If the agreement to fight be cool and deliberate, no subsequent hot blood will be a defence. Thus where B. challenged A., and A. refused to meet him, but in order to evade the law A. told B. that he should go the next day to a certain town about his business, and accordingly B. met him in the road to the same town, and assaulted him, whereupon they fought, and A. killed B., it was held that A. was guilty of murder; but the same conclusion would not follow if it should appear by the whole circumstances that he gave B. such information accidentally, and not with a design to give him an opportunity of fighting. On the other hand, where upon a sudden quarrel the parties fight upon the spot, or they presently fetch their weapons and go into a field and fight, and one of them is killed, it will be but manslaughter, because it may be inferred that the blood

authorities in mawkish sympathy with the accused. Thus on the trial of Purefoy, for killing Colonel Roper in

the same doubt; and that it was con- lish judges, though generally laying sidered as settled law by the chief down the law with becoming precision, justice in Oneby's Case, 2 Ld. Raym. sometimes go beyond our American 1485, 1731. Mr. East, after reasoning in favor of the extenuation of the duellist so declining to fight, proceeds thus: "Yet still it may be doubtful a duel at Maidstone, in 1794, Baron whether, admitting the full force of Hotham thus charged the jury: “The this reasoning, the offence can be less oath by which I am bound obliges me than manslaughter, or whether in such to say that homicide, after due interval case the party can altogether excuse of consideration, amounts to murder. himself upon the foot of necessity in The laws of England, in their utmost self-defence, because the necessity lenity and allowance for human frailty, which was induced from his own extend their compassion only to sudfaulty and illegal act, namely, the den and momentary frays; and then, agreement to fight, was in the first if the blood has not had time to cool, instance deliberately foreseen and re- or the reason to return, the result is solved upon in defiance of the law." termed manslaughter. Such is the 1 East P. C. c. 5, s. 54, p. 285. See law of the land, which undoubtedly Brafford v. Com., (Ky.) 23 S. W. Rep. the unfortunate gentleman at the bar 590, 1893. has violated, though he has acted in conformity to the laws of honor. His whole demeanor in the duel, according to the witness whom you are most to believe, Colonel Stanwid, was that of perfect honor and perfect humanity. Such is the law, and such are the facts. If you cannot reconcile the latter to your conscience, you must return a verdict of guilty. But if the contrary, though the acquittal may trench on the rigid rules of law, yet

1 1 Hawk. P. C. c. 13, s. 22; 1 Hale, 453; R. v. Byron, 19 St. Tr. 1177; R. v. Walters, 12 Ibid. 113, 1688. Reference may also be made to Bromwich's Case, 1 Lev. 180; 1 Sid. 277; 7 St. Tr. 42. Bromwich was indicted for aiding and abetting Lord Morley in the murder of Hastings.

For a valuable collection of cases on this point see Mr. Townsend's Modern State Trials, i. 151 et seq. The Eng

never cooled. It is to be supposed, with regard to sudden encounters, that when they are begun, the blood, previously too much heated, kindles afresh at every pass or blow; and in the tumult of the passions, in which the instinct of self-preservation has no inconsiderable share, the voice of reason is not heard; therefore the law, in condescension to the infirmities of flesh and blood, has extenuated the offence.2

sponsible

der.

§ 483. Not only the principals, but the seconds, in a deliberate duel, are guilty of homicide. And with regard to other Seconds persons who are present, the question is, Did they give also retheir aid and assistance by their countenance and encour- for muragement of the principals in the contest? Mere presence is not sufficient; but if they sustain the principals by their advice or presence, or if they go for the purpose of encouraging and forwarding the unlawful conflict, although they do not say or do anything, yet if they are present, and assisting and encouraging at the moment when the pistol is fired, they are guilty of murder.3

the verdict will be lovely in the sight both of God and man." 1 Townsend's Modern St. Trials, 154, 1794.

1 1 Hale, 453; 1 Hawk. P. C. c. 13, s. 29; 3 Inst. 51. See State v. Underwood, 57 Mo. 40, 1874.

Fost. 138, 296.

seconds also are equally guilty. The question then is, Did the prisoners give their aid and assistance by their countenance and encouragement of the principals in this contest?" After observing that neither prisoner had acted as a second, the learned judge continued: "If, however, either of them sustained the principal by his advice or presence; or if you think he went down for the purpose of encouraging and forwarding the unlawful conflict, although he did not say or do anything, yet if he was present and was assisting and encouraging at the moment when the pistol was fired, he will be guilty of the offence imputed by this indictment." The prisoners

3 R. v. Young, 8 C. & P. 644, 1838. See R. v. Cuddy, 1 C. & K. 210, 1843. In R. v. Young, 8 C. & P. 644, 1838, the prisoners were indicted for the murder of Charles Flower Mirfin, who was killed in a duel by a Mr. Elliott. Neither of the prisoners acted as a second on the occasion, but there was evidence to show that they and two other persons went to the ground in company with Mr. Elliott, and that they were present were found guilty. R. v. Young, 8 C. when the fatal shot was fired. & P. 644, 1838; Roscoe's Cr. Ev. p. Vaughan, B., told the jury, "When 754. upon a previous arrangement, and after there has been time for the blood to cool, two persons meet with deadly weapons, and one of them is killed, the party who occasions the death is guilty of murder; and the VOL. I.-29

As to responsibility of surgeons assisting at duels, see Cullen v. Com., 24 Gratt. 624, 1873.

As to venue, see 185 of New York Penal Code of 1882.

449

Force of defence may be

proportioned to force of attack,

XIII. EXCUSE AND JUSTIFICATION.1

1. Repulsion of Felonious Assault.

§ 484. Vim vi repellere licet is a cardinal doctrine of the Roman law; and by the English common law, as accepted throughout the United States, this principle has been asserted with equal emphasis. I have a right to resist the application of force to myself or to those under my immediate charge, by force proportioned to the attack.2 It is sometimes said, it is true, that only when the assailant threatened life can a defence involving the taking his life be sustained. But this is not true. A violent personal outrage may be repelled by any suitable means, no matter what the injury done to the assailant may be. But the offence threatened must be a crime. "Felony" has in our law been used to express the distinction; but this is not sufficiently exact, because a private person is authorized to take life to stop a riot, and a riot, though likely to involve felonies in its development, is technically but a misdemeanor. A mere assault, however, not directed at life or chastity, or other high right, cannot excuse homicide. Hence if a deadly

As to burden of proof, see Whart. Crim. Ev. 335.

2

ple, 8 Mich, 150, 1860; People v. Doe, 1 Ibid. 451, 1854; State v. Burke, 30 Iowa, 331, 1870; Murphy v. People, 37 Ill. 447, 1866; State v. Savage, 78 N. C. 520, 1877; McPherson v. State, 22 Ga. 478, 1856; Green v. State, 28 Miss. 687, 1857; Staten v. State, 30 Ibid. 619, 1859; State v. Swift, 14 La. An. 827, 1859; Levells v. State, 32 Ark. 585, 1878; People v. Campbell, 30 Cal. 312, 1866; People v. Flanagan, 60 Ibid. 2, 1881; People v. Simons, Ibid. 72, 1881. See Eversole v. Com., (Ky.) 26 S. W. Rep. 816, 1894. And see cases cited infra, ¿§ 495 et seq.

Supra, 98-100, 140; People v. Pallister, 138 N. Y. 601, 1893; Fields v. State, 134 Ind. 46, 1892. See, as to charge, Cannon v. People, 141 Ill. 270, 1892; Coryell v. State, 130 Ind. 51, 1891; Kota v. People, 136 Ill. 655, 1891; Davis v. State, (Ga.) 20 S. E. Rep. 259, 1894; Maiden v. State, (Miss.) 11 So. Rep. 488, 1892; Martin v. State, 90 Ala. 602, 1891; Smith v. Com., (Ky.) 16 S. W. Rep. 137, 1891. 3 Ibid. That this right exists to repel a felony is well established. 1 East P. C. 271; R. v. Hewlett, 1 F. & See Pond v. People, 8 Mich. 150, F. 91, 1858; U. S. v. Wiltberger, 3 1860; Com. v. Daley, 4 Penn. L. J. Wash. C. C. 515, 1823; People v. 150, 1844, quoted in Whart. on Hom. Shorter, 4 Barb. 460, 1848; Stewart v. App.; 4 Bl. Com. 179. State, 1 Ohio St. 66, 1853; Dill v. State, 25 Ala. 15, 1854; Mattison v. State, 55 Ibid. 224, 1876; Smith v. State, 68 Ibid. 424, 1880; Kingen v. State, 45 Ind. 518, 1873; Pond v. Peo

5

Infra, 501; Com. v. Daley, 4 Pa. L. J. 150, 1844; Com. v. Drum, 58 Pa. 9, 1868; Claxton v. State, 2 Humph. 181, 1840; State v. Benham, 23 Iowa, 154, 1867; Bowman v. State,

weapon be not used by the assailant, or other circumstances do not exist to indicate a felonious attempt, for the assailed to take life is at least manslaughter. "The intent," as is said by Judge Washington,2 "must be to commit a felony. If it be only to commit a trespass, as to beat the party, it will not justify the killing of the aggressor. If, however, such intended beating is of a character to imperil life, or to maim, or to deprive the assailed of some essential right, then the assailed is excused in taking life when necessary to repel the assault. On the other hand, the killing of an assailant whose apparent design was to beat and not commit a felony, or other violent injury, is not murder, and at the highest is manslaughter. But the right is limited to the emergency, and does not continue when the assailed retreats to a place of safety, arms himself, and renews the conflict."

As we have already seen, the defence must not be disproportionate to the attack; and the assailed becomes himself responsible if he wantonly use excessive force in repelling the assault.7

(Tex.) 21 S. W. Rep. 48, 1893; Garello v. State, 31 Tex. Cr. 56, 1892; Harris v. State, (Tex.) 15 S. W. Rep. 172, 1890; Fuller v. State, 30 Tex. App. 559, 1891.

1 That there may be circumstances in which a deadly weapon may be used in self-defence by a party who is only struck by the hand, see Davis v. People, 88 Ill. 350, 1878; Judge v. State, 58 Ala. 405, 1877; and see supra, 441; Meredith v. State, 122 Ind. 514, 1890; Duncan v. People, 134 Ill. 110, 1890; Butler v. State, 92 Ga. 601, 1893; Byrd v. Com., 89 Va. 536, 1893; Boatwright v. State, 89 Ga. 140, 1892; State v. Bodie, 33 S. C. 117, 1890; Shell v. State, 88 Ala. 14, 1889; People v. Temperle, 94 Cal. 45, 1892.

2 U. S. v. Wiltberger, 3 Wash. C. C. 515, 1823.

State, 46 Miss. 683, 1872; Stewart v.
State, 1 Ohio St. 66, 1853; Kingen v.
State, 45 Ind. 518, 1873; Burden v.
People, 26 Mich. 162, 1872.

4

Supra, 98; infra, & 501; State v. Rhodes, 1 Houst. C. C. 476; State v. Benham, 23 Iowa, 154, 1867; State v. Burke, 30 Ibid. 331, 1870; Com. v. Drum, 58 Pa. 9, 1868; Kingen v. State, 45 Ind. 518, 1873; Young v. State, 11 Humph. 200, 1850; Williams v. State, 44 Ala. 41, 1870; Ayres v. State, 60 Miss. 709, 1880; State v. St. Geme, 31 La. An. 30, 1879. As to Texas statutes, see Gilly v. State, 15 Tex. App. 287, 1883; Messer v. Com., (Ky.) 20 S. W. Rep. 702, 1892; State v. Bonner, 29 Tex. App. 223, 1890;、 Baltrip v. State, 30 Tex. Cr. 545, 1891; Ball v. State, 29 Tex. App. 107, 1890.

5 Copeland v. State, 7 Humph. 479, 1846.

See, to same effect, infra, & 500; Pierson v. State, 12 Ala. 149, 1847; Eiland v. State, 52 Ibid. 322, 1874; 6 Whart. on Hom. 481; Territory Field v. State, Ibid. 348, 1874; Judge v. Bannigan, 1 Dak. 451, 1877; People v. State, 58 Ibid. 405, 1877; McPher- v. Westlake, 62 Cal. 303, 1882.

son v. State, 22 Ga. 478, 1856; Floyd v. State, 30 Ibid. 91, 1860; Chase v.

7

Supra, 102; infra, 498; Sanders v. Com., (Ky.) 18 S. W. Rep. 528, 1892;

§ 485. If the defendant in any way challenged the fight, and went to it armed, he cannot afterward maintain that in taking provoked his assailant's life he acted in self-defence.' "A man by the defendant has not," as is properly said by Breese, C. J., "the right cannot be to provoke a quarrel and take advantage of it, and then justify the homicide." Self-defence may be resorted to in order to repel force, but not to inflict vengeance.