328; Bohannon v. Com. 8 Bush, 481; People v. Sullivan, 7 N. Y. 396; State v. Shippey, 10 Minn. 223, 88 Am. Dec. 70; Logue v. Com. 38 Pa. 265, 80 Am. Dec. 481; Meredith v. Com. 18 B.. Mon. 49; Reg. v. Smith, 8 Car. & P. 160; Creek v. State, 24 Ind. 151; Tweedy v. State, 5 Iowa, 433; Com. v. Selfridge, Harrigan & T. Cases on Self-defense, 1; Vaiden v. Com. 12 Gratt. 717; Erwin v. State, 29 Ohio St. 186; Davison v. People, 90 Ill. 221; State v. Ingold, 49 N. C. 216; State v. Hill, 20 N. C. 491; State v. Chavis, 80 N. C. 353.

He is not obliged to retreat or to go to the wall from an assailant armed with a deadly weapon; and if he is driven to the wall so that he must be killed or sustain great bodily harm, and therefore kills his assailant, it is excusable homicide. State v. Ingold, Phillips v. Com. and Tweedy v. State, supra; Smaltz v. Com. 3 Bush, 32; Young v. Com. 6 Bush, 312; Carico v. Com. 7 Bush, 124. But see Bohannon v. Com. supra; Carroll v. State, 23 Ala. 28; Pond v. People, 8 Mich. 150; 1 East, P. C. 271; Desty, Am. Crim. L. 31.

And if he uses all the means in his power to escape, even killing in self-defense is lawful. Com. v. Selfridge, Horrigan & T. Cases on Self-defense, 1; People v. Doe, 1 Mich. 451; People v. Sullivan, State v. Shippey, and Bohannon v. Com. supra.

In 1803, Mr. East published his excellent Treatise on the Pleas of the Crown, and on page 271, says, in speaking of homicide from necessity: "Herein may be considered: 1. What sort of attack it is lawful and justifiable to resist, even by the death of the assailant, and where the party is without blame. 2. Where such killing is only excusable, or even culpable, and the party is not free from blame," etc. In relation to the first sort, the author says: "1. A man may repel force by force, in defense of his person, habitation or property, against one who manifestly intends and endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, 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 from all danger; and, if he kill him in so doing, it is called justifiable self-defense; as, on the other hand, the killing, by such felon, of any person so lawfully defending himself, will be murder. But a bare fear of any of these offenses, however 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 in killing that other by way of prevention. There must be an actual danger at the time." Erwin v. State, 29 Ohio St. 186.

A very brief examination of the Americar authorities makes it evident that the doctrine, as to the duty of a person assailed to retreat as far as he can, before he is justified in repelling force by force, has been greatly modified in this country, and has with us a much narrower application than formerly. Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement or even to save human life, and that tendency is well illustrated by the recent decisions of our courts, bearing on a general subject of the right of self-defense. Runyan v. State, 57 Ind. 80, 26 Am. Rep. 52. This principle has been carried to its full extent in several of our decisions and has been vindicated in many others that are not reported.

§ 361. When Heroic Methods may be Employed.-Respectable authority exists in favor of the proposition, that where the evidence clearly discloses the presence or imminency of great danger, resort may be had to heroic methods, even the taking of life. In 1 Rutherforth's Institutes of Natural Law, chap. 16, § 5, it is said, that the law of nature "cannot be supposed to oblige a man to expose his life to such danger as may be guarded against; and to wait till the danger is just coming upon him, 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 v. State, 5 Yerg. 459, to the effect that, "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 on him, it is neither murder or manslaughter, but self-defense." See also The Marianna Flora, 24 U. S. 11 Wheat. 51, 6 L. ed. 417; The Louis, 2 Dod. Adm. 264; 13 Bacon's Works, by Montagu (London ed. 1831) 160; 4 Bl. Com. 186.

§ 362. Threats Considered in Relation to Self-Defense.Threats of violence by the deceased against the accused, though not communicated to the latter, are admissible as evidence where there is any doubt as to who began the encounter. They tend to show that it was the intention of the deceased at the time of the meeting to attack the accused, and hence tend to prove that the former brought on the conflict, and are relevant evidence. If all the evidence is to the effect that the defendant was the aggressor, it is not admissible. Wilson v. State (Fla.) 17 L. R. A. 654, and note, reproduced by permission.

NOTE.-Evidence in a criminal case of threats of accused, or of person injured or killed.

1. Threats by the defendant.

It is competent to show that the prisoner had made previous threats to kill his victim. Pulliam v. State, 88 Ala. 1; Babcock v. People, 13 Colo. 515; Rains v. State, 88 Ala. 91; Hodge v. State, 26 Fla. 11; State v. Elkins, 101 Mo. 344; People v. Jones, 99 N. Y. 667; State v. McKinney (Kan.) March 6, 1884; State v. McCahill, 72 Iowa, 111; Howard v. State, 25 Tex. App. 686; Schoolcraft v. People, 5 West. Rep. 474, 117 Ill. 271; Griffin v. State, 90 Ala. 596; State v. Dickson, 78 Mo. 438.

Threats by the defendant in a trial for murder are admissible to show his animus toward the deceased. White v. Territory, 3 Wash. Ter. 397; People v. Brown, 76 Cal. 573; Cribbs v. State, 86 Ala. 613; State v. Glahn, 97 Mo. 679; Nichols v. Com. 11 Bush, 575; Casat v. State, 40 Ark. 511; State v. Dickman, 11 Mo. App. 538. This although he was drunk at the time of making the threats. Smith v. Com. (Ky.) June 2, 1887.

On the trial of a man for the murder of his wife, his threats to shoot or kill the deceased are admissible. People v. Simpson, 48 Mich. 474.

In Goodwin v. State, 96 Ind. 550, 4 Crim. L. Mag. 565, threats of the accused to shoot deceased, made thirty years before the homicide, were admitted, there being other evidence of long continued hostility. Elliott, J., said: "Threats against life are always admissible against an accused, but their remoteness from the time of the homicide is a circumstance to be considered in determining the weight and effect to be assigned them."

On a trial for assault with intent to kill, it appearing that the defendant and the woman injured had lived in adultery for some time and that she had left him and refused to return, and his threats in consequence of her refusal to do so, is competent to show motive. Walker v. State, 85 Ala. 7.

On a trial for assault proof is admissible of threats made a few hours before. State v. Henn, 39 Minn. 476.

The fact of a previous difficulty between defendant and a person assaulted by him and his threats against such person may be proved in the prosecution for assault with intent to murder, to show malice in motive. Lawrence v. State, 84 Ala. 424.

8. Subsequent threats.

A declaration by the prisoner who returned to the place of killing half an hour after the fatal blow was struck, "that he had come to kill" the deceased

may be admitted to show his hostile feeling. McManus v. State, 36 Ala. 285. Where the defendant, in the court-house, after the indictment was found, and about two weeks before the trial, said to the injured party, "I'll get you yet," this was held admissible as referring to the past act and including an implied admission of the previous attempt. Walker v. State, 85 Ala. 7.

Evidence of what preceded and followed between the parties is admissible to show that the language used in a letter imported a threat of the character mentioned in N. Y. Penal Code, § 538. People v. Gillian, 50 Hun, 35.

Evidence of threats to do the plaintiff bodily harm, made by the defendant before an alleged assault, or so immediately after it as to constitute part of the transaction, is competent. Caverno v. Jones, 61 N. H. 653.

2. Threats by the deceased.

a. Communicated threats.

Threats made by deceased a short time before commission of the homicide indicating an angry and revengeful spirit toward prisoner and a determination to do violence to his person, communicated to prisoner, are admissible. Dupree v. State, 33 Ala. 380, 73 Am. Dec. 422; Powell v. State, 52 Ala. 1.

An isolated complete sentence containing a threat by the accused against deceased is admissible on a trial for murder, although the witness did not hear and could not relate the whole of the conversation. State v. Oliver, 43 La. Ann. 1003.

It is competent for the prosecution in a murder trial to prove a former difficulty and any threats made by defendant in connection therewith. Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54.

This although it is not competent to prove the particulars of such difficulty. Stitt v. State, 91 Ala. 10, 24 Am. St. Rep. 853.

Evidence of communicated threats is admissible to shed light upon the mental attitude of the prisoner towards the deceased when the homicide occurred. State v. Evans, 33 W. Va. 417; Wood v. State, 92 Ind. 269.

Testimony on a murder trial, as to a meeting and altercation between deceased and defendant on the evening of the killing, in which deceased made threats against defendant, is admissible as tending to throw light upon the feeling existing between them. White v. State, 30 Tex. App. 652.

Naked threats unaccompanied with personal violence are admissible to show reasonableness of prisoner's fears provided a knowledge of threats is brought home to him. Pitman v. State, 22 Ark. 354; Howell v. State, 5 Ga. 48; Monroe v. State, 5 Ga. 85.

Evidence of threats by deceased against defendant, who killed him, though not affording a justification, is admissible, as it may operate in mitigation of the offense. Howard v. State, 23 Tex. App. 265.

A declaration of deceased in the nature of a threat against defendant, made a few days before his death, is competent evidence on the murder trial as a circumstance tending to show that the deceased was the aggressor. Brown v. State, 55 Ark. 593.

Evidence of threats made by the deceased some days prior to the killing, at which time the accused was in fear of the deceased, was held admissible, where at the time of the killing the defendant was without fault and was in imminent danger of an attack, to show the purposes and motives of the deceased in making the attack. State v. Dodson, 4 Or. 64.

In Hudgins v. State, 2 Kelly (Ga.) 181, a son of the accused testified that he said to the latter: 'Yonder comes John Anderson (deceased) and he will kill you." Lumpkin, J., said: “Had young Hudgins informed his father that Anderson was advancing in great haste, apparently much enraged, that he was using threats of personal violence, armed with a weapon, and the like, all this would be admissible to satisfy the jury that the homicide was in self-defense. The opinion of the witness is a very different thing." See also State v. Goodrich, 19 Vt. 117,47 Am. Dec. 676.

(1.) Overt act of hostile demonstrations.

Threats of personal injuries, or even against the life of another, will not justify killing the one making them when he is doing nothing to carry them into effect. Gilmore v. People, 13 West. Rep. 509, 124 Ill. 380; People v. Iams, 57 Cal. 115.

Proof of threats by the deceased will have no effect in extenuating the crime when he was at the time of the killing making no effort to execute them. State v. Harris, 59 Mo. 550.

Threats though communicated are not admissible when the killing was not done in self-defense. Pritchett v. State, 22 Ala. 39, 58 Am. Dec. 250; Green v. State, 69 Ala. 6.

Evidence that deceased carried weapons and threatened to use them was excluded where there was no evidence that the prisoner committed the homicide in self-defense. People v. Garbutt, 17 Mich. 9.

The Criminal Code of Texas provides that "where a defendant accused of murder seeks to justify himself on the ground of threats made against his own life, he may be permitted to introduce evidence of threats made, but the same shall not be regarded as affording a justification of the offense 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 threats so made." Paschal, Dig. art. 2270; Peck v. State, 5 Tex. App. 611.

Evidence of threats is admissible when they were communicated to the accused previous to the killing, and when it appears that at the time of the killing the deceased made overt acts, indicative of a present intention to execute the threats. Johnson v. State, 66 Miss. 189; State v. Stewart, 9 Nev. 130; State v. Hall, 9 Nev. 58; State v. Harrington, 12 Nev. 125; People v. Scoggins, 37 Cal. 683; State v. Harrod, 102 Mo. 590.

When deceased has made threats against prisoner which he at the time of the killing shows an intention of executing evidence of such threats should be submitted to the jury to be considered by them in determining whether or not "adequate cause " for the homicide existed. Alexander v. State, 25 Tex. App. 260, 8 Am. St. Rep. 438.

Threats of the deceased are admissible on a trial for murder although not part of the res gesta and there is no doubt as to who began the difficulty, where there is the slightest evidence tending to show the hostile demonstration by him which may reasonably be regarded as placing the accused in apparent imminent danger of life or of great bodily harm. Garner v. State, 28 Fla. 113.

But not if the homicide was committed in cold blood upon a person unarmed and retreating. Thomason v. Territory, 4 N. M. 150.

Or if the homicide was the result of the defendant's invitation to fight. State v. Wilson, 43 La. Ann. 840.