ter shot and killed him. Upon this evidence the court instructed the jury to acquit the defendant if he acted in necessary self-defense, "provided he used all means in his power otherwise to save his own life, or to prevent the intended harm, as retreating as far as he could," etc. The defendant was convicted, but on writ of error the judgment was reversed because the charge required him to retreat, even though the deceased had feloniously assaulted him without fault on his part. The court reviewed the authorities, and properly drew the distinction between justifiable self-defense and excusable self-defense. "A true man," it was said, "who is without fault, is not obliged to fly from an assailant who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm."504 Cases Ignoring This Distinction.-Some of the courts have refused to recognize this distinction, clearly as it is established by authority at common law, and have held that the assaulted must retreat in all cases, if he can safely do so, though the attack upon person 504 Erwin v. State, 29 Ohio St. 186, 23 Am. Rep. him may be felonious, and though he may himself be free from fault.505 Retreat in One's House.-The rule that a person who is assaulted without felonious intent, or in some states in all cases, is bound to retreat, if he can do so with safety, before taking the life of his assailant to save himself from death or great bodily harm, does not apply where a man is assaulted in his own house. In such a case he is not bound to retreat, even though by doing so he might manifestly secure his safety, but he may stand his ground, and take his assailant's life if it becomes necessary." 506 505 State v. Donnelly, 69 Iowa, 705, 58 Am. Rep. 234, Beale's Cas. 338; State v. Rheams, 34 Minn. 18; Com. v. Drum, 58 Pa. St. 9; People v. Sullivan, 7 N. Y. 396. 506 1 Hale, P. C. 486; State v. Middleham, 62 Iowa, 150; State v. Donnelly, 69 Iowa, 705, 58 Am. Rep. 234, Beale's Cas. 338; Pond v. People, 8 Mich. 150; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200, Beale's Cas. 348; Jones v. State, 76 Ala. 8; State v. Harman, 78 N. C. 515. A man's place of business is deemed his dwelling, for the purposes of this doctrine. Jones v. State, 76 Ala. 8. The principle applies as between partners, joint tenants, and tenants in common. Id. 282. Effect of the Accused being the AggressorJustifiable Self-Defense. In order that a homicide may be justifiable on the ground of self-defense, it is clear that the accused must not have caused the necessity to kill by his own fault. If he was himself in fault in bringing on the difficulty, as where he made the first assault or otherwise provoked the difficulty, whether with or without a felonious intent, the homicide may under some circumstances be excusable,507 but, strictly and accurately speaking, it cannot be said to be justifiable. Excusable Self-Defense.-There are some decisions to the effect that one who is himself the aggressor, or who otherwise brings on or provokes a difficulty, whether by acts or words, will not be excused for afterwards killing his adversary in self-defense, even though he may not have been actuated by malice in bringing on the difficulty.508 The 507 See the cases cited in the notes following. 508 State v. Parker, 106 Mo. 218. See, also, Jackson v. State, 81 Ala. 33; Baker v. State, 81 Ala. 38; Judge v. State, 58 Ala. 406, 29 Am. Rep. 757; Logue v. Com. 38 Pa. St. 265, 80 Am. Dec. 481; State v. Neely, 20 Iowa, 108; State v. Benham, 23 Iowa, 154, 92 Am. Dec. 417. better opinion, however, is against this view, and in favor of the doctrine that one who commits an assault without malice, or otherwise provokes a difficulty without malice, and thereby brings on a conflict, may withdraw from the conflict, and if he does so in good faith, and in such an unequivocal manner as to show his adversary that he desires to withdraw, and his adversary follows him, and attempts to kill him or do him great bodily harm, he has the same right of self-defense as if he had not originally been the aggressor. If, however, he does not withdraw, or offer to withdraw, he cannot successfully plead self-defense, but will be guilty of manslaughter at least.510 509 509 1 Hale, P. C. 428; Fost. C. L. 273, Beale's Cas. 326, 328; 4 Bl. Comm. 185, 186; Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, Beale's Cas. 334; Evans v. State, 44 Miss. 762; Vaiden v. Com., 12 Grat. (Va.) 717. 510 Adams v. People, 47 Ill. 376; Greschia v. People, 53 Ill. 295; State v. Linney, 52 Mo. 40; Logue v. Com., 38 Pa. St. 265, 80 Am. Dec. 481. Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, Beale's Cas. 334. Compare People v. Batchelder, 27 Cal. 69, 85 Am. Dec. 231. If a person resists a lawful attempt to arrest him, and kills the officer in the conflict which en 283. Original Assault with Malice. It has been held by some courts that even when a man assaults another with malice, and afterwards kills him, he may successfully plead self-defense on the ground that the homicide was necessary to save his own life, if he repented before the killing and withdrew from the difficulty in such a way as to clearly show an abandonment of his original purpose, and his adversary, instead of allowing him to withdraw, persisted in following him, and attempting to kill him.511 This seems to be the proper view, but it is doubtful whether it is supported by authority.51 512 sues, he is so much in the wrong that he cannot set up the plea of self-defense, even though the killing may have been necessary to save his life. State v. Garrett, 1 Winst. (N. C.) 144, 84 Am. Dec. 359. It has also been held that one caught in the act of adultery with another's wife, and attacked by the husband, cannot kill him in self-defense. Drysdale v. State, 83 Ga. 744, 20 Am. St. Rep. 340; Reid v. State, 11 Tex. App. 509, 40 Am. Rep. 795. Compare Wilkerson v. State, 17 S. E. 990; Franklin v. State, 30 Tex. App. 628; Varnell v. State, 20 Tex. App. 56. 511 Stoffer v. State, 15 Ohio, 47, 86 Am. Dec. 470, Beale's Cas. 334. And see 1 Hale, P. C. 479, 480. 512 See the cases cited in note 513, infra. |