497

the law makes no discrimination in favor of a drunkard or a coward, or any particular individual; but the circumstances must be such as to justify the fears of a reasonable man. Former hostile acts or threats, or present verbal threats, are not sufficient ground for apprehending danger, where there is no overt act indicating a present intention to execute the threats.498

Considerations in Determining Reasonableness. Whether or not there were reasonable grounds for the belief of the accused that his life was in imminent danger, and could only be saved by such means as he employed, is to be determined in view of all the circumstances of each particular case, and the jury should take into consideration the excitement and confusion, if any, which would naturally result under such circumstances. On a prosecution for the killing of one of a body of rioters who came to the house of the accused in the nighttime, it was said by the Michigan court: "In estimating the nature and imminence of the danger, in the choice of means to avoid it, or the amount of force or kind of weapon to be used in repelling

sion, or belief, however sincerely entertained by one man, that another designs to take his life, will not excuse or justify the killing of the latter by the former. Where the danger is neither real nor urgent, to render a homicide excusable or justifiable, within the meaning of the law, there must, at the least, be some attempt to execute the apprehended design; or there must be reasonable ground for the apprehension that such design will be executed, and the danger of its accomplishment imminent. A party may have a lively apprehension that his life is in danger, and believe that the grounds of his apprehension are just and reasonable; but if he act upon them, and take the life of a human being, he does so at his peril. He is not the final judge, whatever his apprehension or belief may have been of the reasonableness of the ground upon which he acted. That is a question which the jury alone are to determine."

497 Golden v. State, 25 Ga. 527.

See, also, State v. Sorenson, 32 Minn. 118, 19 N. W. 738.

498 State v. Cain, 20 W. Va. 679; Gladden v. State, 12 Fla. 562; Cahill v. People, 106 Ill. 621; People v. McLeod, 1 Hill (N. Y.) 377, 37 Am. Dec. 328; Parsons v. Com., 78 Ky. 102; Lewis v. State, 51 Ala. 1; ante, notes, 480-482.

it, the excitement and confusion which would naturally result from the surrounding circumstances, for which the rioters alone were responsible, should not be overlooked. To require of the defendant, while under a high degree of mental excitement, induced by their wrongful and criminal conduct, and without his fault, the same circumspection, and cool, deliberate judgment, in estimating the danger, or the choice of means for repelling it, as we, who are unaffected by the excitement or the danger, may now exercise in contemplating it, would be to ignore the laws of our being, and to require a degree of perfection to which human nature has not yet attained. Of the weight a jury should give to these considerations, no safer standard can be found than their own individual consciousness, and the consideration of what they, with the honest purpose of avoiding the danger, without unnecessarily taking life, might, under the circumstances in which the defendant was placed, be likely to do."499

281. Duty to Retreat-Excusable Self-Defense.

It is well settled that a homicide in a sudden affray is not excusable on the ground of self-defense, unless the accused retreats as far as he safely can in order to avoid the violence of the deceased and the necessity to take his life. If he fails to do this, the homicide is manslaughter, at least. "The party assaulted," says Blackstone, "must flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment, or as far as the fierceness of the assault will permit him."500

499 Patten v. People, 18 Mich. 314, 100 Am. Dec. 173, Mikell's Cas. 433. See, also, Pond v. People, 8 Mich. 150; Logue v. Com., 38 Pa. 265, 80 Am. Dec. 481; Greschia v. People, 53 Ill, 295; Bell v. State, 20 Tex. App. 445; Patillo v. State, 22 Tex. App. 586, 3 S. W. 766.

500 4 Bl. Comm. 185; 1 Hale, P. C. 483; Fost. C. L. 273, Beale's Cas. 326, 328; Allen v. U. S., 164 U. S. 492; Finch v. State, 81 Ala. 41, 1 So. 565; Pond v. People, 8 Mich. 150; State v. Cain, 20 W. Va. 679; State v. Evans, 33 W. Va. 417, 10 S. E. 792; Dock v. Com., 21 Grat. (Va.) 909; Brown v. Com., 86 Va. 466, 10 S. E. 745; Shorter v. People, 2 N. Y. 193,

C. & M. Crimes-26.

He need only retreat, however, when he can do so with safety. If the assault upon him is so fierce as not to allow him to yield a step without manifest danger of death or great bodily harm, he may kill his assailant instantly, and the homicide will be excusable. 501 These are the rules governing excusable self-defense, as distinguished from justifiable self-defense.

Justifiable Self-Defense.-It is clear, under the authorities at common law, that the rule requiring retreat, if possible, does not apply in the case of justifiable self-defense.502 If a man feloniously assaults another with intent to kill him or to inflict great bodily harm, and the person assaulted is himself without fault, he is not bound to retreat at all, even though he might do so with safety, but he may stand his ground, and kill his assailant, if it be apparently necessary in order to save himself; and the homicide in such case will be justifiable. This distinction between justifiable and excusable self-defense, with respect to the duty to retreat, is clearly recognized by Hale, Foster, East, and other early authorities on the criminal law, and has been recognized and applied in some of the late cases.503 In a

51 Am. Dec. 286; People v. Constantino, 153 N. Y. 24, 47 N. E. 37; Dolan v. State, 40 Ark. 454; Mitchell v. State, 22 Ga. 211, 68 Am. Dec. 493; State v. Rheams, 34 Minn. 18, 24 N. W. 302; State v. Jones, 89 Iowa, 182, 56 N. W. 427; Sullivan v. State, 102 Ala. 135, 15 So. 264, 48 Am. St. Rep. 22; Gilleland v. State, 44 Tex. 356. And see Com. v. Drum, 58 Pa. 9.

501 4 Bl. Comm. 185; 1 Hawk. P. C. c. 29, § 14; Creek v. State, 24 Ind. 151; Dock v. Com., 21 Grat. (Va.) 909; Brown v. Com., 86 Va. 466, 10 S. E. 745; State v. Hill, 4 Dev. & B. (N. C.) 491, 34 Am. Dec. 396; Com. v. Drum, 58 Pa. 9; State v. Tweedy, 5 Iowa, 433.

502 As to the distinction between justifiable and excusable self-defense, see ante, §§ 273, 277, 278.

503 1 Hale, P. C. 40; 1 East, P. C. 271; Fost, C. L. 273, Beale's Cas. 326; Wallace v. U. S., 162 U. S. 466; Rowe v. U. S., 164 U. S. 546; Erwin v. State, 29 Ohio St. 186, 23 Am. Rep. 733; Runyan v. State, 57 Ind. 80, 26 Am. Rep. 52; Page v. State, 141 Ind. 236, 40 N. E. 745; State v. Hudspeth, 150 Mo. 12, 51 S. W. 483; State v. Bartlett, 170 Mo. 658, 71 S. W. 148, 59 L. R. A. 756; La Rue v. State, 64 Ark. 144, 41 S. W. 53; Duncan v. State, 49 Ark. 543, 6 S. W. 164; State v. Bonofiglio, 67 N. J.

well-considered Ohio case it appeared that the defendant was standing in a shed, where he had a right to be, and that the deceased, after angry words had passed between them, approached in a threatening manner with an axe. The defendant warned him not to enter, but he continued to advance, and when he reached the eave of the shed, perhaps within striking distance of the defendant, the latter shot and killed him. Upon this evidence the court instructed the jury to acquit the defendant if he acted in necessary self-defense, "provided he used all means in his power otherwise to save his own life, or to prevent the intended harm, as retreating as far as he could," etc. The defendant was convicted, but on writ of error the judgment was reversed because the charge required him to retreat, even though the deceased had feloniously assaulted him without fault on his part. The court reviewed the authorities, and properly drew the distinction between justifiable self-defense and excusable self-defense. "A true man," it was said, "who is without fault, is not obliged to fly from an assailant who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm."504

Cases Ignoring This Distinction.-Some of the courts have refused to recognize this distinction, clearly as it is established by authority at common law, and have held that the person assaulted must retreat in all cases, if he can safely do so, though the attack upon him may be felonious, and though he may himself be free from fault.505

Law, 239, 52 Atl. 712, 54 Atl. 99, 91 Am. St. Rep. 423. And see Pond v. People, 8 Mich. 150.

A police officer is not required to decline combat when resisted in the performance of his duty, and attempt to place himself out of reach of danger before he will be justified in slaying his assailant. Lynn v. People, 170 III. 527, 48 N. E. 964; Smith v. State, 59 Ark. 132, 26 S. W. 712, 43 Am. St. Rep. 20; North Carolina v. Gosnell, 74 Fed. 734.

504 Erwin v. State, 29 Ohio St. 186, 23 Am. Rep. 733. See, also, Beard v. U. S., 158 U. S. 550, Mikell's Cas. 416; People v. Newcomer, 118 Cal. 263, 50 Pac. 405; State v. Cushing, 14 Wash. 527, 45 Pac. 145.

505 State v. Donnelly, 69 Iowa, 705, 27 N. W. 369, 58 Am. Rep. 234,

Retreat in One's House.-The rule that a person who is assaulted without felonious intent, or in some states in all cases, is bound to retreat, if he can do so with safety, before taking the life of his assailant to save himself from death or great bodily harm, does not apply where a man is assaulted in his own house. In such a case he is not bound to retreat, even though by doing so he might manifestly secure his safety, but he may stand his ground, and take his assailant's life if it becomes necessary."

506

282. Effect of the Accused being the Aggressor—Justifiable Self-Defense.

In order that a homicide may be justifiable on the ground of self-defense, it is clear that the accused must not have caused the necessity to kill by his own fault. If he was himself in fault in bringing on the difficulty, as where he made the first assault or otherwise provoked the difficulty, whether with or without a felonious intent, the homicide may under some circumstances be excusable,507 but, strictly and accurately speaking, it cannot be said to be justifiable.

Excusable Self-Defense.-There are some decisions to the effect that one who is himself the aggressor, or who otherwise

Beale's Cas. 338; State v. Rheams, 34 Minn. 18, 24 N. W. 302; Com. v. Drum, 58 Pa. 9; People v. Sullivan, 7 N. Y. 396.

506 1 Hale, P. C. 486; Ford's Case, J. Kelyng, 51, Mikell's Cas. 450; Dakin's Case, 1 Lewin, C. C. 166; State v. Middleham, 62 Iowa, 150, 17 N. W. 446; State v. Donnelly, 69 Iowa, 705, 27 N. W. 369, 58 Am. Rep. 234, Beale's Cas. 338; Pond v. People, 8 Mich. 150; State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200, Beale's Cas. 348; Eversole v. Com., 95 Ky. 623, 26 S. W. 816; Elder v. State, 69 Ark. 648, 65 S. W. 938, 86 Am. St. Rep. 220; Palmer v. State, 9 Wyo. 40, 59 Pac. 793, 87 Am. St. Rep. 910; Jones v. State, 76 Ala. 8; State v. Harman, 78 N. C. 515.

A man's place of business is deemed his dwelling, for the purposes of this doctrine. Jones v. State, 76 Ala. 8; Willis v. State, 43 Neb. 102, 61 N. W. 254.

The principle applies as between partners, joint tenants, and tenants in common. Jones v. State, supra.

507 See the cases cited in the notes following.