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“Non ad sumendam vindictam, sed ad propulsandam injuriam. “There is certainly no law to justify the proposition that a man may be the assailant and bring on an attack, and then claim exemption from the consequence of killing his adversary on the ground of self-defence. While a man may act safely on appearances, and is not bound to wait until a blow is received, yet he cannot be the aggressor and then shield himself on the assumption that he was defending himself.” And an adulterer caught in the act by the husband is guilty at least of manslaughter, if, in repelling a murderous attack by the husband, he kill the husband. But where the defendant, without an intent to take the deceased's life, provoke the quarrel, this, while it destroys the excuse of selfdefence, does not, if the deceased's attack put the defendant's life in danger, militate against reducing the offence to manslaughter."

§ 486. But though the defendant may have thus provoked the conflict, yet if he withdraws from it in good faith, and clearly announces his desire for peace, then if he be pur- fence exsued his rights of self-defence revive. Of course, there the demust be a real and bonâ fide surrender and withdrawal fendant

though part; for if there be not, then, he will still continue aggressor to be regarded as the aggressor. But if A. really and asking for evidently withdraws from the contest, and resorts to a place of security, and B., his antagonist, knowing that he is no

Self-de

on his

peace.

See supra, 3% 96, 97.

* Reed v. State, 9 Tex. App. 317, ? Selfridge's Case, Whart, on Hom. 1880. See Franklin v. State, 30 Tex. App. 1866; Myers v. State, 62 Ala. App. 628, 1892; Drysdale v. State, 83 599, 1879; De Arman v. State, 71 Ga. 744, 1889. Ibid. 351, 1881; Sylvester v. State, • Kinney v. People, 108 Ill. 519, 72 Ibid. 201, 1881; Putnam v. Com., 1883; Childers v. State, (Tex.) 27 S. (Ky.) 18 S. W. Rep. 527, 1892; Palmer W. Rep. 133, 1894; Aikin v. State, 58 v. State, (Tex.) 15 S. W. Rep. 286, 1890. Ark. 514, 1894; Craig v. State, (Tex.)

* Wagner, J., State v. Linney, 52 23 S. W. Rep. 1108, 1893 ; State v. TalMo. 10, 1873; S. P., Williams v. State, mage, 107 Mo. 513, 1891. 3 Heisk. 376, 1872; and see R. v. 6 See Hodges v. State, 15 Ga. 117, Knock, 14 Cox C. C. 1, 1877; Cart. 1854; State v. Hill, 4 Dev. & Bat. 191, wright v. State, 14 Tex. App. 486, 1839; State v. Howell, 9 Ired. 485, 1883; Wilkins v. State, 98 Ala. 1, 1849; State v. Smith, 10 Nev. 106, 1893 ; Coney v. State, 90 Ga. 140, 1875; People v. Wong Ah Teak, 63 1892; State v. Scott, 36 W. Va. 704, Cal. 486, 1883. See supra, ?? 95–102. 1892; Kirby v. State, (Ala.) 8 So. Rep. Thomas v. State, (Ala.) 16 So. Rep. 110, 1890. Wills v. State, (Tex.) 22 4, 1894 ; State v. Jefferson, 43 La. S. W. Rep. 969, 1893 ; State v. Blunt, An. 995, 1891 ; Parker v. State, 88 Ala. 110 Mo. 322, 1892; State v. Murdy, 4, 1890; Franklin v. State, 30 Tex. 81 Iowa, 603, 1891.

1

Retreat is necessary

longer in danger from A., nevertheless attacks A., then A.'s rights in self-defence revive. § 486 a. In case of personal conflict, it must appear, in order to

establish excusable homicide in self-defence, that the

party killing had retreated, either as far as he could, by when prac- reason of some wall, ditch, or other impediment, or as far

as the fierceness of the assault would permit him. The last qualification is worthy of particular consideration. “ Retreated to the wall” is sometimes given by the old text-writers as the exclusive test ; but even if we accept this text exclusively, we must remember that it is to be taken in a figurative sense, as indicating a retreat to the limits of personal safety. First, the word “wall” is sometimes used interchangeably with “ditch;” showing that what is meant is that when the assailed cannot further recede without exposing himself to great peril (e. g., as in crossing a ditch), then he may at that spot assume the aggressive. Secondly, “ walls"

App. 628, 1892; Benningfield v. Com., Rep. 440, 1893; Thomas v. State, (Ky.) 17 S. W. Rep. 271, 1891 ; Rob- (Ala.) 16 So. Rep. 4, 1894; Webb erts v. State, 30 Tex. App. 291, 1891; v. State, (Ala.) 14 So. Rep. 865, 1894; People v. Hite, 8 Utah, 461, 1893; Holmes v. State, (Ala.) 14 So. Rep. Davis v. State, 31 Nebr. 240, 1891; 864, 1894; Wilkins v. State, 98 Ala. People v. Johnson, 139 N. Y. 358, 1893. 1, 1893; Rockmore v. State, 91 Ga.

Stoffer v. State, 15 Ohio St. 47, 97, 1892. Party attacked may follow 1864; Vaidon v. Com., 12 Gratt. 717, adversary till he himself is secure. 1855; Hittner v. State, 19 Ind. 48, 1862; State v. Thompson, (La.) 13 So. Rep. Evans v. State, 33 Ga. 4, 1863; Tid- 392, 1893. See McDaniel ». State, 97 well v. State, 70 Ala. 33, 1881; Evans Ala. 14, 1893 ; Roden v. State, 97 v. State, 44 Miss. 762, 1871; State v. Ala. 54, 1893; Amos v. State, 96 Linney, 52 Mo. 40, 1873; People v. Ala. 120, 1892; Hash v. Com., 88 Va. Stonecifer, 6 Cal. 407, 1856 ; State v. 172, 1891; Underwood v. State, S8 Conally, 3 Oreg. 69, 1872; State v. Ga. 47, 1891 ; Keith v. State, 97 Ala. Thompson, (La.) 13 So. Rep. 392, 32, 1892; State v. Murrell, 33 S. C. 1893; Dolan v. State, 40 Ark. 454, 1883. 83, 1890 ; State v. Jackson, 32 S. C.

? 1 Hale, 481, 483 ; Stoffer v. State, 27, 1889; State v. Evans, 33 W. Va. 15 Ohio St. 47, 1864; Judge v. State, 417, 1890; Davis v. State, 92 Ala. 20, 58 Ala. 406, 1877; Ingram v. State, 67 1891 ; Gibson v. State, 89 Ala. 121, Ibid. 67, 1880; Bain v. State, 70 Ibid. 1890 ; Stit v. State, 91 Ala. 10, 1890; 4, 1881; State v. Johnson, 76 Mo. 121, State v. Mazon, 90 N. C. 676, 1884; 1882; Parrish v. State, 14 Nebr. 60, State v. Dettmer, (Mo.) 27 S. W. Rep. 1883; Gilleland v. State, 44 Tex. 356, 1117, 1894; Johnson v. State, 58 Ark. 1875; Com. v. Ware, 137 Pa. 465, 1890; 57, 1893; Rutledge v. State, 88 Ala. State v. Roberts, 63 Vt. 139, 1890. 85, 1890; Nalley 1. State, 30 Tes. See Ritter v. People, 130 III. 255, App. 456, 1891 ; Perkins v. State, 78 1889; State v. JeIntosh, 40 S. C. 349, Wis. 551, 1891 ; Parrish 2. State, 14 1893; Clark v. Com., (Va.) 18 S. E. Nebr. 60, 1883.

and “ditches” are not always accessible; and to make them prerequisites to the initiation of those offensive acts which are essential to self-defence would be to declare that there should be no selfdefence where there are no “ ditches” or “walls.” The true view is, that a “wall” or “ditch” is to be presumed whenever retreat cannot be further continued without probable death, and when the only apparent means of escape is to attack the pursuer. And retreat need not be attempted when the attack is so fierce that the assailed, by retreating, will apparently expose himself to death."

1

а

case

Supra, X 100; Fost. 273; 1 Hawk. follow that any ruffian who chose to c. 11, s. 14; R. v. Smith, 8 C. & P. assault a quiet person in the street, 160, 1839; 4 Bl. Com. 185; Runyan might impose upon him the legal duty 8. State, 57 Ind. 80, 1873; State of running away, even if he were the v. Tweedy, 5 Iowa, 433, 1857; State stronger man of the two. The pasv. Thompson, 9 Ibid. 188, 1859; State sage of Hale appears to me to be apr. Hill, 4 Dev. & Bat. 491, 1839; plicable only to cases where deadly Oliver v. State, 17 Ala. 587, 1849; weapons are produced by way of Storey v. State, 71 Ibid. 331, 1881 ; bravado or intimidation Dolan v. State, 41 Ark. 454, 1882; which, no doubt, often occurred when Plummer v. State, 135 Ind. 308, 1893; people habitually carried arms, and Fields 1. State, 134 Ind. 46, 1892; used them on very slight provocation. State v. Kennedy, 91 N. C. 572, 1884. In such a case it might reasonably be

That the assailed must retreat as regarded as the duty of the person far as the assault will permit, see assaulted to retreat rather than draw Dock v. Com., 21 Gratt. 909, 1872; his own sword; but I cannot think Evans v. State, 33 Ga. 4, 1861; Mc- that Hale meant to say that a man Pherson v. State, 22 Ibid. 478, 1857. who in such a case closed with his See remarks of Thurman, J., in Stew- assailant and took his sword from him art v. State, 1 Ohio St. 66, 1852. would be acting illegally, or that if,

In Kentucky the right of self-de- in doing so, the assailant were thrown fence has been pushed still further. down and accidentally killed by the Phillips v. Com., 2 Duv. 328, 1865; fall, the person causing his death Carico v. Com., 7 Bush. 124, 1870; would be guilty of felony. The miBohannon v. Com , 8 Ibid. 481, 1871; nuteness of the law contained in the Luby v. Com., 12 Ibid. 1, 1876; and authorities, on which this article is see, to same effect, State v. Kennedy, founded, is a curious relic of a time 7 Nev. 374, 1872. These cases are when police was lax and brawls frecriticised in Whart. on Hom. & 489. quent, and when every gentleman

Sir J. F. Stephen states the law to wore arms, and was supposed to be be that when the assailant assails with familiar with the use of them.” Steph. a deadly weapon, it is the duty of the Dig. Crim. Law, (5th ed.) art. 221. assailed “to abstain from the inten- He proceeds to say in the text that tional infliction of death or grievous “any person unlawfully assaulted may bodily harm until he has retreated as defend himself on the spot by any far as he can with safety to himself.” force short of the intentional inflicTo this he appends as a note the fol- tion of death or grievous bodily lowing:

harm." Supra, 100. "If this were not the law, it would

Prior malice of

defence.

Nor is retreat required from a party who at the time is standing on rights which can only be vindicated by maintenance even to the assailant's death. But if, when the defendant is out of danger by retreat, he return and renew the attack, he can no longer set up selfdefence; nor is a mere illusive retreat any

defence, § 486 6. As has been already seen, a party is not precluded from

setting up the plea of self-defence by the proof of prior

malice on his part to his assailant. A. has no right to defendant kill B. because B. bears old malice to A., and the fact of does not abrogate such malice does not in any way diminish B.'s right to de

fend himself against A. But if B., bearing such malice, attack A. with deadly weapons, and B. is driven to the wall by A. and then kills A., B. cannot set up self-defence." $ 487. It has been sometimes said that if A.'s life be made

wretched by the reckless and desperate enmity of B., Attack cannot be and if there be good reason to believe that B. is intendanticipated

ing to assassinate A., A. is not obliged, forsaking his when there is an

usual employments, to hide from B., but may arm himoppor- self, and on meeting B. shoot B. down without waiting to tunity to

receive B.'s shot. No doubt, supposing a community to by law.

be without an authoritative police government, and supposing B. to be a ruffian actually seeking A.'s life, whom no other

restrain

1

Supra, & 99; infra, 2502; Pfomer within the rule of necessity in selfv. State, 4 Parker C. R. 558, 1860; defence; or if, in the assault B. fall Dock v. Com., 21 Gratt. 909, 1873; the ground, whereby he could not State v. Thompson, 9 Iowa, 188, 1859; fly, in such case if B. kill A. it is in State v. Maloy, 44 Ibid. 104, 1876; self-defence upon chance-medley. 1 State v. Mazon,. 90 N. C. 676, 1884; Hawk. c. 11, s. 14; 4 Bl. Com. 185; Aaron v. State, 31 Ga. 167, 1860; De 3 Inst. 56; State v. Dixon, 75 N. Arman v. State, 71 Ala. 351, 1882; C. 275, 1876; Holloway v. Com., 11 Sylvester v. State, 72 Ibid. 201, 1882; Bush, 344, 1875. People v. Ye Park, 62 Cal. 204, 1882. ? State v. Rhodes, 1 Houst. C. C. That a person in his dwelling-house 476, 1877; Meurer v. State, 129 Ind. need not retreat, see infra, % 502. 587, 1891 ; Watkins v. State, (Ala.) 8

The distinction between this kind So. Rep. 134, 1890. of homicide and manslaughter is, 3 Ibid. ; Hodges v. State, 15 Ga. 117, that here the slayer could not other- 1854, and cases cited supra, & 486. wise escape although he would; in Supra, % 477; Pickens v. State, 61 manslaughter, he would not escape if Miss. 52, 1883; State v. Wilson, 43 he could. Thus if A. assaults B. so La. An. 840, 1891. fiercely that going back would endan- 5 Ibid. State v. Hill, 4 Dev. & Bat.

his life, in such case it is agreed 491, 1839. that the party thus attacked need not 6 See Bohannon v. Com., 8 Bush, retreat in order to bring his case 481, 1871.

ger

process can be used to check, then A. is excused in taking this violent but only possible way of saving his own life, by sacrificing that of B. But it is otherwise where there is opportunity to invoke the interposition of the law. A man who believes his life is in danger, but whose rights are not as yet attacked, ought, if he have access to a tribunal clothed with the ordinary powers of a justice of the peace, to apply to such tribunal to interpose. If he have ground enough to excuse him in killing the person from whom he believes himself in danger, he has ground enough to have that person bound over to keep the peace, or committed in default of bail. And wherever this process can be applied, the endangered party is not excused in taking the law into his own hands and proceeding to attack his expected assailant. He cannot himself seize on his antagonist in advance of the attack he fears; and if he wishes thus to anticipate the attack, he must resort to the law. Where the conflict can be avoided, the law must be relied on for redress. When, however, a right is actually attacked, the person possessing the right is not bound to yield in order to appeal to the law. He is entitled to repel force by force. Nor is he precluded from repelling an attack actually made by the fact that he had such prior notice of the attack that he might have called upon the public authorities to intervene. When the attack is actually made on him he is entitled to repel it, no matter for how long a time he may have anticipated it. If selfdefence could only be resorted to in cases in which the attack is entirely unexpected, the right would cease to exist in the cases in which it is most important to society that it should be preserved. If I choose to become a sheep, so runs a pregnant German proverb, State v. Martin, 30 Wis. 216, 1872;

That a person about to be assaulted State v. Shippey, 10 Minn, 223, 1865; with a deadly weapon can anticipate Dyson v. State, 26 Miss. 362, 1853; the blow, see Fortenberry v. State, 55 Edwards v. State, 47 Ibid. 581, 1873; Miss. 403, 1877; State v. McDonald, Bailey v. Com., (Ky.) 25 S. W. Rep. 67 Mo. 13, 1877. Selfridge's Case, 883, 1894. Compare distinctions taken supra, supra,

3 People v. Sullivan, 3 Selden, 396, R. v. Langdon, R. & R. 228, 1818; 1852; State v. Downham, 1 Houst

. C. State v. Rutherford, 1 Hawks, 457, C. 45, 1858 ; Shippey v. State, 10 Minn. 1827; Com. v. Drum, 58 Pa. 9, 1868 ; 223, 1865. And see Com. v. Drum, 58

State, 21 Gratt. 909, 1872; Pa. 9, 1868. Stewart v. State, 1 Ohio St. 66, 1852;

Supra, % 97; Bang v. State, 60 Balkum v. State, 40 Ala. 671, 1867; Miss. 571, 1882; King v. State, 13 Cotton o. State, 31 Miss. 504, 1856; Tex. App. 277, 1882. and see supra, 22, 399, 461; Gardner v. State, 90 Ga, 310, 1892.

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Dock v.

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