(Jornf II IGam Btl^aal ICihtatg KF9246.H8T"""""™"'"-"'™'^ Select American cases on the law of self 3 1924 020 148 635 Cornell University 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/details/cu31924020148635 SELECT AMERICAN CASES ON THK LAW OF SELF-DEFENCE BY L. B. HORRIGAN SEYMOUR D. THOMPSON ST. LOUIS SOULE, THOMAS & WENTWOETH 1874 Entered according to an Act of Conpress, in the year one thousand eight hundred and seventy-four, by L. B. HORRIGAJf A2a) SEYMOUE D. THOMPSON, In the Office of the Librarian of Congress at Washington. j'rlnted by PREFACE. The title of tHs 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 8elf-Defence. 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 person slain — have been XT PREFACE. 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 Part TV, 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 to every other case in the book where the same point is under discussion. ANALYSIS. Part I. Defence of the Pebsom. rA9m. •A..— A^fainst Assaults and Demonstrations threatening Death or Great Bodily Harm 1 B,— Defence against Death or Great Bodily Harm, where the Exi- gency arises in Mutual Combat 14& C— Killing in Self-Defence, 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 33* E.— Defence against Unlawful Arrest 697 F.— Defence against Common Assaults '720 G. — ^Resistance to the Commission of Felonies 72S 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 788 JK.— The Law of Self-Defence as applied to a State of Mixed War 784 Pakt I[. Defence of the Habitation. Part HI. Defence of Property other than the Habitation. Part IV. Of the Bckden and Quantum op Proof where Sbli- Defknce is urged in Justification of Homicide. TABLE OF CASES. [The principal cases are in Small Capitals ; ttiose which are quoted at length in the notes are in Italics; and those which are briefly cited are ia common type.] Aaron v. State [31 Ga., 167.] 784. Adams v. JPeoplb [47 111., 376.1 In Ml, 208. Cited, 90, 220, 227, 514. Adams v. Waggoner [3 Ind., 533.] 724. Adey's case [1 Leach C. C, 245-1 709. 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, 570. Austin V. People [1 Park. C. R., 248.] Quoted at length, 248. AvSson V. Kinnaird [6 East, 188.] 462, 519. Bakbb, State v. [1 Jones (Law) 267J In full, 75. Cited, 90, 126, 515. Barfield, State v. [8 Ired., 344.] In full, 618. Cited, 644, 654, 667, 675. Bautista, United States v. [2 Sumn., 343.] 428. Bc'iil V. Robeson [8 Ired., 276.] 667, 671. Beers v. Hoiisatonic R. R. Co. [19 Conn., 567.] 891. B(;llingham's case [1 Collinson on Lunacy, 671.] 913. Bbnham, State v. [23 Iowa, 154.] In full, 115. Cited, 31, 33, 90, 129, 140. 226. 475, 626, 696, 714, 717. Bessey y. OUott [Raym,, 468] 773. Biggs v. State [29 Ga., 723.] In full, 744. Examined by the editors, T:>4. Bird V. Holbrook [7 Bast, 628.] 903. Birge v. Gardiner [19 Conn., 501.1 891. Blackman y. Simmons [3 Car. & Pay., 138.1 894. Blake, State v. [1 City Hall Recorder, 100.] 459, 466. BIyth V. Topham [Cro. Jac, 158.] 880. BoHANNONy. CoMMONWEALrH [8 Bush, 481.] In full, 395. Cited. 32. 79 140, 232, 243, 393. Boswell-v. Blackman [12 Ga., 546.] Quoted, 546. Bottoms V. Kent [3 Jones (Law) 154.] Quoted at length, 666 et »«j. Cited^ 617, 675, 696. Bourne, Rex v. [5 Car. & Pay., 120.] 751. Brandon, State v. [8 Jones (Law) 467.] 902, 903. Brock V. Copelancr[l Esp., 203.] 880, 894, 904. Bromage y. Prosser [4 Barn. & Aid.. 255.] 513. Brown v. Kendall [6 Cush., 292.1 772, 778, 782. Brown v. People [17 Mich.. 212.] 832. Browne's case [Leach, 276.] 734. Brownell y. Pacific Railroad [47 Mo., 239.] 528. Bryson, State v. [1 Winst. (Law) Part 2, p. 86.] Quoted at length. 249, Cited, 687. Buckner's case [Style, 467.] 716. TABLE OF CASES. Vll Bull, Reg. y. [7 Car. & Pay., 22.] Quoted at length, 736. Cited, 140, 145, 23i2, 263. BuUook V. Babcock [3 Wend., 391.] 782. Burckle v. New York Dry Dock Co. [2 Hall. 151.] 880. Burke v. Statk[3 Iowa, 331.] In full, 126. Burroughs v. Housatonic R. R. Com. [15 Conn., 124.] 777, 782. Burrows v. Union [3 Car. & Pay., 310.] 559. Burwell v. State [63 N. Car. 661.] 724, Bush V. Brainerd [1 Cowen, 78.] 8faO. Bushell's case [Vaughn, 148.] 563. Butles, State v. [8 Cal., 435.]^ 521. Butterfield v. Forrester [11 East, 60.] 880. Cadwell v. State [17 Conn., 467.] 439, 553. Campbell v. People [16 III., 17.] In Ml, 282. Cited, 82, 106, 210, 233, 288, 292, 491, 518, 521, 527. 570, 581, 929. Carev, Commonwealth v. [2 Brewster, 401.1 141. Carey, Commonwealth v. [12 Cush., 246J 716. Carico v. Commonwealth [7 Bush, 124. In fuU, 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. Castner 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 [ 8 Car. & Pay., 559.1 851, 932. Childers v. Ford [10 Smedes & Marsh., 25.] 337. Chopin, State v. [10 La. An., 458.] 247. Churchill v. Rosebeck [15 Conn., 359.] 772. Clark V. Dutoher [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., 244.] 677. Clark V. State [12 Ohio, 494.] 626. Claxton V. State [2 Humph., 172.] 755. Cofflii 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. COPELAND V. State [7 Humph., 429.] In full, 41. Cited, 78, 140, 485, 491, 626, 696. Corne ius v. Commonwealth [15 B. Monr., 539.] Quoted, 569. Cited, 152, 518, 521, 684, 929. Cotteral, People v. [18 Johns., 115.] 913, 919. Cotton v. State [31 Miss., 504.] In full, 310. Cited, 245, 276, Cox V. Kitchen [3 Bos. & Pul., 338.] 151. Coxe V. 'VVIiitney [9 Mo., 531.] 521. Craton, State v. [4 Ired., 164.] 91, 703, 756. Crause, Commonwealth v. [3 Am. Law Jour. (N. S.) 299.] 104. Creek v. State [24 Ind., 151.] In full, 253. Cited, 141, 251. Crutchley. Rex v. [5 Car. & Pay., 133.] 463. Curtis V. Hubbard [1 Hill N. Y., 336.] 750, 751, 862, 900. Curtis V. Mills [5 Car. & Pay.. 489.] 880. Curvan, Rex v. [1 Moody C. C, 132.] 716. 30 Daley, Commonwealth v. [1 Penn. Law Jour., 150.] Darry v. People [2 Park. Cr. R., 638.] 913. Davis V. Calvert [5 Gill. & Johns., 269.] 439, 672. Vlll TABLE OF CASES. Ueane v. Clayton [7 Taunt., 489.] 880, 881, 903. ^. ^ ^^ Decklotts, State v. [19 Iowa, 447.] (Jiioted at length, 112 et seg. Citea, 63, 123 129 227 Deerly v. Duchess of Mazarine [1 Salk., 116J 151, 152. Dill V. State [25 Ala., 15.] In full. 738. Cited, 415, 750. Dock V. Commonwealth [21 Gratt, 912.] 230. Doe, People v.ri Mich., 451.] In full, 62. Cited, 33, 140, 276. Dole V. Ersklne [35 N. H., 503.1 724. Downey v. Murphy [1 Dev. & Batt., 83.] 673. Drpunan V. People [10 Mich., 169.] 901. Drew, Commonwealth v. [4 Mass., 391.] In full, 705. Cited, 461,472, 475, 718, 750, 861, 862, 903. . „ ,oo Drum. Commonwealth v. [58 Penn. State (8 P. F. Smith) 1.] In full, 183. Cited, 31, 33, 140. _ „„^ Dukes V. State [11 Ind., 557.] Quoted at length, 572. Cited 518, 571, 604, 609. Dumphey, State v. [4 Minn., 438.] Quoted at length, 684. DuPKKE 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. Machall [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 Mi.=s., 762.] In fuU, 329. Cited, 79, 227, 293, 316, .514. Emns {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 case [Cro. Car., 371 ; S. C., W. Jones, 36 ; S. C, Kelyng, 59.] 709, 716. Ferriqan, Commonwealth v. [44 Penn. State, 386.] Quoted from, 688. Field, State v. [44 Maine, &.] In full, G29. 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., 182.1 459. Fitzgerald v. People [37 N. Y., 418.] 933. Flavel's case [MS.] 251, 252. Floyd V. State [36 Ga., 91.1 724. Ford, B«x V. [Kelyng, 51.] 737. Ford, Uex v. [Russ. & Ry. C. C, ZW.\ 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., 325.1 519. Franklin v. State [29 Ala., 14.] In full, 641 . Cited, 547, 588, 054. Frazer v. Berkeley [7 Car. & Pay., 621.] 47.'5. Gallagher v. State [3 Minn., 270.] In full, 720. Cited, 33, 713. Galvin v. State [6 Coldw., 292.] 716, 717. (Gardiner v. Tliibodeau [14 La. An.. 733.] 901, 902 Oat 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 Shippey's case, 136 ; in Shorter's case, 263 ; in Lander's case, 382, and in Shoultz' case, 249. Cited, 105, 106, 141, 263, 282, 360, 362, 440, 459, 485, 519, 632, 730, 731, 760. TABLE OF CASES. IX Oray v. Coombs [7 J. J. Marshall, 478.] In full, 867. Cited, 30, 804, 901. Green, State v. [See Scott, State v.] Green v. State [28 Miss., 688.1 337. Gieeiiacre, Rex v. [8 Car. & Pay., 42.] 924. Greene v. White [37 N. Y., 405.] 933. Gbeschia 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., 611.1 900. Harris, State v. [1 Jones (Law) 190.] In full, 27G. Cited, 31, 250, 251. Harris v. Tippett [2 Camp., 638.1 536. Harrison v. State [24 Ala., 67.] In full, 71. Cited, 79, 716, 723, 756, 861, 902. Harvey, Rex v. [2 Barn. & Cres. , 268.] 513. Hawkins v. Staie [25 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., 287.] 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. Hicks, 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, 621. Hinch V. State [25 Ga., 699.] 696. HincheUffe''s case [1 Lewin C. C, 161.] Quoted at length, 125, 126. Cited, 903. oil Hinton v. State [24 Texas, 454.] In full, 83. Cited, 79, 126, 515, 626. Hiitner v. State [19 Ind., 48.] Quoted at length, 236. HUliqrd, Commonwealth v. [2 Gray, 294.] Quoted at length, 678. Cited, 654,679,683. Hodges y. State [loGa.. in.} Quoted at length, 234. Cited, 228, 229. Hague, State v. [6 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.] 755, 862. Howeil V. State [5 Ga., 48.] Quoted at length, 470. Cited, 382, 422, 518, 521, 587. HoweU V. State [9 Ind.. 485.] 237. Hoye V. State [39 Ga., 718.] 556. Hubbard, People v. [24 Wend., 369.] 900. Budgins v. Staie [2 Kelly, 173.] Quoted at length, 470. Cited, 466, 545, 577. Haghey v. State \jG Ala., 97.1 Quoted at length, 589. Hummach v. White [Jur. (N. S.) 796.] 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.] Quoted at length, 244. Cited, 604. Hyke v. Van Leuwen [4 Demo.] 891. Ilott V. Wilkes [3 Barn. & Aid., 304.] 876, 880, 882, 894, 903. Isaacs v. State [25 Texas, 174.] In full, 175. Cited, 32, 140. Jaeksbn, Staie v. [12 La. An., 679.] Quoted at length, 475. Jackson, State v. [17 Mo., 544.1 Quoted at length, 520, 679. Cited, 695, 654. Jackson (Robert) v. State [Unreported.] In full, 476. Cited, 232, 243 245. 547, 593, 723. 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. [44 Mo., 234.1 494. John, State v. [8 Ired., 330.1 755. Johnson, State v. [12 Law Reo-.. (\. S.) G53.] 861. X TABLE OF CASBS. Johnson V. Patterson [14 Conn., 1.] In full, 878. Cited, 894. Johnson v. State [12 Ala., 841.] 731. Johnson v. State [27 Texas, 758. In full, 407. Cited, 423. Jordin v. Crump [8 Mees. & Wells., 789.] 903, 904. Keene, State v. [50 Mo., 357.] Quoted at length, 531. CiUd, CbO, 681. Keener v. State [18 Ga., 194.] In full, 539. Cited, 439, 440, 401, 518, 521, 525, 570, 593, 624. 666, 929. Keho V. Thompson [9 Ala., 937.] 730. Kennard, Clommonwealth v. [8 Pick., 133.] 900. Kennedy (James D.), State v. [7 Nev., 374.] In full, 137. Cited, SI, 33. Kennedy (John), State v. [20 Iowa, 569.] In fuU, 106. Cited, 33, 122, 123, 129, 140. Kilgore v. Jordan [17 Texas, 341.] 416. King V. Lynch [5 Car. & Pay.. 324.] 459. King V. AVoodfall [5 Burr.. 2661.] 457. Knapp, Commonwealth v. [10 Pick., 484.] 913.; Lamb v. C. &. A. K. R. Co. [46 N. Y., 271.1 934. Lamb, People v. [41 N. Y., 860.] In full, B46. Cited, 106, 270, 316, 604. Lander v. State [12 Texas, 462.] In full, 366. Cited, 79, 104, 105, 232, 243, 422, 521, 72B. 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, 556. Cited, 475, 515. Linney, State v. [51 Mo., 40.] Quoted at length, 221-2. Lipsey v. State [3 Dev., 493.J 626. Little V. Bird well [21 Texas, 612.] 416. Little v. State [Unrpportcd.] tn full, 487. Cited, 440, 490, 521. Loeffner v. State [10 Ohio State, 599.] 926. LoGUB, Commonwealth v. [2 Wright, (38 Penn. State) 265.1 In fuU, 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 Dodson, 264J 760. Lyon V. Hancock [35 Cal., 372.] 609. Lyon V. State ,[22 Ga., 399.] Quoted at length, 90, 91, note. Manning's case [Rayra., 212.] 755. Mahan v. Brown [13 Wend., 261.] 880. Maher v. People [24 111., 241.] In full, 290. Cited, 105, 175, 210, 208, 270 276. Maher v. People [10 Mich., 212.] 832, S47, 850, 939. Mariana Flora (The) [11 Wheat., 51.] 760. Marr v. Hill [10 Mo., 320.] 519. Martin v. Martin [25 Ala., 201.] 589. Mc Auley v. State [3 G. Greene, 435.] 900. MoCann, People v. [16 N. Y., 69.] 913, 915. 917. McClelland v. Kay 114 B. Monr., 106.] 901, 902. McCoy V. State [3 Eng. (Ark.) 454.] ' 862. Mc Donald, State v. [4 Jones (Law) 22.] 902, 903. McKee, Commonwealth v. [1 Grav, 61.] 909. McKee v. Nelson [4 Cowen. 355.]' .544. McLeod, People v. [1 HiU N. Y., 377.] In full, 784. Cited, 79, 231, 251. 376.913.917. - > ' . McMillan v. State [13 Mo.. 30J Quoted frnm, 528. McNaughten's oas6 [47 Enjr. Com. Law, 131.] 913. McPhersou v. Daniels [10 Barn. & Cres., 272.] 513. Mc Phcrson y. State [22" Ga., 478.] 901. TABLE OF CASES. xl MoVike, Commonwealth v. [3 Ciish., 181.] 519. Mu Kae v. Lilly [1 Ircd. , 118.] 6H7, 671. Mawgridge's case [Kelyng, 128.] Cited, 140, 189, 231, 232, 450. Mead, Commonwealth v. [12 Gray, 167.] Quoted in fuU, 679. Meade atid Belt's ease [1 Lewin C. C. , 184.] Quoted in full, 798, 799. Cited, 33, 262, 280, 309, 466, 500, 525, 696, 810, 861. Meredith v. Commonwealth FIS B. Monr., 49.] In Ml, 298. Cited, 106, 175, 270, 684. Merrill v. Nay [10 Allen, 416.] 559. Merrill, State v. [2 Dov., 269.]^ 723. Mitchell V. State [22 Ga.. 211.] 751-2. Moak V. State [36 Miss., 91.] 337, 338. MoNKOB V. State [5 Ga., 85.] In full, 442. Cited, 32, 140, 382, 440, 504, 519, 521, 587, 593. 654, 681, 689. Montgomery, Eespublica v. [1 Yeates, 421.] 737. Moody V. Davis [10 Ga., 403.] 544. MoORB, ^TATE V. [31 Conn,, 479.] In full, 891. Cited, 30, 901. Morgan, State v. [3 Ired. (Law) 193.] Quoted from, 724. Cited, 75, 376, 893, 902. Mirley (Lord), Trial of [6 How. St. Fr., 770.J 142, 229, 594. Morris v. Pratt [32 Conn., 75.] In full. 768. Cited, 613. Morrison, Rex v. [8 Car. & Pay., 21.] 925. Mirrison v. Stewart [24 111., 25J 211. Mdlen, State v. [14 La. An., 577.} Quoted at length, 593. Murphy V. Dart [42 How. Pr., 31.] Quoted at length, 538. Murphy, Keg. v Murray v. People Murray v. Byrne Murphy, State v, 2 Crawt: & Dix C. C, 20.] 901, 902. 903. "10 Cal., 309.] Quoted from, 681. Cited, 682, 683. ■42Mo., 472.J 723. '33 Iowa, 270.] 939. MrER3 V. State [33 Texas, 525.] In full, 432. Cited, 593, 773. :Nailor's case [1 East P. C, 277.] 39. Neelby, 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 [I Swan, 237.] Quoted from, 491. Neville, State v. [6 Jones (Law) 433.] Quoted from, 756, note. Cited, 755. Neweomb v. State [37 Miss. , 383.] 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.] 248. Ogden V. Claycomb [52 111., 365.] 724. Ohvbr v. State [17 Ala., 587.] In full, 725. Cited, 30, 31, 250, 273, 589, 639. 654, 678, 687, 703, 714, Tlo, 716. 717, 861. Oneby, The Klnof v. [2 Ld. Raym., 1491.] 229, 913, 916, 924. Orchard's case [8 Car. & Pay., "559.] 851. Parker v. State [31 Texas, 132.] Quoted from, 757. Patience, Rex 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. C. 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 ] 724. Philips v. Commonwealth [2 Duvall, 328.] In full, 383. Cited, 232, 243, 391, 400, 402, 519. Overruled in jiart, 404. Phillips V. Trull [11 Johns.. 486.] 7;;7. Phipps V. State [3 Coldw., 344.] Jr,-?.. 424. Xll TABLE OF CASES. Pierce v. Gibson [9 Vt., 216.] 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.J Cited, 518. Poke, Commonwealth v. [Lewis C. L. ?] 394. Pond v. People [8 Mich., 150.] In fiiU, 814. Cited, 30, 31, 33, 106, 140, 175, 52, 276, "" ■ ""- "- ' " """ '■" 231, 232, 252, 276, 732, 737, 750, 754, 835, 847, 852, 861, 862, 901 ter. State v.jfSl Iowa, 131.] 939, Powell V. State [19 Ala., 577J Quoted, 587. Cited, 577, 587. Porter, State v. [34 Iowa, 131.] 939 Powell V. State [19 Ala., 577.1 Quot Power, Commonwealth v. [7 Metcf. (Mass.) 596J 900, Pridgek v. State [31 Texas, 420.] In fuU, 416. Cited, 152, 439, 593, 696, Priester v. Augley [5 Rich. (Law) 44.] 901, 902. Pritchett v. State [22 Ala., 39.J In full, 635. Cited, 75, 588, 635, 6.W, 684, 743, 929. Putnam v. Payne [13 Johns., 312.] 882. Q«ese«6erry V. Sfaie [3 Stew. &Port., 549.] Quoted at lenffth, M9. Cited, 315, 324, 453, 466^539, 642, 654, 677, 678. Rainiz v. People [13 Cal., 172.] 604. Rampton's case [Kelyng, 41.] 262. Rapp v. Cojoioxwealth [14 B. Monr., 615.] In full, 293. Cited, 268, 302, 684. Rathburn v. Payne [19 Wend., 399.] 880. Rawson V. Haigh [2 Bin^., 104.] 519. Rayi. State \\bGa..,'li£] Quoted at length, 523. Cited, 521. Rector, People v. [19 Wend., 569.] In full, 795. Cited, 33, 262, 309, 421, 466, 470, 501, 519, .525. 593. Reins v. People [30 III., 25S.] Quoted at length, 858^9. Reynolds v. People [17 Abb., 413.] Quoted at length, 655, 685. Reynold? v. State [1 Kc-Uy, 236.] 453. Richardson v. Northup [56 Barb., 109.] 475. Richardson v. R. & W. Turnpike Co. [6 Vt., 496.] 439. Riddle v. Brown [20 Ala., 412.] Quoted at length, 538. Cited, 475 Ridgeley, State v. [2 Harr. & lie H„ 130.] 464. Riley, Commonwealth v. [Thach. Crim. Cas., 471.1 In full. 155 Cited 31, 33, 140, 651, 696. -" ' ' Rrppy v.- Statk [2 Head, 217.] In full, 345. Cited, 220, 360, 382, 393, 480, 612, 719, /23. 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. 351.1 751. Robertson, Pennsylvania v. [Addison, 246.] In full, 152. Cited 31 140, 077. ' ' ' Rogers, Commonwealth v. [7 Metcf.. 500.] 913. Rutherford V. State [1 Hawk?, 457.] Quoted at length, 734. Cited, 30, 31 Samuel, State v. [3 Jones (Law) 74.1 755. Sarch v. Blackburn [4 Car. & Pay., 21)7 ;,S. C, Mood. & Malk., 505.] 880 894 Sargent v. Roberts [1 Pick., 337.] 559. -" ' ScHNiER V. People [23 111., 17.1 In full, 285. Cited, 210 275 292 ScHRYVER, People v. [42 N. Y.. 1.1 In full, 910. Cited 'o-^o " ScoGGiNS, People v. [37 Cal., G77.] In fuU, 596. Cited, 440 5-^1 Scott V. Shepherd [2 Blackstone R., 896.] 773. Scott.^^Statk V. [4 Ired. (Law) 409] In full, 163. Cited, 74, 79, 23-' 370 54o, 622, 723, 731. Cited erroneously a^ St-ate v. Green, on pao-e -^73 ' ScuUy, Rex v. [1 Car. & Pav., 319.] 30, 2.52, 451. 459. *'='=-'•'• ^"*ated''27T654"67V' '^ ''■ °" Hom., 227.] Quoted at length, 086. Selfkidge, Commonwealth v. [Unreported.! In full 1 f'ltcri fii flo 90, 101, 106, 140, 141, 175. 198, 227. 231. 259, 272, 276, 309 451 514 519 521, 629, 626, 632, 696, 723, 737, 771. 776, 913. ' ' ' ' ^' TABLE OF CASES. Xlll Semayne's case [5 Coke, 91.] 862. Sharp V. State [19 Ohio, 387.1 850, 851. Sherman v. Dutch [16 111., 283.1 83. SHiPPBy, State v. [10 Minn., 223.] In full, 133. Cited, 32, 33, 243, 714. Shorter v. People [2 Comst., 19B.] In full, 256. Cited, 29, 34, 70, 79, 96, 106, 136, 152, 175, 231, 232, 249, 273. 302, 309, 529, 588, 657, 661, 776. ShoulU, State V. [25 Mo., 128.] Quoted from, 249. Cited, 687. Sidney's case [3 Harg. St. Fr., 805.] 560, SiLVU3 V. State 22 Ohio State, 90.] In full, 921 i Sloan, Stat« v. [47 Mo., 604.] In full, 516. Cited, 29, 276, 680. Smith, Reg. v. [8 Car. & Pay., 160.] In full, 130. Cited, 111, 136, 145, 263, 459, 677, 678, 913. Smith. State v. [3 Dev. & Batt., 117.] 862. Smith V. State [12 Rich. (Law) 430.] Quoted at length, 688. Smith's case [2 City Hall Recorder, 78.] 460. Smith V. Shultz [1 Scam., 490.] 211. Smythe, Rex v. [5 Car. & Pay., 201.] 463. Spenceley v. De WiUott [9 East, 108.1 668. 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. Stopfer v. State [15 Ohio State, 47.] In fuU, 213. Cited, 405, 515. Stokes V. People [53 N. Y., 000.] 929. Cited, 521. Stoneeifer, People v. [6 Cal., 405.] Quoted at length, 244. Cited, 103, 221, 913 917. SxjLLivAN, People v. [3 Selden, 396.] In full, 65. Cited, 32, 33, 79, 136, 175, 232, 249, 316, 399, 661, 662, 719, 819. SuUivan, Reg. v. [Car. & Marsh., 209.] 862. Swift, State v. [14 La. An., 829.] 247. Taylor v. Betsford [13 Johns. 487.1 559. Tackett V State [1 Hawks, 210.] In full, 615. Cited, 324, 622, 628, 667, 672, 675, 677, 678, 695. Tackett v. State [3 Yerg., 392.1 716, 719. Tate V. State [46 Ga. , 158.] 230. Taylor, 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, 596, 696, 714. Thurborn, Reg. v, Thurborn, Reg. v, Thurston, Rex v. [: [2 Car. &Ker., 832.] 817. 1 Den. C. C, 388.] 252. - , - 1 Den. C. C, 387.1 101. Tilly, State v. [3 Ired., 424.] Quoted at length, 665. Cited, 484, 624, 654, 667, 671, 676, 684, 686. Tooley's case [2 Ld. Raym., 1296.1 716, 717, 718, 719. Townsend v. Wathen [9 East, 277^ 880, 881, 904. Travelers' Ins. Co. v. Moseley [8 Wall., 397.] 519. Turner, State v. [Wright, Ohio, 20.] 924. Tweedy v. State [5 Io?va, 433.] In full, 905. Cited, 31, 33, 140, 596, 913. 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.] 519. ~ ■• ~"^^ 781. - - 'i Wakeman v. Eobinson [1 Bing., 213.] Wall V. Goodenough [IS III., 415.1 8^3. Weaver v. Ward [Hobart, 1;M.] 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.] Jn full, 319. Cited, 276, 339, 617, 626, 666. White, People v. [24 Wend., 520.1 933. 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.] 206, 933. Williams, People v. [17 Cal., 146.] Quoted at length, 604. Williams, People v. [32 Cal., 280.] 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 Cranoh C. C, 409.] 902. 903. Wilkinson v. Griswold [12 Sraedes & Mar«h. , 669.] 338. Willoughby, Rex v. [1 East P. C, 288.1 Quoted at length, 90, 126. WiLTBEEGBR, UNITED STATES V. [3 Wush. C. C, 515.] In full, 84. Cited, 95, 140, 250, 631, 682, 894. Wise V. State [2 Kan., 419.] Quoted from, 683. Wood, State v. [1 Bay., 352.] 724. Woolmer, Rex v. [1 Moody C. C, 334.] 717. \V'ootton V. Dawkins [2 Com. Bench, N. S., 412.] 903. Wright v. State [9 Yerg., 342.] Quoted from, 484. Cited, 324, 453, 640, 644, 654. Yates V. People [32 N. Y., 509.] 718. Ym-k, 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. Young v. Coinmonwealth [6 Bush, 312.1 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, Zenger's case [17 How. State Fr. , 675.] Cited, 560. SELECT AMERICAN CASES LAW OF SELF-DEFENCE. PART I. DEFENCE OF THE PERSOK A— AGAINST ASSAULTS AND DEMONSTRATIONS THREATENING DEATH OR GREAT BODILY HARM. COMMONWEALTH v. SELFRIDGE. ^preme Judicial Court of Massachusetts, Boston, 1806. Defence against felonious assault — ^Danger must be actual anb imminent to justify killing — reasonable feak excuses — Manslaughter defined — Distinction between excusable and justifiable homicide — defence against felonious assault — Assailed must endeavor to betreat before killing, unless, ETC. — Reasonable fear of death or other felony excuses HOMICIDE — Reasonableness of fear, a question for jury — Killing in resistance of non-felonious assault not excusa- ble — Nor where slayer brings upon himself the necessity — But a libellous publication does not take away right of DEFENCE. Per Paesons, 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 surprise, feloniously to kiU 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 kiU him in so doing, it i& justifiable self-defence. y 2 COMMONWEALTH V. SELTKIDaE. 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 killing of the assailant wUl not be jiistifiable homicide. 3. 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 wUl not be mur- •der ; but wiU be either manslaughter or excusable homicide, according to the degree of caution used, and the probable grounds of such beUef. Per Parkee, J., charging tlie Traverse Jury : 4. Manslaughter consists in the unlawful and wUful kUling of a reasonable being vrithout malice, express or implied, and without any justification or excuse. ■"). When the kUling is the result of particular malice or general depravity, it is murder ; when vrithout 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 [of public justice, in obedience to the laws, it is justifiable. li. 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 bodily harm, he may lawfully kill the assailant, provided he use all the means in his power, otherwise to save his own Ufe, or prevent the intended harm — such as retreating a£ far as he can, or disabling his adversary without killi ng him, if it be in liis power. [Ace. John Doe's ca.se, post; Drum's case,, post; Sullivan's case, post; Benham's case, ^os< ; Shippey's case, '^os(. Contra, Isaac's case, ^os<. At least, not if the assault be with 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 7. When the attack upon him is so sudden, fierce and violent, that a retreat would not diminish but increase bis danger, he may instantly kill his adversary, without retreating at all. ■S. 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 felouy was in- tended. Whether the appearances were sufficient to convince a reasonable man that 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.] CHABOE TO GRAND JtTBY. 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 g^ven 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 instructed to settle ill 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 ttie 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 faUed. 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 iiis fellow men. 1*. 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 case, 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 slain, which led the deceased to attack him upon the street, during which attack the defendant shot and kiUed the deceased, this was not such a procurement of the difiiculty, nor did it place the defendant so much in fault, as to deprive him of the right to urge the plea of sielf-defence. The Court was opened on the 25th day of November, 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. SELFEIDGE. 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 is fusti- flable 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 justifiable Tiomicide. 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 prob^,ble 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- tift. 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 Sullivan, Attorney General, and Daniel Dams, Solicitor General, for the Commonwealth; Christopher 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 Dem- STATEMENT OF 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 wMch. were these : One Eben Eager had been employed by a committee, of which Benjamin Austin was chairman, to provide a dinner on Copp's HUl for a Democratic celebration on the Fourth of July. There being some difficulty in the settlement of the biU, Mr. Selfridge, at the request of Mr. Eager, commenced suit. The matter wa* 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. Benjamest Austin, "Sik: — 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 will 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 COMMOJS^ WEALTH \. SELFBIDGE. intended a wanton injury from the "beginning, which I never will receive from any man with impunity. "I am, Sir, your humble servant, [Signed.] Thos. O. Selpridge." 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 tme, 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. Selfridge 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, " SiE : 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. K 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 vindicating myself against the effect of your aspersion.. STATEMENT OF THE FACTS. 7 "A man who has been guilty of so gross a violation oif truth and honor, as to fabricate the story you have prop- agated, I will not trust ; he must give 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. 0. Selfeidge." Mr. Austin, on receiving this note, declined to make any further amends than he had already made. Mr. SeKridge 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. Selfridge. " Boston, 4th August. " P. S. The various editors in the United States are requested to insert the above notice in their jurnals, and their bills 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. SELFEIDGE. any gentleman is desirous to know the facts, on whicli Ms 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 himself was informed by a friend on that morning, that he would be attacked by some one, and he gave the vdtness 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 descending, the latter fired a pistol, and Mr. Austin expired in a fevr 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. STATEMENT 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 liad 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 tearing 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 difierent 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 Ms 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, in con- 10 COMMONWEALTH V. SEM'KIDGK. versation with Fales, a college friend, and playing with his cane. The moment the defendant caught his eye, he left Fales, and stepped off 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. Alter he had got off 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 comer 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 hand's 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. Richard 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 descending to strike a blow or recovering from striking one. After the STATEMENT OF THE FACTS. 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 COMMONWEALTH V. 8ELFKIDGE. affray and on tlie same day, that he " should not meddle with Selfridge 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 purpose. Mr. Austin, however, denied on oath explicitly, that he ever had any intention of inflicting personal injury 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. SeKridge 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 aflfray. 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 kUling was in self-defence ; that he was in such imminent danger of suflfering 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; thafthe pistol was not discharged until it was certain that no one would inter- CHARGE TO THE TRAVERSE JURY. 1'6 fere for Ms 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 aflfair. Parker, J., charged the jury as follows : " Gentlemen oe the Jury : 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 witnessed in any court of justice in our country. It is now left to you upon 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 not 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 system insure as great a degree of correctness as can be 14 COMMOlTVrEALTH V. SELFRIDGK. 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 dlass erf the community, or to court that of another, of abusing my office 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, WHEN. If) in trial, or the defence whicli 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 destro}' 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 oifence, the jury who may convict, the magistrate who shall order execution, and the sherifi" 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 God 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 midi^ight invader, should kill 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 supply 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 COMMONWEALTH V. SELFEIDGE. or entirely innocent, according to the motive and. intent of the party committing it. Thus, when the k,illing is the eflPect of particular 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 run 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,poat, where Campbell, J., in quoting from the common law text writers, to show under what circumstances 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 homicide are confused, the Chief Justice pronouncing^ homicide in Belt- defence justifiable, while Mr. Justice Parker pronoimces 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 Ten-i- tories, the distinction between the two kinds of homicide Is declared by statute ; that is to say, all kinds of homicide in self-defence, or in resistance of felony, or in advancement of pubUc justice, is JMsii/iaiie; while it is homicide by misadventure that is excusable. Statutes of Ark., 1858, p. 331, ?20 et seq.; Comp. Laws Cal., 1853, p. 641, 2229-34; Rev. Stat. Col., 1868, p. 199, ?2 28-33; Gross' HI. Stet., 1869, p. 172, ?§ 13-18; Laws of Dakota, 1862,p. 161, ?J 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 hooks 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 yotirselves 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 immemorially 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 quoted by the Attorney- General, 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, the judges use the expressions, '■'■ justifiable hamicide^^'' and '■^excusable homicide''' interchangeably; affixing the same meaning to each. See, for instance, Sloan's Case,^os!!, where it is said by a very able judge that a person may safely act upon appearances. etc., and the killing will be JMSift^aA^e,- whereas, as stated by Pakso> s, Ch. 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 homicide. The present editors in the notes they have made to this volume, htive not attended to this distinction. 18 COMMONWEALTH V. SELFKIDGB. 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, fierce and violent, that a retreat would not diminish, but increase his danger, he may instantly kill his adversary without retreating at all. Thirdly.— WYiQn, 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- sailant, 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 other parts of it. As to the evidence, I have no intention to guide or interfere vdth 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 wliich 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 prosecutor, or be shown by the defendant on trial, that the killing was under such circumstances as entitle him to justification or excuse. On the point of killing, 20 COMMONWEALTH V. SELFELDGE. there is no doubt in this case. The young man named in the indictment, unquestionably 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 justification 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 ofiice a little before one o'clock ; that, in a conversa- tion about his quaiTel 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, Avithout 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 ai-m 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 corner of th.e Suffolk Baildings, having Ms eye upon tlie 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 him 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 aU 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 Govern- ment, as well as by defendant, 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 fall 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 the only witness who swears to a blow before the dis charge of the pistol ; but he swears positively, and says he has a clear, distinct recollection of the fact; his character is left without impeachment. If you consider 22 COMMONWEALTH V. SELFEIDGE. 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. Glover. 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 difliculty 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 you 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. Pales. The counsel for the defendant seem,, RETREATING TO THE WALL. 23 however, to deem it of little importance to ascertain whether the Mow 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 fiy. The point I mean is, whether he could probably 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. 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 him, the defence set up has failed, and the defendant must be convicted. If you believe his only resort for safety was 24 COMMONWEALTH V. SELFKIDGE. to take the life of his antagonist;, he must be acquitted, unless his conduct had been such prior to the attack, upon him, as will deprive him of the j)rivilege 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 he 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 biU, that the case does not present the least evidence of malice or premeditated design in the defendant to kill 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 jeopardize his life or important members, he may protect himself by killing his ad^-ersary ; yet he may from the existence of other circumstances, proved against him, forfeit his right to a defence which the laws of God 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 affray 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 LIBELLOUS PUBLICATION. 25 "being of Ms own creating, shall not operate in liis 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- General 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 same, 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 settle disputes of this nature, would not justify such a proclamation as the one above alluded 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- to 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. SELFKIDGE. 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 with a cane ; still less would the circum- stances have justified the 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 writings, 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 PREJUDICES — POLITICAL BIAS, ETC. 27 amounted to manslaughter. But, if from tlie evidence in the case, you should believe that the defendant had no other viev? hut to defend his life and person from an attack which he expected, without knowing from whom 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, will 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 COMMOBTWEALTH 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 witldn. 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 shall 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 this 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 ih.Q forms 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 will have due regard to that which imposes upon you the obligation, well and truly to try the cause t)etween 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 hi>^ 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 Ugp.1 grounds. However justly the profession may have been, as Mr. NOTE. — EETBEATING 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, lias 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, j)os<; Field's case, ^os<; Shorter's case, pos<; Neeley's case, ^os<, 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 expovmded 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 wall. 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 mthin the rule of necessity in self-defence ; or, if in the assault, B. fall to the ground, whereby he 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 Self ridge's case, which produced in that instance as they 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 follow 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 allude 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 ir^tance, Stoifer's case, and Pond's case, post. Advancing into the reasons of the law, rather than seeking to coUeot 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 punishetl 'SO COMMONWEALTH V. SELFEIDGE. OTth 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., 2849 et seq; Oliver's case, post; Pond's case, jDos!;. 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 s(_>veral of the United States. It is : " Where a Itnown 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 person present may interpose for preventing mischief; and if death ensueth, the party so interposing will 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, by 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 him in so doing, it is called justifiable self-defence." 1 East P. C. 271. This principle is Umited, on the one hand, to felonies of a forcible and violent character. 1 East P. C. 273 : Pond's case, 7)os<; 4 Bla. Com. 184, Moore's case, post; and see Gray v. Coombs,yosr!. And on the otherhand, it is extended so as to justify kiUing 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, WTiart. Hom. 475 ; 4 Bla. Com. 179. And again, it is so far Umited by the rule of necessity, upon which the right to kill in defence of person, habitation or property is universal!}- placed, that a jierson may not lawfully kill another who is attempting a felony, if, by arresting or disabUng him, or otluirwise, he can prevent the threatened felony. Pond's_ case, ;)os<,- Eex v. ScviUy, 1 Car. & P. 319. Nor will he be justified in slaying the felon after he has desisted from the attempt and taken to flight. 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 liabitation, 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 justly 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., 5851. 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 dowi in the text books and most NOTE. — EETEEATING TO THE WALL. 31 of the adjudicated cases, requires me to retreat, if I can, before Idlling the 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 shall 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., ^g 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 his lawful 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 speakmg 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, 7)os< ; Harris' case, ^os<; 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, oth ed., ^ 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 case,^os<. We shall see further on, in Subdivisiojst D., of this 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 Parkeb, [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 save his own 32 COMMONWEALTH V. SELFEIDGE. life or prevent the intended liarm — such as retreating as far as he can, or disabling 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 pxtf-nding the right of defence beyond the limits recognized by the com- mon law authorities, but in restricting it to a less compass than those lim- its, so as to require him who is murderously assaihid, 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 i< 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, post. We repeat our conviction that the law. does not thus leave it to the 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 Sullivan'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 s'ome fault, or where the assault is not, in its character, manifestly felonious. See 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 seeking 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 kUling. 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 further. Nor does the law on the subject of retreating, as stated by Mr. Justice Parker, accord with the rule on the same subject, as laid down by tlie Chief Justice in his charge to the Grand Jury in the principal ease. 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, feloni- 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, be/ore 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 Ja«- ' tlce,is clearly the law, and has been, as Blackstone states it, since the time of Bracton. 4 Bla. Com. 180. It is believed, though not stated with entire confidence, that an exami- nation of the American cases will show that the duty of retreating before KOTE— RETREATING TO THE WALL. S'S MUlng, or of doing all in tlie defendant's power to avoid the necessity of lull- ing, has not been laid down in any case in the unqualified manner in which Mr. Justice Parker states it, except in cases of non-felonious assault, like the principal case and Benham's case, post; or in cases of mutual combat, like Drum's case, post ; or in cases where the defendant was clearly in the wrong, Uke Sullivan's case, post, John Doe's case, post, and Shippey's case, post ; or where the quaUty of the transaction is doubtful, as in Cole's case. 4 Park., C. C. 35. And see Copeland's case, post — a case very much like the principal case in some of its facts , where the question of retreating was not considered at aU. To recapitulate, though at the expense of brevity ; 1. The obligation to retreat does not arise at all in ordinaiy cases ; but the assaUed may stand his ground and repel force by force, using no more force than is necessary to acoompUsh his defence. Gallagher's case, jjosi,- 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 ihe person defend- ing—either to retreat himself, or to suffer death or great bodily harm, or to kUl 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 shall retreat or another man shall die. Drum's case. post; Riley's case, ^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, ^osj;,- James D. Kennedy's case, post; IBish. Cr. L.,J849 et seg., 5th ed.; Poster, 274; East, 271; Tweedy's case, post; Thompson's case, post; John Kennedy's case, ^os<. 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 kiUing. Drum's case, post; Riley's case, post; Benham's case, post. 4. A man being in his habitation is "at the waU" 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 hfe 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- 'S4: COMMONWEALTH V. SELFEIDGE. felonious assault ; so far as the duty of retreating is concerned ; nor was the charge of Mr. Justice Parker on the question of "retreating to the waU" 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 aU 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 ; Whart. Horn. 174. In the Law Reporter, vol. 4, p. 89, an account of this case is gjiven imder the head of "Remarkable Trials," from which the statement of the facts, as we have given them, 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 day — [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., ia Shorter's case, that this was o^e 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. WILTBERGEK. [3 WASH. c. c. 515.] Circuit Court of the United States. Pennsylvania, October Term, 1819. BusHBOD Washington, Associate Justice Sup. Court. Richard Peters, District Judge. Defence against non-felonious assault— Defence by master of VESSEL against MUTINOUS ASSAULT— LmMINENCE OF THE DANGER —Jury judges of the necessity op 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 manifesUy endeavors, by surprise or vio- lence, to commit a felony, as murder, robbery, or the like. [Ace. Thomi)- SYLLABUS. 35 son"? case, post ; John Kennedy's case, post; Pond's oase, post; Seliridge's •case, and note, ante ; and many others.] 3. But the intent must be tocommita/eiony. If it be only to commit a trespass, as to beat the party, it ^yi\l not justify the killing of the aggressor. No words, no gestures, however insulting and irritating — ^not even an assault, will afford such justification ; although it may be suflBcient to reduce the offence from murder to manslaughter. [Ace. John Ken- nedy's case, post, and notes.] 4. The intent to commit a felonj' 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, _pos<; 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 oase, post; Schnier's case, post; Adam's case, ^os<; Maher's case, post; 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 ease, post; Dyson's case, post; Cotton's case, joosi; Lander's case, ^os<, and Evan's case, ^^osi. 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, joos< ; McLeod's case, posi ; Cot- ton's ease, post; Oliver's case, ^os<,- and other cases.] 7. The fact that a combination had been formed amongst the seamen on boai'd 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 killing, 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 such assault, he Idll his assailant, he will be entitled to more indulgence than would a person on land, and that slighter evidence will justify the killing ; but nevertheless, it must be shown that a necessity for the kiUing 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 oflfence 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; tlie vessel at the time of the homicide, lying at anchor in a river in China. The material parts of the e\idence relating to the offence as charged, are stated in the instructions to the jiiry. CJiarles J. Ingersoll, District Attorney, for the prose- cution; J. Sergeant and Joseph B. Ingersoll, for the defendant. ******** Upon the merits, it was insisted, by the counsel for the defendant, 1st., that the blows iniiicted 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 lie knew that no person on STATEMENT OP THE EACTS. 37 board, 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, vdth insolent language, to do so; which was followed by a blow, inflicted on him by the defendant vTith 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 rolling 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. WILTBEBGEK. 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 first 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 offence 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 to 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 sufficient 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. 3il even intiocent. 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. NailoT'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 oflfended 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 difficult 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 wiether 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. d 1 East P. C, 277. 40 UNITED STATES V. WILTBEEGER. 2. The circTimstances of the moment aflfbrded no indication that mutiny or resistance of any kind was intended, much less, " that it was imminent " ; as there was but one seaman on the deck beside Peters, who appeared 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. Some 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 wairrant commanding him 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 wUl 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 Wheatou, 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, Decemher Term, 18Jfi. Nathan GREEisr, ) William B. Reese, >- Judges. William B. Tueley, ) Assault with dangerous weapon — Killing assailant justifiable — Manslaughter — Old grudge. 1. In criminal cases, the Court wiU weigh the testimony, and if it pre- ponderates against the verdict, they -will grant a new trial. And a convio- tiou 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 la^vful pursuit, accepted the fight, when she might have avoided it by passing on, the provocation being sudden and unexpected, the law will not presume the killing to have been 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 fuU and unobstructed right and Uberty 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 malice, suddenly produced by the sight of her enemy, without premeditation, it would be miuder in the second degree. 5. AVliere 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, ^os<; Benham's case. post. But, see note to Selfridge's case.] 42 COPELAND V. THE STATE. Mary Copeland was indicted in the Circuit Court of Overton County, for the murder of Kuth 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 Euth 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 Maiy 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 : CHAKGE OF THE CIRCUIT JUDGE. 43 1. If the defendant, on seeing the deceased moving out toward her path, advanced to meet her with 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. If 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 sufiicient 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 Ruth'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 COPELAND 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 yon 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, Goodall & GardenTiire, for the prisoner; the Attorney- Oeneral, for the State. TuKLET, J., delivered the opinion of the Court : This case presents to our consideration, another of those afflicting 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 his 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 wife 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 Ms 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 or THE COURT. 45 in its consequences to her, tlian tliat 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 thfe 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 P. Sevier, a witness on behaK 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 ihonths 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 has been with Copeland, the prisoner's husband, for ten 48 COPELAND 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 lying 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, liable 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 eflfectual 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 vsdtness 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. 43 because here she met the witness "boldly, 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, vsdth 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, being engaged in a diflPerent business, probably getting- maple bark for the purpose of dyeing (which vdll 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 kiU her, but only an opportunity 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 afiray, 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 COPELAND V. THE STATE. v-ery great, induced no doubt by the publicity, wliicli had been given to her intercourse with the prisoner's liusband, and mainly, as is fairly to be presumed, 1 1V her clamors . Isaac Williams, a witness for the defence, says he saw the deceased have a knife which she showed him, :ind 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 oflfered to let her have things in the store, which she refused. Sally ISTelson, 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 giveu 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- lay or Thursday before the fatal rencounter between the prisoner and the deceased, the deceased came to her Jiouse, 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, slie 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 OF THE TESTIMONY. 51 Tiotliing 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 be 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 affray. 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 COPELAWD V. THE STATE. and had not, for a long time before, been without. It shows that such was her thirst for vengeance, that she offered 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 injur er, 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 OP THE TESTIMONY. 53 wMch 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 satisfied, 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, saj's, 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 Ruth, 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 Doughei-ty, from whence he wit- nessed the affray, 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 stgCrted 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 patlis, 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 Hands 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 hy 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 Stuai't'iJ 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 feU. 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 tf) 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 COPELAND V. THE STATE. called to her to come back ; she made Mm 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 he, 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. AYilliam 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 wrist ; 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 EXAMDfATION OF THE TESTIMONY 57 there were green streaks down 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 left 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 difficulty 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 haK to foui- 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 wiU 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. r)S COPELAND V. THE STATE. K the deceased upon approaching the prisouei'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 killing 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 dovm 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, fully explains. It is un- necessary to repeat it ; it was as she avowed again and again, to kOl her, or to beat her, before she left for Kentucky. That this design was well 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 ? Xo 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 FROM THE TESTIMONY. 59 shows, that the prisoner was, and had Tbeen for a con- siderable time "before, anxious to avoid any conflict witli her ; from the period of time at which the witness. Gash, 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 so? 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 the 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 tliink not. 3. The stick which the deceased carried with her, was found near the path of the prisoner, as also one of he]' shoes. 60 COPELAND V. THE STATE. 4. Tlie father of the deceased pointed out a place on the path of the prisoner, where he said his daughter had been killed, 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 her 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 aifray; 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 FEOM 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 kiUed 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 infiict 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 kiUed 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 immediately attending the killing, this case is somewhat similar to Selfrldge's case, 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. douly intercepted and assaulted by a person of superior physical strengUi. The weapon with which the assault was made, was in both cases of a simi- ilar oliaracter. 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 his right of defence. Mrs. Copeland, on the 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. Keither of these facts, however, could have any direct legal influence upon the result of the ti'ial. Secondly, there is a wide departure in the law of the two cases, so far as regards the question of the necessity of retreating before kilhng. In iSi-'lfridge'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 fight 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. JOHN DOE. [1 Mich., 451.J Supreme Court of Michigan, January Term, 1850. Charles W. Whipple, Chief Justice. Warner Wing, George Miles, Sanpord M. Green, Edward Mundy, Justices. Killing in sblp-depence. — Selvridgb'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 circumstanoes. 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. Justici' Parker in Selfridge's case, [ante, pp. IG, 17,] approved. STATEMENT OF THE FACTS. 63 Indictment for murder in the first degree. The name cf the prisoner being unknown to the Grand Jury, he was indicted hy 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. Lathrop, Attorney-General, for the People ; CMpman, for defendant. Extract from opinion of the Court, delivered by Geebn, 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 to be employed in protect- ing his person or personal liberty, must depend upon circumstances ; 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 Commonwealth v. Selfridge, (SeKridge'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 DOE. perspicuously laid down by Mr. Justice Parker. He says: First. 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 save his 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. 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. 65 THE PEOPLE V. SULLIVAK [3 Selden, 396.] New York Court of Appeals, Octoier Term, 1862. Chaeles H. Rtjggles, CMef Judge. Addisow Gardner, i Freeborn G. Jewett, \ Judges. Alexander S. Johnson, ) John W. Edmonds, Malbone Watson, Philo Gridlet, Henry Welles, Justices of the Supreme Court, and ex-officio Judges of the Court of Appeals, from January, 1852, to January, 1853. Murder. — Slaykb must endeavor to avoid necessity. — Actixg upon appearances. — cooling time. 1. The intentional killing of a human being without provocation and not in sudden combat, is murder, although done in the 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 tKat the deceased returned up stairs with intention to renew the tight, 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 case, 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 m 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 .rYork, 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, "Now, Sullivan, don't let me see you break any more." Sullivan said he' would, and im- mediately commenced breaking * dishes again. The STATEMENT OF THE TACTS. 67 deceased then went into the room, and a scuffle ensued, 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 assisted 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 otlier circumstances to show that the wounds were received from the prisoner. The counsel for the prisoner requested the Court to charge as foUows : 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 imto death, and it is not murdef. If the jury believe that Smith, having had the fight 68 THE PEOPLE V. SULLIVAX. with Sullivan, and by his 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 rela- 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 kill, 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 suflacient to excuse or jus- tify the act; and that if the jury believed that the kill- 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. iV; 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. INTENT 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 killing 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 jruy 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 supposed 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 Seidell 385. This case 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 maizes no difference whether the •design be formed at the instant of strildug the fatal blow or months before. It is enough that the intention precedes the act, although that follows instantly. 70 THE PEOPLE V. SULLIVAN. 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. 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 SuUivan had reasonable ground to believe that it existed. If this construction of the charge was coiTect, 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 reversfd. •"Sec S'.i-->i ^er's case and note, past. SYLLABUS. 71 HARRISON V. THE STATE. [24 Ala., 67.] Supreme Court of Alabama, January Term, 1851^. William P. Chiltow, Chief Justice. David G^Ligon, ) Associate Justices. G-EOEGE GOLDTHWAITE, j killi vg without waiting for otert act.— killixg trespasser. — Instructiojts on self-defence irreleva^'t, 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 carry out such purpose, thereby inducing a reasonable belief on the part of the slayer, that it was necessary to deprive him 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 tf espass could or could not be otherwise prevented, it is murder. [Aoc. Morgan's case, ^osi ; Drew"s case, joosr; ; McDaniel's case, 8 ISIiss.,' 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. Ro"bert R. Harrison, tlie 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-law ; 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 allo^dng the water to flow off through the land of Harrison to the woods below, and had been kept open for that purpose about ten years , that on the day previous to the fatal occur- rence there came a heavy rain, and Harrison was seen 72 HAEEISON V. THE STATE. the same (Sunday) evening, at work on tlie edge of the •ditch, and the next day it was ascertained to be stopped up 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 up 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 remov-ing 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 comes 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, rgplied, '" It wiU not do to let the corn spoil, and we must 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 ordinary gaii to the ditch. Gilbert came up 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 eftect, 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 CHARGE OP THE CIECUIT 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 behef 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 great 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 biU 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 vnth his gun on his shoulder,' and about speaking to his vnfe, when he was shot down, and this shooting was carrying out a threat made to the vdfe 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 diflaculty by a most nnneighborly and malicious act in stopping np 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 demonsti'ation of aa intention to injure him, on the part of the deceased, obher 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 Kufiin, 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. ^Post. i>For the same doctrine, see Lander's case, post; Creek's case, post; Dy- eonVs case, ^o.s<; Cotton's case, post; Rippy'g case, post; Williams' case post; Evans' case, ;oos!;; and others. Contra, Grainger's case, ^jos^y Phil- lips' case, ^osi; Carico's case, pos< ,- Bohannon's case, jsosi, and Young's case, post. KILLING TBESPA8SER. 75 of life to save his own. Pritchett v. The State, 22 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 perfectlj^ 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. 391 ; 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 NortTi Carolina, June Term, 185 Jf,. Fredeeick Nash, Chief Justice. Richard M. Pearson, f r,,^„^„ William H. Battle, \ '^^^O^^- Lawful kbsistaxce — Imminence of 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 life, or to do 'Post, a § 1026, 5th Edition. 'Post. ' 5th Edition ? 1025. 76 STATE V. BAKER. him some great bodily harm, 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 striking by the deceased will not amount to a legal provocation to mitigate the killing to manslaughter. [See note, sub Jin. ; Hinton'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 16tli 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 skort 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 fire, 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 Avas 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 him one blow upon the head with the axe. The deceased, with the assistance of Prince and the witness, walked to the village of Rockfish, 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 Tie was 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 & 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 sufiicient 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 murder." 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, "See Copeland's case, ante, ou the subject of •' old gru(l<'e."' 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 naake his escape; the prisoner pressed upon him wliile 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. Now, 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. Note,— To justify killing in self-defence, the danger must be imminent. Thompson's case, post. And not in machination only. McLeod's case, post. And evidenced by overt demonstrations. Harrison's case, ante ; Lander's case, post; Dj-son's case, post; Scott's case, post; Rippy's case, post; TEvans' case, joosi!; Hinton's case, ^osi; Williams' case, ^osi. But as to when it may be said to be imminent, no general rule can be laid down. Each case must depend on its own circumstances. Cotton's case, posij 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'* 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, post; Young's case, ;)osi ; Bohannon's case, jooai. Contra, Lander's case, post. It will ^so be suiBcient if the danger be apparently imminent. Sullivan's case, ■mUe; Shorter 'g case, pa»t, HBcJ-note-. 80 HOPKrNSO>f V. THE PEOPLE. -HOPKINSOISr V. THE PEOPLE. [18 111., 264.J Supreme Court of Illinois, April Term, 1857.. Walter B. Scates, Chief Justice. John D. Caton, ) A9^ociate Tu^ticp Judges. Geoege G. Weight, ) Instructions — Seeking the encounter — Acting upon appearances —Occasion produced by the slayer's own wrong, no defence. 1. The following instruction was, on the facts pf this case, properly re- fused : " If the jury find from the evidence, that after the first shot was I? Post. SYLLABUS. 97 fired down the field, if such shot was in fact fired, and when the defendant turned back to go down along the fence to the place where the homicide is alleged to have been committed, he did not know that Patrick Casady was approacliing with a loaded rifie, with a view to an encounter, if there was such an intent, by reason of the intervening fence, if there was such an intervening fence, and by the shadow of the trees, then the fact that the defendant did go back to the place of homicide, is no evidence that the de- fendant went back to accept or seek a fight with the deceased." 2. The rule of Selfridge's case, that a reasonable apprehension of death or great bodily harm will excuse the slayer, and that declared by Baron Parke, in Rex v. Thurston, 1 Den. C. C. 387, that the guilt of the prisoner must depend upon the circumstances as they appear to him, are recog- nized and approved ; and where the Court had already correctly instructed the ^ry in this respect, the following instruction, given at the request of the State, was not erroneous : " To sustain the plea of self-defence, the de- fendant must show that Patrick Casady assaulted him, and that the assault was imminently perilous, and the danger to the defendant actual and urgent." For the word "actual," in this connection, is to be understood as meaning, not actual in fact, but actual to the defendant's comprehension. [See note, sub. fin.'] 3. If the prisoner with a loaded weapon sought the deceased with the view of provoking a difficulty, or with the intent of having an affray, and a difficulty did ensue, he cannot, without some proof of change of conduct or action, excuse homicide upon the ground that the deceased fired the first shot ; for the law will not hold him guiltless, who, by seeking a combat and continuing therein, brings upon himself the necessity of killing his fellow man. It is upon the plain principle, that one cannot willingly and know- ingly bring upon himself the very necessity which he sets up for his defence. [Ace. Selfridge's case, amie ; Adams' case, ^osi; Stewart's case, past ; Hinton's case, ante'. And see Baker's case, ante. But a libellous publicatioi>is not such a procurement of the difficulty as deprives a party of the right to take life in defence. Selfridge's case, ante.'] 4. It was, therefore, correct to instruct the jury, that if the defendant brought on the difficulty by voluntarily returning to the vicinity of the deceased, with a deadly weapon, for the purpose of provoking a difficulty, or with the intent of having an affray, his plea of self-defence would be of no avail, and it would make no diflerence who fired the first shot. Appeal from Polk District Court. The indictment is for murder in the second degree. Plea, not guilty. Verdict, guilty. Motions in arrest, and for new trial, overruled. Sentence, fifteen years in the penitentiary. Finch, GlarTc & Rice., for the appellant ; F. E. Bissell, Attorney-General, for the State. Wright, J. ****** [-rpj^g 98 THE STATE V. WEELET. portion of the opinion here omitted, relates to the suffi- ciency of the indictment. — ^Eds.] 2. Objections are urged to several instructions given for the State, and to the refusal of others asked by the defendant. Before considering these, a brief reference to the general facts becomes material. The prisoner and the deceased lived on adjoining farms, the latter making his home with his mother. The families were not on friendly terms. The fences around the farm of Mrs. Casady were bad. The prisoner's, as also the stock of others, broke through occasionally and were injured by dogs, and otherwise. On the morning of the day of the homicide, the prisoner, influenced by the belief that nis hogs were being injured by dogs, went with his gun to the field, where some children belonging to the Casady family were, and shot their dog, or one belonging to the family. Mrs. Casady and her daughter afterwards went to the house of the prisoner, where an angry altercation ensued, and they returned to their home. As to all that took place at this altercation the witnesses differ, and it is not material to refer to it in detail. After this, and late in the afternoon, hogs were again heard in the field, apparently being worried by dogs, and the prisoner hurried there with his gun ; and, accord- ing to the testim ony of the State, pursued the sister of the deceased, and the children through the field, in the direction of their house. On their return home, upon telling their story, the deceased, who was ill from an in- jury received on the 'day before, (but of which the prisoner knew nothing, nor did he know that he was at home), with his mother and sister, left the house and passed down to the field ; the deceased having with him a small rifle gun. In the meantime the defendant had left the field, and gone in an almost opposite direction from the other parties, about two-thirds of the way to his own house, a distance, perhaps, of sixty or seventy rods. The other parties were now passing along a path inside of the fence. At this time some of the witnesses say that a shot was fired in the field, while others heard OPINION — THE PACTS STATEP. 99 nothing of it. The prisoner, either because he lieard a shot, or saw the deceased and his mother and sister, or for some cause not developed, turned and walked hur- riedly back to where they were. When within a few feet of them, (eight or ten), and after, according to the testimony of the State, a few words had passed between them, the prisoner shot and killed Casady. The State claims that the shooting was without provo- cation, while the prisoner insists that he shot in self- defence. He received a gun-shot wound in his left hand. According to the testimony of some of the witnesses, who were some distance from the scene of the homicide, there was first heard the sharp crack of a rifle, then in- stantly, the heavier sound of a musket or shot gun, and almost as quick after, a third shot like the second. The prisoner had and fired a small double barrelled shot gun, and the third shot was at a dog, according to some wit- nesses, and according to others, at Mrs. Casady. There is no positive testimony as to how the wound was in- flicted on the defendant's hand. The theory of the defence is, that Casady shot first, and thus wounded the prisoner, which theory is expressly denied by the testi- mony of Mrs. Casady and her daughter, the only witnesses present, who state unequivocally that he did not fire, nor offer to fire his gun. The wound is at- tempted to be accounted for by the State, upon the theory that as Casady fell, (the shot was almost in- stantly mortal) his gun, which he claimed he held near the muzzle, in falling was discharged, the shot of which passed through defendant's hand. That both barrels of defendant's gun were discharged at the time of the homicide, is pretty well established. The shot in the field before he turned back, if there was one, is attempted to be accounted for by the presence of a third gun found near the scene, which it is claimed Mrs. King (the sister) had. She swears, however, positively, that this gun she brought from the house after the killing, to which place she went immediately after her brother was shot, for water, and without knowing the nature or character of 100 THE STATE V. NEELEY. his wounds or injuries. "Witnesses differ as to whether there were two or three shots fired, but the weight of the- testimony is in favor of three. This is a general view of the facts, condensed from seven or eight hundred pages of testimony. Upon it, the prisoner asked this instruction: "If the jury find from the evidence, that after the first shot was fired down the field, (if such shot was in fact fired), and when the defendant turned back to go down along the fence to the place where the homicide is alleged to have been committed, he did not know that Patrick Casady was approaching with a loaded rifle, with a view to an encounter, (if there was such an intent), by reason of the intervening fence, (if there was such an intervening fence,) and by the shadow of the trees, then the fact that defendant did go back to the place of homicide, is nO' _evidence that defendant went to accept or seek a fight with deceased." Tlais was refused, and we think properly. It could only tend to mislead and confuse the jury. Not only so, but it placed the question of the prisoner's intent, in returning, upon one state of facts, which, though true, would not exclude the conclusion that he had in fact, the intent charged. Stripped of all extraneous matter, the instruction is, that if the prisoner did not know that deceased was approaching with a loaded gun, A\'ith a view to an encounter, then, the fact that he returned to the field, is no evidence that he returned to seek a fight; and yet, suppose he knew he was there, without the gun. might not the intention exist ? Or suppose he had no certain knowledge that the deceased was there, he might have returned with the general intention of having a. difficulty with any one he might find, and, if so, the wrongful intent, general, and not particular in its object, would be material in consid- ering the question of the prisoner's guilt ; and then, when we consider what is said about the fence and the trees, the instruction becomes still further objectionable, and we are clearly of the opinion that it was properly refused. oPisTioN — "actual" dangeb; JDl This instruction was given at the request of the State : '" To sustain the plea of self-defence, the defendant must show that Patrick Casady assaulted him, and that the -assault was imminently perilous, and the danger to the -defendant actual and urgent." The instruction is objected to on account of the use of the word actual. The very language employed, however, is sustained hy the text of Wharton's Cr. Law, § 1020, and the authorities there cited, and also by the case of the State v. Thompson,^ 9 Iowa, 188, and, when properly understood, there can be no doubt of its correctness. The inquiry is, was the danger actual to the defendant's comprehension ; not whether the dan- ger existed in fact, not whether injury was actually intended by the deceased, but was it evident or actual to the prisoner, as compared with danger remote or prob- lematical ? Thus, to illustrate by the case supposed by Pabkee, J., in the celebrated Selfridge's case'' (Whart. Horn. 407 ; 1 Bish. Cr. Law, 385), if Casady had rushed upon the defendant while engaged in his peaceable pur- suits, with a pistol in his outstretched arm, using vio- lent menaces against his life, and had approached near enough to wound or injure him, if the prisoner had shot before or at the instant the pistol was discharged, the ;danger to the deceased would have been actual, though it had turned out that the pistol held and owned by the de- ■ceased was loaded with powder merely, and that the real desien was merely to terrify the prisoner. And yet, in that case, the danger in one sense was not actual, while it was in another. The general proposition, with proper qualifi- ccations and explanations, as stated by Baron Paeke (Rex. V. Thurston, 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 this doctrine was elsewhere in the charge of the Court, very 'dearly and explicitly stated. Defendant's error consists in placing an improper con- ,«truction upon the word actual; a construction not war- ranted, and which other parts of the charge show the ^Ante, next case. ^Ante, p. 18. 102 THE STATE V. XEKLEY. 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 Pakkeb, 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 e\T.dence, that the defendant brought on the difficulty by voluntarily returning to the vicinity of the deceased, with a deadly weapon, for the purpose of provoking a difficulty, Ms plea of self-defence would be of no avail ; and, in that case, it would make no difference 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 affray, 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 existed) THE VEKDICT SUSTAINED. lOii 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;* Stati V. Hill," 4 Dev. & Batt. 481 ; People v. Stonecifer, 6 C'al. 405. "We remark in conclusion, on this point, that tlie use of the words "a difficulty" instead of tTie difficulty, cannot change the result, since the intention [instruci 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, wheir 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 upan sudden provocation and heat of blood. Posi!, p. 199. 104 THE STATE A'. NEELEY. heretofore decided, or upon any fair rule, interfere with the action of the Court below in refusing to disturb the verdict. Judgment affirmed. /tSTotb.— With regard to the ruling upon that part of the instruction \vhich states that the danger must be actual^ it is doubtful, notwithstand- i*g the eminent character of the Court, whether it finds much support in itlier cases. Without stopping to discuss the question here, it will be suflS- cient to refer to tlie 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 the 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, 34G; 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. Bht in this they have failed ; for the whole scene exhibits a disgraceful unanimity : and \vith 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, sucli circumstances could avail, it would be m 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 the escape of unsuccessful guilt; and the whole fiibric 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 dauo-er 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 NOTE — "actual" dangee. 105 .subject matter of Mr. Wharton's text. The second case quoted by Mr. AV'harton, was a prosecution for murder in the Court of Oyer and Termi- ner of Northampton County, Pennsylvania. This case is not an authority for that part of Mr. Wharton's text, which states that the danger must be ■actual, but the reverse, as will appear from the following extract from the charge to the jiu-y delivered by Banks, P. J.: "It has been contended that the life of the deceased was talven by the prisoner in self-defence. The right of self-defence is a natural right. Therefore, a man may protect him- self by slaying his assailant. This right is only lawfully excused in sudden and violent cases, where delay would put the party in immediate danger ofthe loss of life, or great bodily harm. The necessity must be urgent, the threatened violence great, and the danger immediate. In such a case, it is lawful to repel force by force instantly, even if the death of the assail- ant should be the consequence. In such a case, the party is not bound to retreat an inch, but may do himself justice speedily and etfectuaUy . When a man who is in the lawful pursuit of his own business is attacked by another, and the circumstances under which the attaclc is made are such that he has well-grounded reason to apprehend that the assailant intends to take his life, or to do him some serious bodily harm, he has a right to use all the means necessary to save his own life, and if he cannot retreat safely, or disable his assailant, he may lawfully kiU him. If the attack is sudden, fierce and violent, so that an attempt to retreat or get out of the way, would only increase^is danger, he may stand in his defence at once. The right o'nly continues as long as the necessity exists. As soon as the immi- nent danger ceases, the right ceases." Com. v. Crause, 3 Amer. Law Jour. 299. It is seen that this language follows very closely some portions of the charge of Parker, J.,in Selfridge's case [ante, pp. 16-17], and the President in pronoundng the charge in tliis case, must have had that case in view. It indeed, urges that the necessity which alone can excuse homicide in self-defence must be great, but it makes the well-grounded apprehension of tlie person assailed, and not the facts as they shall afterwards turn out to be, the test of that necessity. ■ The third and last case cited by Mr. Whar- ton, — Lander's case, post, — as above stated, simply decides that a man whose life is tlireatened by another, may not lie in wait for that other and kill him unawares ; and if he do so, it will be murder in the first degree ; but that, on the contrary, there must at least be some demonstration creating a reasonable apprehension of present danger. The Court quotes the rule correctly from Mr. Wharton, as follows : " Or from the nature of the attack which he is forced to repel, the party killing must have had reasonable ground of belief that there was a design to destroy his life or do him some great bodily harm." Whart. Am. Cr. L., 258, 259-60, [1st Edition.] From this last quota,tion it will be seen that Mr. Wharton has elsewhere in his work on Criminal Law, stated the rule correctly. Indeed, it was not to be inferred that a writer of his research could'have failed to do so. Accordhigly, we find a little further on, at J 1026, of his Criminal Law, the following proposition stated : " If the apprehension of an im- mediate and actual danger to life be sincere, though unreal, it is in like manner, a defence." This proposition is as inaccurate as that quoted in Thompson's case, but the error lies in precisely the opposite extreme, and it is equally unfortunate in not being supported by authorities. The only 106 THE STATE V. KENNEDY. respectable American case we have found, which supports the rule as thus stated, is that of Grainger— a case which has been frequently overruled, explained or discountenanced. See Grainger's case, post, and note to the same. The proposition as stated is correct, with, this addition : Provided the apprehension ^ founded on reasonable grounds — such grounds as would convince a reasonable man— a man of ordinary intelligence and courage. See the cases collected in Subdivision D., post. We are not able to see how these two propositions of Mr. Wharton— that of ? 1020, that the dan- ger must be actual, and that of ? 1026, that it will be sufficient if the appre- hension of immediate and actual danger be sincere, can be reconciled with each other, or how either of them can be reconciled with the correct law on the subject, as laid down in Selfridge's case, Shorter's case, Logues' case, Maher's case, Campbell's case. Pond's case, and many others. And while the writer feels that it would be preposterous to set up his individual judgment against that of the eminent Court which decided the principal case, yet he would venture to suggest that if one man may interpret the meaning of the word " actual" differently from the learned Court, another may also; and if a single lawyer may not be able to see that the word "actual" means apparent, neither may a jury of unskilled men be able to- see it ; and hence, that the charge of the district Judge in the principal case, may actually have misled the jury, although it ought not^to have done so. And although in two eases decided in the New York Court of Appeals, Sullivan's case, ante, and Lamb's case, post, expressions equally inaccurate with that in the principal case, have been held not erroneous when taken in connection with other parts of the charge; yet it is doubtful whether the instruction complained of would have been sanc- tioned by the Court which decided Pond's case, post, or Meredith's case, post, or Maher's case, post. And we have seen that it is founded on the dictum of a text writer, which is not supported by the authorities quoted by him in its favor. THE STATE v. JOHN KEISTNEDY. [20 Iowa., 569.] Su-preme Court of Iowa, June Term, 1S66. Ralph P. Lowe, Chief Justice. John F. Dillon, | Chester C. Cole, y Justices. George G. Weight, ) DlCFEKCE AGAIXSI- ^ON-PELONIOU^ ASSAULT — DEADLY WEAPON MAY NOT BK rSED. 1. A man may repel force by force in the defence of his person, habita- SYLLABUS. 107 tion or property, against one who manifestly intends, by violence or sur- prise, to commit a felony against either ; and if, in making such defence, he takes life, the killing is justifiable. But if the assault is not felonious, and there is no reason for a belief on the part of the person assailed, that the danger is actual and imminent, he is not justified in using^a deadly weapon in a deadly manner. [Ace. Thompson's case, ante ; Beuham's case, post ; Stewart's case, post. Nor to repel a non-felonious trespass upon property : Harrison's Case, ante, and cases cited.] 2. Sections 4442 and 4443 of the Iowa revision of 1860, do not change the common law rule as above stated. Appeal from Dubuque District Court. The defendant and Ms brother Thomas were jointly indicted and tried for the murder of Thomas Dolan in Diibuque, on the 13th day of Jujie, 1865. Plea: Not guilty. Verdict against both, of manslaughter. As to Thomas, the Court sustained a motion for a new trial. The motion of John for a new trial was overruled, and he was sentenced to five years imprisonment in the peniten- tiary, and to pay a fine of $100 and costs. Prom this John appeals. The only error assigned relates to the charge of the Court on the subject of self-defence. The deceased, John Dolan, kept a saloon in Dubuque. He was killed by being stabbed with a knife in the abdomen. An outline of the material features of the case, so far as relevant to this appeal, will appear from the testimony of Kyan and Fenton, who were at Dolan's at the time the difiiculty began. Ryan testified that the Kennedys came into Dolan's between ten and eleven o'clock at night. At this time Dolan and a stranger, and Ryan and Fenton were the only persons present. " The first I knew," says Ryan,-' " there was a fuss between the Kennedys and Dolan — a quarrel. "When the fuss began, the stranger ran out of doors. I was going out after him, when one of the Kennedys (Thomas) came right against me. I caught hold of him and took him out of doors. He did not say a word nor^ attempt to get away from me. I told him he ought to be ashamed to beat a man in his own house. I heard a voice inside saying, / would get the very same. Fenton had before left and gone to the corner of the street. When I heard this 108 THE STATE V. KEWNEDY. threat, i got scared, and let this man (Thomas Kennedy) go. After I left the house, I heard the cry of 'murder' three times. It appeared to be Dolan's voice." He then testifies that, with others, he returned, and returning met the Kennedys, one of them (John) with blood upon his face, and Dolan was found behind the counter insen- sible from the wound he had received. On cross-examination, the witness cannot say that Dolan was drunk, and says the scuffling between Dolan and Kennedy occupied ten or fifteen minutes. Fenton testifies that Kennedy came in ; that one of them was very noisy ; that Dolan endeavored to have him keep quiet ; that a dispute arose ; that "Dolan got out of his chair and struck one of them ; Dolan went towards the coun- ter ; the Kennedys followed him up. They fussed a little while together," and the witness left. He afterwards says that Dolan "followed up the man he struck; that they pursued Dolan, fussing together; blows were struck ; noticed nothing in the hands of either of the men." On cross-examination, he says that Dolan hit the man in the face, but did not observe that he had any glass in his hands. Dolan, in his dying declarations implicated both Ken- nedys. Other evidence, which it is not necessary to notice, was given on behalf of the State. The defendants were examined as witnesses on the trial ; each for the other. John testified that a dispute arose ; that Dolan said to Tom, " You lie," and struck Tom on the face, and afterwards struck him (John) with a glass across the face. And Thomas gave substantially the same testimony in behalf of John. The Kennedys in their evidence did not deny the stabbing; but John claims that Dolan was getting the advantage of him in the scuffle, and that he used his knife in self-defence. Dolan was stabbed on Saturday evening ; and from the wound thus received, died on the Monday morning fol- lowing. F. E. Bissell, Attorney-General, for the State ; W. J. Knight, for the defendant. OPINION — CHAEGE OF THE JUDGE. 109' 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 justi- 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 aU that he had reason to fear from the acta 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. a Anie^ p. 92. 1) This last citation is evidently a misprint.— Eds. e 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 Curwood, 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. KEXNEDY. 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 killed 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 rule 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, "Resistance 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, tho edition should ho stated —Eds. CONCLUSION FKOM THE FACTS. Ill cannot be prevented except by tlie killing of tne person attempting to perpetrate it, the killing will be justifiable. The statute does not limit the right to resist to a Tcnown felony, but gives the right to make a suffi- cient resistance, which includes misdemeanors as well as felonies. Revision, § 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 sutficiently 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 <' See preceding note. « See the next case. 'This 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 kick wliich he gave to the deceased, caused an injui-y which produced his death. Alderson, B.— " a kick is not a justifiable mode of turning a man out of your house, though he be a trespasser. If a person becomes excited and being so excited, gives to another a kick, 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." In Fenton's case, 1 Lewin C. C. 179, Tindal, Ch. J., said, "If death ensues as the consequence of a wrongful 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 and involuntary manslaughter, Beuham'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 V. 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. R Ante, last case. bin 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 homicide, 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 night preceding 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. 113 not In any way connected -ndth 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, and 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 anything, 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 fell, 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 off 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 inrnate 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 keep the pistol behind a glass, inside of the counter. It is not a little diflBcult, frequently, even where the testimony is not conflicting, to determine what shall be considered murder or manslaughter. This is particularly 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 maUce, the offence 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^ taken to extenuate the killing from murder to manslaughter, is a question upon which it is obvious, different opinions wiU, 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 threat- 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 oveipower 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 circum- 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. Taldng the whole evidence together, we think this ^\"as a correct conclusion. The danger to the 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 inflict great bodily injury, indicates very strongly that this was his in- tention, especially if the testimony of his deliberateness of aim be credited ; pinOi 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 Ufe, 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 which 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 liquor sold him by the defendant. It would not do to hold that a saloon keeper may sell a man that which steals away his 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 the circumstances, reduced the quantum of punishment from sixteen to ten years in the penitentiary. STATE V. BENHAM. [23 Iowa, 154.] Supreme Court of lowa^ June Term, 1867. Ralph P. Lowe, Chief Justice. John P. Dillon, \ Chester C. Cole, )- Judges. GrEORGE G. WrIGHT, ) NON-FELONIOUS ASSAULT — DEFENCE AGAINST THREATENED DEATH OR ENORMOUS BODILY HARM — ASSAILBD MUST ENDEAVOR TO RETREAT BEFORE KILLING — ORDINARY ASSAULT NO EXCUSE FOR KILLING — If DEFENDANT SEEK THE QUARREL, WHAT— RiGHT TO KILL IN DEFENOK • FOUNDED IN NECESSITY ONLY — KILLING TO PREVENT ENORMOCS BODILY HARM JUSTIFIABLE — HOMICIDE BY MISADVENTURE. 1 . Where, in a prosecution for murder, it appeared that the defendant was 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 advanced 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, it 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 which he entered upon 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 cir- cumstances. [See as to the relative strength of the parties, Selfridge'js case, ante ; Copeland'S case, ante ; Thompson's case, ante.'] 2. If all the circumstances show an intention on the part of an assailan^ to take the life of the assailed, or to do him some enormous bodily injury. 116 STATE V. BEJSTHAM. then the person aspailed 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 not practicable, then by disabUng, -instead of killing, 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; Regina v. Smith, post. And see note to Selfridge's case, ante.'] 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 disgracefiol 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-felojiions 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 difficulty- or bring on a quar- rel. [Ace. Selfridge's case, an(!e ; Xeeley's case, onie ; Stewart's case, post ; Adams' case, post; 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 adversarj-'s life is the only reasonable resort of the party to save his own life, or his person from dreadful harm, or severe calaaiity, felonious in its character. 6. Where, in a prosecution for murder, the Court iiLstracted the jury, that in order to make out self-defence, the taking of the Ufe 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. When 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, ac^Ante, p. 113, note. ^ Ante, p. 97. • Ante, p. 106. 180 ^ KEGINA V. SMITH. The judgment of the District Court is reversed, and a new trial ordered. Judgment reversed. REGINA V. SMITH. [8 Car. & Pay., 160.] Central Criminal Court, October Session, 1837. i Mr. Justice Bosanqtjet, Present I Mr. Baron Bollastd, (Mr. Justice Coltman. Killing with deadly weapon — ^Degrees of Homicide. 1. If a person, being in possession of a deadly weapon, enter into aeon- test with anotlier, intending at the time to avaU himself of it, and in the course of the contest actually use it and kUl 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 bodUy 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 wiU he justifiable homicide. [See John Kennedy's case, ante, where this ease 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, Kichard 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 scuflEle Burrows fell down by the fire-place on his knees, and the deceased jumped over the table and struck the pris- STATEMENT OF THE EACTS. 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, btit 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 Chiirch-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 feU 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 EEGINA V. SMITH. of it, and deceased came up and struck him on the back 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 faU, to have caused the in- strument to take the direction which it did. BosANQTJET, J., in summing up, (Bolland, B., and Colt- maw, 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 Mm 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 wiU 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 wUl 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 wiU 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 he 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 MllSTSTESOTA, 323.] Supreme Court of Minnesota, January Term, 1865. Thomas Wilson, Chief Justice. Sklf-defence^Kecbssity — Prevention — ^Bight ov attack— Belief OP defendant — Instructions on self-defence. 1. Self-defence is, exvi termini^ a defensive, not an oflfensive 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 «ase, post, and note.] 1B4 THE STATE V. SHIPPEY. 3. The right to detend one's self does not arise, until the defendant Iias^ at least, attempted to avoid the necessity of such defence. VThere 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, joos^.J 4. Where the evidence shows conclusively that the homicide was not committed in self-defence, real or iniaginary, an instruction on the law of self-defence, though erroneous, is no ground of reversing the judgment. [Ace. Harrison's case, anie, p. 71; Shorter's case, jDosil ,- Wells' oa-o, post; MoKGAN, 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 the 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 the 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 mUe 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 EAGTS. 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. Kridler 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 about 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 Kridler ; 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. ** ***** ** *4t Wilson & McNair for the prisoner; G. E. Cole, Attorney-Greneral, 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, 886 -^ Regina v. G-eorge 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 beUeced 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 R., 346. In Tennessee, I believe, it has been held otherwise; Grainger v. The State,"* 5 Yerger, 459 ; but I think this decision 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. bsth ed., vol. 2, §1019 et seq. ''Ante, last case, d Ed. of 1859. e Post, f See 5th ed., vol. 2, 1 1026. g 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. h 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 w^ould not be a good ground for reversal of judgment. Self-defence, ex vi termini, is a defensive, not an oflFen- sive actj 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 vrard 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 will 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. ********* iVew trial denied. THE STATE v. JAMES D. KEISTNEDY. [7 Nevada, 374.J Supreme Court of Nevada, January, 1812. J. F. Lewis, Chief Justice. Charging dpon matters of fact — Rbtkeatlng to the wall. 1. A charge that "In order to make a killing under such circumstances as have been proven, justifiable homicide, it must appear that the party i Posi. 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 kUl 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 man-laughter, provided they were satined 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 iu 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 ont his threat, the defendant would be justified in kill- ing him without retreating. Indictment for the murder of John Keeland. Convic- tion of mnrder in the second degree. Sentence, fifteen years imprisonment. Motion for new trial overruled. Appeal. Ullis & King, for appellant; L. A. BiicJcner^AttoYnQj- G-eneral, 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 sucTt circumstances as haw 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 detennined 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. Ib9 to the wall before lie killed the deceased, thus assuming 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. N"OTB. — 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, "known 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 excusable, nevertheless says : " However, perhaps in all these cases, there ought to be a distinction between an assault in « 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 back 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 cases lay down the necessity of retreating before killing, without quaUflcation, 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 attaclfs. See, for instance, Pakker, J., in Selfridge's case, ante, pp. 16, 17 ; John Doe's case, ante; Drum's case, post; Robertson's case, post; Benham's case, ante. So, the English case of Eegina v. Bull, post. At the same time, it is stated in three cases in Iowa that a person who is assailed with a deadly weapop, 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 WiUiam Russell, that the assault may be so fierce as not to allow him to yield a step, without manifest danger of hi? life, 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 adversarj' who has threatened his life, and who persistently seeks to kill him. Bohannon's case, post; PhiMps' case, post; Young's case, post ; Carico's case, post. And the same principle, though not ex- pressly decided, may well be inferred fi-om 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 accurate 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, ^os<; Parsons, Ch. J., in Selfridge's case, ante, p. 1 ; Riley's case, post, and Col- lins' case, post. In some of the cases, the rule is stated in the language of Foster 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 : KOTE — RETEEATIS-G. 141 1. That the prisoner, after he had been slapped three times hi 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 that 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 (fhe 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 criticisirfg an instruction in a ease 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 oi 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 felonious 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 kiU. Nor can these cases be clearly said to involve a departure from the law as it formerly stood. For there seems to haveiexisted among the old writers some diflference 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 aflfrays 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 vindices 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 oflicer 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 hfe, 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 hy aU 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 piu-- 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 intlienote toStofier's case, post. It may not be amiss to go still 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- mg of non-felonious homicide, says: "Some v/ithout any givinsr back to a wall, etc., or other inevitable cause. As if a thief offer to rob or murder B. eitlier abroad or in his house, and thereupon assault him, and B. defend him- self without any giving back, and in his defence killeth the thief, tills is no felony ; for a man shall never give way to a thief, etc., neither shall he for- teit anvthing." SYLLABUS. 143 Mr. East has exerted himself to preserve the distinction between defence against felonious and non-felonious attempts,[and has made several ohser- vations from an original point of view, which are worthy of attention. 1 East, P. C, 271 ei seq. We think the outlines of the question become still clearer under the pen of Mr. Bishop; but it will deserve fiu-ther attention at the hands of courts before it can be extricated from the confusion in which some of the coiu'ts 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 which does away, in all cases, with the requirement of retreating before Ivilling ; and which has otherwise attempted to estab- lish a set of fixed rules which shall cover all cases of homicide in defence ■of person or property. See the statute set out in the note to Isaac's case, post. 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 Stofifer's <;ase, post, and note to the same. FORSTER'S CASE. [1 Lewin C. C, 187.] Lancaster Spring Assizes, 1825. 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 riolence of using a weapon less dangerous in its character. 3. But if there be an affray, and mutual blows in heat, and the officer kill, it will be manslaughter, although the other party was originally doing something unlawful. Tlie 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, ia 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. HoLEOTD, J., to the jury: "An officer 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- lavrful, 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 aU 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, manslaughter; 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. BuU, post, does not, and whicli Regiiia 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.] Supreme Court of New Jersey, September Term, 1790. (The names of the Judges are not given in the original report.) Mutual combat — Relative strength of the parties — Retreating TO the wall — Manslaughter — ^No 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, causing 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 waU, so that further retreat is impossible, and B. thereupon seizes a dangerous weapon, and with it Mils 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 \rill not be granted, although the Judge may have directed the jurj' im- properly, or may have rejected evidence 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 aU 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, he STATEMEXT 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. Wlien 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 face. 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 dovra 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 strojie. It appeared that the fracture in the skuU 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 the 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 observed that as the act of homicide was fully proved, and indeed admitted on behaK 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 vrith safety, and that he killed his adversary through mere necessity, in order to avoid his own destruction. CHARGE 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 Tfeing 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 law 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. Stockton, for the prisoner ; Woodruff, Attorney-Greneral, for the State. Kestset, 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, it 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 thia 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 bailor'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 drunk. 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 iipon 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 ; " f6r there did not appear tO' beany inevitable necessity, so as to excuse the kiUing in OPINION — NEW TRIAL. 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, hut 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 particularly 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. Upon 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 irnio 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 mansli^hter. — Eds. ^ But Edmondson v. Machall was a civil case. See also to the samo effect in civil cases, Cox v. Kitchen, 1 Bos. & PuL, 338; Deerly v. 152 PENNSYLVANIA V. EOBEETSON. 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 of deceased. 1. It is lawful for a person to exert as much force as is necessary to put a trespasser out of the house in which he lawfully is. 2. The defendant being engaged in combat with an Indian, who was armed with a knife, if there was no other way of escaping his rage, and the danger of liis 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 application in civil cases. Hilliard on New Trials, ch. 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, g 3079 et seq., 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, a Coldw., (Tenn.,) 344 ; Pridgen v. State, post; Peck v. The State, 7 Humph., 78, 88 ; Cornelius v. The Commonwealth, post; Logue v. Com- monwealth, post. 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 ^erdi^ of guiltj' in a capital case, if the evidence afford no hypothesis making such an instruction appropriate. Sfie 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 killing 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 liis safety, and induce him to use the force and weapon he did. Robertson was indicted for tlie 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 of his feet in the face, 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 Jlobertson. 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. KOBEKTSON. was a bad 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 ; Oalhraithy for the State. Addisow, President. — The circumstances proved clear this case of all presumption of malice. The kilting, 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, by 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 himself 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 have otherwise entered the house or escaped, and that 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 killing is manslaughter. K 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, Note. — 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 KOTE — EEASOXABLE CEEATUEE IN BEIKG. 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 vfith. Lord Coke's definition of a reasonable creature in being, viz., "Man, woman, childj 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, ? 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 offered 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 offered 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 down his arms, and especially 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 was 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 aproper case for the exercise of executive clemency." The judgment was affirmed, and the sentence ordered to be executed. 13 Minn. 341, 357. COMMONWEALTH v RILEY AND STEWART. [Thacher's Ceiminal Cases, 471 .J Municipal Court of the City of Boston, January Term, 1837. Petee Oxenbeidge Thachee, Judge. The eight of sblf-dbfbncb discussed in general terms, and the distinction between justifiable and excusable homicide SHOWN — Defence in mutual combat — Combatant must endeavor to eetkeat before killing — ^defence with deadly weapons Defence of strangers. 1. There arc 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, anteJ] 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 shovidng that he retreated as far as he could with 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 ciise 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 knoyfn 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' ca.se, post ; 1 Ruth. Inst. Nat. Law, ch. 16; Grotius, de Jure Belli et Pads, Lib. II, Cap. I; 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 he 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 <;ase 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 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 aflfray, 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. [As in Stoflfer's case, post, which see.] 7. This last supposed case borders 'very nearly on manslaughter. [But it is excusable homicide. Stoffer's case, posi.l 8. He, therefore, who, in the case of a mutual conflict, 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 liave been clearly e^^uced to his adversary. Stofifer'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 CHARGE TO THE JUET. 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, ante, 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 knoclced him down and liiclced him several times, while down, and then, ?ifter B. had got up and when he was walliing away, knoclied him down a second time ; and thereupon C, a by-stander, gave B. a knife, openlj' 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— a. If A. had knocked B. down, and stampedjupon him with his foot, or kicked him in a vital part, B. might well use the knife in defending him self. b. 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 likewise guilty, unless B. used the knife in a different manner and for a different purpose from that for which it was put iiito his hands by C. [As to the defence of other per- sons, see Subdivision P of this Part, post.] Thachee, J., charging the jury: The defendants are on trial for the offence of having killed one James McNallj, in this city, on the 7th day of Novemher last. It is denominated, in law, man- slaughter, which offence consists in the felonious and wilful 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. EILEY 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 conflict 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 MciN^ally 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 witness 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. K 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 Ms part. It is wholly immaterial from whom 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 a,ccording to the law. The parties had been amusing themselves at a game of cards, during which, something had occurred which gave oflFence 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 McNally, 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." McNally 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 McNaUy 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 ; bnt 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 aU 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 upon 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 nature 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 sncli s.i'l- den affray, quits the combat before the mortal wou:i J is given, and retreats or flies as far as he can with safci^y ; and then, urged by mere necessity, kills his adveraiu}' f r the preservation of his own life. This last sir 2^''"^^< d case borders very nearly upon manslaxighter ; a::.l in fact and experience, the boundaries are in ,^o:io in- stances scarcely perceivable ; but in consideration of l^w they have been fixed. In both cases, it is suppo,3C'l L'i..t passion has kindled on each side, and that blows liu,ve passed between the parties; but in the case of r.ia,n- slaughter, it is either presumed that the combat on both sides has continued to the time the mortal stroke was 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 th(3 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 either 162 COMMONWEALTH V. EILEY 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 they 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 Riley believe that his life was in danger, or that he was likely to sustain great bodily harm ? In this connection you have 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 believe, that when McNally had knocked 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 Devenny, 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 off, 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- nounce a true verdict. There has been in this case as miich 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. Merchant 5 and citizens of the best character have EXAMINATIOK OF THE PACTS. 163 attended to testify in their favor, in this hour of their peril ; but if the government has made out a case of wil- 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 Riley 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 whicli. it was put into his hands by Stewart. The jury, after deliberating for about twenty minutes, returned a verdict of not guiltj" for both defendants. Verdict, not guilty. THE ST.\TE V. SCOTT. [4 Ieedell, 409.] Suqjremc Court of Iforth Carolina, .Tu'nc Term, IS^. Thomas RuFFrsr, Chief Justice. Joseph J. Daniel, ) William Gaston, \ Judges. Feedekick Nash, ) Mutual combat — Killing with deadly weapon, murder — Immikenck op the danger — acting upon appearances — previous threats and hostile conduct— failure to give proper instructions not asked for, no ground op 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 -ce each other ; that deceased pressed for a fight, but the prisoner retreated a ^liort distance ; that when the deceased overtook him, the prisoner stabbed him with some sharp instrument, which caused his death ; and that at tlic time of this meeting the deceased had no deadly weaijoi : Held that this 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 tight 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 beUef 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 immediatelj'. [Ace. Lander's case, pos!:,- Harrison's case, a»<«; Creek's ca^n, post ; Cotton's case, post; Rippy's case, post; Collins' case, post; Dyson's case, post; Williams' ca.>x', post; Evans' cai-c post ; and others. Contra. Grainger's case, post]; Philip's case, post ; Carico's case, post ; Bohannon's caie. post; ybung's case, post. ] 5. Where the prisoner prayed for instructions only on jthe ground that 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 to be granted, because the record did not show that the Court charged the jury tliat the prisoner should be acquitted, if from the character of the as- sault and the surroimding circumstan(/es, in connection with the antecedent conduct and threat of the deceased, he had reasonable grounds to lielieve that a felony was about to be committed on his i)er-on ; and this, not\\ath- standing that it did not appear that the prisoner had specifically prayed such an instruction. Appeal from the Superior Court of Law of New Han- over County, at Fall Term, 1843, liis Honor, Judge Battle, presiding.' The prisoner was indicted for the wilful murder of one Madison Johnson. On the trial, the following evidence was introduced, to- wit : Alfred Johnson, a brother of the deceased, Mas 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 ]N"utt, in the town of Wilmington ; that STATEMENT OF THE PACTS. 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 he- hind; that it was in the night, with no moon, hut a bright starlight ; 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 him, 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 appearan^ce must have- been instantly fatal. For the prisoner, Henry Cowan, James Holmes, Mr. Grant and Charlotte Mitchell were examined. Henry Cowan swore that he left Hagar Nutt'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 fight; 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 in 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 serve the prisoner in the sanu^. STATEMENT Or THE PACTS. 167 way if lie coujd find Mm ; and tliat he intended to kill Mm at the risk of his life ; that Alfred Johnson heard this, and told Ms brother that they could find the pris- oner another time; that she also heard the deceased threaten to kill the prisoner the Friday night before his death ; that the deceased had been on good terms with a yellow girl named Maria Mitchell, bnt had had a fall- ing out with her, and she had qome 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 undoubtedly 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, during which the prisoner killed the deceased, it was a case of manslaughter ; but 168 THE STATE V. SCOTT. that if the parties were only trying to get together, and no Iblows had pasaed, 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- Oeneral for the State ;. No ^Counsel in this Court for the defendant. Ruprnsr, 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 timey 1 East P. C, 273. There was here no danger of the prisoner's lifec 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 IN 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 gave 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 Ti/oth 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 scuflle, 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 A'. SCOTT. quarrelling, and that A. Johnson 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 follow him eight or ten steps ; that he saw no scuffle nor blow given by either party, but saw the pris- oner run off, 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 offers a fight, and the other retreats a few steps, but without decliniug 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 cmel thirst for blood. K 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 — APl'EAEANOKS — LJiVEX'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 which the deceased might be armed without 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 theu. 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, btit 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 kills 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 T72 THE STATE V. SCOTT. slew him. He prayed for instructions on tlie allegation, tluit the deceased did intend to kill Mm, and not on the juis ,u.-r's reasonable, though mistaken belief, that he so in ten ['■([. As the prisoner alone, positively knew the stale of his own mind on that point, and he did not lirin j; Ibrward the idea of such a belief having been en- tertained by him, the Court and jury could not presume it. iloreover, it has often been decided, that according to the constitution of this Court, we cannot reverse a juduinent because it does not appear in the record that the \ ',-rdi' t ought to have been given, but only for error app;aent in the decision of the Court. Therefore, an omisiiion to give instructions that might have been P-iiipm- if asked, is not error, but only the giving of wrong instructions, or refusing light ones when asked. T^r ' d ) 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- ricil to the points 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 certified to the Superior Court. Daxiel, 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 Tnalice a/orethoiiglit express against the der eased; but there is abundant evidence, that the de- ceased had express Tnalice against the prisoner. The prisoner in the night time left the house of Hagar Xutt, whistling and apparently in a good'humor. The deceased said nothing to him in tlie house, but as soon as the prisoner left the house and was in the dark, he hailed him ; and, on being civilly answered by tlie prisoner, re- 1 1 lined the answer by curses and abusive language ; and tlii>M refused to submit Ms complaint, whatever it was. DISSENTING OPINION — APPEAEANCES. 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 something, 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-honse 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 vras 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 ; stUl, 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. NOTK — APPEARANCES — INSTRUCTIONS. 175 Note. — The dissentirg opinion of Daniel, J., in this case, eommend.s 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 snbject fully and not partially charged, so far as it was applicable to his case. This manifestly was not done. Upon the whole, this looks verv 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- fectively 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 beins: 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. 06 ; Sullivan's case, ante, p. 65; Shorter's case, post; Logue's case, post; Maher's onse, post; Meredith's case, post, and Pond's case, post. ISAACS V. THE STATE. [25 Tex., 174. J Supreme Court of Texas, GaUeston, 1860. RoYALL T. Wheeler, Chief Justk< . Oran M. Roberts, I , . , _ ., James H. Bell, } Associate Judge,. Non-felonious assault— Mutual combat— The Assailed not com- pelled TO retreat — The law op 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- voked 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 V. 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, unlijss [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 adequate cause, or if done with a dagger, then it is murder in the second degree. 3. If 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 ho 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 puri^ose only of preventing an unlawful and violent attack on one's per- son, of such a nature as to produce a reasonable expectation or fear of death, or great bodily harm about to be inflicted. 5. In other words, the kUling 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, which 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 ia founded on the same law of nature and reason which gives tlic right of defence ; and it doos not restrain it, but protects it, and prevents its abuse by those who w ould, 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. ch. 16 ; Gray v. Coombs post.'\ 8. Where the slayer provoked the deceased by profane language and an- gry gesticulations 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 fear of death or some serious bodily injury, and which did not endanger life ; held that he could not be justified on the ground ot 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 ofBce of the deceased, using it in carrying on his business of a shoemaker. Complaint had been made to the deceased that the defendant annoyed the STATEMENT OF THE PACTS. 177 school girls in passing by, by looking at tbem out of Ms window and speaking to them, and was requested to have tlie annoyance corrected. The deceased replied tliat the defendant was a good man, and only required to be advised as to his beliavior ; 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, whicli was before breakfast on the morning of the difficulty, whilst in the act of tack- ing the cloth, tlie 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 wliom he had applied for the wagon,) at tlie 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 tlie 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 he wished to 178 ISAACS V. THE STATE. have a settlement with, him before he left Montgomery comity ; and requested the youth to bring his stick from the oflftce, 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 diffi- 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 fraU 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 Pitzpatrick, who was drunk when he testified, and who, as the former witness stated, was not in a position to see the first part of the difficulty. 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 fould not be avoided by any other means except retreating, then it would not be an unlawful kiUing, 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 that 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 on 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 avoided the conflict and all danger, by other means than killing or retreating ; or that at the time of the kill- 180 ISAACS Y. 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 difficulties 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 & Abercromhie, 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 inflicted 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 follows that the judgment of the Court below against the appellant must be affirmed, 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 KOTE — RETREATING — TEXAS STATUTE. 181 the profane language and tlie 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 conflict. 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 a,ttack, 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 tliis case, wliich is approved "by the Supreme Court, is so manifestly at variance with all the authorities, American and English, on the question of retreating before killing, that it ■would he 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 afifraj', where the contest was voluntarily entered into, and not unexpected hy 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 irom the comhat, before he couM justify killing in self-defence. We doubt whether a case can be found in the books from which a contrary conjecture <;an he 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 propertj". This 182 ISAACS V. THE STATE. Statute exhibits such a manifest attempt to provide for every possible con- tingency that may. arise, 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, under the 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 hi- flicted for the purpose of preventing the offences of murder, rape, robbery, maiming, 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 the presence of his vic- tim, and except also iu 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 murder is complete .so long as tlie offender is stiU 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 tjie 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 tlie same. 8. In cases of burglary and theft by night, 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 ; Pascli. 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 justifiable 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 be 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 — RETEEATING — TEXAS STATUTE. 183 life or person of the injured party is in peril, by reason of such attaek 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 attacl£ 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 ef 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 killing." 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 arise not embraced in its provisions — such, for instance, as killing an innocent person in order to save one's own hfe, — doubtless the rule would hold which Sir Michael Poster 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. DRUM. [8 Smith, l.J In the Court of Oyer and Terminer for Westmoi'eland County, Pennsylvania, November Term, 1868. Before Hon. Daniel Agnew, ^ One of the Judges of the Supreme Court, sitting by assignment. Mdtual combat — Duty of Retreating bbfoee killing — Killiks with deadly weapon — degrees of homicide — reason ablll doubt, etc. 1. To excuse homicide by a plea of self-defenc«, 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, anie, 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. [Ace. John Kennedy's case, ante,\). 106; Thompson's case, ante, p. 92; Benham's case, ante, 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 hve, the law decides that the former shall rather flee than that the latter shall die. [See note to Selfridge's case, a«ie, 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 pakt 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 Robert 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, CHARGE —SUMMING UP. 185 stepping or leaning forwards towards him, extended Ms arm and gave liim 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 killed the deceased wilfully, deliber- ately and premeditatedly, and with malice aforethought. If you should find this to be so, it would constitute inlaw 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 ofl Eiley, 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 entise acquittal, and if not in self-defence, that at the Tery most it is but manslaughter. 186 COMMONWEALTH V. DRUM. To excuse homicide by 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 upon 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 strength between com- batants, Selfridge's case, ante, p. 23 ; Thompson's case, ante, p.' 92 ; Ben- ham's case, »»ie, p 115 ; Riley and Stewart's case, ante, p. 155. DISPARITY OF SIZE — EETKEATING. 187 taken no great effect, and at the time Mohigan was alone, while two persons, not unfriendly to the prisoner, were interfering in his behalf. Under these circumstances (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 ^sed 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- kelly 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 into 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. If 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 Ibe 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 suflBcient 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 — SEASONABLE 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 offence^ 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 » (jiiare 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 East P. C, 271 ; Mawgridge's case, Kelyng, 128, 129. Parsons, Ch. J., in Sel- fridge's case, ante, p. 1 ; Carroll's case, post ; Collins' case, post ; 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. DRUM. a man of reasonaWe 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 thelaw to be this : If there be a reasonable doubt that any offence 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 offered itself; and, if, when the opportunity arose, he did iise 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 m his mind the conscious design of killing, and had time to think of the weapon he had prepared, and that he would use it, 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 tlie suddenness of the 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 STLLABUS. 191 Mohigan, or of doing him great "bodily harm; and if, under the impulse of passion, caused by Mohigan'e blows, and arising when they were inflicted, the prisoner struck the 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, 185'B. William B. Caldwell, Chief Justice. Thomas W. Baetley, " John A. Cokwin,* Allek G. Thurmak, RuFUS P. Rawney, Judges. Instructions on self-defence — Non-feloniou3 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; Shortor'ri 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."] * CoRwtN, J., having been of counsel for the prisoner on the first trial, did not sit. 192 STBWAKT V. THE STATE. 2. If a person who is assailed by another with fists only, kill that other with a deatUy weapon, it is not excusable self-defence. [Aoc. Wiltberger's case, areiie, p. 34; John Kennedy's case, ante, p. 107; Thompson's case, ante, p. 92 ; Adams' case, posi.l 3. The slayer having sought, and provoked by Insulting language, an assault upon himself, in order to have a pretext for kiUing his adversary, and upon being assaulted by his adversary with fists alone, did stab and kill him, this was not excusable self-defence ; but a verdict of murder in the second degree was sustained. [See STeeley's case, ante ; Adams' case, post; Evans' case, post; Stoflfer'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 difficulty 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 which, 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 already 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 miirder 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 Rep., 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 deuce. A motion was made for a new trial, which was overruled, and sentence pronounced — to reverse which, this writ is prosecuted. Anthony & Ooode for the plaintiff in error ; William White, Prosecuting Attorney, and William A. Rodgers, for the State. OPINION — CHARGE — EETEEATING. 193 Thueman, J., delivered the opinion of the Conrt: 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 fronT 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 kiUing 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 may 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 RTEWAKT V. THJfi STATE. rent danger, as to show wantonness, 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 quit 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 bodily 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 tliat when assailed and hard pressed, he might take the life of his assailant. It will also be admitted, that in a criminal, as weU as a civil cause, before the judgment can be reversed for error in the charge to the jujy, it must appear that some evidence was given tending to prove a state of case in wliich the charge would be material. If the charge was upon a mere abstract question of law, that coiild 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- TUE PACTS — BKINGING 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 limh, 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 whip him, if he asked them for the money they owed him, 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 STEWART 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 aflfray, in order to afford him a pretext to stab his enemy. There is some testimony tending to prove that Dotey OPINION — RETEEATING. 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 means. 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 STEWART 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 E,. Dotey was kiUed." Which charge was given, with the following modification: "That the 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." K we can consider this assign- s' 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 kiUing 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. J ^wpreme Court of North Carolina, December Term, 1839. Thomas Eufpin, Chief Justice. Joseph J. Daniel, ) r,,^^„„ William Gastow, [ -^^^^d^s. Assault with malice — Old grudge — Defence in combat — Retreat- ing TO THE WALL. 1. Where one assails another, and a combat ensues, and in such combat the assailant kills 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 guilty of murder in respect of the first intent. [Contra, Stoffer's case, post.l 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,; WU- Uams' 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. combat 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 mthout previous malice, kiU 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 suflScient 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 kUling in self-defence, unless he quitted the combat before the mortal blow was given, if the fierceness of his advera-arj' permitted, and retreated as far as he miglit with safety, and then he killed his adversary of necessity, to save hi^ 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 ; the 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 Mil 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 ec[ual 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 Tiomicide. — ^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 sougJit the provocation, by giving the first blow, in order to afford him a pretence for wreaking his vengeance, or with 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. '■'•ManslaugMer. — 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 refiection at the time he gave the blow, but 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- Oeneral for the State. Gaston, J. — Prom 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 OPINIOK — SEEKING AFFRAY. 203^ that the jury should, in the first place, ascertain whether the prisoner commenced the aflfray with a preconceived purpose to kill 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 kiU 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 well 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." K, upon consideration of all the evidence, the jury came a Garwood's Edition. ^Curwood'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 aflfray, but had been assaulted in the first instance, and then a combat had ensued, he could not excuse himself as for a kiUing 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 irnay 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 indigna- 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 OPINION — EXCESSIVE EESISTANCE. 205 that he was about 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 sufficient 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 STA'iK V. HILL. shut out knowledge and destroy volition. All the writers 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-General, 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-writers 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 tf) 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- PliOVOCATlON — DELIBEKATION. 207 ducted, is, in tlie 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 blood of another, in compliance with such 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 sudden 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 3ury "that if they should believe according to the second proposition, that the prisoner was not possessed of- deliberation and reflection 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 the 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 venire 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 te reversed. 208 ADAMS V. THE PEOPLE. C— KILLING 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. Charles B. Lawrence, ) ^„„„„,v,^. Tvificp'i PiNKNEY H. Walker, \ ^«*oc*«^^ JusUees. HoinciDE — Necessity produced by defendant's wrongfui, 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. Schnier's case, 'post ; Fisher v. People, 23 lU., 283.] 2. While the doctrine is, that a man threatened with danger, must de- termine from appearances, 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 he held responsible, criminally, for a mistake as to the extent of the actual danger, where other judicious men would have been alike mistaken ; at the same time, he has not the riglit 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. If the defendant sought the difficulty with the deceased for the pur- pose of killing him, and in the fight did kill him in pursuance of such pur- pose, it is murder. But if the defendant voluntarily got into the difficul- ty or fight with the deceased, but did not intend to kUl 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 killing 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 af- fray he killed the deceaiied with a deadly weapon. [Ace. Selfridge's case, ante, p. 24; Neeley's case, ante, p. 96; Stonecifer's case, 6 Cal.,407; Benham's case, ante, p. 113 ; Rippy's case, post ; Stewart's case, post ; Evans' case. OPINION — JURY JUDGES OF LAW, 209 post. Otherwise, if he in good faith decline the combat and retreat as far as he can. Stoffer's case, post. See note at end of Stofi'er's case, post.'] 5. Where a party on trial on the charge of murder, defends upon the ground that he acted in self-defence, eyidence that the deceased had a bowie knife inside of his coat only a short time before the killing, and that he de- clared he would cut the accused's heart out with it, was not improper!}' re- jected, it not beina: shown that the prisoner knew the fact, or acted upon the suspicion of its existence, and it appearing that the deceased had no evil design towards the accused, but rather the latter sought the difBculty in. which the killing occurred. Writ of Error to the Circuit Court of Crawford Coun- ty ; the Hon. H. B. Decius, Judge, presiding. The facts appear in the opinion. J. C. Allen and JS. Callahan, for the plaintiff in error ; Robert G. Ingersoll, Attorney-General, for the people. Beeese, Ch. J., delivered the opinion of the Court : This was an indictment, in the Crawford Circuit Court, of William Adams, for the murder of Thomas Bostic. The jury found the prisoner guilty of manslaughter, and fixed the term of his imprisonment in the penitentiary, at ten years. A motion for a new trial was made hy the prisoner, hased on his own affidavit, and that of two other persons, alleging misconduct of the jury, and on the further ground of newly discovered evidence. The Court denied the motion, and rendered judgment on the verdict, and the cause is brought here hy writ of error. The points made here by the prisoner's counsel are, the modifica tion, by the Court, of prisoner's third instruction, and giving the twelfth and twentieth instructions on behalf of the people, and in refusing to give the prisoner's thir- teenth and last instruction. As to his last instruction it was properly refused, as it had nothing to do with the case ; it was wholly irrelevant, and the jury were not in a position to know what the decisions of the Supreme Court had been on questions of law. Whether final or not, was no concern of the jury in the particular case they were trying, nor were these decisions, multitudin- ous as they are, before the jury by the testimony, as it appears on the record. Under our statute, juries in crim- 210 ADAMS V. THE PEOPLE. inai cases are the judges of the law as well as of the fact, and they have a right to pronounce on the law as it may seem in their opinion to be, as this Court decided in Schniei- V. the People,* 13 Bl., 17, and Fisher v. the Peo- ple, 23 111.. 283. The third instruction of defendant, as asked, was as follows: "If the jury believe, from the evidence, that at the time Adams struck the blow or blows, that resulted in the death of Bostic, he, Adams, had reasonable ground to believe that the killing of Bostic was neces- sary to save his own life, or to protect himself from great bodily harm, then the killing was justifiable, and the jury should find the defendant not guilty." The Court qualified this instruction, and it is alleged as error, by adding as follows : " Unless the jury further believe that the difiiculty was commenced by the defendant for the purpose of taking the life of Bostic, or inflicting upon him a great bodily harm." The objection to this qualification is made upon the as- sertion by the accused, that there was no evidence that he made an assault or commenced a difficulty with the deceased for the purpose of taking his life or doing him bodily harm, or for any other purpose. Colliflower, the principal witness for the prosecution, stated in his testi- mony that he saw the whole transaction, and from his tes- timony the jury might well infer the accused sought the difficulty with the deceased. While the doctrine is, as es- tablished by this Court, in Schnier v. the People, supra ; Maher V. the People" 24 lU., 242, and Campbell v. the Peo- ple \ 16 111., 17, that a man threatened with danger must determine from appearances and the actual state of things surrounding him, as to the necessity of resorting to self-defence, and if he acts from reasonable and hon- est convictions, he will not be held responsible, crimin- ally, for a mistake as to the extent of the actual danger, where other judicious men would have been alike mis- taken ; at the same time he had not the right to provoke the quarrel and take advantage of it, and then justify '■Post. <'Post. 'Fo-ii. OPiisrioisr — seeking the difficultt. 211 the homicide. This was the extent and purport of the •qualification, and was entirely proper. For these reasons, the twelfth instruction for the people was right. It was as follows : " If the defendant sought a difficulty with the deceased for the purpose of killing him, and in the fight did kill him, in pursuance of his malicious inten- tion of taking the life of Bostic, they will find him guilty of murder, but if they find that defendant voluntarily got into the difficulty or fight with Bostic, but did not in- tend to kill at the time, and did not decline further fight- ing before the mortal blow was struck by him, and then ■drew his knife and with it struck and killed Bostic, they will find the defendant guilty of manslaughter, although the cutting and killing were done in order to prevent an assault upon him by Bostic, or to prevent Bostic from getting the advantage in the fight." And the twentieth instruction was also proper. It was as follows : " The defendant cannot avail himself of necessary self-defence, if the necessity of that defence was brought on by the deliberate and lawless acts of the defendant, or his ban- tering Bostic to a fight for the purpose of taking his life, or committing a bodily harm vipon him, and in which he killed Bostic by the use of a deadly weapon. Upon the point of newly discovered evidence, as a ground for a new trial, the doctrine haB been settled in this Court, that a verdict will not be set aside merely to afford the defendant an opportunity of introducing newly discovered testimony which is not conclusive in its character, or is merely cumulative. Smith v. Shultz, 1 Scam., 490 ; Morrison v. Stewart, 24 111., 25. And the rule is the same in criminal cases. We see nothing conclusive of any fact in any portion of the newly discovered testimony. It is merely cumula- tive. Threats of a similar kind were spoken of by sev- eral witnesses, and the accused had the full benefit of them. The dying declarations of Bostic, that he did not wish the accused hurt for what he had done, and that accused had done nearly right, etc., affords no evidence ^of anything more than a truly Christian spirit on the 212 ADAMS V. THE PEOPLE. part of one who had been nnjustly done to death, and who, in his dying agonies, was willing to forgive the malefactor. The further statement that he knocked down the accused, three times before the accused touched him, was substantially before the jury on the trial. The proof is clear, that when deceased, the woman and Suthard approached the wagon in which was the accused, he jumped out and went toward the deceased, for what' purpose was to be inferred by the sequel. The deceased knocked him down twice before the accused actually touched him, but he was advancing upon the deceased in a menacing manner, with his knife, in all probability, ready, but concealed for the expected emergency. The deceased did not follow up the advantages he had gained, but seemed desirous of avoiding a collision. The testimony of Samuel Jacobs, that deceased had a bowie-knife inside of his coat only a short time before the killing, and his declaration, that he would cut the accused's heart out with it, could have had no weight with the jury, if it had been before them, for it is not shown the prisoner knew the fact, or acted upon the sus- picion of its existence. The evidence goes to show, most clearly, that the deceased had no evil designs toward the accused, for if he had, a most favorable opportunity existed for him to carry them out after he had knocked the accused down, and had him completely in his power. The testimony, we think, fully sustains the finding of the jury, and it could not have been different had all the- evidence, alleged to be newlv discovered, been before them. ********* We cannot perceive that any rule of law has been vio- lated by the Circuit Court to the prejudice of the pris- oner. He has had a fair trial by a jury of his neigh- bors, and though w- might not have found on the facts as they did, we cannot say their finding is so against the evidence as to justify interference by this Court. The judgment must be affirmed. Judgment affirmed. SYLLABUS. 213 STOFFEK V. THE STATE. [15 Ohio State, 47.] Supreme Court of Ohio, December Term, 186^,. Jacob Beinkbehopp, Chief Justice. JosiAH Scott, ^ Rurus P. RANNEr, I z,,^„„„ Horace Wilder, l-^^^'Q^^- William White, J Felonious assault — Assailant retreats to the wall, and then kills in self-defence. 1. While the party who first commences a malicious assault continues in the combat, and does not put into exercise the dutyjof withdrawing from the place, although he may be so fiercely pressed that he cannot retreat, or is thrown upon the ground, or driven to the wall, he cannot justify taldng the life of his adversary, however necessary it may be to save his own ; and must be deemed to have brought upon himself the necessity of kiUing his feUow-man. 2. But when he has succeeded in wholly withdrawing from the conflict, and in good faith, has retreated to a place of apparent security, his right of self-defence is fuUy restored, and if pursued by his antagonist, and there attacked in a manner to endanger his life, he is justified in taking the life of his antagonist, if it becomes inevitable to save his own. [Contra, Hill's case, ante.} 3. But the conduct of the accused relied on to sustain such a defence, must have been so marked in the matter of time, place and circumstance, as not only clearly to evince the withdrawal of the accused in good faith from the combat, but such also as fairly to advise his adversary that his danger had passed, and to make /as conduct thereafter the pursuit of ven- geance, rather than measures taken to repel the original assault. 4. Where the defendant made a murderous assault upon the deceased in the street with a knife, but afterwards desisted from the conflict, de- clined further combat, and retreated rapidly a distance of one hundred and fifty feet, and took refuge in the house of a stranger, where he shut and held the door; but the deceased, his brother and another immediately pur- sued, throwing stones at the defendant, and crying "kill him," as he retreated ; and forcibly opened the door, entered the house, and assaulted the defendant therein, and in the conflict which immediately ensued, the ■deceased was killed by the defendant: it was held, that while the de- fendant was amenable to punishment for the murderous assault with •which he commenced the affray, yet he had done all that the law required 214 STOPPEK V. THE STATE. of him, in withdrawing from the combat and retreating to the wall before- Idlling his adversary ; and that it was hence error to give mstnictions and refuse others, which presented the law differently from what it is above declared to be. The case is stated in the opinion of the Court. D. W. Stambaugh and J. C. Hance for plaintiflF in error : L. B. CritcJifield, Attorney-General, for the State ; A. L. Neely and A. W. PatricTc, also for the State. Ranney, J., delivered the opinion of the Court : The plaintiff in error was indicted in the Court of Com- mon Pleas of Tuscarawas county for the murder of Mont- gomery Webb, and, upon the trial, was found guilty of manslaughter, and sentenced to the penitentiary for six years. The refusal of the Court to give certain instructions to the jury, as prayed for by him, as well as the instruc- tions given, are assigned for error, and for that cause alone he seeks a reversal of the judgment. Upon the argument, two questions of very consiaerabie- nicety and practical importance, have been presented, which we shall proceed to dispose of in the order in whicL they appear in the record. 1. From the bill of exceptions it appears that, after the State had given evidence tending to prove that the plain- tiff made an assault upon "Webb in the street, with the intent to murder him with a knife, and that in the con- flict which ensued, "Webb was killed by him, the plain- tiff in error gave evidence tending to prove that he desisted from the conflict, declined further combat, and retreated rapidly a distance of one hundred and fifty feet, and took refuge in the house of a stranger, where he shut and held the door ; that Webb, his brother, and one Dingman immediately pursued, throwing stones at him, and crying, " Kill him ! " as he retreated, and forci- bly opening the door, they entered the house and assaulted him, and in the conflict which immediately ensued, Webb was killed. Upon this state of the evidence, counsel for the plain- tiff in error requested the Court to instruct the jury, that TELOlSriOTJS ASSAULT— EETEEAT — DEFENCE. 215 the killing of "Webb would be excusable, although the accused should have' made the assault upon him with the malicious intent of killing him, if the jury should find that, before "Webb had received any injury, the accused desisted from the conflict, and, in good faith, declined further combat, and retreated to a place which he might reasonably regard as a place of security, and that "Webb and those in concert with him, immediately pursued and forcibly entered such place, and there made an assault upon the accused, in such manner as to warrant him in believing that his life was in danger at the hands of "Webb, and without deliberation or malice, and to save his own life, he took that of "Webb. This instruction the Court refused to give, but in sub- stance, charged the jury that, under such circumstances, the accused would be guilty of manslaughter, provided they " should regard the conduct of Webb, from the com- mencement of the conflict in the street to the time of the conflict in the house, as continuous." The difl'erence between the instruction asked and that given, is easily appreciated. The one makes the conduct of the accused in declining, in good faith, further con- flict, and retreating to a place of supposed security from the attack of "Webb, decisive of his right to defend him- self there, when afterward assaulted by "Webb and those in concert with him, and, if necessary to save his own life, without malice or premeditation to take that of "Webb : while the other makes the conduct of Wehi the test whether the conflict had so far terminated as to restore the accused to his right of self-defence, and denies him this right, if the conduct of Webb, from the conflict on the street to that in the house, was to be regarded as continuous. "We are not permitted to regard this retreat of the accused, as either colorable, or made to gain an advantage, with a view of renewing the assault npon Webb. The instruction requested assumed that it must have been made with the bona fide purpose of aban- doning the conflict ; and in the instruction given, the jury were charged that if the attack upon Webb in the street 216 STOFFEE V. THE STATE. was murderous, the fact that the accused " repented and tied, * * * * intending to quit the com- bat, and abandoning all murderous purpose," would have no further effect than to mitigate the crime to man- slaughter. Upon the precise question made in this case, very little light is thrown by actual adjudications ; and it is not to be denied, that some difference of opinion has obtained among elementary writers upon criminal law. The learned and humane Sir Matthew Hale has expressed an opinion, upon the very point, in accordance with the instructions requested in the Court below. He says : " Suppose that A. by malice makes a sudden assault upon B., who strikes again, and, pursuing hard upon A., A. retreats to the wall, and, in saving his own life, kills B. Some have held this to be murder, and not se defendendo, because A. gave the first assault. But Mr. Dalton thinketh it to be se defendendo, though A. made the first assault, either with or without malice, and then retreated. It seems to me, that if A. did retreat to the wall upon a real intent to save his life, and then merely in his own defence killed B., that it is se defen- dendo, and with this agrees Stamford's P. C, lib. 1, c. 7, fol. 15 a. But if, on the other side, A., knowing his advantage of strength, or skill, or weapon, retreated to the wall merely as a design to protect himself under the shelter of the law, as in his own defence, but really intending to kill B., then it is murder or manslaughter, as the circumstance of the case requires." 1 Hale P. C, 479, 480. Sergeant Hawkins, however, thinks this opinion too favorable, and insists that the one who gives the first blow cannot be penmitted to kill the other, even after retreating to the wall ; because the necessity' to which he is at last reduced, was brought upon himself. 1 Hawk. P. C. 87." Later English writers ha^'e generall}' contented them- .selves with stating the opposing opinions of these emi- aCunv. Ed. i'ELOlSriOUS ASSAULT — EETREAT — DEFENCE. 217 nent authors, without adding anything material upon the subject. 4 Bla. Com., 186; 1 Russ. on Crimes, 662. In our own country, Mr. Bishop, in his work on Crimi- nal law, has examined the whole subject with learning and ability, and coinciding, as we understand him, in the opinion expressed by Lord Hale, he thus expresses his own conclusion : " The space for repentance is always left open. And when the combatant does in good faith withdraw as far as he can, really intending to abandon the conflict, and not merely to gain fresh strength or some new advantage for an attack, but the other will pursue him, then, if taking life becomes inevitable to save life, he is justified." 2 Bishop on Crim. Law., Sec. 566." But if the question cannot be said to be settled upon authority, we think its solution upon principle very obvious, in the light of doctrines upon which we are all agreed. It is very certain that while the party who first commences a malicious assault continues in the combat, and does not put into exercise the duty of withdrawing from the place, although he may be so fiercely pressed that he cannot retreat, or is thrown upon the ground, or driven to the wall, he cannot jus- tify taking the life of his adversary, however necessary it may be to save his own ; and must be deemed to have brought upon himself the necessity of killing his fellow-man. "For otherwise," as said by Ch. J. Hale, " we should have all cases of murder or manslaughter, by way of interpretation, turned into se defendendoP 1 Hale, P. C. 482. There is every reason for saying, that the conduct of the accused, relied upon to sustain such a defence, must have been so marked in the matter of time, place and circumstance, as not only clearly to evince the with- drawal of the accused, in good faith, from the combat, but also such as fairly to advise his adversary that his danger had passed, and to make This conduct thereafter, the pursuit of vengeance, rather than measures taken to tVol. 1,5th Ed., 2871. 218 STOPFER V. THE STATE. repel the original assault. But when this is made to appear, we know of no principle, however criminal the previous conduct of the accused may have been, which allows him to be hunted down and his life put iix jeop- ardy, and denies him the right to act upon the instinct of self-preservation, which spontaneously arises alike in the bosoms of the just and the unjust. There is no ground for saying that this right is forfeited by previous misconduct ; nor did the Court below proceed upon any such idea, since the jury were charged, that if the con- flict which ensued iipon the first assault had ended, and a new one was made by Webb and his associates in the house, the accused under reasonable apprehension of loss of life or great bodily harm, would be justified in taking the life of his assailant. The eiTor of the Court consisted in supposing that whatever might be done by the accused to withdraw himself from the contest, the conflict would never end so long as Webb made continuous efforts to prolong it. If this is a sound view of the matter, the condition of the accused would not have been bettered if he had fled for miles and had finally fallen down with exhaustion, provided AVebb was continuing in his efforts to overtake him. But this view is consistent with neither the letter nor spirit of the legal principle. A conflict is the work of at least two persons, and when one has wholly Avith- drawn from it, that conflict is ended ; and it cannot be prolonged by the efforts of him who remains to bring on another. It is very true, that the original assault may have aroused the passions which impel the pursuer to take vengeance upon his adversary; and if death should ensue from his act, it might be entirely sufiicient to mitigate the crime. But it would still be a crime, and the law cannot for a moment tolerate the execution of vengeance by private parties. If this were allowed, such passions might be as effectually arotised by words as blows ; and instead of the principle, so vital to the peace of society, that the law alone must be relied upon for the redress of all injuries, we should have avengers of FELONIOUS ASSAULT — RETREAT — DEFENCE. 21& injuries, real or supposed, executing their punishments upon victims stripped of all legal power, whatever might be the necessity of defending their own lives. It is needless to say, that such a course would be alike destructive to public order and private security, and would be substituting for the empire of the laws, a system of force and violence. A line of distinction must be somewhere drawn, which, leaving the originator of a combat to the necessary con- sequences of his illegal or malicious conduct, shall neither impose upon him punishments or disabilities unknown to the law, nor encourage his adversary to wreak vengeance upon him rather than resort to the legal tribunals for redress ; and we think, upon principle and the decided weight of authority, . it lies precisely where we have indicated. While he remains in the con- flict, to whatever extremity he may be reduced, he can- not be excused for taking the life of his antagonist to save Ms own. In such case, it may be rightfully and truthfully said, that he brought the necessity upon him- self by his own criminal conduct. But when he has succeeded in wholly withdrawing himself from the contest, and that so palpably, as at the same time, to manifest Ms own good faith, and to remove any just apprehension from Ms adversary, he is again remitted to his right of self-defence, and may make it effectual by opposing force to force, and, when all other means have failed, may legally act upon the instinct of self- preservation, and save his own life by sacrificing the life of one who persists in endangering it. If these views are correct, their application to the case under consideration, is very obvious. Both the instruc- tions requested, and that given, are based upon the hypothesis, that the accused had, in good faith and abandoning all criminal purposes, withdrawn from the combat, that he had not only retreated to the wall, but behind the wall ; and had not only gone from the view of his adversary, but to a place of supposed security from his attacks. In all this his conduct was strictly 220 STOPFEK V. THE STATE. lawful. In the language of the books, he "had actually put into exercise the duty of withdrawing from the place." It is very true, that the evidence tended to im- plicate him in a very serious crime in the first attack upon Webb, for which his subsequent conduct could not atone, and for which he was then, and still is, liable to prosecution and punishment; but when Webb and his associates afterwards pursued and attacked him, they were wholly in the wrong, and necessarily took upon themselves aU the hazards of such an .unlawful enter- prise. *********** We think the Court erred in refusing to give each of the instructions requested, and also in the instructi6ns given, and for that cause the judgment is reversed, and the case remanded for further proceedings. Beestkerhoee, Ch. J., and Scott, Wilder and White, JJ. concurred. Judgment reversed. j.'ToTE.— I. Let us first consider in a general way the question whicti lies .at the foundation of Stoflfer's case, and which is discussed in the case preceding it. Let us consider how far a man parts with his right of defence by seeking an affray or voluntarilj- engaging therein, or by bringing upon himself an attack. In other words, let us see how far one's right of defence is compromitted or abridged by his own wrongful act. 1. The first general principle which is to be noted under this head is, that a person who has slain another, cannot urge in justification of the killing, a necessity produced by his own unlawful or wrongful act. This principle is thus stated by Sergeant Hawkins : " Neither shall a man in any case justifj' the IdlUng another by pretence of necessity, unless he were himself whoUy without fault in bringing that necessity upon himself; for if a man in de- fence of an injury done by himself, kUl any person whatsoever, he is guilty of manslaughter at least ; as where divers rioters wrongfully detain a house by force, and kiU those who attack it from without, and endeavor to burn it." 1 Hawk. P. C, 82, 83, Curw. Ed. It is thus stated in Rippy's case, post. "A real or apparent necessity, brought about by the design, contrivance or fault of the defendant is no excuse." And thus in Adams' case, ante, p. 211 : " The defendant cannot avail himself of necessary self- defence, if the necessity of that defence was brought on by the deUberate and lawless act of the defendant in bantering Bostic to a flght for the purpose of taking his life, or committing a bodily harm upon him, and m which he kUled Bostic by the use of a deadly weapon." So, in Neeley's case, ante, p. 102, the law was held correctly stated in the following instruction : " If * * * the defendant brought on the difficulty by voluntarily re- NECESSITY PKODUCED BY SLAYEE. 321 turning to the vicinity of the deceased, with a deadly weapon, for the pur- pose of provoking a difficulty, [or, as was given in another instruction, for the purpose of having an aflfray,] his plea of self-defence would he of no avail ; and, in that case, it would make no difference who fired the first shot." And the Court add : " 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 affray, and a difficulty did ensue, he cannot, without some proof of a change of conduct or action, excuse the homicide on the ground that the deceased fired the first shot." In Stonecifer's case, 6 Oal., 407, the following instruction was held rightly refused, because it assumed that, the prisoner was novrise in fault, and had no reference to the circumstances which induced the belief of imminent danger : " That if the defendant had reason to believe, and did reaUy believe that he was in imminent danger of losing his life, or of incurring serious bodily harm, and really, in good faith, acting under that belief, kUled Richardson, he was justified." The Court say: "It wiU not do to say that a party may commence an aflfray, and when he is about to suflfer the penalty of his temerity, may take the life of his adversary to avert the danger that threatens Mm." From this ruling it would seem proper, in most cases, to qualify instructions on the law of self-defence, by saying that the accused must have been without fault in bringing upon himself the supposed necessity. In a Georgia case the doctrine is thus stated : " The slayer himself must be faultless ; he must owe no duty to the deceased ; he must be under no obligation of law to make his own safety a secondary object ; otherwise he is answerable to the law of the land, mthout any immunity under the shield of necessity." Haynes v. The State, 17 Ga., 465, 484 — referring, doubtless, to the doctrine of Holmes' case, ^osi!, that the slayer must be equal with the slain in respect of the right to exist. In a late case in the Supreme Court of Missouri, Wagner, J., speaking for the Court, said : " The instructions, which are numerous, taken as a whole, constitute a fair presentation of the law. The fifth given for the prosecution, is the most strenuously opposed in this Court, and that told the jury that the right of self- defence does not include the right of attack, and that a party who seeks and brings on a difficulty cannot avail himself of the doctrine of self-defence in or- der to shield himself from the consequences of killing his adversary, however imminent the danger in which he may have found himself in the progress of the afii-ay. Nor in such case would the father be justified in kiUing the adversary of the son, provided the son had provoked and brought on the conflict in which the son was so placed in imminent danger during the progress thereof ; provided always that the father knew that his son had sought or brought on the difficulty. " There is certainly no law to justify the proposition that a man may be the assailant and bring on an attack, and then claim exemption from the consequence of killing his adversary on the'ground of self-defence. WMle a man may act safely on appearances, and is not Hound to wait until a blow is received, yet he cannot be the aggressor and then shield himself on the assumption that he was defending himself. " So, in defending his family he may not do for them what he would not 222 STOFFEE V. THE STATE. be warranted in doing for himself." — The State v. Linney, 51 Mo., 40. In Vaiden v. Commonwealth, 12 Gratt., 717, Court of Appeals of Vir- ginia, the question how far one's right of defence is compromitted by his own wrong, is considered at some length. As in Adams' case, ante, this question was the one on which the case turned. The conclusions of the Court, as well as the facts on which they are based, sufficiently appear from the following extract from the opinion, delivered by Lee, J. : "The fact of the homicide by the prisoner is not controverted, and the jury by their verdict have ignored the malice, which is necessary to con- stitute murder, and have convicted the prisoner of manslaughter. But it is urged on his behalf, that the killing was clearly in self-defence, and that, upon that ground, he should have been wholly acquitted. " When a man is assaulted in the course of a sudden brawl or quarrel, he may, in some cases, protect himself by slaying the person who assaults him, and excuse himself on the ground of self-defence. Before a party thus assaulted, however, can kill his adversary, he must have retreated as far as he safely could to avoid the assault, until his further going back was prevented by some impediment, or, as far as the fierceness of the assault permitted. He must show the jury that the defence was necessary to pro- tect his own life, or to protect himself against grievous bodily harm. 4 Bla. Com., 184 ; 1 Hale P. C, 481 et seg. ; 1 Russ. on Cr., 661. And with regiiivl to the necessity that will justify the slaying of another, it should seem that the party should not have wrongfully occasioned that necessity ; for a man shall not in any case Justify the killing of another by a pretence of neces- .sity, unless he were without fault in bringing that necessity upon himself. 1 Hawk. P. C, ch. 10, 1 22, p. 82, Curw. Ed. ; 1 Russ. on Cr., 069 ; 1 Hale P. C, 405. " Xow it appears that on the night in question, the deceased was at the house of the prisoner, where a marriage was expected to take place ; and he and the prisoner were drinking and playing cards together. An alter- cation took place between them, growing out of the deceased charging the prisoner with cheating. The wife of the prisoner then took hold of the deceased and reminded him of his promise to have no ' fuss ' there. The deceased assented, immediately bade good night, and went out into the yard. There he remained, however, some Ave minutes, apparently en- raged, cursing and talking loudly. While he was thus engaged, the prisoner took up his gun and walked towards the door, but was induced by his wife's persuasion to set the gun down. After he went out, deceased demanded his gun, which he appears to have left behind him in the house, -and it was handed him through the door by Mrs. Vaiden. Deceased then went away on foot, in company with two other persons, who rode away on horseback, and George Vaiden, son of the prisoner, went with them as far as the drawbars, some two hundred }'ards from the house, for the pur- pose of letting them through. The deceased had been in conversation with George Vaiden, and after the party went through the gap, he continued the conversation wth him, as they both stood together on the outside of the fence, leaning against one of the panels. The night was cloudy, but the moon was at its full, and the figure of a man could be distinguished at a distance of thirty yards. The conversation between the deceased and George Vaiden was of no unfriendly character, and had changed from the events VAIDEN'S case — NECESSITY PEODUOED BY SLAYER. 223 of the evening to a ' fracas,' which the deceased had had at Lunenburg Court-house, of which he was giving George Vaiden the particulars. While thus engaged, and when the prisoner had approached within fifteen feet of where they were standing, the deceased, according to the testimony of George Vaiden, suddenly exclaimed, ' Yonder comes the d d old rascal, and I'U frail him now ; ' jumped over the fence, clubbed his gun about half-way of the barrel, and rushed upon the prisoner, who told him not to approach, or he would shoot him. Deceased, however, did not stop, and the prisoner gave back one or two steps, and when the deceased got within a few feet of liim, fired. The deceased then struck the prisoner two blows -with the breach of his gun, and then staggered back mortally wounded, and died a short time afterward. •' Now, it can scarcely be said that the homicide here occurred in the course of a sudden brawl or quarrel. The altercation had taken place at the house, and the deceased had gone away, to all appearances, peaceably, and had got out into the main road, and here he was standing conversing quietly with George Vaiden, when the prisoner followed him out ; and this must have been between twenty minutes and half an hour after the de- ceased had left the house — ample time, certainly, for the irritation of the first altercation to have subsided. StiU less can it be said, that the defendant was wholly without fault in bringing the necessity of killing the deceased upon himself. If such necessity did in fact exist. After the deceased had gone away, why should the prisoner have followed him mth his gun? Why go out at all ? If it be said that the prisoner may have been afraid his son might receive some harm at the hands of the deceased, the answer is, that there was no ground for any such apprehension. The deceased had no altercation with the son, nor had the latter participated in that which occurred between him and the prisoner. And if it be supposed that the prisoner might have thought that possibly his son might undertake to resent the insult offered to his father by the deceased, and then be brought into a difficulty with the prisoner [deceased], in which he might need his assistance, the prisoner could not but have discovered that any such appre- hension was groundless ; for he must have seen when he went out, and before he was observed by the deceased, that there w;is no quarrel between his son and the deceased, and that they were conversing in a quiet, and not unfriendly manner. He could discover them at a distance of about thirty yards, and yet he advanced to within about fifteen feet of them before he was observed by the prisoner. That he went out with his gun with the expectation of an affray, cannot be doubted, and it is far more probable that his object was to provoke one than to protect his son. In fact, whilst the deceased was still in the yard, and the prisoner's son yet in the house, the prisoner had taken up his gun and gone towards the door, unquestion- ably with a hostile pm-pose towards the deceased ; but had yielded to the persuasion of his wife, and set the gun down. That such must have been his purpose is still further evinced by what he said to the witness, ITates, on the morning after the occurrence, when he informed him that he had kUled the deceased. He added, that ' there was another d d rascal in the neighborhood, who, if he didn't look sharp, would be killed too ; that the deceased was a d d dog, and ought to have been Kdled twenty years ago, and that somebody kad to do it.' And he asked the witness if 224 STOFFEB V. THE STATE. he didn't think so? This was early in the morning, but the prisoner was sober ; and it reflects a strong light upon the true character of the occur- rences of the previous evening, and the motives and conduct of the prisoner. It tends to show that the necessity for slaying the deceased, if such neces- sity lay upon the prisoner, was ot his own seeking, and self-imposed. He made no allusion In this conversation to any peril of his Ufe in which he was placed by the assault made upon him by the prisoner, though he did say that the prisoner had struck him two blows on the head before he shot him. The necessity which seemed at that time to be impressed upon his mind was rather that of ridding the community of one who, although at that moment, lying stiff and cold in death on the ground in a fence comer, and slain by his hand, he stigmatized as a d d dog, that ought to have been killed twenty years before, than of taking his life for the purpose of avoiding imminent danger of death to himself. "Considering the whole conduct of the prisoner on the evening in question, in connection with the state of feeling which he avowedly enter- tained towards the deceased, I think it very difficult to say that he was free from fault upon that occasion, or that his case comes within the rules which render homicide justlftable or excusable on the ground of necessary self-defence. Nay, if the jury had gone further, and found the prisoner guilty of murder, it might be a matter of grave consideration whether the verdict could have been disturbed upon the ground that there was no suffi- cient evidence of malice, which is necessary to constitute the crime. Cer- tainly I am not prepared to say, that this verdict is a plain deviation from right and justice, and that the evidence is clearly insufficient to warrant it. "I think that no sufficient reason is shown for disturbing the verdict of the jury, and am of opinion to affirm the judgment." Allen, P., and Moncure and Samuels, J., concurred. Daniel, J., dissented. He thought the facts proved a case of homicide in self-defence. Another case illustrating the same subject, is found in Roach v. The State, 34 Ga., 78. The defendant was indicted for the murder of Patrick Tye, and found guilty of voluntary manslaughter. Extract from the opinion of the Court, delivered by Lumpkin, Ch. J. : "The motion for a new trial is made on the ground of newly discovered testimony. Applications for anew trial on this ground are not favored by the Courts, and very properly not favored, for if they were favored, litiga- tion would become endless. For this reason, the applicant is held to very strict rules. It is not one of those rules, as stated by counsel, that the evidence, if produced, might produce a diflerent verdict. The rule is might probably produce a different verdict. The minds of men are so differently constituted, that it is impossible to say what might possibly be the effect of certain evidence. We may, however, have some idea as to the probable effect of evidence ; for we are authorized to suppose that evidence will probably have that effect to which it is entitled. Is it probable that this newly discovered evidence would have produced a different verdict? I feel perfectly satisfied in my own mind that this evidence ought not to jyroduce a different verdict; and, therefore, I conclude that it probably would not have produced a different verdict. " To miderstand the weight and effect to which this new testimony is roach's case — KECESSITY PEODUCED BY SLAYER. 225 entitled, we must take it in connection -wdtli the testimony had upon the trial. The new testimony is thus : The witness, John W. Counts, it seems, was standing on the corner of Montgomery and Brian streets, when he heard a row on the opposite side of the street, and on being informed that one of his company was in a row, went immediately over to see what was the matter. On going over, he looked through a window and saw five per- sons in the house. One was Eoach. The other men were Tye, Welcli, and two others unknown to witness. When deponent looked through the window he saw three men scuffling ; they were Roach, Tye and Welch. Welch was between Roach and Tye, and had Roach around the waist shoving him back, and shoved him back until he got him in the comer, and while Welch was shoving Roach back, Tye struck Roach over Welch's shoulder, and then put his hand into his pocket, as if to draw a knife, when Roach stabbed him. This testimony, by itself, makes out a pretty fair case- of self-defence •, but when you connect it with what had happened before the witness looked through the window, it utterly fails to make out any such case. Let us see, then, what had happened previously. Thomas Rooney testifies that Tye, Roach and Welch, were talking about wrestling, run- ning and jumping. After they had talked some time, they went into Welch's, next door, and continued to talk about wrestling, when Roach said that he could get a man that could whip them, or something to that effect. As soon as he rtiade that remark, Tye said that it was a lie. They instantly jumped up — the whole partJ^ Welch got between them, and Roach drew his knife and struck across Welch twice; the first blow missed ; the second, witness thinks, struck Tye, and cut him on the head. Welch then shoved Roach back into the corner, when he stabbed Tye. At the time Tye was struck over the head, he was behind Welch; the positions were the same at the time the stab was given. Roach reached Tye with his knife, who was behind Welch, by shoving it by Welch. Peter C. Cook confirms Rooney in the important fact that Roach drew his knife in the beginning of the diflaculty, and struck twice at Tye, whilst Welch had hold of him, one of the blows taking effect. • Dr. Moony con- firms both of the witnesses by proving other wounds besides those which occasioned death, and which Counts saw from the window. How, then, does the matter stand ? Eoach had drawn his knife and inflicted a blow, if not two blows, before the fact occurred to which Counts testifies. Suppose that either of the two first blows had been fatal, would not Roach have been guilty? Was not the third blow, and which proved fatal, given in obedi- ence to the same mad impulse that prompted the two first ? It is a far- fetched idea to suppose that the third blow was given in self-defence. It Is clear, to my mind, that it was but a continuation of the same murderous assault, with a deadly weapon, to which both the witnesses testify. If, at the moment it was necessary to this self-defence, he brought the necessity upon himself. Suppose I see a man in the act of shooting me, and to save myself, I rush upon him with a deadly weapon, would my attack upon him justify his shooting me ? Would his shooting me be considered an act of self-defence ? Would it not rather be considered as carrying out his original purpose ? True, his shooting me might, at the moment, be neces- sary; butit is a necessitvof his own creation, and cannot avail him as a defence. Such is the casebefore me. Roach had attacked with a deadly 226 STOFFER V. THE STATE. weapon. No apprehension that a deadly weapon would be used to resist him, can justify him in tlie further use of his weapon. Such use must be considered as a carrying out of his original intention. Any other doctrine would give a loose rein to violence and murder. No man can attack another with a deadly weapon without knowing that he puts his life at liazard ; and if this hazard is to justify him, then murder ceases to be a crime. " Tlie motion in arrest of judgment and the motion for a new trial are both overruled." 2. With regard to the reason of the principle thus stated and illustrated, it may be said to be a sort of criminal estoppel. It refers itself directly to the maxim, "No man shaU take advantage of his own wrong." Thus, Mr. Broom says : "A man may not take advantage of his own wrong to gain a favorable interpretation of the \a,yf—justitia legis auxilium gucerit, qui in legem committit. [He seeks the law in vain who oifends against it.] Broom Leg. Max., 255. And thus Lord Hale: ^'^ The party assaulted indeed shall, by favorable interpretation of the law, have the advantage of this necessity, to be interpreted as a flight, to give him the advantage of se de- fendendo, when the necessitj' put upon him by the assailant, makes his flight impossible; but he that first assaulted Iiath done the first wrong, and brought upon himself the necessity, and shall not have advantage of his own wrong, to gain the favorable interpretation of the law that that necessity, which he brought upon himself, sliould, by way of interpretation, be ac- counted a flight, to save himself from the guilt of murder or manslaughter." 1 Hale, P. C, 482. " It is upon the plain principle," said Weight, J., in Neeley's case, ante, p. 102, "that one cannot willingly and knowingly bring upon himself the very necessity which he sets up for his defence." 3. Let us next consider the nature or quality of the act, the doing of which will so far abridge one's right of defence, that, if 'he kill another, although to save himself from death or great bodily harm, he will yet be guilty of a felonious homicide in some of its degrees. This branch of the subject has not, as far as we know, been considered as a distinct topic by any text writer ; nor has it been examined critically in any case which we have seen. Perhaps no general principle can be deduced from the cases. At least we shall not attempt this now, but shall proceed to examine sepa- rately the conclusions of some of them with reference to this point; and as this will involve some repetition, we shall be brief. The doing of the following acts, then, has been held so far to abridge a man's right of defence, that if he thereupon kill another, he cannot be acquitted of all crime ; a. Commencing an assault, attack, or battery upon another. Hill's case, ante, pp. 199, 202, 204. h. Attacldng another with a deadly weapon. Roach v. The State, 34 Ga., 78. u. Going to the place where the person slain is, with a deadly weapon, for the purpose of provoking a difficulty, or with the intent of having an affray. Neeley's case, ante, pp. 96, 102 ; followed in Benham's case, ante, p. 115, 122 ; Vaiden v. Com., 12 Gratt., 717. d. Using provoking language, or, it seems, resorting to any other de- NECESSITY PKODTJCED BY SLAYER. 227 vice, ill order to get another to commence an assault, so as to liave a pretext for talcing his life. Stewart's case, ante, p. 191 ; Adams' case, ante, p. 208. Or in order to have a pretext for inflicting on him bodily harm. Adams' case, ante, p. 208. e. Provoking another for the purpose of bringing him into a quarrel, or so that an affray is commenced. Selfridge's case, ante, p. 24. [This is said in general terms, without reference to the character of the provoca- tion.] But it seems that no words, nor libellous publication, however aggravating, will compromit his right of defence, if in consequence of the same he is attacked ; for no words, of whatever nature, will justify an assault. Selfridge's case, ante, p. 25. But query? f. Agreeing with another to fight him with deadly weapons. Evans' case, post. And see Hill's ease, ante, p. 206. g. It is possible that there may be cases of wrong-doing to which both parties consent, and which are not punishable by law, which may impair •one's right of defence in case he is attacked by the other. Thus, where a saloon-keeper sold a man liquor by the drink, upon which he became intox- icated, and returned late at night and forced his way into the saloon, and endeavored to provolve a difficulty with the proprietor, and made an assault upon him, but witliout weapons ; and thereupon the proprietor shot and killed him, and upon his trial urged that the killing was done in self-de- fence, — Dillon, J., said: "The conduct of the deceased was highly blameworthy. He it was that provoked the difficulty, instigated, doubtless by the liquor which he drank, and to which he became a victim. The only mitigation which his conduct finds, if it finds it at all, is in the fact that he was intoxicated, and in part by liquor sold to him by the defendant. It would not do to hold that a saloon-keeper may sell a man that which steals away his senses, overthrows his judgment and clouds his reason, and then, himself being in no serious danger, shoot him dead because he is unreason- able, insulting and quarrelsome." State v. Decklotts, 19 Iowa, 447. But see Pierce v. Hicks, post. 4. It finally remains to consider of what degree of homicide a person is guilty who provokes the combat or produces the occasion in which he is forced to kill another in his own defence. A full discussion of this question miglit lead us into many nice distinctions, and take us beyond the reasona- ble limits of a note. We shall only advert to two leading distinctions : 1. K he provoked the combat or produced the occasion, in order to have a pretext for killing his adversary or doing him great bodily harm, the killing wUl be murder, no matter to what extremity he may have been re- duced in the combat. 1 Hawk. P. C, p. 87, J18, and p. 97, §26, Ourw. ed.; Hill's ease, ante, pp. 202, 203 ; Stewart's case, ante, p. 191 ; Adams' case, ante, p. 208 ; Evans' case, post. 2. But if he provoked the combat or produced the occasion without any felonious intent — intending, for instance, an ordinary battery merely, the final killing in self-defence wUl be manslaughter only. Adams' case, ante, p. 208. And, 3, we have seen from the principal case, that if he fairly decline the contest, and retreat as far as he can, and then kill his adversary in self- defence, the killing will be excusable. U. AU the books on criminal law contain supposable cases of A. 228 STOPFER V. THE STATE. assaulting B., or of A. and B. meeting in mutual combat, and of A. with- drawing from the combat and retreating, and being pursued by B. to the wall, turning upon B. and liilling him out of mere necessitj' in order to- avoid his own immediate death ; conjecturing whether such killing would be excusable or felonious, and if the latter, what grade of homicide the offence would be. And the difference of opinion among the text writers is as great as it could be ; for wliile some, like Lord Hale and Mr. Bishop, have conjectm-ed that it would be excusable self-defence, others, like Sergeant Hawkins and Mr. East, have thought that it would be murder. And first. Sir Michael Foster, a verj' high authority on the law of homi- cide, after supposing several cases, says : " The cases here put suppose that the first assault was made upon the party who killed in his own defence. But as in case of manslaughter upon sudden provocations, where the parties fight on equal terms, all malice apart, it mattereth not who gave tlie first blow ; so in this case of excusable self-defence, I think the first assault in a sudden aflray, all malice apart, will make no difference, if either party quitteth the combat and retreateth before the mortal wound be given. But if the first assault be upon malice, which must be collected from circum- stances, and the assailant, to give himself some color for putting in execu- tion the wicked purposes of his heart, retreateth, and then turnelh and killeth, this will be murder. If he had killed without retreating, it would undoubtedly have been so ; and the craft of fleeing rather aggravateth than excuseth, as it is a fresh indication of the malitia already mentioned, the heart deliberately bent on mischief." Foster, 277. This language refers to two cases : 1. Where two persons fight upon equal terms, upon sudden heat, and without malice; and, 2, where the original assault was malicious, and the retreat feig-ned. But neither of these is like the principal case ; for here the parties did not fight on equal terms, in heat and mthout malice, but the one made a malicious assault upon the other with a deadly weapon ; but although the original assault was malicious, yet the retreat was not feigned, but in good faith. Foster's conclusion as to what the law would be in case of a feigned retreat, does not differ from what is intimated in the iDrincipal case, and states a doctrine to be found in all the books. 1 Hale P. C, 4S2 ; 2 Whart. Crim. Law, ?1021, 6th ed. ; Hodges v. The State, 15 Ga., 117; Hill's case, ante; Lord Morley's case, Kelyng, 58. Such a device would afford the strongest possible proof of express malice. Hill's case, ante. Mr. East takes a very clear view of the question, though very different from that taken in the principal case. He says : "Neither does it lie in the mouth of a party first making a felonious attack upon another, without any lawful provocation, to urge, even in alleviation, this plea of necessity in self-defence, though perhaps, it existed in tact. For if A., of malice pre- pense, assault B. to kill him, and B. draw his sword in his lawful defence, and attack A. and pursue him, and then A. for his own safety give back and retreat to a wall, and B. still pursuing him with his drawn sword, A. to save his own life kill B., this is murder in A. ; for xV. having attacked and endeavored to kiU B. upon malice in the first instance, he is answerable for all the consequences of which he was the original cause. And the attack and pursuit of B. shall not excuse him ; because it was lawful in B. FELONIOUS ATTACK — EETREAT — PURSUIT. 229 to pursue A. until he was entirely out of danger ; whicli he could not be said to be, so long as A. might renew his attack. A fortiori, the same rule holds, if A. had merely feigned to retreat in order to give himself a color for wreaking his malice against B. It is true, that Lord Hale, in treating upon this subject, puts the case that A. by malice, makes a sudden assault upon B., who strikes again, and pursuing hard upon A., A. retreats to the wall, and in saving his own life, kills B., wliich he supposes would be only self-defence, grounded upon the opinion of Dalton. But the case in Dalton is merely that of a sudden affray ; and in order to reconcile the above pas- sage ■with all the otlier boolcs, and with other passages of the same author, it must be understood, that he is not speaking of a felonious assault \nth malice by A., with intent to kill B. unprepared ; but either such an assault as could no way endanger liim, or, at least, upon mutual combat; and even then, if the first assault were ■with malice, in the legal understanding of the term, the 'opinion desei-ves furtlier consideration, as Violl appear here- -after." 1 East P. C, 278-9. Further on, pp. 283-285, Mr. East criticises Lord Hale's position at length, and with much force of reasoning. This part of his text vrill repay an attentive perusal. He argues that, whereas a person who is feloniously assailed, has a right to pursue his assailant until he finds himself out of all danger, such original assailant can consequently liave no right to tm-n and resist. Concerning this last position, it may be .observed, that some of the American cases, so far from sanctioning this right to pursue, go so fax as to require him wlio is feloniously assailed to retreat, if he safely can, before Idlling. See, for instance, PAmiEE, J., in Selfridge's case, ante, pp. 17-18 ; John Doe's case, ante, p. 62 ; Drum's . case, ante, p. 189. But this does not appear to be the better opinion. See note to Selfridge's case, ante, p. 28, et seq., and note to James D. Kennedy's case, ante, p. 139, where the question is discussed. Also Young's case, post ; State V. Hodges, 15 Ga., 117. In the course of this discussion, Mr. East says, that " it is laid down in many books that If a n^fin assault another upon malice prepensed, and then fly to the wall, and there kill liim in his own defence, he is guilty of murder in respect of his first intent. And he cites 1 Hawk. ch. 29, J 17, and cli. 31, ;?20, [old edition] ; Foster, 276-7, [quoted supra] ; Kelyng 58, 128-9 ; 4 Bla. Com., 185; 2 Ld. Raym., 1491, [Oneby's case]. Hawldns says, ''It is now agreed, that if a man strike another upon malice prepense, and then fly to the wall, and there Icill him in his defence, ■he is guilty of mm-der." 1 Hawk. P. C, p. 87, 1 18, Curw. Ed. The citation which Mr. East makes to p. 128-9 of Kelyng's Reports, we have given in full in the note to James D. Kennedy's case, ante, p. 142. The ■citation to p. 58 of Kelyng, refers to one of the resolutions of the Judges of King's Bench, when they met at Sergeant's Inn, in anticipation of Lord Morley's trial, April 28, 1666. It is as' follows : " If A. hath malice against B., and meeteth liim and striketh him, and then B. draweth at A., and A. flyeth back until he come to a wall, and then kills B., this is murder, not- withstanding his flying to the wall ; for the craft of his flying shall not ex- cuse the malice which he had, nor shall any such device to wreak his malice on another, and think to be excused by law avail him anything, but in such •case the malice is enquirable, and if that be fomid by the jiury, then his flight is so far from excusing the crime that it aggravates it. Crompt. 230 STOFFER V. THE STAl-E. Just., 22 b. ; Fitz. Cor., 287." It is seen that this refers to a feigned retreat, and not to a ^\ithdrawal from the combat in good feith, like the principal case. In considering this subject, we are then brought face to face with a con- flict of doctrine, which may best be stated in the concrete, thus : If Webb, the person slain in the principal case, had the right to pursue Stoffer, then as long as that right continued, Stoifer had no right to turn and resist : and if he resisted and killed Webb, while Webb's right to pursue continued, he was guilty of murder in respect of the intent with which he made the original assault. E converse, the conclusion reached by the Court, that Stoffer was excusable in killing Webb, necessarily carries with it the con- clusion that Webb had no right to pursue, after Stoffer had fairly declined further combat and retreated. By no device of reasoning can this con- clusion be evaded. Stoffer's case, then, may be fairly said to decide that where one is mm-derously assailed, but resists the assailant with such vigor that the latter is forced to fly, the assailed has not the right to pursue, if the assailant fairly notifies him that his retreat is made in good faith. Under what circumstances, then, does the right to pursue exist, and how long does it continue ? It does not exist m cases of mutual combat ; for here the law requires both parties to withdraw from the conflict and desist. This will appeal' from an examination of any of the cases of the preceding Subdivision ; and from the folloTving, taken from a late case in Virginia, which contains the usual statement of the doctrine : The Circuit Judge charged the jiuy, that '■ ^\Tiere death ensues on a sudden provocation or sudden quarrel, without malice prepense, the killin g is manslaughter ; and m order to reduce the killing to self-defence, the Jlerson must prove two things : 1. That before the mortal blow was given, he declined further combat and retreated as far as he could with safety ; and, 2, that he killed the deceased tlirough the necessity of saving his own life, or to save himself from great bodily harm. And this language was approved in the Court of Errors. Dock v. The Commonwealth, 21 Grat.,. 912, 913. It may be added that an apt definition of " mutual combat " is given in a late Georgia case, which has just come to hand. >IcCay, J., said : " We think the Judge was in error in saying there must be mutual blowi in order to constitute a mutual combat. There mu>t be a mutual intent to fight. But we think if this exists, and but one blow be stricken, that the mutual combat exists, even though the first blow kills or disables one of the parties." Tate v. The State, W, Ga.. 1.57, 158. Xor docs the right to pursue exist in a case of non-felonious assault; for here, although the law permits the assailed to use force in his defence, yet it permits the use of no more force than is necessary to accomplish that de- fence. Gallagher's case, /losi, and note. And when the assailant has with- drawn and fled, it is manifest that no more force is neces.sary, unless he is merely retreating to gain a fresh advantage. Leaving out the cases where pursuit may be instituted for the purpose of arrest, a discussion which would be foreign to the purposes of this vol- ume, it may be said in the first place, in the language of the old A\Titers, that the right to pursue in cases of private defence accrues only where a forci- KILLING FELON. 231 ble felony, such as robbery, rape, murder, arson, or burglary, has been at- tempted by violence or surprise. Foster, 273 ; 1 East P. C, 271. And see R. V. Mawgridge, Kelyng, 128, 129; Parsons, Ch. J.,in Selfridge's case, ante; Collins' case, joosi! ; Pond'scase, joosi! ,■ CarroH's case, ^osi; Young's case, post. And foUowing the same language, the right continues until the person assailed " finds himself out of all danger." Foster, 273 ; Collins' case, post. Or, " until he has secured, or freed himself from all danger." 1 East P. C, 272; Parsons, Ch. J., in Selfridge's case, ante, p. 4; Carroll's case, post. Or, " until he may reasonably believe he is secure from danger." Young's case, post. And this brings us to a conclusion, which, although not stated by any text writer, nor in any case which we have seen, yet, nevertheless enforces itself conclusively upon the understanding ; which is, that the right to pursue after a felonious attack or attempt, rests alone upon that law of necessity which constitutes in all cases, and without exception, the basis of the right of private defence. In other words, if it is necessary for the as- sailed to pursue in order to protect himself from a renewal of the felonious attack, he may lawfully pursue ; and his right to pursue continues as long as this necessity continues, and ceases when the necessity ceases. And further, the test of this necessity is the reasonable belief of the person as- sailed. Young's case, joosi!. In other words, and by strict analogy to the doctrine of many cases, he may lawfully pursue as long as the appearances of danger are such as reasonably to make such pursuit seem necessary, in order to save himself from a fresh attack, although such necessity may not, in point of fact, exist. See Shorter's case, post; Logue's case, post, and other cases of that class. And it wouldi also hold true in this case as in others, that whether this necessity which alone can give the right to pursue, existed to the comprehension of a reasonable man, would be a question of fact to be finally resolved by a jury, according to the usual tests of human conduct and experience, Selfridge's case, ante, p. 27 ; Shorter's case, post; Logue's case, ^osi!, and- others. It may not be a digression to state here that the doctrine intimated by Lord Coke — 3 Inst. 56 — that a felon may be kiUed in attempting to commit a felony, without any inevitable cause, does not exist at the present day. If such a ride ever did exist, it may be truly said that in this, as in many oth- er features of the common law, "the rough ages have grown mild." If such a rule existed in Lord Coke's time, it doubtless had its foundation and support in the fact that then all felonies were punishable with death ; and therefore, he who slew a felon in the act of committing a felony was deemed to have been promoting public justice, for he did no more than save the ministers of the law that trouble.. But the larger number of felonies known to the codes of the present day is punishable by imijrison- ment, or by fine and imprisonment only. The reason of so rig-id a rule ha-ving thus in a great measure ceased, the rule itself has also ceased -^v-ith it, and it may now be said without questioning, that in no case may a person resisting the commission of a felony, kill the felon from choice ; but, although he is not required in such eases to give back or retreat, any more than he was in Lord Coke's time, — 3 Inst. 56 — yet he may not lawfully kill the fel- on, if he can prevent the consummation of the felonious intent by other 232 STUi'FEK V. THK STAT£. mean.-, as l)_v arresting or disabling him. or the like, i'onfr.- case, pout; 1 Bish. Cr. Law, ^ 843, n7.5 ; Kex v. Scully. 1 (Jar. and Pay., 319. In other -n-ord-i, the same law of nece.--ity 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- «eution of a felonious attempt had already commenced, — the law — that Ls to -ay, the jurj- under proper in-truetion- — 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 State-, at the present day, according to the doctrine of Mawgridge's ca.se, 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 -ucli pursuit, exists as long a-, the assailant continues thus armed, must be left wth us to be resolved by a jury upon the eircum-tances of each case, and cannot be resolved by a bench of judges as in England, upon a .special verdict, or where a trial take- place in the House of Peers. Directing our attention, then, to those principles which should be ex- pounded to ajur}% in order to enable tliem to determine whether such a neces. .sity as the law can recognize exists, for pursuing one who has attempted a fel- ony upon the ])erson or proijerty of another, we may obsen'e 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 muit have jila inly commenced. 1 Bish. Cr. Law, |§ 7.32. 702. 7tU. h43. 874. It will not be -ufficient that the person who entertains such felonious design is, preparing to execute it. Or. as was happily said by CowEX, J., in McLeod"s case, post, the threatened danger must not exist in maibination only. Or. to use expressions which are generally emjjloyed in ca-e- of personal defence, the danger must be imminent to the comprehension of a reasonable man. ■■'horter's case. ^&si; Sullivan's case. «/;<«. The appear- ance- mu.st be such as to convince a reasonable man that the threatened ealamityis then about to fall. Logue".- ea-e. post; Pond"s case, post; Campbell's ca^c. post ; and others. And a large number of ca-e- hold that nothing short of some otert act on the part of the assailant will constitute such appearances. S'Xitt".- case, anie ,• Dy-un's ca-e. pout: Head's ease. poit ; Lander"^ <:a-f. post ; Williams' case, po.it. It is true that there are some cases in Kentucky which ili-pute this principle in cases where a man lia.s already escaped from a— as-ination. PhiUp'- ca-e. post ; iVarico's case. post; Young's ea-e, />o.s^; Bohannou's case. ^osf. And there are others that -rate tliat no general rule can be laid down upon the subject. Cotton's ca.-i-. poit ; Ilubt. Jack-on's case, post ; Patten's case. post. I'he more rea-on- able rule would seem to be, that certainty in point of fact, ratherthan imme- diatene-s in point of time, should be the te-t of the right to -triki- in one'.s deteiiee. But the principli- that the person having the felonioas design mu -* be rfoJK. f/ something at the tune indicating a present intention of car- ryin^f his d'-i;fri into effect, has i)i,-en undoubtedly the law ever >ince Lord Hale's time. 1 Hale, P. C, o2: 1 Bi-h. Cr. Law, 5i843, 872; note to Crainger's ease, post. KILLING AFTER EETEEAT — KEDDING EVANS' CASE. 233 If, therefore, the right to strilie in one's defence does not accrue «ntil the danger is, to all reasonable appearances, immediate and impending, it is manifest tliat it must cease wlien the danger, to all reasonable appear- ances, ceases to be immediate and impending. We are thus brought to the conclusion that wliere a person has been feloniously assailed, and the felon has desisted from his attempt and taken to flight, the right to pursue for the jnirpose 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 tliis volume, the right to talce life in sucli piu-suit, ft)r the purpose of arrest, does not exist, unless a felony has actually been consummated. Rutherford's case, post ; Eoane'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 with Smith's wife in Smith's pres- ence. He had also threatened, on several occasions, tliat he would Idll .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 lived but a few minutes, before Evans also came; and as Evans approached the house. Smith fired at him with a single-barreled shot-gun, and wounded iiim 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 Icilled 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 killing 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, Jenicins, 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 justifi- cation rests upon the alleged necessity imposed upon the plaintiff" in error to kiU the deceased, in order to save his own life. If this necessity appear from the evidence, the verdict should have been set aside and a new trial ordered. But if, on the contrary, it appear that the slayer was in no immi- nent danger when he inflicted the mortal wound ; that the deceased had either made no assault on him, or had ceased from it and was retiring, it would be difflcidt to make out a case of self-defence. " This defence rests mainly upon the fact that the deceased fired upon and wounded the plaintiff in error with a shot-gun. It is not very apparent ftom the evidence, whether this shot was made whilst the plaintifl" in error 234 STOITER V. THE STATE. was in the act of drawing liis pistol, or before he attempted to do so. But in the doubt attaching to this point, justice to the accused may entitle him to the assumption that the deceased leveled his gun and was in the act of firing, before the plaintiif in error drew, or attempted to draw, his pistol. This places the deceased in the position of assailant ; but does it make out the defence ? The evidence does not show either that the deceased contin- ued the assault, or that he had the means of continuing a dangerous assault. " The witnesses say he had a shot gun, but do not say it was a double barreled gun, or that the deceased had any other weapon, or was reloading,, or was continuing to advauce upon the deceased. On the contrary, twfr witnesses state distinctly that the accused shot four or five times at the de- ceased, inflicting as many wounds, and that while hff was so shooting, the deceased was walking away from him. "The testimony is that deceased had only a single-barreled shot gun, and after having delivered his fire, was powerless in the presence of a foe armed vfith a revolver. The jury were abundantly justified in drawing this- inference from the evidence ; and then the question would arise, did the accused inflict those four or five wounds upon the deceased, under excite- ment of reasonable fear for his personal safety, or was he prompted by a sudden, violent impulse of passion occasioned by the assault then done and ended. The verdict evinces that they arrived at the latter conclusion, and in view of the seventh, thirteenth and fifteenth sections of the fourth div- ision of the Penal Code, we perceive in this finding no error of law or of fact. We sustain this verdict upon this ground, that even immediately after an assault endangering life or limb, the killing of the assailant hy the as- sailed will be manslaughter, if it be apparent that the assault, and with it the personal danger of the assailed, had ended, and that the mortal wound was. inflieted as the assailant had ceased from the attempt and was retreating. " According to the doctrine of this case, if Webb had killed Stoflfer in the pursuit, it would have been manslaughter. It follows, therefore, that Webb had no right to pursue, either for the purpose of defence or retalia- tion, although he might, perhaps, have done so for the purpose of arrest ; and, having done so, and manifestly for the purpose of retaliation, that Stoffer might lawfully resist and kill, if necessary to his defence ; for the final necessity was of Webb's, and not of Stoffer's creating. The case of Hodges v. the State, 15 Ga., 117, affords a fair example of a retreat made to gain a fresh advantage, and, as illustrating the rule that in such cases the other combatant tnay follow up such retreat and strike, in order to secure himself from a renewal of the attack. The indictment was for stabbing, under the Georgia statute. The facts and conclusions of the Court will sufficiently appear from the following extract from the opinion delivered by LnrPKix. J. " Is it true, as assumed, that Holt was retreating all the time from Hodges'? And that the latter took advantage of the accidental fall of his adversary, to inflict upon him the injury which he did ? Let us advert, for a moment, to a portion of the testimony : Thomas Aj'ers, who testified on the part of the State, says, that he saw the combattants retire to talk together. Soon words grew loud between them. Holt slapped his hands together, and struck Hodges. Hodges then dropped his hand on his thigh RUNNING yiGHT — HODGES' CASE. 235- and drew his knife ; Holt broke and run, and Hodges after him ; Holt got his knife out, and turned and cut Hodges, and then struck him with a piece of rail, and run again ; Hodges pursued Holt, when Holt fell, and he cut him ; Holt struck and cut Hodges, before Hodges cut ; Hodges received a considerable cut on the arm, and had a bruise on his face where Holt struck him. Sampson Cason was next examined on the part of the State : Holt and Hodges retired to talk ; they soon became loud and angry ; heard Holt say ; ' Hodges, this is an infernal lie ;' Hodges retorted back the d — d lie ; he saw him run backwards with his hat off, and a scratch on his fixce ; he drew his knife and put at Holt ; Holt drew his knife and wheeled about ; witness' father said, ' Stop that, boys ; ' Hodges desisted ; Holt ran twentj' or twenty-flve yards ; got a rail off the fence, and returned upon Hodges ; Hodges threatened to kill him, if he struck him with the rail ; Holt aimed a blow -with it, but missed Hodges, it being fended off by Hodges, or old Mr. Cason ; the rail struck the ground and was pulled out of Holt's hand ; he ran again fom' or five steps and fell, and Hodges cut him ; witness' father requested Hodges to stop, which he did ; Holt got up, ran a few steps, and picked up a limb, and coming back, said he could whip Hodges ; Hodges refused to fight him a fair fight, confessing, as he did at the begin- ning of the quarrel, that he was unable to do so ; but said, as they had commenced with knives, they must continue with them, or di-op it alto- gether. It all occured instantaneously. Counsel for defendant offered to prove by this witness that immediately after Holt arose, when he was cut, he seized a gun, and swore he would kill Hodges ; and that this was done twice; and that he was prevented by the bystanders from carrying his threat into execution. " I have only extracted a portion of the proof offered in support of tke prosecution ; but it is sufficient to show that this was anything but a retreat on the part of Holt. If so, why did he turn upon Hodges, after succeed- ing in getting out his knife, aiKl wound him in the arm ? Why, after he- fled the second time, and Hodges discontinued the pursuit, by the request of old Mr. Cason, did he gather up a fence-rail, and returning, aim a deadly blow at his foe? Does not the whole testimony establish that this was a running fight between the parties ? And that whenever Holt got the advantage, he exhibited a perfect TOllingness to renew the rencounter? At any rate, should not the transactions have been left to the jury, to be by them considered in this light ? If such was its true character — and it seems to us that no one can, from the evidence in the record, doubt it — then, un- questionably, Hodges was not compelled to wait until Holt could reassail him, hut in the exercise of a wise precaution, he might anticipate tke attack of Holt, by striking him at any tim,e during the fight. "Hence the propriety and importance of letting in the testimony which was offered and rejected as to the after conduct of Holt. His seizing the- gun and threatening, I might be warranted in saying, attempting to Sake the life of Hodges, was a part of the res gestce, and demonstrated the quo animo with which he kept up the engagement. "And hence, too, the propriety and importance of proving the physical inequality between the parties. Indeed, the justiflcation of Hodges must depend, to some degree, at least, upon his bodily inferiority, which forbade the possibility of his encountering Holt upon equal terms. We hold, con- 336 STOFFEB V. THE STATE. sequently, that it was error in the judge to withhold this evidence from the jury." As before intimated, the discussions carried on by the text writers with regard to the question determined in the principal case, are merely conjectures as to what the law should be, should such a contingency hap- pen. And although in one well considered case, — Hill's case, ante — ^the conclusion of Sergeant Hawkins on the subject is quoted and approved ; yet the circumstances of that case do not appear to have called for any ex- pression of opinion on the point ; for the slayer did not retreat, or attempt to retreat in that case, but it was a continuous combat from the first attack until the final kUling. We state, though not wth entire confidence, that StofTer's case is the only case to be found in the books, where the three things concur necessary to an authoritative decision of the point in question : that is to say, where, (1), the slayer made a, felonious assault upon the slain ; and, (2), repented, declined further combat and fairly retreated to the wall; and, (3), being pursued to the wall, and there in turn assaUed by the slain, did kill him out of necessity, and to avoid his own immediate death or great bodily harm. And it is from the analogy of cases where the combat was continuous, that it finds its chief support. The case of Hittner v. The State, 19 Ind., 48, is, however, similar in Bome of its features. It differs from the principal case in this, that the -original assault does not appear to have been felonious ; and if the de- fendant was indeed " at the wall " when he did the killing, it does not appear whether he had retreated there, or had been driven there. But it was a case in which the Court thought that the accused had a right to the benefit of his supposed retreat, in the Instructions given to the jury. The ■defendant was indicted for murder in the first degree, and convicted of manslaughter. He appealed to the Supreme Court. In delivering the opinion of the Court, Haxxa, J. , said : " The exception above indicated, arises on that part of the instruction which relates to the law of self-defence. The charge given wa=, that 'if the parties quarrelled and got into an unpremeditated fight, and in the course of that fight the defendant, without any previous malice, in the sudden heat of the contest, pulled out his knife, and stabbed the deceased, that would be manslaughter, and, in such a case as that, in the absence of malice, it would make no difference who gave the first blow. The doctrine of self-defence must be considered with reference to the condition of the parties at the' time. If the defendant was unlawfully attacked by the ■deceased, then he might resist, and lawfully kill the d<;ceased, in necessary self-defence, if he had reason to believe, and did believe, it was necessary to kill to save his own life, or to avoid considerable personal harm; but if the defendant himself made the unlawful attack, or if there was a fight upon a sudden quarrel, then the defendant, if he killed the deceased, could not escape on the plea of self-defence. He would be guilty of man- slaughter at any rate, and might be guilty of murder, if the facts indicated malice.' "The defendant objects to the latter part of the charge, and insists that it is not only not good law, but that it prejudiced his defence. This latter part of the charge, when considered in connection with the former part of the same, appears to be susceptible of this construction only, viz. : HITTNEE'S case — KILLING AFTER EETEEAT. 237 That the defendant would be guilty of manslaughter, if, in the absence of malice, he killed the deceased iu a light in which, lirst, he, the defendant, was the assailant ; or, secondly, in a fight arising out of sudden heat, in which he did not strike the first blow. " But one witness testified as to the commencement of the fight, in which the fiital blow was given. Several others testified in reference to its progress and termination. The witness who saw the whole transaction differed in his statements from those who saw a part only, as to that part, in this : Those who saw the latter part only, stated that the deceased had the- defendant against a fence by the side of the highway, kicking him. The other stated, that the whole transaction took place in the public highway, where the defendant pulled the deceased off his horse, whereupon the de- ceased struclc him, and received the fatal stab. If the evidence of those who saw the latter part of the transaction only should prevail, the jury might have inferred that the defendant had retreated, or been pushed to the wall — that is, to the fence — and then, with a pocket-knife, gave the blow which proved fatal. " Whether he had or had not, a legal right to strike that blow, depended, in the opinion of the Court, upon a question of fact, namely : Were tliey fighting upon a sudden heat ? or, was the defendant origiually the assailant ? If either question should be answered in the affirmative, then the defendant had no such legal right, althoug-h he was thus pushed, according to the instructions given. The instructions asked were based upon the idea that if, at the time of the killing, the defendant had reasonable ground for belief that such act was necess.ary to save his own life, or prevent grievous bodily harm, he might so act. The origin of the fight is not noticed. "If A., a man of much strength, should, upon the spur of the moment, strike B., a weak man, and following up his advantage, should, in the commission of grievous bodily harm, receive a fatal, but unpremeditated blow, should B. receive the penalty of manslaughter? So, if in a like case, B. should strike a blow with his hand, and A., overstepping the bounds of mere defence, should proceed to commit such harm' as should make it necessary for B. to strike with a weapon to save his life, would he be guilty of manslaughter in thus slaying A. ? '' One ought not to have brought upon himself the necessity which he sets up in his own defence. 1 Hawk. P. C, p. 82, ? 33, Curw. ed.; Vaiden v. Commonwealth, 12 Graft., 717 ; Haynes v. the State, 17' Ga., 465. Or, if he has brought it on, he must put into actual exercise the duty of with- drawing from the place, that is, retreating to the wall, before he would be justified in striking the fatal blow. Poster, 277 ; The State v. HiU, 4 Dev. & Batt., 491, lantel ; The State v. Howell, 9 Ired., 485. And this falling back to "the wall" must be in good faith, a retreat or flight, and not a ■ mere design to protect himself under the shield of the law. 1 Hale, P. C, 479,480; 2 Bish. Grim. Law, 565, 1st ed." In view of these authorities, the ruling of the Court appears to have been correct in refusing the instructions asked ; but it was wrong upon the latter part of the instruction given, in view of the evidence in the case. It was not right to say to the jury, without qualification, that-Lf the defendant made an unlawful attack, or got into a fight with the deceased, upon a sud- 238 GKAIWGER V. THE STATE. den heat, and slew him in the controversy, ' he would he giiUt.v of man- slaughter at any rate.' " The qualification of the charge, which we thinlc should have been made, should have been directed to meet the settled principle of law above quoted^ namely : giving the accused, under such circumstances, the benefit of his retreat, flight, or withdrawal from the contest, if the jury believed, from the evidence, that such was the fact, although he might have been the aggressor in the first instance. "As tWs instruction may have misled the jury in determining the value of the evidence given, the judgment is reversed." —ACTING UPON APPEARANCES OF DANGER; AND HEREIN OF THE IMMINENCE OF THE DANGER; OF PREVIOUS THREATS MADE BY THE ANTAGONIST, AND ALSO OF THE CHARACTER OF THE ANTAGONIST FOR VIOLENCE. GRAINGER v. THE STATE. [5 Yeeger, 459.] Siupreme Court of Tennessee, March Term, 1830. JoHif Catron, Cliief Justice. Robert Whtte, ) Jacob Peck, > Judges. Nathan Green, ) Killing through fear, alarm or cowardice, where the danger i« UNREAL. 1. K 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, mhfin.'] STATEMENT OF THE FACTS. 239 2. If a man is in great danger of bodily harm, or thinks himself so, and kill another, it will be a lulling 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 murder of Broach ; was tried, convicted, and moved for a new trial 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 Norwood'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 driiik 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 Mm 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 GEAINGEK V. THE STATE. violent blow on the "breast. Grainger turned Ms horee suddenly away, and rode a short distance apart from Broach, saying to witness Hanson, " 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, about forty yards from the house. Grainger threw his leg ove,r his horse's neck, and lighted on the ground, turned his horse to the fence, when Hensqn 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 him, 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, because 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 THEOUGH FEAE OE COWAEDICE. 241 " You carry your gun to defend yourself." Grainger replied, " I do not." Cateon, Ch. J., delivered the opinion of the Court : The bill of exceptions shows, that much stress, on the trial, was laid iipon 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 open the door. From 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 28 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 GRAINGEE V. THE STATE. believed. He behaved like a timid, cowardly man, was mucli alarmed, ip imminent danger of a violent and instant assault and battery, and was cut off ' 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 Grainger 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 Coiu-t 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 shared, and to it he contributed. His are perhaps the most valuable, and exhibit the most thorough command of tlie art of reporting, (now fast be- coming one of the lost arts), of any of the Tennessee reports, except, per- haps, the singl© volume reported by Mr. Meigs. In Tennessee, the office of reporter is flUed by the Attorney-General : and in this latter capacity, it was the duty of Mr. Yerger to argue aU State eases brought into the Supreme Court — a duty which he seldom delegated, and never failed to perform with ability. He was not only an able lavs-yer, 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, ^os<, which is similar in terms to the first a Old edition. CKITICESKD BY 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 Kentucky cases of Philips, Carico and Bohannon, post, can be understood as having such 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"- case, post, is undoubtedly the law, yet in the same 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 the 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 Tennessee case— Robert .Jackson v. The State, post — 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 thus 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 ease, "that this decision 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." So, in Shorter's case, post, Bkonson, J., referring to the prin- cipal case, said : "This was, I think, going too far. It is not enough that the partj^ 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, Whbblee, 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 sufficiently 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 case 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 maUce 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 vsritten 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, 23 Ga.,75.84. 244 GEAINGER V. THE STATE. In California, ttie question arose upon the refusal of the Judge who 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 seriou^i bodily harm, and really in good faith, acting under that belief, killed Rich- ardson, he was justified." Murray, Ch. J., said — Heydenfeldt and Tekry, JJ., concurring: " This instruction is bad, becaase it assumes tliat the prisoner was no wise in fault, and has no reference to the circumstances which induced the 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 i or 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, 6 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, .T., — Terry, Ch. J.. concurring— as follows : " The fourth and fifth 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 bodUy harm was about to be inflicted on him by the deceased, they must find the defendant not guilty. The in- struction was properly refused, because it makes the 'impression' of the defendant the justification of the act, whether that impression was sutficient to excite the fears of a reasonable person or not. This was contrary to th(.' thirtieth section of the act. Wood's Digest, p. 332, [Comp. Laws of Cal.. 1853, p. 642, 5 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 cases. But a reasonable fear and actual belief arc not sufficient in all cases. The statute saj's, 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 ^ith the intent to commit a felony, then the reasonable fear and actual belief would justify the killing. J 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 wiU be necessary to set out the three sections referred to. They are as follows : " ? 29. Justifiable homicide is the killing of a human being in necessary 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 agauist 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 •" J 30. A bare fear of any of those offences, to prevent which the homi- uide is alleged to have been committed, sliall not be sufficient to justify the killing. It must appear tliat the circumstances were sufficient to excite the 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. '■ § 31. If a person 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 prevent 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 felony, is not only in itself absurd, but it effect- ually takes away the right of defence which the statute was intended to secure. Besides, 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 we depart from the plain and simple rule declared in numerous American -cases, that if the appearances are such as would convince a man of ordinary 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 otherwise escape the danger apparently impending ; and that it i< for the jury to determine whether such appearances existed; when we depart from this simple rule, we are all at sea, and the riarht 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 any fixed rule upon the subject should , be attempted. Thus, in Patten's case, post, we find the following language u=ed by Cheistiaxcy, J. : "A correct idea of excusable homicide is not perliaps easily expressed by a brief abstract definition, without special ref- erence to 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 tacts which may render homicide excus- able." So, Fisher, J., in Cotton's case, joos;!, after stating a hyjjothetical case, says: "It maybe 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 peculiar circumstances of the case, must bring his defence in order to be successful. Whether 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 246 GKAIJNGEK V. THE STATE. of the wise. This is the ouly general rule which a Court can, with auy safety, lay down upon the subject. The jury 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 conclusio]i 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 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 diflScult to lay down ii rule strictly governing aU cases, the circumstances of the ca.ses differ 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 eucli particular case. Cases may be readily supposed, and no doubt in reality often occur, where, to require a defendant to w'ait until his adversary actu- ally 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 pur- pose of the party is so fixed and determined, his character so reckless and bloody, his use of deadly weapons so expert and skUlful, 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 cases might occur 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 eases; but they are used to show that the overt act spoken of is a question depending 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.' " 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 killed, or of receivuig 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 tlie qiiestion 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 regai'd to the threats of the deceased made against defendant ; and, in fact, should consider every circumstance con- nected with the unfortunate altercation wliich ended in Eddy's death."' The Supreme Court, Sandekson J., deli\ering the opinion, said : " This Instruction was properly refused for two reasons ; First, the rule upon the subject to which it was addressed, had already been stated by the- Court in the precise language of the statute, which it is difficult to improve oladdbn's case. 247 (Act Concerning Crimes, ^§ 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- ficient to excite them, the test of justification; and that, too, unaccompa- nied by the further and indispensable qualitication that he acted under the 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 tliat an assault was made upon her, by the de- ceased, under circumstances denoting an intention to take away her Ufe or do her great bodily harm, and under that belief, at the time, she killed him, the kiUing 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 making the mere belief of the accused that his hfe is threatened, a sufii- cient ground for taking the Ufe of another. The Court below gave a cor- rect exposition of the law in stating to the jury ' 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 kilUng was excusable homicide.' 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., deUvering the opinion of the Court, 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 a justifiable kilhng, and you 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 certainly 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 oflF 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 when 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 mvist be reasonable ground to apprehend a design to take away Ufe, or to do great bodily harm, and reas- onable ground for believing the danger imminent tliat such design wiU be accomplished then." '■248 GKALNGER V. THE STATE. In a case in Missouri, the following 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. K., 154, the prisoner was indicted with one Nesbitt, for the murder of Timothy Shea, on the 28th of Septem- ber. 1848, by firing a pistol at him. Trial was had in the New York Oyer and Terminer, before Edmoxds, 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, vnih three of his companions, sallied out into the streets on a frolic, and after visiting five or six drinking houses, 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 brothers and a sailor, were engaged in earou.sing. 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 in\'itations, 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, rile other defendant, Nesbitt, followed him into the basement, and at- tempted to fasten the door open. A row then began, a conflict, in the <'0urse of which Xcsbitt fled from the room, and the brother of the deceased threw a tumbler and pitcher at Austin, and struck him a severe blow on tlie forehead with a decanter. Austin retreated from the basement; he was followed by the sailor, and struck a blow ^\•ith a chair. About this time, but whether before or aft<'r th(; blow with the chair, was not ascer- tained, some one fired, twice into the bas(,onent, 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 through which Austui had retreated, and who died almost immediately. After the tiring, the prisoner retreated towards the police station-house, distant about one hundred feet from the scene of the affray, and on the way over which he had passed, the pistol was afterwards found. He was severely wounded, and did not recover for some weeks. I). Graham, for the prisoner, made (among others) the foUomng point: "If the defendant, though in no great danger of serious boddy harm, through fear, alarm or cowardice, discharged the jiistol at the decteased, or into the basement, under the impression tliat great bodily hijury was about to bo inflicted upon him, it is not an ofiencc." But Edmonds, J., in charging the jury, said: " The homicide woidd be justifiable under our law, only in case it was committed by the prisoner ^^■hen there was reasonable ground to apprehend a design to do him some great personal injury, and there was imminent danger of such design being accomplislied. But of this, the jury were to be the judges, not the prisoner, and it was for tliiMn to say, from all the cir- cumstances proved before them, whether there was reasonable ground for bkyson's case. 249 «uch apprehension, and whether there was, at the moment the fatal shot was tired, immhient 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 sufficient 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 offered 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 G-ash 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 subject 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 will 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, hut what these ought to have been, when measured by a standard derived from observation of men of ordinary firmness and reflection. This is what 1-i called reasonable ground of behef, aud 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 of 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 killing 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 diffei-ent from what it was. Ryland, J., sppaking for the Court, said: 250 GRAINGEK 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 thinli 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 !^ome felonious act. This evidence must be gauged by the de- fendant's opportunities at the time ; and if he have reasonable grounds to believe a felony intended, it malves no matter that such was not reasonably the case. Thus, if a man assaults anotlier with a pistol in such a manner as to produce the belief that he is about to talie life, it makes no matter whether the pistol be loaded or not (Whart. 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 Idll- ing the assailant wiU be excusable homicide, although it should afterwards appear that no felony was intended. ^V'ha^ton 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 gestae, 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, ner^'ous 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 sa}' that a child or imbecile person would not have much greater reason to apprehend a felonious assault from an incensed lunatic, who was starting towards him «-ith the appearance of an assailant, than would the lunatic from the attack of the imbecile or child. And if we admit a dis- tinction in this case, it would be difficult to refuse to receive evidence 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 verj' 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 the case, and not the party kill- 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. \_Anie, 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 ot the defendant, that by reason of his weak and crippled condition of body, he was rendered 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' case, post; NEKVOUlS FEARS — VIEWH OF BR. WHARTON. 251 Oliver's case, post ; McLeod's case, post. And if any doubt could remain, in view of the cases 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 malce that justification clear, it would seem to be resolved in Harris' case, post, where the Court say : " The i^risoner 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 Ais 6eKe/ that justifies him. The law is not so. It is only from 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. Wharton, and may have meant to decide nothing more than that the jury are in all oases to be the judges of the apparent necessity under which the slayer acted, where it is alleged that the kOling 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 Irequently 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 voluntarily and conscientiously unreal, j'et 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 Irish and Native American riots, killed an innocent person, under the alleged belief that she was one of a party seeking his life, the defence was permitted to set up the extreme nervous excitement and tension, producing a belief in a con- stant conspiracy to take his life. ITlavel's case, MSS. This does not differ much from Levett's case, already quoted." Whart. Crim. Law, 6th edition, 11027. 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 vrife 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 show that he actect 252 GEAINGEK V. THE STATE. under hallucinations or morbid fears, superinduced by some peculiar nerv- ous tension, or other 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- frequentl}' -happens that burglars in such cases, kill the inmates of the house in order to effect their escape. Courts and juries will not hold a person who unfortunately kUls another, under such circumstances, to a nice degree of accountability. With regard to Flavel'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 Shoultz's case, supra ; and also the ruling made in The State \ . Anderson, 4 iSTevada, 265, 275. In this last cii<^e. 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 difBeulties or quarrels v\-ith other persons than the deceased. Beatty, Ch. J., delivering the opinion of the Supreme Court, 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 kUling Slocum." Dr. Wharton cites Logue's case, post, as being 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 He apprehension of los^ of life or great bodily harm, and the danger must appear so imminent at the moment of the as-ault, as to present no alterna- tive of escaping its consequences but by resistance. Then the kUling may be excusable, even if it turn out afterwards that there was no actual danger." Dr. Wliarton concludes his observations on this point bj- quoting the language of Baron P.^kke. in Peg. v. Thurborn, 1 Den. C.C., 368-9. that '• the rule of law founded in justice and reason is, that actus non facit rcMm, 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,jDosi!, and it is there said that Mr. Bishop has expressed the same rule very clearly by declaring that " in all cases where & 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, he is legally, as he is morally, innocent. 1 Bish. Cr. Law, 1 242." [5th ed. 1 303.] And the Court 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 Although the above language of Baron Parke was used in a case of larceny, SYLLABUS, 253 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 facit 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 futiu-e. CREEK V. THE STATE. [24 IwD., 151.] Supreme Court of Indiana, May Term, 1866. John T. Elliott, ^ James S. Frazer, Robert C. Gregory, Charles A. Ray, Judges. Thbeatening actions — Manslaughter dbfinbd — RbasonabIjE 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. 'f. To justify the killing of another on the ground of fear of great bodily harm, there must be reasonable cause for such fear, and it 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 CEEEK V. THE STATE. flrmities of human nature, nevertheless requires of sane men the exerci?e of a mastery over their fears, as well as their passions. Appeal from tlie Fayette Circuit Court. Fkazee, J., delivered the opinion of the Court. This was an indictment for murder in the second de- gree. There was a conviction for manslaughter. The Court instructed the jurj- 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 is 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 — KEASONABLE FEARS. 265 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 slow 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 SHORTER V. THE PEOPLE. doctrine urged hy the appellant's counsel. "We believe it has met the approval of the Supreme Court of Tennes- see only. Shorter v. 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 New TorJc, May Term, ISlfS. Freeborn^ G. Jewett, ' Greene C. Bronson, Charles H. Ruggles, Addison Gardiner, Samuel Joistes, William B. Wright, Thomas A. Johnson, Charles Gray, Judges. Justices of tJie Su- preme Court and ex-officio Judges. Rbasonablt? fear of death or great bodily harm excuses thb SLAYER — Mutual combat — Killing with dangerous weapon — Ik- relevant INSTRUCTION, THOUGH ERRONEOUS, NO GROUND OF REVER- ■ SAL. 1. One who is without fault himself, when attacked by another, may kill his assailant, if the circumstances be such as to furnish reasonable* ground for apprehending a design to take awaj' his life or do him some great bodily harm, 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, J 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 naked 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. STATEMEJ^IT OF THE FACTS. 257 the blowwith a dangerous weapon. After a conflict has commenced, he must quit it, if he can do so in safety before he Ifills 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 retreats 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, ^s< ; Evans' case, post; Shippey's case,.a« Ante, p. 130. 1 Fosi. 264 SHOETEE V. THE PEOPLE. not intended by the revisers, for they said in their notes, that the provision was '' according to the views of most ■of the writers on the subject, and the express decisions in Massachusetts and New Jersey." Those writers and decisions have already been noticed. As I read the statute, it affirms the rule of the common law. The words are, homicide in self-defence is justifiable " 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 such design being accomplished." 2 K. S., 660, §3, sub. 2. The words " imminent danger " in the last branch of the olause, do not mean, as the argument for the prisoner assumes, that there must in fact be an impending evil which is ready to fall ; but only that there is a threat- ened evil, or one which appears as if it were ready to fall. There must be reasonable ground to apprehend a wicked design and apparent danger, that such design will be accomplished. It is enough, by the express words of the statute, that there is reasonable ground to apprehend a wicked design ; and it is absurd to suppose that such a provision was immediately followed by another, that the danger of the apprehended design being accomplished must be actual, and not merely ap- parent. Such a construction would makp the latter part ■of the clause nullify the first ; for if there must be actual danger that the design wiU be accomplished, there must of necessity be an actual design to be accomplished. Although I cannot concur in the law of that part of the charge to which exception was taken on the trial, it ■does not necessarily follow that we must reverse the judgment. The evidence did not make a case for laying down the law of justifiable homicide ; and an error of the Court concerning an abstract proposition, having nothing to do with the matter in hand, is not a sufficient ground for reversing a judgment. If every controverted fact mentioned in the bill of exceptions is taken in favor of the prisoner, the best case which he can possibly make will be substantially as follows: There was a EEEONEOUS CHARGE NO GROUND FOR NEW TRIAL. 265 sudden combat between the parties in the night, in which the deceased gave the first blow ; but the prisoner entered readily into the fight. The deceased had no weapon, and gave blows with his naked hands or fists, while the prisoner struck with a knife, inflicting not less than nine wounds, one or more of which were mortal. After several blows had passed, the deceased hallooed, '" he has got a knife," and retreated towards the middle •of the street. The prisoner followed, and continued to give blows ; the deceased at the same time either giving blows or defending himself against those given by the prisoner. The prisoner did not leave the sidewalk. "When the deceased got to the middle of the road, he •cried out, " Oh, boys," fell, and died in a few minutes. 'The prisoner did nothing to shun the combat, nor did he show any disposition to stop the fight after it had com- menced. Although one witness thought the deceased had the best of the fight at first, no important advantage was gained over the prisoner ; he was neither knocked down, nor seriously injured, nor was he in any danger of life or limb. He followed when the deceased tried to escape, still giving blows with a deadly weapon tintil very near the moment when the deceased fell down and expired. This is the most favorable statement of the case for the prisoner which can be drawn from the facts detailed in the bill of exceptions ; and much more favor- able than any intelligent jury would draw from the whole of the evidence. But taking the case as I have stated it, there is no color for calling it justifiable homi- €ide, or for leaving any such question to the jury. If it was not murder, it was manslaughter at the least ; and so far as relates to these off'ences, no exception was taken to the charge. When a man is struck with the naked hand, and has no reason to apprehend a design to do him any great bodily harm, he must not return the blow with a dangerous weapon. After a confiict has com- menced he must quit it, if he can do so in safety, before he kills his adversary ; and I hardly need add, that if his adversary try to escape, he must not pur- 266 SHORTER V. THE PEOPLE. sue, and give him fatal blows with a deadly weapon. As there was no question of justiliable homicide in the case, the prisoner had no right to call on the Court to instruct the jury on that subject; and, although the in- struction given was wrong in point of law, I do not see how it can possibly have operated to the prejudice of the prisoner. As this is a criminal and a capital case, I cannot but feel a strong disposition to give the prisoner a new trial. But the law concerning bills of exceptions, is the same in criminal as it is in civil cases; The People V. Wiley, 3 Hill, 194, 214 ; and, we must not allow our feelings to draw us into the making up of a bad precedent. I am of opinion that the judgment of the Supreme Court should be affirmed; and my brethren concur in this opinion, upon both the points which have been considered. JudgTnent affirmed. Note. — The opinion of the Supreme Court in this case will be found reported in 4th Barbour, 460. In reviewing the case in that Court, Mar- vin, J., said : " The statute specifies the cases of justifiable homicide. 2 R. S., 660 1 3. By the second subdivision of that section the homicide is justifi- able when committed in the lawful defence of such person, or his or her husband or wife, parent, child, master, mistress or servant, when there shall be reasonable ground to apprehend a design to commit a felonj', or to do some great personal injiuy, and there shall be imminent danger of such a de- sign being accomplished. The charge is very nearly in the language of this section. It is argued, however, that if the prisoner did apprehend a design on the part of Brush to do him some great personal injury, and believed he was in great danger, he had then a right to act upon that belief and take the life of Brush, alth ough there was no actual imminent danger. In other words, if he believed in the danger, he had a right to act as though the danger was- actually present, and the injury about to be inflicted upon him, and that the consefiuences of this mistaken belief must fell upon the deceased, and the prisoner must, in the eye of the law, stand entirely justified. Several partic- ulars are to be noticed in this section as applicable to the present case. The homicide, if justifiable, must have been committed in the lawful defence of the person of the prisoner, at a time when there was reasonable ground to apprehend a design to do him some great personal injury. AVho is to judge of the reasonable ground to apprehend a design to do injury? The grounds must be made to appear on the trial, and the jury must be satisfied that they were reasonable grounds upon which to found an apprehension of a design to commit the felony, or to do some great personal injury. It is true the party assailed must at the time, judge of the ground for his apprehension, but he judges and decides at his peril, so far as the question of entire justi- NOTE — OPINION OF MARVIN, J. 267 flcation is concerned. It will not do to hold that he who has talien the Ufe of another is entirely justifiable, when he acts upon unreasonable grounds of apprehension, though he may have acted upon an honest apprehension of a design, on the part of the person killed, to commit a felony, or to do him some great bodily injury. " In such a case, the crime might be only manslaughter, and that, too, of the lowest degree. But to justify the act of killing in such a case, would be to establish a rule for the security of human life, resting upon the uncer- tain apprehension of men who may act upon unreasonable and impossible grounds. The statute also adds this for the condition : 'And there shall be imminent danger of such design being accomplished.' The language is here changed. The question no longer depends upon reasonable grounds to apprehend imminent danger, from which a belief may be formed. " It is, to my mind clear and explicit, and requires that there should be imminent danger of the commission of a felony or of some great personal injury. The man assaulted may have reasonable ground to apprehend a design on the part of his assailant to do him some great personal injury, and yet there may, in fact, be little or no danger of the accomplishment of the design. Suppose the party committing the assault was unarmed, and weak and infirm as compared with the party assaulted, and this disparity of strength is such that the party assaulted is able to protect liis person from injury. The imminent danger of accomplishing the design would not exist, and yet the design may liave been fully formed, and manifested in a way so as to leave no doubt of it. In such a case the killing of the assail- ant could not be justified. " What is meant in the statute by ' such design ' ? Does this language imply that a d^ign to commit a felony or to do some great personal injury had been actually formed ? If so, then a reasonable ground to apprehend a design, etc., as declared in the previous part of the section, is not suffi- cient ; but there must be added to it, not only the imminent danger, but the actual design. ' This is not the true construction of the language. If there is a reasonable ground to apprehend the design, and there is imminent danger that such apprehended design will be accomplished, it is sufficient. The party assailed may have reasonable ground to apprehend a design on the part of the assailant to kill him, and he may be in imminent danger, from the acts of the assailant, of being killed, and yet his assailant may not have formed the design to kill him, or to do him great personal injury. His acts may, however, be such as actually to put the life of the assailed in imminent danger. In such a case, the killing would be justifiable. I am satisfied that the legislature considered the common law carefully, and that they adopted it in the section relating to justifiable homicide, and that they have thereby provided that a homicide shall not be justified unless there ' was, first, reasonable ground to apprehend a design to commit a felony, or to do some great bodily injury ; and, secondly, there was imminent danger of such apprehended design being accomplished ; that is, that there was imminent danger that a felony would in fact, be committed, or that some great personal injury would be infiicted, unless the party was arrested by death. If I am right in this construction of the statute, the charge of the learned Justice was in strict accordance with law." The principle so ably asserted and carefully stated by BKO^•so^', J., in 268 SHORTER V. THE PEOPLE. the principal case, that to justify the slayer it wiU be sufficient if there is reasonable ground to believe that the antagonist designs to kUl or inflict great bodily harm, and if there is also reasonable ground to believe that the danger is imminent that such design will be accomplished, will, it is believed, be found embodied in every other well considered case where the question has been adverted to, except the cases in Mississippi. See the following cases, post ; Logue's case, Eapp's case, Maher's case, Schnier's case, and Sloan's case. The New York statute, expounded in the principal case, exists also in Mississippi, Minnesota and Kansas. Rev. Code Miss., 1857, p. 601 ; Gen. Stat. Minn., 1867, p. 598, § 5, sub-sec. 2 ; Gen. Stat. Kansas, 1868, p. 319, J 9. In Mississippi, it has received an exposition not differing in substance from the views of Marvin, J., above quoted ; but in that State it was said to be a modification of the common law rule — ^Dyson's case, post — while Marvin and Bronson, JJ., suppose it to be in aflSrmance of the common law. Wc think the Mississippi Court is mistaken ; since the rule embraced in the stat- ute has been declared on general principles in several States where no such statute exists. See for instance, Selfridge's case, ante, p. 18 ; John Doe's case, ante, p. 62; Logue's case, post; Pond's case, post. It is true that Lord Hale declares that " it must be an actual and inevitable danger of his own life," — 1 Hale P. C, 52 ; but he is hero speaking generally of civil incapacities through compulsion and fear, and he cites no authorities in support of his declaration. So, Mr. East, speaking of homicide in self- defence, says that the danger must be actual and urgent; but he cites no other authority than the above declaration of Lord Hale. The principle embraced in the above statute is stated by Mr. East, — 1 East P. C, p. 273, 1 46, — and several cases are there stated in illustration. The principle seems ■clearly traceable to Levett's case, Cro. Car. , 538. Mr. East's understanding of the rule appears to have been that if a man kill another upon a reason- able fear that the person slain has a felonious design against him, it wUl be manslaughter or misadventure according to the degree of caution used, and the probable grounds for such belief. 1 East P. C, 273, ^ 46. And this view is supported by the reasoning of the Court in Pond's case, post. The exposition placed upon this statute in Mississippi is that " the dan- ger of such design being accomplished, must be imminent, that is to say, immediate, pressing, and unavoidable at the time of the kUling." Dyson's case, post. And that reasonable ground to apprehend the design, and im- minent danger of its accomplishment must both exist at the same time. Cotton's case, post. But in a very well considered case subsequently deter- mined in Mississippi, the rule is qualified, so as to bring it in accord with the current of the American cases, by using the foUomng expressions : "The danger must be either actual, present and urgent, or the homicide must be committed under such circumstances as wiU afford reasonable ground to the party charged to apprehend a design to commit a felony or to do him some gseat bodily harm, and 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 he reasonable ground for the apprehension that such design will be executed, and the danger of its ao- ■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 modiiies it so as to make it accord with the exposition placed upon it in the principal case, by using the words, " and there shall be reasonable cause for believing that there is imminent danger of such design being accomplished." 2 Taylor's Wis. Stat., p. 1827, 2 5, sub. sec. 2 ; 1 Wagner's Mo. Stat., p. 446, J 4. LOGUE V. COMMONWEALTH. [2 Weight, 265.] Supreme Court of Pennsylvania, January Term, 1861. Walter H. Loweie, CMef Justice. George W. Woodward, James Thompson, William Steokg, John M. Read, Justices. Homicide — Acting upon reasonable appbaeances of danger. The killing 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 murdef of Jared Lewis, but was tried separately. He had robhed 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 with 270 LOGTJE V. COMMONWEALTH. two companions, William Thompson and Eli McCall, 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, suddenly sprang upon them as they passed, and presented his pis- tol at Logue's breast, saying, " Stop, men." Logue, who had a revolver, drew it and fired, the ball taking efi"ect in Lewis' breast. He then fired a second shot, which 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, aU 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 wer,e 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 error , William H. Coriett and Camplell & Lamherton for the Commonwealth. Thompson, J, delivered the opinion of the Court : We need not recapitulate the facts of this ca^, 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 ruling of the Court on every other point of the case being, so far as we can discover, just and accu- rate. HOMICIDE UPON REASONABLE FEARS. 271 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 dagger 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 ground 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 suflering 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 difference between the extent of the ground claimed as covered ty the law of self- defence, and that laid down by the Conrt, 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 Paekee, 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 aUow 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 under 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, 488, 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 '^Ante, p. 1. i>"At all periods " Is a misquotation. Wharton's text reads " frequently." HOMICIDE UPON EBASONABLE FEARS. 273 "by misadventure. So in the 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 Cr. p. 485. So it has been held in the State of New York in The People V. Shorter,* 4 Barb., 460, and affirmed in the Court 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 Hom., 227, at length, is to the same effect. We might multiply authorities to sustain the accuracy oi 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 grekt 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- oAnte,p.l. ^Anie, last case. •'Ante, p. 191. tpost. 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 Avill not encumber this opinion by restating it. Suflace it to say here, that as the lav,- 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 jiistifiable. The offence 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. ]S"ow, 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 facts were alone for the jury, and they might believe or disbe- lieve them, as they might be credible or otherwise. REASONABLE FEAES — NEW TEIAL. . 375 Under such circumstances, we think that the judge •erred in his answer in defining the prisoner's rights und6r his assumed position. It having turned out that tlie deceased was an ofiicer, whose object was not to kill or injure, but merely to arrest, it would have been im- possible to have proved actual danger, although the appearances might, to an innocent man, have presented a case of imminent peril, which under the law, as already stated, might have excused the killing. It is true, a refusal to charge as requested, and charg- ing as complained of, did not necessarily imply guilt of any particular or defined grade, on failure of making the proof which the Court thought to be necessary to excuse ; still it took away a bare possibility of escape, on the ground that the prisoner might be an entirely innocent man, notwithstanding the evidence in the case. Hence, we think it better, notwithstanding the circum- stances which the proof presents, to send this case back for a new trial, to secure to the prisoner all the rights the law allows him, and to vindicate the law itself. The act of 1856 requires the correction of errors in law, in cases of this nature, and it does so to prevent possible, as well as certain, injury to prisoners, and in this spirit we are bound to execute it. We see no other error whatever in the charge of the Court in any other part of the case. It is obvious, that if the law of self-defence win not, under the facts, excuse the prisoner, then his case will be murder in the first or second degree, or manslaughter, as the proof may jus- tify ; and on these points the charge was proper, clear and sufiicient, in view of the testimony given. It was suggested on the argument here, that even if there was error in the particulars discussed, it did the prisoner no harm, as the jury found him to be guilty of a wilful, deliberate and premeditated murder, and, there- fore, the law of self-defence could have no application to his case. This suggestion is more plausible than sound. It would be very unsafe to prove the accuracy of all the steps in a trial by the result of the verdict. Who can 276 THE STATE V. HARRIS. tell what tlie result might be in any given case where there is error in some of its parts ? The result might be accurate, but it would probably be accidental. The law does not conclude parties and rights upon such uncertain grounds. Its utmost effort is accuracy, as far as it may be attained through fallible agencies, and then its mis- sion is complete and its conclusions irrevocable. Judgment reversed. Note. — It is to be observed that in Neeley's case, ante, p. 101, an attempt is made by the Court to explain away the meaning of the expression " actual danger," which worked a reversal in this case. But in another part of the charge in this case, the law on the subject of the appearances of danger as a justification for the degree offeree used, had been given correctly. For a similar instruction, treated in the same way, see Lamb's case, post. But in Maher's case, post, a slight error in this particular, added to a correct in struction by way of proviso, was held sufficient to reverse the judgment. THE STATE v. HARRIS. [1 Joines, 190.] Supreme Court of North Carolina, December Term, 1853. Frederick Nash, Chief Justice. Richard M. Pearson, ) t- ^ William H. Battle, f 'J^<^9es. Homicide in self-defence — Reasonable apprehension sdfficient ; of which the joky ake the ultijiate judges. 1. Wherever there is a reasonable ground to believe that there is a design to destroy life, to rob or commit a felony, a killing to arrest such design is justifiable. [Ace. Pond's case, post ; SeUWdge's case, ante, p. 18 ; Scott's case, ante, p. 163 ; John Doe's case, ante, p. 62 ; Baker's case, ante, p. 75; Sullivan's case, ante, p. 65 ; Neeley's case, ante, p. 96 ; Note to Grainger's case, ante, p. 242 ; Shorter's case, ante, p. 256 ; and other cases in this Sub- division.] 2. But it is for the jury, and not for the prisoner, to judge of the reason- ableness of such apprehension. [Ace. SeUWdge's case, ante, p. 18 ; WUt- berger's case, ante, p. 39 ; Hopkinson's case, ante, p. 80 ; Schnier's case, post; McLeod's case, pos<; and others.] OPINION — THE FACTS STATED. 277 The case sufficiently appears from the opinion of the Court. Nash, Ch. J., delivered the opinion of the Court : The prisoner is indicted for murder. On the trial be- low, three witnesses were sworn in behalf of the State. The first was a young female, an inmate of the prisoner's family, who stated, that when she returned home, about twelve o'clock, from a neighbor's, she found there, with the prisoner, a man who was a stranger to her, the de- ceased. The parties remained together in the porch of the house, untU near sunset, when she heard loud and angry talking. The prisoner accused the deceased of having put counterfeit money on him, and immediately went out and took the horse of the deceased, declaring he would keep him until he gave him good money. The deceased went towards Harris, declaring he would have Ms horse or take the prisoner's life. Harris ordered him to stop, and not touch the horse, or he would kiU. him, and called to his son, a small lad, to bring him his gun, which was done, and the deceased returned to the house. Harris loaded his rifle, and called to his wife to take care of his trunk. She answered from the room where it was, and prisoner called to the witness to come to him, which she did. When the witness went out, she found Harris ap- proaching the house, with the gun in his hands, and in passing, he observed, " I am afraid that man will do me some private harm." He went into the house, and she heard deceased say to him, " Stop, Harris, and let me talk to you," and with these words she heard the gun fire. She went into the house and found the man dead, and Harris standing in the door, between the large and small room. The second witness was a Mr. Williams, who stated that, on the day after the homicide, he went to the pris- oner's house, where the following conversation took place between them : Witness asked the prisoner, " What does this mean ? " 278 THE STATE V. HAEEIS. Answer, "It's done, and I am sorry for it, but it could not be helped." "Do you know who the man is?" "I do not." " Where did you shoot him ? " "I shot him in the body." " What did you do it for ? " "For a certain provocation; it will be all right; it was in self-defence." " Did you see the man have any weapon ? " " I see you, but I don't know but you may have some weapon. He, (the deceased,) had conducted himself as I will not allow any man to do in my house, and, as no man should do in a gentleman's house. He was loafing about here, and some one robbed' my father's house, and he might have been the man, or one of them." "You say he was loaf- ing here, and yet you took his horse, and sent him to Mebane's, and sent word to Mebane that you would kill a man before sunset." With this the prisoner got angry ; and said, " the man had passed a counterfeit $50 bank bill on him." Mr. Mebane stated, that just before dark, on the day the homicide took place, the prisoner's boy came to his house on the horse of the deceased, with a message from his master : he sent him back. Soon after the prisoner came on the same horse, and, being asked how he was, answered, "WeU in body, but distressed in mind. I have killed a man, and don't know who he is." Witness replied, "that is a pity, you have done wrong." Prisoner answered, " Damn him, if it was to do over, I would do it again; Ibelievel was justified." Witness asked, "Did he threaten you ? " " Yes ; we had a game of cards, and he put a counterfeit fifty dollar bill on me. I took his horse, and told him if he did not give me good money I would keep him. The man then said he would have his horse or be the death of me. I called my son John to bring my rifle. I loaded it, and told him to come on, and see which would be killed first, and from that I shot him, I believe right through the heart. I am on his horse now, and am not going to run. He is a damn fine horse, and paces like a top." The name of the deceased was Winfree. His Honor, in opening his charge, stated the law upon OPIlSriON — THE IN8TBUCTI0NS. 279 the subject of homicide in general, of which there is no complaint. The case then states that the defendant's counsel insisted "that this was a case of justifiable hom- icide — a killing in defence of life, or of an actual robbing in the dwelling house of the prisoner, or, at most, it was but a case of manslaughter ; a killing under sudden passion, or heat of blood. That the deceased threatened the life of the prisoner ; that he was a stranger and dealer in counterfeit money ; so that, under the circum- stances, the prisoner believed his life was in danger, or that the deceased would do him some great injury ; that, if mistaken in this, if the prisoner detected him in the act of stealing from his trunk, being in his dwelling- house, and after dark, he had the right to kill him. But even if such were not the fact, but the prisoner believed such to have been the intention of the deceased, and acted on that belief, it would, at most, have been but manslaughter." His Honor, upon this part of the de- fence, instructed the jury, " that whenever there is a rea- sonable ground to believe there is a design to destroy life, or to rob, or to commit a felony, the killing of the assailant will be justifiable. But it is for the jury, and not for the prisoner, to judge of the reasonable ground for apprehension, and whatever he may say, unless the jury think, from the testimony, the prisoner had reason- able grounds for apprehending damage to his person or property, his defence must fail. Should the jury believe the prisoner detected the deceased in the act of robbing his trunk, and thus killed him, they should acquit. So, if they should believe the prisoner found the deceased in such a situation as already to have manifested such purpose, they should convict him of manslaughter. The first objection to the charge is, as to the prisoner having reasonable ground to believe that the deceased intended to take his life or rob him. The prisoner's counsel contended, that, if the prisoner was mistaken in believing that the deceased intended to kill or rob him, yet, if he believed his life was in danger, or he was in 280 THE STATE V. HAKRI8. danger of being robbed, and acted on that belief, it would, at most, have been but manslaughter. His Honor laid down the law upon that subject, and stated, when- ever there is reasonable ground to believe there is a design to destroy life, to rob or commit a felony, the killing will be justifiable. But it is for the jury, and not the prisoner, to judge of the reasonable ground of the apprehension. "We see no error in these directions. It is the course which that humane man and excellent judge, Sir Michael Fostee, pursued in a case before him. A man was indicted for the murder of his wife. He had in the morning loaded his gun, in the hope of finding some game : being disappointed, he discharged the load, and put the gun in a safe place. During his absence, a servant without his knowledge, took the gun, loaded it and went after some game, and while the prisoner was still absent, returned it to the place from which he had taken it, where the prisoner found it, in all appearance, as he had left it. The gun was carried into the room where his wife was. He took it up, touched the trigger, the gun went off and killed his wife. I did not enquire, says Justice Fostee, whether the poor man had examined the gun before he carried it home, (where the accident occurred,) but, being of opinion, upon the whole evidence, that he had reasonable ground to believe that it was not loaded, / directed the jury, tTiat, if they were of the same opinion, to acquit him. Foster, 265 ; 1 'Russ. on Cr., 541. In Meade 'scase,^ Lewin's C. C, 164, the same course was pursued. Meade had, the day before the kill- ing, been very badly injured and abused by a party of boatmen, at Scarboro', and was rescued from them by the police. "When the latter were carrying him off, the boatmen called to him that they would come that night and pull his house down. He lived about a mile from Scarboro', and, in the middle of the night, a great num- ber of persons came about his house, singing songs of menace, and using violent language, indicating that they had come with unfriendly intentions. Meade, under an ''Post. REASONABLE APPEARAlirCES A QUESTION FOE JURY. 281 PLE. ■ ing a homicide were such as to induce a belief in a reasonable mind, that the act was necessary to save his own life, or that of a wife or child. [Ace. McLeod's case, post; Harris' case, ante, p. 27G; Wiltberger'scase, a?iie,p. 39 ; Meridith's case, post, and others.] 2. A party accused of murder may show in defence, that he committed the act under a belief which was sufficient to satisfy a reasonable mind, that his own life, or that of a wife or child were in immediate danger, although the danger was only apparent. 3. The necessity for taking the life of the deceased need not be real and absolute, but if the necessity is so apparent as to induce a belief in a reason- able mind, that the danger is so imminent that no other means of escape exists, but to take the life of the deceased in order to preserve that of the accused, such apparent danger will justify the homicide. * [Ace. Camp- bell's case, aitte, p. 282 ; Selfridge's case, ante, p. 18 ; Shorter's case, ante, p. 256; Logue's case, ante, p. 270 ; Meridith's case, post; Pond's case, post; Scott's case, ante, p. 163 ; Baker's case, ante^ p. 75 ; SuUivan's case, ante, p. 65; Neeley's case, ante, p. 96 ; note to Grainger's case, ante, p. 242 ; Rapp's case, post ; and other cases in this Subdivision.] This was an indictment for murder, found hy the Grand Jury of Clinton county, at the March Term, 1859, and tried at the August Term, 1859. The defendant was found guilty of manslaughter, and sentenced to confine- ment in the penitentiary for eight years. The evidence tended to show that defendant and de- ceased had a quarrel about a fence ; that at the time of the killing, they were standing on opposite sides of the fence, quarrelling, the defendant throwing down the fence. The defendant's wife and son, and another young man were there. The defendant was standing on his own land. The deceased threw a rail over to the side of the fence where the defendant was standing ; but it did not appear whether he threw it at any one or not ; nor did it appear that it hit any one. The deceased was seen to fall; and the defendant, while supporting the head of the deceased, who was bleeding at the nose, was heard to say that the stroke (schlag) was rather hard, and that he was sorry for it. Defendant afterwards told a witness that he had struck deceased on the ami. but did not think it would hurt him so that he would die. The deceased died of the injury the same day. *** ****** The following instructions of the Circuit Judge were INSTKtJCTIONS TO THE JURY. 287 criticized in that portion of the opinion that relates to the law of self-defence : The People's tenth instruction. [Quoted in the opinion of the Court.] The People's twenty-second instruction : But upon the ground of justifiable homicide, or the principles of self-defence, the Court further charges you, that even although you should believe that Theising, [the deceased] attacked the defendant or his son, still, if you believe, from the evidence in this case, the party assailed could have escaped his adversary's vengeance, at the time of the attack, without the killing of Theising, the defence of justification or self-defence has failed, and the defendant cannot be acquitted upon the law of self- defence. The defendant's tenth instruction as asked for by the ■defendant, and as modified by the Court : The Court instructs you that if you believe from the •evidence that the deceased, Thiesing, struck with, or threw a rail or stake at the defendant, Schnier, and within the distance to strike with, or hit, by throwing, and that the defendant, Schnier, thereupon killed the deceased, [the Court here inserted the words "without malice,"] under the honest belief, however erroneous it may have been, that he was in imminent danger, [here the Court in- inserted the words " at the time "], of losing his life or of receiving great bodily harm, fr om the striking or throw- ing as aforesaid, [here the Court inserted the words, " and retreat was inconsistent with his personal safety"], then you ought to find a verdict of not guilty. The defendant's thirteenth instruction, as asked for, and as modified by the Court : The Court instructs the jury, that if they believe from the evidence, beyond a reasonable doubt, that the ■defendant struck and killed the deceased, yet if the deceased struck at or hit him with a rail or stake, or any other missile, and was in striking or throwing distance, 288 SCHNXEE V. THE PEOPLE. and thereby, [here the Court inserted the words, " andhy such means "], produced a reasonable and well-grounded belief in the mind of the defendant, that he was in imminent danger of receiving great bodily harm from the deceased, [here the Court inserted the words, " and that retreat was inconsistent with his personal safety "],'then he was justified under the law, and must be found not guilty. ************ So much of the opinion of the Court as relates to the instructions and to the above doctrine of self-defence is as follows : Walker, J. ******** The prosecution asked, and the Court gave, against the objection of the accused, this instruction: "If the jury believe from the evidence, that the defendant was in the commission of an unlawful act against the property of Benedict Theising, at the time of the difiiculty between the prisoner and Theising, which terminated in said Theising's death, and that said difficulty was by defend- ant's procurement, and that during said difficulty defendant struck said Theising with a deadly weapon inflicting injuries upon said Theising as charged, then it must appear, either that the defendant in good faith declined any further difficulty with Theising, or that said blow, if you believe it was inflicted by defendant, was inflicted in necessary self-defence, or in defence of his wife or son ; and if such does not appear, then the ver- dict should be, guilty of murder. [People's tenth in- struction]. This instruction is liable to the construction that be- fore the accused would be justified in the infliction of the blow, it should have been necessary for his self-preser- vation. It has been held by this Court, Campbell v. The People,' 16 111., R. 18, that the necessity for taking the life of the deceased need not be real and absolute ; but if the necessity is so apparent as to induce the belief in Mreie, last case. HOMICIDE UPON APPEARANCE OE DABTGEB. 289 a reasonable mind, that the danger was so imminent that no other means of escape existed but to take the life of the deceased in order to preserve that of the accused, that such apparent danger will justify the homicide. It is not to be expected, nor can it be required of men men- aced with apparent imminent and unavoidable danger, that they will act with that deliberation, and cool circum- spection that men do under ordinary circumstances. They cannot be expected to resort to, and fully test any means that may remotely promise safety, but at the same time, they must be held to employ all means for their es- cape, that to a reasonable understanding would seem to promise safety, before they can be justified in slaying their antagonist.'' But if the danger seems to be so imminent and pressing, as to a reasonable mind would seem, under the circumstances, to afford no other mode of escape, then the slaying would be justified, although the danger was only apparent. Under this instruction the jury may have reasonably inferred, that there could be no justifi- cation, unless the necessity to destroy life in self-defence was actual, and not apparent, although regarded sufii- cient by all reasonable understandings. This instruc- tion should have been so modified as to leave it to the jury to say, whether the circumstances surrounding the transaction were such as to induce the belief of its ne- cessity in a reasonable mind, and whether the accused acted upon such a belief; and failing to do so, it was erroneous. The Court announce as the law, the same rule in the People's twenty-second instruction, and it is there so clearly announced that the jury could not fail to so understand it, and the presumption is, that they regarded and acted upon it in forming their verdict. It, like the tenth instruction, and for the same reasons, was erroneous, and should have been modified before it was given. The same rule is adopted in the tenth and thirteenth instruc- tions asked by defendant, and they were, therefore, erro- neous. ******* bAcc. Meredith's case, poai. Judgment retersed. 290 MAHEK V. THE PEOPLi;. MABER V. THE PEOPLE. [24 III., 241.] Siupreme Court of Illinois, April Term, 1860. John D. Caton, Cfhief Justice. Ho-\uciDE — Acting upon appeakances of dangeb. A party may defend himself by taking life, whether his danger is real or not, if the danger is apparently so imminent and pressing, that a prudent man might suppose himself in such peril, as to deem the taking of the life of his assailant necessary to self-preservation, [Aoc. Schnier's case, ante, last case ; Selfridge's case, ante, p. 18 ; John Doe's case, ante, p. 62 ; Sul- livan's case, ante, p. 65 ; Neeley's case, ante, p. 101 ; Robert Jackson's case, post; Pond's case, ^os<; and others.] This was an indictment for murder. The facts are substantially as follows : The parties came to the house of deceased in the same wagon and supped together, at the house of the de- ceased. They were neighbors, living about half a mUe apart, and in some degree related. The witnesses were the children of deceased. The prisoner and deceased came to the house of deceased about sundown. Both were intoxicated. While at supper, deceased undertook to whip his wife and children with a horsewhip ; de- fendant interfered and a scuffle ensued. They then agreed to adjourn the fight until next day. They shook hands, and defendant started off. After he got out of the inclosure, he picked up a club ; deceased picked up a mop-handle ; which took a club first, does not appear. Defendant turned once or twice as he was going away, had angry words with deceased; no proof what the words were, except that deceased said that he did not want him and his wife around him any more — to clear off the place. Prisoner said he had made free to eat STATEMEWT OP THE FACTS. 291 supper there. Defendant then started oflf. and hallooed and said that the family helped d'eceased to whip him. The deceased started after prisoner, with the mop-handle drawn ; prisoner was then ahout twelve rods off, and going away. They came together, and blows were struck ; who struck first, does not certainly appear ; the mop-handle was found broken, and it seems that it must have been broken before deceased received the blow, that caused his death. Dan Maher, a son of deceased, saw the whole affair, and was sworn, but the People refused to ask him any questions. Upon the return of the verdict of the jury, the de- fendant moved the Court for a new trial, which motion was overruled by the Court, Hollistee, J., presiding. Glover, Coolc & Campbell, for the Plaintiff in Error ; W. BusTinell, State's Attorney, for the People. "Walker, J. — On the trial of this cause in the Court below, the defendant asked the Court to give this, among other instructions : " If James Maher made an attack upon the defendant with a deadly weapon, at a time when the defendant was going away from him, and the circumstances of the at- tack were suflicient to excite the fears of a reasonable person, that the said James Maher intended to do the defendant some great bodily harm, and defendant acted under the influence of such fears, and at the time struck the said James Maher and killed him, such killing is neither murder nor manslaughter, but justifiable homi- cide, and the prisoner should be acquitted." Which instruction the Court refused to give as asked, but qualified it as follows : "Provided the jury believe the defendant used no more force than was necessary, to prevent such bodily harm.''" This instruction as asked, was not strictly accurate, as it should also have informed the jury, that the de- fendant must believe, from the surrounding circum- 292 MAIIEE V. THE PEOPLE. stances, that the danger was real, and that he believed it was necessary that he should take the life of his as- sailant to preserve his own, or to avoid a great bodily injury. But when the qualification was added, this instruction became clearly erroneous. As it was given, and as it must have been understood by the jury, it deprived the defendant of the right of self-defence, unles.s the danger was real and not apparent. This qualifica- tion lays it down as a rule of law, that an actual and positive danger must exist, before he could justify the killing. Although this is not the precise language em- ployed, yet this is its manifest import, and the jury must have so understood it. This Court, in the case of Campbell v. The People,'' 16 Til. R., 17, held that a person when threatened with dan- ger, must determine from the appearance and the sur- rounding circumstances, as to the necessity of resorting- to self-defence. And that if the danger was apparently so imminent, and pressing, that a reasonable and pni- dent man would suppose that it was necessary to take the life of his assailant, to preserve his own, or to avoid the infiiction of a grievous bodily injury, then the killing would be justifiable. It cannot be true, that a man when menaced with what would appear to a reasonable mind to be imminent danger, should wait until it is de- termined to be real, before he can act. There is no> question that the person menaced must act in perfect good faith, and believe that it is really necessary that he should destroy life, to avoid what appears to be a real and imminent danger. This doctrine was again announced in the case of Schnier v. The People," 23 111. R., 17, and is decisive of this question. No other error is perceived for which the judgment should be reversed. But for the giving the instruction as it was modified, the judgment of the Court below must be reversed, and the cause remanded. Judgment reversed, 'Ante, p. 282. ^Anfe, last case. SYLLABUS. 293 Note.— This case should be read with Neeley's case, ante, p. 96 ; Lamb's case, posi, and Evans' case, post ; and tlie comparison will be instructive, -as showing the different manner in which an error of the same character will be viewed by different Courts, and under different states of fact. In Nceloy's case and Lamb's case, instructions of the same character as the qualification which worked a reversal here, and erroneous in a much greater degree, were held good. In Sullivan's case, ante, p. 65, an instruc- tion informal in a particular similar to the principal case, was held not -erroneous. RAPP V. COMMONWEALTH. [14 B. Monroe, 615.] Court of Appeals of Kentucky, Summer Term, 185 If.. Thomas A. Marshall, Chief Justice. B. Mills Crenshaw, | James Simpson, >• Judges. Henry J. Stites, ) 'Shootestg with intent to kill — Acting upon appearances — Contin- gent THREAT, communicated — DEFINITION OF ASSAULT. 1. To constitute the offence of maliciously shooting with intent to kill, under the 2d Section of Article 6, of the Revised Statutes of Kentucky, edition 1852, p. 251, the offence must be such that it would have been murder, had death ensued. If the offence had been under such circum- ■stances as to constitute manslaughter, had death ensued, then, death not ensuing, the offence becomes the misdemeanor defined by Article 17, ch. 28, p. 262. The offences designated by these two different statutory provis- ions are grounded on the distinction between murder and manslaughter. t[See Hopkinson's case, ante, p. 80.] 2. The sudden heat and passion referred to in the statute last named, must be a passion caused by such provocation, as had death ensued, would have reduced the offence from murder to manslaughter. Mere words or gestures do not constitute such a provocation. 3. If from all the circumstances attending the infliction of a wound, the ■party wounding had reasonable grounds to believe, and did believe, that ,the party wounded, intended to proceed immediately to the infliction of bodily harm upon him with a knife in his hand, and that he would do so unless prevented by such act of defence as was then in his power, the act •excusable on the ground of self-defence. 4. It was competent for the defendant indicted for shooting maliciously with intent to kill, to prove that a son of the person wounded, who was iin the store when the defendant and his father entered it, (his father having 294 EAPP V. COMMONWEALTH. invited defendant into the store,) immediately ran up tlie stairs, and re- turned about the time defendant shot at his father, with a pistol, which he snapped at defendant, and that he had had such pistol loaded some time before, and had then made a contingent threat to shoot defendant, of which defendant had been notified. This evidence would tend to elucidate the motives and acts of the parties. [Aco. Goodrich's case, post; Monroe's- case, ^osi; Keener's case, ^os< ; Pridgen's case, ^osi ; Campbell's case, anie, p. 282 ; Rippy's case, post; Bobert Jackson's case, post; and others.] 5. An assault in law is an elfort to strike, cut, or shoot, within striking, cutting, or shooting distance. If a party start to strike or cut, and before he gets within striking or cutting distance, stops and abandons his pur- pose, it is not an assault in law. The facts are stated in the opinion of the Court. The Court of Errors having "been equally divided upon the question raised upon the instructions of the circuit judge, they are omitted. The instruction as to what constitutes an assault, and which the Court of Errors holds technically correct, was as follows : " That an assault in law was an effort to strike, cut or shoot within striking, cutting or shooting distance ; and if a party started to strike or cut, and before he got with- in striking or cutting distance, stopped and abandoned his purpose it was not an assault in law." Hunyan, Breck and Harris, for appellant ; J. Harlan^ Attorney General, for the Commonwealth. Marshall, Ch. J., delivered the opinion of the Court: This is an appeal from the judgment of the Madison- Circuit Court, by which, in conformity with the verdict previously rendered, Daniel Rapp was. sentenced to be confined in the jail and penitentiary of this Common- wealth for one year. The crime charged in the indict- ment, and of which he was found guilty, is that of feloniously, wilfully and maliciously shooting and wounding David J. Rowland, with a pistol, and with in- tent then and there to kill him, but of which wound Rowland did not die. The indictment charges the offence described in the 2d Section of the Sixth Article of Chapter 28th, of the Re- vised Statutes, [ed. of 1852], p. 251, and the accused was ASSAULT TO KILL — KENTTJCKY STATUTE. 295 convicted and sentenced under that section. The offence is that of malicious shooting with intent to kill ; and as malice must exist to constitute the crime, it seems to fol- low, and it is our opinion that the case under this section of the statute must he such as would be murder if death had ensued. And if the case be such as would not be murder, if death had ensued, that is, if the wounding be not in self-defence, but done in a sudden affray or in a sudden heat and passion, without previous malice, it is not a felony punished by the section referred to, but is a misdemeanor defined and punished by the 1st Section of Article 17, Chapter 28, of the Revised Statutes, [ed. of 1852], p. 254. This section, in our opinion, defines a case which if death were to ensue would be manslaughter. Thus, the established distinctions between murder and manslaughter, furnish the true grounds for discriminating between the offences denounced and punished by the two sections referred to. In view of these grounds of discrimination, we are of opinion that the sudden heat and passion referred to in the section last cited, in defining the misdemeanor therein described, must be a passion caused by such provocation as in case death had ensued from the wound, would re- duce the offence from murder to manslaughter. And mere words and gestures, though they may excite passion, do not constitute such provocation as will of itself extenu- ate a homicide committed with a deadly weapon and make it manslaughter. This position is laid down in aU the elementary books which we have seen, and is sustained by the current of adjudged cases, and is too familiar to require a reference to authority. "With these preliminary remarks not inapplicable to the case, we proceed to state briefly the general facts of the case, and the questions made on the trial. It appears that Rowland, having been informed of certain conduct of Rapp which he deemed injurious and offensive to him- self, called Rapp into his store, and placing himself in a position nearer the front door than that occupied by Rapp, charged him with offensive acts, and, upon his 296 EAPP V. COMMONWEALTH. denial, called him a liar, and used other offensive lan- guage ; and, as he himself says, told Rapp that if he did th:^ like again he would cut his ears off, and then making a movement, the direction of which he describes hy ref- erence to objects in his store, stopped, as he says, with his pocket-knife half or entirely open, and said, " this is the knife I will do it with," being then from five to seven feet from Eapp, who drew a pistol and shot him in the cheek-bone, etc.; but he says he made no motion or at- tempt to use the knife, and did not, by word or act, indicate an intention to use it at that time, or at any time, except upon the contingency mentioned. Two witnesses for the defence speak of the threat and attitude of Rowland. One of them says, that coming in front of Rowland's store, he saw him with an open knife in his hand raised above his head, and heard him tell Rapp he was a liar and he had caught him in it, and he would cut his ears off. The other vntness also states the threat of Rowland, with an open knife in his hand, and without any contingency. He also speaks of the move- ment of Rowland, and of his stopping before uttering the threat. But how long he stopped before the pistol was fired, is not stated by any one. This Court is of opinion 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 offensive language, his threat, his attitude, and proximity, and from the fact that he called Rapp into his store, and after taking his position, immediately commenced Ms reproaches, termin- ating with a threat, and from aU 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 that he had reasonable ground to believe, that Rowland intended to proceed immediately to the infliction of bodily harm* 'Or more accurately great or enormous bodily harm. The current of all the cases runs in favor of this qualification. But this might be understood, ihe weapon used by the threatener being a deadly weapon. — Eds. THREATS — APPEARANCES OF DANGER. 297 "upon Mm with, the knife in his hand, and that he would do so unless prevented by such an act of self-defence as was then in the power of Eapp, then the shooting by Rapp was excusable on the ground of self-defence and apparent necessity. But if he had not reasonable ground to apprehend immediate violence to his person by Eow- land by the use of the knife, then his act of shooting and thus aiming at the life of Rowland was not only not excusable as being in self-defence, but it was not done under such provocation as, on the ground of heat and passion, would make it a misdemeanor instead of a felony. But this Court is equally divided upon the question whether the instructions of the Circuit Court as contained in the qualification to the instructions given for the de- fendant, do or do not put the case before the jury upon the principles above cited. There cannot, therefore, be a reversal on account of this qualification. With respect to which we remark further, that the definition of an assault therein contained is technically correct. We are of opinion, however, that the Court erred in refusing to permit the defendant to prove that Hugh Rowland, a son of the party wounded, who was in the store when his father and Rapp entered it, but immedi- ately ran up stairs and returned about the time of the shooting with a pistol which he aimed at Rapp and snapped at him, had had his pistol loaded a few days before, and had then made a contingent threat to shoot Rapp, of which Rapp was notified before the interview with Rowland in which he shot him. This evidence would tend to elucidate the motives and acts of the parties, and its exclusion was an error prejudicial to the accused. Wherefore the judgment is reversed, and the cause re- manded for a new trial in conformity with the principles of this opinion. Judgment reversed. 298 MEKEDITH V. COMMONWEALTH. MEKEDITH v. COMMONWEALTH. [18 B. Monroe, 49.] Qmirt of Appeals of Kentucky, Summer Term, 1857. B. Mills Crenshaw, Chief Justice. James Simpson, | Henry J. Stites, > Judges. Alvin Duval, ) >rirnjAL COMBAT WITH DEADLY WEAPONS — DUTY OF EETKBATIXG — ACTI>G 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 wiU 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 liis own safetj-, 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 tlie danger, and by tliat 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, post ; Harris' case, ante, p. 276 : Wdtberger's case, ante, p. 39 ; 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. OPINIOK — THE FACTS STATED. 299' Stites, J., delivered the opinion of the Court: This appeal is prosecuted loy the appellant from the judgment of the Circuit Court, sentencing him to two years confinement in the penitentiary, for killing one Ireland / 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 aflfray, 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 called 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, " If 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 off 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. ofiF 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 gun 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 jury believe, from the evidence, that the defendant kiUed APPEAEANCES OE DANGEB — BETBEATING. 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 infiict 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 Bkowson, 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 wiU be accomplished, I think he may safely act upon appear- ^Ante, last case. "Ante, p. 256. , APPEAEANCE8 OF DANGER — EETEEATING. 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 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 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 pow6r, to prevent Ireland from killing him, or inflicting 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 tlie other uistructions 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- versed, and cause remanded for a new trial, and other proceedings consistent with this opini(j)n: which is ordered to be certified to said Court. Jvdgment reversed^ DYSON V. THE STATE. [26 Miss., 362.] High Court of Errort and Appeals of Mississippi, December Special Term, 1853. CoTESwoETH P. Smith, CMef Justice. Epheaim S. Fishee, ) 7,,^^.„ Alexandee H. HAifDY, [ '^^(^yes. Killing ix self-defence — Bake feae — Overt act — ^Reasonable feak. 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, J 24 ; Comp. Laws, Cal., 1853, p. 642, § 30 ; Gross' 111. Stat., 1869, p. 172, 1 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, chUd, 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 such design being accomplished." Hutch. Code, 957, J 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 OE THE FACTS 305 Held, that it was not the intention of the Legislature to dispfense with the necessity of showing some overt act indicating a present intention to kOl, or to do some great personal injury, and that the danger was imminent at the time of killing. 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 hostUe, although there was really no actual danger at the time. [Ace. Wesley's case, post ; Evans' case, post; Head's case, ^osi. And see as to overt act, 1 Hale P. C, 52; Hippy's case, ;)os<; Williams' case, ^os/ ; Robert Jackson's case, ^os< ,• Lan- der's case, joosi ; Cotton's case, ^os<; Harrison's case; anie, p. 71 ; Scott's case, ante, p. 163. And that an overt act is not necessary under certain cir- cumstances, Philip's case, ^os<; Carico's case, post; Young's case, post. And see Grainger's case, ante, p. 238, and note.] 4. The following 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 : u.. 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 injury. b. 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- jm'y, will not justify the killing. James H. Dyson was indicted in the Circuit Court of Panola county, for killing Samuel H. ISTelms, and was found guilty of manslaughter in the first degree, and sentenced 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 about 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 was lying, badly wounded, and said to Nelms, " You were going to kill." Nelms 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 Welms' head, who turned as he lay upon the ground, and said "Grood- 1306 DYSON 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 oflfered in justification of this act of kiUing, threats made by Nelms against him, Dyson. The proof was in substance, that John R. 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 AviU 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 wotild 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 R. 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 Watson and Estelle, for plaintiff in error; D. G. •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 tiing from previous threats, which have been communicated, aflEbrd no excuse, unless at the time of the kilhng an effort was being made to carry the threats into execution, and a necessity, apparent or real, existed at the time to slay, in order to prevent it. [Ace. Dyson's case, ante, and cases cited.] 7. The fact that the law aUows a man to carry deadly weapons, does not diminish his responsibility in using them ; and if a man accustomed to carry such a weapon kill another therewith, the presumption of malice arises, in like manner, and to the same extent, as though the weapon had been prepared for the occasion. [Compare with Cotton's case, ante, p. 310.] In this case, tlie Court, among other things asked by defendant, refused to instruct the jury as follows : 3d. That by the laws of this State, each man has the right to hear arms about his person, and if Head had on his person a deadly weapon, but had not armed himself for the purpose of using the same against Doak or any other person, unless it became necessary in his self- defence, and being thus armed, he became involved in a difficulty with Doak, and took the life of Doak with such weapon; then mUlice cannot be inferred simply from the fact of his using such deadly weapon. *********** 6th. That although the jury may be satisfied, from the evidence, that the prisoner killed the deceased, yet if the jury are satisfied, from the evidence, that the pris- oner had reasonable grounds to apprehend a design on the part of the deceased to take the prisoner's life, or to do him some great bodily harm, or great personal in- jury, and that there was imminent danger of such de- sign being accomplished, then they must find the pris- oner not guilty. *** ***** *' Extract from the opinion of the Court, by Simeall, J.: ***********- The use of a deadly weapon is prima facie evidence; KIILESTG WITH DEADLY WEAPON — MALICE. 343 of malice ; "because a man must be taken to intend the necessary and usual consequences of Ms act. To shoot or stab, or strike with a bludgeon, indicates a purpose to take life ; but if the one or the other be employed to disable an adversary, in the very act of making a mur- derous and malicious assault, then the presumption is overcome. The proof of the use, in the case hypothe- cated, of the deadly weapon with attending circum- stances, would show the excuse. Where the circum- stances of the killing are known, and in evidence to the jury, the deductions and inferences should be made from all the facts. "Where the death ensues from a shot-gun wound, or a stab, or other violent means, but no wit- nesses saw the act done, and the circumstances are \\n- known and unproved by the State, here the mode of killing raises a strong presumption of malice. If the act is traced to the accused as the guilty agent, that pre- sumption continues until he overcomes it by evidence showing excuse or justification. If he offers no explana- tion of the killing ; if he fails to show that it was an act of necessity, done se defendendo, the inference of mal- ice, from the use of the deadly weapon, remains. What we mean to afiirm is, that where the mode, manner and circumstances of the killing are in evidence to the jury, (although life was taken by a deadly weapon), the character of the act, whether criminal or not, and then its grade, whether murder or manslaughter, or whether excusable or not, is to be gathered from the entire body of the testimony. To use a deadly weapon justifies the inference, that the accused meant to kill, but whether he was excusable on the ground of se defen- dendo, depends on the facts and circumstances with which he was environed at the time. The law esteems the life and limb and bodily safety of every human being equal; therefore ev^ery man may protect his life and limb at whatever hazard, but the danger must be pres- ent, immediate and imminent. A fear or apprehension, arising from previous threats, which have been commu- naunicated, ^afibrds no excuse — none whatever — unless 344 HEAD V. THE STATE. at the time of the killing an effort was being made to carry the threat into execution, and a necessity, appa- rent or real, existed at the time to slay, in order to pre- vent it. We discover no other substantial objection to the other instructions granted for the State. * * ** * * ***** The third instruction was also properly refused. The fact that a man is permitted by law to carry arms, and the further fact that many persons do bear about on their persons, deadly weapons, do not, in the slightest degree, diminish their responsibility for the improper use of them. We cannot, and do not sanction the proposition, that because the evil habit to some extent prevails of carry- ing deadly weapons, and the risk is thereby increased of an unlawful use of them, that, therefore, the law should look with more tenderness upon homicides com- mitted by this class of persons. The excuse for the practice is that it is done for self-protection. If how- ever, instead of this, they are used for offence, and upon persons unarmed, there is no reason, grounded either in correct sentiment, or in the principles of law, which would demand any relaxation or loosening of the criminal jurisprudence. It was always the docti-ine of the law, that if a man arms himself for the fight, and draws his adversary on to the conflict, and slays him, it is murder. In what better light does he stand, who is habitually armed, and upon a sudden quan-el ' and fight with an unarmed adversary, slay him — that is, if he push the quarrel on and invite the blow. A previous arming, as preparation for a rencounter, evinces deliberation, and is proof of express malice. But we repudiate with the Circuit Court, the idea con- tained in this instruction, '" that if an armed person (not with reference to a controversy .with the deceased) became involved in a difiiculty with deceased, and took his life with such weapon, that malice cannot be inferred simply from the fact of the use of such weapon." This would give very large immunity to those who SYLLABUS. 345 habitually go armed, and would apply a different measure of responsibility for the results and conse- quences of their difficulties, from those who go about unarmed. We have said that the law infers from the use of a deadly weapon, an intent to kill; and if the facts and circumstances do not show excuse and justi- fication, it is criminal and malicious; if the weapon be drawn from its accustomed resting-place in the belt or pocket, it in no degree mitigates or relieves the act. The question still remains, "Was the homicide necessary — was there excuse or justification? -» * * * * * * * * * * The judgment was reversed' on otTier grounds. RIPPY V. THE STxiTE. [2 Head, 217.] Supreme Court of Tennessee, NasTiviUe, December . Term, 1858. Robert J. McKnsnsrEY, | Robert L. Cartjthees, \ Judges. Archibald Wright, ) Excusable homicide — Threats — Imminence of the Danger — Appear- ances — Necessity produced by slayer — Non-felonious attacks. 1. The fact that the deceased made violent threats against the life of the defendant long before, and up to a short period of the killing, and that these threats came to a knowledge of the defendant, will not justify the defendant in Idlling the deceased on sight. Such a proposition would be monstrous. [Ace. Evans' case, ante, p. 329; Lander's case, post; John- son's case, post ; and others.] 2. To excuse the defendant where previous threats have been made, he ought to be reasonably satisfied at the time of the killing that the deceased was doing some overt act, or making some demonstration showing a pres- ent intention of carrying such threats into execution. [Ace. Evans' case, ante, p. 329; Lander's case, post; 1 East, P. C, 272. And see note to Orainger's case, ante, pp. 242 et seg.] 346 EIPP'^ V. THE STATE 3. To excuse a homicide, fhe danger of death or great bodily injury must either be real or honestly beUeved to be so at the time, and upon suf- ficient grounds. It must be apparent and imminent. To constitute the defence the belief or apprehension of danger must be founded on sufficient carcumstancee to authorize the opinion that the deadly purpose then exists, and the fear that it wiU at that time be executed. [Ace. Dyson's case, ante, p. 304; Wesley's case, ante, p. 319; note to Grainger's case, ante, p. 242; Williams' case, ^os!!. Conir-a, Philip's case, ^os<; Carico's case, ^os<; Bohannon's case, ^os<.] 4. Even if sufficient cause to fear does exist, but the deed is not perpe- trated under the apprehension it is calculated to inspire, or the fear is feigned or pretended, the defence wLU not be available. 5. So, a case must not only be made out to authorize the fear of death or great bodily harm, but such fear must be really entertained, and the act done under an honest and well-founded belief that it is absolutely necessary to kUl at that moment, to save himself from a like injury. 6. 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 injurj-. Past threats and hostile actions or antecedent circumstances can only bo looked to in connection with present demonstrations as grounds of appre- hension. [Ace. Evans' case, ante, p. 329; Lander's case, post; Williams' case, post ; Robert Jackson's case, post ; and others.] 7. A real or apparent necessity brought about by the design, contriv- ance or fault of the defendant is no excuse. [Aec. Adams' case, ante, p. 208 ; note to Stoffer's case, ante, p. 220.] 8. If any less injury than death or great bodUy harm is feared or indi- cated by the circumstances, the plea of self-defence wUl not be sustained, but the degree of crime may be reduced. [Ace. Thompson's case, ante, p. 92 ; John Kennedy's case, ante, p. 106 ; Benham's case, ante, p. 115 ; Wilt- 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 murdei' in the second degree. W. H. Wisener, for the plaintiff in error ; John L. T. Sneed, Attorney-General, for the State. Caeuthees, J., delivered the opinion of the Court : James Eippy was indicted in the Circuit Court of Bedford County, for the mnrder or Houston 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 — APPARENT DANGEK, 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, v^as 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 sa 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 the 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 EIPPY 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 cLuestion 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 affirmed. SYLLABUS. 349' WILLIAMS V. THE STATE. [3 Heiskell, 376.] Supreme Court of Tennessee, NasTimlle, Becemher Term, 1871. A. O. P Nicholson, Chief Justice. P. TUENEY, Robert McFarland, Jas. W. Deadeeick, [Judges. Thos. J. Freeman, John L. T. Sneed, Old grudge — Killing in self-defence — Imminence of 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 _sho\vs 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, j). 199 ; Copeland's ease, 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 aii 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 ; Eippy's case, ante, last case ; Dyson's case, ante, p. 304 ; Wesley's case, ante, p. 319. Contra, Philip's case, post ; Carico's case, ■post ; Bohannon's case, post.'\ 3. Where the proof showed that the defendant was, when drunk, a blood-thirsty and reckless bidly ; that he entertained a deadly spirit of re- venge 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 endeavored in various ways to provoke a difficulty v,-it\\ 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 the grounds on which it was entertained, and 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 350 WILLIAMS V. THE STATE. moment of the killing, a verdict of murder in the second degree was sus- tained, althougli the proof fully showed that the defendant did the killing under an honest apprehension, that the deceased would kill him in some of his drunken moment*. 4. It is not enough that the defendant honestly believed that his own life was in danger, or that he was in danger of great bodily harm from the deceased, at some future time ; but he must have believed that the danger was real at the time; that It was apparent and imminent. There must have been words or overt acts at the time of the killing clearly indicative of a present purpose on the part of the deceased to take his life or do him some great bodily harm. [Aec. Lander's case, post ; Evans' case, ante, p. 329 ; Rippy's case, ante, last case ; Robert Jackson's case, post. Contra, Philip's case, post; Carico's case, post; Young's case, posi ,■ Bohannon's ca,se,post.'] 5. The law as laid down in Grainger's case, ante, p. 238, and explained, analyzed and defined in Kippy's case, ante, last case, is stated at length, ^and held to be the governing law of this case. Nicholson, Ch. J., delivered the opinion of the Court : At the November Term, 1871, of the Lincoln County Circuit Court, John C. Williams was tried for the mur- der of Toliver K. Garret, and convicted of murder in the second degree, and sentenced to the penitentiary for twenty years. His motions for a -new trial and in arrest of judgment having been overruled, he has appealed to this Court. The last and most important question raised, is, as to the sufficiency of the evidence to support the verdict. The settlement of this question makes it necessary tu examine with care the evidence in the case. The first witness for the State was William Edwards. He proves that Garret was killed about the 1st of Sep- tember, 1870, at witness' house. He was shot by de- fendant with a shot-gun, and did not live a minute. Garret was employed by witness to build a stable, but he was not at work that day. He was at the witness' house early in the morning, and afterwards was at wit- ness' and defendant's still-house, and was drinking, but remained but a short time, and made no enquiries for, or said anything about defendant. Garret returned again to the still-house in the evening. Witness and defend- STATEMENT OF THE FACTS. 351 ant were gearing up the team to liaul some brandy to Avitness' house, which was about a quarter of a mile distant. Defendant's house was about a mile distant. When Garret returned to the still-house in the evening, he " came cursing, ripping and swearing." He got off his horse, took the proof vial, sunk it into a barrel of brandy, came to where defendant and witness were, put his thumb upon the mouth of the vial, as if he was going to try the bead, struck the vial in his hand, and looking at defendant, drank a toast, which was a vulgar toast. It was not a toast of friendship or health, but was a vulgar toast. Defendant said to witness, " I must leave here, or I will have a difficulty with Garret." Wit- ness advised him to go, to avoid a difficulty with Garret. Defendant then left, and went to witness' house. Garret was at the stiU-house about half an hour. Witness left the still-house a short time before Garret, leaving at the still-house. Garret, Mcintosh and Stroud. Defendant had left the still-house some time before witness did. Garret overtook witness and Tillery, and the three went together to witness' house; witness walking, Tillery driving the wagon, and Garret riding horseback. On the way Garret pulled out his pistol and waved it. This was about three hundred yards from witness' house. The pistol was then put up. They approached the house ■on the east side. Witness pulled down the fence to let in the wagon, but Garret leaped the fence with his horse before it was pulled down. When the three got in sight of witness' house, they came to the road leading to Garret's house, which passed about forty yards from witness' house. Witness tried to get Garret to go on his road home, saying to him, " yonder is Williams' horse." Garret said, " I have got to have another dram." After they got into the house, witness said to Garret, "if I give you another dram, will you go off? " and he said he would. But before this, Garret had helped witness, defendant and Tillery, to unload the wagon. After wit- ness gave Garret the dram, he got on his horse and started off. He ^.fterwards came back, and called witness 352 WILLIAMS V. THE STATS. out, and the two were talMng about exclianging some brandy for bacon. Garret said, " there is one fellow in the house that he would go that far in hell for," (meas- uring about twelve inches on his arm.) Tillery and defendant were in the house at the time. Garret and TUlery were unfriendly at the time, but they spoke to each other. Witness says, that when Garret went into the house when they arrived with the brandy, there were only two or three words passed between him and de- fendant. While witness and Garret were talking about the exchange of brandy for bacon, defendant stepped to the door, and said, " Garret, you have come for a fuss, and by God, if you don't mind you will get it." Garret replied, "just walk out, and you can have it. I will give more than you can take, or can carry off from here."' When Garret said that, defendant stepped back and got his gun, and then stepped out on the puncheon between the houses, and said, " are you in the same notion still ? " and defendant shot him. When Garret saw defendant with the gun, he said, " by God, let it come." He was at the time, sitting on his horse, about eight steps from the house. His pistol, a five or six shooter, was in his left pants' pocket. He was a left-handed man. Garret had been living in the neighborhood about two years. When sober he was a peaceable man, but when drunk he was a dangerous one. He was drunk that day. He was a small man, tolerably stout, and a little larger than defendant. While unloading the brandy. Garret and defendant did not speak One had one end of the barrel, and the others the other end. Garret did not draw,, or attempt to draw any weapons, after he came to the house. At the time defendant said to Garret, "You have come for a fuss, and by God, if you don't mind you can get it," Garret had not said anything to de- fendant, or about defendant ; that is, did not mention defendant's name. It was about eight steps from the house when Garret said, " He would go twelve inches in hell for a fellow in the house." Milly Edwards, for the State, proved that defendant STATEMENT OF THE FACTS. 353 was at her house the day Garret was killed. Defendant came first. After he got there, he said, " he had seen Garret at the still-house, and Garret was cutting up down there ; that Garret had said nothing to him, but he knew Garret was pitching it all at him." Defendant got his gun and called for powder. He sat down and laid the gun across his lap. This was before Garret got in sight. Witness saw Garret coming and told defendant to go and hide from him. He said, "he had been running long enough, and did not intend to run any further." He then told me and Mrs. Fowler to go into the other room. He then saw Garret coming, and got up and set the gun behind the door. Witness told defendant to run. He said, "he had given up his house once to Garret at the Plains, and he was not going to run any more." Witness saw Garret when he came up. He was not doing anything. He came up behind the house, after he started oflf, and talked with Edwards. The gun belonged to Williams ; he left it at Edwards' some time, in passing two or three weeks before. He took the gun off with him. She did not see the shooting. Garret rode close up to the house when he came back. Defendant was sitting down. Witness was standing up. Mrs. Fowler, for the State, proved that she was at Edwards' the day Garret was killed. Defendant said, "if Garret comes up, he intended to kill him, he had run long enough." He had the gun across his lap scrap- ing it ; said to me to go into the other house. Garret came up and said " howdy " to me, and nodded his head to defendant; but defendant _ did not speak. Garret came up horseback ; was off his horse when he spoke. Before Garret came, defendant said he had run his last time. Witness left before the killing. On cross-examination, witness said, the first she saw of defendant, he was sitting in the door, with the gun in his hand. Garret walked up to the house and nodded. She don't know whether he spoke to witness or defendant. This was all the testimony of the State, as to what occurred at the house at th« time of the killing. 354 WILLIAMS V. THE STATE. Byers, for the State, proved that, on the day of the difficulty at Pleasant Plains, about six months before the killing, defendant came to him for a gun. He did not get it. Defendant made no threat against Garret. Garret wanted witness to get half a pint of whiskey from defendant's grocery, saying that he did not want to go there ; that he did not want to meet defendant. Garret had a shot-gun and pistol. He was very drunk that day ; heard him make no threats against defendant ; he was inclined to be boisterous when drunk. John J. Rauls, for the State, proved that he was at the Plains the day of the difficulty; saw some demonstra- tions between defendant and Garret that day ; heard no threats by defendant; saw Garret knocking around on the streets with a gun ; at the same time defendant came into witness' store, and got a shot-gun and loaded it. He next saw defendant when Garret was down on the ground or platform; defendant had a gun, and said, " shoot him " or " kill him " ; this was soon after defend- ant got the gun. Heard Garret say nothing at the time ; was very drunk, and down on the ground. Defendant did not try to shoot Garret. M. D. Hutchinson, for the State, proved that, the even- ing after the difficulty, he was with defendant ; he said Garret said to him, that he, Garret, was one of the boys that feared no noise ; and defendant said that was the first time he knew that Garret had anything against him. J. M. Davis, for the State, proved that he went after defendant after Garret was killed ; did not find him at home. Afterwards, went to Limestone County, Ala., and arrested him. Buck Eoper, for defendant, proved, that about a year before the killing, he rode out from Pleasant Plains in company with Garret and defendant. Witness rode be- tween them. Garret told defendant " not to laugh at his stirrup leather, if it was a rope." Defendant said he had not laughed at his rope stirrups. Garret said he was one of the boys that feared no noise, although one hun- STATEMENT OF THE FACTS. 355 dred and twenty miles from home. He repeated this expression ten or fifteen times. "When he used it first he drew a pistol. Defendant asked him if he wanted a fuss ; he said he did. Defendant told him to put up the pistol, he had nothing against him, and he put it up. Garret drew the pistol three or four times. Grarret told witness to ride on, that he might settle it with defendant. Witness told him " he would not do so ; that he did not want him to kill defendant." This was about a mile from the Plains. When they got to the forks of the road, defendant and witness turned off to go home. Garret got down and hitched his horse to a bush, and pulled out his pistol and wanted defendant to fight him ; de- fendant rode on, and Garret followed him about one hundred yards. Defendant told him to put wp his pistol ; was all he said, and Ga(rret put it up. Witness is the nephew of defendant. Garret was about half drunk ; he did not present his pistol at defendant. Dick Burnett, for defendant, proved that on the even- ing of the difficulty detailed by the last witness^ Garret came by his house ; said he had a fuss with defendant ; wanted him to fight it out fair ; that defendant ran off. Witness told this to defendant four or five months before the killing. R. M. Dunlap, for defendant, proved that he witnessed the difficulty at Pleasant Plains. He was in the front room of defendant's grocery, with defendant, TiUery and others ; saw Garret coming across the street with his gun. Defendant and TiUery both remarked, "Yonder comes Garret for a fuss." All went into the back room, except the defendant, and commenced playing cards for fun. Heard Garret come into the front room, and stop in there for a time, and heard a rattling of glasses. Garret came into the back room and commenced cursing, and said he could beat a certain man at his own game. Til- lery soon got up and started out. Garret jumped up, grabbed his gun, and said he would kill them. Defend- ant jumped over the counter, and went out the front door with TiUery, Witness seized the gun and took the 356 WILLIAMS V. THE STATE. caps off, and gave it back to Garret. Garret went hurriedly to the front door, and asked " whicli way have they gone ? " Witness told him a contrary direction from that they had gone. Never heard Garret make any threats. About ten minutes afterwards, saw Garret with a pistol belted round him. Garret was drunk. Saw him lying on the ground. Witness knocked him down for striking him. Defendant came up with a gun and said, " kill him." Garret went to Hodges' store, and asked if they had gone in there. Hodges met him at the door, and told him " Ko, not to come in there ; there were some ladies in there." He said he would go in, and presented his gun at Hodges, and snapped* it. Hodges was in the act of throwing a weight at him, when witness " hollered " not to throw ; there were no caps on the gun. Hodges knocked him down. Defendant put up his gun after the difficulty. Gillespy Riley, for defendant, proved that, in 1869, Garret told him he and defendant had had a fuss that day, and that " if defendant would not shoot it out, or fight it out, it would have to stop right there ; but if he ever came to his house to abuse him, as he had done once, he would hurt him." On cross-examination, he said, in the same conversation, that defendant, Tillery, Daniel Hardin and Jim Vickers had come to his house in disguise, and abused him, and if they ever came again he would hurt them. Irwin Baker for defendant, proved that, last spring was a' year, saw Garret with a shot-gun in his wagon. Asked him what he was going to do with it. Said there was a good many squirrels, and he would shoot them if they came in his way. Said that he had been run over and imposed upon by men on his own premises, and if it happened again he was going to defend himself, and his wife and children. He did not say it was defendant. Witness told defendant of this. On cross-examination, he said two of the parties in disguise were Daniel Har- din and Jim Vickers. At the time witness told defend- ant what Garret said, witness says, " he approached me STATEMEIiTT OF THE EACTS. 357 In a rough manner, cursed me, said Grod damn you, hold on there; God damn you, don't speak to me again. Said Grod damn you ; I was frightened." Wit- ness then told him what Garret said. Thomas Allison, for defendant, proved that he was at :the still-house on the day of the killing ; late th-at even- ing heard Garret swear he would kill defendant before sunset, or defendant would kiU him. Said it twice. He did not tell defendant of it. Garret had a pistol— six- shooter — in his right pants' pocket. His conversation with Garret was in the still-house ; no one present. It was an hour and a half after defendant left before Garret left. Defendant came back afterwards, and told witness Garret was killed up there, and to go and take care of him. Garret left half an hour after he made the threat. Witness says he did not say to A. D. Anderson, in Fay- etteville, on Tuesday last, that Garret said, if defendant •ever interrupted him, he would kill him. A. D. Anderson, for State, proved that, on last Tues- day, in Fayetteville, Thomas Allison told him that Gar- ret said, if defendant ever fooled with him any more, he :would kiLl him. The question to be determined upon this evidence is, whether the verdict of murder in the second degree is sustained thereby. As the jury have found that defend- ant was not guilty of murder in the first degree, it is unnecessary for us to enquire whether the killing was .attended with that deliberation and premeditation requi- site to constitute murder in the first degree. The proof as to the killing by the defendant, with a deadly weapon, is clear and uncontradicted. The pre- sumption, therefore, is, that it was done with malice. This presumption stands until it is rebutted by evidence showing, either that the killing resulted from passion produced by sufficient provocation, or by evidence that the killing took place under circumstances which excused the defendant for taking the life of the deceased, either ^o save his own life, or to prevent great bodily harm. 358 WILLIAMS V. THE STATE. It is abundantly shown by the evidence, that there was an old grudge between the defendant and deceased. On the part of the deceased, it is shown that he believed the defendant, together with others, had visited his house in disguise, and had abused him ; in what way the evidence does not show, but it was shown that the abuse was such that the deceased brooded over it, and cherished the purpose of having revenge. This feeling of revenge is shown to have been cher- ished by the deceased down to the very moment when he was killed. Almost the last words he uttered, were, that he would go twelve inches into hell to have revenge. On the part of the defendant, it is -shown that his hos- tility to the deceased grew out of the difficulty on the road-^when the deceased endeavored to provoke him into a difficulty — and out of the conduct of deceased in Pleasant Plains, when he was driven out of the house and forced to seek safety in flight. His hostility to the deceased on that occasion was manifested by his ap- proaching him when he was lying on the ground, knocked down, calling for him to be shot or killed. It was dis- tinctly manifest, only a few minutes before the killing, in his declarations to the two female witnesses, that he had been driven from his home by the deceased, and that he had run from him for the last time, and that if deceased came there he would kill him. An old grudge is, therefore, clearly proven, and the law presumes that the killing occurred on this old. grudge, unless the proof shows a new and sufficient- provocation — and then the law would presume that the killing was on the new provocation — and if that provoca- tion was sufficient, in law, to rebut the presumption of malice, the offence would be voluntary manslaughter or in self-defence, dependent upon all the proof. Was there sufficient provocation for the killing to rebut the pre- sumption of malice ? It is not shown that the defendant was informed of the threat made at the still-house, as- proved by Allison — if it be conceded that any such threat was made there — and if it was made, and had been com- DISCUSSION OF THE FACTS. 359 municated to defendant, it would not be such provoca- tion; because no words are regarded as sufficient provocation in law. Defendant admitted to the female witnesses that the deceased had said nothing to him at the still-house, but his conduct there had impressed him with the belief that deceased was seeking to bring on a difficulty. This was not such provocation as excited Ms passions, and impelled him at once to resent the insult, but it only produced the conviction in his mind that it would be prudent for him to leave, in order to avoid the difficulty which he apprehended. After the deceased came to the house he spoke only two or three words to defendant, according to the testi- mony of Edwards, and what these were we are not informed. According to the female witnesses, deceased, when he came up, nodded and said "howdy." It is not certain, by the evidence, to whom he nodded, or to whom he said " howdy ; " nor is it shown that there is any- thing peculiar or significant in the "nod." Defendant took no exception to deceased's conduct on that occasion ; they went out together and helped unload the wagon. Up to this point of time there was no provocation. But the deceased got on his horse and started off, and very soon returned and called for Edwards. While conversing with Edwards about exchanging brandy for bacon, he made the remark that " there was a fellow in the house he would go twelve inches in hell for." The only proof that defendant heard this remark, is, that it was made within eight steps from the house in which defendant was sitting, and as the distance was such that the remark might be heard, it is inferred that he did hear it. If this be true, as significant as the language was of the malice of the deceased towards either the defendant or Tillery — for both were in the house, and he had the same cause for hostility to both — yet, the law regards no lan- guage, however violent or offensive, as sufficient provoca- tion for taking life. But if defendant heard the off'ensive remark, the proof shows tha.t it did not excite his pas- sions and impel him to do the killing under the influence 360 WILLIAMS V. THE STATE. of passion ; but lie rose from his seat and, without get- ting his gun, stepped to the door and said to the deceased: " You have come for a fuss, and by God, if you don't mind, you can get it." At that time deceased was sitting on his horse , he made no demonstration by drawing his pistol ; it does not appear from the proof that he knew defendant had a gun behind the door in the house. He replied: "Just walk out and you can have it. I wiU. give you more than you can take or carry off from here." Without saying more, defendant retired from the door, got his gun, and returned ; but even then he did not in- stantly fire, but said, " are you in the same notion still ? " "When the deceased saw defendant return with his gun, his only words were, "by God, let it come," and there- upon defendant fired and killed him. There was no manifestation of passion on the part of defendant, and there is nothing shown on the part of de- ceased which the law regards as a sufficient provoca- tion. We are, therefore, of opinion that the killing was with malice, unless the proof shows that the defendant was in such imminent danger of his life, or of great bodily harm, as wiU make the killing justifiable in self- defence. It is insisted fdr defendant, that the facts in proof bring this case within the principle of Grainger v. State,* 5 Yerg., 459. Judge Catkon stated the facts upon which his opinion rested, as foUows . " Grainger used aU the means in his power to escape from an overbearing bully. He was shuddering with fear, and his last hope of pro- tection was defeated when Rainey's door continued closed against him. He shot only to protect his person from threatened violence, and that great. It was certain. Henson sat quietly on the fence ; the woman and Eainey did not open the door; they, no doubt, were 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. From Henson no assistance could be hoped for." Upon these facts Judge ^Anie, p. 238. rippy's case quoted. 361 Catron said: ""Was there malice prepense, in this case of homicide, so as to exclude the benefit of clergy within the 23 Henry 8, c. 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 be- lieved. He behaved like a timid, cowardly man ; was much alarmed; in imminent danger of a violent and instant assault and battery, and was cut off from the chances of probable assistance." In the case of Hippy V. The State," 2 Head, 218, Judge Caruthbes, after recog- nizing the doctrine of Grainger v. The State, as explained by that of Copeland v. The State,'' 7 Humph., 479, because of the perversions and misapplications of that case by advocates and juries, proceeds to lay down the law as follows: "The law on the subject is, that, to excuse a -homicide, the danger of life or great bodily injury must either be real or honestly believed to be so at the 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 seme 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 demonstrations as grounds of apprehension. To constitute the defence, the belief or apprehension of danger must be founded on sufiicient circumstances to authorize the opinion that the deadly purpose then ex- ists, and the fear that it will at tTiat time be executed. The character of the deceased for violence, as well as his animosity to the defendant, as indicated by words and actions, then and before, are proper matters for the con- sideration of the jury o; the question of reasonable apprehension. Even if sufficient cause to fear does exist, but the deed is not perpetrated under the apprehensior it is calculated to inspire, or the fear is feigned or pre- tended, the defence will not be available. So a case must not only be made out to authorize the fear of death or "Ante, p. 345. '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 kUl 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 dravsdng 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 lake 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, darfgerous 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 OF THE FACTS. 363 evidence showing whether defendant was guilty of the outrage complained of hy 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 the 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 stiU-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 thfe 364 WILLIAMS V. THE STATE. killing? and did lie 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 time ; 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. K 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 CONCLtrSION UPON THE JFACTS. 365 deceased sitting on his horse, with no pistol drawn, and no indication of an intended attack, with Edwards stand- ing by him, he conld not have believed that he was in imminent danger. Bnt 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 God, 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 questian 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 with his pistol in Ms 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 stUl 'i " "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. LANDER V. THE STATE. [12 Tex, 462.] Swpreme Court of Texas, Tyler, 185 J,. John Hemphill, Chief Justice. Abker S. Lipscomb, i , . , ^^ ,. Royall T. Wheeler, ) ^^^^c/a^e Justices. Homicide in self-defence— Declarations— Threats and hostile CONDUCT — Imminence of the danger — Killing on sight — Degrees OP homicide. 1. Where the attomey 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 " he had pis- SYLLABUS. 367 tols tied to his saddle ; " and the defence thereupon proposed to prove by the witness that the accused " uttered no hostile expressions about the de- ceased, and spoke of no difficulty witli any one," it was held that the offer was properly rejected. 2. The declaration of an intent to kill 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 ta encounter each other ; and although the jury believe from the evidence that the threats would have been executed at the first opportunity, will not justify or excuse the party threatened in lying in wait and killing 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 miu-der in the first, to murder in the second degree. [Aco. Scott's case, ante, p. 163; Evans' case, ante, p. 329 ; Rippy's case, ante, p. 315 ; Williams' case, ante, last case. Contra, Philip's case, post; Carico's case,pos<; Young's case. ^os;!; Bohannon's case, ;josi.] 3, Mere naked threats, unconnected with acts, can never afford 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 viith a deadly weapon. [Aoc. Evans' case ante, p. 329 ; Rippy's case, ante, p. 345 ; and others.] 1. The right of self-defence discussed at length, and many authorities cited to the general effect 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 ; tliat this right does not extend to the right to kiU in order to ward off' 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 mm-der, where an attempt is made to prove that the liomicide 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 effort 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 wiU 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 will 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 killing 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 dfegree. 368 LAWDEE V. THE STATE. Alfred B,. 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 o*f Jeflferson, 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, Avhere 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 CHAEGE TO THE JUEY. 369 barrel of his gun. The deceased did not fall upon the first fire, hut 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 peculiar 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 law 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, butfrom a just and well- grounded apprehension, for the preservation of his own life from a threatened attack from the deceased, inflicted the mortal wound by which death ensued, then he is guilty of murder ifi 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 could not avoid the difficulty, without endangering 370 LANDEE V. THE 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 ona's life was in imminent danger; otherwise the killing of the assailant wiU not be justifiable self-defence." Henderson and Jones, for the appellant; Thomas J. Jennings, Attorney-General, for the State. Wheeler, J., delivered the opinion of the Court : To reverse the judgment of conviction, it is urged th^J; the Court erroneously excluded evidence proposed by the accused ; and also that there is error in the charge of the Court. The attorney for the State had asked a witness hoTff 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 " he had pistols tied to his saddle ; " and the defence thereupon proposed to prove by the witness that the accused " uttered no hostile a This is uot the least important error of this singular charge, although overlooked by counsel and by the Court. The law is, a reasonable appear- ance of danger. See Neeley's case, ante, p. 101 ; Lamb's case, post ; ^er^ dith's case, ante, p. 298 ; Maher's case, ante, p. 290, and other cases undiw this Subdivision, for rulings upon similar errors. OPINION — THREATS— MURDER IN SECOND DEGREE. 371 expressions about the deceased, and spoke of no diffi- culty with any one;" which, upon objection, the Court excluded ; and this is assigned as error. The attorney for the State had not questioned the wit- ness as to any statements or conversations of the accused at the time. And yet it is insisted that the accused had the right to prove that he did not use threatening language, or give expression to any hostile intentions toward the deceased. The proposition was to prove that the accused did not say, when there had been no question asked as to what he did say. It is scarcely necessary to say that a party could not thus make evidence for himself; that the testimony proposed was irrelevant ; did not conduce to prove any fact pertinent to the issue ; was no part of the res gestae ; nor of a conversation drawn out by exam- ination on the part of the State ; and was very clearly inadmissible. Other similar questions upon the admissibility of evi- dence were reserved ; but they are not deemed of a char- acter to require more particular notice. And, indeed, the only matter presented by the record which does require notice, is the part of the charge of the Court, in which the Court treated of the effect of the previous threats of the deceased. On that subject, the Court charged that, ^' if the defendant, not being moved by a wicked and malicious intent, but from a just and well-grounded ap- prehension, for the preservation of his own life from a threatened attack from the deceased, inflicted the mortal wound by which death ensued, then he is guilty of mur- der in the second degree, and not murder in the first degree." By a "threatened attack" it is evident that the Court meant the previous threats of the deceased. The Judge could have meant, and the jury could have understood him to mean nothing else ; for there was no pretence of attack or threatened attack by the deceased at the time of the killing. Divested of the peculiar phraseology which obscures its meaning — that is, the expressions "not being moved by a wicked and malicious intent," 372 LANDEK V. THE STATE. " well-grounded apprehension," and " threatened attack -^^ and viewed in reference to the facts of the case — the legal proposition which the charge announces is, that previous threats, of themselves, and unconnected with any mani- festation at the tirde of the killing of an intention to carry them into immediate execution, will extenuate the crime and penalty of a wilful, premeditated and delib- erate homicide, committed in cold blood, by one lying in wait purposely to take the life of his adversary, if the motive which actuated the slayer was the preservation of his own life from future, and of course, contingent dan- ger, apprehended by violence from the deceased. Or, in other words, that bare, naked threats, unconnected with acts, may extenuate and reduce the crime of murder, committed by "premeditated and deliberate killing," which the statute defines to be murder in the first degree, to murder in the second degree. The annunciation of such a proposition from the bench is calculated to arrest attention. And it is natural to en- quire upon what principle it is that this effect is ascribed to previous threats. It cannot be on the ground that they constitute what the law deems a sufficient provocation to extenuate the guilt of homicide. For that can never be where the killing is deliberate, or of cool purpose. The extenuation admitted in cases of provocation is the in- dulgence which the law extends to the first transport of passion, in condescension to human infirmity; to the furor hrevis which, while the frenzy lasts, renders a man deaf to the voice of reason. And " it is the nature of the provocation, and not the mere effect of it on the mind of the prisoner which the law regards." 2 Stark Ev., 722. Therefore, "no affront by bare words or gestures, however false or malicious, and exaggerated with the most provoking circumstances, will free the party killing from the guilt of murder." 1 Russ. Cr., 514. And the plea of provocation will in no case avail, where there is evidence of express malice, (lb., 520), and it does not ap- pear that the party killing acted upon such provocation. For "in all cases of provocation, in order to extenuate the PBOVOOATION BY WORDS — THREATS. 373 oflfence, it must appear that the party killing acted upon such provocation, and not upon an old grudge." Whart. Am. Or. L., 242 " The provocation which is allowed to extenuate in the case of homicide must be something which a man is conscious of, which he feels and resents at the instant the fact which he would extenuate is com- mitted." 1 Russ. Cr., 513-14. It could not have been intended to invoke any princi- ple of the law upon the subject of provocation, as having any, the remotest application to the case before the Court ; or to rest the doctrine asserted as to the effect of previous threats upon this ground. For if there had been what the law regards as provocation sufficient to extenuate the crime, it could not have been murder of either degree ; but would be manslaughter only. There is, if it were possible, even less, certainly not more reason in the law, for holding mere naked threats, uncon- nected with acts, to amount to the justification or excuse of homicide on the plea of self-defence. This defence proceeds on the ground of the justification or excuse, not the mere extenuation of homicide. It does not extenuate or reduce from one degree of crime to another, but it wholly acquits of crime. Threats communicated may ■excite fear ; but they cannot occasion danger. They may •enable the party to guard against the threatened mis- -chief, and thus avoid the danger. But they can never afford a justification or excuse for the commission of un- lawful acts ; or, of themselves, justify an attack, or even an assault, much less a killing, by lying in wait with a deadly weapon. The right of self-defence rests upon a law of necessity. It is the natural and inalienable right of every human being, and it is to be held sacred and inviolable by any law of human or civil institution. It does not depend upon any law of society. It is derived from a higher source ; is coeval with man's natural being ; and hence it is with truth and reason said, that self-preservation is the first law of nature. " Self-defence, therefore," says -Blackstone, " as it is justly called the primary law of na- 374 LANDER V. THE STATE. ture, so it is not, neither can it be in fact, taken away bjr the law of society." 3 Bla. Com., 4. It may be rightfully exercised by every human being, whether beneath a des- pot's rule or on freedom's soil ; whether he exists in a heathen land, or breathes beneath a christian sun. But still it is a law of necessity ; and while in its just and proper exercise, it places the subject of it above and beyond the influence of the civil or municipal law; renders him irresponsible for his acts done by its permission, and not amenable to the civil authority;, yet it has its limit, as well defined as is the limit of any right which a man may exercise in subordina- tion to the laws of society; and that limit is where the necessity which gave the right ceases. The neces- sity and t^e right are, from their nature, co-exten- sive and concurrent. Where the necessity arises the right instantly accrues ; and when the necessity ceases the right no longer exists. There is no difficulty in com- prehending what is to be understood by the right of self-defence ; and if none were disposed to transgress its bounds, there would have been no necessity for the enact- ing of laws for the prevention of wicked, malevolent and vindictive violence, or the wanton exercise of a cruel, revengeful and malignant spirit. But experience has shown that laws are necessary to ascertain and prescribe the true limit of the rightful exercise of this right of self- defence, and to restrain and punish the transgressor. The rules and principles which the law has recognized, and which it enforces, do not undertake to restrain a man's natural right, but they afford it their necessary shield and protection by the restraints which they im- pose on those who would abuse its exercise, and under the cover and pretence of self-defence seek occasion for the indulgence of a spirit of malevolence, cruelty and re- venge. Those rules and principles have their foundation in the law of nature ; they are incorporated into and form a component part of the common law ; are sanctioned by the wisdom and approved by the experience of ages; they form the best exponent of the nature of the right;. THE RIGHT OF SELP-BEFENCE DISCUSSED. 375 and in an undeviating adherence to them, is to be found the hest and only sure guaranty for the protection and preservation of the natural and inalienable right of self- defence, which human wisdom has conceived or can devise. And whenever they shall be relaxed or departed from, it will impa,ir the estimate of the sanctity of human life, induce a loose estimate of its value, and tend to a state of society in which licentious, wanton violence may go unrestrained, brute force usurp the prerogative of the law, and every man become the avenger of his own wrongs; when no right of person or property may be esteemed sacred and inviolable, or will be enjoyed in security. It is the necessary consequence of the right of self- defence, and therefore it is the universally received principle and maxim of the law, that " a man may repel force by force in the defence of his person, habitation or property, against one or many who manifestly intend and endeavor, by violence or surprise, to commit a known felony on either. In such a case he is not obliged to retreat, but may pursue Ms adversary till he find him- self out of danger ; and if, in a conflict between them, he happeneth to kill, such a 'killing will be justifiable." Whart. Am. Cr. L., 254. "But a bare fear of any of these offenses " [murder, robbery and the like,] " how- ever well grounded, as that another lies in wait to take away the party's life, unaccompanied with any overt act, indicative of such an intention, will not warrant him in killing that other by way of prevention ; there must be an actual danger at the time." 1 East's Crown Law, 272. " To justify a homicide on the ground of self-defence, it must clearly appear that it was a neces- sary act, in order to avoid death or some severe calam- ity." 2 Stark. Ev., 721 ; 1 Coxe, 424.* " Or, from the nature of the attack which he is forced to repel, the party killing must have had reasonable ground of belief that there was a design to destroy his life, or do him some great bodily harm." Whart. Cr. L., 258, 259-60. "Wells' case, ante, p. 145. 376 LANDER V. THE STATE. " And in all cases of homicide excusable by seK-defence, it must be taken that the attack was made upon a sudden occasion, and not premeditated or with malice." 1 Russ., 661. "A force which the defendant has a right to resist must itself be within striking distance. It must be menacing and apparen-tly able to inflict physical injury, unless prevented by the resistance he opposes." People v. McLeod, 1 HiU, 377, 420 ; Whart., 260. " The belief that a person designs to kill me," it was said in a late case in North Carolina, " will not pre- vent my killing him from being murder, unless he is making some attempt to execute his design, or, at least, in an apparent situation to do so, and thereby induces me reasonably to think that he intends to do it immedi- ately." lb. ; 4 Iredell, 409. " The right of resorting to force upon the principle of self-defence, does not arise while the apprehended mischief exists in machination only." Whart., 260. "No contingent necessity will ayail ; and when the pretended necessity consists of the as yet unexpected machinations of another, the defend- ant is not allowed to justify himself by reason of their existence." lb., 255 ; 1 Hill, N. Y. R., 377 ; 3 Iredell, 186. There is and can be no pretence that the facts of the present case bring it within any of these rules, which ascertain and mark the limit of the lawful exercise of self-defence. There is no dispute about the facts. The accused was not the party attacked. He was the assail- ant ; not the deceased. There is no pretence of an attack, or threatened attack, from the latter, present and im- pending over the accused at the time of the commission of the homicide. The accused was the sole aggressor, on that occasion. There was at the time no danger, and could have been no apprehension of present danger from the deceased ; and, of course, there was and could be no present necessity, or well-grounded belief of the existence of present necessity of taking his life by the accused for the preservation of his own life. The ac- cused did not act on the defensive. Instead of endeavor- ing to avoid the necessity, he sought the occasion. THREATENED ATTACK — ^LYING IN WAIT. 377 Being apprised of the threats of the deceased, he went albout compassing his destruction. He prepared for the occasion ; unobserved, he watched, or was apprised of the movements of the deceased; was under no necessity of encountering, and did not encounter him in open combat, or on equal terms ; if even that, where the occasion was sought by him, would have been a defence ; but watched his opportunity, and when it was evident the deceased, if he had sought a rencounter, had given it over, at least, for the time, he pursued, and, unobserved by the de- ceased, took his position by the wayside, where, stiU unobserved, he waited his approach, and as the deceased was passing, shot him from under cover, without giving him timely notice to stand in defence of his life, or to make good his retreat ; and only sufficient to embitter the last moment of his life by the consciousness that he died by the hand of his enemy. We abstain fiom com- ment. It is unnecessary. It is very evident that to denominate this a killing in self-defence would be an abuse of terms. There manifestly was no immediate danger or pressing necessity to bring it within the principle which excuses a homicide committed for self- preservation ; no provocation, which the law will recog- nize, to extenuate or reduce the degree of the crime. There was, indeed, nothing attending, or giving character to the act which the law regards as matter in justifica- tion, excuse, or extenuation. There can be but one opinion as to the true character and degree of the crime. Nor could the Court have intended to rest the doctrine maintained, as to the effect of previous threats, on the ground that they supported this defence. For then they would have had the effect, not merely to extenuate from the first to the second degree of murder, but they would have constituted a complete justification or excuse of the homicide ; and, of course, it could not have been murder of any degree, or manslaughter ; but would be justifiable or excusable homicide. The error of the Court eAddently arose from confound- ing previous threats with a "threatened attack," or 378 LANDER V. THE STATE. menacing, present danger ; or, as the terms import, the manifestation by acts of a present intention of immedi- ately attacking ; and also from confounding malice in a legal sense, with malice in its popular signification, in which it is used to denote an evil or malevolent motive and disposition of the mind ; and from not bear- ing in mind that every intentional killing of any human being, by a voluntary free agent, of sound memory and discretion, unless justified by the command of the law, excused by its permission, as in the case of self-defence ]. or extenuated by some suificient legal provocation, or by being the involuntary consequence of some act not strictly lawful, is, in a legal sense, malicious ; and no enquiry can be instituted into the actual motive and disposition of mind which prompted the act, except by proof of the facts which make out the justification, legal excuse or extenuation. For all homicide is presumed to be malicious, and, of course, amounting to murder, until the contrary appears, from circumstances of alleviation, excuse or justification; and those circumstances which go to alleviate, excuse or justify, it is incumbent on the accused to make out in evidence, unless they arise out of the evidence produced against him. When the law makes use of the term malice aforethought as descriptive of the crime of murder, it is not to be understood merely in the sense of a principle of malevolence to particulars, but as meaning that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked and malignant spirit. 1 Russ. on Cr., 482. Malice, " in its legal sense, denotes a wrongful act done intentionally, without just cause or excuse." ] lb., 483 n. i., 5th Am. from 3rd London edit. " The legal import of the term *' it has been said, " diff'ers from its acceptation in common conversation. It is not as in ordinary speech, only an expression of hatred and ill-will to an individual, but means any wicked or mischievous inten- tion of the mind. Thus in the crime of murder which is always stated in the indictment to be committed with malice aforethought, it is neither necessary in support MALICE DEFINED — KILLING BY LYING IN WAIT. 379 of such indictment to show that the prisoner had any enmity to the deceased, nor would proof of ahsence of ill-will furnish the accused with any defence, when it is proved that the act of killing was intentional, and done without any justifiable cause." Per Best. J., 2 Barn. & Ores., 268 ; 1 Russ., 483, n. i. " Malice in law is a mere inference of law, which results simply from a wilful transgression of the law." 2 Stark. Ev., 674. It imports simply the perverse disposition of one who does an act which is unlawful, without a sufficient legal excuse therefor ; " and the precise and particular intention with which he did the act, whether he was moved ira 'Kiel odio, vel causa lucri, is immaterial ; he acts irialiciously in wilfully transgressing the law." lb. K the idea which the charge of the Court evidently conveys, that the real motive and disposition of mind which prompted the commission of the deed gives char- acter to the crime and determines its degree, were the law, then there could be no homicide which might not be reduced to murder in the second degree, or even to excus- able or justifiable homicide, no matter in what particular manner the homicide may have been committed. For if the motive is to govern in determining the degree of crime, then, of course, in that view it can make no diff'er- ence in what manner the killing was effected ; whether by lying in wait, " by poison, starving or torture," (in- stances given in the statute of murder in the first de- gree,) or by " other premeditated and deliberate killing ;" or whether " committed in the perpetration or attempt" to perpetrate any of the crimes mentioned in the statute, [Hartley's Dig., Tex. Stat., Art. 501] ; still the enquiry might be, By what real motive and disposition of mind the party killing was actuated ; and if the jury should be of the opiniou that it really was not " from a wicked and malicious intent, but from a just and well-grounded ap- prehension for the preservation of his own life " from future danger, it would only be murder in the second degree ; and with equal reason it might be held to be neither murder nor manslaughter, but justifiable homi- 380 LANDEE V. THE STATE. cide. For if the motive is to control, then, of course, it follows that we must search for and be governed by the true motive ; and if we are at liberty to suppose that a wilful, premeditated and deliberate killing may be from any motive which the law does not deem " wicked and malicious," as the charge supposes, then we may, with equal reason, be at liberty to suppose that the real mo- tive which prompted the act was not in the least repre- hensible; and, hence, conclude that the act does not merit the punishment even of murder in the second degree, or, indeed, any punishment whatever. It may be supposed that those native tribes, who, we are told, put an end to the lives of their aged and infirm, in order to relieve them of their suflFering, are not really prompted by a wicked and malicious intent, in the common accep- tation of the terms. Yet no one vnll suppose that our law would tolerate such a plea ; or suffer such a motive to be urged in extenuation of the crime. Of course it is not to be supposed that the Court ever thought of carrying the doctrine to any such extravagant length as this. The contrary is shown by the limiting of the extenuation, deduced from the real motive and disposition of the mind of the accused to murder in the second degree. But the illustrations are employed for the purpose of showing to what consequences it might lead, if the enquiry were once admitted into the real motive which prompted the act, as a ground of extenuation or excuse for the crime. It would confound all legal ideas and rules in relation to the degrees of homicide. As observed by Mr. Starkie, " Whenever the law defines a right or prescribes the performance of a duty, or prohibits a particular act, the wHful violation of the right, omission of the duty, or transgression without legal excuse, is necessarily illegal, without regard to intention ; it would be manifestly mischievous, and even inconsistent with the very notion of law, as a general rule of conduct, to aUow the crude opinions of individuals to supersede the force of law." 2 Stark. Ev., 673, Tit. " Malice." " Where & defendant is proved to have done that, the malicious DEGREES OF HOMICIDE. 381 doing of which is prohibited by law, malice is a prima facie inference from the very act, for he must be pre- sumed to have intended to do that which he did, and an intentional violation of the law is a malicious violation of it. lb. Every intentional killing without lawful justification, excuse or extenuation, is a malicious kill- ing, amounting, of course, to murder ; and " all murder committedby poison, starving, torture or other premedi- tated and deliberate killing," is murder in the first degree." [Hart. Dig., Tex. Stat., Art. 501.J Murder thus committed can be of no less degree. In such killing the law necessarily implies malice, from the fact of killing without lawful excuse, whatever may have been the real motive prompting to the commission of the deed. Every intentional killing is not necessarily murder. For it may be from a principle of inevitable necessity, and then it would 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 b(; manslaughter only ; or it may be done by the command or permission of the law, and then it will be justifiable or excusable homicide. But if it be unattended by any of those circumstances of alleviation, excuse or justification which will relieve the party killing from the guilt of murder— if it be murder within the proper legal meaning of that term; and 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. There can be no doubt, therefore, that the Court did err in the charge we have considered. But there is as little doubt that it was an error in favor of the appellant ; one which operated in his favor, and which, under the evidence in the case, could not possibly have operated to his prejudice. And upon no principle can it be maintained that for such an error this Court would be warranted in reversing the judgment. The cases cited by counsel for appellant (decided in Georgia and Tennessee) have not been adverted to, for 382 LANDER V. THE STATE. the reason that they were not deemed applicable to the questions arising in this case. In Howell v. The State, 5 Ga., p. 48, which was an indictment for an assault with intent to murder, the question was as to the admis- sibility in evidence of the threats of the party assaulted ; and they were held admissible in evidence. In the pres- ent case they were admitted without objection ; and, of course, there was and could be no question to be deter- mined upon this appeal, as to their admissibility. In Monroe v. The State," lb., 85, which was an indictment for murder, the same point was raised, and it was held that " Threats accompanied with occasional acts of per- . sonal violence, are admissible to justify the reasonable- ness of the defendant's fears, provided a knowledge of the threats is brought home to him." But there is no opinion advanced in the case which ascribes to mere threats, unaccompanied with acts, any such effect as is claimed for them in the present case. The other is the case of Grainger v. The State," 5 Yerger, 459, which 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. "Whart. Am. Cr L., 260. The language of the Court seems not to have been sufficiently guarded. Nor does there appear to be any precedent or authority in the law for the general 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 re- marked, that to do justice to the judgment of the Court in that case, it is necessary to look not alone to the lan- guage of the opinion, but to the facts of the case present 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 manslaughter,) but simply whether the homicide was, under the circum- stances, " of malice prepense, so as to exclude the ben- K Post. <^AnU, p. 238. SYLLABUS. 383 ■ Judges. Qeorge Robertson, ) Killing upon appeakances op danger — ^Killing on sight after es- caping FROM ASSASSINATION — ^THREATS. 1. Where a man has been threatened with death by a vindictive, reckless and determined man, and has once escaped assassination at liis hands, and his enemy has lain in wait to kill him ; and they accidentally meet, and his enemy on being questioned reiterates his purpose to kill him, at the same time putting his hand in his pocket, as if to draw a pistol ; and he there- 384 PHILIPS V. COMMONWEALTH. upon shoots and kills such enemy, and it afterwards turns out that his enemy had no pistol at the time, that fact does not render him culpable. [Ace. Shorter's case, ante, p. 256 ; Logue's case, ante, p. 269 ; Harris' case, ante, p. 276 ; and other cases of the same class.] 2. Under such a state of facts, it is erroneous to instruct the jury that they ought to find the defendant guilty of murder, unless they should also be of opinion that he, when he fired the first shot, had reasonable ground to bi'lieve, and did in good faith believe, that the deceased was then about to carry his threats into execution, and would do so, unless prevented by killing him, and that he had no other apparent means of escape. 3. The principle applicable to a mutual rencounter, or an afiray with deadly weapons, does not apply to a case in which the first escape from threatened assassination by a determined and persevering enemy would not probably secure the ultimate safety of the accused. The party once assailed by an enemy who has threatened to kill him, is not bound to run and thereby escape that assault, leaving the danger still impending, and, perhaps, increased by the act of running. [Ace. James D. Kennedy's case, ante, p. 137.; Carico's c&se, post; Bohannon's case, post; Young's case, post, note to Bohannan's case.] 4. It seems that under such a state of facts as those above stated, the 'person whose life is threatened and endangered, may kiU his adversary wherever he may chance to meet him. [Ace. Carico's case, post-l 5. But whether he may always hunt him for that purpose, the Court do not mean to intimate. [It seems from Carico's case, post, that he may ; but that part of Carico's case seems to be overruled by Bohannon's case, post.l Hooe & OaitJier ; Hunt, Beck & Clark, and C. A. Har- din, for the plaintiff in error ; John A. Harlan, Attomey- Greneral, for the Commonwealth. RoBEETSOK, J., delivered the opinion of the Court : Convicted and sentenced to be hung for killing, by pistol shot, his neighbor and wife's cousin, Madison Miller, the appellant, Richard Philips, appeals .o "^j Is Court for a reversal of the judgment, because, as he says, he had not a fair trial — the jury being confused and misled by instructions both bewildering and erro- neous. In testing the instructions, every deduction which the jury might have been authorized to make from the testi- mony, must be assumed as a fact proved. Tried by this rule, the following facts characterize the case, as exhibited in the record : 1. About four weeks before the homicide, Miller, armed with a pistol, went to a field, where the appellant and OPINION — THE FACTS STATED. 385 others were working, avowing his purpose to chastise a white hoy then and there in the employment, and con- fided by his father to the care and protection, of the appellant ; and the required surrender of the boy being refused, Miller, in a violent rage, pointing his pistol at the appellant, threatened to shoot him, and being, prob- ably, prevented by the presence of others, cursed and denounced him, and asseverated that, wherever he might see him again, he would shoot him. 2. The threat was afterwards, more than once, repeated to other persons, and Miller was once seen watching for the appellant, on the road he was expected daily to travel, and avowed his purpose to kill him. 3. Miller was a man of strong passions, unrelenting resentment, and rather peculiarly bold, reckless, and in- flexible in the execution of his avowed purposes. 4. On the day of the homicide, the appellant, on horse- back, going with his wife and brother to his field with a scythe and cradle on his shoulder, met Miller unexpect- edly, and enquiring of him whether he intended then to execute his threat. Miller answered that he did, and put his hand in his pocket, indicating an intention to draw his pistol. Whereupon, the appellant charged on him and shot him several times, until he was, apparently, dead. A rather feeble minded boy, who was with the appellant and his wife and brother, at the time of that fatal meeting, testifies to that conversation and demon- stration, as the only witness,' the wife being incompetent, and the brother being incapacitated by the joint indict- ment against the appellant and himself, without any apparent or presumable reason for joining him, unless the obj ect was to deprive the appellant of his testimony. And, although the only remaining witness of the conver- sation was much confused by severe cross-examination, the jury had a right to believe him, and such belief was, therefore, hypothetically assumed in some of the instruc- tions. On these facts, the Circuit Court gave several instruc- tions, rather too multifarious to be certainly understood 386 PHILIPS V. COMMONWEALTH. and rightly applied by the jury, and refused some others asked by appellant's counsel. In two of the instructions, as given, the Court told the jury, that, if they should believe the substance of the foregoing facts, they ought, nevertheless, to find the aj)- pellant guilty of murder, tmless they should be of the opinion that he, when " he tired the first shot, had rea- sonable ground to believe, and did in good faith, believe, that Miller was then about to carry his threats into ex- ecution, and would do so unless prevented by killing him. Miller, and that he^ appellant, had no other appar- ent means of escape.'''' » The principle assumed in these instructions, as to the duty of escaping, we cannot recognize as either safe, sound, or maintainable as the law of the land. The principle applicable to a mutual rencounter, or an afiray 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 doomed victim. The law of self-defence is, in such a case, more comprehensive, conservative, and assuring. Mr. Starkie, in his second volume on evidence, side page 523, says : " The accused may also show in justification that he committed the act in self-defence. If A. manifestly intends to commit a felony on the prop- erty or person of B., by violence or surprise, B. is not obliged to retreat, but may pursue his adversary till he finds himself out of danger ; and if, in the conflict, A. happeneth to die, such killing is justifiable ; but, in the case of mufcual conflict, the party, to excuse himself, must show that he retreated as far as he could before he gave the mortal stroke, and that he killed his adversary through mere necessity to avoid immediate death."* This is British law. Why, when properly understood and applied, should it not be, in principle, (without now defining the extent of its application), American law? And if the principle illustrated in the first part of the "As to the right to pursue, see ante, pp. 230 el seq. EIGHT OF ATTACK FOE PUEPOSE OF DEFENCE. 387 extract be sound, must it not be pre-eminently applica- ble to continued danger to life, reasonably and actually apprehended from persistent threats ? In such, a case, an escape from immediate danger is only momentary, and may be no escape from the danger still impending, and perhaps increased; because run- ning once may induce the assailant to believe that the as- sailed will never stand and manfully defend himself, and thus embolden him to renew his attacks without appre- hension of any resistance perilous to himself. If the party once assailed by an enemy who hdd threatened to kill him, is bound by law to run, if he can thereby escape that assault, legal self-defence may become a mockery, and the sacred right itself a shadow. Like the sword of Damocles, the threatened danger is continually im- pending every moment and everywhere. The threatened man may be waylaid or otherwise attacked unawares, without the possibility of defence or escape, and may never, day or night, feel safe, or actually be so, while his enemy lives : who, whenever he may see him, or wherever he can find him, may be anxious and able to kill hini. And does either human or divine law require such pro- longed agony and peril? Or can the best and most prudent men suicidally forbear to strike for riddance, if they have the courage to defend themselves in tTie only way of secure and lasting escape ? Starkie says no, and we, too, say no. Whether, in such a case, the threatened man, anticipating the attack, may ahvays hunt his enemy and kill him in self-defence, we do not mean to in- timate. It is sufficient for this case to decide, that, if the appellant had reason to apprehend and did apprehend that Miller would shoot him, unless he could run away, or shoot Miller first, the law does not require him to run away and be shot, perhaps, in the back, or afterwards secretly assassinated, but justified his taking Miller's life. And if he believed that Miller was drawing out a pistol to shoot him, the fact afterwards developed that MiUer had tTien no pistol, but was only maneouvering to make him run, cannot make him culpable for doing what he had 388 PHILIPS V. COMMOJI WEALTH. good reason to believe was necessary for either tlie im- mediate or ultimate security of his life. It. is evident that the appellant had not been seeking, but rather eluding, Miller, whose vindictive passion and bloody purpose seem to have been not only unjustifiable, but causeless. Did the public interest or the reason of the law require the appellant to continue to skulk and en- dure the agony of impending death as long as Miller might seek his life ? This cannot be. Then why, if the testimony be true, was it his duty, when he met Miller, ignominiously to flee and thereby prolong and increase his peril? This was not the way to save himself or to " escape " being shot in the dark, at home or abroad, by stealth or sui-prise, when self-defence would be impossi- ble. And unless he could, by running, have escaped all these continually impending perils, why should the law require him to run ? Regard for his own life would not allow it, and, as a proper man and prudent citizen, he was not bound to do it. And the example of such hu- miliating and imperiling recreance would do more harm than good to the public security and peace. We are of the opinion, therefore, that, as hereinbefore indicated, the Circuit Court radically erred. Wherefore, the judgment of conviction is reversed, and the cause remanded for a new trial, when, if the appel- lant be guilty, he may be piinished justly, according to the laws of his country. Judgment reversed. SYLLABUS. 389 CARICO y. COMMONWEALTH. [7 Bush, 124.] Court of Appeals of Kentucky, Bummer Term, 1870. RuFus K. Williams, Chief Justice. Geoege Robertson, | MoEDECAi R. Hardin, > Judges. Bblvard J. Peters, ) Murderous threats — Lylng in wait and killing the threateneb. 1. Where there was proof tending to show that the deceased, without any reasonable cause, became exceedingly hostile to the deft ndant ; as- saulted him more than once with deadly weapons ; frequently declared that he would kill hip ; 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 pui-pose 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 a.?sault 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. [Hardin, 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. [Ace. Philips' case, ante, last case. Overruled in effect by Bohannon's case, post, next case. Contra, Kippy's case, ante, p. 345 ; Williams' case, ante, p. 349 ; Evans' case, ante, p. 329; Wesley's case, ante, p. 319; Dyson's case,' ««!;«, 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 ?. jury should acquit, they should tewell satisfied that the killing was not the ofispring 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 CAKICO V. COMMONWEALTH. arming himself to kill accused, but it was coiripeteiit to prove that accused 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., § J 100, 101. W. D. Harrison, for appellant ; John Rodman, Attor- ney-General, for the Commonwealth.. Robertson, J., delivered the opinion of the Court — Judges HARDiisr 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, "hy 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 vdth 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 EIGHT OP 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- tinual 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 enery 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 kiU 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 he/ore a jury should acquit, they should ie well satisfied that the Mlling was not the offspring of had passion, tut solely of a thorough and well-founded ielief 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 incessdnt, and. that he, well assured of it, honestly ieliexied 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 still 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 afford 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 FOE PUEPOSE OF DEFENCE. 393 thus maliciously beset the pathway of the peaceable, that they will be likely to bring destruction on their own heads. This preventive principle will go hand in iand 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- €ally 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 jiistify 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 jiadgment of conviction bit is seen that the doctrine here enunciated is not concurred in by tlie other members of the Court, and is discomitcnanced 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 tliis country. As was justly re- ^marked by Caeuthers, J., in Rippy'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." eJn Bohannon's case, next, post, it is said, that this was the groimd on which this case was decided. 394 CAKICO V. COMMONWEALTH. is reversed, and the cause remanded for a new trial, conformable with the principles of this opinion. The concurrence of Hardin, 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 refusing 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 eff"ect 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 Peters, J., dissenting in part, from the foregoing : Believing as I do, that 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 d Ante, last case. SYLLABUS. 395 result, I will forbear entering upon an analysis of tlie evidence, and a comparison of tlie facts in this case witli 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 Hakdin, 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 reKcrscd. BOHAJSTNON v. COMMONWEATH. [8 Bttrh, 481 .J Court of Appeals of Kentucky, Winter Term, 1871. William S. Prioe, Chief Justice. MoEDEOAi E,. Hardijt, | Belvaed J. Petees, > Judges. William Linbsat, ) Malice afokbthought — Shuxxixg adversary — Killing to wakd off threatened attack — ^klllln'g after attempted assassination and coxtin0ed threats. 1. Ill a prosecution for murder, where the defendant relies upon the plea of self-defence, it Is error to instruct that malice aforethought means a predetermination to Idll, 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 whose 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 ''done everything in his power to avoid the necessity " of slaying such foe. [Ace. Philip's case, ante, p. 383 ; Contra, SuUivan's case, ante, p. 65 ; Shippey's case, ante, p. 133.] ' 3. Fear grounded upon threats, or upon information that one lies in wait, wUl not justify the party so threatened or endangered, in kiUing hi& antagonist, unless the threats or lying in wait have been accompanied by 396 BOHANlSrON 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 ease, ante, p. 71 ; Creek's case, ante, p. 253 ; Dyson's case, ante, j). 30i ; Cotton's case, ante, p. 310 ; Eippy'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, and 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 reaffirmed 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 case, held not to he binding authority upon the law of self-defence, as it merely expresses the opinion of one judge upon that branch of the law. P. U. Major, RoMnson and J. P. Foree for appenant ; Jolm Rodman, Attorney-General, for the Commonwealth. Lindsay, 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 j udgment 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 OF THE FACTS. 397 ing punishment upDn criminals who could not Tbe 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 ta 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 tiine 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 tlie village of Bagdad. Two shots were heard in quick succession. No one saw the ren- counter. Cook was found a few minutes afterwards^ 398 BOIIANNON V. COMMONWEALTH. lying dead hj 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 vthe 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, therefore, legally murder. A killing, to (•onstitute murder, must be done unlawfullj'-', 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, pursuant to this predetermination suddenly formed, he does kill, SHUNNIN0 THREATENED DANaER — EETEEATING. 399 it will be neither a malicious nor unlawful, but an ex- cusable homicide. 3 Greenl. Ey., § 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 he at- tacked^ Ms rigTit to defend himself does not arise until he has done everything in his power to avoid the necessity J'^ Human life cannot be taken 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 until 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 to prevent the commission 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 lang-iuigo of Justice Johnson, Sullivan's case, ante, p. GO. 400 BOIIANNOJSr V. COMMONWEALTH. SO that he could not be found, or by abandoning his liome 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 Sheriff, 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 foimerly 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 tlien to fall upon Juin at the time of tJie Icilling. 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. * For the construction of a j-iniilar instruction, see Johnson's case, posi. ' Ante, p. 383. ^ Youno- V. Commonwealth, 6 Bush, 312. Court of, Appeals of Ken- TOtrjTG'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. Winter Term, 18G9. The defendant was indicted fbr the murder of Jacli !McHone, found guilty and sentenced to be hung. He appealed. Extract from the opinion of the Court, delivered by Petees, J. : »*** *** «*** The deceased had, on several occasions, in the presence of different per- sons, thrciitened to talic the life of the appellant ; the threat made at one time at least, was communicated to hmi. 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 home, quietly taking his supper with his own family, when the deceased was seen approaching the house. When fii-st seen, he was not recognized by appel- lant, as ho 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, ^^■hich he had brought with him. Young then went into the house, met Thomas Young near the door with a gun, and after a short struggle, succeeded in getting the gun, and went under a shed, as the witness describes it, near the door, and while there, deceased fired his pistol again at him, and Young then shot at him ; neither shot took effect. Deceased started back in the direction he had come, cursing appellant, and inciting him to follow him. After having gone near a half mile, as the deceased was ascending a small hill in the roiid about one hundred yards in advance of appellant, the latter shot at Iiim bu t 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 sliot, deceased returned, his father with him, on horseback, both riding the same horse, cursing and hallooing, saying to the Youngs, ''If you are f.ghfij-g men, stand up and fight." Deceased jumped off the horse with his pistol in his hand, and ran towards the axipcUant and got on the fence, wlicn, 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 had been in the house and was returning, or was approaching to go in, does not very satisfactorily appear ; the witnesses differ on that pouit. 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 40a BOHANlSrON^ 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 by 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 aU 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 scarcely doubted it would have been excusable homicide in Young. 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 difficulty, 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 reason to comprehend, and did actually comprehend, that McIIone would take 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 ptu-suit, the deceased returned and again assaulted him with deadly weapons, and he had cause to believe, and did actually believe, from his persistent attacks and pre^dous threats, he would take his lif(! 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. ♦ *<-»«* **♦ ** Judgment reversed. As to the right to pursue touched upon in this case, see note to Stoffer's (Vise, ante, pp. 230 et sey. KILLING AFTER ATTEMPTED ASSASSINATION. 403 East, 1 P. C, 271, 272 : " A man may repel force by force in defence of liis person, habitation or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, such as rape, lob- 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 justifiable self-defence ; as, on the other hand, the killing by such felons will be mur- der. But a bare fear of any of these oifences, 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, though 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 casually 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 authoiize 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 BOHA^'AUX V. COMMON' WEALTH. 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 ni(:'eting, 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 demajids 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 Haedijvt, 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 Eobertson 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 KoBERTSoisr, 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 EISTEMY. 405 self-defence, is but an expression of his 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 assasshiation, and his enemy still persists in his murderous designs, he is not obliged to retreat from or avoid his enemy, but may Icill him wlierever in his la\vful way he may chance to meet him. This last case would seem to modify the conclusions of Rob- ertson, J., in Carico's case, only ijo far as to hold tliat a man may uot, even under the circumstances above stated, seek his enemy to kill him^ These cases seem to stand alone, unsupported by any other cases in the books, old or new. They 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 fidoniously ^.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 Stofifer'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 only while the danger -continues immediate and impending, or apparently so to a reasonable man, and that the expression of Mr. East, " until he finds himself out of all danger," is to be understood as meaning, "until he finds himself out of all present danger of a renewal of the attack." This principle is declared in Dyson's case, ante, p.304 , and is to be inferred from the analogy of nearly every case m the books on this subject. As soon as the immediate danger has ceased, it is his duty to call in the 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 lOf 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 iu 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 a state of things exists in any settled part of our country at the time of this ■writing, we do not mean to intimate ; but that such a state of things does €xist in some of our unsettled territories, and has existed in some of the 406 BOHAJSTKrON V. COMMONWEALTH. older States, within a recent period, we are all wcU aware. Rules which would be just and salutary in the island of Great Britain, where the arm of the law is never relaxed, would surelj- 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 whose safety and welfare it is its jiroviuce to guard. Foster, 273, 274; Euth. Inst., B. I., ch. 16; 1 Bish. Grim. Law, |841, 5th Ed.; 3 Bla. Com., 4. Where the threatened injury is so near that there is no time to appeal to the liiw for its prevention, and so great that the law will be unable to afford any indemnity if it is sufiered, 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 conclusion 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 injury ; and that for this purpose, it is lawful for the assailed to exert whatever degree of force the violence of the assailant puts upon him ; and that he is in no wdse cul- pable, notwithstanding th^ injury inflicted by this necessary force upon his assailant may have been entirely dispi-oportionate to the injtu-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 writers to lay down, 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 seeks 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 arc manifestly, oases to which Courts should, and juries surely ^\ould, 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 take human life on slight provocation, and frequently on no provocation whatever; 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 sight ; " should be foiled in an attempt to kill him ; and should afterwards lie in wait for him, or hunt him for the 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 tlie baclj, should instantly shoot and kill him ; no court could with reason say that this was not self-defence, and no juiy, not composed of a clan of outlaws, would con- vict him of any crime. And yet this would amount to nothing more than that there are cases in which a person threatened with death may kill him who threatens " on sight." The simple fact of meeting such an adversary under such circumstances, woidd perhaps, be of itself, an overt act. Robert Jackson's case, ^os;!. 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 juries 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 hberties 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," vrithout 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 while the law must be sufficiently expansible to provide for such cases, 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, Oalteston, 1866. Oean M. Roberts, Chief Justice. George F. Moore, / A.^ociate Tv'ttioei Reuben A. Reeves, \ ^^^^^iaje Justices. Homicide in self-defence — Communicatbd threats. 1. When a party who has taken the life of another relies upon threate against his own life as an element in his defence, he must show that at the 4f)8 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 tus power, for his own defence, and if death ensued thereby, the homicide was justifiable. [Ace. Lander's case, ante, p. 366; Eippy'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 Jaelison'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 reflection," 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 all the facts and circumstances surrounding the parties at the time of the killing." Held, that this authorized the jury to consider of 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 affidavits of jurors are not admissible to impeach then- 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 nftgro boy, also armed with a giin, as had been the habit of defendant ever since the killing of his STATEMENT OF THE FACTS. 409 Tarother, Houston Jolinson; that defendant took tlie street lie usually took, when lie went up town, he and his t)oy 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 back 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 hehiiid 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 ^'liller 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 liave got them. Hays told witness this just after John- son and Beauchamp had h^d a difficulty with Hays. That Hays made the worst o:^ the threats on the evening or night after the difficulty, 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 iittack 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 Ms 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 they had come along he would have got them ; that Hays showed witness the place he lay in wait for them ; it was in the comer 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 his shot were too small and he wanted some larger ones ; tliat he intended " to set them up, or fix them ui)," meaning Johnson and Beauchamp ; that this was a day or so after Johnson and Beauchamp had a difficulty Avith 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 JURY. 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 circnmstances 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 mtist 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* Ms life or do him some great bodily hann ; and if you so believe, you will, by yotir 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 all 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 JOI-mSON V. THE STATE. Tlie Court refused these instructions, and tlie 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 ofienee 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. 11. Bowers, and R. K Goode, for the appellant ; the Attorney- General, 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- iible 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 kUled by the accused, which was not controverted, that the ■case was, unquestionably, either murder or justifiable homicide. The law upon this subject, 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. OPEsriOJsr — theeats no excuse foe homicide. 413' mns 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 carry them into effect, he is justified in resorting to such means as may be then in his power, to defend and protect himself against their execution. If death ensues, it is justifiable 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 unaccompanied 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 mind known as anger, rage, sudden resentment or terror, ren- dering it incapable of cool reflection,"' This clause is introduced into the Code in connection witli 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 declaration, "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 '■See the article In question In the syllabus of Pridgeii's case, post. 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 wicked 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 imj^ort 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 at 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 circum- stances had then occurred to which this part of the charge 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 INSTEUCTIONS 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 he 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 wete 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 pressed 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 iconsider the wide door which would be thereby opened for improper practices, we would hesitate long, and feel ourselves constrained by imperative necessity for a-ccomplishing the ends of justice, before we could give our sanction to such a practice. Although a few isolated cases may b<^ 416 PRIDGEN V. THE STATE. found in which such affidavits have been received, the better pracuce 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 tliem. * -» * ***-»**** Judgment affirmed. PRIDGEN v. THE STATE. [31 Texas, 420.] Supreme Court of Texas, Austin, October Term, 1868. Amos Moreill, Chief Justice:'^ Livingston Lindsay, ] Allen H. Latimer, ! , ■ ^ t j^- Colbert Caldwell, i" ^^''^^^<^^^ Justices. Andrew J. Hamilton, J Homicide in sbli'-defence — Coji.MrxiCATED threats. 1. Article 612 of the Texas Penal Code reails as follows: ''Wliero 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 regardcil as affording a justifi- cation for the offence, unless it be sho^^^l that at the time of the homicide,. * These judges held office by military appointment under the Eecort- 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 threats 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, post.'] 2. Whether such threats, taken in connection with the facts which existed at the time of the kiUiug, are suflScient to justify the killing, is a question of fact for the jury ; and the judge cannot determine this question as a question of law, by ruhng that the facts immediately suiTounding the killing do not afford a sufficient 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 circunjstance which tends to prove this, is important, because a murder is a matter of intent, and cannot exist without malice. [See Little's ca.se,posi ; 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 the 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 Yalley post-office, in Yictoria 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 PBIDGEN V. THE STATE. salutation. Pridgen entered the 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 he 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 his chair. To which Brown instantly replied, "No, and nobody cares for you," as he descended from the counter. Ko 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 immsdi- 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, but had his hands at his side when he got upon his feet and until he was shot. OPINION — ADMISSIBILITY OF THREATS. 419 The whole dialogue was an angry conversation, (though one witness swore to Pridgen's coolness untilhe 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 he 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 aU saved by bills of exceptions, counter-instructions, and motions for a new trial. The defendant appealed. » James H. Bell, for appellant; E. B. Tufner, Attorney- 'Creneral, for the State. Caldwell, J. — This was an indictment for murder, in the District Court of Victoria county ; trial at the spring 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. 1 . 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 afi'ording a justification for the offence, un- less it be 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. Such 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 caiTj 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 was OPUSriON — 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 qiiestion for the Judge, hut its sufficiency for the purpose relied on is for the jury to determine. 1 Greenl. on Ev., § 49. If we hold that the defendant must first 3)rove that his antagonist manifested a hostile purpose by 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 oflfered 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 & similar threat now repeated. Judge Cowen" held that the evidence ought to have been received, remarking '■Post. 422 PKLDGEBT V. THE STAT.^. that real alarm on the 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 HoweU'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 Waeister, 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. AU we can say is, that the question propounded to the witness * * was a legal and competent question. "What effect the answer would have had upon the jury, 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 Rector's case is cited with approbation. When it is borne in mind that in Howell's case, the deceased was approaching ihe prisoner without being aware of his proximity, the defendant discovered him- self and fired the fatal shot, it vd.ll be seen that it is a much stronger case than the one at bar. Lander's case,'' 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. Nor 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 wholly unconscious of his presence.. i> Post, note to Monroe's case. " Ante, p. 365. OPINION — ADMISSIBILITY OP THEEATS. 433 There could be no pretence liere 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 effect. 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 Mooke said: "Pull 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 * i * 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 ? ^ Ante, last case. 424 PKLDGEN v.. THE STATE. It was insisted on in argument ttat 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 circumstance 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 wiU 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 iU 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 aU 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 introduce 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 — ADMISSIBILITY OJP THREATS. 425 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, will 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 y«ars. 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. 426 PEIDGEN V. THE STATE. It is insisted that tlie 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. 437 homicide, according to this provision in onr criminal code ; while at the common law, such killing would be 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 by 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 recMess, 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 acquittals, 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- Taility of testimony is properly confided to the Judge. His errors are subject to correction, by motion in arrest of judgment, for a new trial, or by 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 €ourt, 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 Story, 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 8058, 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 aU 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 THUEATS. 429 were made and commiinicated to the prisoner before tlie commission of the homicide, and whether at the time of the killing, the deceased manifested, hy 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 filled — 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. K 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 readily be found as an in- herent vice in our criminal law, or in its judicial admin- istration. When, in fact, the res gestae, had already been made manifest to the Court, who was to determine 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 jmy ? 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 PEIDGEN V. THE STATE. If there was no act then done manifesting an intention to execute the threats, the threats, however numerous and A'iolent they might have been, were improper testimony for the j ury , because in the philosophy of the law, they would 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 constitute 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 ijnquestioned lule 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 synonymis 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 Or THREATS. 431 stamps tlie signet of impunity upon every open, public homicide which may ever after be 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 be proved, in tlie 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 Aveighing 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 cannot perceive thafe 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. All. v. THE STATE. [33 Texas, 525.] Supreme Court of Texas, Tyler Term, 1870. Amos Moreill, CTiief Justice. Livingston" Lindsay, | Moses B. Walker, V Associate Judges. James Denisow, ) Homicide in self-defence — Commdnicated threats — ^Expressions op OPINIO^. ' 1. Though the Criminal Code of Texas [Pasch. Dig. Stat., Art. 2270] \s. explicit that a party accused of murder may justify the homicide by proof of threats against his own life by the 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 Pridgen's case, ante, last case and queers, ax to tlie meaning of this dictum. See note, sub Jin.] 2. The tlireat whicli will justify a homicide must be an actual threat by the slain party, to take the life of the slayer, and such threat must have been brouglit directly to the knowledge of the slayer ; and moreover, it must be unequivocally shown that, at the time of the killing, the partjr slain was doing some act which demonstrated his intention to carry the threat into execution. And if such positive di^monstration is made by the party slain at the time of the homicide, the accused is always entitled to tlie 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 OF THE FACTS. 433 cannot 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 Jin.']', The appellants, Robert C. Myers, David Myers and George "W. Hardy, were jointly indicted for the murder 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 labor in the penitentiary. The killing took place on the evening of Sunday, the sixth of February, 1870, in a " saloon" kept by Eobert 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 with 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. C. Myers fired two shots in quick succession, one taking effect 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 MTEKS 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 floor, 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 scahbard. When Millican 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 circunistances. 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 kUling 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 reting 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 R. 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. 0. 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 the 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 lie would not be in Mjers' shoes for $10,000; and "witness told this to Myers in the back room of his 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 E,. 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 th.e 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 MUlican 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 R. C. Myers take up his gun, and heard him call out lo 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 OPIlSriOIf — ADMISSIBILITr OF THREATS. 437 Myers and G. W. Hardy consisted of assistance ren- dered by them to E. C. 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 ; B. B. Turner, Attorney-G-eneral, 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 made 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 unequivocally 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 aU 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 £i purpose to assassinate him, was expressive of some 438 MYERS ET. AL. V. THE STATE. solicitude about the peril in whicli 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 PKINCIPAL CASE CRITICISED. 439 Denisok, J., concurred fully in the above, but dis- sented on another ground. Judgment affirmed. XoTE. — The dicta in the first aud 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 wiU show all such threats of hi? victim, which A^ere communicated to him before the IdUing," 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- tunate 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 who 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 light 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, post, the following language : " Itis stated by Mr. Starkie, Treatise on Evidence, p. 39, Mr. Eoscoe, Ev. pp. li.ei seq., and all other writers on evidence, that the general rule is, that aZi circumstances of a transaction may be submitted to the jury, provided they aflbrd any fair presumption or inference as to the matter in issue. This proposition is exceedingly broad ; and if carried out in good faith, icould produce the most beneficial results. Accordingly, in Richardson v. Royalton and AVoodstock Turnpike Co., 6 Vt., 496, and Davis v. Calvert, 5 Gill & Johnson, 2G9, 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 Goodrich's case, [post], in support of the rule; and in view of the frequent failure of justire from, the failure of evidence, and being thoroughly convinced that 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 ET. AL. V. THE STATE. out facts from the jury, which maj' serve directly or remotely, to reflect light upon the transaction upon which they are called upon to pa53." Haynes v. The State, 17 Ga., 484. See also Goodrich's case, post / State V.Nelson, 2 Swan, Tenn.,262; Little's case, joost. But instead of keeping in view the plain and just principles declared ki these oases, the circuit judge in the principal case seems to have labored studiously in his ruUngs to suppress every fact which could tend to exhibit the previous attitude of the parties towards each other, and thus explain the motives which prompted the accused to do the killing. For instance, it would be difficult to perceive under what rule of evidence or of common justice the State was permitted to prove that, two hours before the killing, the defendant entered the witness' house, under great agitation and excite- ment, and commenced loading a gun, while the Court refused to permit the accused to prove, by cross-examining the same witness, what he said ex- planatory of Ills excitement and purpose— 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., 5 108; Monroe's case, ^osif; Goodrich's case, ^os<; CoUin's case, in note to Scoggins' case, post. The testimony of Abbott and of Myers, which 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 kiUing, and to show that the defendant acted under apprehensions of death or great bod- ily harm. This, unless the fears were reasonable, would not, it is true, excuse the homicide ; but the kUhng of another under such an impulse would, at most, be manslaughter. Keeuer's case, post; Gramger's case, ante, p. 238 ; Pasch. Dig. Tex., Statutes, Art. 596. Again, the testimony of Cannon, which was excluded, had a tendency to prove that the 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 murder ; and this, when taken in connection with the testimony of Ab- bott and Edwards, which was excluded, and also that of the same witnesses which was admitted, had a direct tendency to show that the defendant had reason to be in extreme fear of assassination at the hands of the deceased. For the declarations of the deceased, which had been communicated to the defendant, that he, defendant, was trying 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 hundred thousand dollars ; that defendant would be shot all to pieces, so that his old hide would not hold shucks,— could have had uo other eftect ; 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 character of covert threats, of the most dark and malignant character, and calculated to excite much more fear, on account of their very vagueness, tlian 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 borrowed a NOTE — THE PEINOIPAL CASE CKITICISED. '441 pistol for the occasion, asldng if it was sure Are ; advanced into tlie saloon where the defendant was, holding it in his right hand and a little behind him ; and that after he was Isilled, 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 all 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 light 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 \^'^tness 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 Pilot Point, in Denton county. Witness rode to his house, and, while .unsaddling his horse, the deceased, Thomas Spain, rode up and enquired for Underwood. Learning that he was on the road to Pilot Point, he invited the vpitness 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 ; Eouth, 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 fired and killed Spain, and continued his flight, still whipping his horse with 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 cleem 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 gmlt 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 innocent 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. MOKROE T. THE STATE. [5 Ga., 85.] Bv/preme Court of Georgia, Americus, July Term, 184B. Joseph Henry Ltjmpkiw, ) Hiram Warner, >■ Judges. BUGENIUS A. NiSBET, ) Homicide in self-dbfbkcb — Declarations — Threats — Character of DECEASED— Evidence of previous relations of the parties- 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 wiiich the motive may be collected, is a part of the res gestce. " [See the last case, and note.] 2. In general, what a party says is not evidence in his favor, unless it b& a part of a conversation of which some other part has already been given in the testimony. But where the declarations of a party accompany an act,. and are a part of the transaction, evideuoe of them is admissible. 3. It is a good rule, though in many cases difficult of appUcation, that to be a part of the res 'pesice, the declarations must have been made at the •time of the act done, which they are supposed to characterize, and must be 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. [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 quo animo with which the act was committed. [See Myers' case, ante,. 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 brought home to him. [Citing Howell's case, sub.fin.l 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, commencing 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. [Acc. Robert Jackson's case, post; Pridgen's case, ante, p. 416; Sloan's case, post;: Scoggins' case, ^os<; Rector's case, ^os< ; Meade's case, joosi.] STLLABU8. 44? 7. As a general rule, the slayer can derive no advantage from the character of the deceased for violence, provided the killing took place under circumstances which showed that he did not helieve 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 apy testimony calculated to illustrate 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; Rippy'scase, ante, p. 345; Little's case, post; 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 killingis 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. Jin. 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 against 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 Coui-t 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 ; an'cl that in consequence thereof, the deceased vowed that the defendant should not be at the trial of said indictment, for he would kUl him. This was an indictment for murder against Edward V. Monroe, for the killing of James A. H. Macon. Yer- 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 . mojSteoe v. the state. On the day of the killing, and abont 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 ^reat 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 Greorge 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 STATEMEIfT OF THE FACTS. 445 Mm with. Witness replied, if it was a fact, it was under an apprehension of an attack from him, Macon. The gun was for the defence of the prisoner. Macon re- plied, " if Dr. Monroe comes out of that office with that gun, I intend to pop him — I wiU. 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 Ms 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 Ms 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 Q-eorge 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 Ms gun back. 446 MONBOE V. THE STATE. he would not interrupt him ; but if he came out with that gun, 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 ; caUed 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 WiUis 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 kiU me." 2. Defendant's counsel also offered to prove by said Hawkins, that when deceased was yi 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 killiiif, rJ*-^ deceased watched the prisoner's office. EULINGS IN THE SUPERIOR COURT. 447 5. That deceased had been seen to make an attack with deadly weapons, within six months, upon prisoner, and that prisoner fled at that time so hastily as to leave his cloak, until 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 MOHKOE V. THE STATE. of the Saperior 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. Wy che, 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, &. T. Bailey, Dudley & Crawford, Lyon & Clark, Hawkins, Strozier, Sullivan & Moore, for plaintiff in error ; PerkinSy Solicitor-General, for the State. ARGUMENT OF COUNSEL. 449 Argument in brief of Francis S. 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 jmy 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 aflirm 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 Mlling, 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 Tias 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 MONROE 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 haiitation, 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 suflBLcient to justify the killing. It must ap- pear that the circumstances were sufiicient 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." 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 above and be- yond human laws. Q-rotius, 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. AEGUMENT OF COUNSEL. 451 He claimed that he had a right to show, by evidence, that there was no malice in his 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 Paekee 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 felojiy was intended." * To the same point is Levett's case, 1 Hale, 42. In Rex V. Scully, 1 Car. & Pay., 319, the Court say : " The life of the prisoner was threatened, 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? 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-evid-ent, some are proved by the senses. But there are other subjects which address themsehes 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 effect, 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 state 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 adversar}' 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 ARGUMENT 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, €an 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. ZeUers," 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 : " K 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. As 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 8. 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 " Note, sub fin. " Post, note c. to Keener's case. 454 MONEOE 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 obs'o- lete ? or, have the expounders of the law become wiser than the law itself ? Every citizen, when he is an'aigned 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 shaU be an union or joint operation of act and intention; or criminal negligence." '' Intention will be manifested by the circumstances connected with tJie 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 aU the circumstances of the killing show an abandoned and malignant heart." Prince, 623. "A bare fear of any of those offences, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the kiUing ; it must appear 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." d Prince's edition Georgia statutes, anno, 18S7. AKGTJMENT OF COTJNSEL. 455 All these great safeguards were wholly overlooked, or disregarded in the trial of my Tinfortunate 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 intention 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 killing 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 tlie 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 question 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 MONROE V. THE STATE. that lie 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 excuse." 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 AKaUMENT OF COUNSEL. 457 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 MONBOE V. THE STATE. prehension of deceased. It was also proposed to prove by 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 would 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 aiid 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. Starkly 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 aU the circumstances of the case,, can be attributed to the general infirmity and weakness- of our nature, 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 0¥ 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 tTie circumstances.'''' 1 Russell on Crimes, 549. Previous conduct may be looked into to show grounds of suspicion. Ihid. Lord Tenterden, 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. E,., Con., 341. [5 Car. & Pay., 324.] In The King v. Scully, Gareow, Bar., said, " But here the life of the prisoner was threatened, and if Tie con- sidered Ms 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 Americ^. 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 tiUes and sub-titles. — Eds. ' Ante, p. 238. 460 MONEOE V. THE STATE. the 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 fill up the chasm 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 frequent 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 Eecorder, 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 Kiekpateick 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, every 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 — DECLAKATIONS. 461 and, therefore^ it may be receited hy the jury to show the state of mind of the parties. 2 Halst., 230. Again, the Chief Justice remarks, " The cLiiestion is, what excited the prisoner to the commission of the act i Everything that could operate upon his mind may he 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." Ihid, 237.s In the State v. Drew, the Court went into eviaence oi the acts of the deceased some weeks prior to the killing. 4 Mass. E., 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. LuMPKEsr, 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 judge, 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 l treated with delicacy and discrimination. If we uncondi- tionally refuse to allow a defendant, under any circum- stances, to have Ms 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- 6 See Zellers' case in note, sub fin. ''Post. 462 MONROE V. THE STATE. timony for himself, the most mischievous consequenees 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, hut 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. Rep. 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 gjven in evidence as a part of the res gestcB. Skin., 402. And Laweence, 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 surgeon, is evidence to show what he suflFered by reason of the assault." Lord Ellenboeough, 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 — DECLARATIONS. 463 to get a certificate of liira of good health, preparatory to making the insurance,) down to that time, and her appre- hension that she could 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 Goddard, one of the defendants, wished to ask the witness whether, at the time the house was searched, Goddard having a warrant in his hand, did not state for whom he searched. ArcTibold, for the prosecu- tion, objected that what Goddard said could not be evidence in his own favor. But Lord Tentebden, 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. lY., 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 MOJTROE 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 gesta, 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 will 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 Ms Tauger,^^ is free from valid objection ; but what follows, " Jie intends' to Mil me," 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 — DECLABATIONS. 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 would 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 his 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 aU 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 MONEOE 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 feU from the Court in Hud- gins V. The State,J 2 KeUy, 173. On the trial of Meade and Belt'' for the murder of Law, 1 Lewin C. C, 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 HoLKOTD, 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 tJie threats of the day be- fore, they were justified, perhaps, in firing as they did." In the People v. Rector,' 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 break 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 Recorder, 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 difference, flowing from such quarrel. 'See note, suh. fin. ' See note, sub. fin. ' Post. ' Post. CHARACTEK OF DECEASED FOE VIOLENCE 467 Such, precisely, was the object of the evidence which was repelled. What, I ask, really excited the prisoner to the commission of this act? He seems, throughout, he wholly free from the dominion of passion. Did he really and bona fide helieve that deceased was coming towards him with intent to kill or do him some great personal injury? Did not all 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 reluctance to shed blood ? ■^ Iteferrino; to Qiiesenberry'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 thi' 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 intend to commit a trespass only, to kiU 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 i We would not be understood as applying these terms, or using this illustration in reference to the actioal 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, aad 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 the most deadly grudge in his bosom. He pro- ■olaimed his 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 aU these facts and circumstances submitted to the jury? Judgment reversed. Note. — The following is the fiill text of that portion of the opinion in HoweU's case, which relates to the subject under consideration : Wakner, 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 life," was legal evidence, and ought to have been answered by the witness. The defendant was charged with 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 Dill to drive the defendant from the place or take his life, were ever brought home to the knowledge of the defendant, the record is Bilent. The distinct proposition made by the record is whether it was -competent for the defendant to prove such threats on the part of Dill, against 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 against one who manifestly intends or endeavors by violence or surprise, to commit a telonj" on either. Thi; 13th section declares, that " a bare fear of any of those offences, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killmg. 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 «f revenge." The 16th section declares, " all other instances which stand .upon the same footing of reason and justice, as those enumerated, shaU be justifiable homicide." Prince, Ga. Stat., 623^. The threats of Dill, pro- posed to be proved by ^^•itness, manifested an intent, on his part, to commit a felony on the person of the defendant. Whether the e\'idenoe 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 DUl, was a ques- tion for the jury to decide. The evidence was competent to show the quo 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 j"ustiacation for him. The error consists in not permitting the whole of 4'?'0 MONROE V. THE STATE. the facts in relation to the threats, to have been proved to the juiy. 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 eflfect 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, [Post, Pakt 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 offered, 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 Cowen, 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 ot 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 of 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 liis 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 fall, 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,, ond 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 opih- NOTE — HTJDGINS' CASE. 471 ion, said : " Was the judge below right in nUing 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 Icilling of Anderson was absolutely necessary ? Does it appear, also, that the person killed was the assailant? "Now, all these pregnant enquuies 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, apparently much enraged ; that he was using threats of personal violence, armed with a weapon, and the Uke ; aU. this would be admissible to satisfy the jury that the homicide was in self-defence. The opinion of the witness is a very difterent thing. It would be dangerous in the extreme, to per- mit the belief of any one, whether sincere or feigned, much more the oflf- spring of accused, to afford a pretext for taking human life." The learned judge theu 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 aUow 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 kill the accused." The facts of tills 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. ZeUers, 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 fuUj' understood without setting out the facts and rulings at considerable length. Flommerfelt had bought some land belonging to ZeUers, at sheriff's sale, and was exercising acts of ownership over it, which Zellers and his wife and daughters resisted. On the morning of the homicide, Flommer- 472 MONROE V. THE STATE. felt went to the barn where a neighbor, Hoflfinan, was working, told him that Zellers had gone 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. Zellers 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 going 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 pitching forward, seized the gun with Ms left, and held it a short time. Flommerfelt let loose of the muzzle of the gun, and \\heeled 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 ia three-quarters of an hour. Hoffman caught Zellers and cried murder, aa loud as he could. While he was holding Zellers, the latter told his boy to take a stick and knock his brains out. The boy came towards Hoffman 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, Seott, 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 liouse,) by maldng 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 tlie subsequent "Wednesday. Vroom : " We have a right to show in what manner he sought to obtain possession. The transaction offered in evidence took place on Saturday, 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 the treatment his wife and daughters had received) was coming to do liim some personal injury." KiRKPATRiCK 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 with which the act was committed, every circumstance which goes to show the feelings of the parties towards each other, may be proper. That temper, which at one time might not be excited, might, under the excitement of other circumstances, be more easUy roused, iind, 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 — ZELLEES' CASE. 473 lawsuits between the deceased and defendant ; that deceased had recovered a judgment against defendant in the spring of 1822; that defendant was putinjailby 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 Plommerfelt; it was upon one of the fields agreed to be given up, that Flommerfelt was shot. Vroom asked what the suit was brought for. KiRKPATKiCK, 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 that judgment, and under duress, he. in order to release himself from JaU, made the agree- ment to deliver up the two fields. KiEKPATRiCK, Ch. J. : " You cannot go into the fact of proving that the suit was mahcious ; 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 wWle the defend- ant wa^ in the jail. The counsel for the State then oifered 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 cannot 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 bucliwheat on it himself; the fact that on the Saturday before the killing, the wife and daughter of defendant had gone to the field and com- menced buUding a fence on it, and that deceased had ejected them, using, as it seemed, no unnecessary force. KiRKPATRiCK, Ch. J., charged the jury as follows : Oentlemen — The defendant's counsel have charged the deceased with unjust 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 sheriffs 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 oflF the gun intentionally, but thSt 474 MONROE V. THE STATE. 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 flred the gun intentionally, he must be guilty either of homicide ifl 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, kills the aggressor. It is contrary 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 dweUing- house, it is not a provocation sufiicient to warrant the owner in using a deadly weapon : and if he do, and with it kill the trespasser, this ^\t11 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 all 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 f 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 Part m 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 clearly 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, thei-efore, 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 fuU redress by law. Therefore, he had NOTE — EVIDENCE IN MITIGATION OF PUNISHMENT. 47& 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, coolt ed 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 Benham'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 siinilar 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, Merrick, Ch. J., spealtina for the Court, said : * * * "The biU 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, 234^5 ; 5 La. An., 489." State v. Jackson, 12 La. An., 679. The questions of evidence discussed in the principal case, and in Keener's case, |>os<, and others, leads us to offer 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 lolling from murder to manslaughter. But, nevertheless, should 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 civil 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 tliis 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, of punishment which shall follow any crime, is a matter of chance and hazard^ "i^e ROBERT 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 other, enlightened by all the circumstances surrounding the transaction. ROBERT JACKSON v. THE STATE. [Unreported.] Supreme Court of Tennessee, Jackson, April Term, 1873. A. O. P. Nicholson, Chief Justice. P. TURNEY, Robert McFarland, Jas. W. Deaderick, \- Judges. Thos. J. Freeman, John L. T. Sneed, Rules which determine admissibility of evidence of communicated threats in trials for homicide — appearances and imminence op DANGER — Overt act. 1. The general rule, subject, perhaps, to exceptions in extreme cases, is, that in trials of indictments for homicide, evidence of previous threats made by the deceased against the prisoner, and communicated to him he- fore the killing, is admissible, without 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, post, next case. Contra, Myers' case, ante, p. 432 ; Hays' case, post.l 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 he resolved ac- cording to the circumstaiices 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 cases there cited.] 4. Previous threats or acts of hostiUty, however violent they may be, Tvill not justify a person in seeking and slaying his adversary. [Ace. Rip- OPINION — THE FACTS STATED. 477 py's case, ante, p. 345 ; WiUiams' case, ante, p. 349 ; Lander's case, ante, p. 366 ; and others. Contra, Carico's case, ante p. 389.] Wilkerson & Wilkerson and T. E. Richardson, for the plaintiff in error ; Joseph B. HeisTcell, Attorney-General, for the State.* McFaeland, J., delivered the opinion of the Court ; The prisoner was indicted for the mnrder 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 witnessed 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 the moment, the deceased had Ms right hand * The counsel for the plaintiff in error made use of the brief filed by Mr. Horriffan in the next case. 478 EOBHET 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 bitter 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 .the 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 oflFered, 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 eflfect 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 thi-eats 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 be 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, 217 ; 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 *Anie, p. 345. " Ante, p. 349. • Philips' case, ante, p. 383 ; Carico's case, ante, p. 389 ; Bohannon's case, ante, p. 396. COMMUNICATED TBfiREATS—" 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 was in the very act of striking. The necessary overt act in the one case, might be dif- ferent from the other. It is difiicult 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 482 EOBEET JACK80W V. THE STATE. 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, cases might occur, vehere 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 knovni 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 THEEATS — CHARACTER OP 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- Oeneral, 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 ; but 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 EGBERT JACKSON V. THE STATE. weiglit and eflfect of the evidence upon a point vital to the case. "We are not aware that this direct question has been before this Court. The case of Harmon v. The State, 3 Head, 243, relied upon by the Attorney-General, was a conviction for an assault and battery. The evidence rejected in that case, was oifered to show the bad and dangerous, and desperate character of the prosecutor, of his 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 otJier parties, furnishes no legal excuse to the defendant to assault Tilm. 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 ^Tiart. Cr. L., 234-5 ; 3 Iredell, 4240 ; Wright v. The State,' 9 Yerg., 342. And he adds <• state V. Tilly, ■post, note to Lamb's case. e'lhe only point in this case necessary to be stated in connection with the law of self-defence, will be found in the follomng extract from the opinion of the Court, delivered by Turley, .1. : " 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 feUow. We think there is no error in this ; for, supposmg him to have been of the character described, we cannot see how this would have extenuated the oflfence of stabbing him, and most certainly the prisoner does not stand in such a relation towards him, as to justify his being verj' particular in demanding respectful treatment from him." COMMUNICATED THREATS — CHARACTER 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 case of John C. WiUiams v. " The State,f 3 HeiskeU, 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- t Ante, p. 349. « Ante, p. 238. 486 BOBEET JACKSON V. THE STATE. tions generally satisfactorily settled by cases in this State. We confess the weight 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 jury 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 acta of hostility towards other parties was properly re- SYLLABUS. 487 jected;'' and, for the error of the Court on this qnestion, we reverse the judgment, and award a new trial. Judgment reversed. LITTLE V. THE STATE. [Uneepoeted.] Supreme Court of Tennessee., Jackson, April Term., 1873. A. O. P. Nicholson, Chief Justice. p. turistey, Robert McFakland, Jas. W. Deaderick, V Judges. Thomas J. Freeman, JoHJSr L. T. SlSTEED, Uncommunicated threats — Character op deceased foe violence — In- structions TO JURY — ^Manslaughter. 1. Bobert Jackson's case, ante, last case, referred to as furnishing the reasons for the conclusion arrived at in this case. 2. In trials for homicide, evidence of the violent and dangerous 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 IdUing, the defendant was in danger, real or apparent, of death or great bodily harm, at the hands of the deceased. [See Robertson's case, ante, p. 152; Cotton's case, ante, p. 310; Wesley's case, ante, p. 319; Hip- py's case, ante, p. 348; Monroe's ■ case, ante, p. 442; Keener's case, post; Sloan's case, post ; Tacketts' case, post, and those following it.] 3. In trials for homicide, evidence of threats made by the deceased person against the prisoner, but not communicated to the prisoner before the kill- ing, is admissible in all cases where the acts of the deceased in reference to the fatal meeting are of a doubtful character. [Ace. Campbell's case, ante, p. 282 ; Copeland's case, anfe, p. 41, where such evidence appears to have been admitted; Goodrich's case, post; Holler's ca.&e, post; Cornelius v. Com., 15 B. Monroe, 539; Scoggin'scase,j)os<; Stokes' case, ^osi; Pitman's case, post. Contra, Coker's case, post; Atkins' case, post; Chambers v. Porter, in note to Goodrich's case, post. And see Quesenberry's case, ^osf; Powell V. State, 19 Ala., 581.] 4. In trials for murder, the refusal to instruct the jury upon the law of manslaughter is erroneous ; because it discloses the opinion of the judge bgo held in People v. Henderson. 28 Cal., 469. 488 LITTLE V. THE STATE. upon a material question of fact, and is hence an invasion of the province of the jury. [Contra, in principle, Harrison's case, ante, p. 71 ; Shippey's case, ante, p. 137; Shorter's case, ante, p. 256; Evans' case, ante, p. 329; Morgan, J., in Lamb's case, post ; Johnson v. State, 27 Tex., 766, and cases cited.] The defendant was indicted in the Criminal Court of Shelby county for the murder of John Sims ; was con- victed of murder in the second degree, and his punish- ment was fixed by the jury at eighteen years in the pen- itentiary. Hon. John R. Plippin , Judge, presiding. The defendant and deceased were colored persons. The killing took place in the streets of Memphis, be- tween one and two o'clock, on the afternoon of May 12, 1873. The defendant and two others were going out on foot to look at a lot, which the two latter had purchased. They met the deceased casually in the street. Accord- ing to the testimony of the two men who were with the defendant, the deceased was first seen approaching them at a rapid gait, swinging his hands like any other person while walking. When the deceased had approached to within about twelve feet of the defendant and his party, the defendant called out, " Halloo ! Cap., is that you ^ " and, immediately thereafter, fired a pistol at deceased. The only other testimony of what occurred up to the time of the firing of the first shot, was the dying decla- ration of the deceased, to the effect that he was walking along the street, and did not see defendant until after the first shot was fired, and that this shot, as well as the other two, was fired from the rear. From the moment of firing the first shot, all the testimony — the dying declarations of the deceased, the testimony of the defend- ant's two companions, as weU as that of several other persons whose attention was attracted by the firing — concurs in showing that the deceased ran, and the defendant pursued and fired, in quick succession, two other shots, the last of which brought the deceased to the ground ; when the defendant immediately ran up to him, and struck him several blows with a stick, the butt end of which was loaded. STATEMENT OF THE CASE. 489 One of the wounds in the back was mortal, and the deceased died the following day. Attempts were made by the defendant to prove — 1. That a little more than a year previous to the kill- ing, the defendant had escaped from an attempted assas- sination at the hands of the deceased — the latter having shot and stabbed him— and that he was suffering from the effects of these wounds at the time of the homicide. 2. That at the time of the killing he was stUl suffering from the wounds thus occasioned. 3. That from the time of the attempted assassination down to the time of the killing, the deceased had made frequent threats against the defendant, of the most malignant character : saying that he would kill him ; exhibitingdeadly weapons, and saying that he carried them for him ; declaring that he would kill him if he was the last man in the world ; that he carried a pois- oned bullet for him, etc.; and that these threats had been repeatedly communicated to the defendant. 4. That the deceased was an unruly, bad and danger- ous man, who had been heard to boast of killing men ; that his neighbors were afraid of him, and would have nothing to do with him. 5. That the deceased was in the habit of carrying a pistol and a dirk, and was quick and active in the use of deadly weapons. The learned judge who presided at the trial rejected aU this testimony, on the ground that there had not been proven at the time of the killing, any overt act on the part of the deceased, indicating an intention to carry such threats into execution, or otherwise to inflict upon the defendant great bodily harm. He also refused to aUow the defendant to exhibit to the jury the wounds he had received from the deceased. L. B. Horrigan, for the plaintiff in error ; Joseph B. HeiskeU^ Attomey-Greneral, for the State. 490 LITTLE V. THE STATE. McFaeland, J., delivered the opinion of the Court : This was a conviction of murder in the second degree. From the judgment the prisoner has appealed. Without discussing the case at length, we announce as our opinion, that the Judge of the Criminal Court erred in rejecting the evidence offered by the defendant, of previous threats made by the deceased against the pris- oner, and of the character of the deceased. The case,. Tipon this q^uestion, is similar to the case of Robert Jackson v. The State,* decided at the present term.. The opinion in that case, gives the reasons upon which our determination of the question rests, and we deem it unnecessary to repeat them again, but refer to that case- for the law, as we understand it, upon the question. That case also settles the questions made in the pres- ent case, as to the law applicable to that class of cases, where the prisoner claims to have acted under an honest and well founded apprehension that his own life was then in imminent peril. In the present case, the prisoner offered proof of threats made against him by the deceased, which had been communicated to the prisoner. The rejection of this, as we have said, was determined to be error, in the case of Jackson v. The State, before referred to. Bat this different question is presented in this case. The prisoner offered proof of other threats made against him by the deceased, but which had not been communi- cated to the prisoner, and this proof was likewise re- jected. The true rule upon this question, we apprehend to be this: Previous threats of , the deceased, communi- cated to the prisoner, tend to show the state of mind of the prisoner ; the apprehension under which he was act- ing : and tend to illustrate his conduct and motives, in connection with the other facts and circumstances of the case. Previous threats of the deceased against the pris- oner, but not communicated to Mm, do not furnish the same evidence of the motives brought to bear upon the • Ante, last case. UNCOMMUBICATED THEEATS. 491 prisoner's mind, and are not admissible for the same purpose. But in all cases, where the acts of the de- ceased, in reference to the fatal meeting, are of a doubt- ful character, then, evidence, which may tend to show that he sought the meeting, or began or provoked the combat, is admissible. And in this view, previous threats by the deceased, though not communicated to the prisoner, may yet tend to show the animus of the deceased, and to illustrate his conduct and motives, and, in some cases, might be important, in the absence of more direct evidence, to show which party began or provoked the fight. Threats of this character are, in proper cases, admissible, but for a different purpose from the former class of cases. See upon this question, Campbell v. The People, "^ 16 111., 17, 18 ; Keener v. The State," 18 Ga., 194 ; 1 Kelly (Ga. R.) 220 ; Nelson V. The State,'' 2 Swan., 237, 262; Copeland v. The State,« 7 Humph., 429. The present case does not present as clear grounds for the admissibility of this evidence as many others ; but we deem it a proper case to admit the evidence, and leave its effect to be determined by the jury under proper instructions. We think the Judge erred in declining to instruct the l>^«i!e, p. 282. ^Post. * In Nelson's case, the Supreme Court of Tennessee, Caeuthees, J. , say : " They, [the jury] could have no difficulty, under the proof in this case, as to the fact of killing ; but whether it was done upon malice or pas- sion, so as to make a case of manslaughter or murder ; that is, whether the facts proved, were sufficient to remove the legal presumption of malice, arising from the act of slaying, and the weapon used, and the former threats, would constitute their only difficulty. To come to a conclusion on this question, they would have to carefully weigh the concomitant facts, such as the commencement of the quarrel by the deceased that day ; the remark of the prisoner that he had nothing against him ; the relative size and strength of each ; the appearance of the ground on which they fought, evidencing mutual combat ; the condition of the clothes and person of Nelson and the deceased, tending to show the same. They would also look into the state of Sam's [the deceased' sj feelings towards Nelson, as indi- cated on that day and previously, as circumstances, making it probable, that he might have made the attack, and produced a state of the case that would re- duce the killing to manslaughter.'''' ^ Ante, p. 41. 492 THE STATE V. HAYS. jury, as to the law of manslaughter. The record shows that the Judge told the jury, that he intentionally ^omitted to charge them upon this question. This, we have held to be error, after full consideration, in recent cases. This, in effect, is to tell the jury, that if the prisoner is guilty at all, in the opinion of the Judge, his crime cannot fall below murder in the second degree. This, we think, is invading the province of the jury. See Poll and Mahofiy v. The State, manuscript. We do not deem it necessary to discuss the other questions argued. They will be found well settled, as we think, by other cases. For the errors indicated, the judgment is reversed, and a new trial awarded. Judgment reversed. THE STATE v. HAYS. [23 Mo., 287.] Supreme Court of Missouri, St. Louis, March Term, 1856. William Scott, | John P. Ryland, >■ Judges. Abiel Leokakd, ) Admissibility of evidence of communicated threats in trials foe HOMICIDE — Provoking difficulty in order to have 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 difficulty 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 communi- 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. [Aco. 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 eflforts 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 had, to prevent this, killed the deceased, then the proof of previous threats by the deceased against him, wovdd 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» pUoable to this case, are held to be free from error : a. 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 Stofifer's case, ante, p. 220.] b. Li 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 although the defendant's life or person was in imminent danger ; yet, if the defend- ant intentionally brought on the difficulty for the piu-pose of killing the deceased, he is stUl guilty of murder in the first degree. [Ace. Hill's case, ante, p. 199.] t. 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 kiU Mm 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 aa to give the deceased reasonable cause to apprehend a design on the part of 494 THE STATE V. HATS. 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 ca.se, ante, p. 75; Hinton's case, a« 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 circiTmstances attending the killing, nor does the Court mis-state the evidence of the vritness, 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- PBESUMPTION FKOM 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 our 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 within our act. It will 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. K 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 with the tenth instruction asked for by the prisoner, and given by the Court, could not possibly have misled the jury ; but the two 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, we find that the 3d, lOth^ 13th, 14th, 17th and 18th instructions asked for by the defendant were given to the jury; and when we compare these instructions, 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 Tiatred and inalke. 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 PROM FACT OF KILLING. 513 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 in 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. & Ores., 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 Bam. & .Ores., 255, said : " Malice, in common acceptation, means ill-will against a person ; but, in its legal sense, means a wrongful act, done intentionally, vsdthout just cause or excuse. If I give a perfect stranger a blow likely to pro- dace death, I do it of malice, because I do it intention ally, and without just cause or excuse. If I maim cattle without knowing 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 wUfuUy 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 nalniral and probable consequence of the act, it is presumed that he intended such consequence, and he must stand legally 514 THE STATE Y. HAYS. responsible for it. So, where a dangerous and deadly- weapon is used with violence npon 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 o£fence to manslaughter, it is universally 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 SooTT, dissenting. Judgment affirmed. Note.— Upon the question that a person cannot provoke a difflculty and slay his adversary therein, and then be heard to urge that the liilling was in self-defence, see Selfridge's case, anU, 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, anir. p. 208; note I. to Stoflfer's case, NOTE — PROVOKING DIFFICTTLTY — LITs'^GO'S CASE. 515 ante, p. 220. Upon the exception to this rule, which is, that a person liv- 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 II. 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 kill- ing to manslaughter, nor such a justification as would reduce it to excusa- ble homicide. For a discussion of tlio question in this point of view, see Baker's case, ante, p. 75, and Hinton's case, ante, p. 83, and note to the same, pp. 90, 91. A very apt illustration of the same pimciple will be found in Lingo v. The State, 29 Ga., 470, 484. It would not be profitable to consume space in detailing 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 mm- 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 liim, and Dun- oan stiU 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 tlvreat. 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 with 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 it. 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 liis 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 necessary to Duncan's self- defence ; he had intentionally 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 wsh to niake Duncan believe he had a pistol? It was in the 516 THE STATE V. SLOAN. expectation that he ■would shoot, and in the hope of destroying his aim,, by putting him under terror. He proceeded with great nerve and skill. He counted upon his antagonist missing his aim, and being then in his power. He had the nerve to take the hazard, and the skill 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 Wagnek, \ Philemon Bliss, >• Judges. Waekew Ctjeeiee, ) Admissibility of evidence of communicated threats ix trials for HOMICIDE — ^Declarations op deceased after the killing — Acting UPON appearances of danger. 1. On the trial of an indictment for murder, where it appeared that the deceased began making threats that he would kUl the defendant some weeks before, and that such threats were communicated to the defendant, and that the deceased continued to make them withm an hour of the killing, it was error to reject evidence of all threats made more than three 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 killing win 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 vidll 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. Ace. Robert Jackson's cas6, ante, p. 476 ; Little's case, ante, p. 4S7 ; Dupree v. State, 33 Ala., 300 ; Howell v. State, in note to Monroe's case, ante, p. 4G9 ; Pridgen's 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, ante, p. 487; Goodrich's case, jiost ; Holler's case, post; SYLLABUS. 517 Keener's case, post; Stokes' case, post ; Cornelius v. Com., 15 B. Monr., 539 ; Pitman's case, post ; Howell's case, ante, p. 469, 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, PoweU 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 ; Xewcomb 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 e\'idence together. [Ace. Cornelius v. Com., 15 B. Monr., 539 ; Holler's case, post.'] 5. Declarations of the deceased, made immediately after the kUling, that he, deceased, provoked the assault and would have kUled the defendant if his pistol had not hung fire, are admissible as part of the res gestae. [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. Where a person apprehends that another is about to do him great bodily harm, and there is reasonable ground for beUeving the danger immi- nent that such design will be accomplished, he may safely act upon appear^ ances, and even kill the assailant, it that be necessary, to avoid the appre- hended danger; and the killing wUl 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 rhatter which will be subject to judicial re- view; but he A\iU not act at his perU of making that guilt, 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, ^osi; Selfridge's case, ante, p. IS; Sullivan's case, ante, p. 65; Logue's case, ante, p. 269; Harris' case, ante, p. 276; Schnier's case, ante, p. 285 ; Xeeley's case, 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 Mm. If 518 THE STATE V. SLOAN. you believe that the 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 ta 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 fall. If you believe that defendant had reasonable cause to believe these facts, and he shot un- ' der these circumstances, as he believed, to prevent such expected harm, then you should acquit. But, before you can acquit on the ground of self-defence, you ought to believe that defendant's cause of apprehension vi^as 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 really thought his cause of apprehension reas- onable. S. M. Chapman, for plaintiff in error. I. It was error to exclude evidence of Moore's threats and conduct before the afiray, and in holding that all threats and demonstrations made by him, more than three days before the afiray, 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, 29' Gra., 484 ; Stewart v. State," 19 Ohio, 306 ; Pitman v. ^Ante, p. 282. ^ Ante, p. 469, note to Monroe's case. "Post, a^jiie, p. 191. ARGUMENT 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., Gtli ed., 710. II. Defendant had tried to avoid Ms 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 ; Travelers' Ins. Co. v. Mosley, 8 Wall., 397 ; Rawson v. Haigh, 2 Bing., 104 ; Star- kie's Ev., Sharswood's ed., 89 ; Diu'ant v. People, 13 Mich., 351 ; Marr v. Hill, 10 Mo., 320 ; Wadlow v. Ferryman, 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 Charles 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. f Post. ^ Ante, p. 18. ' Ante, p. 383. i Ante p. 238. ' Ante, p. 400, note to Bohannon's case. 520 THE STATE V. 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 kiU 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 tliis, that it can be regarded of very little authority.' ' The part of the opinion in Jackson's ease, 17 Mo., 544, here referred to, is as follows : Ryla^-d, 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 way, or laid his hands on him, he 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 the evidence, that the prisoner was the aggres- bring the threats down to the immediate cause of the shooting. If tiiere was time for the blood to cool — for the passion to subside, these remarks and threats will not mitigate." lu support 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 Hbellous publication, ■can be received in evidence in mitigation of damages, unless so recent as to •create a fair presumption 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 kill 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 &o 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 threats, 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 ; Hawkins v. State, 25 Ga., 207 ; Ray v. State, 15 Ga., 244. Hence, the doctrine of cooling time can have no appllcatian to a case of threats merely ; nor can the period of time within which ijassion 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 ■either — 1. Where the threats were previously communicated, to show that the accused had reason to believe that the assailant at that time intended to kill liini or do hini some great bodily harm ; or, as it is sometimes expressed, to show the reasonableness of the defendant's fears. Scoggins' case, post; Keener's case, post ; Monroe's case, ante, p. 442. 2. Where the threats were not communicated, to show the design with which the assailant advanced to the encounter ; or, to throw light upon doubtful transactions ; or, where the proof is obsom-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 ease, ante, p. 282 ; Little's case, ante, p. 487 ; Goodi'ich's case, ^osi; Arnold's case, ^osi; Sooggins' case, post; Stokes' case, post ; Cornelius v. Commonwealth, 15 B. Monr., 539 ; Howell v. State, 5 G-a., 48. We have found no other case in which the doctrine of threats has been mentioned in connection with that of manslaughter ; except such as dis- tinctly repudiate the idea, tliat 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 manslaugliter, are entirely disconnected and distinct. In the former case, the killing may or may not be intentional ; but if intentional, the law justi- 532 THE STATE V. SLOAN. sor, and had souglit the difficulty in which 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 than was necessary in his lawful defence. In voluntary manslaughter, the killuig 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 unhappy confusion of the doctrine of threats with 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 continuance 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 ths cracks of the crib : he then took some rocks and threw them at Scott in 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 Uawkin.s^ was too mean to live in the country, 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 came within about ten feet of Scott, lie 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, " that 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 terms and language of the Code. Cobb's Dig., 4 Div., S 7. Provocation by threats will not be sufficient to free the slayer from the guUt of murder. And if sufficient time had elapsed for reason to resume her sway, the killing shall be attributed to deliberate revenge, and punished as murder.. NOTE — HAWKINS' CASE — PKOVOCATION BY AVORDS. 523 of conviction for miirder, because tlie Court below re- jected evidence of threats made by the deceased against flere the menaces were evidently imde after Hawkins had determined to kill Scott, for they were made after he returned from his house with deadly 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. Russ., Cr. 433, 4i2, 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 fiftj' yards, procured his pistols, returns and executes his murderous purpose, evidently formed before he left Scott. It wiU 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 its conclusion on the subject of provocation is somewhat peculiar, we shall (juote so much of it as relates to that subject. Extract from the opinion of the Court, delivered by Stakkes, 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 guUty of a 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 entirely 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 mahguant 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 wliich 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 vfith his team, and overtook him, after going some one hundred and fifty yards. And now to answer the question which we submit, let 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 lie had broken the buggy, he had 534 THE STATE V. SLOATST. 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 mauner and spirit of the latter character, is prob- able, from the still more angry reply of Ray, and his threat to whip him if he did not pay "right then." It is also probable from decedent's intoxica- tion, from his reclvlessness in driving against the buggy, and from his sub- sequent readiness to quarrel and fight ; for he instiintly said that "if that, (a fight,) was what the prisoner was up to, he would have a hand with him." 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 oif 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 thinks 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 tlic 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 Franks, going to show decedent's efforts to get the hammer ; tlic evidence that decedent must have been meeting prisoner afterwards, from the fact that the 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 prisoner, 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 fight as the other," etc. These facts greatly strengthen the view we have taken, and, to our minds, make the conclusion very 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 we have not been unmindful, that, according to OPINION — hays' case EXAMINED. ' 52& 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 have been 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. Crim. 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 Ga., 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 hy the party killed upon the person hilling. We think such assault may be found hi 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 desigil 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. SLOAN. 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 the 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 Greor- 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 diificulty, 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 shortly before Ms 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, although 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 m., 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 frecLuent ; 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 gestcB, 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 Mm." This declaration was excluded by tie- Court on the ground that it was no part of the res gestoR, 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 Court, says : " As Jackson Logsdon was not a party to the prose'cution, 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 gestoR, they would have come within the exceptions to the general rule. The biU of exceptions does not show when the declarations were made. ' Recently ' 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 ccnstituting a part of the res gestce. 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 OPINIOK — APPEARANCES OE DA^rOEK. 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 Paekee, 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 enoiigh 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 '^Anie, p. 256. lAnte, p. 18. 530 THE STATE V. SLOAN. his apprehension, no danger can be supposed to flo\r from this principle." The judge had before instructed the jurj 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." SeKridge'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 Paekee, is of ancient origin. The principle was recognized and acted upon in Levett's case, recited by Joites, 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 his hand, went down and was searching the entry for the thieves, when his wife, espying some one v^hom 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 wholly 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. Roscoe, in his work on Criminal Evidence, says, that r Upon the distiiiction between justifiable and excusable homicide, see note to Selfridge's case, ante, p. 16. NOTE — EECENT THREATS — KEENE'S CASE. 531 it is not essential that an actual felony should be 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 apply the principle approvingly. 1 Hale P. C, 42, 474; 1 Hawk. P. C, Curwood's ed., 84 ; 1 East P. C, 275 ; 1 Russell on Crimes, 540-50. * * * '* * * Judgment reversed. Note. — The question of the admissibility of evidence of threats made by tlie deceased against the defendant, and communicated to the defendant, in trials for homicide, again came before the Supreme Com-t of Missouri m The State v. Keene, 50 Mo., 357. Wagnbk, J., stated the case, and deliv- ered the judgment of the Court, as follows : ' ' The defendant was indicted for killing one Evans, and on the trial the jiu"}' 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 with Evans tiU the day before the killing took 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 vnia, 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 he 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 the 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 make no compromise in refer- ence to the matter — that he would kill defendant on sight, if it was the last act of his life. • '■ These threats were communicated 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, the defendant, in company with another person, went out to hunt prairie chickens, and when they had reached a point near the railroad de^jot, 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 he would thrash hell out of him, and that he intended to kill hmi it he married his niece. The only answer defendant made to this abuse, was to ask Evans what he wanted to kill him for; at the same time he told his companion that that would break up tlieir hunt; and they immediately started home. On 532 STATE V. GOODEIOH. his arrival at liome, defendant wont to his stable to put his horse np, anil whilst he was still at his stable, Evans, in company with two other persons, rode lip. 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 difficulty. He was willing to almost anythhig, 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 nearly 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, tiiat 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.] Sw^reme Court of Vermont, January Term, 181j,7. Stepheis" Rotce, GTiief Judge. Isaac F. Redfield, | MiLO L. Bennett, > Assistant Judges. HiLANC 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 tiie 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, anl 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; Rector's case, post; Meade's ■case, post. 1 Indictment for assaiilt upon one Green, by firing at Mm with a gun. Plea, not guilty, and trial by jury, June Term, 1846, Bennett, 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 offered 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. GOODKICH. 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 this prosecution, to enquire into previous aflTrays or contentions between the respond- ent and Green, and excluded the evidence offered, but admitted evidence to show all that took place on the even- ing, or night, when the affray complained of took place,, tending to show that the assault 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 he- was on bis 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. lAnsley & BeckwitTi, for respondent; G. W. Grandyy State's Attorney. Redfeeld, 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 make 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 about the defendant's dwelling, or assault upon his person. He was then 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 pow- der to blow up the defendant's house, which he denied. The defendant then offered to show that he did make OPINIOlir — DECLAEATIONS OF ATTACKING PARTY. 535 STicli 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 Greeij. 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. GOODRICH. of the fact of Green's approach, and of his declarations of his 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- cient 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 enquiring 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 pennitted 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 asking 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 gestce, and tending to characterize the whole transaction, both as to the de- fendant and the witness, and their several acts, and thus OPINION — DECLAEATIONS OF ATTACKING PARTY. 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 might be clearly wrong, and would be, if the testimony had any tendency to show, that 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 off'er, 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 neio 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 enteredinfavor 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- tiff 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 plainttfif. Mui.LEX, P. J.: " The evidence on the part of the defendant justifies the finding that 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, having 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 difficulties 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 funfish 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 affray. In this view and for this purpose, I think the evidence was admissible." The judgment was affirmed. The case of Kiddle 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 F. 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, delivered by 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 the 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 beating was excessive, and beyond what was necessary for the defence and maintenance of their possession ; and that defendants were SYLLABUS. 539' gmlty of a trespass on that ground. I must say, that the facts contamed 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 genei-al. 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, iu 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 tliis might serve to palUate 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 Sv/pr&me Court of Georgia, June Term, 1855. Joseph H. Lumpkin, | Ebenezer Stabwes, \ Judges. Henry L. Benning, ) Opinions op witnesses — Character op person slain, when at par- ticular PLACE— Scope op the evidence in trials por homicide — Uncommunicated threats — Threats, recent ok remote — Charg- ing LAW OP SELP-DBFENCE — PROVINCE OP 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. Hudglns v. State, ante, p. 470, in note to Monroe's case ; Hawkins v. State, note a., i»/ra.] 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. f 3. It is a sound principle, that a man may have different general charac- ters adapted to diflferent circumstances and localities ; as a character for the rail cars, and a character for the brothel ; 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, provided they afford any fair presumption or infer- ence as to the matter in issue, reaffirmed in this case ; and it is said that if this rule were carried out in good faith, it would produce the most benefl- cial results. [Ace. 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 the 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 tlie 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 by the defendant as a justification of the homicide, and without any overt act, he must show that thej' have been cmnmunieated ; but when offered to jirove 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 difference as to the competency of the testimony. [Citing 3 Strobhart's L. R., 517, note. Contra, Jackson'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 kill- ing was in self-defence or of malice, it is the riglit of the prisoner 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 tlie 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 take 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 Beg., N. S., 647.] STATEMENT OF THE CASE. 541 11. The province of the jury criminal 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 they may truly decide the law, they are entitled to the assistance of the Court. 12. If the prisoner, at the time of the Ifilling, was under the fears of a reasonable man, that the deceased was manifestly intending to commit a personal injuiy upon him, amounting to felony, the killing was justifiable liomicide. [Ace. Sloan's case, ante, p. 517, 6tli 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 hy 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 542 KEBWEK V. THE STATE. ran. The testimony, wMch, in the original report is set out in full, shows that the prisoner and deceased had both been in the habit of frequenting 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, Good- 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 OPINIOlSrS OF WITNESSES. 543 allow the question to be asked ; to wMcli 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 : * * * * * -X- * * * As to the third ground: A witness, Goodwyn, intro- duced by the State, upon cft)ss-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 ajid 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 subjoiii 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 KEENEE 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 his 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 Ms opinion upon the question, whether 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 OS' WITNESSES. 545 Holt, namely : that witnesses are not allowed to give tli6ir 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 be 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 th^ 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 j udg- 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 issues 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 killing, 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, Lumpjcin, J., speaking for the Coiu't, 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 case 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 Reese was killed, was a brothel of notoriety in the city ; and counsel for prisoner projjosed asking the witness, Prater, " whether he was acquainted with the general character of deceased, for -violence in the place where the 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 BosweU 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 neigJiborliood in which he lives, for the purpose of satisfying the de- thought that Scott intended to kill Hawkins at the time of the homicide. To sucli a question, there could have been but one answer. " Hawkins v. The State, 25 Ga., 207, 210. i^Boswellv. Blackman, 12Ga., 591. Nisbbt,J.: * * * "The usual form, with us, of putting the question with a view to impeach- ing the credibility of a wtness is, as the Court 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 tliis : ' Do you know the general character of A. B. for trutli and veracity in the county of EusseU?' Disconnected with any othei' 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 witnest^, tliat 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 tilings lieuig true, the question propomided comes within aU the reasons upon wiiich the other question is held proper. The impeachment must be by persons acquaiut. 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, or 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 <;riminal 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 duty 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 in the face, that they are not permit- ted to take even thte Code to their consultation room.'' They know nothing of the law except so much and sucli parts of it as are given them in charge by the court. 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 ofience, 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 y. Roberts, 1 Pick., 337; Taylor v. Betpford, 13 Johns., 487; Burrows v. Unwin, 3 Car. e 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 the 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 mmd, 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 geaite, 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 the witness, that in a meeting thereof, a short time before tlie 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. White, 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 ol nature " — 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 the 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 he did, in resisting it. 2 Wat. Arch., 225 et seq. That the 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, went fer in justification of the act done. ?>74 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 Ark.. 354.] Supreme Court of Arkansas. October Term, ]860. Elbert H. English, Clili^f Justice. Freemaw W. Compton. i . „„..v.,^. Jn'itice'i HuLBERT F. Fairchild, j ^•^««^^^*^^ Jusuces. Ho.MiciDE — Uncom.municated threats. On the trial of an indictment for nmrder, throats and declarations of hostile purpose and feeling, made by the deceased on the day and near the time of the killing, and his acts and conduct indicative of an intention to Post. ' Ante, p. 469, note. ^Ante, p. 442. » Ante, p. 471, note. 588 DtrPEEE 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 oflFences .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 character 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 fof 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 ' -4n=ailed with a deadly weapon, and retreat to the wall, before he can jus- 596 THE PEOPLE V. SCOGGINS. tify the killing of his assailant. The State v. Tweedy, 11 Io>va, 350, [posi.J But to make a homicide justifiable, on the ground of self-defence, there must bo an actual and urgent danger. lb. 457, the State of Iowa v. Neeley, lanie, p. 96] ; 20 Iowa, 108, the State v. Thorap,on, 9 /*., 188, lante, p. 92.] It is not necessary, however, that the danger should in fact exist, but that there be actual and real danger, to the defendants comprehension, as a rea- sonable man. The enquirj'is not whether the harm apprehended was ac- tually intended by the assailant, but was it actual and real to the accused, as a reasonable man, as compared with danger remote or contingent. The State V. Neeley, 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 mth the transaction before them, might be 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 McMillin. * * * The judg- ment was reversed. THE PEOPLE V. SCOGGINS. [37 Cal., 677.] Supreme Court of California, July Term, 1869. LoEENzo Sawyer, Chief Justice. Augustus L. Rhodes, 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 cu-cumstances 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 tliat he was in danger of serious bodily injury, and thus justify his act. [Ace. Sloan's oase, 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, threats 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, ante, 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 evidence 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. Cofforth & Spaulding, for appellant ; Jo. Hamilton, Attorney-General, for the people. Ckockett, J., delivered the opinion of the Court : The defendant was indicted for the crime of murder, in the killing of one Joseph E. 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 an 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 residence 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. 8C0GGINS. 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 to shoot the defendant ; that he then went off at a brisk trot for about a quarter of a mile, when he stopped, and again commenced to tear down the fence at another place; that the defendant then mounted a horse, and passing the deceased, went to a neighboring house, where he borrowed a shot gun, with which he returned to the place where the deceased last broke down the fence ; that, in the meantime, the deceased had left, and was driving away through the field; that the defendant pursued him, having the shot gun lying crosswise in front of him ; that, on overtaking him, and coming within range, he shot the deceased, who fell from the vehicle ; that the pistol was found on the ground, near to the deceased, by those who immediately came to his assistance. The the- ory of the defence is : that, as the defendant approached, the deceased raised the pistol in a threatening attitude, and was aboat to fire upon the defendant when he re- ceived the fatal shot, and, consequently, that the homi- cide was committed in self-defence. One of the physi- cians, who attended the deceased, testified that '"his right arm must have been raised, from the position of the shot, at time of receiving it." On the other hand, Mrs. Lowery, the widow of the deceased, testified, that, at the time of the fatal shot, the pistol was lying in her lap,, with her hand resting upon it, and that it had not been out of her possession from the time when she received it from Crouch. On the trial, the defendant offered to prove that, a few days before the killing, the deceased, in speaking of the defendant, had said "that Scoggins^ (the defendant), was a damn son of a bitch, and that he SUMMARY OF THE LAW OF THREATS. 599 would kill him 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 Baking 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 eff'ect, 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 V. SCOGGIK"S. assault, because it may be that the 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 would induce a well-founded belief in the mind of a reasonable person, that his ad- versary was on the eve of executing the threat, and that his only means of escaping from death or great bodily injury, 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 threat, and that it was communicated to the de- fendant, would be competent, as tending to show the animus of the partj", and that the defendant acted upon a well-grounded apprehension that his adversary was about immediately to put his threat into execution. But the question in this case is : whether or not pre- ■^dous threats of the deceased, not communicated to the 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 the Court in Arnold's case, which relates to the doctrine of uncoramunicated threats: Baldwix, J., — Cope. J., concurring : — The main question arises on the admissibility of certain testimou}-. Tiie defendant was indicted and tried for feloniously killing oni' John JI. 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 thijig^, testified, that he was present on the twenty-fourth of Augu-t, 1859, at the difficulty that then occurred be- tween this defendant and Sweeney, in the course of which, ftie defendant discharged a double-barreled shot-gun at Sweeney, the charo-e from which took effect in his thigh, wbere\ipon Sweeney fell forward ; that immediately thereafter, the witness approached Sweene}^ and saw, h-ing on the oround, 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- XTNCOMMUNICATED THREATS — ARNOLD'S CASE. 601 "We 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 aflfray, 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 cumstaiices immediately conuected with the difficulty, in which the witness himself, armed with a pistol, took an active part with Sweeney against the defendant and his sons ; and he then says, the pistol he saw lying on the ground after Sweeney fell, Sweeney borrowed from ilr. Cordes, some time before tlie t^venty-fourth of August, 1859 ; that Cordes 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- fourtli of August, 1859, seen said pistol in Sweeney's iDOSses>:ion. The defendant's counsel then asked the witness the following question : "At the time Cordes gave the pistol to Sweeney, was anything 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 knowl- edge of the defendant, and sustained the objection ; to which decision, the defendant excepted. We do not understand that the t^timony 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 kiU 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 and 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 therfe 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 tliese 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. SC0GGIN8. whatever 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 constitute 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 .a-=ailant. The coiina I contends, that any fact which 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 jiistol, does so tend. The object of a trial i> 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 le.-s conclusive, but 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 fact of the assault by the deceased ; and, in a conflict of proofs, tlie 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 wa- entitled to urge all the considerations conducing to establi-h his theory, and to dis- prove tliat of the prosecution, which could be ftiirly presented to the jury. He had aright to urge, as well expressly proven facts, as the probabil- ities and inferences to be drawn from the conduct of the parties connecteil with the occurrence. He did urge, as we infer from the record, that this assault was not made by him, but that it was made by Sweeney; and to prove this, he proposed to show that Sweeney had armed himself with this pistol; that he bad borrowed it, and that it was found at the place of the rencounter. He was permitted to show these facts, but he proposed to- show a further fact, and that was, that, at the time of Sweeney's getting the pistol, he declared what he meant to do with it. This declaration, be- ing made at the time of procuring the weapon, was a part of the res geatoSf and illustrative of the transaction. It shows, in other words, the purport? for which the weapon was procured. Tliis leads us to the enquiry, whether the fact that A. procures a weapon for a particular purpose, conduces at all UJSrCOMMUNICATED THREATS — ARNOLD'S CASE. 603 It is alleged, however, that, in this case, there was an entire absence of proof that the deceased was the assail- ant, and that evidence of the previous threats ought not to be admitted, because there was, in fact, no proof whatever that the defendant acted in self-defence. But,, without attempting to analyze the proofs, it is enough for us to say on this point, that Mrs. Lowery was the only witness immediately present at the time of the ren- counter, and though she testifies that she had the pistol in her lap at the moment when her husband was shot, and had not parted with it from the time when she re- ceived it from Crouch, it was for the jury to decide upon her credibility ; and there was evidence tending to show that immediately after the affray, the pistol was found upon the ground, not far from the deceased, after he fell from the buggy. One of the attending physicians also testified that, from the position of the wound, the right arm of the deceased must have been elevated when he received the fatal shot. We do not wish to be under- stood as intimating any opinion as to the weight to be attached to these facts, nor as expressing any doubt as to the credibility of Mrs. Lowery. These are matters for the jury, and we refer to them only for the purpose of to show, ill a question of conflicting proof, as to tiie manner in which he used it, wliat that manner was. We apprehend that if a man goes into a. liouse, borrows a g-an, goes out with it, saying that he means to use it on another, and a rencounter happens between him and that other, and the witnesses who see the difficulty differ, or the circumstances are equivocal as to which one of the two commences the affray, that some light might be thrown upon this question, conducing to or towards its solution by the proof of these facts as to A.'s procuring it, and his motives in doing so. The jury might possibly, with some reason, conclude, that, as the weapon was procured for this purpose of assault on another, that purpose was ful- flUe*; that the assault, in other words, was made in pursuance of the in- tended purpose when the weapon was procured, and especiallj', if other facts in corroboration of this conclusion existed. But the fact of the con- clusiveness of this proof to establish the proposition which it is introduced to prove, is not the decisive question ; that question is, whether this item of fact be a vnsXXer proper to be considered by the jury in arriving at their conclusion upon this mooted point. And we have no doubt that it is ; that it may enter into the deliberations of the jury with all the other facts, as a> matter to be weighad by them with the rest of the proofs. * * * The- judgment was reversed. '604 THE PEOPLE V. SCOGGINS. showing that proof of the previous threats was not wholly irrelevant and impertinent. In support of our views on this point, we refer also to People V, Williams," 17 Cal., 146 : and Dukes v. The State," 11 Indiana, 566. Judgment reversed, and cause remanded for a new trial, and remittitur ordered to issue forthwith. i>The citation of this case is iiardly relevant here. It turns chiefly upon a question of practice ; namely, the manner of instructing juries in criminal trials. The opinion, delivered by Baldwin J. — Cope, J., concurring — contains an animadversion upon the use by the district judge, of the word "victim," when speaking to the jury, in his charge, with reference to the deceased. Another feature of the charge is discussed in the opinion of the Court, as follows ; "After the general charge given by the Court, the de- fendant's counsel requested this instruction : ' If defendant inflicted the mortal wound in self-defence, and his danger was so urgent and pressing, that in order to save his own life, it was necessary that he should have inflicted such wound, then the jury must acquit.' This charge vyas refused, but no reason was given by the Court for the refusal. It is not denied that the instruction was legal ; but it is said that there was no error in refusing it, because the Court had already given the same instruction, though in different language. It is always better for the Court when an instruction presents the law accurately, to give it, especially in criminal cases, in the very words asked. The reason of this is, that counsel argued their case to the jury with reference to the law, as announced in their own language. They select words to convey as precisely as they can, the very idea and meaning they seek to impress. A change of phraseology, therefore, may render the legal proposition less intelligible or less emphatic. Counsel may desire a proposition to be given in diflerent terms, in order that it may be more clearly understood. If the Court refuses a charge once olearly given, on the ground that it has already given it in different terras, it should inform the jury very distinctly that this is the reason for the re- fusal, else prejudice and misunderstanding may result. The jury may infer that the instruction was refused on its merits. But this is not an open question in this Court. People v. Ilui-ley, 8 Cal., 390 ; affirmed in People V. Ramirez, 13 Cal., 172. "We are not to be understood as holding that the mere refusal of the Court to instruct in the language asked, the instruction having been'given in substance, or that the mere refusal to repeat an instruction before given, in the same or different languaj^e, would be ground for reversal. We simply hold, that if the Court refuses a proper instruction in a criminal case, it is no answer to the error assigned, for this cause, that an equivalent one was before given, unless this reason be assigned at the time of the refusal." See upon the same point, Neeley's case, ante, p. 96 ; Lamb's case, post; People V. Williams, 32 Cal., 280. • "Ante, p. 572, note. r>TCOMMrXICATED THREATS. 605 Mr. Justice Sa]sdei{SO>^ delivered the following opin- ion, in which Mr. Justice Speague concurred : *« *« *-s ** **« The next point relates to the exclusion of certain tes- timony as to threats which had been made by the de- ceased a short time before the homicide was committed, but which had never been communicated to the defend- ant. For the purpose of disposing of the present ap- peal, a consideration of this point is unnecessary, but, as it will doubtless arise upon the new trial, which must be granted, it is better that it should be considered now. The case shows that the defendant offered to prove that, five days before the homicide was committed, the deceased came to the farm of the defendant in his ab- sence, and declared to the witness that " Scoggins (the defendant), was a damn son of a bitch, and that he would kill him inside of ten days"; also, that on the morning of the day on which the homicide was commit- ted, at a place about five miles distant from the place at which the homicide was committed, the deceased, exhib- iting a pistol to the witness, said " that he would make the son of a bitch, Scoggins, bite the dust before night with this." In offering to prove these threats, counsel for defendant admitted that they had never been com- municated to the defendant prior to the homicide, and, therefore, could not be received in evidence upon the ground that they tended, in connection with other facts, to show that the circumstances of the homicide were such as to excite in the mind of the defendant the fears of a reasonable person, that the deceased was about to commit a felony upon him, and justify the killing; but it was insisted that they were admissible, for the pur- pose of sustaining the defendant's plea, that the killing was in self-defence, by showing probable grounds for the theory of the defendant that the deceased was the assailant, and was in the act of presenting his pistol at the defendant, with deadly intent, at the time the latter fired, and, therefore, that the homicide was justifiable. 606 THE PEOPLE V. SCOGGINS. In view of tlie fact admitted by counsel, that these threats were unknown to the defendant until after the homicide was committed, the Court below ruled that they were not admissible for any purpose. It appears that there was some dispute between the deceased and the defendant, in relation to the right of the former to pasture his hogs in certain fields, which had been previously in the possession of the deceased, but which, at the time of the homicide, had come into the possession of the defendant, with the understanding, as claimed by the deceased, at least, that the hogs of the deceased should be allowed to run in certain stubble fields until the commencement of the rainy season. The defendant does not seem to have so understood it, but if he did, he was not disposed to carry out the arrange- ment. On the contrary, he seems to have turned the hogs out of the fields, and shut them out, some time prior to the homicide. On the day of the homicide, the deceased, with his vsdfe and two little children, went to the fields in question in a two-horse buggy, the deceased having armed himself vidth a pistol before starting, which was quite contrary to his usual custom. Upon reaching the fields, the deceased proceeded to knock down the fence, so as to let in the hogs. While he was thus engaged, the defendant came along, whereupon, an altercation and personal rencounter took place between them, in which the deceased was dragged from his buggy and thrown on the ground by the defendant. The de- ceased seems to have made an effort to draw his pistol, and when tlie witness. Crouch, came up, the contest seems to have been mainly over the possession of the pistol, which was still in the i:)ocket of the deceased. Crouch interfered, and took possession of the pistol, by common consent. Soon after, the contest ceased, and the deceasc(l returned to his seat in the buggy. Crouch i^ave the pistol to the wife of the deceased, upon her promise that she would not allow it to go out of her possession. Daring this time, the parties had called each other liars and other hard names. The defendant UNCOMMUNICATED THREATS. 607 insisted that the deceased must not tear down Ms fences, and the deceased threatened to tear them down as often as the defendant put them up, and as he drove off, threatened to shoot the defendant, and to tear down the fences at four or five other places. The defendant replied, "that if he intended to tear down more fence, he had better take the women and childi-en home first."' The deceased drove off some distance, and then again proceeded to tear down the fence. The defendant re- marking, that he would not stand it, mounted a horse and rode after the deceased, whom he passed, and went to the house of one Davis, where he obtained a double- barreled shot-gun. By this time, the deceased had turned his team in the direction of his home. The defendant followed, and came up behind his buggy, when he fired his gun at the deceased, hitting him at the back of the right shoulder. No one, except the wife, saw what transpired at the time of the shooting. She testified, that, when the defendant rode up behind their buggy, she turned round and looked at him ; that he was in the act of aiming his gun at her husband ; that she put her hand on her husband's shoulder, and said : •' He is going to shoot you ;" that her husband then turned around toward the defendant, and immediately received the fatal shot ; that the pistol was in her lap at the time, and that it had never been out of her pos- session from the time it was given to her by Crouch. The deceased fell out of the buggy, and there was some testimony tending to show that the pistol was picked up near the place where he fell. One of the medical wit- nesses gave it as his opinion, that the right shoulder ol the deceased was presented toward the defendant at the time of the shooting, and that his right arm was in a raised position, such as would have been its position had the deceased been engaged in presenting a pistol at the defendant at the time he received his death wound. Such being the circumstances of the killing, it is claimed on the part of the defendant, that the finding of the pistol at or near the place where the deceased 608 THE PEOPLE V. SCOaGINS. fell, and the elevated position of Ms rigltt arm at the time he received the defendant's shot, are circumstances tending to show that the deceased himself was the as- sailant, and was about to take the life of the defendant at the time the latter fired. That this theory would have been further established, or fortified, by proof of the threats which had been previously made by the de- ceased, and that the testimony, in respect to those threats, ought to have been received, as being of the same general character and eflfect as the finding of the pistol and the position of the arm, or as adding stiU another to the probabilities which tended to support and establish the theory of the defendant. It is well settled, that threats, as sug?i, are admissible only in two cases : first, threats made by the defendant, which are admitted for the purpose of shovsdng malice, and thereby increasing the -probabilities that the de- fendant committed the offence; second, threats made by the deceased, or the party injured, and hnovm to the defendant at the time of the transaction, which are admitted for the purpose of showing that the circum- stances of the killing were such as to excite the fears of a reasonable man that the defendant's life was in dan- ger, or that he was in danger of serious bodily injury, and thus justify the act. Unless they are known to the defendant at the time he acts, they can have no effect whatever to excite his reasonable fears, and cannot, therefore, be received for the purpose of shovring that such was the case. But, it has been argued, with much ability and force, that the purpose suggested is not the only purpose that can be subserved by such testimony ; it being claimed that previous threats, made by the de- ceased or injured party, are facts of circumstances, which tend to illustrate the question as to which party was the first assailant, and is of controlling weight in a doubtful case. The argument is : that every fact or circumstance from which any rational presumption can be drawn by the jury, is relevant, however trifling its weight, and, therefore, must be received; that threats UJvrOOMMUNICATED THREATS. 609 indicate malice, and the presence of malice affords ra- tional ground for the act charged, especially in a case of conflicting testimony. This view seems to he sustained by the case of The People V. Arnold,'' 15 Cal., 476. There the plea of the defendant was self-defence, and it was claimed, on his part, at least, that the testimony as to which party made the first assault was conflicting. "In some respects, the facts in that case and of this are alike. One Morris was a witness for the prosecution, and, among other things, testified that he was present when Sweeney, (the de- ceased), was shot by the defendant ; that, immediately after the shooting, the witness approached Sweeney, and saw lying on the ground, about six feet forward of him, a pistol which he had previously seen in Sweeney's possession, and which Sweeney had borrowed of one, Cordes. Counsel for defendant then asked the witness the following question: "At the time Cordes gave the pistol to Sweeney, was anything said by Sweeney with reference to using the pistol against Arnold?" To this question, "counsel for The People objected, upon the ground that the answer was irrelevant and incompetent. The Court below sustained the objection, upon the ground that what was said by Sweeney, as was admitted by counsel, had not been communicated to the defendant before the homicide. The admissibility of the supposed threats of Sweeney was urged upon the same ground which has been adopted in the present case. Among other things, the Court said : [Here the learned Judge quoted at considerable lengtli from that part of the opinion in Arnold's case, which will be found on pages 602 and 603, supra, and then proceeded :] A like result was reached by the Supreme Court of Indiana, in the case of Dukes v. The State,'' 11 Ind., 557. Much the same question came before this Court, in a late case, Lyon v. Hancock, 35 Cal., 372. Lyon and wife brought a civil action against Hancock, for the'malicious ^ Supra, note a. " Ante, p. 572, note. 610 THE PEOPLE V. SCOGGnSTS. arrest of the wife. The defendant claimed, that he had arrested Mrs. Lyon in good faith, believing that she had, on the instant previous to the arrest, maliciously thrown a brickbat through his window. The evidence that she had thrown the brickbat consisted of the fact only, that she was the only person whom the defendant found in the street immediately after the brickbat was thrown. Such being the case," the defendant offered to prove ill- feeling on the part of the husband toward him, and that he had made -threats against him, as tending to show that she threw the brickbat. The Court below excluded the testimony, but we held that it ought to have been received as relevant, though of little weight, to the question whether she threw the brickbat. Among other things, we said : " To ascertain the truth of facts in the absence of mathematical certainty, is to count opposing probabili- ties, and determine on which side lies the superior number. In computing the number, no rational proba- bility on either side should be rejected. It matters not how trivial or unimportant it may seem when standing by itself, for when placed by the side of other probabili- ties, it may from relation become significant. Besides, under the head of relevancy, the question is not as to the Aveight of the evidence, but whether it tends at aU to illustrate the issue. " The presence of Mrs. Lyon in the street, and the ab- sence of aU other persons by whom the act might have been committed, were strong probabilities that the brick- bat was cast by her. Taken in connection, does the fact, if such was the fact, that her husband entertained to- wards the defendant, feelings of liostility, and had, in her presence, made threats against him, constitute another probability against her ( Would she have been less like- ly to have cast the brickbat, had the relations between her husband and the defendant been friendly ? Or, in other words, guided by our observation and experience of the motives and relations by which human action is ordinarily influenced, can we affinn to amoral certainty, UNCOMMUNICATED THREATS. 611 that Mrs. Lyon could not have been influenced by the unfriendly relations existing between her husband and the defendant? It certainly is not contrary to human experience to find a unity of feeling and action accom- panying the family relation. Feuds descend from father to son. An injury to one, is an injury to all. The honor of one, is the honor of all. It certainly is not con- trary to human experience for the wife to sympathize with her husband, to share his feelings, to look upon his enemies or friends as her's also. Such are the teachings of our instincts, and of our observation and experi- ence. " Suppose, on coming to the street, the defendant had found two women instead of one, of equal respectabil- ity and character, one of whom must have cast the brick- bat, one the wife of his friend, the other of his en emy, would not the friendship of the one and the enmity of the other, constitute probabilities to be taken into ac- count in determining which perpetrated the act ? Other probabilities being equal, as we have supposed, no one would hesitate to say that the act had been committed by the wife of the defendant's enemy, and not by the wife of his friend." Between these cases and the present, I can draw no distinction. If they were correctly decided, and I think they were, the Court below erred in this case. No fact or circumstance ought to be excluded from the jury, un- less the Court is clearly satisfied that the jury can found no rational presumption upon it. If the jury believe the testimony of Mrs. Lowery, they will, of course, pay no attention to these threats ; but if there is any ground to doubt the accuracy of her testi- mony, they may, for the reasons given in the foregoing cases, look to these threats as affording some light, though dim, upon the question whether the deceased first assaulted the defendant. Upon these grounds I concur in the judgment. Judgment reversed. 612 scoGGnsrs v. 'jhe peopIjE. Note. — We shall add extracts from two or three oases on the subject of threats, and then present lliose cases which discuss more immediately the question, under what circumstances evidence of the character of the de- ceased or prosecutor for violence is admissible. The case of Chambers v. Porter, 5 Coldw., (Tenn.) 273, was an action brouglit by the defendant in error, in his lifetime, for the wrong-s and in- juries of which he afterwards died. At the September Term, 1867, there was a verdict and judgment for the plaintiff below, from which the de- fendant appealed. Judge Lucien L. Hawkins, presiding. MiLLiGAX, J., delivered the opinion of the Court : On the 23d of October, 1865, Robert P. Chambers, the plaintiff in error, shot and mortally wounded Isaac R. Porter. The latter lived only five days, and then died from the wound. But before his death, he brought an action of trespass, vi et armis, in the Circuit Court of Carroll county, against Chambers, for " illegally shooting and mortally wounding him," laying his damages at ten thousand dollars. The process was returned to the January Term. 1866, when the declara- tion was filed, without revivor, in the name of the original plaintiff. The defendant appeared and pleaded to the declaration, •• not guilty," and a special plea of justification ; in which he alleges that the shooting was done in his necessary self-defence. ********* *■* In the process of the trial, the Circuit Judge, upon motion of the plaintiff's attorney, excluded the statements of the witnesses. Bennett and Johnson, who proved that, on the day of the killing, and the day previous, they heard the deceased making threats of violence against the defendant. Chambers. These threats were excluded, on the ground that they were not communicated to the defendant before the shooting : and the action of the Court in this respect, is also assigned as error. It is clear that no words of provocation will ju-tify an assnult; nor will former threats or insults palliate an as-ault and battery; or ordinarily, in a civil action, be received in mitigation of damages, unless they are so recent as to constitute a part of the res gesiop.. 2 Greenleaf 's Ev., 207 ; Leo V. Woolsey, 19 John. R., 318 ; 1 HTIUard on Torts, 20i;. note a. ; 1 PhiUips on Ev., 74.8, marg. note. 197. But it is insisted, the evidence of the antecedent threats of the deceased, were admissible, under the defendant's plea of justification, as tending to show the animus of the deceased, and thereby superinduce the belief in the defendant that he was in danger of life, or great bodily harm, and therefore justified in taking the life of the plaintiff. We aie unable fully to concur in this proposition. The rule of law which will excuse a homi- cide, as deolai'ed by this Court, in the case of Rippy v. The State, 2 Head. 217, [ante, p. 34.5,] is as follows : " The law on this subject is, that to excuse a homicide, the danger of life, or great bodily injurj-, must either be real, or honestly believed to be so at the time, and upon sufficient grounds. It mu-t 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 injury. Past threats and hostile actions, or antecedent circumstances, can only be looked to in connection with present demon- UNOOMMUJSriOATED THEKATS. 613 strations, as grounds of apprehension. To constitute tlie defence, tlie ■belief or apprehension of dang-er must be founded on sufficient circum- stances to authorize the opinion that the deadly purpose then exists, and the fear that it will at that time, be executed." The q^uestion in this class of cases,- is always one of reasonable appre- liension; 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 harm ; 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 lilte 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, iu the determination of the question of reasonable apprehen- sion. But how antecedent.tlireats, not so recent as to constitute a part of the res gestae, 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 lu the defendant, that he was in danger of life or limb, is more than we can comprehend. 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 liilliard on Torts, 78, note a. But such is not the question in the present case, or the grounds upon which the evidence is offered. It is in justification of the act, or tending to establish such justification: and we knoNV of no reason or authority under the facts of this case, by which the evidence was admissible, unless communicated to the plaintiff. 1 Hilliard on Torts, 206, note a. It may be added that this case, so far as it establishes the doctrine, that threats made by the slain before the killing, and not communicated to the slayer, are not competent evidence for the slayer, has been overruled in Tennessee, by the subsequent case of Little v. The State, ante, p. 487. In Newcomb v. The State, 37 Miss., 383, the defendant was indicted for murder and convicted. The deceased was shot down deliberately, while sitting on a wagon-load of wood, and does not appear to have been making any demonstration, or using any language to the defendant. The 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 was admitted, but evidence of previous threats made by the deceased against .the accused, but not com- municated to him before the killing, having been offered and excluded, and tliese rulings, having been assigned as error, were disposed of as fol- lows in the High Court. Handy, J. ; * * * '' The third assignment of error relates to the exclusion of the testimony offered in behalf of the ac- cused, and set forth in the second bill of exceptions. This testimony was in substance, that about six weeks or two months before the killing, the deceased had 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 and others helped the ac- vtjused up, and took him to water in a branch which was near, to wash off the 614 SCOGGINS V. THE PEOPLE. blood and the accused stepped into the water, and the witness pulled hint back, and told him to stop and wa.- Ante, last case. 624 THE STATE V. BAEFIELD. contrary, if the behavior of the deceased was usually mild and respectful towards white persons, nothing could he added by it to the force of tfte other circum- stances'' 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 deportment, " if they were evidence at aU," 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 there 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 Lamb's case. *But see note c. to Keeiier's cnsi-. ante. p. .547. « But why was the defendant put to the disadvantage Of ealhng thcM' children of the person slain, and making them his own mtnesses? In the 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 Hurd's case, post, where the rule of practice in such cases is stated. CHAEACTEE OF BECEASED FOR VIOLENCE. 625 the prisoner was. The evidence of the deceased's char- acter neither disproves the facts proved hy the wit- nesses, nor impeaclies their credibility. For these rea- sons, and because, we think, if there were any snch 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. ******* -x- * * * 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 judges 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 murder, 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 will 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. BARFIELD. 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 j ury 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 i^hysical 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 thfe 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 Henderson 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, more than'-' hut little loeigld,'" vf'h.ich. 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. Selfridge's case, ante, p. 1 ; Copeland's case, ante, p. 41 ; Beu- liam's case, ante, p. 115 ; Hinton's ease, ante. p. 83: AVells' case, ante, p. 14.5, aad others. CHAEACTEK Or 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, v^hen 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 rejected. 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 havefoxmd 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 before tTie jury had so found, and if 628 THE STATE V. BAEFIELD. it had been admitted, it is possible that their delibera- tions might have led them to a different conclusion. But it is urged, iinally , 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 enquiry, 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- ' 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 objections, 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 diflferent kind or degree of testimony. The second objection is better founded ; but I can 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. Nathak "Weston, GMef Justice. Nicholas Emeet, ) 7-„,„/..„„ Ether Sheplet, \ -J^^^^^^^- Homicide — Character of Deceased for Violence. It is not competent for one indicted for manslaughter to prove, on the trial, that the deceased was well-known, and understood, generally, by the accused and others, to be a drunken, quarrelsome, savage and dangerous 630 THE STATE V. FIELD. mam. [Ace. Barfleld's case, ante, last case; "Wesley's case,, ante, p. 319 ;: Wright V. State, ante, p. 484, note; Fields' case,^osi:; and other cases col- lected in the note to Lamb's case, poat. 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,ara^e, pp. 476, 486 ; Little's case, ante, p. 487 ; Keener's case, ante, p. 546 ; Quesen- berry's case, «?«!«, p. 549, note; Tackett's case, areife p. 615 ; Pritchett's case, ^os<,- Franklin's case, ^osi; Lamb's case, /los^; 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 injuiy to Nathan- iel having been inflicted with an axe. Aftenvards, 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 effect to make him exceed- ingly quarrelsome, savage and dangerous ; that hfc 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. Emery, 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, thaa CHARACTER 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 motives 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. K 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 f 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 Emery, 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 argumem of the defendant's counsel is : that if the defendant had good reason to believe, that Nathan- 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. R., 515, and Selfridge's^case, are cited in support of the positions assumed by 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 jur}' by Judge Washisgtox. 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, 7ds 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. CHAKACTEB OF DECEASED FOE 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. Par- 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 Paekee, 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. EIELD. ti.ce, 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 Attomey-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 Terger'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 Allegha- nies. cGrainger's case, ante, p. 238. SYLLABUS. 63& It would not be allowable to show, on the 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 quarrelsome 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. . PRITCHETT V. THE STATE. [22 Ala., 39.] Supreme Court of Alabama, January Term, 1853.. "William P. Chilton, Chief Justice. David G. Ligoist, George Goldthwaite, John D. Phelaw, Lyman Gibbons, -Associate Justices. Homicide — Character op deceased for violence — Communicated^ THREATS. 1. An act performed by a quick, impulsive, blood-thirsty, abandoned 636 PEITCHETT V. THE STATE. man may afford m ich 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 mightvery 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, in 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 whieli 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 som« 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 hij own, or to prevent some felony upon his person. [This principle is sub- stantially declared in all the cases upon the subject, except Philips' case, an^e, p. 383; Carico's case, ante, p. 389; Bohannon's case, ante, p. 395, and Fields v. The State, post.'\ 3. \VTien 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 ^ith 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. Copeknd's case, ante, p. 41 ; liobertson's case, ante, p. 151 ; Cotton's case, ante, p. 310; Eippy's case, ante, p. 345 ; Monroe's case, ante, p. 467 ; Robert Jackson's case, ante, pp. 476, 486 ; Little's case, ante, p. 4S7 ; Keener's case, ante, p. 546; Quesenbeny's case, ante, p. 549, note; Tackett's case, an^e, p. 615 ; Franklin's case, post; Lamb's case, post ; and cases collected in the note to Lamb's case, post. Contra, Wesley's ca-e, 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.} 4. Where an ill-feeling existed between the prisoner and deceased ; and the deceased had made violent threats against the prisoner wliich had been communicated to him, and had, the day before the killing, made an assault upon the prisoner \nth deadly weapons ; and the prisoner loaded his gun 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 befcre the Hon. John E. Moore. D. C. ITumphreys, for plaintiff in error ; M. A. Bald- win, Attorney-General, 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. CHAEACTEB OF DECEASED POK 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. sucli circumstances as rendered its character doubtful, and in. which the general character of the accused might sometimes afford a clue to the truth ; that it was an ac- knowledged principle that, if, at the time the deadly blow was inflicted, 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 provocar 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 j udge 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 CHARACTER OF DECEASED FOE VIOLBWOE. 639 motive wliich. characterize acts proMbited 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 assailajUt 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 bfe 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 imminent 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 seK-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 PEITCHETT 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- senherry 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 gestce; for it would be a barbarous thing to allow A. to give as a reason for his killing B., that B.'s disposition was savage and riotous." Wharton's Cr. L., 172 f see. also, State v. Field,'^ 14 Maine Kep., 248 ; Commonwealtli 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 afiirmed. Judgment affirmed. " 6th ed, 5 641. ^ Ante, last case. « Post, note to Lamb's case. ^Anie, p. 484, note. SYLLABUS. 641 FRANKLIN V. THE STATE. [29 Ala., 14.] Swpreme Court of Alabama, June Term, 1856. Samuel F. Rice Chief Justice. A. J. Walker, Geo. W. Stone [ Associate Justices. Homicide — ^Evidence of character of deceased for violence. i. The character of the deceased for turbulence, violence, revengeftd- ness, bloodshed and the like, where it qualifies, explains, and gives meaning and point to the conduct of the deceased, is proper 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 be limited to those cases where the facts are such as to make it doubtful whether the homicide was commited se defendendo. 3. When the conduct of the deceased is such that, illustrated by 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- I 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 ca^e, 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 un- chastity. Kex. v. Clarke, 2 Stark. K., 243.] 643 rEANKLIN 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 tiie 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 he then offered to prove, " that the deceased, some time before the killing, attempted to shoot a woman in CoJTee county, vnlhout any cause." This evidence, on objection by the State, was excluded, and the prisoner excepted. The 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. Bullock, for the prisoner; M. A. Baldwin, Attorney-Greneral, 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., 308; Pritchett v. The State," 22 Ala., 39. In Quesen- berry's case, this Court declined to decide in favor of 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 been, 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, 649, note. •> Ante, last case. " Post. OHABACTER OP DECEASED EOE VIOLENCE. 643 af 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 evidence. 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 limited to 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 eflfect. 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 eifect left to the deter- mination of the jury. It would be for the Court to deter- 644 FKANKLLN 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 declaration ^ of third persons, whether they are part of the res gesta. "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 ahove 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 Couit, and are, we think, founded in justice and reason. Wharton's American Criminal Law, 172 ; Roscoe's Criminal Evidence, 39 ; "Wharton's American Law 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, 342 ; 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, to 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 tc; 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, a.nd its sentence executed. Judgment affirmed. i> Ante, p. 547, note. 646 THE PEOPLE Y. LAMB. THE PEOPLE V. LAMB. [41 New Yoek, 360.] New York Court of Appeals. January, 1866. He>TvY E. Davies, Chief Justice. Wm. B. Wright, 1 John K. Portee, > Judges. Ward Hunt, ) William H. Leonard, Ecrrus W. Peckham, Leeoy Morgan James E. Smith, Justices of the Supreme ^ Court, arid ex-officio Jus- ' tices of tJue Court of Appeals. [The report does not show what Judges and Justices w^ere present, except Davies, Chief Judge, and Smith and Mokgas, Justices.] Acting upon appearances of danger — Character of deceased foe violence^Peesumption op jlalice. Per Davies, Ch. J .: 1. Xo apprehension of danger previoasly entertained, will justify the commission of homicide ; it mu-t be an apprehension existing at the time the prisoner struck the blow. [Ace. Harrison's case, ante, p. 71 ; Scott's ca-se, ante, p. 163 ; Eippy's case, ante, p. 345 ; Dyson's case, ante, p. 304 ; Lander's case, ante, p. 366; Williams' case, ante, p. 349; and many others. Contra, PhOips' case, ante, p. 383 ; Carico's case, ante, p. 389.; Bohaunon's case, ante, p. 39-5.] 2. Ill trials for homicide, the character of the person slain cannot ii* general be drawn in question ; for equality before the law, is a maxim of universal justice, and the life of the humblc-t and most abandoned is equally entitleil 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. Evidence of the violent character of the deceased can only be ad- mitted, where the evidence shows that there was an a=sault committed or threatened by the deceased upon the prisoner, and wh^re a doubt Is created \-.hether the homicide was committed from malice, or to repel such assault, and from a principle 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 justify the taking of life in self-defence, or to ward off great, impending and imminent danger 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 wife, 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 the 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 TOSe 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 circmnstances, Bohannon's case, ante, p. 395.] Per Da VIES, 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 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 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 Da vies, Ch. J., Smith, J., and Morgax, J., not erroneous, when taken as a whole ; and Smith, J., and Morgax, J., 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 plaintiffs in error; Wm. F. Kintzing and A. 8. Cohen, for the defendant in error. Davies, Ch. J. ; The prisoner was indicted and con- victed in the New York General Sessions, for the mur- 648 THE PEOPLE T. 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 Clifford, 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 tliat 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 stooped down, tied his shoes, and walked out. She also testified, that the OPINION — THE I'ACTS STATED. 649 deceased did not' go near the prisoner at all, but lie 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 Driscoll 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^ ke 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 oflicer 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 Driscoll 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 been warranted in finding that Mary Driscoll 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 immi- 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 Driscoll 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 sucli 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. lie 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 weajion 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 and 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 OHAEACTEE OF DECEASED FOE 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 afibrd any justification. It must be an apprehension existing at the time 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 lealing 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 authori ty , a reference to some of them will satisfactorily appear. Wharton, in his American Criminal Law, §641, thus lays down the doc- ti'ine : " On the trial of an indictment for homicide, evi- dence to prove tliat the deceased was Avell 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 OHAEAOTER OP DECEASED FOE 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 aboyfe 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 drawn 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 ; but, 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 654 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,"! 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,e 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 ; State V. Barfleld,'! 8 lied., 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 Jin. < Ante, p. G29. : Note, sub Jin. " Note, sub Jin. ' 'Sole, sub Jin. > Post. * Sole, sub Jin. ^ Ante, p. 467. -.^n^e, p. 635. ' Ante, last case. 'Ante, p. 571. f Note, sub Jin. i Ante, -p. 618. ' From the report of the principal case in the Supreme Court, whence it was talcen to the Court of Appeals, (54 Barb., 349), it appears that Suth- ERLAKD, J., dissenting from the general conclusion of the Court, said : PRESUMPTION OF MALICE. 655 There was no error in the statement of the Judge ^to the jury, that the law presumes malice from the mere act of killing ; because the natural an,d probable conse- quences of any deliberate act are presumed to have been intended by the author. The Judge had just read the statutory definition of murder ; and the law implies mal- ice when the killing is premeditated or deliberate. The " I think the evidence as to general character, and as to character, was properly excluded, for the simple reason, that, if the evidence had been re- ceived, It would not have justified, nor tended to justify, the commission of the alleged act or crime for which the prisoner was being tried. When this evidence was offered, there was no evidence tending to show that the deceased, on the occasion when she lost her life, assaulted the prisoner ; on the contrary, the evidence which had been given on the part of the people tended to show, conclusively, that she did not, on that occasion, assault him, but that he did assault her first with a stick and his hands, and then with a knife. " The case of Reynolds v. the People, 17 Abb., 413, could not properly be referred to as an authority to show that the evidence as to the character of the deceased in this case, should have been received ; for, in the first place, the Court did not decide, or intend to decide, in that case, that the evidence to show that Mathews, the deceased, was a dangerous, violent and quarrelsome man, would have been admissible, had it appeared that the prisoner was acquainted with him or his character. In the opinion it was remarked that, perhaps, if this had appeared, the evidence would have been admissible ; but the Court had no occasion to decide whether it would or would not, and certainly the Court would not have held it to have been ad- missible, under any circumstances, without further examination. Again, the offer, in the case of Reynolds, was to show that he was a dangerous, vio- lent and quarrelsome man, and the offer was made under very different cir- cumstances. My recollection is, that the affray in which Mathews lost his life, took place suddenly on a public highway, after dark, and that, when the offer was made, the evidence tended to show that Mathews and his party were the attacking party. [See this case in note, sub Jin]. " Moreover, the formal ruling of the city judge, on the question of evi- dence as to the character of the deceased in the principal case, could not have prejudiced the prisoner ; for he was permitted to prove, and did prove, that his wife was a woman of great muscular strength, and had been in the habit of quarreling with him, and, upon several occasions, had struck him. Indeed, I think it may be said that the district attorney frequently ob- jected as to the character of the deceased as a quarrelsome, brutal woman, yet that her character was, in fact, as fully proved as though he had made no such objection. It is not probable, that the prisorer would have pro- duced any other or further evidence as to his wife's character than was given, even if his offers of proof, as to character, had not been formally overruled." 656 THE PEOPLE V. LAMB. jury could not have been misled by tMs remark of the Judge.' It is claimed, also, on behalf of the prisoner, that the Court erred in its charge when he said to the jury : "It is not his impressions alone, but the question is, whether those impressions, at the time he formed them, were cor- rect. If they were correct, it is a protection ; if they were incorrect, then it affords him no immunity or pro- tection." It is well to see in what connection this lan- guage was used. The Judge, immediately preceding, and in this connection, had said : " The other principle of the law is, that a man is not bound, if his life is in imminent peril or danger, to await until he receives a fatal wound, or has some great bodily injury inflicted on him. If he thinks his life is in imminent peiil, he has a right to act upon that thought and take life ; but, if he does it, gentlemen, it is at the risk of a jury saying, when all the facts were developed before them, whether he was justified in forming that opinion or not. If you are satisfied, from the evidence, that the circumstanGes did not warrant the conclusion he arrived at, and that he took life, it is no justification, and you have aright to convict" Then foUow the sentences objected to, al- ready quoted. It is seen, on an examination of them, ■ Upon this point, Sutheelaio), J., (dissenting) in the Supreme Court, said: "The exception to the remarlc of the city judge in liis charge, tliat the law presumes malice from the mere act of killing, etc., is evidently founded on a misconception of the city judge in making the remark. He did not intend that the jury should understand from the remark, that in this case, after all the proofs were in, the law presumed malice from the mere act of killing. Looking at the remark in connection with what he had said previously, and with what he said immediately after, it is evident that the jury could not have been misled by the remark. In making the remark, he stated a mere abstract principle of common law, and his object in stating it was to show the jury that it was a question for them, under the evidence in the case, whether the legal presumption from the mere act of killing, had been remcfved by the evidence in the case. " The question whether the act of kUling, which the prisoner con- fessedly did commit, was, under the evidence, murder in the first or second degree or manslaughter, or excusaWe or justiflable homicide, I think, was fairly submitted to the Jury." APPEARANCES OF DANGER — INSTRTJCTIONS. 657 that they are only an amplificaiion or ilhistration of the previous remarks. He had already told them that his justification did not consist in the fact, that he came to the conclusion that his life was in danger, but that the jury must he satisfied that he was justified in forming that conclusion from the facts before him. And he, therefore, in further illustration, told them that impres sions alone were not a justification, but those impres- sions must have facts for their basis ; such facts as would warrant or authorize him in forming or entertain- ing these impressions ; in other words, the impressions must be correct. If the impressions alone of a criminal, that his life was in danger, when such impressions are not reasonable, and have no facts for a foundation, are an immunity for taking life , it is not dilficult to see that every prisoner will have such an impression; if that alone is an immunity, it will be easy in all cases to be availed of. This portion of the charge is in conformity with the rules as laid down by Browson, J., in this Court, in the case of Shorter v. The People,* 2 Comst., 193. [Here the learned Judge stated the facts of Shorter' s case, and quoted the language of Bronson, J., at consid- erable length, and then proceeded :] In the view of the facts proven on the trial of this case, the charge of the Judge was far more favorable to the prisoner, than the doctrine enunciated by this Court in Shorter's case would warrant. Here, the Judge told the jury that the impressions alone were not sufficient. In Shorter's case, we said it was not enough that the party even believed he was in danger. His justification must turn upon this : "Were the facts and circumstances such, that the jury could say he had reasonable grounds for his belief? He must decide, at his peril, upon the force of the circumstances, in which he is placed, for his decision must be subject to judicial review. The Judge, therefore, committed no error in this portion of his charge, and if the portion of the charge now criticized <-Ante,^. 256. 658 THE PEOPLE V. LAMB. was subject to exception, every thing objectionable in it was removed bv the Judge charging, as requested in the third proposition of defendant's counsel. He cer- tainly, then, explained what he understood by the lan- guage used." " Upon this point, Inghaham, Presiding Ja'tice, when this cause was passed upon by the Supreme Court, said : " When the evidence is offered to show that the prisoner killed the de- ceased in self-defence, and that he feared the deceased intended to attack liim, the rule is, that the prisoner must have had reasonable ground for be- lieving the deceased intended to take his life or to do him bodily harm, and that there was reasonable ground for supposing the danger imminent that such design would be accomplished, although it should afterwards appear that no such design existed ; that there was no real danger of its being per- petrated. See the various authorities in Pfomer v. People, 4 Park C. E., 558. [These authorities are all included in the present volume. They wiH be found only in the brief for the plaintiff in error in Pfomer's case.— Eds.] " The city judge charged, ' If he thinks his life 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 aU the facts are developed before them, whether he was justified in forming that opinion or not. If you are -atisfledfrom the evidence that the circumstances did not warrant the con- elusion that he arrived at, it is no justification, and you have a right to convict. It is not his impressions alone, but the question is whether those impressions were correct. If they were correct, it is a protection. If they were incorrect, then it affords him no immunity or protection.' :As I understand the rule, it is not material whether the impressions were correct or not; but the true enquiry is, whether the prisoner had reasonable grounds to suppose he was in danger; and, if such grounds existed, whether the danger was imminent, or whether he could have avoided the danger by departing. It did not permit a jury to convict if they should find he was not justified in forming such an opinion; nor if they were satisfied that the circumstances did not warrant the conclusion ; nor, if the impressions which the prisoner had formed were incorrect. Their attention shoiUd have been directed to the enquiry whether the prisoner had any reasonable grounds for forming such an opinion. If he had, then, whether the prisoner was justified in forming such an opinion, and whether the impressions formed were correct, would be immaterial. " I cannot avoid the conclusion, that the latter part of these instructions may have led the jury to suppose, if the opinion or impressions formed by the prisoner were wrong, and that he was not in reality in danger of some great bodily injury, that his impressions would afford him no protection. The question of justification in forming such an opinion, is not properly for the jury ; but the true question is, whether there was reasonable grounds for thinking so ; whether the conclusion was true or not. K he had no reasonable grounds for forming such an opinion, he was not pro- tected ; but If he had such reasonable grounds, then, although such im- pressions were incorrect, he was excused. APPEAEANCES OF DANGER — INSTBUCTIONS. 659 Notwithstanding my opinion, that no injustice has been done to the prisoner "by any of the rulings upon his trial, or any proceedings therein, I nevertheless con- cur with my brethren, that, under the peculiar circum- " It is true that subsequently, when requested to charge in the words of the statute, that if the jury believed that when the prisoner struclt the blow, he had a reasonable ground to apprehend a design to do him some bodily harm, etc., then he was justified in striking the blow, and it was their duty to acquit, he replied, ' I have already charged in that way.' Such a remark, however, can hardly be said to be an instruction to the jury. It is rather an answer to counsel, to a request made of the Court, and cannot be considered sufiicient to remove the impression which the previous remark made directly to the jury, must have made. " I think the judgment should be reversed, and a new trial ordered." Lboward, J., concurred. Upon the same point, Sutherland, J., (dissenting) said : "Upon the theory that the jury might come to the conclusion that Mary DriscoU, one of the prisoner's witnesses, in stating that the deceased struck the prisoner with a poker before he gave her the fatal blow, testifi,ed to the truth, the city judge charged the jury, in substance, that it was for them to say whether the prisoner was justified in believing or forming the ■opinion that his life was in danger ; that the question was not a,s li; what his impressions were in fact, as to his life being in danger ; but whether the «vidence"showed that he was justified in having such impressions — whether the impressions were correct. Now, though I think it must be conceded that the distinction between what the prisoner thought, and what he was justified in thinking, was impracticable and useless ; for how could the jury find from the evidence that the prisoner thought his life to be in danger, without finding that he was justified in thinking his life to be in danger ?— yet, I think, the jury must have understood the whole charge on this point to be, in substance, that if they believed Mary DriscoU, it was foe them to say, under the evidence, whether the prisoner was justified in thinking that it was necessary to take the life of his wife to protect his own, or to protect himself from great bodily injury." The proper manner of instructing juries, with regard to this branch.'of the law of self-defence, is ably discussed in the case of The State v. Chand- ler, 5 La., An., 489, determined in the Supreme Court of Louisiana, in 1850, before Eustis, Ch. J., and Host, Slidell, and Preston, JJ. Preston, J., delivered the opinion of the Court : * * * " The coun- sel of the accused requested the Court to chargethejury, that, 'when, from the nature of the attack, there is reasonable ground to believe there is a design to destroy his life, or commit any felony upon his person, the killing of the assailant will be justifiable homicide, although it should afterwards appear that no felony was intended.' The Court refused to charge the jury as requested, and declared that the charge so requested was not law. " This was the charge given to the jury by Chief Justice Parker, in the celebrated trial of Selfridge, [Ante, pp. 17-18.] It is strictly the law of self-defence laid down by Russell, McNally, and other elementary writers. 660 THE PEOPLE V. LAMB. stances of this case, and in view of tlie provisions of the special statnte, applicable to appeals in capital cases tried in the New York General Sessions, (Laws of 1855, p. 613, § 3), the prisoner should have another trial. and decided in many cases. East, in his Pleas of the Crown, lays down the principle in these words : ' A man may repel force by force in the de- fence of his person, habitation or property, against one who manifestly in- tends or endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson or the hke, upon either. In these eases, he is not obliged to retreat, but may pursue his adversary, until he has se- cured himself from all danger, and, if he kill him in so doing, it is called justifiable self-defence.' [1 East, P. C, 272.] He qualifies the principle substantially, as Chief Justice Pakker did, that there must be actual dan- ger at the time from violence, and a reasonable belief that a felony is in- tended. " K there be an actual physical attack of such a nature as to afford reas- onable ground to believe that the design is to destroy life, or to commit a felony upon the person assaulted, the killing of the assailant in such case will be justifiable homicide in self-defence. We are of opinion, therefore, that the charge asked in this case, and as given by Chief Justice Pabkeb in the case of Selfridge, is the law of self-defence. " There has not been much doubt as to the correctness of the principle, as to its applicability to the state of facts established in Selfridge's case ; and, therefore, the great elfort of judges, in trials for homicide, should be clearly to point out to juries the state of facts to which the principle is ap- plicable, and that state of facts to which it is inapplicable ; and, in a case to which the principle is clearly inapplicable, to decline giving it in charge to the jury at all, and for that reason alone. "To express our views in relation to the present case : If Daily actu- ally attacked Chandler, and was beating his head against a brick .wall, so as to put his life reaUy in danger, and Chandler then kiUed his assailant from absolute necessity to preserve his own life, the charge asked for was not only the law of self-defence, but was applicable to the case, and should have been given to the jury by the Court. But if Daily was unarmed and sick, and only in consequence of a quarrel with Chandler's Tvife, the pre- ceding evening, the latter was so enraged that he rushed upon and gave him four stabs T\ith a bowie-k))ife, until then concealed in his bosom- Daily being a perfectly passive victim — the charge asked was entirely in- applicable, and should have been refused by the Judge on account of its irrelevancy to the case. " We have no means of knowing what was the true state of facts proved in the case, so as to judge whether the charge asked was necessary' and rele- vant to the case, or only an abstract legal opinion. If the testimony given in the defence afforded a reasonable ground for asking the charge, the Court erred in not giving it. If the state of facts proved was such as to render the charge entirely inapplicable to the case, the Court should have refused it on that ground alone. 1 Cranch, 309, 318. Even if the charge asked was an abstract principle of law, not applicable to the facts of the case, the APPEARANCES OF DANGER — INSTRtTCTIONS. 661 Smith, J. : The testimony in this case, carefully con- sidered, does not, in any view, warrant the defendant's assumption that the killing of his wife was justifiable as a lawful and necessary act of self-defence. To main- tain such claim, it was essential to show : First, that the defendant himself was acting in nowise against law, in the encounter which resulted in the homicide ; second, that at the time of giving the fatal blow, he had reason- able ground to apprehend a design to do him some great personal injury ; and, third, that he also had reasonable ground to believe that there was imminent danger of such design being accomplished. 2 R. S., 680, § 3, sub. 2; The People v. Shorter,^ 2 Comst., 193; The People v. Sullivan,^ 3 Seld., 396. The defence failed in each of these particulars. Ac- cording to the testimony of Mary DriscoU, the only wit- ness relied upon by the defendant to prove his plea of self-defence, the defendant was the aggressor in the final encounter, which terminated in the homicide. His wife had previously hit him on the hands with a poker, and had flung the lid of an iron kettle after him at the door. He stood near the door about fifteen minutes after the missile was thrown, and then advanced upon his wife and struck. h-er with his fist. Soon afterward, she pulled his chair from under him, and he then knocked her down with a stick of wood, and, she getting up, they had a scuffle, in which he inflicted the wound of which she died. Tlie deceased had no weapon after she dis- charged the iron lid, and there were no facts or appear- ances, justifying the belief that she designed to do him a great personal injury, and that the danger of the ac- Court having erroneously stated to the jury that the principle was not law, they may have been misled by the error, and the better opinion is that the verdict should be avoided. Etting v. The Bank of the United States, 11 Wheatou, 59. " The judgn. nt of the District Court is reversed, and the case remanded for fiirther proceedings, with directions to put the prisoner on trial for man- slaughter alone, he having been substantially acquitted of murder, and with directions to the Court, in Its charge to the jury, to conform to the principles contained in our opinion." The judgment was reversed. 'Ante, p. 256. ''Ante, p. 65. 663 THE PEOPLE V. LAMB. complishment of sucli design was imminent. If lie be- lieved she designed to attack Mm and do him such in- jury, he had ample opportunity to avoid the attack, and it was his duty to do so. His right of attack, for the purpose of defence, did not arise until he had done everything in his power to avoid its necessity. People V. Sullivan, supra. The instruction given by the Judge to the jury, on the subject of justifiable homicide, was, therefore, an abstract proposition ; and, even if it was erroneous, it did not prejudice the defendant. But, viewing the portion of the charge relating to that subject, as a whole, and not in detached fragments, it is by no means clear that it was erroneous. The Judge said : "A man is not bound, if his life is in imminent peril, to wait till he receives some great bodily injury. K he thinks 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 the jury saying, when all the facts are developed before them, whether he was justified in forming that opinion or not. K the jury are satisfied, from the evidence, that the circumstances did not war- rant the conclusion that he arrived at, and that he took life, it is no justification, and they have a right to con- vict." Thus far, the charge was quite unexceptionable.. The Judge said, further (and this is what is excepted to) : " It is not his impressions alone, but the question is, whether those impressions, at the time he formed them, were correct. If correct, they are a protection; otherwise, not." By fair construction, the term " correct impressions," thus used, is to be read in the light of the preceding portion of the charge above cited, and it means simply, " impressions warranted by the circum- stances " under which the defendant acted at the time of the homicide. It would be putting a forced and narrow construction upon the charge to say, that it was intended by the Court, or understood by the jury, to exclude im- pressions based upon appearances, which were afterward shown to be false. CHARACTER OE DECEASED FOE VIOLENCE. 663 The fact that there was no evidence in support of the plea that the homicide vras justifiable, was also a sufii- cient ground for rejecting the offer of the defendant's counsel, to show that the deceased was of a quarrelsome, vindictive and hrutal disposition. The authorities cited by the defendant's counsel, show that testimony of that nature has been received only in cases where the killing took place under circumstances that afforded the slayer, reasonable grounds to believe himself in peril, and then solely for the purpose of illustrating to the jury the mo- tive which actuated him. "VVhart. Am. Grim. Law, § 641, 4th ed. ; Whart. on Homicide, p. 249, and cases there cited. When the offer was made in' the case, the witness, DriscoU, had not been examined, and after her testimony was given, the offer was not renewed. Besides, testimony substantially of the character of that offered, was allowed to come in, inadvertently or otherwise, in the course of the trial, so that the defend- ant was not prejudiced by the rejection of the offer. ****** ***r** Under the provisions of the special statute; which gives us a peculiar jurisdiction in this case, (Laws 1855, p, 613, ch. 537, § 3,) I think the defendant is entitled to a new trial. I am, therefore, of opinion that the judgment of the Supreme Court, setting aside the conviction and ordering a new trial, should be affirmed, and that the record, with the judgment of this court, should be remitted to the Court of General Sessions of the city and county of New York, to proceed therein. Morgan, J. : There was evidence, if the jury believed the little girl, to convict the prisoner of murder in the first degree. If he deliberated and declared his inten- flon to kill his wife, and followed it up with a fatal blow, he was guilty of murder in the first degree, according to all the authorities. The prisoner had a fair trial, so far as the evidence is concerned, and the charge of the judge was in the main unexceptionable. The objection as tc; 664 THE PEOPLE V. LAMB. what he said in relation to the impressions of the pris- oner as to whether he or the jury was to estimate the magnitude of the danger which would justify him in killing his wife in self-defence, was quite foreign to the case in hand, for there was really no evidence, which would have authorized the jury to find that the prisoner committed the act in self-defence. But I will observe that if the case was one where a question could fairly arise, the jury are to judge whether the prisoner was in such apparent danger as to cause him to believe it was necessary to kill his adversary in self-defence. It is not enough for the prisoner to say he believed it ; he is not even a witness for any such purpose ; but it is for the jury to determine whether or not the prisoner had a right to believe it. This belief may be founded only upon ap- pearances, where there is no real foundation for such an apprehension. Although the judge seemed to have been unfortunate in selecting the proper expressions to define the rule of law in this respect, I think his charge is not liable to be misinterpreted by the jury to the prejudice of the prisoner. Indeed, I cannot, as I have already ob- served, see any evidence upon which such a question could fairly arise.^ And as such a question could not ^'The words of the charge to which objection was made, namely, "It IS not his impressions alone, but the question is, whether those impres- sions, at the time he formed them, were correct ; if they were correct, it was a protection; if tliey were incorrect, then it aflFords him no immunity or protection," — standing alone, convey a proposition of law clearly erroneous, and at vai'iance with all the authorities. For the words quoted, can manifestly have no other meaning than that the slayer will not be excused, if he act upou the appearance of danger, unless the danger is actual. This doctrine, it is believed, has been abandoned by every American court. It would go as far towards one extreme as Grainger's case, ante, p. 238, goes towards the other ; for this last case is commonly understood as deciding that a man's honest impressions of danger, although those impressions are not based upon reasonable grounds, but spring from fear, alarm or cowardice, wiU protect him in killing his assailant — a doctrine which is equally without sanction. It may well be doubted, whether the respectable Judge, who tried this case at nisi prius, may not have been, at most, guilty of a slip of the tongue or pen, in charging in this language ; but of the import of the words themselves when taken alone, there would seem to be no doubt. Nor is it clear, that the attempt of the learned Judges to clear the words of their objectionable CHAEACTEE OF DECEASED FOE VIOLENCE. 665 arise upon any theory of the evidence, it was not mate- rial to go back and enq^uire what had been the character of Mrs. Lamb, except so far as to show that she was quarrelsome and abusive, toward her husband on this particular occasion. The judge was sufficiently liberal toward the prisoner in the reception of this species of evidence. *********** A majority of the court affirm, but upon different grounds. Judgment granting new trial affirmed. meaning, by reference to the sentences of the charge immediately preced- ing, has been successful. On the contrary, it seems clear to us, that the words objected to, must be interpreted as explanatory of the sentences pre- ceding; and that they hence, must have a controlling effect over the mean- ing of the whole. And this is the effect which they would probably have upon the minds of the jury. For by attending to our mental operations a moment, it wUl be manifest that the last words of explanation always im- press us as being of the greatest importance, and remain in our memory the longest. Besides, it often happens, that a person at first does not make himself clearly understood, or does not express what he wishes to say in a manner satisfactory to himself; but goes on with various qualifications and emendations, until he arrives at expressions satisfactory to himself, or makes himself clearly understood ; in which case, the latter words of the discourse, control the meanmg and supersede, in the hearer's mind, the former. For these reasons, the words above quoted seem to us, notwith- standing the preceding parts of the charge, clearly calculated to create an erroneous impression on the minds of the jury, of the law of self-defence. Perhaps, then, the best way of obviating this error, was that resorted to by Smith and Morgan, JJ., namely : That ne fects having been proved on which to base a charge on the law of self-defence, this part of the charge was wholly irrelevant and foreign to the case ; and hence, though erron- eous, could not have influenced the jury to the prejudice of the prisoner. For a similar error treated in a similar manner, see Neeley's case, ante, p. 101. Note. — We shall endeavor to collect in this note, those American cases which have not been given elsewhere in this volume, which discuss the «[uestion whether evidence of the violent and dangerous character of the person slain, in trials for homicide, is competent evidence for the prisoner ; and, if so, under what circumstances such evidence will be admitted. The State v. Tilly, 3 Iredell, 424, Supreme Com-t of North Caro- lina, 1843. From the statement of facts, it would seem that TUly, the pris- oner, and Hampton, the deceased, were both planters and neighbors. They had had difficulties ; and the prisoner had, down to the time of the killing, made frequent and malignant threats against the deceased ; and, if the pris- 666 THE PEOPLE V. LAMB. oner's witnesses were to be believed, the deceased had made some threats against him. On the day of the killing, the defendant loaded his gun, and went to where the deceased and a negro were riving a log into boards. Shortly after, the negro rode in on the horse of the deceased, stating that the defendant had killed the deceased. The body of the deceased was found near the tree, his sliull mashed in, and pieces of the prisoner's gun broken in two, but not discharged, lying near by. As the testimony of negroes was not, at that time, admissible against white persons in Xortli Carolina, there was no evidence of the circumstances which attended the killing, except the defendant's admission that he had killed the deceased, accompanied by a claim that the Idlling was in self-defence. Although this case has been frequently quoted in cases where the law of self-defence has been expounded, yet, the only ruling on that subject, relates to thecAa;-- acter of the deceased for violence. The trial court admitted general testimony on this subject, all the witnesses testifying that the deceased was not of a W- olent and dangerous character, but was a peaceable and orderly citizen ; al- thomgh some of them stated he was addicted to teasing others jocosely. The prisoner also proposed to enquire whether the deceased did not bear the character of being high-tempered, overbearing and oppressive towards his overseers and tenants, but the question was objected to and rided out. Upon this riding, the Supreme Court, by Eufi'ej, C'h. J-, said : '■ The Court is of opinion that evidance of the temper and deportment of the de- ceased towards his overseers and tenants, was properly rejected, for sev- eral reasons. In the first place, it was irrelevant, and did not profess to state that the deceased was in the habit of assaulting the persons in his eni/- ploymentjbut, at most, of being overbearing to them, and provoking them by arrogant and abusive language. If all that be admitted, it does not raise an argument of an assault by the deceased on the prisoner, but of ill words only, which woidd not palliate the homicide. And, indeed, in a case in which there is no direct evidence of a mutual combat, or any appear- ance, at the place, of a souffle, or any wound on the prisoner, or even the slightest mark of violence, it would be impossible that the jury could rationally infer an attack of any sort by the deceased, or even an effort of defence. Besides, this is not one of those points on which character is evi- dence. Temper and deportment are not matters to be proved by reputa- tion ; but, if they are evidence at all, they can be established as facts only by those who know them."' Upon the last point, this case seems to be at variance with most of the authorities. The rule seems to be, that the bad temper and deportment of the deceased is to be proved by reputation, (where it is permitted to be proved at all,) and not by proof of isolated acts. See note c. to Keener's case, ante, p. 547 ; also What is said in Wesley v. State, ante, p. 324 ; also what is said on the same point in Bottoms v. KcHt, infra, where this case is criticized. The question received an exhaustive discussion in Bottoms v, Kent, 3 Jones, Law, 154, determined in the Supreme Court of North Carolina in 1855, before Nash Ch. J. and Pearson and Battle, JJ. The case was an issue of devisavit vel non, in which the jury found against the validity of the will, and judgment being entered for the caveator, the propounder ap- pealed. CHABAOTEE OF DECEASED — BOTTOMS Y. KENT. 667 The script in question was offered for probate, as the last will and tes- tament of one Mourning Kent, by Brittan H. Bottoms, her son-in-law, who is named therein as executor, and who, with his wife and children, kre the universal legatees therein. The probate was opposed by Eailbrd Kent, on the ground that the execution of the script was procured by threats of \iolence made by the propouuder, and several witnesses were examined, whose testimony tended to show that fact. The propounder was then al- lowed to prove, that the deceased " was a woman of independent mind, and firm in her purposes." He also offered to prove, that he was •■ a man of easy, quiet temper, and facile disposition, and, therefore, not likely to exhibit the conduct charged." Tliis latter testimony was rejected by the Court. Tor this, the propounder excepted. Moore, Dortch and Rogers, for the propotmder; Miller, Bryan and Lewis, for the caveator. Pearson, J. . " This question is presented : upon an issue devisavii vel non, there is evidence tending to show that the propouuder had procured the execution of the script by threats of violence ; ought he to be allowed to prove that ' he was a man of easy, quiet temper, and fiicile disposition, and, therefore, not lilcely to exercise, or attempt the exercise of the intlu- euce charged!' And, taking the question broadly, ought the caveator to be allowed to prove tnat the propounder is a man of violent temper, and, therefore, Uable to make threats ? " In an action for seduction,the defendant offered to prove,that ' he was a modest, retiring man.' This evidence is held inadmissible, and the gen- eral rule is annoimced, ' evidence of the character of a party is not admis- sible, unless it be put directly in issue by the nature of the proceedings.' McRae v. Lilly, 1 Ired. Rep., 118. " On an ipdictment for murder,evidence of the temper and deportment of the deceased is inadmissible. State v. Tilly, 3 Ired. Rep., 424, [supra]. " In an action for a malicious prosecution, evidence of the character of the defendant, in respect to sobriety, is inadmissible ; and JIcEae v, Lilly, is treated as settUng the ride. Beal v. Robeson, 8 Ired. Rep., 276. •' Again : it is decided that evidence of the general character of the de- ceased as to temper and violence, is inadmissible. State v. Barfield, 8 Ired. Rep., 344, [ante, p. 618]. " The only opposing case is State v, Tackett, 1 Hawks Rep.. 210, lanie, p. 615]. It is overruled by Tilly"s case, or so emasculated as not to be able to generate a principle, and is expressly confined to its peculiar cir- cumstances. See note of Cowan and Hill, Phil, on Evidence, 461, note 345, and the remarks of Rorrx, Ch. J., in Barfield's case. Indeed. Tack- ett's case is not supported by any authority', either in the English Reports or our own, and the Judges yielded to the seeming hardship, in the applica- tion of the general rule. Had the case been reversed, so as so present the question, was it admissible for the State to prove the deceased was mUd and submissive in his temper, we presume an exception would not have been made to the general rule. "Our question, therefore, is settled, unless there be some ground for a distinction in regard to the probate of wills. If evidence of the temper and disposition of the deceased, on a trial for murder, or of the defendant in a civU action, is inadmissible, it would seem to follow, it is alUve inad- THE PEOPLE V. LAMB missible in a trial hefore a jury, touching the execution of a will. Good- right V. Hicks, Bull. N. P., 296, is an authority to that effect. In eject- ment by an heir-at-law, to set aside a will, because obtained by fraud, evi- dence of the good character of the devisor is inadmissible — see 2 Starkie ■on Ev., 215 ; 1 Phil, on Ev., 174 — although, if of good character, it would be less likely that he had practiced the fraud imputed. " Mr. Moore, [counsel for the propounder], attempts to get rid of these authorities, on two grounds : 1st. The offer in this case was to prove the temper and disposition of the propounder as facts, not as character, or general character and reputation. 2d. There is a distinction in regard to the probate of wUls. He relies on Da^as v. Calvert, 5 Gill & John., 271, and a passage from Swinburne, 452, 453. " This makes it necessary to examine the grounds upon which such evi- dence is held inadmissible, upon the trial of indictments and civU actions, so as to determine whether the principle is general or restricted in its ap- plication. This examination leads us to the conclusion, that the rule Is based on two general grounds : 1st. It is too remote. 2d. The objections to the mode of proof. Consequently, the principle is general, and the rule is applicable to all jury trials. "As to the first : It is a rule of evidence, that no testimony is admissible, unless it be relevant and connected with the fact in issue, so as to have a tendency to aid the jury in finding, with certainty, and not mere proba- ability. This rule is based, among other considerations, upon the ground that the admission of such testimony could render jury trials complicated, and tend to confuse and mislead, and induce juries to give their verdict upon conjecture, and not upon a conviction of the truth of the matter al- leged, and would, in many instances, work further injustice, and take the opposite party by surprise, as he is presumed only to come prepared to disprove or explain matters relevant and connected with the fssue joined, and not to go into collateral acts. " For. the sake of illustration : upon a plea of usury, the defendant offers to prove that, shortly before the debt sued for was contracted, the plaintiff had taken usurious interest from a third person, or from himself; or to prove that he was in the habit of lending on usurious interest. This evidence is inadmissible. The fact that the plaintiff exacted usury on yes- terday, has no tendency to aid the jury in finding with certainty that he •exacted it to-day, although it makes it more probable ; and the jury would be more likely to find the issue in favor of the defendant, which is the very thing a plaintiff would have a right to complain of; because he is not presumed to come prepared to go into every- transaction of his life. So, on a question as to the precise terms of an agreement to let premises, although it might assist the jury to make a guess, if evidence was admit- ted as to the terms on which the landlord had rented to his other tenants, the evidence is inadmissible as too remote. Carter v. Pryke, Peake's Rep., ^5 ; Spenceley v. DeWillott, 7 East, 108. So, in Capt. Vaughan's case, who was indicted for adhering to the King's enemies, by cruising on the King's subjects, in a vessel called the ' Loyal Glencarty ' the counsel for the Crown offered to prove, that he had, sometime before, cut away the custom-house barge, and had gone a cruising in her. This evidence was rejected ; for, were it true, it was no sort of proof that the prisoner had CHAEACTER OF DECEASED — BOTTOMS V. KENT. 669 cruised in the Loyal Glencarty. This case is cited in Foster Crown Law, 246 ; and that very eminent Judge adds, ' the rule rejecting all manner of evidence in criminal prosecutions, that is foreign to the point in issue, is founded in good sense and common justice; for no man is bouad, at the peril of life or liberty, fortune or reputation, to answer at once and unpre- pared, for every action of his life. Few, even of the best men, would choose to be put to it.' ' The common law, grounded on the principles of natural justice, hath made the like provision in every case.' "I am here remiiorded of a case which occurred a few years ago in Paris. A woman was tried' for the murder of her husband by poisoning. The ev- idence was circumstantial. The officer for the prosecution offered to prove, that ten years before, while a single woman, she had stolen some jewelry. The evidence was admitted, on the ground that it tended to show that she- was a person likely to commit murder-, and, thereupon, she was convicted and executed for murder. " What a striking contrast this case presents in favor of the rule of the common law, by which a prisoner can not be prejudiced by proof of his general character, much less by proof of particular acts ! " The prisoner is permitted to rely on his good character, and this, of course, lets in similar proof on the part of the prosecution, as the prisoner has made his character a part of the issue. But this is an exception to the general rule, in favorem vitce. " Best, in his Principles of Evidence, makes these remarks : ' The- rule that evidence which is too remote is inadmissible, may be stated thus : that, as a condition precedent to the admissibility of evidence, either direct or circumstantial, the law requires an open and visible connection between the principles and the evidentiary facts, whether ultimate or subordinate. This does not mean a necessary connection that would exclude all presumptive evidence; but such as is reasonable, and not latent or conjectural.' Sec. 85. It may, perhaps, be objected, and, indeed, Bentham's Treatise on Judicial Evidence is founded on the notion that, by ' exclusionary rules ' like the above, much valuable evidence is wholly sacriflced. Were such even the fact, ^he evil would be amply outweighed by reasons already assigned for imposing a limit to the discretion of the tribunals. "According to the rule that testimony is not admissible, if too remote, evidence of character is never received, unless, from the nature of the pro- ceeding, it is involved in the issue ; but when the very nature of the pi-o- ceeding is to put in issue the character of any of the parties, it is not only competent to give general evidence of character, but to enquire into par- ticular facts tending to establish it. Bull. N. P., 295. Thus, on an indict- ment for keeping a common gaming or bawdy-house, the prosecution may give in evidence any acts of the defendant which support the general charge. In actions for seduction or erim. eon., the character of the woman for chastity being directly in issue, may be attacked, either by general evi- dence of her character in that respect, or by proof of particular acts of it. In indictments for rape, the prisoner may show the general character of the woman in respect to chastity, or show particular acts of criminal con- nection with himself. In Clark v. Periam, 2 Atk., 337, the Vice-Chancel- lor says : ' This is the practice in all cases where the general behavior or quality, or circumstance of the mind, is the thing in issue ; as, for instance. 670 THE PEOPLE V. LAMB. in non compos mentis, it is the experience of every day that j^ou give par- ticular acts of madness in evidence, and not general [evidence] only, that he is insane. So, when you charge that a man is addicted to drinking, and liable to be imposed upon, you are not ccmflncd, in general, to his being a •drunkard, but particular instances are allowed to be given.' " With respect to witnesses, the credibility of a witness is always in- volved, and his character or general reputation as a man of truth or ol honesty, is admissible ; but the individual opinions of witnesses, and par- ticular facts, are excluded on the ground that the character of the witness is only involved incidentally ; and, although a man is presumed to be, at all times, prepared to prove his general reputation, yet he is not presumed to be prepared to go into a history of his life, unless the party chooses to take it from the witness himself; then his answer is conclusive. " There are but few instances in which the trait of character in regard to being of an easy or quiet temper and facUo disposition, can be involved in the issue ; because such matters do not often affect legal rights. Indeed, the instances seem confined to cases where a testator or donor is alleged to have been imposed on, and the instrument obtained by fraud and undue in- fluence. There, the trait of character of the testator or donor, as being of a. facile disposition, or otherwise easy to be imposed on, being involved in the issue, evidence in regard to it may be given ; but no case is found where, on a jury trial, evidence has been admitted in regard to these traits of char- acter of any one, other than the person alleged to have been imposed on. "2d. As to the mode of proving character. The word has two meanings; to this may be ascribed the confusion of ideas met with in some of the cases. ' Character : The peculiar qualities impressed by nature or by habit on the person, which distinguish him from others ; these constitute real char-, aeter. The qualities which he is supposed to possess, constitute his estim- ated character or reputation.' Webster's Die, " Is a man honest? is he good natured ? is he of a violent temper? is he modest and retiring, or impudent and forward ?— these aU constitute traits of character and are fads. But there is an essential difference between facts of this kind, and facts of the kind ordinarily dealt with on jury trials. The latter are known directly by the senses, as by seeing or hearing a thing ; the former can only be known indirectly and by inference from acts. A witness called to prove them, can only give the opinions which he has formed by his observations of the conduct of the person under particular circumstances. For instance, the witness will say, ' the person is good-natured, or has a violent temper ; because I have seen him act with forbearance or violence under certain circumstances.' Such traits of character being only susceptible of proof by the individual opinion of witnesses, formed from an observation of particular acts, which neces- sarily lets in the history of a person's whole lifetime, ev-idence in regard to them is inadmissible on jury trials, except in a very few instances, and only where they are involved in, and form part of, the issue ; but never when they arise incidentally. "Has a man the estimated character or reputation of being honest, or of being good-natured, or passionate, or humane, or cruel? This general character, as it is called, is also a fact ; it is the opinion which those who are acquainted with him have formed, in respect to his several traits CHAEACTEE OF DECEASED — BOTTOMS V. KENT. 671 ©f character. There is also a mode of proving real character, which is the object in view ; but it is objectionable, because it is a mere approximation, and does not arrive at the fact itself. The opinion of a man's acquaintances that he is honest, or good-natured, etc. , does not prove tliat he is so. Still, this mode of proof is less objectionable than that which depends on the individual opinion of witnesses, and leads to the history of a person's whole life. Therefore, it is adm^sible in more instances than the other, and is sometimes allowed when a trait of character becomes material, incidentally, and the enquiry is collateral to the issue. For instance, the estimated •character, or the opinion w'hich his acquaintances have formed of him in respect of his honesty, is admissible in regard to witnesses; and the least objectionable mode of proof as to their real character, is to show their general character or reputation. " Thus it is seen, from the authorities and the reason of the thing, that this exclusionary rule, as Mr. Best terms it, is based on general principles applicable to all jury trials ; and evidence of character, whether in respect to honesty, or temper, or disposition, is inadmissible by either mode of proof, unless that fact constitutes a part of the issue, or unless it arises incidentally ; in which latter case, tlie evidence is confined to proof of general character or reputation, in regard to the particular trait of character material to the investigation. " The remarks made above, anticipate in a great measure, the answer to the position taken by Mr. Moore, based upon the supposed distinction be- tween character in respect to honesty, and character in respect to being- good-natured, oi» passionate, and so on. He admits that when evidence of the former is admissible, it must be by proof of general character, but con- tends that evidence of the latter traits of character, may be proved as facts, by witnesses who know them. According to the conclusion drawn above, such evidence is not admissible at all. Of course, the mode of proof cannot make it admissible ; and from what is said above, it is seen that the mode of proof he suggests, is more objectionable and more restricted in its appli- cation, than the mode which he admits cannot be resorted to. His only authority for the position is a remarlv of Eofi'ix, Ch. J., in Tilly's case, Isupra.J After holding that evidence of the temper and deportment of the deceased towards his overseers and tenants was inadmissible, because irrel- evant, he adds, ' besides, this is not one of those points of which character is evidence. Temper and deportment are not matters to be proved by reputation ; but if they are evidence at all, they can be establislied as facts, only by those who know them.' The evidence being inadmissible, that remarlv as to the mode of proof was uncalled for. How can a witness know a man's temper, except by inference from particular facts? No authority is cited, and tlie remark seems not to have been weiglied by the learned Judge with his usual degree of consideration ; because the Court of which he was a member, in McRae v. Lilly, makes no objection to the mode by which the defendant proposed to establisli the fact of his being a modest, retiring man ; to-wit, by proof of his general character in that respect. In Beal v. Robeson, the same mode of proof was offered, and in Barfield's case, he puts the objection to the evidence of the character of the deceased as to temper and violence, on the ground of its irrelevancy, and does not allude to the fact that the mode of proof was by general character 672 THE PEOPLE V. LAITB. or reputation, although he quotes the remark made in. TiUj-'s case, for the purpose of showing that Tackett's ease was doubtful. This objection to the mode of proof would have been decisive of Barfield's case, and pre- sented a ground upon which there might have been a concurrence of opinion, provided he still thought it well founded. This silence in regard to it, although the reference to Tilly's case must have suggested it, show? that the Judges agreed, if the evidence was admissible at aU, proof by- general reputation was the proper and least objectionable mode. " As to Davis v. Calvert, 5 GiU and John., 271, it is there decided,upon a contest as to a wiU, which the caveators alleged was obtained by ialsehood and fraud, admissible for the caveators to give in evidence that the te-tator, a man upwards of eighty-six years old, had been imposed on by a free ne- gro woman, who lived with him as his mistress, and who made him believe that he was the father of her chUd, and to offer in evidence, facts and cir- cumstances tending to show that the old man was not its father. The de- cision rests upon the peculiar circumstances of the case, and has no bearing on the question before us. The general remarks are all referable to the passage cited from Swinburne : " ' That testament is to be repelled, which is made upon a just fear ; which conclusion is both diversely extended and limited. The limitation! are : 1st. The testament made by fear is not void ipso jure, but voidable by the help of exception, etc. 2d. When the fear is but a vain fear, (for a just fear only, that is, such a fear as may move a constant man or woman, maketh void the testament, as the fear of death or of bodily hurt, or of the loss of all, or most part of one's goods, and such like fear,^ whereof no «r- tain rule can be delivered, but it is left to the discretion of the Judge, who ought not only to consider the quality of the threatenings. but also the per- sons, as well threatened as threatening ; and in the threatened, the age. sex, courage or pusillanimity ; and in the person threatening, the power, the dis- position, and whether he be a mere boaster or a performer of his threats.' Swlnb., 475, 476. " It has been often held in our courts,that,"npon the trial of an issue den- savit vel ncm, evidence of the age and temper of the alleged testator, that he was of a facile disposition and easily influenced, or firm of purpose, is admissible. Indeed, such evidence was received upon the trial of the case now before us ; but it has never been held admissible to prove the disposi- tion of the ' person threatening,' or that he was ' a mere boaster, or a performer of his threat?.' So the latter part of the passage from Swin- burne has never been approved or acted upon. It is true that Williams and Eoper bring forward the whole of it ; but neither PhiUips, Starkie. nor Greenleaf, cite any such rule of evidence as obtaining in the Common Law Courts ; on the contrary, they all adopt the general condnsion to which we have arrived. 'It may be further remarked, in reference to the latter part of the pas sage, evidence that the person threatening was a mere boaster, or a per- former of his threats, can have no tenlency to show the effect of the threats, unless there be proof that the person threatened hiew his character in this respect. So this qualification must, at all events, be added. "If, however, it be assumed- that such evidence is admissible in the Ec- clesiastical Courts, it is very certain it is not admissible in the Common CHAEACTEE OF DECEASED — BOTTOMS V. KEKT. 673 Law Courts ; and we have a question as to the effect of the Statute which provides that all issues of devisavit vel non shall be tried by a jury in the Common Law Courts. Are the latter to proceed according to their own rules of evidence, or are they to import the rules of the former ?", The difference between trials before a fixed tribunal, which decides the facts as well as the law, and jury trials, is pointed out in Downey v. Murphey, 1 Dev. and Bat. Eep., 83, and State v. Williams, 2 Jones Rep., 257 ; and. it follows, of course, if there be a difference in the rules, where the statute requires the issue to be tried before a jury in the Common Law Courts, it was intended they should proceed in the trial as in other cases. Trials as to wills of personalty and devises are put on the same footing. The Ec- clesiastical Courts never had jurisdiction in respect to the latter; which proves beyond question, that the Common Law Courts are to proceed ac- cording to their own rules in regard to both. Mr. Moore says, the idea of having a different rule of evidence in regard to the same question, be- cause the trial is transferred from one court to anotlier, is monstrous. The reply is, the idea of the same court acting upon different rules of evi- dence, when the principle is the same, is still more monstrous ! ." But we apprehend tiiis question does not arise. Swinburne is not lav- ing down a rule of evidence, but is attempting to point out the distinction between a jiist fear and a vain fear, ' whereof,' he says, ' no certain rule can be delivered.' He assumes that a threat is established, and confines himself to the enquiry as to the effect it is calculated to have on the per- son threatened ; so the passage does not support the position for which it was cited. Swinburne says, if a threat be made, the character of the per- son threatening has a tendency to show its effect ; the object of Mr. Moore is entirely different ; he wishes to prove the character of the propounder as tending to show that no threat was ever in fact tnade. Suppose, with Swinburne, a threat has been made ; how can the fact that the propounder is a man of easy, facile disposition, answer the purpose for which, as the case states, the evidence was offered ? " Whether, if a threat be proved, evidence that the propounder is ' a mere boaster, or a performer of his threats ' would be admissible to show the nature and effect of the threat ; and whether, supposing it to be ad- missible, the fact must be established by general proof of reputation in that respect, or by proof of particular acts, are questions not now pre- sented. It is sufiBcient to say, the passage from Swinburne does not sup- port the position that such evidence is admissible in eitlier mode, to prove that the propounder did not make the threat, or was more or less likely to do so, which is the question before us ; and does not conflict with the conclusion to which we have arrived." The judgment was affirmed. The question again arose^ in North Carolina in 1859, in the State v. Hogue, 6 Jones, 381. Hogue was indicted for the murder of one Parrish. Parrish was employed at Winton's hotel, in the city of Ealeigh, and Hogue had been a boarder there. On the evening of the day in question, the deceased was in the room where the • supper table was set, and, after the usual signal, the door was opened and the boarders commenced enter- ing. The deceased stood beside the door, in the inside, with a stick under his arm, and a pistol in his right hand, and as Hogue was about to enter, 674 THE PEOPLE V. LAMB. Parrish prcsfuted himself in his way and immediately popped the cap before- him ; whether the pistol was in the direction of his person or not w;i< left doubtful by the tiiStiraony. The prisoner si-ized the pistol wrenched it from the hand of the deceased, and immediately commenced stabbing him. He gave him several stabs, and then pushed him upon a side-table and gave him several more whUe in that position, of wliich he immediately fell dead. There was evidence of a previous quarrel about dinner lixar. and subsequently, various threats from the prisoner, to the effect that he would enter the supper-room, and eat his supper there, and if Parrish opposed him, he would slay him, There was evidence that he procured the knife witii which the kiUing was done, for the express pur- pose of using it in that way ; that Parrish had that day demanded of Hogue his bill, and told him that he could board no longer there ; that he a-keJ Winton, the tavern-keeper, to let him go in to supper, which he declined. Hogue begged him to let him go in, and offered him a large piice if he would do so, but on the landlord's still persisting in his refiisaJ, he declared vehemently that he would go in at all hazards, or any how. Some of the witnesses swore that Winton did not refuse him expressly, but as he turned off, said in reply to the prisoner's declaration tliat he would go in, " well.*' There was evidence tending to show that the de- fendant bought the knife in question, for the express purpose of using it in a fight with Parrish, and that he, in various instances, declared that, if Parrish endeavored to prevent his entering the supper-room, he would kill him. One witness said he saw the prisoner, about half a minute be- fore the bell rang for supper, opened the knife and put it, open, up his coat- si eevf. One other said that immediately after the transaction the prisoner came iato Cook's shop where he was, and said " he had killed the damned rascal ; " that Cook asked him what he had in his hand ; the prisoner showed him a knife and said " he went to old Karrer's and bought it for him," and said, '• don't you see the blood on it?" There was much other testimony not material to be stated. All the testimony was submitted to the jury with instructions, not excepted to by the prisoner's counsel, and a verdict of guilty of murder was thereupon found. In the course of the trial, the defendant's counsel a~ked a witneis what was the general character of the deceased, which, on objection, was pronounced inadmissible, whereupon the defendant's counsel excepted : and that is the material part of the case in this Court. The defendant appealed. Pearson, Ch. J. : " It is a general ride, that on a trial for homicide evidence of the character and habits of the party killed, as to temper and violence, is not admissible. The State is not allowed to prove that he is a quiet, orderly citizen, nor is the prisoner allowed to prove that he was a violent and outbreaking man. The rule is based upon the ground that character is not involved in the issue, and consequently, evidence in regard to it, is immati'rial. And there is this further consideration : such evidence is not only immaterial and irrelevant, as having no legitimate bearing upon the matter under investigation, but is calculated to mislead by exciting the prejudice of the jury. For instance, if one kills, either on express malice or malice implied, there being no justification, excuse or mitigation, the fact that the party killed was a good or bad man is immaterial. It is CHARACTER OF DECEASED — STATE V. HOGXJE. 675 murder to kill on malice, no matter what sort of a man he is ; and yet a jury would be more inclined to convict, if he was a good man, than if he -was a bad one ; and there is no telling the extent to which the prejudices of a jury may be excited, and how far they could be misled by evidence of this kind. It is, therefore, important to the due administration of the criminal law, that this well settled rule of evidence should not be relaxed. " There may be exceptions to the rule ; State v. Tackett, 1 Hawks, 211, is admitted to be one ; but we are not at liberty to enter into an investiga- tion for the purpose of defining the principle on which exceptions may be allowed, or of fixing the limits ; for the case now before us certainly comes within the operation of the general rule ; and it is sufficient to refer to Bottoms V. Kent, 3 Jones Kep., 154, [supra], and to State v. Barfield, 8 Ired. Rep., 344, [ante, p. 618], to show that the general rule is settled, both in civil and criminal proceedings. "The deceased committed a violent assault upon the prisoner as he entered the room. This was legal provocation, and if the case stopped there, the killing would be manslaughter, and the character of the deceased as a quiet or violent man, would be immaterial. But the case did not stop there ; for the jury, under instructions of which the prisoner had no right to complain, find that he IcUled ' of his malice aforethought' ; that he had formed the deadly purpose, prepared the weapon, and sought that particu- lar time and place to do the deed. So the character of the deceased was immaterial. It is surely murder to kill with malice express or afore- thought, no matter how violent or wicked the deceased may be." * * * The judgment was affirmed. State V. Thawley, 4 Harrington, 562. Superior Court of Delaware, Pall Sessions, 1847. Booth, Ch. J. ; HARRmcTON, Milligan and Wootbst, J J. This was an indictment for murder. The defence set up was that the blow was struck in self-defence ; and a witness was asked whether the de- ceased was not a violent man, and in the habit of attacking others with ■dangerous weapons. It was objected that the character of the deceased was not in issue, and after *gument, the Court, (Harrington dubiiante,) rejected the evidence. , Booth, Ch. J. : '• The testimony offered is the general character of the ■deceased, as a violent man. From the fact that we cannot find any case in ,the books where this evidence has been admitted, nor any principle which would admit it, we feel constrained to reject the evidence. We do not see how the character of the deceased as a quarrelsome or fighting man, is in issue. The question is, guilty or not guilty of murder. The homicide .being made out, it lies on the defendant to reduce the offence below the :grade of murder, and he must do this by evidence of facts, and not by the mere general bad character of the deceased. If such evidence is admissible, it would follow that the character of the prisoner as a peaceable or violent man, must be admissible ; for it is certainly as important to know his character as that of the deceased. Yet it i? perfectly well settled, that the defendant's character cannot be enquired into, unless he puts it in issue. " Judge Harrington's doubt arose from the fact, that in four cases within his knowledge, this evidence had been admitted without objection, viz. : State v. Cochlan, Elason, Saul Thompson and Prince Tilghman. He 676 THE 'PEOPLE V. LAMB. thought it might possibly come within the reason of the principle, that ' iit particular cases, where the character of the prosecutor is nung-led wth the transaction in question, it forms a point material to the issue, and may con- sequently be enquired into. Eosc. Ev., 88.''' The defendant was acquitted. The State v. Chandler, 5 La. An., 489. Supreme Court of Louisiana, Slay, 1850. Eustis, Ch. J. ; Rost, Slidell and Preston, JJ. Extract from the opinion of the Court, by Pkestos, J. : " The defendant was indicted for the murder of Patrick C. DaUey, on the 7th of October, 1848, was tried and convicted of manslaughter, and has appealed to this Court. " It appears by his bUl of exceptions, that he offered to prove that the deceased, Dailey, was a quarrelsome man, of violent temper, and dangerous when excited. The Court rejected the ertdence, stating that it would not justify Chandler in killing DaUey. The weight of authority Ls against the admissibility of such evidence, and the objection has been abandoned in this Court. See 1 Whart. Crim. Law, 172 ; 1 Philips" Ev., 499 : 1 EusseE on Crimes, 700. State v. Tilly, 3 Iredell, 424," [supra.} * * « » The judgment was reversed on other grounds. Commonwealth v. Peter York, 7 Law Eeporter, 497, 507-509 ; S. C, 9 Metcf., 93. York was indicted for the murder of James Norton, in the city of Boston, on the night of July 2, 1844. The killing took place near a dance cellar, kept by one Joe Clash, and which seems to have been frequented mostly by negro prostitutes and sailor=. The prisoner was twice tried. At the second trial, at which the present ruling was made, he was found guilty of murder. Whether we consider this case in view of the patient attention it received at the hands of the Court, or of the exhaustive research and able discussions the questions which arose in it received at the hands of both counsel and Court, there are few criminal cases to compare with it in the American books. In this view, and considering the miserable character of the defendant and his surroundings, it affords a striking illustration of the solicitude with which the law watches over the life and Uberty of the meanest citizen in a free country. It is the leading American case on the question of the presumption of malice from the mere fact of killing, and of the burden and quantum of proof in trials of indictments for murder. See 2 Lead. Crim. Cases. 504, 536. The second trial, from the report of which the present extract is taken, took place before Shaw, Ch. J, , and Hi-bbard and Wilde, JJ. Samuel D. Parker, attorney for the Commonwealth, conducted the prosecution, and the Coiut assigned, as counsel for the prisoner, George W. Phillips and Richard H. Dana, Jr. The testimony showed that York and Norton met near the place nien- tionedj'and Vork beat Norton with something which caused several bruises and clotted his hair with blood, and also stabbed him with a sheath-knlfe, the blade breaking off in his heart and causing his death. The testimony was conflicting as to whether the killing was in combat. York was a negro ; Norton was a white man. The counsel for the prisoner asked leave to' introduce evidence to the CHARACTER OF DECEASED — YORK'S CASE. 677 effect that the deceased was a man of notoriously quarrelsome and fights Ing habits, and boasted of his powers as a fighter. This was objected to as irrelevant. Dana, in support of the motion : " The vital question here, is whether there was provocation and mutual combat. On this, the whole case turns. There is a lack of satisfactory direct testimony to that point. It must be purelj' a matter of inference. The jury are entitled to know every fact which can aid them in drawing a right inference. What more important than the ■well-known character and fixed habits of one of the actors ? Do we not so judge in all the affairs of life? In questions of self-defence, evidence of the size and strength of the deceased is admissible. In a doubtful case as ■ to who commenced an assault, in the absence of direct testimony, if one party should be an orderly man, of sedentary habits and peaceable pur- suits, and the other a bully and prize-fighter, ought this to be kept from those who are to decide the question ? If Norton was such a character, he ■carried such feelings and habits into this contest this night. It becomes, as it wer^e, apart of the res gesice. The jury should know whom the prisoner was dealing with. This principle is recognized in the books. In Begina v. , Smith, 8 Car. & Pay., 168, lanie, p. 130,] the report says : 'Deceased was a person who boasted of his powers as a fighter.' In Quesenberry v. the .State, 3 Stew. & Port., 308, [ante, page 549, note,] the prisoner was allowed to prove that the deceased was one of a tribe of Indians who had had a feud with the whites in that neighborhood, and were generally considered •dangerous persons. [This is a mistake; the offer in Quesenberry's case ap- pears to have been simply to prove the bad character of Lewis, the de- ceased. The counsel evidently refers to Robertson's case, ante, p. 152.] In State V. Tackett, [ante, p. 615,] the point in question was distinctly ruled and fully considered by the Court. " In indictments for rape, or for an assault with an intent, etc., the pris- oner may show the general character and habits of the woman as a loose person. This is not to discredit her as a witness. It may be done where she is not a witness. The books put it expressly on a different footing. Greenlf. Ev., § 54 ; Rose. Cr. Ev., 88 ; Bex. v. Clark, 2 Starkie, B. 244 ; 2 ■Stark. Ev., 3Q5, 368. The question in such cases is, whether there was con- sent on her part. Her general character and habits are facts from which -our inference may be drawn. In this t;ase, the question arises whether the •deceased was a person likely to offer provocation or engage in mutual com- :bat. In actions for malicious prosecution, the defendant may show the general bad character of the plaintiff; to rebut the presumption of malice. 2^sp.,721; 4Pha.Ev., 258 ; Addison's B., 246." [The last citation refers to Robertson's cuse, ante, p. 151, which is inadvertently cited to the point last taljen. — Eds.] Parker contended that the general character of the deceased was never in issue, nor that of the prisoner, unless he chose to put it in issue. The rule works both ways. The jury would like, perhaps, to know the general character of the prisoner, but the Government could not prove it, though he has the presumption of good character. If the evidence is admitted against the good character of the deceased, and not of the pris- oner, the effect would be unfair. No such principle has ever been laid ■down in any text-book, or in any reports in England or America, except in 678 THE PEOPLE V. LAMB. the cases cited . In those cases, no authorities are given . General character mast be inferred from the res gestoe. The analogy of rape does not hold. This is sui generis, and the evidence is admitted from policy and necessity, because there is usually no evidence as to the tact, but from the woman, and the evidence as to her character is partly discreditory, and partly to the issue. The crime is easily charged, and difficult of proof. Phillips replied, and contended that the reason why evidence is not received against the general character of the prisoner, is because he is on trial. It is tlie privilege of an accused person from public policy. In rape, the books say expressly, that the evidence is not on the ground of its being discreditory. We do not ask to prove particular previous acts, but the well-known habits, pursuits and character of deceased. AVe do not con- tend that the general character of the deceased is always in issue. We ask the Court to go no further than a case where direct testimony Is wanting^ or.unsatisfactory, or conflicting, and the factum proiandum is to be inferred- by probable reasoning. The Chief Justice pronounced the decision of the Court: "The- general rule unquestionably is, that the general character of neither party can be shown in evidence on trials for homicide. The prisoner has the personal privilege of showing his good character ; but unless he puts it in issue, it is not so. The Government cannot prove either quarrelsome habits in the prisoner, or peaceable habits in the deceased. There is nO' limit, if we go beyond the res gestm. The onlj' exception is rape. This is partly because the woman is a witness, and partly from policy and neces- sity, as the only protection of the accused. In the case from Carrington & Payne, [Reg. v. Smith ante. p. 130,] we think the expression probably arose from boasts made by the deceased at the time, and proved as parts of the resgestcE. The cases from Hawks, and from Stewart & Porter, stand, alone, and are not of such authority as to require us to leave the established course of practice." Commonwealth v. Hilliard, 2 Gray, 294. Supreme Judicial Court of Massachusetts, October Term, 18.54. At the trial of the defendant, before Chief Justice Shaw, and Justices Mbtcalf and Bigelow, on the 2.5th of May, 1855, for the murder of James L. Warren, there was evidence tending to prove an assault by the deceased upon the defendant, immediately before striking the mortal blow. J. 6. Abbott, for the defendant, offiired evidence that the general' character and habits of the deceased, were those of a quarrelsome, fighting, vindictive and brutal man, of great strength, as a circumstance tending to show the nature of the provocation under which the defendant acted, and that he had reasonable cause to fear great bodily harm ; and cited Quesen- berry v. The State, 2 Stew. & Port., 308, [ante, p. 549, note] ; The State T. Tackett, 1 Hawks, 210, {ante, p. 615]; Oliver v. The State. 17 Ala., 599, [posi} ; Commonwealth v. Seibert, Wharton on Homicide, 227. [supra.] J. H. Clifford, Attorney-General, objected to the inadmissibility of the evidence, and cited Commonwealth v. York, 7 Law Reporter, 507-509, \supra.~\ By the Court : " The evidence is inadmissible. If such evidence were admitted on the part of the prisoner, it would be competent for the Com- monwealth to show that the deceased was of a mild, peaceable character- CHARACTER OF DECEASED — MEAD'S CASE. 679 Such evidence is too remote and uncertain to have any legitimate bearing on the question at Issue. The provocation under which tlie defendant acted must be judged of by the res gestce ; and the evidence must be con- fined to the facts and circumstances attendhig the assault by the deceased upon the defendant." Verdict, guilty of manslaughter. Commonwealth v. Mead, 12 Gray, 167. Supreme Judicial Court of Massachusetts, November Term, 1858. Present, Shaw, C'li. J. ; Metcalf, BiGELOW and Thomas, JJ. This was an indictment for the manslaughter of Jeremiah A. Agin. The case was tried in the Municipal Court of Boston, before Nash, J., where the defi-ndant admitted the killing, but con- tended that it was in self-defence. The Commonwealth ollered evidence that the defendant and Agin had a verbal altercation, and Agin advanced with his hand uplifted towards the defendant, who then shot him with a pistol. The defendant offered evidence that Agin advanced and seized him by the throat, while Agin's brother stood near with an uplifted shovel, and that Agin was choking the defendant when' he fired. The surgeon who made a post mortem examination testified that the riffor mortis was very marked. The defendant, to show that he was in danger of his life from the great strength and violence of the deceased, proposed to ask the surgeon these questions : " AVas not Jeremiah A. Agin X very strong and muscular man ? Did not the rigor mortis, being very marked, indicate that Agin was a remarkably powerful man?" But the Judge excluded them. The defendant also offered to prove that " Agin was an experienced and practiced garroter." Garroting was said to be seizing a person by the throat in a peculiar mode, which in a very short time takes away life, and deprives a person of his power almost immediately. The Judge excluded this evidence ; but allowed the defendant to prove how he was actually seized by the throat, and then to show by experts, the anatomical structure of the parts, and the various effects of such seizure and compression on the individual's consciousness, strength, life and system generally. BiGBLOw, J. : " E-iidence tending to prove the great muscular vigor and strength of the deceased was clearly incompetent. It did not show- provocation, or that the homicidal act was committed in self-defence, or was otherwise excusable or justifiable. The issue was not as to the degree of strength and violence which the deceased was capable of exerting, but how severe and aggravated was the assault which he actually committed on the prisoner. Com. v. HUliard, 2 Gray. 294, {supra-l For a like reason, evidence that the deceased was in the habit of seizing persons in a peculiar manner by the throat was inadmissible. The defendant was allowed to prove the manner in which the deceased actually assaulted him at the time of the homicide, and this was the only evidence on the point which was relevant or material to the issue." In the State v, Jackson, 17 Mo., .544. determined in the Supreme Court of Missouri, in 1853, the question is thus discussed in the opinion of the Court, delivered by Eylaxd. J. . " As to the character of the man shot, (that is, Millsaps.) for danger and desperation, it was properly excluded fi om the jury. There may be cases 680 THE PEOPLE V. LAMB. where the general character would be proper evidence before the jury ; it would explahi the situation of the parties, and their acts and deeds at the time. But here is a man shot by the prisoner, as he says, thirty yards dis- tant, when the man shot exclaimed, ' he was miarmed ; ' and when the prisoner says ' he would have got the damned old rascal had he not got behind his horse' — a man exclaiming to the prisoner ' not to shoot him, he was unarmed, though not afraid ; ' and yet, the prisoner, when relating the occurrence, stated, ' he would have got the damned old rascal had he not got behind his horse," with as much seeming indifference to human life, as though he were shooting at game. ' Would have got him, but he got behind his horse ! ' The bad and dangerous character of the person killed, will not justify his being shot under such circumstances, nor will it tend to mitigate the crime, or lessen the guilt of the manslaughter. The Court below, therefore, committed no error in overruling this evidence." This last case was an indictment for an assault with intent to kill. Ev- idence of threats made by the prosecutor against the defendant, and com- municated to him before the rencounter took place, was offered and ex- cluded. The rather peculiar ruhng of the Court on this point, will be found on page 520. Upon the question of threats, it is overruled in Mis- souri by Sloan's case, ante, p. 516, and Keene's case, ante, p. 531, note. Upon the question of the character of the deceased or prosecutor for vio- lence, the rule which now obtains in Missouri is settled by the two follow- ing cases. The State v. Hicks, 27 Mo., 588, determined in the Supreme Court of Missouri, in 1859. The indictment was for murder. Extract from the opin- ion of the Court, delivered by Richardson, J. : " There was evidence tending to show that bitter hostility existed between the defendant and de- ceased, and that the latter was a turbulent, violent and dangerous man. It also appeared that the deceased, at the time he received the mortal wound, had a gun, which he snapped once or twice at defendant after the latter had fired ; but doubt is left by the testimony as to the position of the gun, and the attitude of the deceased before he was wounded. On this state of the evidence, the defendant asked the following instruction, which was refused: ' If the jury believe, from the evidence, that the deceased was of rash, turbulent and violent disposition, and that the defendant had knowledge of such disposition, then it is a circumstance for the consideration of the jury, in considering the reasonable cause for defendant's apprehension of great personal injury to himself.' In my opinion, this instruction ought to have been given. If tlie defendant killed Mills under circumstances that showed lie did not have reasonable [cause to apprehend immediate danger of vio- lence to himself^ he caimot defend himself on the ground of the vicious character of the deceased ; for the law promises the same protection to the peisons of all men, and it is as great a crime in the eye of the law to kill, without cause, a bad man as a good one. But the imminence of danger that wiU justify us in acting upon the instinct of our nature in repelling a blow before it is received, often depends upon the character of the assailant. The menacing attitude of a person generally peaceable and law-abiding, would often excite no just apprehension of danger, whilst similar conduct of a fierce, vindictive and passionate man, would naturally OHAEAOTEE OF DECEASED — MUBEAT'S CASE. 681 :alann our fears and make us prompt in anticipating his purposes. Wlieu danger is tlireatened and impending, we are not compelled to stand with our arms folded until it is too late to strike, but the law permits us to act on reasonable fear ; and, therefore, when the killing has been under circum- stances which create a doubt as to whether the act was committed in mal- ice, or from a sense of real danger, the jury have the right to consider any testimony that will explain the motive that prompted the accused. Que- ■senberry v. the State, 3 Stew. & Port., 308, [ante, p. 549, note;] Monroe v. ;State, 5 Ga., 137, [ante, p. 467.] The judgment wiU be reversed and the ■cause remanded — Judge Scott concurring ; Judge Napton absent." The question again came before the Supreme Court of Missouri, in the ■State V. Keene, determined in 1872, before Wagnkr, Bliss and Adams, J J. As the determination of this question depends peculiarly upon the ev- idence in each case, the reader is referred to the note on page 531, ante, where the facts in evidence in Keene's case are stated. Upon the point mider discussion, Wagner, J., said: " When the homicide is committed under such circumstances that it is doubtful whether the act wS-s committed mahciously, or from a well- -rounded apprehension of danger, it is very proper that the jin-y should •consider the fact that the deceased was turbulent, violent and desperate, in determining whether the accused had reasonable cause to apprehend great personal injury to himself. If such evidence is ever legitimate, the facts in tliis case show that it was one calling for its introduction." The judgment %as reversed. The other Judges concmTed. 50 Mo., 357. In The People v. Miu-ray, 10 Cal., 309, determined in the Supreme Court ■of California, in 1858, evidence of the character of the deceased for violence had been excluded. Baldwin, J., said — Terry, Ch. J., and Field, J., ■concurring : " The rule is weU settled that the reputation of the deceased «annot be given in evidence, unless, at the least, the circumstances of the •case, raise a doubt in regard to the question whether the prisoner acted in self-defence. It is no excuse for a murder that the person mm-dered was a bad man ; but it has been held that 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 the record must show this state of the case. This does not. 3 Stew. & Port., 316." Ante, p. 549, note. The judgment of guilty •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 coniniunicated 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, wth a bundle of clothes, and 682 THE PEOPLE V. LAMB ai^parentl)- without any weapon, when delendant 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 stroet. 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 introducfd, the defendant offered to prove by a witness that the deceased was a quarrelsome, vindictive and revengeful man, for the pur- pose of shelving 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 ^\ as fired. The Court of its o^vn 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 appealed. 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 throats were followed by anj' overt act, and under the circumstances, the mere apprehension of danger was insufHcient 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 aflirmed. The question again arose in the Supreme Court of California, in 1871, in the case of The People v. Edwards, 41 Cal., G40. Edwards was convicted of murder in the second degree, and appealed. L'pon 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, while the deceased was peaceably conversing with an acquaintance, shot 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 fuUen, 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 C:d., 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 killihg ; 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 CHARACTER OF DECEASED — WISE's CASE. 683 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 sufficient grounds, as a reasonable man, to fear that he was himself about to receive at the hands of the deceased, some great bodUy harm, and that he acted under the influence of that fear in killing him. There must be some fact transpiring at the time of tho killing, indicating the then immediate purpose of the d jceased 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-\\it : • If you know, state to the jury the character and temper of the deceased, Robert Baihe, when angry and excited, and whether or not he was, at such times, a dangerous or dtsperate 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. Grim. Law.,? 641." The learned Judge then quoted from Com. v Hilliard, (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 SiMPSos, Ch. J., Stitbs, Duvall, 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 biUs 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 bills of ex'ceptions in criminal cases. Numerous affidavits 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 V. LAMB. without them. It is stated in the other bUl of exceptions, however, that all the evidence to this eifect was excluded by the Court. There thus ap- pears to be no difference of opinion between the Court below and the coui> sel for the appellant, as to the competency of the testimony, but the whole controversy is confined to the question of fact whether it was rejected or acfinitted upon the trial. This question it is wholly unnecessary that we should consider or determine, inasmuch as the judgment must be reversed upon other grounds. We are of opinion that the testimony in question was admissible, in view of all the other proof a.s presented by this record. The general principle upon which the admissibility of such evidence de- pends, was recognized by this Court in the cases of Eapp v. Common- wealth, 14 B. Mon., 640, ante, p. 293 ; of Meredith v. Commonwealth, 18 B, Mon., 49, ante, p. 298; and Cornelius v. Commonwealth, 15 B. Mon., 516; 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 couclu-ivc 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. Bep., 59, 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. Flandkau, J., delivered the opinion of the Court. * * * " The fourth point made by tlie counsel for the prisoner, has been a UtUe more difficult of solution. But we are fuUy 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 party for kill- ing him, because it is as great an offence to kill a bad, as it is to kiU a good man, or to kill ^ quarrelsome and brutal man, as it is to kUl 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 X'roof of the quarrelsome or violent character of the deceased, is this : ' Where the killing 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, perhaps, necessary fact, to enable the jurj' to as- certain the truth, and, as such, is involved in the rea 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 toaUow A. to give ai 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 ot his employer, that it was not competinit 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.l When, however, it is shown that the defendant was under a reasonable fear of his life from the de- ceased's temper, in connection 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. '• j-'iieprinciple upon which this testimony alone isadmitted,;arisesfrom .some peculiar condition in which the facts of the killing, as proved, leave CHARACTER 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 character of the de- ceased would then become sufficiently part of the res geatce to be admitted to explain or throw light upon the encounter. " The books 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 arc 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 his 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 ciiaracter of the ac- cused may always come in, and, after it is in, its weight will 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, such character be- comes in some way involved in the res gestae ; 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 course 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. Sutherland, 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- 686 THE PEOPLE V. LAMB. " I cannot find any evidence in the case tending to sliow 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 be presumed that the prisoner knew Mathews' character good or bad. If Mathews' character was so notorioasly that of a dano-er- 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 alfray, 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 be reasonable, to presume that the prisoner might have acted from a fcaowledge of the character of the deceased for violence, etc. See IVhart. Hom., 229 ; Whart. Crim. Law, I 641 ; State v. Field, 14 Maine, 428, ante, p. 629 ; State v. Tilly, 3 Ired., 424, [supra.} •• 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 Baknard, JJ., concurred. In the Commonwealth v. Seibert, a case which has been often quoted upon the question under discussion, and which wiU 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 cha-racter of the homicide, permitted the defendant to prove the general character and disposition of the deceased, as a quarrelsome, fighting, vin- ilictive and brutal man, of great physical strength, rejecting, however, evi- dence of particular instances of his brutality in fighting, etc." And CoxYxoHAM, 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 dceea^eil. in deciding upon the character of the ofTence, 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 intentii ms, shown by their act*, their threats and menaces, as may be proven ; anit you may consider, too, their relative characters as individuals, including their strength and physical abUity. 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 OF DECEASED — SEIBEET'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 taking 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 wiU not justify the creation or sustaining of imaginary fears, so as to excuse the taking of the life of another; but we say now, as we had occasion to say in this court some years since, in the trial of Joseph 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 hig 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 Saturday, their respective feelings, and all the other circum- stances as already called to your notice ; to enquire whether the defend- ant, as the evidence shows him io be, the man that he is and loas — not as one of greater courage and strength may be, but as he was v.'hen 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 tlie 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 the 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 beheve, and did believe, that he was in the serious danger spolien of It may be stated that the view above taken by Judge Conyngham, 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 Brysou's case and Shultz' case are cited. But contra, Oli- ver's case, post. The language of Judge Conyngham, 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 m its general aspect. A ihan 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 criminally 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 objection to the admis- sion of such testimony consists in the danger ef 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 consistent vrith the liberty of the citizen, and the policy of republican institutioiH, 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 threats 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 re3id.ts 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, mianticipated 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 pronouncing the opinion, said : ■■ The questions, what was the deportment of th? deceased generally as to violence of char- acter? and what were his threats towards Ferrigan? and what was Wil- liamson's deportment when he came from the army, toward.; hL; fanuly? 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, tlie 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 the Court of Appeals of South Carolina on this question, are found in the State v. Smith, 12 P.ich. 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, that when Daniel Fogartie, a witness for ttie defence, was on the stand, Ml-. Simons, the prisoner's counsel, proposed to show by this and other testimony, that the deceased was a turbulent and violent man, and carried arms about him, and that this was generally known, which evidence. CHAEACTER OP DECEASED — SMITH'S CASE. 689 as to deceased, was ruled out. This forms the first ground of appeal. When Michael McFeeny was sworn for the prisoner, Mr. Simons said : ' I pro- pose to show, that on the day before the occurrence, (the death 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., ? 37, at the same time intimating the opinion that if it had been doubt- ful whether the Isilling was from a just apprehension of danger, and in self-preservation, I should have held it admissible, upon the authority of Monroe's case, 5 Ga., 85,. {ante, p. 442). I also excluded the proposal re- ferred to in the second .ground of appeal.' ' ' The appeal from this ruling raises questions of no ordinary impor- tance, thouffh the principles governing them do not appear to be unusually difficult. "Lord Camden, in the memorable debate on Pox'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 eases of libel, illustrated his position by referring to cases of homicide. Spealiing of intention, he argued : ' A man may liill another in his own defence, or under various circumstances whicli render the killing 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 killing without more, the law infers a crim- inal intent, and throws on the prisoner the necessitj' 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 circumstances 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 are the only subject of interpretation ; but they are read and interpreted in the Ught 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 i^ >0 THE PEOPLE V. LAMB. ifro :uid a patriot ; if, while repelling a criminal and dangerous as-ault his ])i-r.soii or his hoase, it is a di'fensive and rightful act. If it is done ider that degree of provocation, which would work up th'- infirinitics of nan of proper social feelings and of peaceable disposition, to the hasty edding of blood, it is manslaughter. The circurastances must det«r- ne the intention and the case. '• I do not mean the more circle of fact* immediately surrounding the rties at the moment of the fatal act ; but the fact- more or less remote, 3ording to the case, ^vhich may reasonably be supposed to have been in 3 minds or contemplation of the parties at that time; the facts to which ?ir conduct maj' be supposed to have tacitly referred — the facts whicli ly be reasonably intended to have prompted the fatal act. When the rj- who are to decide on the intent have these facts before them, and not [ then, they have the means of intelligent and conscientious judgment. " The authorities quoted in argument for the prisoner, give fuU support his motion. I regret that, in the heavy bu-ine^s of this Court, neither r time nor my strength permits me, as I would de-ire. to bring out io this inion, such portions of the authorities as would, in my judgment, show ; law to be as I have stated. I cannot, however, refrain from pointing rtioularly to the case of Monroe, plaintiff in error v. The State of Geor- i, \ante^ p. 442,] as a controlling authority on the point? before as — a case rued and decided with ability, and in which nearly all the cases referred to re cited. Contenting myself with this reference, I proceed to the few ler observations I deem it essential to make '•It seems hardly necessary to observe that evidence of the character and bits of the party slain, is proper only so far as they can be supposed to ve affected the intention of the slayer, in the fatal act. And, therefore, general bad character is inadmissible. The evidence should be confined a character and habits of violence, treachery, etc., such as might beget usonable apprehensions of grievous bodily harm, and reduce the other -ty to the apparent necessity to slay in self-preservation. '• Such an apprehension may be, also, created by particular preceding «, reasonably connected in point of time, or ocai-ion, with the fatal ren- mter ; or by threats, as weU as by the general habits or conduct of the leased : and may, therefore, be the proper subjects of evidence. " But whether the general character, or conduct, or particidar acts of : description mentioned, be ofTered, it appears to be essential to their re- ption, that it should, somehow, reasonably appear that the prisoner ;w, or may be supposed to have known, such character or conduct; for, IP was ignorant of them, they could not possibly have modified his in- tion in the act of slaying. "And, of course, if the relevancy of the testimony does not appear from prior evidence in the ease, the parry offering it must laj- a foundation its reception in the proof of facts making it relevant, and the Court must, essarily, have the power to decide, subject to review upon its relevancy. '■ We are all of opinion that the Circuit Court was in error in rejecting testimony proposed, which the circumstances showed to be proper; I, therefore, as it should have gone before the jury, however trivial its cts might have been, (of which we are not the judges,) we feel con- lined to grant the motion for a new trial; and it is so ordered.' CHAEAOTEE OF DECEASED — FIELDS V. STATE. 691 We shall now proceed to examine what seems to us the most singular ruling to be met with in the books. We allude to the case of Fields v. The State, 47 Ala., 603, which we have alrea'dy quoted, anU^ p, 593. This case was determined in the Supreme Court of Alabama, at its January Term, 1873. The defendant had been convicted of murder in the second degree, and sentenced to the penitentiary for ten years. In order that we may not seem to do injustice to the Court, it will be proper to state, that the de- fendant had sued out an attachment against the sister of the deceased ; and that a little after midday on the day of the killing, the defendant and de- ceased met at the house of a neighbor ; where the deceased, who was a powerful man, commenced cursing and abusing defendant ; called him a gin-house-burning, thieving sou of a bitch, twisted his nose, slapped him in the face with his hat, collared him, pulled him off the steps where he was sitting, and other wise endeavored to provoke a difficult}' with him. During a part of this time, a nephew of the deceased stood by with a pis- tol drawn. The defendant made no resistance ; said he did not want to light. After this difficulty defendant went home, got his gun, discharged the old loads, re-loaded both barrels with buckshot, remarking that he would kill the damned rascal before morning. About sunset, the de- ceased, returning home on horse-back, was shot from his horse by defend- ant, opposite defendant's gate. There appears to have been no combat, nor threatening demonstrations on the part of the deceased ; but defend- ant stopped deceased in the road, accused him of calling him (defendant) a gin-house-burner, and shot him ; and afterwards remarked, that he had shot the damned devil, and would kill- any man that would accuse him of burning his gin-house or that would call him a thief. It thus appears to have been a case of deliberate and predetermined killing, characterized by express malice, done with a weapon prepared for the purpose, and poi- sessing all the proper ingredients of murder in the first degree. The defendant asked several witnesses, some upon cross-examination, and some introduced by himself, whether they were acquainted with the general character of the deceased, for turbulence, violence, bloodshed and recklessness of human life. But the Court, on objection, refused to per- mit this question to be answered, and the defendant excepted. The Court also refused to allow the defendant to ask the State's witness the same question, with the additional enquiry, if he, " witness, had, before the shooting, commimicated to the prisoner any instance of the exercise of such character by deceased." The bill of exceptions does not show the purpose for which the defendant proposed to make the proposed proof, nor the ground on which the Solicitor for the State objected. Peck, Ch. J. : " Was the evidence offered by the defendant, that the general character of the deceased was that of a violent, turbulent, revenge- ful, blood-thirsty, dangerous man, and reckless of human life, properly excluded by the Court? I feel constrained to answer this question in the negative. " By the common law, the jury determined merely the guilt or inno- cence of the prisoner ; and, if their verdict was guilty, their duties were at an end. They had nothing whatever to say as to the punishment to be inflicted. The court alone determined what the punishment should be, its extent and its severity ; with that the jury had nothiiig to do. Their 692 THE PEOPLE V LAMB. w^ho 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 Burns ville, the place where the jus- tice lived ; summoned two additional men older than the others ; got a double-barreled shot-gun, and started back with 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 Noles 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 ofl" 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 JSToles' house, they did not want to take him, but wanted him to go away. 700 NOLES 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- ers, and that the prisoner had the right so to consider them, and to treat them as such. 2. "But notwithstanding this, if neither Sharp nor his company intended to commit any felony against Noles, (as by killing him, or doing him great bodily harm, steal- ing his goods, or burning his house, or the like,) and that neither Sharp, nor any of his company said or did any- thing which might induce Noles to apprehend that they intended to commit a felony, or such things as are above referred to, — then Noles could not justify killing Sharp, but would be guilty, at least, of manslaughter, and of murder if the killing was of malice, as the Court will hereafter explain. 3. " That the law regarded the liberty of the citizen as sacred, and every arrest of a citizen without warrant (where no felony actually committed was charged, and where the arrest was not to prevent the commission of a felony) was a trespass, and such arrest was unlawful ; that such unlawful arrest was, in law, a great provoca- tion, sufficient to excite and heat the blood of the party arrested ; and that, if, under such heat and excitement, the party about to be arrested, to prevent it, kills the trespasser, it would be only manslaughter. 4. " But, if, in this particular case, the prisoner knew and believed that Shai-p and his party only intended to arrest him, and carry him before Esq. Bums to answer the complaint to keep the peace, and to prevent this he killed Sharp, with what the law calls malice, as already explained to the jury, — then he would be guilty of mur- der, notwithstanding the unlaiofulness of the arresting {party] so intending to carry him before Justice Burns." The prisoner excepted to the charges of the Court, and wrote out and asked the following charges : INSTRUCTIONS TO THE JUET. 701 1. " If the deceased and Ijis company went to the pris- oner's house in order to arrest him, having no warrant or authority to do so, then they were all trespassers, and the prisoner was not bound to submit to their arrest, and in forbidding their approach, he did no more than he had a right to do ; and if the company, or any of them refused to stop, but still advanced, intending to arrest him, and he could only prevent the arrest by taking up and presenting his gun at the parties so advancing, he had the right to do so ; and,, if, when he so presented his gun, still forbidding their approach, one of the party called out to Sharp to shoot the prisoner, — if Sharp had a gun and dismounted immediately, and did then any act or acts calculated reasonably to satisfy the prisoner that he was then in danger of being immediately shot by Sharp, — then it was lawful for the prisoner to shoot, and if he killed Sharp, it was neither murder nor man- slaughter, and the prisoner was entitled to an acquittal." This charge the Court gave. 2. " That the person of every free white man is sacred in law, and every arrest or attempt to arrest him, with- out warrant or other legal authority, is a violation of his rights, to which he is not bound to submit, and if he can only prevent such unlawful arrest by taking the life of the aggressor, he has a right to do so ; therefore, if Sharp and Ms company, having no warrant or other legal authority to arrest the prisoner, went to his house, intending to arrest him, and then and there at- tempted to arrest him, and such arrest could only be prevented by taking the life of Sharp, then the prisoner is entitled to an acquittal." This charge the Court refused, and the prisoner excepted. 3. "If Sharp' and his company went to the prisoner's house to arrest him, without warrant or other legal authority, the prisoner was not bound to submit to that arrest, nor was it necessary for him to fear or believe that Sharp and his company intended to commit a fel- ony, nor to commit such violence on his person as to pro- 702 NOLES V. THE STATE, duce to Mm great bodily harm ; but, in order to preserve, protect and defend his liberty, he had a right to resist and prevent this unlawful arrest, and if, while doing so. Sharp and his party still persisted in their deteimina- tion and attempt to arrest the prisoner, then the killing of Sharp is not more than manslaughter at the most ; and if the arrest of the prisoner could not be prevented oth- erwise than by killing Sharp, then such killing is neither murder nor manslaughter, and the prisoner should he acquitted." This charge, as a whole, the Court refused, and the prisoner excepted. 4. "If Sharp and his company went to the prisoner's house, intending to arrest him on any charge not amount- ing to felonv, and the prisoner had fled, or refused to submit to the arrest ; then, if Sharp and his company could not arrest him without taking his life, and the prisoner had been killed by Sharp, — then such kiUing would have been murder in Sharp and his company so consenting to the same."' This charge the Court gave. [The fifth charge requested is not stated in the rec- ord.] 6. " When a man acts under a necessity, malice is not implied from such acts, but such acts are referred to the necessity under which he acts." This charge the Court gave as asked. All the matters covered by the exceptions abos^e stated, together with the judgment rendered on the ver- dict, are now assigned for error. Thos. Williams and Oeo. W. Oayle, for plaintiff in error; M. A. Baldwin, Attorney- Q-eneral, for the State. Rice, J., delivered the opinion of the Court : To excuse one individual for taking the life of another, there must exist a necessity to prevent the commission of a felony or great bodily harm, or a reasonable belief in the mind of the slayer that such necessity does exist. If there is neither the existence of such necessity, OPIITION — UNLAWFUL ABEEST. 703 nor any reasonable belief of its existence, the law will not acqiiit the slayer of all guilt. Oliver v. The State,* 17 Ala., 587; Pritchett v. The State," 22 lb., 39. The case of a mere trespass upon the person and lib- erty of the slayer, which created no reasonable belief in his mind that any of the trespassers would commit any felony or do him any great bodily harm, cannot be allowed to constitute an exception to the foregoing rules. When such trespass is threatened or committed, he has no right to kill, unless the unlawful act, when properly and lawfully resisted by him, is persisted in by the trespasser, until it ultimately results either in an actual necessity, on his part, to kill, in order to prevent the commission of a felony, or great bodily harm, or in the reasonable belief by him of the existence of such neces- sity. Carroll v. The State," 23 Ala., 28 ; State v. Craton, 6 Ired., 164. Believing the foregoing legal propositions to be correct, and being bound to construe the charges and refusals to charge in connection with the evidence, we cannot do otherwise than declare, that there is no error in the charges given, nor in the refusals to charge as requested, of which the prisoner has any right to complain. We admit the right of any citizen to resist any attempt to put any illegal restraint upon his liberty. But his resistance must not be in enormous disproportion to the injury threatened. He has no right to kill 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 any reasonable belief of such danger. We cannot sanction the charges asked by the prisoner and refused by the Court, to the fuU extent to which they go. Any fact which tended to prove what was the real mo- tive of the prisoner for killing the deceased, or the pur- pose of the deceased in going to the house of the prisoner, or which tended to prove that at the time of the killing, the prisoner knew that the deceased and his companions » Post. ^ Ante, p. 635. ' Post. 704 NOLES V. THE STATE, did not intend to commit any felony, or do Mm any great bodily harm, was relevant in evidence. In this point of view, the evidence excepted to by the prisoner was admissible. The prisoner did not object to this evidence on the ground that the affidavit and warrant were not pro- duced ; they had just been offered by the State, and been excluded on the objection of the prisoner. The only question raised by the objection was as to the relevancy of the evidence as offered ; and as it was relevant, there was no error in overruling the objection. K the prisoner had objected on the ground that the affidavit itself, and warrant were not produced, and the affidavit and war- rant had not then been produced, we would have been called on to decide whether such an objection should have been sustained. But, as it is not presented in that way, we do not intimate an opinion on that question. Allen V. Smith, 22 Ala., 416. ************ We are fully convinced that there is no error against the prisoner, in any of the proceedings, which authorize a reversal of the judgment and sentence pronounced by the Circuit Court of Dallas county ; and we affirm said judgment and sentence, and direct said sentence to he carried into execution. Judgment affirmed. SYLLABUS. 705 COMlSIOlSrAVEALTH v. DREW. [4 Mass., 391.J Supreme Judicial Court of Massachusetts, Cumberland, May Term, 180S. Theophiltts Parsons, | Samuel Sewall, >- Justices. Geoege Thatcher, ) Eesistance op u.vlawfdl arrest — Eesistaitce of Trespasser — Depbito- djg another person. 1. A bare trespass ag linst the property of another, not his dwelling- house, is not a s-ulRclent 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 be 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 ease, ante, 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, kill the aggressor, it will be no more than manslaughter. [See note, suh fin.\ 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 fin.'] 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. Tile 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 his 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 formerly 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 Gould 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 Eich- ard King for safe keeping, who 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 residence, 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 Qalnby 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 Oonant'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 OE 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 execiition ; 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- ceased then put his hands und-er the door, which was 708 COMMONWEALTH V. DEEW. about four feet wide. and. wMch. opened outwards on a lane leading to Conant's house, and to Ms 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 violenc*^ ; 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. ARGUMENT OF COUKSEL. 709 Upon this evidence, the counsel for the prisoner argued, that the offence Avas 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 possessi6n 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 art; that not only Quinby, 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 ; Eex v. Tooley, et al., 2 Ld. Eaym., 1296 ; Mary Adey's case, 1 Leach C. 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 jury. 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 dep- uty sheriff; that, having arrested Quinby 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. DEEW. untary escape of Qainby having been suffered, the de- ceased could not lawfully arrest Mm again on the same execution ; and, therefore, that the prisoner ought to be acquitted of the felony and murder charged in the first 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, Avithout any allegation that he was in the execution of his office as a deputy sheriff; and the j ury 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 A\-ith 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 Qainby, who was the prisoner's fellow- servant, and at worli with him, the deceased having no legal warrant therefor. The Chief Justice then observed that it was necessary for the j ur}-, 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- CHARGE— EBPELLING TRESPASSER. 711 tion of fact for the jury exclusively to decide. If the jury were satisfied that the weapon used was not likely 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 redace 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 actually attempt or offer to arrest another, and, if he resist, and 712 COMMONWEALTH V. DREW. in the resistance, kill the aggressor, it will be 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 ap];)eared 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 Qainby, as the 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, werfe 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 CHARGi; — UNLAWFUL AEEEST. 713 liad 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 satistied 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 arrestof Qiiinby, yet when he received his death wound, he had not arrested Quinby, nor had he, in fact, attempted or oflFered 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. Yerdict, guilty. XoTE. — The above two cases sufficiently make clear the extent to which a person may go, in resisting an unlawful arrest. From them the follow- ing couclusions may be deduced expressive of the usual rule in such c^es : 1. That an attempt unlawfully to arrest or restrain the liberty of a per- son, sfcinds 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 promises a writ of 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 )reign 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. Bisliop 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 resisting 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. Grim. Law, ^ 868, 5th ed. So, it has been said, referring to a case of ordinary arrest by a peace officer, that " circvimstances of threatened diffi- culty with dangerous weapons in the hands of otliers, may surround a party so that it would be unsafe for him to suflTer an unlawful arrest by a consta- ble, which might place him at disadvantage with his antagonists by disarm- ing him, and lie 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 snch a wan- ton and unnecessary manner as to make the officer a trespasser, and justify resistance. * * x 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. DREW. upon the house or the person within it, until he lias been so fiercely resisted and opposed, as to make that kind of attacli prudent and neces- sai-y ; and if he does proceed to execute even lawful authority hi 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 kill in defence against an illegal arrest of an ordinary character ; yet, the law sets such a high value upon the liberty of the citizen, that an 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 principle is declared in the second of the two precedhig cases, and is well established, both in England and in this country. Hex. v. Cui-van, 1 Moody, C.C., 132; Buck- ner's case. Style, 467 ; Tooley's case, 2 Ld. Raym., 312 ; 1 Hale, P.O., 457 ; Foster, 312, J 9 ; Reg. v. Phelps, 1 Car. & Marsh., 180 ; S. 0., 2 Moody, 0. C, 240 ; Stockley's case, 1 East, P.O., 310 ; Ferrer's case, Cro. Car., 371 ; W. Jones, 346; Kelyng, 59; Rex v. Patience, 7 Car. & Pay. , 775 ; Rex v. Thompson, 1 Moody, CO., 80; Roberts v. State, 14 Mo., 146; Com. y. Carey, 12 Gush., 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 ca-ey L. Benning, \'Jt^o.ges. Eiohaed p. Lyon, Defence of wife's chastity — Exposition of the .Georgia Statute OF 1856, IN regard to shooting "not in self-defence" — Cases "standing on the same footing op reason and justice" — Provo- cation — Evidence. 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 shpoting, 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, shall 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 /in.] 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 fired ASSIGNMENTS OF EEEOK. 745 a pistol at him, it was lield, on trial of the husband for the assault, proper to give in evidence the occurrrtices of the preceding evening ; and it was error to tell the jury that whatever had occurred on the night previoui could not amount to a justification or excuse. The plaintiff in error was indicted in the. 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 virtue and chastity. 5. Because the Court charged the jury, that, if a man kill another, that other being at 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. Lumpkin, 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 74T 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 offence of shoot- ing at another, or at any slave or free person of color, except in Ms own defence, with a gim, 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 gross 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 GESTAE, 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 hufband 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 difiiculty." 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 bosom of Biggs, 'by the presence of Parish. With our view of the law, we feel constrained to award a new trial in this case. Judgmenit reversed. Note. — ^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, killing 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 fluss. Cr., 662 ; 1 Hale, P. C, 484; 4 Bla*. Com., 186; Poster, 274; Pond's case, ;30si! / 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, antt, p. 712. Or a guest his host. Cooper's case, Cro. Car., 544; Curtis v. Hubbard, 1 Hill (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 jurj' 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, is 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. DUl's case, ante, p. 738 ; Pond's case, jioat ; 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 tlie 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- KILLING TO PEBVENX MUKDEE — MITCHELL'S CASE. 751 ing the assailant. Cooper's case, Cro. Car., 544. Likewise, pi-ivate per- sons may justify breaking and entering anotlier'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 assemble his friends for the defence of his habitation, although it was not lawful for him to assemble tliem 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 Part II. of this volume. 3. Again: where the injury tlireateued is less than a felony; where, manifestly, nothing more than an ordinarj' 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 take care to use no unnecessary degree of violence. Ante, pp. 723, 724. Thus, where A. was figliting his brother, and to prevent this, B. laid hold of A., and held him' down upon a locker on board a barge on which they 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. Hex v. Bourne, 5 Car. & Pay., 120. Likewise, a stranger in one's house 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 lulled her, it would have been no more than manslaughter, and her husband espoused her quarrel and was immediately sla^n, it was held manslaughter only. The State v. Koberts, 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 whom 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 seq., 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 will 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 killing 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 BIGG9 V. THE STATE.. sight ; and Mitchell had declared that he would not permit Thompson to be killed. The three met at a grocery. Mitchell toolv Thompson one side, and said to him, " Spring your triggers and cock yom- 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 killed Cole. Mitchell was convicted of murder, and the conviction was affirmed 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 aU 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 pubUo good ; or, to say the least, he must have acted in good faith ; but 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.'''' LcjiPKiN, 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 neaessity for the act — to make the killing justifiable? And mu-t 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 malifactoribua in parcis, it was incumbent on the keeper to show, that the deer-stealers could not but escape unless they were killed. Tlie burden is upon the defendant in this case, to show that he was without fault on his part. That he killed to prevent murder." 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 Lumpkin. J., goes so far in the DEFENCE OF "WIFE'S CHASTITY — STATEN'S CASE. 753 ease 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 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, ut supra. Sir Michael Foster expresses the reason of this>ule, as follows : " For let it be observed that in all possible cases, deliberate homicide upon a principle of revenge is murder. No man, under the protection of the law, is to be the avenger of his own wrongs. If they are of such a nature for which the 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 afllrmance of the common law. The only point of difl'erence 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 homicide," 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, 272. It cannot be supposed that these eminent vsriters, when they used thie 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 Henry VIH. It has been well said, in a case in Tennessee, that "the facts being found or admitted, what shall constitute homicide excusable, or manslauarhter. 756 BIGGS V. THE STATE. is a conclusion of law, and not of fact." Claxtou v. State, 2 Humph., 183 ; and see State v. Craton, 6 Ired., 172. And the judge may tell the jury that if they helieve certain facts, such facts do or do not, make out a ease of homicide se defendendo. 2 Humph., 172. And we have already seen, that, the law upon this subject being expounded to the jury, it is their province to determine wlietlier tlie facts do or do not make 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 tlie •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 Kdffin, J., in the case from North Carolina last quoted, " the law is found in the most ancient archives of the common law, and has 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 liead, stands not alone on its authoritj-. 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 liigh pas- sion, but by the fury's being excited by a present provocation, which the law deems sufficient for tlic time, to deprive men in general, of that power of reason and reflection, which ought to lead them to appeal for redress to the law, and instead thereof, prompts them to talte 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 adultery of his wife, no matter how well authenticated the information may be, or how much credence he may give the informer, and kills either the wife or her paramour, he does it not upon present provo cation, but for a past wrong — a grievous one indeed ; but it is evident hi; kills for revenge. I^et it be considered how it would be if tlie law were otherwise. How remote or recent must the offence be? How long or how far may tlie husband pursue the oflTender? If it happen that he be the deluded victim of an lago, and after aU, 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 punisli- 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 extenuating the ofience of taking the life of a fellow-man upon inform- ation." State V. Neville, 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 with her, he may lawfully stop such person in the road, and detain him until he surrenders up the custody SYLLABUS. ' 757 •of his wife ; aud if, while so doing, he is killed by such person, it will be murder, and not manslaughter. State v. Craton, 6 Ircd., 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 fu'ed 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. 183; 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. UISTITED STATES v. HOLIMES. [1 Wallace Jr., 1.] 'Circuit Court of the United States, for tTie Third Circuit, April Sessions, ISl^S. Mr. Justice Baldwust, Presiding. Sklf-Preservation by destruction op innocent persons — Sailors throwing over passengers at sea. Seamen have no right, even in cases of extreme peril to their own lives, io sacrifice the lives of passengers, for the sake of preserving their own. 758 CJNITED STATES V. HOLMES. On the contrary, being common carriers, and so paid to protect and carry the passengers, the seamen, beyond the 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 j oily 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 Burely 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 pris- STATEMENT OP THE FACTS. 759 »iier 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. Not 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 six 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 man- slaughter he was indicted, under 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. HopMn- son. Mr. David Paul Brown, Mr. Hazelhurst and Mr. Arm- strong, for the prisoner. Mr. Dallas argued the case with great force for the Gov- 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, though perhaps some other 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 about it." He also cited Grainger's case, 5 Yerg.,459, ante, p. 238, to the effect that, " if a man, though inno great danger of serious iodily harm, through fear, alarm or cowardice, kill 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 Louis, 2 Dodson, 264 ; Bacon's Works, by Montagu, vol. 13, p. 160, Lond., 1831 ; and 4 Bla. Com., 186. Mr. Justice Baldwhs" 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. The mer« absence of malice did not render homicide excusable; the act might be unlawful, as well as the union of th« 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 ba 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 THROWING OVEE PASSENGERS AT SEA. 761 a view of all the 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 humanity ; 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 mutu.al, 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 thev 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 PASSENGEKS AT SEA 763 cannot be regarded as in equal positions. The sailor, to use the language of a distinguished writer, owes more henexiolence to another tTian 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 difficulty ; 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 aU 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 thos6 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 affects 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 Ibe 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 sacrifice 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 i 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 wiU 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, aU men are reduced to a state 766 UNITED STATES V. HOLMES. of nature, and that therd 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, discharged the 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 what was now urged. But that, notwithstanding all that had been 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, lay 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 is, said the Court, the municipal or civil law, as thus comprehensive ; as founded in moral and social justice ; the law of the land. SELF-PRESERVATION — LAW OF NATTJEE. 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 its 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 the penalty was remitted. 768 MOERIS V. PLATT. J —CONCERNING THE DEGREE OF CAUTION AND PRUDENCE WHICH A PERSON MUST EX- ERCISE IN HIS DEFENCE, TO AVOID INJURING THIRD PERSONS. MORRIS T. PLATT. [32 Conn., 75.] Supreme Court of Errors of Connecticut^ Neio HaveUy February Term, 186 i,. i Joel Hinman, Chief Justice. Present : \ Henry Dutton, I jy^^nes { Thomas Belden Butler, j ^ Acting upon appearances op danger — Injuring third persons in lawful self-defence. 1. A man who is assaulted under such circumstances as to authorize » 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 crimmal law, if he kill, or attempt to kill, his assailant. [Ace. Sloan's case, ante, 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 deft nee, 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, sub 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 shots, fired by Delos Piatt, one of the defendants. The defend- STATEMENT OF THE FACTS. 769 ants introduced evidence to prove, and claimed that they had proved, that, at the time of the occurrence, one of the defendants, Sylvester Piatt, was assaulted by 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 plaintitf, 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 ower to avoid the necessity of extreme resistance, by retreating where retreat is safe, or by any other expedient which is attainable. He is bound, if possible, to get out of his adversary's way, and he lias 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 liis assailant; and if he can make it appear to the jury that the killing was necessary to protect his own life, or to protect liimself from serious bodily harm, and that he did all he could to avoid it, he vdW be justified. [See, on the doctrine of " retreating to the wall," note to Selfridge's case, ante, pp. 28 et seq. and note, p. 139.] 4, 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 assailant SYLLABUS. 815 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. [Aoc. CiirroU's ease, ante, lUst case ; Greschia's case, post.'] 5. Where the assault or breaking is felonious, the homicide becomes justifiable, and not merely excusable. But the essential difference between excusable and justittable homicide rests not merelj' in the fact that at com- mon law the one was felonious, although pardoned of course, while the other was innocent. Those only were justifiable homicides where the slayer was regarded as promoting justice, and performing a public duty ; and the question of personal danger did not necessarily arise, although it does generally. [Upon the distinction between justifiable and excusable homicide, see Selfridge's case, ante, p. 16, note.] 6. It is the duty of every one who sees a felony attempted by violence, to prevent it, if possible; and in the performance of this duty, wliich is an active one, there is a legal right to use all necessary means to make the resistance effectual. [Ace. DiU's case, ante, p. 738, and note.] 7. But 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 justification, unless possibly in some exceptional cases. [See ante, p. 755, note b.] 8. li a,nj 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 dauber. But life may not properly be taken under this rule, where the evil may be prevented by other means, within the power of the person who interferes against the felon. Reasonable apprehension, however, is sufficient here precisely as in all other cases. [As to retreating, see note to Selfridge's case, ante, pp. 28 ■et seq.; James D. Kennedy's case, ante, p. 137 and note. As to the right to pursue, see ante, pp.- 230 et seq., note ; Carroll's case, ante, last case and references.] 9. There is uo distinction between common law and statutory felonies, ■with respect to the rule which justifies homicide in preventing their com- mission ; but in both cases, the felony attempted must be of a forcible and violent character. [See Gray v. Coombs, post.] 10. Private persons may forcibly interfere to suppress a riot, and may justify homicide in so doing; although a riot is not necessarily a felony. [Ace. Eespublica v. Montgomery, 1 Yeates 421.] 11. A man may defend his family, his servants or his master, wherever he may defend himself. [Ace. the authorities cited in note to Biggs' case, ante, p. 750.] 12. A building thirty-six feet distant from a man's house, used for pre- serving the nets employed in the owner's ordinary occupation of a fisher- man, 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. A fence is not necessary to include buildings within the curtilage, if vrithin a space no larger than that usually occupied for the pm-poses of the dwelling and customary out-buildings. 816 POND V. THE STATE. The plaintiff in error was tried for the murder of Isaac Blanchard, and convicted of manslaughter. The original reporter has stated the facts with commendable patience and attention to details. These we are obliged for want of space to omit, and refer the reader to the very fair summary given in the opinion of the Court. The d"efendant was a fisherman at Seul Choix, a point of land extending into Lake Michigan. The house which the rabble were tearing down at the time of the homicide, was made of boards fastened to posts set in the ground, and covered with bark. It was thirty-six feet from the main house in which Pond and his family lived. It was used for preserving his nets when not in use, and his two hired men, "Whitney and Cull, slept regularly therein. Buel and Trowbridge, for the plaintiff in error ; T. M. Howard, Attorney-General, for The People. Campbell, J., delivered the opinion of the Court : The defence of this case, as presented in the Court below, was based upon a claim, that the accused was only chargeable with excusable or justifiable homicide. And as most of the questions raised before us involve the consideration of the same subject, it may be neces- sary to examine somewhat carefully into the rules which divide homicide into its various heads, and determine the character of each act of slaying. The facts are claimed, by the counsel for the accused, to have a tendency to establish the act as innocent on various grounds : first, as excusable in defence of him- self or his servant; second, as justifiable in repelling a riotous attack ; and, third, as justifiable in resisting a felony. The first enquiry necessary, is one which applies equally to all of the grounds of defence ; and it is, whether the necessity of taking life, in order to excuse or justify the slayer, must be one arising out of actual and imminent danger ; or, whether he may act upon a belief, arising from appearances which give him reason- ACTING UPON APPEAEASrCES OF DANGER. 817 able cause for it, that the danger is actual and immi- nent, although he may turn out to- be mistaken. Human life is not to be lightly disregarded, and the law will not permit it to be destroyed unless upon ur- gent occasion. But the rules which make it excusable or justifiable to destroy it under some circumstances, are really meant to ensure its general protection. They are designed to prevent reckless and wicked men from assailing peaceable members of society, by exposing them to the danger of fatal resistance at the hands of those whom they wantonly attack, and put in peril or fear of great injury or death. And such rules, in order to be of any value, must be in some reasonable degree accommodated to human character and necessity. They should not be allowed to entrap or mislead those whose misfortunes compel a resort to them. Were a man charged with crime, to be held to a knowledge of all facts precisely as they are, there could be few cases in which the most innocent intention or honest zeal could justify or excuse homicide. The jury, by a careful sift- ing of witnesses on both sides, in cold blood, and aided by the commands of court and -counsel, may ariiive at a tolerably just conclusion on the circumstances of an as- sault. But the prisoner, who is to justify himself, can hardly be expected to be entirely cool in a deadly af- fray, or in aU cases to have great courage or large intel- lect ; and can not well see the true meaning of all that occurs at the time ; while he can know nothing what- ever concerning what has occurred elswhere, or concern- ing the designs of his assailants, any more than can be inferred from appearances. And the law, while it will not generally excuse mistakes of law (because every man is bound to know that), does not hold men respon- sible for a knowledge of facts, unless their ignorance arises from fault or negligence. A criminal intent is a necessary ingredient of every crime. And, therefore, it is well remarked by Baron Paeke, in Regina v. Thurborn, 2 C. & K., 832, that, " as the rule of law, founded on justice and reason, is, that 818 POND V. THE PEOPLE. actus non f'acit reum nisi mens sit rea, the guilt of tlie accused must depend on tlie circumstances as they ap- pear to him." And Mr. Bishop has expressed the same rule very clearly, by declaring that, " in all cases where a party, without fault or carelessness, is misled concern- ing facts, and acts as he would be justified in doing if the facts were what he believed them to be, he is le- gally, as he is morally, innocent." 1 Bish. Cr. L., § 242. These principles have always been recognized, and are sustained by numerous authorities ; but they need no vindication, and a further citation would add nothing to the clear and intelligible statements already referred to. And from an examination of some of the charges given, we are very much inclined to believe that the Court below entertained the same views, at least as to some branches of the defence. But as some of the charges actually given, and particularly those in re- sponse to the first and second instructions requested, 'negative this rule, and the jury upon those must have been misled, we must regard these charges as erroneous, unless they were inapplicable to the case altogether. Their applicability will be presently considered. In order to determine the materiality of the questions of law raised, it becomes necessary to determine under what circumstances homicide is excusable or justifiable. In doing this, it will be proper to advert merely to those instances, which may be regarded as coming nearest to the circumstances of the case before us. The other cases we are not called upon to define or consider, and what we say is to be interpreted by the case before us. The only variety of excusable homicide (as contra- distinguished from justifiable homicide at common law) which we need advert to, is that which is technically termed homicide se aut sua defendendo, and which em- braces the defence of one's own life, or that of his family, relatives or dependants, within those relations where the law permits the defence of others as of one's self. Prac- tically, Bo far as punishment is concerned, there is no distinction .with us between excusable and justifiable HOMICIDE IN SELF-DEFENCE, GENERALLY. 819 homicide ; but a resort to common law distinctions will, nevertheless, be convenient, in order to illustrate the dif- ference between the various instances of homicide in re- pelling assaults, according as they are or are not feloni- ous. Homicide se defendendo was excusable at common law, when it occurred in a sudden aflfray, or in repelling an attack not made with a felonious design. According to Mr. Hawkins, it was excusable and not justifiable, because, occurring in a quarrel, it generally assumed some fault on both sides. Hawk. P. C, B. 1, ch. 28, § 24. In these cases, the original assault not being with a felonious 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 resistance, by retreating where retreat is safe, or by any other expedi- ent which is attainable. He is bound, if possible, to get out of his adversary's way, and has no right to stand up and resist, if he can safely retreat or escape. See 2 Bish. Cr. L., §§ 543 to 552, 560 to 562, 564 to 568 ; People V. Sullivan, 3 Seld.,^396-, 1 Russ, Cr., 660, et seq. Mr. Russell lays down the rule very concisely, as follows : " The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch cr -other impediment, or as far as the fierceness of the as- sault will permit him ; for it may be so fierce as not to allow him to yield a step without manifest danger of his life or great bodily harm, and then, in his defence, he may kill his assailant instantly. Before a person can avail himself of the defence that he used a weapon in defence of his life, he must satisfy the jury that the de- fence was necessary ; that he did all he could to avoid it ; and that it was necessary to protect his own life, or to protect himself from such serious bodily harm, as would give him a reasonable apprehension that his life was in imminent danger. If he used the weapon, hav- ing no other means of resistance, and no means of es- cape, in such case, if he retreated as far as he could, he » Ante, p. 65. 820 PONI> V. THE PEOPLE. would be justified." A man may defend Ms family, Li? servants or his master, whenever lie may defend himself. How much further this mutual right exists, it is unnec- essary in this case to consider. See 2 Bish. Cr. Law, § 581, and cases cited ; 1 Russ. Cr., 662 ; 4 Bla. Com., 184. There are many curious and nice questions, concerning the extent of the right of self-defence where the assailed party is in fault. But as neither Pond nor Cull were in any way to blame in bringing about the events of Friday night, which led to the shooting of Blanchard, it is not important to examine them. The danger to be resisted must be to life, or of serious bodily harm of a permanent character; and it must be unavoidable by other means. Of course, we refer to means within the power of the slayer, so far as he is able to judge from the circumstances as they appear to him at the time. A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are abso- lutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to thd taking of life. But here, as in the other cases, he must not take life if he can otherwise arrest or repel the assailant. 2 Bish. Cr. L., §569; 3 Greenl. Ev., §117; Hawk. P. C, book 1, ch. 28, §23. "Where the assault or breaking is felonious, the honaicide becomes justifiable, and not merely excusable. The essential diflference between excusable and justi- fiable homicide, rests not merely in the fact that at common law the one was felonious, although pardoned of course, while the other was innocent. Those onl}' were justifiable homicides, where the slayer was re- garded as promoting justice, and performing a public duty ; and the question of personal danger did not necessarily arise, although it does generally. It is held to be the duty of every one who sees a felony attempted by violence, to prevent it if possible ; and in the performance of this duty, which is an active one, there is a legal right to use all necessary means to make the resistance efiectual. Where, a felonious act is RESISTANCE OF FELONTIES AND EIOTS. ^121 not of a violent or forcible character, as in picking pockets, and crimes partaking of fraud rather than force, there is no necessity, and therefore, no justification for homicide, unless possibly, in some exceptional cases. The rule extends only to cases of felony ; and in these it is lawful to resist force by force. 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, till he fiiids himself out of danger. Life may not properly be taken under this rule, where the evil may be prevented by other means within the power of the person who inter- feres against the felon. Reasonable apprehension, how- ever, is sufficient here, precisely as in all other cases. It has also been laid down by the authorities, that private persons may forcibly interfere to suppress a riot or resist rioters, although a riot is not necessarily a felony in itself. This is owing to the nature of the offence, which requires the combination of three or more persons, assembling together and actually accomplishing some object calculated to terrify others. Private persons who cannot otherwise suppress them, or defend them- selves from them, may jtistify homicide in killing them, as it is their right and duty to aid in preserving the peace. And, perhaps, no case can arise where a feloni- ous attempt by a single individual, will be as likely to inspire terror as the turbulent acts of rioters. And a very limited knowledge of human nature is sufficient to inform us, that when men combine to do an injury to the person or property of others, of such a nature as to involve excitement and provoke resistance, they are not likely to stop at half-way measures, or to scan closely the dividing line between felonies and misdemeanors. Bjit when the act they meditate is in itself felonious, and of a violent character, it is manifest that strong measures will generally be required for their effectual suppression ; and a man who defends himself, his fam- ily or his property, under such circumstances, is jus- tified in making as complete a defence as is necessary. 822 POND V. THE PEOPLE. When we look at the facts of this case, we find very strong circumstances to bring the act of Pond within each of the defences we have referred to. Without stop- ping to recapitulate the testimony in full or in detail, we have these leading features presented. Without any cause or provocation given by Pond, we find Plant, Robilliard and Blanchard, combining with an expressed intention to do him personal violence. On Thursday evening, this gang, with from fifteen to twenty asso- ciates, having been h^^nting for Pond, found him at a neighbor's, and having got him out of doors, surrounded him, while Plant struck him with his fist, and kicked him in the" breast, vsdth insulting language, evidently de- signed to draw him into a fight. He escaped from them and ran away into the woods, and succeeded in avoiding them that night. That same night, they tore down the door of the net-house, where his servants were asleep, in search of Mm ; and not finding him there, went to the house ; the whole rabble being with them ; and wanted Pond, and expressed themselves determined to have him, but refused to tell his wife what they wanted of him. Not finding him there, they started off elsewhere in search of him. This was between nine and ten o'clock at night. About noon of Friday, Plant and Blanchard met Pond, when Plant threatened again to whip him ; and then went up to him, told him not to say anything, and that if he did, he would give him slaps or kicks. Plant then took a stone in his hand, and threatened if Pond spoke, to throw it at him. Pond said nothing, but went home quietly, and Plant went off and was heard making further threats soon after. Friday night, neither Pond nor his family went to bed, being in fear of violence. Between one and two o'clock that night. Plant, Robilliard, and Blanchard went to the next house, and partially tore it down, while Whitney and Cull were in it. They then went to the house where Pond, his wife and children were, shook the door, and said they wanted Pond. Pond concealed himself under the bed, and hi* wife demanded what they wanted of him, saying he was OPINIOK — THE FACTS STATED. , 823 not there ; when Plant shook the door again, and ordered Mrs. Pond to open it ; saying they wanted to search the house. She refusing, they resorted to artifice, asking for various articles of food, and objecting to receiving them except through the door. Plant then repeatedly commanded her to open the door, saying if she did not, she would regret it. On opening the door from six to twelve inches, by sliding the cord, to hand them some sugar, which they demanded, they did not take the sugar, but Plant seized Mrs. Pond's arm, and squeezed it un- til she fainted. Not succeeding in getting into the house, they then left for Ward's, and Pond went to the house of his brother-in-law, and borrowed a double-barrelled shot gun, loaded with pigeon shot, and returned home. While at Ward's, Blanchard told the latter that they had torn down part of Pond's net-house, and had left the rest, so that when they went back they would have the rest of the fun. Blanchard also said, ''I want to see Gust. Pond : he abused an Irishman, and I want to abuse him just as bad as he abused the Irishman. Pond has to be abused any way." He also said to Ward, "this is good bread ; I don't know but it may be the last piece of bread I'll eat." Plant also made threats. A short time after returning, they were heard to say they were going back again ; were going to find him and to whip him, or have the soul out of him. It is to be remarked, that we have this language as rendered by an interpre- ter, who was evidently illiterate, or at least incompetent to translate into very good English ; and it is impossible for us to determine the exact force of what was said. The party then went back to Pond's, and asked admit- tance to search for him. His wife refused to let them in. They immediately went to the net-house, where Cull was asleep. Plant seized Cull, and pulled him out of bed on the floor, and began choking him. Cull demanded who it was, but received no answer. Blanchard and Robilli- ard had commenced tearing down the boards. Pond went to the door and hallooed, " Who is tearing down my net-house ? " to which there was no answer. The 824 POND V. THE PEOPLE. voices of a woman and child were heard crying, and the woman's voice was heard twice to cry out, " For God's sake ! " Cull's voice was also heard from the net-house, not speaking, but hallooing as if he was in pain. Pond cried out loudly, '■ Leave, or I'll shoot." The noise con- tinuing, he gave the same warning again, and in a few seconds shot off one barrel of the gun. Blanchard was found dead the next morning. Pond took immediate steps to surrender himself to justice. A question was raised, whether the net-house was a dwelling or a part of the dwelling of Pond. We think it was. It was near the other building, and was used, not only for preserving the nets which were used in the ordi- nary occupabion of Pond, as a fisherman, but also as a permanent dormitory for his servants. It was held in the People v. Tayloi', 2 Mich., 250, that a fence was not necessary to include buildings within the curtilage, if within a space no larger than that usually occupied for the purposes of the dwelling and customary out-buildings. It is a very common thing in the newer parts of the country, where, from the nature of the materials used, a large building is not readily made, to have two or more small buildings, with one or two rooms in each, instead of a large building divided into apartments. We cannot, upon a consideration of the facts manifest from the bill of exceptions, regard the charges asked by the defence, as abstract or inapplicable to the case. It was for the jury to consider the whole chain of proof ; but if they believed the evidence as spread out upon the case, we feel constrained to say that there are very few of the precedents, which have shown stronger grounds of j ustification than those which are found here. Instead of n-ckless ferocity, the facts display a very commenda- ble moderation. ^\.part from its character as a dwelling, which was denied by the court below, the attack upon the net-house for the purpose of destroying it, was a violent and forci- ble felony. And the fact that it is a statutory, and not a common law felony, does not, in our view, change its CONCLUSION UPON THE FACTS. 825 character. Rape and many other of the most atrocious felonious assaults, are statutory felonies only, and yet no one ever doubted the right to resist them unto death. And a breaking into a house with the design of stealing the most triiiing article, being common law burglary, was likewise allowed to be resisted in like manner, if neces- sary. We think there is no reason for making any dis- tinctions between common law and statute felonies in this respect, if they are forcible and violent. So far as the manifest danger to Pond himself, and to Cull, is concerned the justification would fall within the common law. It is claimed by the prisoner's counsel, that we are authorized to pronounce upon the judgment which the facts warrant. Had the facts spread out in the bill of ex- ceptions been found as a special verdict by the jury, this would be true. But as the case stands, we can only consider them as bearing upon the instructions given or refused. The errors being in the rulings, and not in the record outside the bill of exceptions, we can do nothing more, in reversing the judgment, than to order a new trial. The District Judge has ruled upon the law ques- tions in such a way, as to present them all fairly as ques tions not before decided in this State. We think there was error in requiring the actual, instead of apparent and reasonably founded causes of apprehension of injury; in holding that the protection of the net-hottse coald not be made by using a dangerous weapon ; and that the con- duct of the assailing party was not felonious ; and also in using language calculated to mislead the jury upon the means and extent of resistance justifiable in resist- ing a felony. We do not deem it necessary to pass upon the minor points, as we do not suppose the authorities will deem it important to proceed further, unless the facts are very different from those presented. The judgment below must be reversed and a new trial granted. Mannestg and Cheistianot, JJ., concurred. Maetin, Ch. J., concurred in the result. 826 PATTEN V. THE PEOPLE. PATTEI^ V. THE PEOPLE. [18 Mich. 314.] Supreme Court of Mic?dgan, April Term, 1869, Thomas M. Coolet, Chief Justice. Isaac P. CHEisxiAxcy, | James Y. Campbell, >■ Associate Justices. Bejstjamijt P. Geaves, ) Riotous attack upon habitation — Evidence — Res gestae — Jcstifiable HOMICIDE — DeFE>XE OP PAEEXT BY CHILD — ApPEARA2vXE3 OF DAN- GER — KiLLIXG IX' DEFENX'E 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 having resulted directly from said assemblage?, 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, [ilaher 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 tlius constituting the res geatx, 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 sho^ii. 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 strucli 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 ret aestae, and their contradiction was competent. [Ac«. 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. [Ace. Cotton's case, ant', p. 316 ; Robert Jackson's case, ante, pp. 481, 482.] 6. If, 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 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 attacli upon himself; and lae 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 liis defence according to the circumstances as they appeared to liim ; 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. Kurd's case, post; Pond's case, ante, 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, Lnther 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 " horning " 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 homers proposed to visit his house the next night. The people further oflfered proof, tending to show that Elias 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 ^uns, 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 as' they could upon these instruments ; that they passed from the road into the yard through a large gate ; that they walked along stni wi<"hout 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 give the word, and all the guns were fired; that the said Cowles had a gun ; that he (Lee) had a joint of a flute, and 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 OE THE CASE. 82& him kill this man," and stepped towards the prisoner, and he ran back into the house; that Cowles got up, picked up 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 vdt- ness, on his cross-examination, if Cowles did not teU 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 peopte ; 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 sallied 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 effeccual; and if, in making such resistance effectual, one of the rioters be necessarily kiUed, the killing wiU 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." TJiird — " That the law of self-defence 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 OF THE CASE. 831 Fourth — " That if, from all the evidence and circnm- stances 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 wiU. 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 : "i '■> 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, as 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 without force, and by resort to force the deceased was killed, the killing will be excusable homicide, provided 832 PATTEW V. THE PEOPLE. no more force was used than was necessary, under 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 j DwigTit May, Attorney-General, for the people. Christiancy, 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, CKOSS-EXAMINATIOK — EES GEST^. 833 or 1)7 witnesses introduced in Ms defence, to go fully into all matters tius constituting the res gestae. 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 given 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 substantiaUythe same thing to one of the vsdtnesses 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 gestce, 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 gestce, 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 fonn ; 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 in 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 m SELF-DEFENCE. 83? first and second degree, or between murder or man slaugliter. 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- pos'ed 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, Avhen 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 <"laimed 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 with 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 — EIOTOTJS ATTACK. 837 '.assailants, had not yet occurred, and might never occnr. And, though the defendant had the right to act under the circuDjstances 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 lier 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 su3h 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 contingency they may be used, and how they are to be judged of by the defendant, will be considered under .the next head. There was evidence — and the statement of the prisoner 838 PATtEN V. THE PEOPLE. made on the trial must for this purpose be treated as such — from which the jury might have found, (as sup- posed in part of the charge given by the Court below) 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 club or other weapon. If this hypothesis ahould 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 render 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 OE HABITATION — RIOTOUS ATTACK. 839 while 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 unaflFected 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. Note.— See further, as to riotous attacks upon the habitation, Temple V. The People, 4 Lansing, 119. 840 HUKD V. THE PEOPLE. HURD V. THE PEOPLE. [25 Mich., 405.] Supreme Court of MicMgan, October Term, 18T2. J. P. CHEI8TIANCY, J. Y. Campbell, T. M. COOLEY, B. F. Graves, Judges. Defence in habitation— Excu«able homicide — ^Manslaughteb — Cool- DJG TIME — RES GEST^ — PbOSECUTION 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. In 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 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 without any weapon in his hands, and piu'sued 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 from which there was no egress, whereupon he turned and shot the deceased, then but four or Ave 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 ; — excu$able homicide, if the jury were satisfied, tliat 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 bodily 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 tlian 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 gestae. It is not proper to treat them as two distinct transactions, ivith an interval, for the purpose of raising the question of cooling time. SYLLABUS. 841 3. The duty of the prosecution in crimmal cases to present all the at- tainable evidence of the transaction stated and discussed. [See Bariield's case, ante, p. 624, and note e.] 4. Where a person is assailed and kills his assailant, 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- hility and the character of the attack, and what course of conduct he is to expect of the assailant, as well as the means which, at the moment, are necessary to save himself from immediate danger ; and the exclusion of such evidence in such cases is a serious error. [Ace. Copeland's case, ante, p. 41 ; Robertson's case, ante, p. 151 ; Cotton's case, ante, p. 310 ; Eippy's case, ante, p. 345 ; Monroe's ease, ante, p. 467 ; Garbutt's case, 17 Mich., 16 ; Robert 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 Barfleld's case, ante, p. 625 ; Pritchett's case, ante, p. 635 ; Franklin's case, ante, p. 641 ; Lamb's case, •ante, 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.), ajite, p. 691, note. Contra, Wes- ley's case, ante, p, 319 ; Wright v. State, ante, p. 484, note ; Field's case, (Maine), ante, p. 629 ; State v, Tilly, ante, 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 ; Commonwealth V. York, ante, p. 676, note; Commonwealth v. Hilliard, ante, p. 678, note ; Commonwealth v. Mead, ante, p. 679, note ; State v. Jackson, ante, p. 679, note ; People v. Min-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 ; Reynolds v. People, ante, p. 685, note ; Commonwealth v. Ferugan, 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 shootmg 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 O. Blanchard, for the plain- 842 HURD V. THE PEOPLE. fciff in errror ; DwigM 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 guilty of murder in the second degree ; upon which, judgment was rendered against him, and he now brings the case to this Court^ 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, were 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- jured some five or six years-before, by a log rolling over him, and seems not to have fully recovered, but was, in consequence, easUy 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 xiugust, 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. OPINION — THE CASE STATED. 843 At the supper-table there 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, and 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 th& only two who saw the transaction at this stage,) says,. Hubbard then, with his fists doubled, (though Dow doe& 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 vdtnesses,) severely; jerking or throwing him down. Evans then steps up and says„ 844 HUED V. THE PEOPLE. 'Don't; I wouldn't have any fight here, Mr. Huhbard, 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 conies 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 wife 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 door 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 child, 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 still telling him to stop ; hurries through a part of the OPINIOK — 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 sorrbw, 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 HUED T. THE PEOPLE. him, and said to him : " Charlie, we have always been friends ? " Hurd said '• Yes," and they asked each other to forgive. Hubhard 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. Trear, 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 €ame 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 Hnrd ^empts both from forfeiture. Foster, p. 273, says, "a party may repel force by force, in defence of his person, habitation, or property, against one who manifestly intendeth and endeavoreth, by violence or surprise, to commit a known felony on either." From these authorities, and what we deem to be the reason of the law, 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 pun- ishment attached to it by laV, or upon the fact of its being designated in the penal code as a felony or not. A name can neither add to, nor detract from, the moral qualities of a crime, and in the eye of reason and justice, the intrinsic nature of the offence, together with the time and manner of its attempted commission, must ever test the legality of the means to be resorted to for its preven- tion. It is not absolutely necessary, however, for the purposes of this case, to do more than place it on the ground of the prevention of a felony. For, though the robbery attempted in this case would > Ante^ p. 34. c Ante, p. 867. DEFENCE Oh- PROPERTY 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 xMid strict rules of the common law, a man may not take life in the prevention of such a crime. Those Tules 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 right; 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 his 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, biirglary, arson, break- ing a house in the day time, with intent to rob, 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 which 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. MOOKE. 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 sTiop, not parcel of the mansion house, in which the shop-keeper never lodges, but only works or trader 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 aU the elements of a felony by violence and surprise that burg- ee Ante, p. 867. DEFENCE OF PEOPEBTY BY SPEING-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 dwelling-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. Cr. L., §171. So, doubtless, in the olden times, all 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 quantities, 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 smok)i»- 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 898 STATE V, MOOBE 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 hurglary ; 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 dweUing-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 dwelling-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 Bay, 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 offence, 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 Jsreaking and entry of a shop in another, adding to the latter the words, " store, warehouse and out-house, whether parcel of any mansion-house or not" but provided the same DEFENCE OF PEOPEETX BY SPKING-GUNS. 899 punisliinent, viz : three years imprisonment for each. It is apparent from the words, " ^rhether parcel of any man- aion-honse or not," and the similarity of the punishment, that no change in the character of the offence was in- tended, and snch has been the understanding of the pro- fession and the courts. In the revision of Swift's Digest l)y Judge Button, the offence is treated as burglary, (vol. 2, b. 330,] and in our forms the word " burglariously " is aised in informations upon the statute. In the act of 1830, respecting crimes, the punishment of burglary was in- ante, last case.] 3. Patterson v. The People, 46 Barb., 623, overruled ; People v. McCann, 16 N. Y., 5S, commented on and followed, but the opinion of Brown, J., doubted. Error to the General Term of the Supreme Court in the third judicial district, to review the judgment of that court reverfsing the conviction of defendant in error, at the Ulster sessions, for manslaughter in the third degree. Abraham Sqhryver, 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, ip 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 nest day. The evidence tended to show that when the defendant used the knife, 912 THE PEOPLE V. SCHRYVEB. lie had reason to believe, and did believe, that Kavanagh intended to kill Mm, 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 kUling 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 one 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 ona step further, and satisfy this jury, beyond reasonable doubt, on this point." To each and every of vrhich propositions, the defend- ant then and there duly excepted. Frederick L. WestbrooTc, District-Attorney, for the plaintiflF 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 reason- able 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 HiU, 436; T. O. Self- ridge's case,** Wharton's Law of Homicide, 457 ; Rex 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. Bv., 18 ; Tweedy v. State," 5 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 Mansfield's charge in Bellingham's case, 1 CoUin- 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; Poster'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 " beyond a reasonable doubt," he cited Will's Cir. Ev., 7; Burr, on Cir. Ev., 200; 2 Colby [?] Cr. L., 189 ; People v. McCann, 16 K. 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. Lounsbury, for the defendant in error. • Ante, p. 784. » Ante, p. 1. ° Ante, last case. * Ante, p. 130. « Ante, p. 106. 'Ante, p. 600. ^14 THE PEOPLE V. 8CHEYVEE. 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 kiUing 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 eixed. The statute defining manslaughter in the third degree, isi 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 ed., 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 alleged 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, where the mischief of an erroneous conclu- sion is not deemed remediless, it is not necessary that BURDEN AND QUANTUM OF PEOOF. 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 Greenleaf 's Ev., §13 a; 3 lb., §29; People v. McCann, 16 N. 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 ihust 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- a,ble or excusable, if he claims that it was either. In 916 THE PEOPLE V. SCHETVER. Poster's Crown Law, 255, it is said : " In every charge of murder, the fact ofkilling heing first proved, all tlie 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 th^ 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 Tie can avail Mmself 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 vdU 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. kiUs B., and no sudden quarrel appears, 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'^ Right to Begin BURDEN AND QXTANTITM OP 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 off"ence to manslaughter." To the same effect, see 1 Alison, Or. Law, 49 ; 1 Eassell on Crimes, 1st Ed., 614-616; 1 Greenleaf, §34; 1 Whar- ton's Or. 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 HiU, 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 K 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. SCHRTVEK. Judge Brown 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 suflacient for the Court to hold that the charge was too unfavorable to the prisoner. Before Judge Brown's opinion shall be taken as the settled law, the question- wiU need further consideration, as it does not seem to be supported by the current of authorities. The judge presiding at the trial of this casfe, is said to- haye 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 justification beyond a reasonable doubt. No 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, tutius semper est errare in ae- quittando, quam in puniendo, ex parte miser icor dice,, quam ex parte justitice. 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 sufladent 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 suflaciently humane to the prisoner, and at the same time gives some protection ta human life. BURDEN AND QUANTUM OF PEOOP. 919 If the conclusion which I have thus reached were net 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 920 THE PEOPLE V. SCHRYVER. that th.e homicide was committed in an affray, and under circumstances which gave him the right to have the question of justifiaWeness 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 heen 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 this 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 Court, reversing the judgment of the Court of Sessions, should be affirmed. All the judges concurring for affirmance, except IrrGALLS, J., who did not sit. Judgment affirmed. SYLLABUS. 921 SILVUS V. THE STATE. [23 Ohio State, 90.] ^preme Court of Ohio, December Term, 1871. John Welch, OMef Justice. William White, Ltjthbe Dat, Geoege W. Mc Ilvaine, William H. West, Judges. Homicide in self-defence — Burden and quantum of proof. 1. On the trial of an indictment for murder, the burden 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 evidence. ■ £Acc. last case.] Error to the Court' of Common Pleas of Athens County. Th.e 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, wMch severed an artery, and that the wound was inflicted with a knife, by the defendant, while he and the deceased were together 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 ■effect 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 vdth 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 evidence, 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 eiTed in its charge to the jury, and in refusing to charge as asked. W. Reed- Golden, and C. H. Golden, for plaintiff in error; Charles 2\)«57ism 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, 301. And so in Texas. Hinton's case, 87, 88. 29. Under the Mississippi statute, reasonable ground of apprehension, and immineni 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 demonstration, 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 tiiat thfr deceased liad no pistol. Philips' case, 383. 33. A man may 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 ease, 564. 35. If the prisoner was under similar fears of some act of violence less than a felony, the ofienee 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, 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 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 j^ou 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 aflbrds him no immunity or protection." This charge was, in the opinion of Davibs, 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, 72.5. And see DUl's case, 738. 38. Where the prisoner met a party of roysterers at midnight on a highway, and in a conflict stabbed and killed one of them, his justification was held to depend upon the question whether the killing was necessary, 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, wiU be justified, both in the civil and the criminal law, if lie kill, or attempt to kiU, liis assailant. Morris v. Piatt, 768. 40. With reference to homicide in the prevention of felonies, reasonable apprehension is sufficient, precisely as in all other cases. Pond's case, 814; Rutherford's case, 733, note; Roane's case, 735, note. 41. The law does not require the necessity for taking life, to be one arising INDEX. 945 out of actual and imminent clanger, in order to excuse the slayer ; but he may act upon a belief, arising from appearances, which give liim reasonable cause for it, that the danger is actual and imminent, although he may turn out to be mistaken. The guilt of the accused must depend upon the circumstances as they appear to him, and he will not be held responsible for a knowledge of the facts, u)iless his ignorance arises from fault or negligence. Pond's case, 814. 42. K Jthe assailant follows the defendant 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, Hurd's case, 840. ARREST. Unlawful, resistance of, 1 . This force used must not be in enormous disproportion to the injury 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 ^ive the cliarges 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, aid the injured party by endeavoring 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. 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. lYI, note 5. 11. Duty of oflBcer to make known his oflScial character, etc., and killing where he has failed to do so. Logue's case, 263 ; Yates' case, 718, note 7. 12. Killing 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. SuflScient force may be used in defence against; but if unnecessary 946 INDEX. force 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 MURDER. 1. In order to convict, the circumstances must be such, that had the as- sailed person been liilled, it would have been murder. Hopkinson's case, 80 ; Rapp's case, 293. 2. It is not sufficient that the Jdlling, had it been accomplished, would not have been excusable or justifiable; had it amounted to man- slaughter, it would not be sufficient to convict. Ibid. BARE FEAR. See Appearances of Danger; Imminence op Danger. 1. Unaccompanied by overt act, no excuse for kUling. Selfridge's case, 4 ; Shippey's case, 136. 2. At common law, did not extenuate homicide ; there must have been actual danger at tlie 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, though honestly entertained, unaccompanied by overt act, no excuse under the Mississippi Statute. Ibid, 309; Wesley's case. 326. 5. The fear which will excuse homicide must not only Ise well founded, but honestly entertained. Rippy's case, 345; Williams' case, 340, 361. BELIEF OF DANGER. See Appbakancbs of Danger ; Imminence of 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 oases there cited. BURDEN AND QUANTUM OF PROOF— REASONABLE DOUBT. See Malick. 1. Upon the prisoner to show justification or excuse, where IdUing is proved. Drum's case, 186. INDEX. 947 2. Unless the matter of justiflcation or excuse grows out of the orighial 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 Idlliug 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. 6. 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 vjreight of preponderant evidence, is sufficient in a criminal case, unless it generates a full be- lief of the guilt of tlie party charged, to the exclusion of all reasona- ble doubt. Ibid ; Stolies' case, 927 ; The State v. Patterson, 12 Am. Law Eeg., N; S., 602. 9. When the evidence relates solely to the original transaction, and forms a part of the res g stce, the defendant has a right to claim that the proof made does not manifest liis guilt, because it is left in doubt, whether the act was committed under unjustifiable circumstances. Tweedy's case, 905. 10. Hence,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, wliere the excuse or justification is ap- parent on tlie evidence offered by the pi-osecution, or arises out of tlie circumstances attending the homicide. Ibid. 12. Where, on the trial of an indictment for mtu'der, the Court instructed the jui-y as foUows : " 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 justiflcation 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." £cM, 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 establisbi all the facts alleged in the indictment, beyond a reasonable doubt; but if the defendant seeli to justify the homicide on the ground of self-defence, the burden is upon him, to .malie 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. Sohryver'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. Ace. Tweedy's case, 905. 15. The burden 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 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 follows : " The fact of the 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 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 ca-^c 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." Held, error and ground of reversal. Stokes' case, 927, 13. 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 aiithorities 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 Pakkbr, J., in Selfridge's case, pp. 17, 18, approved in John Due's case, 64. 2. The doctrine of Grainger's case, 238, that fear, alarm or cowardice will excuse homicide,' overruled in Thompson's case, 96; in Shorter's case, 256; in Shippey's ease, 136; and in Lander's ease. 366. INDEX. 949 "3. Grainger's case, 238, as modified by Copeland's case, 41, declared to be the law. Ripp.v's case, 345. 4. The law as laid down in Grainger's case, 238, and explained, analyzed and detined in Hippy's case, 345, held to be the law in Tennessee. Williams' case, 361. 5. Philips' case, 383, reaffirmed 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, 432, 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. Reins v. People, 858, note, examined and distinguished in Greschia's case,858-«60. CAUTION TO BE EXERCISED EST 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- cliffe's case, 125, 126, note. 3. If a person accidentally Icill his antagonist with a loaded weapon, under circumstances in which it is not lawful 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. CHARACTER, I. Of 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. Op the Deceased foe Violence. 1. List of the cases on the subject : Copeland's case, 41 ; Robertson's case, 151 ; Cotton's case, 310 ; Rippy's case, 345 ; Monroe's case, 467 ; Garbutt's case, 17 Mich., 16 ; Robert Jaclcson's case, 486 ; Little's case,"487 ; Keeuer's case, 546 ; Quesenberry's case, 549, note ; Tackett's case, 615 ; Barfleld's case, 618 ; Pritchett's case, 635 ; Franklin's case, 641 ; Lamb's case, 646 ; Collins' case, 595, note ; State v. Hicks, 680, note ; State v. Keene, 681, note ; Payne v. Commonu-ealth, 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 T. Thawley, 675, note; State v. Chandler, 676, note; Common- wealth V. York, 676, note ; Commonwealth v. HUliard, 67S, note ; Commonwealth v. Meade, 679, note ; State v. Jackson, 679, note ; 950 INDEX. People V. Murray, 681, note; People v. Lombard, 681, note; 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 ease, 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 killing was 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 gestm by testi- mony tending to show immediate danger o'f 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 frota 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 different characters adapted to different places and localities. Hence, it is competent to enquire, whether \\itness is acquainted with the general character of the deceased for violence at the place where the difficulty occurred. Kcener'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 such overseer. Wesley's case, 319. 12. Evidence of the turbulent, insolent and impudent character of the deceased (a slave) toward white persons admitted, to raise presump- INDEX. 951 tion of a provocation, where the proof of the facts attending the homicide were circumstantial only. Tackelt'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 : SucU 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 aud 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 sitting down, when the prisoner shot and killed 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, Davies, 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. 952 INDEX. 22. The evidence in this case set out at length, and held that no such question could arise thereon. Ibid. 23. Before sucli 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 with it, as to justify the taliing of life in self-defence, or to ward_ofl great, iinpeuduig and imminent 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 tlie character of his wife, yet it seems that in such a case, such Ivnowledge ought to be afHrmatively proven. Ibid. 25. AVhere tlie 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 opj)ressive towards his overseers and tenants, was held properly ruled out. Tilly's case, 665, note. 26. The question of admitting evidence of character as presumptive evidence in various cases exliaustively discussed, and many authori- ties cited, in Bottoms v. Kent, 666-673, note. 27. Where the killing was in combat, both parties using deadly weapons, and the attack being mutual, evidence of the general character of th' 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 tlie habit of attaoldng others with dangerous weapons. [The facts are not stated, nor is any satisfactory reason, except lack of precedent, given for the ruUng.] Thawley's case, 675, note. 29. In a case where the evidence was conflicting as to whether the kEling was in combat and upon provocation, evidence that the deceased was a man of notoriously quarrelsome and fighting habits, and boasted of his powers as a fighter, was excluded. [But obseiTe 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 tlie mortal blow, evidence tliat the general cliaracter and habits of the deceased were those of a quarrelsome, fighting, vindictive and brutal man of great strength, was excluded. HiUiard's case, 678, note. 31. Where the killing was in combat, and the defendant offered evidence that the deceased advanced and seized him by the throat, and that a brother of the deceased stood by with an uplifted spade, tlie Court refused to permit him to prove that the deceased was an experienced and practiced garrotcr, and excluded medical testimony, that from llie manner of the death the deceased must have been a remarkabl}' 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 " not 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 killing, evidence that the deceased was a turbulent, violent and dangerous man, was admitted, and it was held error to refuse to instruct the jiu-y as to the 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 killing was done maliciously, or upon a well groimded apprehension of danger. Keene's case, 681, note. 3G. Such evidence will not be admitted unless the circumstances raise a 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 kUling was done by sui-prise, 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 wlU be admitted or excluded, discussed in Dumphey's case, 684, note. 41. Such evidence was held properly excluded where there was no evidence that tlie prisoner knew the man lie was killing. Keynold's case, 685, note. 42. Where the killing was in combat, and self-defence was urged in excuse, "the Court, for the pui'pose^ 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 killing was in self-defence. Ferrigan's case, 688, note. 44. Such e-vidence held proper in South CaroUna, 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 knew, or may reasonably be supposed to have known, such character. 2. The relevancy of such evidence must appear from the prior e'\'idence 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, put, see note criticizing this case.] Field's case, (Ala.), 091-695. 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 was a man of liigh 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; Bovide v. State, 19 Ga., 17 ; Ben v. State, 19 Ala., 19 ; Seibert's case, 686, note ; Franklin's case, 041 ; Commonwealth v. Ferrigan, 688, note ; Rex v. INDEX. 955 Clarke, 2 Stark. E., 243. Contra, Fahnestock's case, 548, note; Tilly'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 vrrong 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 difBculty 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. 5. And this although the slayer had been accustomed to carry such weapon — as much so as though he had prepai-ed 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 ; Wiltberger's case, 34 ; Thompson's case, 95 ; John Kennedy's case, 109 ; Riley and Stewart's case, 155 ; Bohan- non's case, 403; Carroll'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 kUling is justifiable. Thompson's case, 95 ; John Kennedy's case, 109 ; Riley and Stewart's case, 161 ; Bohannon's case, 403 ; CarroU'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 sufficient, if the intent be apparent though unreal. Ibid. Selfridge's case, 18 ; John Doe's case, 62. And see Appbabakces OF Danger. 5. Killing 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 flght 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 gruJge, 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 assailant. 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 kUling must have been necessary, to prevent tlie 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 justiiica- 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, where the evil may be prevented by 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 William Blackstone, that the law wUl 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'5; case, 38 ; 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 ; Riley 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 wUl every assault justify a battery. Gallagher's case, 720. 6. A party assaulted may strike, or use a sufficient degree of force to pre- vent the intended blow, without first retreating, but he must take 958 ■ iNDj;x. care 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 Thikd Persosts. See Justifiable Homicide. 1. Any person may interfere to prevent a felony. Eiley 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 kUl 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 jjarent and child, master and servant, etc. 750, note 1 ; Pond's case, 814. 6. Hence, a man may defend his family, 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 felonj-. 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 kills one to save the life of ttie 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, 753-4 ; Pond's case, 814. 12. Biggs' case, 744, examined, and the right to kiU to prevent or punish seduction or other violation of female chastity, considered. 764, note 7. DEGREE OP FORCE. In resisting unlawful arrest, see Arrest. 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 liouse 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. 3. A person is not criminally responsible, if death happens to ensue from necessary force used in his defence. Hiuchcliffe's case, 125, 126, note. 4. Degree of force must not in any case exceed the bounds of defence and prevention. Gallagher's case, 720, and note, 723. DUELLING. 1. Killin g in duel is miu-der. Hill's case, 207, 208 ; Evans' case, 340. DYING DECLAEATIONS. 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 tallsed 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. ERROR. See New Trial. 1. Supreme Court of Tennessee wiU weigh testimony and reverse, if it pre- ponderates against verdict. Copeland's case, 45. 2. Testimony of wife as to communicatipus of deceased husband, not objected to below, no ground of reversal in Texas. Hinton's case, 83. ESCiPE. 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 op 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. 3. But if not objected to below, not ground of reversal. Hinton's case, 83. 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 kill him. Carico's case, 389. INDEX. 6. Declarations of actor made at time of act, always part of res gestce. 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 all the evidence, in a trial for murder, which goes to show the state of ficling of prisoner and deceased toward each other. Mom-oe'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 refuse evidence that defendant had acted as prosecutor against deceased for embezzlement. Monroe's case, 468. 11. Evidence of lawsuits and ctuarrels 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 quantum, 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 case, 686, note. 15. 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 admitted in evidence, provided they afford any fair presumption as to the matter in issue. Keener's case, 552. 17. Any circutnstances 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 difficulty between deceased and a servant of defendant, not admissible. Dupree's case, 582. According with 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 killing 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 behalf of the accused. Goodrich's case. INDEX. 961 532 ; Monroe's case, 442 ; Keener's case, 539 ; Pridgen's case, 416 ; Campbell's case, 282 ; Rapp'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- upon fired a pistol at him, it was held, on trial of the husband for the assault, proper to give in evidence the occurrences of the preced- ing evening ; and it was error to tell the jury that whatever had occurred on the night previous could not amount to a justification or excuse. Biggs' case, 744. 21. Oji 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 gestae, 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 diflerent 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 Coiu-t refused to permit the defendant to contradict said testimony. Held, that said statements related to the res gestos, and their contradiction was competent. Ibid ; and see Goodrich's case, 582. EXCUSABLE HOMICIDE. See the various titles in this index. FELONIOUS ASSAULTS AND ATTEMPTS— RESISTANCE OP. See Defence. FEMALE CHASTITY. 1. Killing to prevent or punish violation of. Biggs' case, 744 ; Staten's case, 753, note ; 754, note 7. 962 ij^DEx. 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. Jolm Kennedy's case, 110, Dillon, J. GENERAL PROPOSITIONS. 1.- Danger of accepting, as rules for action. SeUridge'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, 476 ; Patten's case, 826. GREAT BODILY HARM. 1. Defined. 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 killing becomes necessary to save life. Burke's case, 126 ; Benham's case, 115. HABEAS CORPUS. 1. ^VTiether a homicide be justifiable or excusable on the ground of self- defence, or other fects existing at the time, cannot be determined on an enquiry under a writ of habeas corpus. McLeod's case, 784. HABITATION— DEFENCE OF. 1. Expelling trespasser from, with a kick, so that he die, manslaughter. Wild's case, 111, note. 2. Killing mere trespasser in habitation, not excusable. Decklott's case, 112-115, note. 8. Unnecessary kiUiug intruder in, in combat, manslaughter. Robertson's case, 153. 4, KiUing 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 riUe 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 ■until he finds himself out of all danger. Seifridge's case, 3, 4; Young's case, 402, note ; Collins' case, 595, note ; note to Stoifer's case, 230, et seg.; Carroll's case, 804; Pond's case, 814; Patten's case, 826. 56. In other cass, the law requires the use of every precaution consistent -with safety, even to flight itself, hefore taking life ; imless, indeed, the party assailed has the protection of his house, which excuses him from retreating further ; and this, it seems, is the only diflerence 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 mere civil trespass upon a man's house, unaccompanied with such force as 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 ielouiovis destruction of his prot)- •erty, 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. S. 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 tlie 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 efforts 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 the 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 his mother, he was excused from so doing. Ibid. 14. The defendant was justifiable in acting for his defence according to thcr 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 mean;:, even with a dangerous weapon, as he believed to be necessary for protection ; and if such means resulted in the death of any of the supposed assailants, the homicide would be excusable. Ibid. 13. 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 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 time?, 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 abus.ed 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 commanded him not to enter ; and continued the pursuit, until the prisoner had run into a room from which there was no egress, whereupon he turned and shot the deceased, then but four or Ave 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 cither degree, but was a case of excusable homicide or manslaughter ; — excusable homtcide, if the jury were satisfied, that the defendant being in his own house, had reason to believe, and did believe, from Huljbard's actions and manner, and vyhat had already taken place, that it was necessary to shoot the assailant to save his own lift, or to protect liimself 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 caused by the first assault, coupled with the then threatened repetition of the attack, and that but for these, he woidd. not have fired thp fatid shot. Hurd's case, 840. INDEX. 965 If). Not more than half an hour, and probably not more than fifteen minutes, having elapsed bct^v■een the first and second parts of the transaction, as above stated, it is lield, that the whole is to be taken together as one transaction, and as constituting the res gestae,. It is not proper to treat them as two distinct transactions, with an interval, for the pm-pose 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. G-i-escliia's case, 854. 18. It was not erroneous for the Court to instruet 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 aiid force used, as bearing upon that question. Ibid 19. .\nd the jury might properly further consider, in determinmg 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. :20. [f the vise of a deadly weapon was not necessary, or apparently neces- sary, 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 prisoner's room with a quarrelsome intent. Ibid. Carroll's case, 804 ; Pond's case, 814. -21. Homicide in defence of habitation under the Illinois statute; instruc- tions held erroneous ; great bodily harm. Reins' case, 858-9, note. ii. Attack upon habitation a provocation, which will reduce a killing to manslaughter ; not so a trespass upon other property. 861, note 2. 2:!. Unlawful 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- fully and peaceably entered. 862, note 5. HOMICIDE. See MuEDBE ; MANSLAUGHTEn, and the various other titles. I. Pee Infobtunium. See Caution to be Exbeciskd 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 who invade private property HinchcUffe's case, 125, 126, note. 966 INDEX. 3. Statutory provisions of several States and Territones relating to. Note, 125. 4. To Idll a third person accidentally, while performing a necessary act of defence. 783-84, note. f II. Sb Dbfbndkndo. 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 homicide ae defendendo at common law, fully stated and discussed in Pond's case, 814. See also for a full discussion, RUey and Stewart's case, 155. 3. 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 the law, in the encounter which resulted in the homicide ; (2) that at the time of givuig 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 desiga being accomplished. Lamb's case, 646, Smith, J. HONOR. 1. Killing in defence of, not justifiable. Selfridge's case, 24; Benham'a 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 calculated 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 ; Shorter's case, 256. 4. Instruction relating to self-defence which is misleading, when applied to the particular facts of the case, is erroneous. Benhani'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 Covu^; did not err in omitting to instruct the jury on the latter point- Scott's case, 163; Daniels, J., dissenting. INDEX. 967 7. VThere a boy sixteen years old shot and killed a man who had attackefd him with an ox-gad, the jury should have been told to consider the physical capacity of the parties, the size and character of the ox-gad, and tlie manner in which the deceased threatened to use it, anil in which he entered upon the execution of his threat. Benham's case, 121. 8. Error to instruct the jury, that if they believed A. committed an aspunlt 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 T>. Kennedy's casp, 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. Camptell'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 tell 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 instruction 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 killing, is equivak-nt to telling them that they are authorized to consider of antecedent 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 jiu-y, 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 ijfDEX. 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, 9G ; Lamb's case, 646 ; and People V. WilUams, 32 Cal., 28. 22. W hether the taking away and detaining of a man's children is a felony under the Alabama statute, or a trespass merely, depends upon the intent with wliich they are talsen ; 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 cir- eumttanees, would not have amounted to a felony. Oliver's case, 725. IMMINENCE OF THE DANGER. See Appbabances of Dangeb. 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 liilling, 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, H 1019, 1020. 4. The liilling must take place while the person killed is in the very act of making an unlawful and violent attack, and under sucli circum- stances, that the person assailed cannot resort to other legal means to save and protect himself, except retreating or running, which \v is not bound to do. Isaac's case, 176. But see Philip's cas-e, 383 ; Carico's case, 389 ; Boliannon'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. Tlie only general rule whicli a Court can witli 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 eacli particular case ; and of these the jury must be the judges. Cotton's case, 315, 316. According with Robert 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 daiigrr," we mean such overt, actual demon- stration as would make the killing apparently necessary to self- preservation. Evans' ease, 336. f*. The mere apprehension or belief that a person is about to arm himself and return to enter into a combat, does not show present and imminent danger. Ibid, 340. INDEX. 969 9. Every man may protect his life at whatever hazai'd ; but the danger must be present, immediate and iinmiuunt. Head's case, 341. 10. It must be apparent and imminent. The cLrcumstauces must be such as to autliorize the opinion that the deadly purpose then exists, and tlie fear that it will at that time be executed. Hippy's case, 345. 11. The killing must have been done under an honest and well founded belief that it was absolutely necessary to kill the deceased at that moment to save himself from a like mjmy. William's case, 349. 12. Where the proof showed that the defendant was, when drunk, a blood-thirsty and reckless bully ; tliat 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 liilling ; that ho had, on one occasion, assailed the defendant with a deadly weapon, and dri\'en 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 ; tliat on the day, and at the time of the killing, he was drunk and armed with a six-shooter ; that the defendant liuew 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, althougli tlie 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 drunken 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 lying in wait, from murder in the first to murder in the second degree. Lander's case, 366. 14. ifilling is not excused in prevention of a threatenel 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 liave reasonable grounds to believe that such is the case. Ibid. McLeod's case, 784. Contra, Philips' case, 383; Carico's case, 389 ; Bohannon's case, 395. 15. The questions are, was the prisoner in present danger of great bodily liarm 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 Ms threats into execution, etc. Philips' ca,se, 383. 17. It seems that a person who has once escaped from an attempted assas- sination, and his enemy continues his tlireats against him, may kill such enemy, wherever he may chance to meet him. Philips' case, 383 ; Carico's case, 389. 970 INDEX. 18. UnJer certain circumstances of threats and hostile demonstrations, it was held erroneous to instruct that the defendant was not justified in shooting 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 threats, 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 defendant reasonably believes that the presence of his enemy puts his life in continual peril, and that he can escape it in no other way. Bohannon's case, 395. 20. Erroneous 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 be be imminent or threatening. Dupree's case, 583. 23. What degree of danger will 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, 646, Davies,. Ch. J. ; Rippy'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. Mc Leod's case, 784 ; Rippy's case, 345; Williams' 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 case, 826. 29. The foregoing rules, limiting the right of defence, apply to a-state 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. Mc Leod's case, 784, INDEX. 971 INJURINy blows inflicted, although at the iastant 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. 20. To slay one taken in the act of adultery with the slayer's wife. T-o."), note c. 21. To attack another, and, the attack. being returned with a violence di.s- proportioned to the original assault, to kill him under the transport of passion thus excited. Hill's case, 205. 22. To enter voluntarily into a fight not intending to kill, and without first declining further combat, killing 'antagonist 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 jjrovocation, 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 sufflcient time had elapsed for the blood to cool. Ibid, 206. 25. "Words of reproach, contemptuous gestures, etc., will be not reduce a killing with deadly weapons to manslaughter. Ibid. 26. 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. Not obliged to retreat before he can justify killing seaman. Ibid. MAXLMS. Actus non facit reum, nisi mens sit raa,. Note, 2.52, 25.1, 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— 1. To kill through particular malice or general depravity. Selfridge's case, 16. 2. 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. Smith's 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. ^. lu a combat wichout weapons, to draw and kUl antagonist vvith deadly weapon. Scott's case, 163. 7. In the second degree, in Texas, to IdU with a dagger, under circum- stances which would otherwise make the killing manslaughter. Isaac's case, 175. «. 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. 11. 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 to kUl, but only an intention to cut, wound, or do great bodily harm. Ibid. 14. To seek and provoke a difficulty, 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 kilfing another, and to kUl 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, 366. 19. To kill one who interferes to stop a brawl, and who exercises no un- reasonable force. Dill's case, 738 976 INDEX. 20. To kill one who interferes to prevent felony. -Dill's case, 738, il. To kill one because he has committed adultery with wife. 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 COMBAT. 1. Defined. Tate's case, 230, note ; Stofier's case, 218 ; United States v. Mingo, 2 Curt. C. C, i: 2. If 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. 6. A conflict 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. Stofler's case, 213. NECESSITY. 1. Homicide justified or excused on the ground of necessity merely. State V. Wells, 145 ; Pennsylvania v. Robertson, 152 ; Shippey\s case, 133; Wiltberger'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 destrucfion, or some very great injury. State v. Wells, 145. 3. The means used to jjrevent an impending injury must be only such ;is are necessary under the circumstances. Ilinton's ease, 87, S8 ; Thompson's case, 95. 4. There can be no successful setting up of self-defence, unless the necessity for taking life was actual, present, urgent — the only reasonable resort of the party to save his own life, or his person from dreadful harm, or severe calamity, felonious in its nature. Benham's ease, 122. 1 INDEX. 977 5. To justify an act, as in self-defence, there 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; ofj death or great bodily injury. Drum's case, 186. 10. Necessity, the true criterion. Ibid, 187. NERVOUS FEAES. 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 excitability not admissible on behalt- of prisoner. Shoultz' 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 eases, 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, althougn the judge may have directed the jury improperly, or mky 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 conviction of murder in tiie second degree in this case is reversed, upon an examination of tlie proof adduced. Cope- land's case, 41. 4. Tiie Supreme Court of Mississippi will not, in a capital case, reverse because ot an instruction on the 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. 0. 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 sufficient 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. 2. He who provokes a quarrel, and, being therein overmatched, kills hi? 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 Hbellous publication, however aggravat- ing, will 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 IdUing him. Hays' case, 492. ■i. Nor win it, if he fires a pistol. Lingo v. State, 515, note. 7. So, a person who puts himself in the wTong 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 kUls 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 and by the use of the means necessary to repel such excessive force, so used or impending. Ibid. INDEX. 979 9. See to the same effect, Rex v. Willoughbj', note, 90 ; Lyon v. State, 91. And upon the principle that the exercise of a'^legal right can never be deemed a provocation, such as will mitigate an act of violence, see State v. La wry, 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 the 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 provoke a difficulty or bring on a quarrel. Benham's case, 122; Adams' case, 208; Linney's case, 221, 222, note ; Stonecifer's case, 222, note ; Vaiden's case, 223, note; Roach'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 means: 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, end, being assaulted with fi^^ts 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, v 203. Contra, Stoflfer'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. It). Otherwise after he has succeeded in withdrawing from the place and retreating to the waU. Ibid. 17. How far a man parts with his right of defence by seeking or provoking an aflray, considered in a note to Stoffer's case, 220, et seq. IS. Restoration of right of perfect defence by withdrawing from combat and retreating. Note, 227, et seq. 19. To make the plea of self-defence available, the defendant must be with- out fault, snorter's case, 258 ; Smith, J., in Lamb's case, 646. :i(J. The right of attack for the purpose of defence, does not arise until the party claiming such right has done everj'thing in his power to avoid its necessity. Smith, J., in Lamb's c;ise, 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 diflSculty and brought upon himself the danger. Hays' case, 494. Z OFFICER. See Escape. 1. Killing prisoner by. Forster's case, 143. OLD GRUDGE. 1. Where there is a fresh provocation, a killing wiU not be ascribed to an old grudge ; and wiU therefore be manslaughter, and not murder. Copeland's case, 57 ; Baker's case, 78 ; Hill's case, 203 ; WUliams' case, 249. OPINIONS OF WITNESSES. 1. Defendant's justification must depend upon fads 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 Anlerson, and he wUl kill 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 diflSculty?" 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 Barfield's case, 624. and note e. PROPERTY, DEFENCE OF. [This ti:le refers to defence of property other than the habitation.l 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 the 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 manifostly intends to kill the owner of the property INDEX. 981 if necessary to accomplish iiis purpose, and the owner shoots and kills 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. S. Unless the trespass involve an attack upon, or combat with, the owner. 903, note c, clause 2. II. By Spring-guns, Poison, Etc. S. 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 kill 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 hurglary 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 dls- pkraged ; 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, S78 ; and see Gray v. Coombs, 867. 982 INDEX. 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 ; Gray.v. Coombs, 867 ; Pond's case, 814 ; 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 in 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, iipou a special verdict, that the gun- wero y.o set as not to constitute a nuisance. Ibid. 34. The English cases relating to defence of property by snring-guns, etc.,, reviewed. 903-904, note 3. PURSUIT. See Retreat. 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 ei seq. 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. Stofifer'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 may reasonably be- Heve himself secure from all danger. Young's case, 401, note. REASONABLE BELIEF. See APFBARANCES. INDEX. 983 REASONABLE DOUBT. See Burden and Quantum op Proof. 1. Defined. Drum's case, 189, 190. RETREAT. 1. Not always a condition which precedes the right to kiU in sell-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 doctririC examined at length in a note to Selfridge's case, 28 et seq., and in a note to James D. Kennedy's case, 139 et s:q. 7. Master of Tcssel not obliged to retreat, in order to justify killing sea- man. 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 death or enormous bodily harm. Selfridge's case, 17, 18; John Doe's case, 64; Thompson's case, 95; John Kennedy's case, 109 ; Benham'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 wUl 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 the 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 sliaU 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 noti^felonious in its character. Pond's case, 814. 18. A person who first makes a malicious assault restores his fuU right of defence by withdrawing from the combat and retreating ks far as he can. Stoffer's case, 213 ; Hittner's case, 236. 19. Listructions to the jury should be so framed as to giFe 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. Carioo'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, SuUivan's case, 65; Shippey's case, 133. 26. Homicide se defendendo is excusable at common law, when it occurs in a sudden afiray, 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 resists 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- versary's way, and he has no right 1o 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 retreait 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 tlie 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 ; Greschia'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 ot. danger. Pond's case, 814. RIOTS. 1. Duty of interfering in suppression of, and justification of homicide in such cases. 737, note ; Pond's case, 814. SELF-DEFENCE. See Defence ; Occasio>' Pkoduced 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 be at least an apparent neeessity 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 hlaxneahlB &nA. barely excusable. Eiley and Stewart's Ciise, 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; CoUins' case, 595, note ; Young's case, 402, note ; Note to Stoffer's case, 230 ei seq. ; Pond's case, 814 ; Patten's case, 826 ; CarroU's case, 804. i5. The right of self-defence is not derived from society, but is a right which every individual brings with him into society, and retains in society, except so far as the laws have curtailed it. Gray v. Coombs, 867 ; Riley 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, wiU ex- cuse a homicide on the ground of self-defence. Selfridge's case, 23. 986 INDEX. SELF-P RESERVATION BY DESTRUCTION OP INNOCENT PERSON. 1. Seamen nave no right, even in cases of extreme peril to their 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. Holmes' 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, OF 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 mtli 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 wUl 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 witii an ox-gad, held 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 killing was in com- bat. Mead's case, 679, note ; and see 696, note, where this case is criticised by the editors, STATUTES. 1. Of Arkansas, California, Colorado, Dlinois and Dakota on justifiable and excusable homicide cited. Selfridge's case, 16, note. 2. Of Iowa, Revision of 1860, H 4442, 4»43, have not changed the common law on the subject of lawful resistance. John Kennedy's rase, 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^ 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. Jolinsou's case, 416 ; Sloan's case, 516 ; Scoggins' case, 596 ; Monroe's case, 468 ; Howell's case, 469, note ; Dukes' case, 573, note. , 2. The true distinction in regard to the admissibility of evidence of threats, communicated and uncommunicated, stated. Keener's case, 554. 3. The 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, 554, 555; Ford's case, 555, note. Contra, Jackson's case, 520, note ; Sloan's case, 516 ; Hays' case, 492. 4. Threats and menaces of the parties to be considered by the jury hi determining their situation at the time of the killing. Seibert's'case,^ 686, note. II. Communicated. 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' case, 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. Myers' case,, 437. 11. Evidence of, inadmissible, where the record did not show when they were made, and where the prisoner sought the difficulty and killed' the deceased under circumstances showing express malice. Hays' case, 492. 12. Otherwise if deceased had attacked defendant, or endeavored to get 988 INDEX. 13. Such threats must be 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 liilliug. 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 tlu-eats were communicated to the defendant, they vnll not be excluded as being too stale or remote. Sloan's case, 516. 20. If the tlureats were made shortly before the killing, and the deceased was armed to carry out such threats, they are admissible as part of the res gestce. Ibid. 21. The doctrine of communicated tlireats 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 tlireats to that of the kUllng. 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 tlu-eats 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 INDEX. 989 by a party of rioters, who had broken into the house and abused the inmates, that tliey would return some other uight and break in again, might be received and submitted to the consideration of the jury; imder the histruction of the Court ; although ii seems that for the rejection of such evidence, where it was not shown that tlie deceased was one of the party who made the threats, a new trial would not be granted. Rector's case, 796, Beoxson, J., dissenting. a9. Killing in defence against riotous attack upon habitation — evidence of a previous beating, and that the rioters then threatened that thej' would return and tear defendant's house down, admitted. Meade's case, 798. m. Uncommunicatbd. 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 ; Keener'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, note ; 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, unless it appears that he had knowledge of it, Wiltberger'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, such 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 ; HoUer's case, 565. 33. Made shortly before the killing, the deceased being armed to carry them out, admissible as part of the res gestas. Sloan's case, 516 ; 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, noce. The same point substantially in Riddle v. Brown, 538,. note. •990 IKBEX. 38. On a triiil for homicide, where tiie evidence that tiie deceased hart pos- session of a deadly weapon on the day preceding the fatal affray is contradictory. Holler's case, 565. 39. Admissible to corroborate evidence of communicated threats previously admitted. Holler's case, 569 ; Cornelius v. Commonwealth, 569, note. 40. Proof of threats made several days before the killing and not com- municated, held not admissible in Atkin's case, 576, note ; and see Coker's case, 578, note. 41. Evidence of, held properly ruled out, there being nothing in 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. Povs^ell'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 otlier 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 killing 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 rea geatas, held properly excluded in Chambers v. Porter, G12-13, note. [But this case is overruled in the same State. Robert Jack- son's case, 476, and Little's case, 487.] 47. Evidence of uncommunicated threats made six weeks or two month- before the killing were excluded in a case wliere the killing was deliberate, and where.there was no demonstration against the aecu>ed at the time of the killing, nor any ground for supposing himself in danger. Newcomb's ease, 613, note. 48. Siiili evidence, in general, admissible only when so recent as to con_ stitute a part of the res geatce, Carroll's case, 804. 49 AVliere the deceased entered the prisoner's house after having been for- bidden to do so, but the proof did not disclose that he offered or attempted any personal violence against the prisoner, it was held, that evidence of such uncommunicated threats was not admissibli' to show the character of the conduct of the deceased in entering tlie house, after he had been warned not to do so. Ibid. IV. Effect of. 50. Do not justify an assault, much less the taking of life. Evans' ca-e, 335, 336 ; Lander's case, 360 ; Johnson's case, 413. INDEX. 991 51. Afford 110 excuse for homicide, unless at the time of the IcUUng an effort was apparently being made to carry them into execution. Head's case, 341 ; Rippy's case, 345 ; WiUiams' case, 349 ; Lander's case, 866-, Johnson's case, 413 ; Pasch. Dig. Tex. Stat, Art. 2270; Robert Jaclsson's case, 476. 52. No extenuation of a homicide committed by lying in wait with a deadly weapon. Lander's case, 366. 53. Do not, under the Texas statute, reduce a homicide to manslaughter. Johnson's case, 413 ; Wall's case, 614r-15. 54. 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. Scoggins' case, 596. >, ' TRESPASSERS, EXPULSION OF. From Habitation, see Habitation. Prom other Property, see Pkopekty, 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. Zeller'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 oflBcer. Hurd's case, 840 ; and see Barfield's case, 624, note. WRONG-DOER. Defence by; see Occasion Produced by Slayer.