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aid or defense of the person about to be injured, may make resistance sufficient to prevent the injury. N. Y. Code Crim. Proc. $$ 80, 81.

So by a parity of reasoning any evidence is pertinent in a criminal prosecution, that serves to show that the acts of the parties were in good faith designed to prevent a crime, and that the parties so acting, although so unfortunate as to inflict an injury personal or otherwise, were acting in concert with the officers of justice or by their express command. It should be added that in capital cases the widest latitude should be given to the evidence for the defense, this always has been the rule from the time of Lord Hale. 2 Hale, P. C. 290; Austin v. State, 14 Ark. 559; Johnson v. State, 14 Ga. 61; Moore v. State, 2 Ohio St. 500.

It may be further said, that when a person is subjected to maltreatment by another, he may seek protection from the authorities, and even that it is his duty to do so, as a conservator of the peace, but the omission to do it does not in any wise deprive him of the protection of the law, and when assailed, he may defend himself in the same manner, and to the same extent, and by the same means, as if he had sought the protecting arm of the law. The question is not, in such cases, whether the prisoner has sought that remedy, but whether he was in imminent peril, or was justified in believing himself to be, when he did the act complained of.

§ 358. What must Appear to Justify the Claim of Selfdefense. In the majority of criminal prosecutions for homicide and assault and battery, self-defense is interposed by way of justification. In all instances where it is sought to uphold such a contention it must appear that there was no apparent mode of escape open to the defendant.

The correct rule will find expression in the following language: "Where a person is unlawfully assaulted by another, the party assaulted has a right to defend himself and to use sufficient force to make his defense effectual. But the law never permits the unnecessary use of force; therefore, when a man is attacked he must not use force to defend himself, if he can otherwise protect himself. If he has other means or ways of avoiding the assault that appear to him at the time sufficient and available and that are in fact sufficient and available he must resort to them and

cannot justify the force for his defense, or in that case its use cannot justify the force for his defense, for in that case its use would be unnecessary." Harrison v. Harrison, 43 Vt. 417; State v. Sloan, 47 Mo. 604; State v. Collins, 32 Iowa, 36; State v. Goodrich, 19 Vt. 116, 47 Am. Dec. 676; Com. v. Crawford, 8 Phila. 490; State v. Wood, 53 Vt. 560; Com. v. Scott, 1 Pa. L. T. N. S. 221; Halloway v. Com. 11 Bush, 344; Kendall v. State, 8 Tex. App. 569; State v. Dixon, 75 N. C. 275; Presser v. State, 77 Ind. 274; People v. Coughlin, 65 Mich. 704; State v. Matthews, 78 N. C. 523; Duncan v. State, 49 Ark. 543; Runyan v. State, 57 Ind. 80, 26 Am. Rep. 52; People v. Gonzales, 71 Cal. 569; Fortenberry v. State, 55 Miss. 403; Steinmeyer v. People, 95 Ill. 383; State v. Parker, 96 Mo. 382; State v. Donnelly, 69 Iowa, 705, 58 Am. Rep. 234; Panton v. People, 114 Ill. 505; State v. Partlow, 90 Mo. 608, 55 Am. Rep. 31.

A party assaulted is justified in using such force as is necessary to repel an assailant, but no more; and if unnecessary force is used he becomes the assailant. Gallagher v. State, 3 Minn. 270; People v. Williams, 32 Cal. 280; People v. Campbell, 30 Cal. 312; Rasberry v. State, 1 Tex. App. 664; Stewart v. State, 1 Ohio St. 66; People v. Anderson, 44 Cal. 65. But it is well settled that the degree of force must not exceed the bounds of defense and prevention; and this depends on the circumstances of each case; and the respective condition of the parties. Gallagher v. State, supra; State v. Quin, 3 Brev. 515; People v. Doe, 1 Mich. 451; Patten v. People, 18 Mich. 314; Cotton v. State, 31 Miss. 504; Jackson v. State, Horrigan & T. Cases on Self-defense, 476; Oliver v. State, 17 Ala. 587.

There must be at least a seeming necessity, an actual necessity, or a reasonable belief of such necessity, to ward off some impending harm. Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; State v. Benham, 23 Iowa, 154, 92 Am. Dec. 416; State v. Burke, 30 Iowa, 331; Oliver v. State, supra; Noles v. State, 26 Ala. 31, 62 Am. Dec. 711; Reg. v. Bull, 9 Car. & P. 22; Dill v. State, 25 Ala. 15.

Men, when threatened with danger, must determine the necessity of resorting to self-defense, and they will not be held responsible for a mistake in the extent of the actual danger, nor be subject to the peril of making that guilty, if appearance prove false, which would be innocent if they prove true. Campbell v.

People, 16 Ill. 17, 61 Am. Dec. 49; Meredith v. Com. 18 B. Mon. 49; Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286; Pond v. People, 8 Mich. 160; State v. Sloan, 47 Mo. 604.

Necessity is a defense when the act charged was done to avoid irreparable evil, from which there was no other adequate means of escape, and the remedy was not disproportionate to the threatened evil; and the necessity must not have been created by the fault of him who pleads it, nor be the result of his own culpability, nor be rashly rushed into. Farris v. Com. 14 Bush, 362; Rex v. Stratton, 21 How. St. Tr. 1045; State v. Starr, 38 Mo. 270; Haynes v. State, 17 Ga. 465; Roach v. People, 77 Ill. 25; The Argo, 1 Gall. 150; Reg. v. Dunnett, 1 Car. & K. 425; The Joseph, 12 U. S. 8 Cranch, 451, 3 L. ed. 621; The New York, 16 U. S. 3 Wheat. 59, 4 L. ed. 333; Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286; Logue v. Com. 38 Pa. 265, 80 Am. Dec. 481; State v. Smith, 10 Nev. 106; Vaiden v. Com. 12 Gratt. 717; State v. Underwood, 57 Mo. 40; State v. Linney, 52 Mo. 40; State v. Neeley, 20 Iowa, 108; State v. Stanley, 33 Iowa, 526; Com. v. Selfridge, Horrigan & T. Cases on Self-defense, 3; Isaacs v. State, 25 Tex. 174. See State v. Benham, 23 Iowa, 154, 92 Am. Dec. 416. The authorities are believed to be quite consistent in maintaining this principle.

It is laid down and believed to be undoubted law, that, in all cases of slight and insufficient provocation, if it may be reasonably inferred from the weapon made use of, or the manner of using it, or from any other circumstance, that the party intended merely to do some great bodily harm, such homicide will be murder in the second degree, in like manner as if no provocation had been given, but not a case of murder in the first degree. McDaniel v. Com. 77 Va. 281; Davis, Crim. L. 99.

Cases arise, as all agree, where a person assailed may, without retreating, oppose force to force, even to the death of the assailant; and other cases arise in which the accused cannot avail himself of the plea of self-defense, without showing that he retreated as far as he could with safety; and then killed the assailant only for the preservation of his own life. Foster, Crim. L. 275; 1 East. P. C. 277; 4 Bl. Com. 184.

Courts and text-writers have not always stated the rules of decision applicable in defenses of the kind in the same forms of expression. None more favorable to the accused have been

promulgated anywhere than those which were adopted seventy years ago, in the trial of Selfridge for manslaughter. Pamph. Rep. 160; Harrigan & T. Cases on Self-defense, 1.

Three propositions were laid down in that case:

1. That a man who, in the lawful pursuit of his business, 18 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 harm, such as retreating as far as he can, or disabling his adversary without killing him, if it be in his power. 2. That when the attack upon him is sudden, fierce and violent, that a retreat would not diminish but increase his danger, he may instantly kill his adversary without retreating at all. 3. That 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 killing the assailant will be excusable homicide, although it should afterwards appear that no felony was intended.

Learned jurists excepted at the time to the third proposition, as too favorable to the accused; but it is safe to affirm that the legal profession have come to the conclusion that it is sound law, in a case where it is applicable. Support to that proposition is found in numerous cases of high authority. Wiggins v. Utah, 93 U. S.

465, 23 L. ed. 941.

§ 359. Self-defense Rests upon Necessity.-"Self-defense, therefore, rests upon necessity, actual or apparent. A common assault, not actually or apparently endangering life or doing great bodily harm, will not excuse a homicide in repelling it.

The danger of death or great bodily harm must be real, or honestly believed to be so, and on reasonable grounds. The danger must be apparent and imminent, and existing at the time of the fatal injury, or honestly believed to be so, and on reasonable grounds. The belief or apprehension of danger must be founded on sufficient circumstances to authorize the opinion that the purpose to kill or do great bodily harm then exists, and the fear that it will at that time be executed." Barnards v. State, 88 Tenn. 229.

When a man is placed in such a position that a reasonably prudent man, by the circumstances and facts surrounding him, would have in good faith a well-founded belief that his life was in peril,

then he would be justified in using such means in defense of himself, as might fairly appear to be necessary. White v. Territory,

3 Wash. Ter. 397.

An act done from necessity raises no presumption of a criminal intent, but the necessity must be actual, imminent and apparent, with no other probable or possible means of escape. It must be great, and must arise from imminent peril to life or limb. Olive v. State, 17 Ala. 587. See Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; Kennedy v. Com. 14 Bush, 341; Farris v. Com. 14 Bush, 363; May v. State, 6 Tex. App. 191; Blake v. State, 3 Tex. App. 581; State v. Shippey, 10 Minn. 223, 88 Am. Dec. 70; People v. Sullivan, 7 N. Y. 396; Com. v. Drum, 58 Pa. 9; 4 Bl. Com. 28; 1 Hale, P. C. 43, 52; 1 Bishop, Crim. L. (6th ed.) § 346.

So in Logue v. Com. 38 Pa. 265, 80 Am. Dec. 481, Thompson, J., quoting the language used by Bronson, J., in the case of Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286, says:

"I take the rule to be settled that the killing of one who is an assailant must be under a reasonable apprehension of loss of life or great bodily harm, and the danger must appear so imminent at the moment of the assault as to present no alternative of escaping its consequences but by resistance. Then the killing may be excusable, even if it turn out afterwards that there was no actual danger.

"The law of self-defense 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 alternative, before taking life will be justifiable or excusable. 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." Panton v. People, 114 Ill. 505, 5 Am. Crim. Rep. 425, note.

§ 360. Extent of the Retreat.-A man is not required to do everything in his power to avoid the necessity of slaying his assailant. Where there is no escape, after retreating as far as possible, killing will be justifiable; so where retreat is impossible or perilous, or would increase the danger; or where further retreat is prevented by some impediment, or was as far as the fierceness of the assault permitted. But if the assaulted party is in fault, he is bound to retreat as far as he can safely do so; he is required to decline the combat in good faith. Phillips v. Com. 2 Duv.

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