its materiality. That so vital an error as one which should or might mislead the jury on the question as to the party on whom the burden of proof rested, could come within the category of those which could not possibly prejudice the determination of the case, is utterly inadmissible. Ifothing short of an unequivocal retraction of that por- tion of the charge, could have removed from the minds of the jury, the impression which it was calculated to produce. It was the concluding portion of the charge, and afforded the jury a simple rule for their guidance in their consultation. The fact of killing was, as they were told, conceded. They were further told, that it was the duty of the prisoner to satisfy them that this killing was not murder. That the law implying malice from the circumstances of the case, the prosecution's case was fully and entirely made out, and, therefore, they could have no reasonable doubt as to that, unless the evidence on the part of the prisoner satisfied them that it was justi- fiable under the circumstances. Their enquiry was thus reduced to whether they were satisfied of the truth of the allegations on the part of the defence. If they were in 938 STOKES V. THE PEOPLE. doulat whether these were true or not, they were bound ta convict. It seems to have struck the mind of the learned judge at the time, that the rule thus laid down by" Mm, encroached somewhat upon the principle that the prisoner was entitled to the benefit of a reasonable- doubt, and he immediately followed by stating that, ordinarily, juries should give the prisoner the benefit of any doubt that may exist in the case, and that he did not know that even this was an exception to the rule, and he proceeded to instruct them generally upon the subject of reasonable doubts. It is impossible that we should know whether these instructions effectually eradicated from the minds of the jury, the erroneous impression calculated to be produced by the previous portions of the charge, and we cannot, therefore, pronounce as a conclusion of law,, that it had no influence upon the verdict. Whether, under a proper charge, the jury would have come to the same result, it is not within our province to decide. The determination of the facts rests wholly with the jury. It is for the Court to instruct them as to the law, and these instructions they are bound to follow. If materially erroneous, it is the imperative duty of the appellate tribunal to grant a new trial. All the judges concurred. New trial granted. Note. — ^It was our intention to make a note upon the questions em- braced in the four preceding cases. The subject is a most fruitful one,, and much could profitably be said upon it ; but the unexpected size whioh this volume has attained, precludes us from entering upon it. We would, however, call attention to an able and exhaustive article on the question in the American Law Review for October, 1873, in which the case of Stokes is shown to be against the great weight of authority, though not entirely without support. It is evident that the profession are becoming more and more dissatisfied with the doctrine that malice is to be pre- sumed from the proof of killing without more, and also with the doctrine that, the fact of the killing being established, the burden shifts upon the defendant, of showing circumstances of excuse or justification. In ad- dition to Stokes' case in New Tork, and Twecdy's case in Iowa, we may note that the doctrine seems to be greatly shaken, if not overthrown, ia NOTE TO stokes' CASE. 93& Michigan, by the very able Supreme Court of that State, in Maher v. The People, 10 Mich., 212. See, also, the recent cases of State v. Murphy, 3S Iowa, 270, and State V.Porter, 34 Iowa, 131. INDEX. [The references are either to the first page of the case or to the page on which the point is ruled, or to both.] APPEAKANCES OF DANGER. Consult hi connection with this title, Imminence of Dan^gek. 1. To justify homicide, it is sufficient if the danger be apparent, though unreal. Wiltberger's case, 34 ; Shorter's case, 258 ; Logue's case, 269 ; Campbell's case, 282 ; Schnier's case, 286 ; Meredith's case, 298. Or reasonably apparent. Sehfridge's case, 4, 18 ; Sullivan's case, 70 ;. Neeley's case, 96 ; Forster's case, 143 ; Drum's case, 186 ; Shorter's case, 258. Instructions tested by this rule and held not erroneous. SuUivan's case, 70 ; Neeley's case, 101 ; note, 104; Lamb's case, 646. 2. If there is reasonable ground for beUevmg that there is a design to destroy hfe, to rob or commit a felony, a killing to arrest such design is justifiable. Harris' case, 276; Young's case, 401, note; Pond's case, 814. 3. The danger must be actual. Selfridge's case, 4 ; Thompson's case, 95. No contingent necessity will avaiL Thompson's case, 95. And examine Neeley's case, 196. 4. The rule of Wharton's Criminal Law, §1020, that to excuse homicide on the ground of self-defence, the danger must be actual and urgent, examined and criticized. Note, 104. 5. It is sufficient if there be actual danger, to the defendant's comprehen- sion as a reasonable man. The enquiry is, not whether the harm apprehended was actually intended by the assailant, but was it actual and real to the accused, as a reasonable man, as compared with danger remote or contingent. ColUns' case, 596, note. 6. The beUef that a person designs to kill me, will not prevent my killing him from being murder, unless he is malting some attempt to exe- cute his design, or, at least, is in an apparent situation to do so, and thereby induces me reasonably to think that he intends , to do it immediately. Scott's case, 171 ; Harrison's case, 71 ; Lan- der's case, 366, Newcomb's case 614, note. 7. A killing through fear, alarm or cowardice is excusable. Grainger's case, 238. Contra, Thompson's case, 95, 96; Shorter's case, 256; Shippey's case, 136 ; Lander's case, 366 ; and cases collected in note, 242, et seg. 942 rtTBEX. S. it a, man thinks himself in danger of great bodily harm, the Icilling is in self-defence. But if he thlnlcs that no more than a violent assault and battery is impending, the Itilling wUl be manslaughter. Grain- ger's case, 238. 9. The rule of Kex v. Thurston, 1 Den. C. C, 387, that the guilt of the prisoner must depend upon the circumstances as they appear to him, is approved. Neeley's case, 101. Pond's case, 814; Patten's case, '826 ; Kurd's case, 840. 10. In the selection and use of the means necessary for his defence, the defendant acts at his peril : he must act rationally. Meredith's case, 298. 11. To justify killing on the ground of self-defence, the attack must be of such a nature as to produce a reasonable expectation of death or great bodily harm, about to be inflicted. Isaac's case, 175 ; Lander's case, 375. 12. If the circumstances indicate to the slayer a plain necessity of protect- ing himself from great bodily injury, he is excusable if he slay his adversary with an honest purpose of saving himself from this great harm. Drum's case, 188. 13. It is sufficient if there be a reasonable apprehension of death or great bodily harm, so imminent at the moment of the assault as to present no alternative of escaping the consequences but by resist- ance ; though it afterwards appear that there was no actual danger. Logue's case, 269. 14. There must be reasonable ground for apprehending a design to kiU or inflict great bodily harm, and also reasonable ground for believing that the danger is imminent that such design will be accomplished. Shorter's case, 258; Sullivan's case, 65; note, 267 e< sej; Wesley's case, 326; Smith, J., in Lamb's case, 646. Contra, Dyson's case, 304. 15. And so by statute in Wisconsin and Missouri. 269, note. 16. Whether there was such a reasonable appearance of danger as would justify the killing, is a question of fact for the jurjr. Wiltberger's case, 39 ; Selfridge's case, 18 ; Harris' case, 276 ; Schnier's case, 285 ; Cotton's case, 316, 317 ; Meredith's case, 303 : Wesley's case, 327; Oliver's case, 725 ; McLeod's case, 784, 793, Morris v. Piatt, 768, 776 ; Shorter's case, (in Supreme Court, Marvin, J.,) 266, note. 17. In the solution of this question, the jury may consider the condition of both the parties. Oliver's case, 725, note ; Seibert's case, 686, note. Contra, Shoultz' case, 249, note, and other cases collected on pp. 242, et seq. 18. And they are to judge by the standard of a man of ordinary firmness and courage, and are not to regard the nervous susceptibilities of the prisoner. Note, 243, et seq. 19. But a person does not act in such a case at the peril of making that guilt, if appearances prove false, which would be innocence, if they prove true. Morris v. Piatt, 776 ; Shorter's case, 256 ; Pond's case, 814 ; Sloan's case, 517. INDEX. 943 20. The killing' must seem to be necessary to save tlie defendant from deatli or great bodily harm : to omit tiie latter in instructing a jury, is error. Beuham's case, 123 ; Burke's case, 126. 21. Men, when threatened with danger, must determine from the state of things surrounding them, as to the necessity of resorting to self- defence ; and if they act from reasonable and honest convictions, they will not be held responsible criminally, for a mistake in the extent of the actual danger, where other judicious men would have been alike mistaken. Campbell's case, 285. 22. The necessity must be such as to induce a belief in a reasonable mind that no other means exists, but to take the life of the adversary. Schnier's case, 286. 23. Or in the mind of a prudent man. Maher's case, 290. "24. The defendant must have had reasonable gi-ound to believe, and must have actually believed, that the other intended to proceed immedi- ately to the infliction of bodily harm, to justify stabbing as in self- defence. Kapp's case, 293. 25. It is erroneous to tell the jury that the killing was excusable, if the defendant had no safe means of escaping. The rule is, if io the com- prehension of a reasonable man he had no safe means of escaping, etc. Meredith's case, 301. ^ 26. The law allows in the defence of a man's person or property, such means as are necessarj'. In the selection and exercise of the means, he must, of necessity, exercise his own judgment. It is done at his peril ; and if he goes beyond what is necessary and thus violates the law, he must abide the consequences. In the exercise of his judg- ment, he must act rationally. This is required, and nothing less will suffice. Ibid, 302. 27. A reasonable belief that another intends to inflict some serious bodily harm, and that he is in such a position that he may carry his inten- tion into effect, will not excuse a killing of such person, unless there be an overt act indicating such a present intention. Hinton's caset 87, 88. 28. In Mississippi, a person is justified in slaying, if he act conscientiously, upon reasonable fears, founded upon present overt acts, to all appear- ances hostile, although there may have been no actual danger at the time. Dyson's case, 304. And so in Texas. Hinton's ease, 87, 88. 29. Under the Mississippi statute, reasonable ground of apprehension, and imminent danger of accomplishment of a felony, must both co-exist. Cotton's case, 315. 30. A party may have a lively apprehension that his life is in danger, and believe that; the ground of his apprehension is just and reasonable ; but if he act upon such belief, and take the life of a human being, he does so at his peril. He is not the final judge, whatever his appre- hension or belief may have been, of the reasonableness of the grounds on which he acted. Wesley's case, 326, 327 ; Evans' case, 340. 944 INDEX. 31. "Apparent danger," defined to mean overt, actual demoustratiotr. Evans' case, 336. 32. The doctrine of reasonable appearances of danger, illustrated by a- motion as if to draw a pistol, when it afterwards turns out that the- deceased had no pistol. Philips' case, 383. 33. A man ranj pursue one who has feloniously assailed him, until he may reasonably believe himself out of all danger. Young's case, 401, note 34. The fears of a reasonable man that a felony is about to be committed,. excuse homicide. Keener's case, 564. 35. If the prisoner was under similar fears of some act of violence less- than a felony, the oflFence is manslaughter. Ibid. 36. The Judge charged the jury as follows : " A man is not bound, if his life is in imminent peril or danger, to wait until he receives a fatal wound, or has some great bodily injury inflicted on him. If he think his life is in imminent peril, h.6 has a right to act upon that. thought and take life ; but if he does It, it is at the risk of a jury saying, wheji all the facts are developed before them, whether he was- justified in forming that opinion or not. If you are satisfied from the evidence, that the circumstances did not warrant the conclusion that he arrived at, and that he took life, it is no justification, and you have a right to convict. It is not his impressions alone, but the question is, whether those impressions at the time he formed them, were correct. If they were correct, it is a protection ; if they were- incorrect, then it affords him no immunity or protection." This charge was, in the opinion of Da vies, Ch. J„ Smith and Morgan, JJ., not erroneous, when taken as a whole; and Smith and Morgan, JJ., were of opinion that there were no facts proved to which a charge on the law of self-defence was applicable, and hence that it was not, if erroneous,- calculated to prejudice the defendant.. Lamb's case, 646. 37. There must be an actual necessity or a reasonable belief of such a. necessity. Noles' case, 697 ; Oliver's case, 725, And see Dill's case, 738. 38. Where the prisoner met a party of roysterers at midnight on a highway, and in a conflict staDbed and lulled one of them, his justification was held to depend upon the question whether the killing was necessaiy, and was not placed upon the ground of apparent necessity. John Bull's case, 736, note. 39. A man who is assaulted under such circumstances as to authorize a reasonable belief, that the assault is made with a design to take his life, or inflict extreme bodily injury, will be justified, both in the civil and the criminal law, if he kill, or attempt to kill, his assailant.. Morris v. Piatt, 768. 40. With reference' to homicide in the prevention of felonies, reasonable apprehension is sutHcient, precisely. as in all other cases. Pond's case, 814 ; Paitherford's case, 733, note ; Eoane's case, 735, note. 41. The law docs not require the necessity for taking life, to be one arising- INDEX. 945 out of actual and imminent danger, in order to excuse the slayer ; but he may act upon a belief, arising from appearances, which give him reasonable cause for it, that the danger is actual and imminent, although he may turn out to be mistalien. The guilt of tlie accused must depend upon the circumstances as they appear to him, and he will not be held responsible for a Itnowledge of the facts, vmless his ignorance arises from fault or negligence. Pond's case, 814. 42. If ;the assailant follows the defendant in a threatening manner, in order to frighten him, and so as to make Mm believe that a violent attack is imminent, it is immaterial whether a forcible attack was actually intended or not, Kurd's case, 840. ARKEST. Unlawfol, resistance of, 1. The force used must not be in enormous disproportion to the mjury threatened. Noles' case, 697 ; 713, note. 2. No right to kill, unless there is imminent danger of great bodily harm or felony, or reasonable belief of such danger. Ibid ; 713, note. 3. The charges of the Court in this case, and its refusal to give the charges asked by the prisoner, tested by these principles, and held correct. Ibid. 4. Killing in resistance of unlawful arrest, no more than manslaughter. Drew's case, 705 ; 716, note. Unless there be proof of express malice. 716, note. 5. If one, not a stranger, add the injured party by endeavoring to rescue him, or to prevent an unlawful arrest when actually attempted, and, in so doing, Idll tke aggressor, it will be no more than manslaughter. Drew's case, 705 ; 717, note 6. 6. Defence against unlawful arrests stands upon the same footing as defence against other non-felonious assaults. 713, note 1. 7. Exceptional cases stated. 715, note a. 8. Wanton exercise of lawful power to arrest may be resisted. 715, note 2. 9. Distinction between using a deadly weapon in resisting unlawful arrests and in defending property. 716, note. 10. Accidental killing in the lawful resistance of an unlawful arrest, excus- able homicide by misadventure. 717, note 5. 11. Duty of oflScer to make known his ofBcial character, etc., and kiUing where he has failed to do so. Logue's case, 263 ; Yates' case, 718, note 7. 12. KiUing in resistance of unlawful arrest, where the defendant does [not know that the arrest is unlawful. 719, note 8. 13. General rule touching the legality of process. 719-20, note 8. ASSAULTS. I. COMMON. 1. Defined. Rapps' case, 293 2. Sufficient force may be used in defence against; but if unnecessary 946 INDEX. foro.e be used, the defender becomes the assailant. Gallagher's case, 720; 723, note. 3. What acts or demonstrations will justify a man in striking in his defence. 723, note 1. II. WITH INTENT TO MUEDEE. 1. In order to convict, the circumstances must be such, that had the as- sailed person been killed, it would have been murder. Hopkinsou's case, 80 ; Rapp's case, 293. 2. It is not sufficient that the killing, had it been accomplished, would not have been excusable or justifiable; had it amounted to man- slaughter, it would not be suflloient to convict. Ibid. BARE FEAR. See AppEAEAfjCBS of Danger; Imminence op Danger. 1. Unaccompanied by overt act, no excuse for killing. Selfridge's case, 4; Shippey's case, 136. 2. At common law, did not extenuate homicide ; there must have been actual danger at the time. Dyson's case, 308. Sed quaere ; see note, 309. 3. How far this principle of the common law is modified by the Mississippi Statute. Ibid. 4. A bare fear, thoug-h honestly entertained, unaccompanied by overt act, no excuse under the Mississippi Statute. Ibid, 309; Wesley's case, 326. 5. The fear which wUl excuse homicide must not only be well founded, but honestly entertained. Rippy's case, 345 ; Williams' case, 349, 361. BELIEF OF DANGER. See Appearances of Danger; Imminence op Danger. BISHOP, Mr. His views on the subject of retreating before taking life commended. Note, 29. BOOKS OF THE LAW. Not to be taken by jury to their consultation room. Selfridge's case, 4 ; Keener's case, 559, and cases there cited. BURDEN AND QUANTUM OF PROOF— REASONABLE DOUBT. See Malice. 1. Upon the prisoner to show justification or excuse, where kilUng is proved. Drum's case, 186. INDEX. 947 2. Unless the matter of justification or excuse grows out of tiie original transaction. Tweedy's case, 905. 3. If the evidence leaves the prisoner's extenuation in doubt, he cannot be acquitted of all crime, but must bo convicted of manslaughter, at least. Drum's case, 190. Contra, Tweedy's case, 905. 4. Where the circumstances attending the killing are in evidence, its char- acter is to be gathered from the entire body of the testimony. Head's case, 341. 5. A kUhng with a deadly weapon is presumed to be murder ; and it de- volves upon the accused to show that he is guilty of a less crime or acted in self-defence. Hays' case, 494. €. In criminal cases the rule is, that the person charged is presumed to be innocent, until he is proven guilty. Tweedy's case, 905. 7. If, upon a consideration of all the evidence, there be a reasonable doubt of the guilt of the party, the jury are to give him the'benefit of such doubt. Ibid. 8. Neither a preponderance of evidence, nor any weight of preponderant evidence, is sufficient in a criminal case, unless it generates a full be- lief of the guilt of the party charged, to the exclusion of all reasona- ble doubt. Ibid ; Stokes' case, 927 ; The State v. Patterson, 12 Am. Law Eeg., N. S., 602. 9. Wlien the evidence relates solely to the original transaction, and forms a part of the res g stcs, the defendant has a right to claim that the proof made does not manifest his guilt, because it is left in doubt, whether the act was committed under unjustifiable circumstances. Tweedy's case, 905. 10. nence,where the matter of excuse or justification of the offence charged, grows out of the original transaction, the defendant is not driven to the necessity of establishing the matter in excuse or justification, by a preponderance of evidence, and much less beyond a reasonable doubt. Ibid. 11. On the trial of an indictment for murder, proof of the killing will not change the burden of proof, where the excuse or justification is ap- jtareut on the evidence offered by the prosecution, or arises out of the circumstances attending the homicide. Ibid. 12. Where, on the trial of an indictment for murder, the Court instructed tlie jury as follows : " 1. The facts of excuse or self-defence, must be proven to the minds of the jury, clearly, and beyond a reasonable doubt ; otherwise, they must find the defendant guilty of murder or manslaughter. 2. If the jury find that the defendant did kill the deceased, they must be convinced, beyond a reasonable doubt, of the facta offered in justification of the killing; and unless other justify- ing facts have been proven, they must be satisfied, beyond a reason- able doubt, that the deceased did attack the defendant, with a deadly weapon, and drive him to the wall, before the defendant can justify." JfeM, That the instructions were erroneous. Ibid. Ace. Schryver's case, 910. 948 INDEX. 13. In trials for homicide, it is incumbent upon the people to establish all the facts alleged in the indictment, beyond a reasonable doubt; but if the defendant seek to justify the homicide on the ground of self-defence, the burden is upon him, to make out such defence ;. and it is not sufficient in so doing, that he raise a reasonable doubt in his own favor, nor is it required that he establish such defence beyond a reasonable doubt ; but he must make such defence appear to the jury by the same preponderance of evidence that is required in civil cases. Schryver's case, 910. 14. But if, in such cases, the facts which give him the right to insist upon such a defence are brought out by the prosecution, it is error to in- struct the jury that it is incumbent upon the prisoner to make such a defence good, by proof, or to tell them that, he having offered no proof tending to make out such a defence, the question is not before them. Ibid. Aco. Tweedy's case, 905. 15. The biirden of proving that the homicide was excusable on the ground of self-defence, rests on the defendant, and must be cs^blished by a preponderance of the evidence. Silvus' case, 921. " 16. And it is not error to refuse to instruct the jury that the State must satisfy them beyond a reasonable doubt that the killing was unlawful, or they must acquit. Ibid. 17. The Court charged the jury as foUovirs : " The fact of the kiUing in this case being substantially conceded, it becomes the duty of the prisoner here to satisfy you that it was not murder, which the law would imply from the fact of the killing under the circum- stances, in the absence of explanation that it was manslaughter in the third degree or justifiable homicide; because, as I have said, the fact of killing being conceded, and the law implying malice from the circumstances of the case, the prosecutor's case is fully and entirely made out, and, therefore, you can have no reasonable doubt as to that, unless the prisoner shall give evidence sufficient to satisfy you that it was justifiable under the circumstances of the case." flisM, error and ground of reversal. Stokes' case, 927. 18. The doctrine of the presumption of malice from the fact of killing ; and of the shifting of the burden of proof upon the defendant upon the fact of killing being established ; and the degree of proof neces- sary to authorize an acquittal, where self-defence is urged in justifi- cation of the homicide, discussed at length and many authorities cited, in Tweedy's case, 905 ; Schryver's case, 910 ; Silvus' case, 921, and Stokes' case, 927. CASES CRITICIZED, OVERRULED, ETC 1. The three rules in relation to homicide in self-defence, laid down by Paekbe, J., in Selfridge's case, pp. 17, 18, approved in John Doe's case, 64. 2. The doctrine of Grainger's case, 238, that fear, alarm or cowardice will excuse homicide, overruled iu Thompson's ease, 96 ; in Sliortcr's case, 256; in Shippey's case, 136; and in Lander's case, 366. INDEX. 949 3. Grainger's case, 238, as modified by Copeland's case, 41, declared to be the law. Eippy's case, 345. 4. The law as laid down in Grainger's case, 238, and explained, analyzed and defined in Eippy's case, 345, held to be the law in Tennessee. Williams' case, 361. 5. Philips' case, 383, reaflEirmed in Cai'ico's case, ,389 ; and reaffirmed in part, in Bohannon's case, 395. 6. Carico's case, 389, overruled in part in Bohannon's case, 395. 7. Myers' case, 433, criticized by the editors. Note, 439. 8. Meade's case, 798, note ; Rector's case, 796, and Monroe's case, 442, distinguished in Hays' case, 492. 9. Eeins v. People, 858, note, examined and distinguished in Greschia'S case, 858-860. CAUTION TO BE EXERCISED IN ONE'S DEFENCE. 1. A killing in the doing of a lawful act, due caution being used, is excus- able. Benham's case, 124. 2. Or where such force is employed as is reasonably necessary. Hinch- clifi'e's case, 125, 126, note. 3. If a person accidentally kUl his antagonist with a loaded weapon, under circumstances in which it is not hre'ful to use such a weapon in his defence, it is manslaughter. Benham's case, 124. 4. To avoid injuring third persons. Morris v. Piatt, 768; Aaron's case, 784, note. CHAEACTER, I. Op the Accused. The good character of the accused always to be submitted to the jury, with the other facts and circumstances of the case. Wesley's case, 319 ; Dupree's case, 582 ; Dumphey's case, 685 ; Reynold's case, 686. n. Of the Deceased for Violence. 1. List of the cases on the subject : Copeland's case, 41 ; Robertson's case, 151 ; Cotton's case, 310 ; Eippy's case, 345 ; Monroe's case, 467 ; Garbutt's case, 17 Mich., 16 ; Eobert Jackson's case, 486 ; Little's case,[487 ; Keener's case, 546 ; Quesenberry's case, 549, note ; Tackett's case, 615 ; Barfleld's case, 018 ; Pritchett's case, 635 ; Franklin's case, 641; Lamb's case, 646; CoUins' case, 595, note.; State v. Hicks, 680, note ; State v. Keene, 681, note ; Payne v. Commonwealth, 683, note; Commonwealth v. Seibert, 686, note; State v. Smith, 688, note ; Fields v. State, (Ala.), 691, note ; Wesley's case, 319 ; Wright V. State, 484, note ; Field's case, (Maine), 629 ; State v. Tilly, 665, note ; Bottoms v. Kent, 666, note ; State v. Hogue, 673,note ; State V. Thawley, 675, note; State v. Chandler, 676, note; Common- "wealth V. York, 676, note; Commonwealth v. Hilliard, 678, note; ■Commonwealth v. Meade, 679,' note ; State v. Jackson, 679, note ; 950 INDEX. People V. Murray, 681, note; People v. Lombard, 681, notej, People V. Edwards, 682, note ; Wise v. State, 68H, note ; State v. Dumphey, 684, note ; Reynolds v. People, 685, note ; Commonwealth! V. Ferrigan, 688, note. 2. Bad character of deceased, no extenuation of the homicide. Robert Jackson's case, 484; Wright's case, 484, note ; Barfield's case, 621,, 622; Field's case, (Maine), 635; Pritchett's case, 639; Franklin's case, 642 ; Lamb's case, 661 ; Hogue's case, 674, 675, note ; Jackson's^ case, (Mo.,) 679, 680, note ; Hicks' case, 680, note ; Murray's case, 681, note ; Edwards' case, 682, 683, note ; Dumphey's case, 684, note ; Ferrigan's case, 44 Penn. St., 386. Contra, Fields v. State, (Ala.), 691, note. 3. The character of the deceased ; her bitter feelings towards the prisoner, as well as the great length of time she had been seeking to do the prisoner injury, are elements to be considered in determining the in- tention with which the deceased advanced to the attack of the prisoner. Copeland's case, 59. 4. Where the kUling Avas in mutual combat, and was claimed to have been done in self-defence, evidence was admitted of the character of the deceased— an Indian ; of his evil repute among his tribe ; of the fact that a portion of his tribe were hostile, and that the deceased him- self was under strong suspicions of hostility. Robertson's case, 152.. 5. Such evidence always admissible upon the question of reasonable fears. Cotton's case, 315, 316. 6. Such evidence not admissible unless drawn into the res gesicB by testi- mony tending to show immediate danger of death, etc. Wesley's case, 323. 7. Always admissible where threats are proved. Pasch. Dig., Art. 2270;, Pridgen's case, 416 ; Robert Jackson's case, 486. And see Bottoms V. Kent, 667, note. 8. Admissible in cases of doubt whether the homicide was done from malice or from a principle of self-preservation. Monroe's case, 467 ; Duke's case, 572, note. 9. Such evidence admissible, it seems, without reference to the question whether there is evidence tending to show that the accused was in danger of death or great bodily harm at the hands of the deceased. Little's case, 487. 10. A man may have dlfiforent characters adapted to different places and localities. Hence, it is competent to enquire, whether witness is acquainted with the general character of the deceased for violence at the, place where the difficulty occurred. Iteener's case, 546. 11. A slave cannot show in defence of a homicide by him of his overseer, the general management of the deceased on the plantation, with reference to violence and cruelty, or specific acts of unmerciful cruelty committed by him on other slaves, while acting as sucli overseer. Wesley's case, 319. 12. Evidence of the turbulent. Insolent and impudent character of (lie- deceased (a slave) toward white persons admitted, to raise prcsump- INDEX. 951 tion of a provocation, where the proof of the facts attending tlie homicide were circumstantial only. Tackett's case, 615. [This case severely criticized in a subsequent case in the same State. Bottoms V. Kent, note, pp. 617, 667.] 13. Evidence of the general character and habits of the deceased as to temper and violence not admissible, unless, possibly, where the evidence as to the homicide is wholly circumstantial. Barfield's case, 618 ; Battle, J., dissenting : Such evidence is admissible in all cases where the enquiry is, whether the defendant acted from malice or upon legal provocation or excuse. Ibid, 625. 14. Evidence that the deceased was well known by the accused and others to be a drunken, quarrelsome, savage, dangerous man, held incom- petent where the killing was in a personal conflict. Field's case, (Maine), 629. 15. The circumstances under which such evidence is admissible, and the reasons which support its admission, discussed and stated in Prit- chett's case, 636. 16. Where an ill-feeling existed between the prisoner and deceased ; and the deceased had made violent threats against the prisoner, which had been communicated to him, aad had, the day before the killing, made an assault upon the prisoner with deadly weapons ; and the prisoner loaded his gun and went to the house of the deceased, and there shot and killed the deceased, it was held, that evidence of the character for violence of the deceased was properly excluded. Pritchett's case, 635. [Under parallel circumstances in a later case in the same State, such evidence is held admissible in mitigation of the punishment. Fields v. The State, 693, note.] 17. Such evidence is held admissible where it qualifies, explains, and gives meaning and point to the conduct of the deceased. Franklin's case, 641 ; Pritchett's case, 635. 18. The judge should determine as a preliminary question whether such evidence is admissible. Franklin's case, 641. But see Robert Jack- son's case, 476 ; Pridgen's case, 416. 19. Where the prisoner and deceased were brothers, and the deceased came to the house where prisoner was, with a loaded gun, and used re- proachful language, but no threats ; and the prisoner complained that he was unarmed, and the deceased thereupon gave him his gun and walked away a few steps, and was in the act of sittuig down, when the prisoner shot and Idlled him with the gun ; — it was held^ that evidence of the character of the deceased for violence was properly excluded. Franklin's case, 641. 20. Character of deceased cannot, in general, be drawn in question. Lamb's case, 646, Davitss, Ch. J. 21. Such evidence can only be admitted in connection with evidence of an assault threatened or committed, or where a doubt is created as to whether the homicide was committed from malice or to repel an assault, or from a principle of self-defence. Lamb's case, 646. Davies, Ch. J. 953 IJSTDEX. 22. The evidence in this case set out at length, and held that no such question could ai'ise thereon. Ibid. 23. Before such evidence can be admitted, t must be shown that an assault was committed or threatened by the person slain at the time of-the homicide, or so immediately preceding it, or so intimately connected witli it, as to justify the taJiing of life in self-defence, or to ward_off greiit, impendhig and uuminent danger of bodily harm. Ibid. 34. And it must in every case be made to appear that the defendant knew of such character ; and although a husband may be presumed to know the character of his wife, yet it seems that in such a case, such knowledge ought to be affirmatively proven. Ibid. 25. Where the evidence as to the homicide was circumstantial, and the parties had threatened each other, and the defendant was a tenant of the deceased, evidence that the deceased was high tempered, overbearing and oppressive towards his overseers and tenants, was held properly rided out. Tilly's case, 665, note. 26. The question of admitting evidence of character as i^resumptive evidence in various cases exhaustively discussed, and many authori- ties cited, in Bottoms v. Kent, G66-673, note. 27. AVherc the kiUiug was in combat, both parties using deadly weapons, and the attack being mutual, evidence of the general character of the deceased was held inadmissible. Hogue's case, 673, note. 2S. Where on an indictment for murder, it was urged that the blow was struck in self-defence, it was held proper to refuse to permit a witness to testify that the deceased was a violent man, and in the habit of attacking others with dangerous weapons. [The facts are not stated, nor is any satisfactory reason, except lack of precedent, given for the ruling.] Thawley's case, 67o, note. 20. In a case where the evidence was conflicting as to whether the kUling was in combat and upon provocation, evidence that the deceased was a man of notoriously quarrelsome and fighting habits, and boastetl of his powers as a fighter, was excluded. [But observe the strong reasoning of Mr. Dana, in support of the motion, and the inconclusive answer of the Court.] York's case, 676, note. 30. Where there was evidence that there was an assault by deceased upon defendant immediately before inflicting the mortal blow, evidence that the general character and habits of the deceased were those of a quarrelsome, fighting, vindictive and brutal man of great strength, was excluded. HiUiard's case, 67S, note. 31. Where the killing was in combat, and the defendant oflered evidence that the deceased advanced and seized him by the throat, and that a brother of the deceased stood by with an uplifted spade, the Court refused to permit him to prove that the deceased was an experienced and practiced garroter, and excluded medical testimony, that from the manner of the death the deceased must have been a remarkably powerful man. Meade's case, (Mass.), 679, note. 32. Where there was evidence that the shooting (with intent to murder) was done with express malice, and the prosecutor told the defendant INDEX. 953 "uot to shoot; he was unarmed ; " evidence of the character of the man shot, for danger and desperation, was held properly excluded. Jackson's case, (Mo.), 679, note. 33. In a later case of homicide in Missouri, where there had been bitter hostility between the parties, and both were armed at the time of the kUling, evidence that the deceased was a turbulent, violent and dangerous man, was admitted, and it was held error to refuse to instruct the jury as to tlie weight of such evidence. Hicks' case, 680, note. 34. And ruled in the same case, that the rash, turbulent and violent disposi- tion of the deceased, if known to the defendant, is a circumstance to be considered by the jury in estimating the reasonable cause for defendant's apprehension. Ibid. 35. And ruled in a later case in the same State, that such evidence ought to be admitted, where it is doubtful whether the kUling was done maliciously, or upon a well grounded apprehension of danger. Keene's case, 681, note. 36. Such evidence will not be admitted unless the circumstances raise u, doubt as to whether the killing was in self-defence. Murray's case, 681, note. 37. As where there had been a previous quarrel and mutual threats, but' the kill in J- was done by surprise, the deceased going his lawful way, and apparently unarmed. Lombard's case, 681, note. So, under like facts, in Edwards' case, 682, note. 38. Such evidence excluded in a case in Kansas, but the facts not stated. Wise's case, 683, note. 39. In a case in Kentucky, the facts are not stated, but evidence that the deceased was a man of violent, cruel and blood-thirsty temper and disposition, in the constant habit of carrying concealed weapons, was held proper, but the judgment was reversed on other grounds. Payne's case, 683, note. 40. The circumstances under which such evidence will be admitted or excluded, discussed in Dumphey's case, 684, note. 41. Such evidence was held properly excluded where there was no evidence •that the prisoner knew the man he was killing. Reynold's case, 685, note. 42. Where the killing was in combat, and self-defence was urged in excuse, " the Court, for the purpose of aiding in the discovery of the character of the homicide, permitted defendant to prove the general character and disposition of the deceased as a quarrelsome, fighting, vindictive and brutal man of great physical strength, rejecting, how- ever, evidence of particular acts of brutality in fighting, etc." Seibert's case, 686, note. 43. Such evidence inadmissible where there is no other evidence tending to show that the kiUing was in self-defence. Ferrigan's case, 688, note. 44. Such evidence held proper in South Carolina,- in a case where the facts are not stated ; but held— 1. That there must be evidence making it appear that the defend- 954 INDEX. ant Icnew, or may reasonably be supposed to have known, such character. 2. The relevancy of such evidence must appear from the prior evidence in the case ; and the Court must necessarily have power to decide, subject to review, upon its relevancy. Smith's case, (South Car.), 688, note. 45. Evidence that the deceased was a violent, turbulent, revengeful, blood- thirsty, dangerous man, reckless of human life, held admissible where the killing was deliberately done with a weapon prepared for the occasion ; and for two purposes : 1. To be considered by the jury in reducing the degree of the crime. 2. To be considered by them in reducing the quantum of the punishment. pBut, see note criticizing this case] Field's case, (Ala.), G91-695. 46. Where a person is assailed and kills his assailant, it is competent for him to prove on trial for the homicide, that the deceased wns a man of high temper and quarrelsome disposition, and known by him to be such at the time of the killing ; and the exclusion of such evi- dence in such cases is a serious error. Hurd's case, 840, note. 47. The result of the foregoing cases summarized, and the views of the editors stated. 695-696, note. 48. Such evidence admissible — 1. Where the evidence is circumstantial. 2. Where there is evidence tending to show that the Killing may have been upon a principle of self-preservation. 3. Where threats have been admitted. 695-6, note. in.. Op a Third Person. 1. Where a husband is on trial for having made a violent assault upon one who was attempting the seduction of his wife, and the character of the wife for virtue is implicated by the evidence offered for the State, it is competent for the husband to give evidence in support of her general character for chastity. Biggs' case, 744. IV. How Proved. 1. The reasons for excluding such evidence apply with greater force where it is sought to establish it by proof of specific acts. Wesley's case. 324. 2. To be established by evidence of general reputation, and not evidence as to general bad conduct. Keener's case, 547 ; Dupree's case, 588 ; Hudgins' case, 470, note. 3. Cannot be established by proof of particular facts unconnected with the case. Wesley's ease, 324 ; Dupree's case, 582, 588 •, Bowie v. State, 19 Ga., 17 ; Ben v. State, 19 Ala,, 19 ; Seibert's case, 686, note ; Franklin's case, 641 ; Commonwealth v. Ferrigan, 688, note ; Rex v. INDEX. 955 Ckrke, 2 Stark. K., 243. Contra, Fahnestock's case, 548, note ; Tuly's case, 665, note. 4. Evidence of a person living twenty miles from defendant admissible to prove his character, if he knows it. Dupree's case, 588 ; Bowie v. State, 19 Ga., 17. COKE, SiK EDWARD. His statement that a felon may be killed without inevitable cause examined. 231, note. COOLING TIME. As to what time will be requisite, after there has been a provocation, such as would reduce a killing to manslaughter, for passion to subside. See Sullivan's case, 70 ; Hill's case, 199 ; Jackson's case, 520, note ; Hawkins' case, 522, note. DEADLY WEAPON. 1. Officer assaulted by prisoner may use, if no other weapon be at hand. Forster's case, 143. -. A person assaulted may repel force by force ; but he may not always use a deadly weapon for that purpose, and is still further in the wrong if the weapon is concealed. Stewart's case, 191. 3. It is erroneous to instruct the jury that if the accused was armed with a deadly weapon, and sought and brought about the difficulty with deceased, and killed deceased with such weapon in the difficulty, he is guilty of murder. Cotton's case, 317. 4. Death ensuing from use of, the law presumes intent to take life : malice presumed from use of. Head's case, 341 ; Hays' case, 510. Contra,, Stokes' case, 927. 6. And this although the slayer had been accustomed to carry such weapon — as much so as though he had prepared it for the occasion. Head's case, 341. DEFENCE. I. Against Felonious Assaults. 1. A man may repel force by force, in the defence of his person, his family, habitation or property, against one who manifestly Intends, by violence or surprise, to commit a known felony upon either. Selfridge's case, 3, 4 ; Wlltbergcr's case, 34 ; Thompson's case, 95 ; John Kennedy's case, 109 ; Riley and Stewart's case, 155 ; Bohan- non's case, 403 ; Can-oil's case, 804 ; Pond's case, 814 ; Collins' case, 595, note. 2. And if a conflict ensue, in such case, and he take life, the killing is justifiable. Thompson's case, 95 ; John Kennedy's case, 109 ; Riley and Stewart's case, 161 ; Bohannon's case, 403 ; Carroll's case, 804 ; Pond's case, 814 ; Collins' case, 595, note. 956 ■ INDEX. .3. But no assault will justify killing, unless there be a plain manifestation of a felonious intent. Thompson's case, 95. 4. But it is suflScient, if the intent be apparent though unreal. Ibid. Selfridge's case, 18 ; John Doe's case, 62. And see Appearances OF Danger. 5. Blillmg in defence against felonious attack lawful, if slayer use all the means in his power to escape. Selfridge's case, 18 ; John Doe's case, 64; Sullivan's case, 65; Smith's case, 130; Shippey's case, 133. But see Bohannon's case, 395. 6. If the prisoner was going her own lawful way, in a laudable pursuit, and being there assailed with a stick of dangerous character, and thereupon slew her assailant, this was homicide in self-defence. Copeland's case, 57. 7. If she accepted the fight when she might have avoided it by passing on, the provocation being sudden and unexpected, the law would pre- sume the killing to have been upon the fresh provocation, and not upon the ancient grudge, and it would be manslaughter. Ibid. 8. But if the deceased hesitated and abandoned her design to assail the prisoner, and left her road unobstructed, and the defendant brought on the attack with the design to slay the deceased, the killing would be murder. Ibid. 9. That is — if upon the old grudge, murder in the first degree ; if upon malice suddenly excited and without premeditation, murder in the second degree. Ibid, 58. '10. An assault with a knife made under such circumstances of physical incapacity as to preclude a reasonable belief of death or great bodily harm, will. not excuse the killing of the assaUant. Hinton's case, 89. 11. It is lawful to kill to save one's self from imminent and great bodily harm, as well as from death. Benham's case, 123 ; Burke's case, 126. 12. Killing with deadly weapon to protect one's self from death or serious bodily harm, there being no other weapon, and no means of escape, and retreating as far as he can— justifiable. Smith's case, 130. 13. The law will justify the taking of life, when necessary, to prevent the commission of a felony. Oliver's case, 725. 14. But not to prevent the commission of a mere trespass on the person or property of another. Ibid. 15. This rule applied to a killing to prevent the taking away of the defend- ant's children. Ibid. 16. Duty of interposing to prevent commission of felonies. 30, note ; 159, note ; 231, 232, note ; 732, note ; Pond's case, 814 ; Dill's case, 738 ; 750, note 2. 17. No obligation in such case to retreat before killing. 30, note ; 159, note ; 231, 232, note ; Pond's case, 814. 18. A well-grounded belief that a felony is about to be committed, will extenuate a homicide committed in prevention, but not in pursuit, by an individual of his own accord. Rutherford's case, 733, note; Roane's case, 735, note. INDEX. 957 19. Killing to prevent escape, after felony actually committed, justifiable. Rutherford's case, 733 ; Roane's case, 735, note. 20. In either case, the killing must have been necessary, to prevent the felony or the escape. Ibid. 21. Summary of the English authorities on the law of justifiable homicide in resistance of felonies. 737, note. 22. Where the felonious act is not of a forcible and violent character, as in picking pockets, and crimes partaking of fraud rather than force, there is no necessity for taking life, and consequently, no justifica- tion, unless possibly, in some exceptional cases. Pond's case, 814 ; 755, note b ; 901, note a. 23. But life may not properly be taken in resistance of a felony, v^^here the evil may be prevented bj- other means, within the power of the person who interferes against the felon. Pond's case, 814. 24. No distinction between common law and statutory felonies, with respect to the rule which justifies homicide in preventing their com- mission. Pond's case, 814 ; Gray- v. Coombs, 867. 25. The rule, as laid down by Sir WiUiam Blaokstone, that the law will not suffer any crime to be prevented by death, unless the same, if com- mitted, would be punished by death, is misconceived, both as respects ■ the rule itself and the reason of it. In most civilized countries, the authorized extent of resistance in the necessary defence of the person or property, against the perpetration of crimes, must greatly exceed the amount of punishment prescribed by law for their per- petration. Gray v. Coombs, 867. 26. It would seem that the right of killing to prevent the perpetration of crime depends more upon the character of the crime, and the time and manner of its attempted perpetration, than upon the degree of punishment attached to it by law, or upon the fact of its being designated in the penal code as a felony or not. Ibid. n. Against Non-Felonious Assaults. 1 . The use of a deadly weapon in a deadly manner not justified in repelling non-felonious assault. Thompson's case, 95 ; Wiltberger's case, 38 ; 1 John Kennedy's case, 109 ; Drum's case, 186 ; Stewart's case, 191 ; Rippy's case, 345. 2. If a person resort to deadly weapons in defending against an ordinary assault, and kill the assailant, it is at least manslaughter. John Kennedy's case, 112 ; Decklott's case, 112-115, note ; Benham's case, 122 ; RUey and Stewart's case, 163. 3. Killing in defence of ordinary battery not excusable. Drum's case, 186 ; Oliver's case, 725. 4. Nor where any less injury than death or great bodily harm is feared or indicated by the circumstances. Rippy's case, 345. 5. Nor will every assault justify a battery. Gallagher's case, 720. 6. A party assaulted may strike, or use a suflflcient degree of force to pre- vent the intended blow, without first retreating, but he must take 958 INDEX. oare that he use no more violence than may be necessary to prevent the violence of the assault. Gallagher's case, 720. 7. Degree of resistance against common or non-felonious assaults. 723, note. in. Of Thied Persons. See Justifiable PIomicide. 1. Any person may interfere to prevent a felony. Riley and Stewart's case, 161. 2. The right to interfere to stop a brawl or prevent a felony, declared. Dill's case, 738. 3. Murder to kiU one who interferes in such cases. Ibid. 4. The Georgia statute, which punished shooting, done by one person against another, "except in his own defence," expounded. Biggs' case, 744. 5. Right of defence includes the civil and natural relations, such as parent and child, master and servant, etc. 750, note 1 ; Pond's case, 814. 6. Hence, a man may defend his famUy, his servants, or his master, wherever he may defend himself. Ibid. 7. Right and duty of a stranger to defend another. 750, note 2. 8. Defence of others, where injury threatened is less than a felony. 751, note 3. 9. Degree of homicide where one espouses the quarrel of another and is slain, 751, note 4. 10. Where one brings about a deadly quarrel between two persons, and kiUs one to save the life of the other, it seems, he is guilty of murder. Mitchell's case, 751, note 5. 11. Whether a person who interferes, and kills one man to prevent him from killing another, will be excused, if he act upon appearances which turn out to be false. 752, note 7 ; Staten's case, 753^ ; Pond's case, 814. 12. Biggs' case, 744, examined, and the right to kill to prevent or punish seduction or other violation of female chastity, considered. 754, note 7. , DEGREE OP FORCE. In resisting unlawful arrest, see Arkbst. In defending Habitation, Part II, p. 795. In defending other Property, Part III, p. 863. 1, It is lawful for a person to exert as much force as is necessary to expel a trespasser from a house in which the former lawfully is. Pennsyl- vania V. Robertson. 2. The species of resistance used must have been necessary— or homicide not excused. Thompson's case, 95. INDEX. 959 3. A person is not criminally responsible, if death happens to ensue from necessary force used in his defence. Hinchcliflfe's case, 125, 126, note. 4. Degree of force must not in any case exceed the bounds of dfefence and prevention. Gallagher's case, 720, and note, 723. DUELLING. 1. KUling in duel is murder. Hill's case, 207, 208 ; Evans' case, 340. DYING DECLARATIONS. 1. It is competent to show that the deceased, after the shooting, and while he believed he was going to die, had an interview with the defend- ant, at which the shooting was talked over, and then and there acknowledged that he was to blame, and asked defendant to forgive him, Hurd's case, 840. Contra, Adams' case, 211. EREOR. See New Teial. 1. Supreme Court of Tennessee will weigh testimony and reverse, if it pre- ponderates against verdict. Copeland's case, 45. 2. Testimony of wife as to communications of deceased husband, not objected to below, no ground of reversal in Texas. Hinton's case, 83. ESCAPE. See Arrest. 1. Officer must not kill for, where prisoner is in custody for misdemeanor. Forster's case, 143. EVIDENCE. See Character ; Dying Declarations ; Opinion of Witnesses ; Threats. 1. A witness who swears positively to a given fact, if of good character and sufficient intelligence, may be believed, although twenty swear that they were present and did not see it. Selfridge's case, 22. 2. Testimony of widow as to declarations of deceased husband, to show threats, etc., not admissible. Lingo's case, 556 ; Hinton's case, 83. 8. But if not objected to below, not ground of reversal. Hinton's case, 88. 4. Not error to refuse to allow proof that defendant uttered no hostile . expressions, etc. Lander's case, 370. 5. Error to refuse to allow a defendant to prove that a person, since dead, had told him that the deceased had armed himself to kiU him. Carico's case, 389. « 960 INDEX. 6. Declarations of actor made at time of act, always part of res gestae. Monroe's case, 462. 7. When declarations of defendant antecedent to the fact are admissible. Ibid. 8. Evidence of nervous sensitiveness not amounting to insanity, not admissible for defendant on trial for homicide. Shoultz' case, 249, note. Contra, Seibert's case, 686, note. 9. As a general rule, it is expedient to receive aU (^e evidence, in a trial for murder, which goes to show the state of feeling of prisoner and deceased toward each other. Monroe's case, 468 ; Zeller's case, 472 ; and see Goodrich's case, 532; Murphy v. Dart, 538, note; Riddle v. Brown, 538, note ; Keener's case, 539. 10. Hence, error to refase evidence that defendant had acted as prosecutor against deceased for embezzlement. Monroe's case, 46S. 11. Evidence of lawsuits and quarrels between the parties admissible. Zeller's case, 473. 12. Evidence of previous quarrel not admissible for defendant in Louisiana. Jackson's case, 475, note. 13. The question of admitting evidence of previous threats, injuries, etc., in mitigation of the guatiium of punishment, in trials for homicide, discussed. Note, 475. 14. The jury instructed to look into the feelings of deceased towards prisoner, as a circumstance making it probable that he might have made the attack, etc. Nelson's case, 491, note ; Seibert's ease, 686, note. 16. Evidence of previous affrays, attacks, threats, etc., admissible, if there be other evidence showing just cause for alarm ; otherwise, if offered merely to show the temper of prosecuting witness toward defendant. Goodrich's case, 533. 16. All the circumstances of a transaction may be admittbd in evidence, provided they afford any fair presiunption as to the matter in issue. Keener's case, 552. 17. Any circumstances which go to show the character of the attack, the intention with which it was made, and the grounds of fear on which the defendant acted, are admissible. Duke's case, 573, note. 18. A previous dilBculty between deceased and a servant of defendant, not admissible. Dupree's case, 582. According vnth People v. Hender- son, 28 Cal., 469 ; Harmon v. State, 3 Head, 243. 19. Any fact which tends to prove the real motive of the prisoner in kiUing the deceased, or the purpose of the deceased in going to the pris- oner's house, or that the prisoner knew, at the time of the killing, that the deceased and his companions did not intend to commit any felony, nor to do him any great bodily harm, is relevant evidence ; as that an affidavit for the arrest of the accused had been sworn out before a justice, and the deceased deputed to execute it. Noles' case, 697. So, evidence tending to show a state of facts, the converse of the above, is admissible in behal%of the accused. Goodrich's c^se,. INDEX. 961 532 ; Monroe's case, 442 ; Keener's case, 539 ; Prido;en's case, 416 ; Campbell's case, 282 ; Eapp's case, 293 ; and others. 20. Where one who on the previous night had attempted the violation ol the defendant's marriage bed, deliberately took his seat near the wife the next morning at the breakfast table, and the husband there- iipon fired a pistol at him, it was held, on trial of the husband for the assault, proper to give iu evidence the occurrences of the preced- ing evening ; and it was error to teU the jury that whatever had occurred on the night previous could not amount to a justification or excuse. Biggs' case, 744. 21. On a trial for homicide, where it appeared that the riotous assembly (of which the deceased was one) gathered at the time, grew out of, and was connected with, one which had assembled there the night before, and with the same object, — it was held that all the proceed- ings and objects of both gatherings, together with the provocation to the defendant, and his acts, constituted together one entire trans- action. Patten's case, 826 ; and see Rector's case, 795 ; Meade's case, 798. 22. The homicide having resulted directly from said assemblages, and their riotous conduct, it was the right and duty of the prosecution to show the transaction as a whole, its nature and its objects, whether tending to show the guilt or innocence of the defendant. Ibid ; and see Maher v. People, 10 Mich., 212 ; Brown v. People, 17 Mich., 429. 23. Whether the prosecution failed to do so or not. It was the right of the defendant, either by cross-examination or by his own witnesses, to go fully into all matters thus constituting the res gestce, and to show any act or declaration of any one of either assemblage, in further- ance of the common object, or in reference to it, from its inception to its close — the combination once being shown. Ibid. 24. A witness for the prosecution, (one of the rioters,) having testified fully in reference to the proceedings of the first night, and that de- fendant had confessed to having struck deceased on the second night, denied, on cross-examination, that he had stated to different persons soon after, that he was present as a "homer," but was a mere looker-on, and took no part in the matter whatever. The Court refused to permit the defendant to contradict said testimony. Held, that said stateqjents related to the res gestae, and their contradiction was competent. Ibid ; and see Goodrich's case, 532. EXCUSABLE HOMICIDE. See the various titles in this index. FELOKIOUS ASSAULTS AND ATTEMPTS— RESISTANCE OF. See Defence. FEMALE CHASTITY. 1. Killing to prevent or punish violation of. Biggs' case, 744 ; Staten's case, 753, note ; 754, note 7. 963 INDEX. FORCIBLE TRESPASS. See Habitation, Defence of. FOSTER, Sir MICHAEL. No higher authority on the law of homicide ; and by none have the general principles of self-defence been so clearly laid down. John Kennedy's case, 110, Dillon, J. GENERAL PROPOSITIONS. 1. Danger of accepting, as rules for action. Selfridge's case, 18. 2. Degree of force and means lawful in defence, must depend upon cir- cumstances. John Doe's case, 62. 3. Danger of attempting to lay down intricate rules on subject of homicide in self-defence. Note, 245 ; Cotton's case, 310 ; Robert Jackson's case, 47G ; Patten's case, 826. GREAT BODILY HARM. 1. Detined. 859, note. 2. A person may lawfully take the life of his assailant, when such killing is reasonably necessary to save himself from imminent and great bodily harm. The right of self-defence exists in such cases, the- same as it does where the IdUing becomes necessary to save life. Burke's case, 126 ; Benham's case, 115. HABEAS CORPUS. 1. Whether a homicide be Justifiable or excusable on the ground of self- defence, or other facts existing at the time, cannot be determined on an enquiry under a writ of habeas corpus. Mc Leod's case, 784. HABITATION— DEFENCE OF. 1. Bfcpelling trcspa-sser from, with a kick, so that he die, manslaughter. Wild's case, 111, note. 2. Killiiig mere trespasser in habitation, not excusaWe. Decklott's case, 112-115, note. 8. Unnecessary killing intruder in, in combat, manslaughter. Robertson's case, K3. 4, Killing in defence against riotous attack upon habitation. Evidence of previous attack and threats. Rector's case, 796 ; Meade's case, 798 ; Patten's case, 826. 5. The rule of the common law is, that a man may repel force by force in the defence of his person, habitation or property, against one who manifestly endeavors, by violence or surprise, to commit a known felony, such as rape, robbery, arson, burglary, and the like. In these cases, he is not obliged to retreat, but may pursue his adversary INDEX. 963 imtil he finds himself out of all danger. Selfridge's case, 3, 4; Young's case, 402, note ; Collins' case, 595, note ; note to Stoffer's case, 230, et seq.; Carroll's case, 804; Pond's case, 814; Patten's case, 826. S. In other eases, the law requires the use of every precaution consistent \vitli safety, even to flight itself, before taking life ; unless, indeed, the party assailed has the protection of his house, which excuses him from retreating further ; and this, it seems, is the only difference between assaults upon the dwelling and assaults upon the person, and that these two classes of assaults, in all other respects, are governed by the same principles. Carroll's case, 804 ; Pond's case, 814; 861, note 1. -7. The rule as to the extent of protection to the dwelling is, that a mer« civil trespass upon a man's house, unaccompanied with such force an to make it a breach of the peace, would not be a provocation which would reduce the killing to manslaughter, if it was done under cir- cumstances from which the law would imply malice, as with a deadly weapon. But in case of trespass with force, it may be murder or manslaughter, according to the circumstances. The owner may resist the entry, but he has no right to kill, unless it be rendered necessary to prevent a felonious destruction of his prop- ■erly, or to defend himself against loss of life or great bodily harm. If he kills when there is not a reasonable ground of apprehension of, imminent danger to his person or property, it is manslaughter ; and if done with malice, expressed or implied, it is then murder. Carroll's case, 804 ; Pond's case, 814 ; Greschia's case, 854 ; and see note, 861. 8. It is hence said, that it is not every forcible trespass upon a man's ' dwelling, that will reduce the killing of the trespasser to man- slaughter ; and that it is not every species of personal violence, even when offered against a man in his own house, that will have this effect. Carroll's case, 804. 9. When the law speaks of a forcible trespass, it means such a trespass as amounts to a breach of the peace. Entering a man's house after a warning not to enter, is not, if done without force, a breach of the peace. Ibid. IC. Where the assault and breaking of the habitation is felonious, the killing, if necessary to prevent it, is justifiable. Pond's case, 814. 11. A building thirty six feet distant from a man's house, used for preserv- ing the nets employed in the owner's ordinary occupation of a fisherman, and also as a permanent dormitory for his servants, is in law a part of his dwelling, though not included with the house by a fence ; and a homicide, which was necessary to prevent the forcible destruction of such a building, is justifiable. Ibid. 12. Where there was a riotous assemblage about the defendant's house, and one of the rioters was killed by the defendant, and there was evidence tending to show that the defendant's mother was in feeble health, it was held that if, from the defendant's knowledge of his 964 INDEX. mother's peculiar physical condition, he had reason to believe that her life was endangered by the riotous proceedings, and if the rioters were informed of her condition, or if all reasonable or practicable eflforts had been made to notify them of the fact, it was sufficient to excuse his conduct toward them to the same extent, as though the' danger to her life had resulted from an actual attack upon her person^ or as though in the like danger from an attack upon himself; and he was justifiable in using the same means of protection in tlie one case as in the other. Patten's case, 826. 13. If the noise and tumult of the rioters prevented defendant giving them notice of the danger to hft mother, he was excused from so doing. Ibid. 14. The defendant was justifiable in acting for his defence according to the- circumstances as they appeared to him ; and if from those circum- stances, he believed there was imminent danger of death, or great bodily harm to himself or any member of his family, and he had tried all reasonable means which would, under the circumstances, naturally occur to a humane man to repel the attack, he might resort to such forcible means, even with a dsngerous weapon, as he- believed to be necessar}' for protection ; and if such means resulted in the death of any of the supposed assailants, the homicide would be excusable. Ibid. 15. The prisoner and the deceased had an altercation about the alleged ill- treatment by thf prisoner, of a boy at the supper table of the pris- oner, and the deceased, who was much the larger and apparently the stronger man, seized the prisoner by the lapels of the coat and shook him several times,. and threw him on the ground; and the prisoner thereupon went into his house and loaded his pistol, and a few minutes afterwards, came out to where the deceased was at work and requested him to come into the house and ask the women folks whether he had abused the boy ; and the deceased threw down his work and ran after the prisoner in a threatening manner, but ^^-ithout any weapon in his hands, and pursued the prisoner into his house, although the prisoner at the threshold commanded him not to enter ;, and continued the pursuit, until the prisoner had run into a room from wliich there was no egress, whereupon he turned and shot the deceased, then but four or five feet from him ; and, the deceased still advancing, he shot him a second time ; of which wounds the deceased' died. Held, that this was not murder in either degree, but was a case of excusable homicide or manslaughter ; — excusable homicide, if . the jury were satisfied, that the defendant being in his own house, had reason to believe, and did believe, from Hubbard's actions and manner, and vifhat had already taken place, that it was necessary to shoot the assailant to save his own life, or to protect himself from danger of great bodily harm ; manslaughter, it he did not so believe, but committed the act under a less degree of fear, and the excitement and confusion caTised by the first assault, coupled with the then threatened repetition of the attack, and that but for these, he would not have flred tho fiital shot. Iliird's ease, 840. INDEX. 965 16. yiot more than halt' an hour, and probably not more than fifteen minutes, having elapsed between the first and second parts of the transaction, as above stated, it is held, that the whole is to be taken together as one transaction, and as constituting the res gestce.. It is not proper to treat them as two distinct transactions, with an interval, for the purpose of raising the question of cooling time. ■ 17. Case of a killing at the door of defendant's habitation, which the de- ceased was attempting to enter, which was held entirely inexcusable, and that the punishment assessed, to-wit, one year in the peniten- tiary, was much lighter than the jury would have been warranted in inflicting. Greschia's case, 854. 18. It was not erroneous for the Court to instruct the jury, that, in con- sidering whether the killing was in defence of habitation, they should consider the attending circumstances, the conduct of the parties at the time and immediately preceding the killing, and the means and force used, as beaiing upon that question. Ibid J 9. And the jury might properly further consider, in determining whether the killing was in self-defence, whether the force used in repelling the deceased, in its amount and character, was not such as a reason- able mind would regard as unreasonable, under the circumstances. Ibid. ^0. ,If the use of a deadly weapon was not necessary, or apparently neces- sary, in order to prevent the deceased entering thp room of the pris- oner, and committing, or oflering to commit, an assault upon tim, and he could reasonably and safely have avoided using the weapon, it was his duty to have done so, even though the deceased was returning to the prisoner's room with a quarrelsome intent. Ibid. Carroll's case, 804 ; Pond's ease, 814. ■21. Homicide in defence of habitation under the Illinois statute ; instruc- tions held erroneous ; great bodily harm. Keins' case, 858-9, note. .22. Attack upon habitation a provocation, which ■will reduce a killing to manslaughter ; not so a trespass upon other property. 861, note 2. 23. Unla-wful breaking of habitation to arrest dweller. 861, note 3. 24. Defence of another's habitation, or of others in one's own habitation. .862, note 4. 25. Degree of force in expelling trespasser from habitation, who has law- jfuUy and peaceably entered. 862, note 5. HOMICIDE. See Murder; Manslaughter, and the various other titles. I. Per Infortunium. See Caution to bb Exercised in One's Defence. 1. By accidentally discharging a gun in one's defence. Benham's case, 124. 3. By throwing a stone at trespassers \\'ho invade private property. Hinchcliffe's case, 125, 126, note. 966 INDEX. 3. Statutory provisions of several States and Territories relating to. Note, 125. 4. To kUl a third person accidentally, while performing a necessary act of defence. 7S3-84, note. 11. Se Dbfbndendo. See Defence, and the various other titles. ' 1. To excuse a homicide in self-defence, the act must not be premeditated- McLeod's case, 784. Contra, Bohannon's case, 395. 2. The doctrine of liomicrde se defendendo at common law, fully stated and discussed in Pond's case, 814. See also for a full discussion, Riley and Stewart's case, 155. 3. To mamtain that a Icilling was justifiable on the ground of self-defence, it is necessary to show : (1) that the defendant himself was acting in no wise against the law, in the encounter which resulted in the homicide ; (2) that at tne time of giving the fatal blow, he had reas- onable ground to apprehend a design to do him some great personal injury; and (3) that there was imminent danger of such design being accomplished. Lamb's case, 646, Smith, J. HONOR. 1. Killing in defence of, not justifiable. Sclfridge's case, 24; Benham'e case, 122. HUSBAND AND WIFE. See Evidence. INSTRUCTIONS TO JURY. See New Trial. 1. Should be given hypothetically ; and not assume the existence of a cer- tain state of facts. Hopkinson's case, 80. 2. Circumstances under which instructions on the law of self-defence were irrelevant, and calcidated to mislead the jurj'. Harrison's case, 71. 3. No evidence raising hypothesis, an instruction on the law of self-defence, though erroneous, is no ground of reversing the judgment. Ship- pey's case, 137 ; Shortor's case, 256. i. Instruction relating to self-defence which is misleading, when applied to the particular facts of the case, is erroneous. Bcnham's case, 123. 5. Instructing .on the weight of evidence. Wesley's case, 319 ; Gallagher's case, 726 ; Oliver's case, 725, 6. Where the prisoner prayed for instructions only on the ground that the deceased did intend to kill him, and not on the ground of a reason- able belief on his part, that the deceased did so intend, the Court did not err in omitting to instruct the jury on the latter point. Scott's case, 163 ; Daniels, J., dissenting. INDEX. 967 7. W~here a boy sixteen years old shot and lolled a man who had attacked him with an ox-gad, the jury should have been told to consider ilie physical capacity of the parties, the size and character of the ox-gad, and the manner in which the deceased threatened to use it, ancl in which he entered upon the execution of his threat. Benliain's case, 121. &. Error to instruct the jury, that if they believed A. committed an assault upon B., and was about to commit a battery, that B. was justifiable in striking A. in a particular manner. Gallagher's case, 720. 9. For an instruction on the law of justifiable homicide which assumed the proof of material and essential facts, see James D. Kennedy's caso, 137. 10. An instruction which leaves the jury to infer that the danger must have been actual and positive in order to excuse the slayer, is ground of reversal. Campbell's case, 282. 11. The refusal of instructions on the law of self-defence, irrelevant to any hypothesis arising out of the evidence, is no ground for reversing a conviction of murder in the second degree. Stewart's case, 191. 12. It is not error to teU the jury to take into .consideration the manner by which, and purposes for which, the prisoner had possession of the knife with which he did the killing. Stewart's case, 198. 13. Nor to refuse an instruction not differing in substance from one already given. Ibid. 14. It is erroneous to add to an iiistruction which states the law correctly, as to the fears of a reasonable man being a justification for killing, the qualification, " provided the jury believe the defendant used no more force than was necessary," etc. Maher's case, 290. 15. " If a party through mere fear of his life, there being no real or appar- ent danger, kill another, it is not justifiable." To charge in this language, did not instruct the jury on the weight of evidence. Wesley's case, 327. 16. Where there is any evidence tending to raise a doubt whether the kill- ing was in self-defence or of malice, it is the right of the prisoner to have all the law relating to self-defence and applicable to his case, given in charge to the jury. Keener's case, 558. 17. To instruct that the jury may take into consideration all the facts and circumstances surrounding the kilUng, is equivalent to telling them that they are authorized to consider of pntecedent threats made by the deceased against the accused, and communicated to the accused, Johnson's case, 414. 18. To refuse to instruct on the law of manslaughter, an invasion of the province of the jury, and error. Little's case, 487, 492. 19. An instruction which does not state the degree of murder which is to be presumed from a killing with a deadly weapon, is not erroneous, although the presumption would be that of murder in the second degree only. Hays' case, 494. 20. As a general rule, instructions, if proper, should be given in the language requested. People v. Williams, (17 Cal., 146), 604, note. 968 UfDEX. .21 . Where a correct instruction is refused on the ground that it has been already given, the jury should be informed of the reason of the refusal. Ibid. And see Neeley's case, 96 ; Lamb's case, 646 ; and People V. Williams, 32 Cal., 28. 22. Whether the taking away and detaining of a man's children is a felony under the Alabama statute, or a trespass merelj', depends upon the intent with wliich they are taken ; and the question of intent is a question of fact for the jury. Hence, it was erroneous to charge the jury that the talting of the defendant's children, under the cir- eutmtances, would not have amounted to a felony. Oliver's case, 725. IMMINENCE OF THE DANGER, See Appbakances op Danger. 1. To justify homicide, the danger of the accomplishment of a felonious design must be imminent. Wiltberger's case, 35 ; Selfridge's case, 4. 2. It is not sufficient that the deceased had the means at hand to accom- plish a deadly purpose, but he must have indicated by some act or demonstration at the time of the killing, a present intention to carry out such design. Harrison's case, 71, 74. 3. It must be proved that the assault was imminently perilous. Thomp- son's case, 95; following Whart. Cr. Law, ?§ 1019, 1020. 4. The kUling must take place while the person killed is in the very act of making an unlawful and violent attack, and under such circum- stances, that the person assailed cannot resort to other legal means to save and protect himself, except retreating or running, which he is not bound to do. Isaac's case, 176. But see Philip's case, 383 ; Carieo's case, 389 ; Bohaunon's case, 395. 5. Al hough there may have been no actual danger at the very moment of time, the question in such a case is, whether by delay, the danger is not increased. Cotton's case, 315. 6. The only general rule which a Court can with any safety lay down on this subject is, that whether the danger must be immediate and un- avoidable at the time of the killing to make the killing justifiable self-defence, must depend on the facts and circumstances of each particular case ; and of these the jury must be the judges. Cotton's case, 315, 316. According with Eobert Jackson's case, 476; and Patten's case, 820. 7. Danger of death or great bodily harm must be imminent, present at the time, real or apparent, and so urgent that there is no reasonable mode of escape, except to take life. When we use the term " apparent " — " apparent danger," we mean such overt, actual demon- stration as would make the killing apparently necessary to self- preservation. Evans' case, 336. 8. The mere apprehension or belief that a person is about to arm himself and return to enter into a combat, docs not show present and imminent danger. Ibid, 340. INDEZ. 969 9. Every man may protect his life at whatever hazard ; but tlie danger must be present, immediate and imminent. Head's case, 341. 10. It must be apparent and imminent. The circumstances must be such as to authorize the opinion that the deadly purpose then exists, and the fear that it will at thai time be executed. Rippy's case, 345. 11. The Isilling must have been done under an honest and well founded belief that it was absolutely necessary to kill the deceased g,t that moment to save himself from a Uke uijury. William's case, 349. 12. Where the proof showed that the defendant was, when drunk, a blood-thirsty and reckless bully ; that he entertained a deadly spirit of revenge against the defendant ; that he had made frequent and violent threats against the defendant, which threats continued down to the time of the killing ; that he had, on one occasion, assailed the defendant with a deadly weapon, and driven him out of his house; that on the day of the killing he had, in various ways, endeavored to provoke a difficulty with the defendant ; that on the day, and at the time of the killing, he was drunk and armed with a six-shooter ; that the defendant knew of his violent animosity towards him, and of the grounds on which it was entertained, and of his desperate character •when drunk ; yet, as the proof did not show that the defendant had a reasonable ground for believing that his life was in danger at the moment of the killing, a verdict of murder in the second degree was sustained, although the proof showed that the defendant did the kill- ing under an honest and well founded belief that the deceased would kill him in some of his di-unken moments. Williams' case, 349. 13. So, no previous threats or demonstrations of whatever character, although the parties cannot long fail to meet, will reduce a killing by l}'ing in wait, from murder in the first to murder in the second degree. Lander's case, 366. 14. Killing is not excused in prevention of a threatenei or contingent danger, or a danger in machination only. It must be present and imminent, and there must be no other means of escaping it ; or the slayer must have reasonable grounds to believe that such is the case. Ibid. McLeod's case, 784. Cojitra, Philips' case, 383; Carico's case, 389 ; Bohannon's case, 395. 15. The questions are, was the prisoner in'^present danger of great bodily harm at the time of the killing? and was the homicide committed in a bona fide attempt to preserve himself from impending danger? Lander's case, 366 ; Williams' case, 363, 364. 16. State of facts under which it was held erroneous to instruct that the defendant is guilty of murder, unless, when he fired the fatal shot, he had reasonable ground to believe, and did believe, that the de- ceased was about to carry his threats into execution, etc. Philips' case, 383. 17. It seems that a person who has once escaped from an attempted assas- sination, and his enemy continues his threats against him, may kill such enemy, wherever he may chance to meet him. Philips' case, 383 ; Carico's case, 389. 970 INDEX. 18. Uniler certain circumstances of threats and hostile demonstrations, it was held erroneous to instruct that the defendant was not justifled in shootiuo- as and when he did, unless there was then imminent danger, etc. The deceased was shot in the back, apparently while going to his stable to feed his horse. Carico's case, 389. 19. Fear grounded upon thrpats, or upon information that one lies in wait, will not justify killing, unless the threats or lyings in wait have been accompanied by an actual attempt to kill, etc., and not then, unless the delendant reasonably believes that the presence of his enemy puts his life in continual peril, and that he can escape it in no other way. Bob.innon's case, 395. 20. Erroneoiis to instruct that the defendant cannot be acquitted on account of any real or apparent danger not existing, etc., and not about then to fall upon him at the time of the killing. Ibid. 21. What constitutes such an overt act as will warrant a person in striking in his defence, a question for jury. Robert Jackson's case, 483. 22. It is not error to refuse to charge the usual doctrine in regard to the right to act upon appearances of danger which may not be real, except with the qualification that the danger must bo be imminent or threatening. Dupree's case, 583. 23. What degree of danger wiU excuse a homicide, discussed in Tackett's case, 615. 24. The apprehension of danger which will justify a homicide must exist at the time the homicide is committed. Lamb's case, 64G, Davibs, Ch. J. ; Eippy's case, 345. 25. Imminence of the danger in case of common or non-felonious assaults. 723, note. 26. The right of using violence in self-defence only arises where one is forcibly assailed. McLeod's case, 786. 27. The right of resorting to force upon the principle of self-defence does not arise while the apprehended mischief exists in machination only ;. nor does it continue so as to authorize violence by way of retaliation or revenge for a past injury. Ibid. According with Lander's case,. 366. 28. A force which a party has a right to resist must itself be within strik- ing distance; it must be menacing, and apparently able to inflict physical injury, unless prevented by the resistance which he opposes. McLeod's case, 784; Rippy's case, 345; WiUiams' case, 349; Wes- ley's case, 319 ; Dyson's case, 304 ; Scott's case, 163 ; Hinton's case, 83 ; Harrison's case, 71. Contra, Philips' case, 383 ; Carico's case, 389 ; Bohannon's case, 395. And see Robert Jackson's case, 482 ; Cotton's case, 316 ; Patten's ease, 826. 39. The foregoing rules, limiting the right of defence, apply to a-stite of mixed, or of private war. We may in such cases resist and repel the foreigner at the instant when he comes violently upon us. But we cannot, without the sovereign's command, either assault him whilst his mischief is only in machination, or revenge ourselves upon him after he hath performed the injury against us. McLeod's case, 784., IKDEX. 971 INJURING THIRD PERSON IN ONE'S DEFENCE. 1. A person who, in his lawful defence, fires a pistol at his antagonist, and accidentally wounds a by-stander, is not liable in damages for the injury, if guilty of no negligence. Morris v. Piatt, 768 ; 783, note. JURY. See Instructioxs. 1. To determine under what circumstances the assault was made. Hop- kinson's case, 80. 2. Or under what circumstances an assaulted party may strike, and the degree of force he may use. Gallagher's case, 720. 3. To ascertain the facts ; Court to declare the law. These functions dis- tinct and independent. Selfridge's case, 19. 4. Ill Illinois, are judges of law as well as of fact. Adams' case, 208. 5. So in Georgia ; and they are entitled to the assistance of the Court.. Keeuer's case, 563. 6. Whether the appearances of danger were sufficient to justify the means of defence used, is a question for the jury. Selfridge's case, 1 j Harris' case, 276 ; Cotton's case, 310 ; Oliver's case, 725 ; McLeod's case, 784. 7. Whether previous threats, taken in connection with the facts surround- ing the killing, are sufficient to justify the killing, is a question of fact for the jury ; and the judge cannot determine this fact as a question of law, by ruling that the facts immediately surrounding the killing do not afford a sufficient predicate for the introduction of evidence of threats. Pridgen's case, 416 ; Robert Jackson's case, 476. Contra, Myer's case, 432 ; Hays' case, 492. 8. It would be error for the Court to instruct the jury, that, if they be- lieved that A. committed an assault upon B., and was about to com- mit a battery, that B. was justifiable in striking A. in a particular manner. Gallagher's case, 720. 9. Jury not permitted to take code into consultation room. Keener's case,. 559, and cases cited ; Selfridge's case, 24 ; State v. Patterson, 12 Am. Law Keg., 647. JUSTIFIABLE HOMICIDE. See also the various titles of this Index. 1. Killing felonious assailant is. Selfridge's case, 3, 4 Riley and Stewart's case, 155 ; Monroe's case, 442 ; Pond's case, 814. 2. Killing in advancement of public justice is. Selfridge's case, 16; Pond's case, 814 ; and other cases. 3. Distinction between justifiable and excusable homicide. Selfridge's case, 16, and note ; Riley and Stewart's case, 155 ; Pond's case, 814. 4. Under the Illinois statute, defined. Ilopkinson's case, 80. W2 IKDEX. 5. To ju&tify killing on the ground of self-defence, under the Texas Code, it must be upon an occasion not provoked or sought for by the slayer, and must be the only available means, except retreating, of saving the defendant from death or serious bodily harm. Isaac's case, 175, and note. '6. Under the California statute, and as expounded in Hurley's case ; the statute set out. 244, 245, note. 7. Homicide justifiable in prevention of what misdemeanors. 737, note. 8. The Georgia statute, which, after defining what kinds of homicide shall be deemed justifiable, provides that " all other instances which stand on the same footing of reason and justice as those enumerated, shall be justifiable homicide," is held to embrace a case where a husband shoots one who is attempting the seduction oT his wife; and in such case it is for the jury to say whether the shooting stands on the same footing of reason and justice as those instances ex- pressly enumerated in the statute. Bigg's case, 744 ; see 754, note 7. 9. There is no positive rule for the definition of justifiable homicide. It must depend upon the circumstances and surroundings of each case. Patten's case, 826, And see Cotton's case, 316 ; Robert Jackson's case, 481, 482. LAW" OF NATURE. 1. Right of self-defence founded in. Isaac's case, 175. See Gray t. Coombs, 867. 2. Right of self-preservation under. Holmes' case, 757. MALICE. See Burden and Quantum of Proof. 1. In its legal sense, defined and discussed. Hays' case, 494. 2. The law implies from use of deadly weapon. DUl's case, 738 ; Head's case, 342. 3. Presumed from use of deadly weapon. Head's case, 341. 4. Presumed from mere fact of lulling, where no witnesses were present. and where circumstances and mode of killing are imknown and un- proved. Ibid. ; Lamb's case, 646, Davibs, Ch. J. 5. This presumption obtains until the guilty agent overcomes it by evi- dence showing excuse or justification. Head's case, 341 . • 6. Where self-defence is urged, it is error to instruct that malice means a predetermination to kill, however suddenly formed, etc. Bohan- non's case, 395. Contra, Sullivan's case, 65. 7. The killing being confessed or proved, the law presumes that the crime has been committed as charged, unless it should appear on the part of the prosecution or defence, that there was excuse or justification. But this was an indictment for manslaughter. Selfridge's case, 19. S. Proof of malice will be considered on an indictment for manslaughter, because it eifectually disproves the only defence wliich can be set up in such a case. Selfridge's case, 20. INDEX. 973 MALICIOUS SHOOTING. 1. "With intent to liill, under the Kentuclvy statute. Rapp's case, 29a. MANSLAUGHTER. See Murder ; Occasion Produced by Slayer. 1. Defined. United.States v. Wiltberger, 34; Drum's case, 187 ; Selfridge's case, 15. 2. Defined, under the Texas Code. Isaac's case, 175. 3. Sudden passion, a necessary element of, under the Texas Code. Hin- ton's case, 83. 4. Killing through bare fear of felonious design, due caution not being used, is. Selfridge's case, 4. 5. Not defined by statute in Massachusetts. Ibid, 14. 6. The liilling, if upon a sudden heat, must be voluntarily done, without malice. Creeli's case, 253. 7. Involuntary, in the prosecution of an unlawful act, or in tlie doing of a lawful act by unlawful means. Beuham's case, 115, and note^; Zeller's case, 474, 475, note. 8. The doing of a lawful act, no provocation which will extenuate a liilling to manslaughter. Zeller's case, 474, 475, note ; Hinton's case, 83, and note ; Lingo's case, 515 ; Dill's case, 738. 9. Case where provocation by wm-ds. in connection with an accidental injury to defendant's buggy, was held sufScient to reduce a liilling to manslaughter. Ray's case, 523, note. 10. But the general rule of the common law is, that the provocation which reduces such a homicide to voluntary manslaughter, must be one that involves some assault by the person kUled upon the person , killing. Ibid, 525. 11. What degree of provocation wiU extenuate a homicide to manslaughter, considered in Tackett'e case, 615. 12. If one in mutual combat, produced by an attempt to expel a trespasser, kiU sucli trespasser with a heavy bludgeon, but without necessity for tiie protection of his own life, it is manslaughter. Pennsylvania v. Robertson, 152. 13. If the prisoner, upon meeting her adversary unexpectedly, who had intercepted her upon her lawful road, and in lier lawful pursuit, accepted the fight, when she might have avoided it by pa.ssing on, the provocation being sudden and unexpected, the law will not pre- sume the killing to have been upon the ancient grudge, but upon the insult given by stopping her on the way ; and it would be man- slaughter. Copeland's case, 41. It is manslaughter — 14. To kill another in combat, in the heat of passion produced by an attack with a deadly weapon not prepared for the occasion. Smith's case, 130. 974 INDEX. 15. For an officer to kill his prisoner in an affray between them, where there are mutual blows in heat. Forster's case, 143. 16. For a person of superior strength to kill his adversary with a heavy club in combat, and although pressed to the wall. Wells' case, 151. 17. To kill an antagonist with a deadly weapon in combat, the slayer's lif(! not being in danger, and he having no reason to fear great bodily harm. Riley and Stewart's case-, 163. 18. To kill with a weapon not prepared for the occasion, upon an impulse of passion produced by blows inflicted, although at the instant there was a design to kill. Drum's case, 190, 191. 19. To kill an assailant who intends to commit a trespass upon the person merely. Monroe's case, 442. ;30. To slay one taken in the act of adultery with the slayer's wife. 755, note c. •21. To attack another, and, the attack being returned with a violence dis- proportioned to the orighial assault, to kill him under the transport of passion thus excited. Hill's case, 205. 2i. To enter voluntarily into a flglit not intending to kill, and without first declining further combat, killing >ntagonist with deadly weapon. Adams' case, 208. ■23. The passion which will reduce a killing to manslaughter need not amount to a dethronement of reason ; it is sufficient if there be great passion produced by adequate provocation, although the act done may have been intentional of death. Hill's case, 205, 206. 24. The enquiry to be submitted to the jury is, whether sufficient time had elapsed for the blood to cool. Ibid, 206. 35. Words of reproach, contemptuous gestures, etc., will be not reduce a killing with deadly weapons to manslaughter. Ibid. 36. But this rule does not obtain where, because of sufficient provocation, the parties become suddenly heated and engage immediately in mortal combat, fighting on equal terms. Ibid. MASTER OF VESSEL. 1. Cannot justify homicide of seaman by evidence of mutinous combina- tion unknown to him at the time. Wiltberger's case, 39, ■2. Kot obliged to retreat before he can justify killing seaman. Ibid. MAXIMS. Actus non facit reum, nisi mens sii rea. Note, 252, 2.53. MISPRISION OF , FELONY. To suffer a felony to be committed without resisting. 30, note- 750, note 2. INDEX. 975 MUEDER. See Manslaughter ; Occasion Produced by Slayer. It is murder — I. To kill through particular malice or general depravity. Selfridge'« case, 16. % Deliberately to kill to prevent a mere trespass upon property. Har- rison's case, 71, 75. 3. To enter into contest with a deadly weapon, intending to use it, and in the contest to kill the other therewith. Smithes case, 130. 4. Deliberately to kill a mere trespasser upon property. Harrison's case, 71. 5. Or to kill such a trespasser with a deadly weapon. Zeller's case, 474, note ; Drew's case, 705. ^. In a combat wichout weapons, to draw and kill antagonist with deadly weapon. Scott's case, 163. 7. In the second degree, in Texas, to kill with a dagger, under circum- stances which would otherwise make the killing manslaughter. Isaac's case, 175. 8. To kill with deadly weapon in combat, with a murderous and bad- hearted intent. Drum's case, 188. 9. Deliberately to kill in a duel. Hill's case, 207, 208 ; Evans' case, 340. 10. In the first degree, to kill upon premeditated intention and in conse- quence of old grudge. Copeland's case, 41. II. In the second degree, to kill out of malice suddenly produced by the sight of an enemy, but without premeditation. Ibid. 12. In the first degree, where the slayer, at the time he did the act, thought of his purpose to kill the slain, and that he would execute such purpose; or where the killing is on a fully formed and conscious design to kill, and with a weapon prepared for that purpose. Drum's case, 190. 13. In the second degree, to kill with a weapon prepared and carried, intended to be used, if there was no deliberation or real intention t» kill, but only an intention to cut, wound, or do great bodily harm. Ibid. 14. To seek and provoke a difiiculty, and, being assaulted with fists only, to stab and kill the assailant. Stewart's case, 191. 15. To seek a difficulty for the purpose of killing another, and to kill him in pursuance of such purpose. Adams' case, 208. 16. To shoot down another on sight who is making no hostile demonstra- tion dangerous to life or limb. Evans' case, 336 ; Scott's case, 163. 17. To invite another to mortal combat, and then shoot him down while he is going for his weapon. Evans' case, 336. 18. In. the first degree, to kill by lying in wait. Lander's case, 360. 19. To kill one who interferes to stop a brawl, and who exercises no uii- reasonable force. Dill's case, 738 976 INDEX. 20. To kill one who interferes to prevent felony. Dill's case, 738; 21. To kill one because he has committed adultery with wifj. 755, note, c, d. 22. To constitute murder, the killing must be unlawful, as well as pre- determined. Bohannon's case, 395. See Mc Leod's case, 784. 23. Intentional killing not necessarily murder. Lander's case, 366. 24. The slayer having provoked the slain to strike him with a stick, was not justified in retreating out of danger, drawing a dagger, returning to the conflict, and with it killing his antagonist. Isaac's case, 176. MUTUAL COjVEBAT. 1. Defined. Tate's case, 230, note ; Stofier's case, 218 ; United States v. Mingo, 2 Curt. C. C, 1. 2. K a person of superior strength is pressed to the wall in combat, and ■ thereupon seizes a dangerous weapon and with it kills his antag- onist, this is manslaughter and not excusable homicide. Wells' case, 145. 3. The killing of an Indian with a door-bar, in combat, no other means of escaping his rage, self-defence. Robertson's case, 152. 4. Killing in combat, through necessity, after retreating to the wall, excus- able, but borders on manslaughter. Riley and Stewart's case, 161. 5. In combat without weapons, if one combatant kills the other with a deadly weapon secreted on his person, this is murder. Scott's case, 163. G. A contlict is the work of two persons ; and when one succeeds in with- drawing from it, it is ended ; and if the other pursues, he assumes the attitude of an attacking party. Stofier's case, 213. NECESSITY. 1. Homicide ju-tified or excused on the ground of necessity merely. State V. Wells, 145 ; Pennsylvania v. Robertson, 152 ; Shippey's case,. 133 ; \V iltberger's case, 35 ; John Doe's case, 62 ; John Kennedy's case, 110; Benham's case, 122; Wells' case, 151; Robertson's case,, 152 ; Isaac's case, 175 ; Hill's case, 204 ; and others. 2. Necessity of killing must be apparent, as the only means of avoiding the slayer's own destruction, or some very great injury. State v. Wells, 145. 3. The means used to prevent an impending injury must be only such as are necessary under the circumstances. Ilinton's ease, 87, 8S; Thompson's case, 95. i. There can be no successful setting up of self-defence, unless the necessity for takhig life was actual, present, urgent — the only reasonable resort ot the party to save his own life, or his person from dreadful harm, or severe calamity, felonious in its nature. Benham's case,. 122. INDEX. 977 5. To justify an act, as in self-defence, tliere must be at least an apparent necessity to ward off by force some bodily harm. Shippey's case, 137. 6. The right of attack for the purpose of defence does not arise until he has done everything in his power to avoid its necessity. Sullivan's case, 65 ; Shippey's case, 136. 7. But not where his life is sought by a desperate and persevering enemy who has already attempted his assassination. Bohannon's case, 395. 8. There must be no other possible, or at least probable, means of escaping the necessity. Drum's case, 183 ; Shippey's case, 136. 9. The necessity must be great, and must arise from imminent peril; of^ death or great bodily injury. Drum's case, 186. 10. Necessity, the true criterion. Ibid, 187. NERVOUS FEARS. 1 . No excuse for homicide. See Grainger's case, 238, and note ; Shorter's case, 256. 2. Not sufficient to show that the defendant was in actual fear ; there must have been a reasonable cause for such fear. Creek's case, 253. 3. Evidence of debility and nervous excitabilitj' not admissible on behalf- of prisoner. Bhoultz' case, 249. Contra, Flavel's case, Whart. Cr. Law, § 1037. 4. Views of Dr. Wharton as to whether the jury are to judge from the standpoint of their own capacity, or from that of the prisoner. Note, 249, 251-253. 5. Timidity of disposition of prisoner may be looked to in determining whether he ought to be^ excused in using the degree of force he did. Seibert's case, 686, note. 6. The criminal law, while indulging to a humane extent the infirmities of human nature, yet nevertheless requires of sane men the exercise of a mastery over their fears, as well as their passions. Creek's case, 253. NEW TRIAL. 1. In criminal cases, if justice has been done, and if the result of another trial ought to be the same as the first, and the revising court are de- cidedly of this opinion, a new trial will not be granted, although the judge may have directed the jury improperly, or may have rejected evidence which, strictly speaking, ought to have been admitted. Wells' case, 151. 2. The Supreme Court of Pennsylvania will award a new trial for manifest error in instructing the jury on a given point in a criminal case, without stopping to enquire whether the right result has been reached by the verdict. Logue's case, 275. 3. In criminal cases, the Supreme Court of Tennessee will weigh the testi- mony, and if it preponderates against the verdict, they will grant a 978 INDEX. new trial. And a convictiou of murder in the second degree in this case is reversed, upon an examination of the proof adduced. Cope- land's case, 41. 4. The Supreme Court of Mississippi will not, in a capital case, reverse because of an instruction on tlie weight, of evidence, where the fact assumed as proven was so clearly established that there could be no room to doubt. Wesley's case, 328. 5. It is only after an examination of the whole record, and when it appears that the party complaining has either been injured, or may have been injured by an erroneous instruction, that that Court will inter- pose and correct the error. Ibid. 6. The denial of any legal right in a criminal case, is suflBcient to reverse a judgment. Pridgen's case, 434. 7. Case where a conviction of murder in the second degree was reversed on the facts. Underwood's case, 441, note. OCCASION PRODUCED BY SLAYER, NO DEFENCE. 1. A real or apparent necessity brought about by the design, contrivance, or fault of the slayer is no excuse. Rippey's case, 345. •J. He who provokes a quarrel, and, being therein overmatched, kills his adversary to save himself from apparent danger, is guilty of man- slaughter, if not of murder. Selfridge's case, 24. 3. But it seems that no words nor libellous publication, however aggravat- ing, ^^^U prejudice one's right of defence, if attacked in consequence thereof. Ibid, 25, 26. 4. Where one is assailed, and strikes the assailant in his necessary, or apparently necessary defence, and is thereupon slain, such striking does not constitute a provocation such as will reduce the killing to manslaughter. Baker's case, 75. 5. So, if he draw a pistol in his necessary defence, the danger thus oc- casioned will not excuse the original assailant in killing him. Hays' case, 492. i. Nor will it, if he fires a pistol. Lingo v. State, 515, note. 7. So, a person who puts himself in the wrong by refusing to go out of another's house when commanded to do so, is bound to submit to as much force as is necessary to put him out; and if, while such neces- sary and reasonable force is being applied to him, he turns and kills the owner with a deadly weapon, it is murder, and not self-defence. Hinton's case, 89. 8. In such case his right of resistance would not be called into existence at all, unless the owner used or was in the act of using, or was mani- festly about using more force than was necessary to put him out ; and then he would have the right to resist, but only to the extent J and by the use of the means necessary to repel such excessive force, so used or impending. Ibid. INDEX. 979 S. See to the same effect, Rex v. Willoiighbjs note, 90 ; Lj'on v. State, 91. And upon the principle thaftlie exercise of a legal right can never •be deemed a provocation, such as will mitigate an act of violence, see State v. Lawry, 90, note, and Lingo v. State, 515, note, 10. A person who seeks another with a loaded gun for the purpose of having an aflray, cannot excuse tlie slaying of his adversary on the ground that the latter fired the first shot. Neeley's case, 102 ; Ben- ham's case, 115. 11. A person cannot get the benefit of the plea of self-defence, if he sought the deceased with a view to provolce a difficulty or bring on a quarrel. Benham's case, 122 ; Adams' case, 208 ; Lhmey's case, 221, 222, note ; ■ Stonecifer's case, 222, note ; Vaiden's case, 223, note ; Eoach's case, 224, note ; Chambers v. Porter, 5 Coldw., 273 ; Lingo's case, 515, note. 12. The occasion must not have been provoked or sought by the slayer; and (in Texas) must have been avoided, if possible, by any mean.= except retreating. Isaac's case, 175. 13. To seek and provoke an attack upon one's self with the design of kill- ing the assailant, and, being assaulted with fists, only, killing him with deadly weapon, is murder, and not self-defence. Stewart's case, 191. 14. If a man strike another with malice prepense, even though he should be driven to the wall, and then kill his adversary, he is yet guilty of murder in respect of the first intent. Hill's case, 203. Contra, Stoffer's case, 213. 15. He who commences a malicious assault cannot justify killing his ad- versary while he continues in the combat. Stoffer's case, 213. -16. Otherwise after lie has succeeded in withdrawing from the place and retreating to the wall. Ibid. 17. How far a man parts with his right of defence by seeking or provoking an affray, considered in a note to Stoffer's case, 220, et seg. 1 s'. Restoration of right of perfect defence by withdrawing from combat and retreating. Note, 227, et seg. 19. To make the plea of self-defence available, the defendant must be with- out fault. Shorter's case, 258 ; Smith, J., in Lamb's case, 646. 20. The right of attack for the purpose of defence, docs not arise until the party claiming such right has done everything in his power to avoid its necessity. Smith, J., in Lamb's case, 646 ; Sullivan's case, 65 ; Shippey's case, 136. Contra, under certain circumstances, Bohan- non's case, 395. 21. But seeking difficulty, being armed with deadly weapon, does not necessarily make a killing in the combat with such weapon, murder. Cotton's case, 317, 22. If the defendant provoked the attack intending to kill the assailed, the killing of the assailed will be murder in the first degree, although the assailed had drawn a pistol at the time he was killed. Hays' case, 493. 980 INDEX. 23. A person who kills to save himself from death or great personal injury- will not be excused, if he provoked the difficulty and brought upon himself the danger. Hays' case, 494. Z OFFICER. See Escape. 1. Kaiing prisoner by. Forster's case, 143. OLD GRUDGE. 1. "Where there is a fresh provocation, a killing will not be ascribed to an old gi-udge ; and will therefore be manslaughter, and not murder. Copeland's case, 57 ; Baker's case, 78 ; HiU's case, 203 ; WiUiams' case, 249. OPINIONS OF WITNESSES. 1. Defendant's justification must depend upon facts and not opinions of witnesses. Hudgen's case, 471, note ; Hawkins' case, 471, note. This is the general rule. Keener's case, 539, 542. 2. Not competent to prove that at the time of the killing, the witness said to the deceased, " Yonder comes John Anderson, and he wiH kiU you." Hudgins' case, 471. 3. Not admissible to ask, " Whether the tone of voice, with the language and manner of deceased, were not such as to cause you to look for a difficulty?" Keener's case, 542. PRACTICE. 1. The duty of the prosecution in criminal cases to present all the attain- able evidence of the transaction stated and discussed. Hurd's case, 842 ; and see Barfleld's case, 624, and note e. PROPERTY, DEFENCE OF. [This ti:le refers to defence of property other than the habitation.'] i. Generally. 1. Owner not obliged to surrender possession, but may use as much force as necessary for its protection. Payne's case, 863 ; 900, note 1. 2. Where a trespasser goes with the intent and with the means to commit a felony, if necessary to accomplish the end intended, the owner of the property may repel force by force, to th& extent of killing the aggressor. Ibid. 3. Where an armed trespasser goes to the place where the property, of another is deposited, and. under a claim of right, attempts to remove it by force, and manifestly intends to kill the owner of the property INDEX. 981 if necessary to accomplish his purpose, and the owner shoots and IcUls such trespasser, this is excusable self-defence. Ibid. 4. Perfect right to defend property stops at limit where it becomes neces- sary to take life. 901, note 2. 5. The right limited to the prevention of forcible |and atrocious felonies. 901, note 2, a. 6. A killing to prevent a mere trespass upon property is unlawful and felonious. 902, note b. 7. Killing to prevent bare trespass, murder and not manslaughter. 902, note c. ■8. Unless the trespass involve an attack upon, or combat with, the owner. 903, note c, clause 2. n. By Spring-gxjns, Poison, Etc. ^. In a^ civil action, lawfulness of protecting 'private property by spring guns to be determined by the whole law, whether as appearing ii the civil or in the penal code. Gray v. Coombs, 867. 10. Where a person has valuable property in a strong warehouse, well secured by locks and doors, it is lawful for him, as an additional security at night, to erect a spring-gun which can only be made to explode by entering the house. Ibid. 11. Unlawful to lay poison for trespassing fowls. Johnson v. Patterson, 878. / 12. What notice in such cases is to be deemed sufficient. Ibid. 13. The right of an owner to defend his property in his absence, by means of engines or poisons placed so as to kiU or injure trespassing men or animals, discussed at length upon principle and in view of the Eng- lish authorities ; and it is held, that no such right exists in Connec- ticut. Ibid. 14. The doctrine of this case is limited to cases of trespass merely. What may be done to prevent a burglary or other felony, is admitted to be governed by other rules. Ibid. 15. The case of Ilott v. Wilkes, S Barn. & Aid., 304, criticised and dis- paraged ; and the grounds of public policy adduced in support of the rule adjudged in that and other similar English cases, declared to have no force or application in Connecticut. Ibid. 16. The mere act of setting spring-guns on one's own premises for their protection is not unlawful in itself, but the person doing it may be responsible for injuries caused thereby to individuals, and may be indictable for the erection of a nuisance, If the public are subjected by it to any danger. State v. Moore, 891. 17. What a man may not do directly, he may not do indirectly. A man may not, therefore^ place instruments of destruction for the protec- tion of his property where he would not be authorized to take life with his own hand for its protection. Ibid ; Johnson v. Patterson, 878 ; and see Gray v. Coombs, 867. 982 iNDJSX. 18. The right to take life in defence of property, as well as of person and habitation, is a natural right ; but the law limits its exercise to the prevention of forcible and atrocious crimes, of which burglary is one. State V. Moore, 891 ; Grray.v. Coombs, 867 ; Pond's case, 81^ ; Oliver's case, 725 ; 732, note. 19. In the absence of any statutory provision making it burglary to break and enter a shop in the night-time with intent to steal, and by the early strict rules of the common law, a man may not take life in the prevention of such a crime. State v. Moore, 891. 20. The habits of the people and other circumstances have, however, so greatly changed since the ancient rule was established, that it is very questionable whether, in view of the large amount of property now kept m warehouses, banks, and other out-buildings, it should not be held lawful to place instruments of destruction for the protection of ' such property. Ibid ;_'Gray v. Coombs, 867. 21. Breaking and entering a shop in the night-season with intent to steal, is by the law of Connecticut, burglary ; and the placing of spring- guns in such a shop for its defence would be justified if the burglar should be killed,by them. State v. Moore, 891. 22. The guns would, however, constitute a nuisance, if they cause actual danger to passers-by in the street ; but the danger to the public must be of a real and substantial nature.. Ibid. 23. And held in this case, upon a special verdict, that the guns were so set as not to constitute a nuisance. Ibid. 24. The English cases relating to defence of property by snring-guns, eto.^ reviewed. 903-904, note 3. PURSUIT. See Ebtrkat. 1. Right to pursue felonious assailant declared. Selfridge's case, 4. 2. Under what circumstances the right to pursue exists, and how long It continues. Note, 230 et seg. 3. Killing in pursuit after felonious assault. Redding Evans' case, 233, note. 4. Same where the retreat is merely to gain fresh advantage ; running fight. Hodge's case, 234, note. 5. Killing pursuer by the original assailant, in like case. Stoffer's case,, 213. 6. If a person who has been feloniously assailed has reason to believe, and does actually believe, that he is in continual danger of a renewal of the assault, he may pursue his enemy until he m.iy reasonably be- lieve himself secure from all danger. Young's case, 401, note. REASONABLE BELIEF. See APPEAKANCES. INDEZ. 983 REASONABLE DOUBT. See BuRDBN and Quantum of Pkoof. 1. Defined. Drum's case, 189, 190. RETREAT. 1. Not always a condition wWcli precedes the right to kill in self-defence. Creek's case, 253. 2. A person feloniously assailed need not. Selfridge's case, 4. 3. A person feloniously assailed must, before killing, unless retreat would increase danger. Selfridge's case, 17, 18 ; John Doe's case, 64 ; Ben- ham's case, 121 ; Smith's case, 130. 4. Whether he can escape is " the real stress of the case." Ibid, 24. 5. If the combatants are without weapons, and one is pressed to the wall, so that further retreat is impossible, he will not be justified in seizing a dangerous weapon, and with it killing his antagonist; but it is manslaughter. Wells' case, 145. 6. The doctrine examined at length in a note to Selfridge's case, 28 et seg., and in a note to James D. Kennedy's case, 139 ei srg. 7. Master of vessel not obliged to retreat, in order to justify killing sea- map. Wiltberger's case, 40. 8. Copeland's case, 41, and Selfridge's case, 1, compared, with reference to the doctrine of retreating before killing. Note, 62. 9. Right to slay in defence does not arise until slayer has done everything in his power to avoid the necessity. Sullivan's case, 65 ; Shippey's case, 133. Contra, Bohannon's case, 395. 10. Retreat not required where assault is with deadly weapon. Thomp- son's case, 95 ; John Kennedy's case, 109 ; Tweedy's case, 905. 11. Or where assault is so fierce that assailed cannot yield without manifest danger of deatti or enormous bodily harm. Selfridge's case, 17, 18; John Doe's case, 64; Thompson's case, 95; John Kennedy's case, 109 ; Beuham's case, 121 ; Pond's case, 814. 12. Or where the assailant has made murderous threats, and his demon- strations indicate a design to carry them into execution. James D. Kennedy's case, 139. 13. But in all cases of mutual conflict, the slayer must decline further combat and retreat as far as he can with safety, before the law will excuse the killing of his adversary. John Kennedy's case, 110; Robertson's case, 152 ; Riley and Stewart's case, 161. 14. Not necessary in Texas to retreat in any case, in order to justify kill- ing on the ground of self-defence. Isaac's case, 175, and note. 15. Every citizen may rightfully traverse the street, or may stand in all proper places, and need not flee from every one who chooses to assail him ; but the law does not apply this right to homicide. The question here does not involve the right of merely ordinary defence, or the right to stand wherever he may rightfully be, but it concerns the right of one man to take tlic life of another. When it comes to 984 INDEX. a question whether one man shall flee or another shall live, the law decides that the former shall rather flee than that the latter shall die. Drum's case, 188, 189. 16. He who brings on attack is bound to retreat before killing. Hill's case, 201, 203. 17. A person assaulted in the first instance, if a combat ensues, cannot excuse a killing as in self-defence without retreating, if he safely can. Hill's case, 204. At least, if the original assault was non-felonioua in its character. Pond's case, 814. 18. A person who first makes a malicious assault restores his full right of defence by withdrawing from the combat and retreating as far as he can. Stoffer's case, 213 ; Hittner's case, 236. 19. Instructions to the jury should be so framed as to give the prisoner the benefit of any supposed retreat. Hittner's case, 236. 20. It is erroneous to tell the jury that the defendant is not excusable if he had any safe means of escaping, etc. ; because the question is not whether he might have safely escaped, but whether the appearances were such as to convince a reasonable man that he might have safely escaped. Meredith's case, 298. 21. Not necessary to retreat, unless, in the judgment of a reasonable man, it may be safely done. Meredith's case, 301. 22. A person who has once escaped from an attempted assassination, and whose enemy continues his threats against him, is not obliged to run or shun his enemy. Philips' case, 383 ; Bohannon's case, 395. 23. But whether he may hunt him to kill him is not intimated. Philips' case, 383. 24. It seems that he may. Carico's case, 389. Contra, Bohannon's case, 395. 25. It is hence error to instruct that the right of self-defence does not arise until the defendant has done everything in his power to avoid the necessity. Bohannon's case, 395. Contra, Sullivan's case, 65; Shippey's case, 133. 26. Homicide ae defendendo is excusable at common law, when it occurs in a sudden affray, or in repelling an assault not made with a felonious design. In these cases, the original assault not being with a feloni- ous intent, and the danger arising in the heat of blood on one or both sides, the homicide is not excused, unless the slayer does all which is reasonably in his power to avoid the necessity of extreme resist- ance, by retreating where retreat is safe, or by any other expedient which is attainable. He is bound, if possible, to get out of his ad- versaiy's way, and he has no right to stand up and resist, if he can safely retreat or escape. He must retreat as far as he can ; and when, by reason of intervening impediments or the fierceness of the assault, he can retreat no further without manifest danger of death or great bodily harm, he may turn and kill his assailant ; and if he can make it appear to the jury that the killing was necessary to protect his own life, or to protect himself from serious bodily harm, and that he did all he could to avoid it, he will be justified. Pond's case, 814. INDEX. 985 '27. A man is not, however, obliged to retreat if assailed in his dwelling, but may use such means as are absolutely necessary to repel the as- sailant from his house or to prevent his forcible entry, even to the taking of life. But here, as in other cases, he must not take life if he can otherwise repel the assailant. Pond's case, 814; Carroll's case, 804 ; G-reschia's case, 854. 28. If any forcible attempt is made with a felonious intent against person or property, the person resisting is not obliged to retreat, but may pursue his adversary, if necessary, until he finds himself out of. danger. Pond's case, 814. EIOTS. 1. Duty of interfering in suppression of, and justification of homicide in such cases. 737, note ; Pond's case, 814. SELF-DEFENCE. See Defence ; Occasion Produced by Slayer. 1. Is a defensive, not an offensive act, and must not exceed the bounds of mere defence and prevention. To justify such act, there must beat least an apparent necessity to ward off by force some bodily harm. Shippey's case, 137. 2. There are two kinds of self-defence ; the one, which is justified and per- fectly innocent and excusable ; the other, which is in some measure hlavaeable and barely excusable. Eiley and Stewart's case, 160. See also Pond's case, 814 ; Selfridge's case, 16, note. 3. The law of self-defence in cases of mutual combat and of felonious assault", and the doctrine of retreating to the wall, expounded at length. Riley and Stewart's case, 160. 4. The rule of common law is, that a man may repel force by force in de- fence of his person, habitation or property, against one who mani- festly endeavors, by violence or surprise, to commit a known felony, such as rape, robbery, arson, burglary, or the like; and in these cases he is not obliged to retreat, but may pursue his adversary until he has freed himself from all danger. Selfridge's case, 3,4; Collins' case, 595, note ; Young's case, 402, note ; Note to Stoffer's case, 230 et seq. ; Pond's case, 814 ; Patten's case, 826 ; Carroll's case, 804. 5. The right of self-defence is not derived from society, but is a right which every individual brings with him into sogiety, and retains in society, except so far as the laws have curtailed it. Gray v. Coombs, 867 ; Eiley and Stewart's case, 160. So of the right to defend one's prop- erty. Ibid ; State v. Moore, 891. And see Isaac's case, 175 ; Holmes' case, 757. ■6. Doubted whether an assault only, unless with deadly weapon, will ex- cuse a homicide on the ground of self-defence. Selfridge's case, 23. 986 iNDEi. SELF-PRESERVATION BY DESTRUCTION OF INNOCENT PERSON. 1. Seamen nave no right, even in cases of extreme peril to tlieir own lives, to sacrifice the lives of passengers, for the sake of preserving their own. On the contrary, being common carriers, and so paid to pro- tect and carry the passengers, the seamen, beyond the number neces- sary to navigate the boat, in no circumstances can claim exemption from the common lot of the passengers. Holihes' case, 757. SERVANT. 1. May interfere to prevent mischief where known felony is attempted. Riley and Stewart's case, 161 ; Pond's case, 814. SIZE AND STRENGTH, RELATIVE, OP THE PARTIES. 1. An element in determining whether homicide is excusable. State v. Wells, 143 ; Copeland's case, 41 ; Benham's case, 115 ; Drum's case, 186. 2. Although one person may make an assault upon another with a knife, ' but under such circumstances of incapacity from physical debility as to preclude any reasonable grounds for fearing death or serious bodily harm, the assailed will not be excused in killing the assailant. Hinton's case, 83. 3. Where a boy of sixteen shot and killed a full-grown man who had assailed him with an ox-gad, hfcld that the jury should have been instructed to consider, among other circumstances, the physical capacity of the parties. Benham's case, 121. 4. Manslaughter for a person of superior strength, to kill his antagonist with a heavy club in combat. Wells' case, 151. 5. Evidence to show the great muscular strength and vigor of deceased excluded in a case in Massachusetts, where the kUling was in com- bat. Mead's case, 679, note ; and see 696, note, where this case is i criticised by the editors. STATUTES. 1. Of Arkansas, California, Colorado, Illinois and Dakota on justifiable and excusable homicide cited. Selfridge's case, 16, note. 2. Of Iowa, Revision of 1860, \\ 4442, 4443, have not changed the common law on the subject of lawful resistance. John Kennedy's case, 110, 111. 3. Of California, on justifiable homicide, set- out, and Hurley's case, ex- pounding it, examined. 244, 245, note. 4. Of New York, on justifiable homicide, expounded with respect to the doctrine of the right to act upon reasonable appearances of danger. Shorter's case, 260. INDEX. 987 5. Of Mississippi, Minnesota and Kansas, on same subject. 268, note. 6.. Of Wisconsin and Missouri, on same subject. 269, note. THREATS. I. Generally. 1. Object of proving. Jolinson's case, 416 ; Sloan's case, 516 ; Scoggins' case, 596 ; Monroe's case, 468 ; Howell's case, 469, note ; Dukes' case, 573, note. 2. Tlie true distinction in regard to tlie admissibility of evidence of tlireats,. communicated and uncommunicated, stated. Keener's case, 554. 3. Tlie remoteness or nearness of time as to threats and declarations pointing to acts subsequently committed, does not afl'ect the competency of such testimony. Keener's case, 654, 555; Ford's case, 555, note. Contra, Jackson's case, 520, note ; Sloan's case, 516 ; Hays' ca^e, 492. 4. Threats and menaces of the parties to be considered by the jury in determining their situation at the time of the killing. Seibert's'case, 686, note. n. COMMnNICATED. 5. Contingent threat of son of assailant, communicated to defendant,. admissible. Eapp's case, 293. 6. Evidence of, not admissible, unless there be testimony tending to show some demonstration indicating design to carry them out. Evans' case, 336, 337 ; Myers' cap<'. 437 ; Hughey's case, 589, note. To the same eifect, Mullen's case, 593, note ; Leonard's case, 594, note. 7. Or where defendant invites deceased to mortal combat, and then kills him while in the act of preparation. Ibid. 8. In trials for homicide, evidence of threats made by the deceased against the accused, and communicated to the deceased before the killing, is admissible as tending to create a belief in the mind of the accused that his life was in danger, or that he had reason to apprehend some great bodily harm from the acts and motions of the deceased. Stokes' case, 927. 9. Admissible, without proof of overt act at time of killing. Pridgen's case, 416, Lindsay, J., dissenting; Robert Jackson's case, 476.. Contra, Myers' case, 437 ; Hays' case, 492. 10. Must be an actual threat ; not an expression of opinion. Mj^ers' case, 437. 11. Evidence of, inadmissible, where the record did not show when they were made, and where the prisoner sought the difficulty and Idlled the deceased under circumstances showing express malice. Hays' case, 492. 12. Otherwise if deceased had attacked defendant, or endeavored to get advantage of him in a personal conflict, or had given him ground to suppose that he meant to do him some great bodily harm. Ibid. ■988 INDEX. 13. Such threats must bo recent, or continued down nearlj' to the time of the killing. Ibid. 14. If the record do not show when they were made, this is a sufficient ground for excluding them. Ibid. 15. But where there has been a long-continued series of threats, it is error to reject all threats made more than three days before the killing. Sloan's case, 516. 16. Admissible to show reasonableness of defendant's fears. Monroe's case, 442. , 17. .Competent to prove a continued series of communicated threats. Ibid. 18. Competent to prove threats, to show the quo animo of the defendant, and rebut the presumption of malice. Howell's case, 469, note. 19. The rule appears to be, that where the testimony proves a continued series of threats, extending back for several weeks or months, if such threats were communicated to the defendant, they wiU not be excluded as being too stale or remote. Sloan's case, 516. 20. If the threats were made shortly before the killing, and the deceased was armed to carry out such threats, they are admissible as part of the res gesice. Ibid. 21. The doctrine of communicated threats confused with the doctrine of cooling time. Jackson's case, 520, note ; and see Hawkins' case, 522, note. 22. Threats made the day before the killing and communicated, clearly admissible, where there is an uninterrupted chain of events extend- ing from the time of the threats to that of the killing. Keene's case, 532. '23. Threats made a short time before the killing admissible. Dupree's case, 582. 24. Evidence of previous continued threats; that the defendant had escaped from an attempted assassination on the Saturday before the killing ; that on the day before the killing the deceased had waylaid the defendant to shoot him, who had escaped by taking another road — ^were excluded because there was no act done at the time of the killing indicating an intention to kill the defendant or do him great bodily harm. Hughey's case, 589, note. "25. Such evidence not admissible where defendant " sought, pursued and killed the deceased." Leonard's case, 594, note. 26. Evidence of threats of death made shortly before the killing and on the same day, admissible in connection with a slight assault, to show the reasonableness of defendant's fears. Collins' case, 595, note. 27. Communicated threats admissible to show reasonable fears of death or great bodily harm. Scoggins' case, 596. 28. On a trial for murder, where it appeared that the deceased and two companions sought to gain admittance into a house of ill-fame by violence, and against the will of the keeper thereof, who ran out and struck the deceased with a door-bar, from which death ensued, it was held, that testimony that threats had been made a week before, INDEX. 989 by a party of rioters, who had broken into the house and abused the inmates, that they would return some other night and break in again, might be received and submitted to the consideration of the juryi under the instruction of the Court ; although it seems that for the rejection of such evidence, where it was not shown that the deceased was one of the party who made the threats, a new trial would not be granted. Rector's case, 796, Beonson, J., dissenting. 29. Killing ui defence against riotous attack upon habitation — evidence of a previous beating, and that the rioters then threatened that they would return and tear defendant's house down, admitted. Meade's case, 798. in. Ukcommunicatbd. 30. Where evidence has been given, making it a question for the jury whether the killing was excusable self-defence, evidence of threats made by the deceased against the accused a short time before the kilUng, but not communicated to the accused before the killing, is admissible. Stokes' case, 927 ; Campbell's case, 282 ; Little's case, 487 ; Goodrich's case, 532 ; Holler's case, 565 ; Keeuer's case, 531 Cornelius v. Commonwealth, 15 B. Monr., 539 ; Pitman's case, 574 ; Howell's case, in note to Monroe's case, 469 ; Riddle v. Brown, in note to Goodrich's case, 538 ; Scoggins' case, 596, and Arnold's case, in note to Scoggins' case, 600. Contra, Powell v. State, 587, note ; Atkins v. State, 576, note ; Lingo v. State, 556, noto ; Newcomb v. State, 613, note; People v. Henderson, 28 Cal., 465. 31. Evidence of mutinous combination among seamen, will not justify master in killing a seaman, unle.ss it appears that he had knowledge of it. WUtberger's case, 39. 32. Admissible for the purpose of showing the design with which the deceased went to the place of the encounter. Campbell's case, 282 . Keener 's case, 555. But in later cases in Georgia, siich threats were excluded. Lingo's case, 556, note; Hays' case. Ibid. 33. Admissible ; and if it appear that they did not come to the knowledge of the defendant, they will not be a justification. Howell's case, 469, note. 34. Admissible in all cases where the acts of the deceased with reference to the fatal meeting are of a doubtful character. Little's case, 487 ; Holler's case, 565. 35. Made shortly before the killing, the deceased being armed to carry them out, admissible as part of the res gestce. Sloan's case, 616 ; Pitman's case, 574. 36. Admissible on indictment for assault to kill, for the purpose of showing the intent with which the prosecutor went to the defendant's house, and his feelings toward defendant. Goodrich's case, 533. 37. In civil action for assault and battery, admissible as tending to show which party was probably the aggressor. Murphy v. Dent, 538, note. The same point substantially in Riddle v. Brown, 538, note. 990 • INDEX. 38. Oil a trial for homicide, where the evidence that the deceased had pos- session of a deadly weapon on the day preocdiiiic the fatal .affray is contradictory. Holler's case, 565. 39. Admissible to corroborate evi(l(inco of communicated threats previously admitted. HoUer's case, 569 ; Cornelius v. Commonwealth, 569, note. 40. Proof of threats made several days before the killing and not com- miinioated, held not admissible hi Atkui's case, 576, note ; and see Coker's case, 578, note. 41. Evidence of, held properly ruled out, there being nothing hi the record to raise the inference that the defendant knew of them. But the Court do not decide that cases may not occur in which such testi- mony should be admitted. Powell's case, 587, note. 42. Evidence of uncommunicated threats admissible as facta, tending to illustrate the question which was the first assailant. Scoggins' case, , 596 ; Arnold's case, 600, note. 43. But it would be the duty of the Court to explain to the jury carefully, that the proof was admitted only as tending to corroborate whatever other evidence there was that the deceased was the assailant, and for no other purpose. Scoggins' case, 596. 44-. Thus, where the evidence left it in doubt who made the assault, it was competent to show that shortly before the kUUng the deceased had armed himself with a pistol, and also to prove the declarations there made as to his intention to use it, although such declarations may not have been communicated to the defendant. Arnold's case, 600, note. 45. The doctrine of uncommunicated threats as presumptive evidence illustrated by Lyon v. Hancock, quoted, p. 609. 46. Uncommunicated threats not so recent as to constitute a part of the res gestae, held properly excluded in Chambers v. Porter, 612-13, note. [But this case is overruled in the same State. Eobert Jack- son's case, 476, and Little's case, 487.] 47. Evidence of uncommunicated threats made six weeks or two months before the killing were excluded in a case where the killing was deliberate, and where there was no demonstration against the accused at the time of the killing, nor any ground for supposing himself in danger. Newcomb's case, 613, note. 48. Such evidence, in general, admissible only when so recent as to con_ stitute a part of the res gesios. Carroll's case, 804. 49 Where the deceased entered the prisoner's house after having been for- bidden to do so, but the proof did not disclose that he oflferod or attempted any personal violence against the prisoner, it was held, that evidence of such uncommunicated tlireats was not admissible to show the cliaracter of the conduct of the deceased in entering the botise, after he had been warned not to do so. Ibid. IV. EirPKCT OP. 50. Do not justify an assault, much less the taking of life. Evans' case, 335, 336 ", Lander's case, 360 ; Johnson's case, 413. INDEX. 991 51. Afford no excuse for homicide, unless at the time of the killing an effort was apparently being made to carry them into execution. Head's ca.se, 341 ; Eippy's case, 345 ; Williams' case, 849 ; Lander's case, 366; Johnson's case, 413 ; Pasch. Dig. Tex. Stat., . Art. 2270; Robert Jackson's case, 476. 52. No extenuation of a homicide committed by lying in wait with a deadly \veapo;i. Lauder's case, 366. 53. Do not, under the Texas statute, reduce a homicide to manslaughter. Johnson's case, 413 ; WaU's case, 614-15. o-l. No extenuation of a homicide committed with a deadly weapon upon a person who is unarmed. Coker's case, 579, note. 55. Made by defendant, admitted to show malice. Scoggius' case, 596. TRESPASSERS, EXPULSION OF. PrOm Habitation, see Habitation. From other Property, see Pkopbrty, Defence of. 1. Deliberate killing of another to prevent a. mere trespass upon property, is murder. Harrison's case, 71, 75 ; Drew's case, 705 ; and see John Kennedy's case, 111. 2. It is lawful for a person to exert as much force as is necessary to put a trespasser out of the house in which the former lawfully is. Robert- son's case, 152. 3. No man can defend his property (other than his dwelling) by making use of a deadly weapon. ZeUer's case, 472 ; Drew's case, 705. WAR. 1. Right of self-defence as applied to a state of private or mixed war. Mc Leod's case, 784. WHARTON, Dr. 1. His criticism of Selfridge's case examined. Note, 28. WITNESSES.^ 1. All present at the transaction to be called by the prosecuting officer. Hurd's case, 840 ; and see Barfield's case, 624, note. WRONG-DOER. Defence by ; see Occasion Produced by Slayer.