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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.5

Self-de

fence ex

ists when

the de

§ 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 pursued his rights of self-defence revive. Of course, there must be a real and bonâ fide surrender and withdrawal on his part; for if there be not, then, he will still continue 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

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though aggressor

retreats

peace.

Reed v. State, 9 Tex. App. 317, 1880. See Franklin v. State, 30 Tex. App. 628, 1892; Drysdale v. State, 83 Ga. 744, 1889.

5 Kinney v. People, 108 Ill. 519, 1883; Childers v. State, (Tex.) 27 S. W. Rep. 133, 1894; Aikin v. State, 58 Ark. 544, 1894; Craig v. State, (Tex.) 23 S. W. Rep. 1108, 1893; State v. Talmage, 107 Mo. 543, 1891.

2 Selfridge's Case, Whart. on Hom. App. 1866; Myers v. State, 62 Ala. 599, 1879; De Arman v. State, 71 Ibid. 351, 1881; Sylvester v. State, 72 Ibid. 201, 1881; Putnam v. Com., (Ky.) 18 S. W. Rep. 527, 1892; Palmer v. State, (Tex.) 15 S. W. Rep. 286, 1890. 'Wagner, J., State v. Linney, 52 Mo. 40, 1873; S. P., Williams v. State, 3 Heisk. 376, 1872; and see R. v. • See Hodges v. State, 15 Ga. 117, Knock, 14 Cox C. C. 1, 1877; Cart- 1854; State v. Hill, 4 Dev. & Bat. 491, 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.

longer in danger from A., nevertheless attacks A., then A.'s rights in self-defence revive.1

Retreat is

ticable.

§ 486 a. In case of personal conflict, it must appear, in order to establish excusable homicide in self-defence, that the necessary 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; Roberts v. State, 30 Tex. App. 291, 1891; People v. Hite, 8 Utah, 461, 1893; Davis v. State, 31 Nebr. 240, 1891; People v. Johnson, 139 N. Y. 358, 1893. 1 Stoffer v. State, 15 Ohio St. 47, 1864; Vaidon v. Com., 12 Gratt. 717, 1855; Hittner v. State, 19 Ind. 48, 1862; Evans v. State, 33 Ga. 4, 1863; Tidwell v. State, 70 Ala. 33, 1881; Evans v. State, 44 Miss. 762, 1871; State v. Linney, 52 Mo. 40, 1873; People v. Stonecifer, 6 Cal. 407, 1856; State v. Conally, 3 Oreg. 69, 1872; State v. Thompson, (La.) 13 So. Rep. 392, 1893; Dolan v. State, 40 Ark. 454, 1883. 2 1 Hale, 481, 483; Stoffer v. State, 15 Ohio St. 47, 1864; Judge v. State, 58 Ala. 406, 1877; Ingram v. State, 67 Ibid. 67, 1880; Bain v. State, 70 Ibid. 4, 1881; State v. Johnson, 76 Mo. 121, 1882; Parrish v. State, 14 Nebr. 60, 1883; Gilleland v. State, 44 Tex. 356, 1875; Com. v. Ware, 137 Pa. 465, 1890; State v. Roberts, 63 Vt. 139, 1890. See Ritter v. People, 130 Ill. 255, 1889; State v. McIntosh, 40 S. C. 349, 1893; Clark v. Com., (Va.) 18 S. E.

(Ala.) 16 So. Rep. 4, 1894; Webb v. State, (Ala.) 14 So. Rep. 865, 1894; Holmes v. State, (Ala.) 14 So. Rep. 864, 1894; Wilkins v. State, 98 Ala. 1, 1893; Rockmore v. State, 91 Ga. 97, 1892. Party attacked may follow adversary till he himself is secure. State v. Thompson, (La.) 13 So. Rep. 392, 1893. See McDaniel v. State, 97 Ala. 14, 1893; Roden v. State, 97 Ala. 54, 1893; Amos v. State, 96 Ala. 120, 1892; Hash v. Com., 88 Va. 172, 1891; Underwood v. State, 88 Ga. 47, 1891; Keith v. State, 97 Ala. 32, 1892; State v. Murrell, 33 S. C. 83, 1890; State v. Jackson, 32 S. C. 27, 1889; State v. Evans, 33 W. Va. 417, 1890; Davis v. State, 92 Ala. 20, 1891; Gibson v. State, 89 Ala. 121, 1890; Stit v. State, 91 Ala. 10, 1890; State v. Mazon, 90 N. C. 676, 1884; State v. Dettmer, (Mo.) 27 S. W. Rep. 1117, 1894; Johnson v. State, 58 Ark. 57, 1893; Rutledge v. State, 88 Ala. 85, 1890; Nalley v. State, 30 Tex. App. 456, 1891; Perkins v. State, 78 Wis. 551, 1891; Parrish v. State, 14 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 66 Iwalls." 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

1

a case

Supra, 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 v. 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 apv. 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 v. 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 doing so, the assailant were thrown down and accidentally killed by the fall, the person causing his death would be guilty of felony. The minuteness of the law contained in the authorities, on which this article is founded, is a curious relic of a time when police was lax and brawls frequent, and when every gentleman wore arms, and was supposed to be familiar with the use of them." Steph. Dig. Crim. Law, (5th ed.) art. 221.

In Kentucky the right of self-defence has been pushed still further. Phillips v. Com., 2 Duv. 328, 1865; Carico v. Com., 7 Bush. 124, 1870; Bohannon v. Com, 8 Ibid. 481, 1871; Luby v. Com., 12 Ibid. 1, 1876; and see, to same effect, State v. Kennedy, 7 Nev. 374, 1872. These cases are criticised in Whart. on Hom. 489.

Sir J. F. Stephen states the law to be that when the assailant assails with a deadly weapon, it is the duty of the assailed "to abstain from the intentional infliction of death or grievous bodily harm until he has retreated as far as he can with safety to himself." To this he appends as a note the following:

"If this were not the law, it would

He proceeds to say in the text that "any person unlawfully assaulted may defend himself on the spot by any force short of the intentional infliction of death or grievous bodily harm." Supra, & 100.

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.3

Prior

malice of

does not

§ 486 b. 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 abrogate such malice does not in any way diminish B.'s right to defend himself against A.1 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.5

defence.

Attack

cannot be

anticipated when

§ 487. It has been sometimes said that if A.'s life be made wretched by the reckless and desperate enmity of B., and if there be good reason to believe that B. is intending to assassinate A., A. is not obliged, forsaking his usual employments, to hide from B., but may arm himself, and on meeting B. shoot B. down without waiting to receive B.'s shot. No doubt, supposing a community to be without an authoritative police government, and supposing B. to be a ruffian actually seeking A.'s life, whom no other

there is an oppor

tunity to restrain by law.

defence; or if, in the assault B. fall to the ground, whereby he could not fly, in such case if B. kill A. it is in

1 Supra, 299; infra, 502; Pfomer within the rule of necessity in selfv. State, 4 Parker C. R. 558, 1860; Dock v. Com., 21 Gratt. 909, 1873; State v. Thompson, 9 Iowa, 188, 1859; State v. Maloy, 44 Ibid. 104, 1876; self-defence upon chance-medley. 1 State v. Mazon,.90 N. C. 676, 1884; Aaron v. State, 31 Ga. 167, 1860; De Arman v. State, 71 Ala. 351, 1882; Sylvester v. State, 72 Ibid. 201, 1882; People v. Ye Park, 62 Cal. 204, 1882. That a person in his dwelling-house need not retreat, see infra, 2 502.

The distinction between this kind of homicide and manslaughter is, that here the slayer could not otherwise escape although he would; in manslaughter, he would not escape if he could. Thus if A. assaults B. so fiercely that going back would endanger his life, in such case it is agreed that the party thus attacked need not retreat in order to bring his case

Hawk. c. 11, s. 14; 4 Bl. Com. 185;
3 Inst. 56; State v. Dixon, 75 N.
C. 275, 1876; Holloway v. Com., 11
Bush, 344, 1875.

2 State v. Rhodes, 1 Houst. C. C. 476, 1877; Meurer v. State, 129 Ind. 587, 1891; Watkins v. State, (Ala.) 8 So. Rep. 134, 1890.

3 Ibid.; Hodges v. State, 15 Ga. 117, 1854, and cases cited supra, § 486.

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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,

1 State v. Martin, 30 Wis. 216, 1872; State v. Shippey, 10 Minn. 223, 1865; Dyson v. State, 26 Miss. 362, 1853; Edwards v. State, 47 Ibid. 581, 1873; Bailey v. Com., (Ky.) 25 S. W. Rep. 883, 1894. Compare distinctions taken supra, 97 a.

3

That a person about to be assaulted with a deadly weapon can anticipate the blow, see Fortenberry v. State, 55 Miss. 403, 1877; State v. McDonald, 67 Mo. 13, 1877. Selfridge's Case, supra.

People v. Sullivan, 3 Selden, 396, 1852; State v. Downham, 1 Houst. C. C. 45, 1858; Shippey v. State, 10 Minn. 223, 1865. And see Com. v. Drum, 58 Pa. 9, 1868.

R. v. Langdon, R. & R. 228, 1818; State v. Rutherford, 1 Hawks, 457, 1821; Com. v. Drum, 58 Pa. 9, 1868; Dock v. State, 21 Gratt. 909, 1872; Stewart v. State, 1 Ohio St. 66, 1852; Supra, 97; Bang v. State, 60 Miss. 571, 1882; King v. State, 13 Tex. App. 277, 1882.

Balkum v. State, 40 Ala. 671, 1867;
Cotton v. State, 31 Miss. 504, 1856;
and see supra, ?? 399, 461; Gardner v.
State, 90 Ga. 310, 1892.

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