party may repel force by force in defense of his person, habitation, or property, against one who manifestly intendeth and endeavoreth by violence or surprise to commit a known felony upon either. In these cases he is not bound to retreat, but may pursue his adversary till he findeth himself out of danger, and if, in a conflict between them, he happeneth to kill, such killing is justifiable. Where a known felony is attempted upon the person, be it to rob or murder, here the party assaulted may repel force by force

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and, if death ensueth, the party will be justified. A woman, in defense of her chastity, may lawfully kill a person attempting to commit a rape upon her. * * * An attempt is made to commit arson or burglary in the habitation; the owner, or any part of his family, or even a lodger with him, may lawfully kill the assailants for preventing the mischief intended." 181

(c) Defense of One's Property.—A man not only has a right to defend his life and his person, but he also has a right to defend

181 Fost. C. L. 273; Beale's Cas. 326; Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286, Beale's Cas. 330. See post, §§ 276-285, where the right of self defense is treated at length.

his property. He cannot take another's life, or inflict grevious bodily harm, merely in defense of property, but he may use necessary means short of this, and his acts in such necessary defense will not be a crime either at common law or under a statute.182

Where a statute imposed a penalty upon any person who, between certain days, should in any way destroy mink, beaver, otter, etc., it was held that the statute did not apply to one who killed minks between such days, where he did so in apparently necessary defense of his poultry.183 The same principle has been applied to the killing, trapping, or otherwise injuring dogs, hogs, and other animals in defense of property.184

(d) Necessity for Defense.-To give rise to the right of defense, whether of life, or of the person, or of property, there must be necessity for defense, and the acts done in de

182 Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339.

183 Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339;

184 Hodge v. State, 11 Lea (Tenn.) 528, 47 Am. Rep. 307; Thompson v. State, 67 Ala. 106, 42 Am. Rep. 101; Lott v. State, 9 Tex. App. 206. And see the note in 47 Am. Rep. 310.

fense, to be justifiable, must not go beyond the necessity.185 "When force, purely defensive at first, increases and becomes more than is reasonably necessary for defense, the excess is aggressive, and not defensive." 186

To justify the defensive destruction of human life, the danger must be, not problematical and remote, but evident and immediate, or imminent.187 And so it is in defense of property. 188 But imminence of danger, as was said in a New Hampshire case, "is relative and not absolute, and is measured more by the nature of the consequences than by the lapse of time. It is not a condition of things in which the party whose person or property is imperiled is allowed to anticipate, and prevent the impending mischief by making a deadly defense only a precise and invariable number of seconds, minutes, hours, or days before the mischief would happen without such defense. The law does not fix

185 Creighton v. Com., 84 Ky. 103, Beale's Cas. 339; Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339; State v. Rheams, 34 Minn. 18.

186 Aldrich v. Wright, supra.

187 Post, § 279.

188 Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep.

the distance of time between the justifiable defense and the mischief, for all cases, by the clock or calendar. The chronological part of the doctrine of defense, like the rest of it, is a matter of reasonableness; and the reasonableness depends upon circumstan

Apparent Danger.-In determining whether an act claimed to have been done in selfdefense was necessary, the question is not whether there was real necessity, but whether there was reasonably apparent necessity. This is true as respects both defense of life190 and defense of property.191

Elsewhere Treated.-The whole subject of self-defense and defense of property will be fully treated, and to better advantage, in dealing with homicide and assault and battery.192

189 Aldrich v. Wright, supra. This was a case in which the defendant killed minks in defense of his poultry, and set up defense of property in an action for a penalty under a statute against destroying minks between certain dates.

190 Shorter v. People, 2 N. Y. 197, 51 Am. Dec. 286, Beale's Cas. 330; Campbell v. People, 16 Ill. 17, 61 Am. Dec. 49; Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep. 339.

191 Aldrich v. Wright, 53 N. H. 398, 16 Am. Rep.

192 Post, §§ 276-288.

To treat it further here would result in useless repetition.

81. Defense of Others.

There are many cases in which a person may be justified in interfering in defense of others than himself. If a man is assaulted by another, his servant may interfere in his defense, and vice versa.193 The same is true of parent and child.194 And in the case of attempted arson or burglary, a guest or lodger may interfere and act in defense in the same manner as the owner himself might do.195

As was shown in a previous section, any person may lawfully interfere, and even take

193 1 East, P. C. 289; Fost. C. L. 273, Beale's Cas. 326, 343; post, §§ 215, 288.

194 Reg. v. Rose, 15 Cox, C. C. 540, Beale's Cas. 342 (where a son shot his father in defense of his mother); Campbell v. Com., 88 Ky. 402 (where it was held that a father has a right to defend his daughter against an assault and battery by her husband); Com. v. Malone, 114 Mass. 295, (where it was held that an assault and battery by a mother to prevent an indecent assault upon her sixteen-year-old daughter was justifiable). And see post, §§ 215, 288.

1951 East, P. C. 290, Fost. C. L. 273; Beale's Cas. 326, 343; post, §§ 287, 288.