other consequences followed on the idea of guilt.480 Now, however, it is not punishable at all. Except as respects the duty to retreat, the slayer is in the same position as in the case of justifiable self-defense. As was stated above, the affray may arise in various ways. It may arise from resenting and returning a blow, or from resenting insulting words, or from resisting a trespass on land or goods, or from resisting an unlawful arrest. None of these provocations justify or excuse a homicide, and some of them do not even reduce it to manslaughter. If, however, in any of these cases it becomes necessary for one of the parties to take the other's life to save himself from death or great bodily harm, and if he does so, the homicide is excusable, except as explained in the sections following. 481

279. Imminence of the Danger.

A homicide is not justifiable or excusable on the ground of self-defense unless it is apparently necessary to save the life of the slay

480 Ante, § 273.

481 4 Bl. Comm. 186, 187. See White v. Territory, 3 Wash. T. 397; Noles v. State, 26 Ala. 31, 62 Am. Dec. 711; Pond v. People, 8 Mich. 150.

er, or prevent some other felony, like rape or robbery, or to save him from great bodily harm. The apprehension of no other danger will either justify or excuse the resorting to so extreme a measure as the taking of life.482 It is also necessary that the danger shall be apparently imminent at the time of the homicide, and not merely prospective. A man's bare fear, however well grounded, that another intends to kill him or do him. great bodily harm, will not justify or excuse his killing the other, unless there is some overt act indicating a purpose to immediately

482 Napier's Case, Fost. C. L. 278; Creighton v. Com., 84 Ky. 103, 4 Am. St. Rep. 193, Beale's Cas. 339; Greschia v. People, 53 Ill. 295; Pierson v. State, 12 Ala. 149; Jackson v. State, 77 Ala. 18; Dolan v. State, 81 Ala. 11; Noles v. State. 26 Ala. 31, 62 Am. Dec. 711; State v. Shippey, 10 Minn. 223, 88 Am. Dec. 70; State v. Wells, 1 N. J. Law, 424, 1 Am. Dec. 211; Com. v. Drum, 58 Pa. St. 9; Jones v. State, 76 Ala. 8; Logue v. Com., 38 Pa. St. 265, 80 Am. Dec. 481; Meurer v. State, 129 Ind. 587; and cases cited in the notes follow. ing.

The killing need not have been necessary to save the life of the accused. It is sufficient if it was necessary in order to save him from great bodily harm. State v. Benham, 23 Iowa, 154, 92 Am. Dec. 417.

carry out such intention.483 Thus, the fact that a dangerous man has threatened to kill another on sight, and that the other has heard of the threat, or mere verbal threats at the time, will not justify him in taking his enemy's life, unless there is some overt act indicating a purpose to immediately put the threat into execution.484 The fact that he knows that his enemy is armed is not enough,

488 U. S. v. Outerbridge, 5 Sawy. 620, Fed. Cas. No. 15,978; State v. Scott, 4 Ired. (N. C.) 409, 42 Am. Dec. 148; Harrison v. State, 24 Ala. 67, 60 Am. Dec. 450; State v. Cain, 20 W. Va. 679; State v. Evans, 33 W. Va. 417; State v. Abbott, 8 W. Va. 741; State v. Shippey, 10 Minn. 223. 88 Am. Dec. 70; Pierson v. State, 12 Ala. 149; Dolan v. State, 81 Ala. 11; Jackson v. State, 77 Ala. 18; Stoneman v. Com., 25 Grat. (Va.) 887; Field v. Com., 89 Va. 690; State v. Benham, 23 Iowa, 154. 92 Am. Dec. 417; State v. Sullivan, 51 Iowa, 142; Greschia v. People, 53 Ill. 295; Logue v. Com., 38 Pa. St. 265, 80 Am. Dec. 481.

"The danger must be imminent, impending, present, not prospective, not even in the near future." Dolan v. State, 81 Ala. 11.

184 State v. Cain, 20 W. Va. €79; State v. Evans, 33 W. Va. 417; State v. Scott, 4 Ired. (N. C.) 409, 42 Am. Dec. 148; Mize v. State, 36 Ark. 653; Parsons v. Com., 78 Ky. 102; Wall v. State. 18 Tex. 682, 70 Am. Dec. 302; State v. Sullivan, 51 Iowa, 142.

if the latter shows no present intention to use his weapon." 485 Certainly, a homicide can never be justifiable or excusable on the ground of self-defense, if, at the time of the killing, the deceased had thrown away his weapon and was turning away.*

486

It is the province of the court to instruct the jury what the law is in relation to the right of self-defense. Whether, under the law as thus laid down, a necessity existed at the time to take life in order to save life or prevent grievous bodily harm, and whether the killing, under the circumstances of the particular case, was prompted by such necessity, or by some other motive, is to be determined. by the jury.486a

Assault not Threatening Death or Great Bodily Harm.-If a person is assaulted, but not in such a way as to endanger his life or threaten great bodily harm, he may oppose force to force, and if, in the conflict which

485 Harrison v. State, 24 Ala. 67, 60 Am. Dec. 450; Roberts v. State, 65 Ga. 430; Goodall v. State, 1 Or. 333, 80 Am. Dec. 396, State v. Brittain, 89 N. C. 481.

486 Meurer v. State, 129 Ind. 587.

486a Erwin v. State, 29 Ohio St. 186.

1

ensues, his adversary threatens to kill him or to inflict great bodily harm, he may, after retreating as far as safety will permit, kill him to avoid the threatened injury, and in such a case the homicide will be excusable on the ground of self-defense.487 But a simple assault not apparently endangering life nor threatening great bodily harm will not justify or excuse his killing his assailant or using a deadly weapon. Under such circumstances the homicide will be manslaughter, at least. 488

47 Ante, § 277.

488 Reg. v. Hewlett, 1 Fost. & F. 91, Beale's Cas. 329; Creighton v. Com., 84 Ky. 103, 4 Am. St. Rep. 193, Beale's Cas. 339; State v. Thompson, 9 Iowa, 188, 74 Am. Dec. 342; Com. v. Drum, 58 Pa. St. 9; Grainger v. State, 5 Yerg. (Tenn.) 459; Davis v. People, 88 Ill. 350; State v. Cain, 20 W. Va. 679; State v. Evans, 33 W. Va. 417; Myers v. State, 62 Ala. 599; State v. Rogers, 18 Kan. 78. 26 Am. Rep. 754; Honesty v. Com., 81 Va. 283; Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286; and other cases cited in note 479, supra.

In Napier's Case, Fost. C. L. 278, the defendant was indicted for the murder of his brother, and the circumstances as they appeared in evidence were as follows: The defendant on the night of the homicide came home drunk. His father ordered him to go to bed, which he refused to do,