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avoided. ' But if the attack is of such a nature, the weapon of such a
character, that to attempt a retreat might increase the danger, the party
need retreat no farther.' ' These definitions and interpretations of the
law of self-defense are general rules that are to be applied by the jury
to the situation and conduct of both the defendant and the prosecuting
witnesses, as the}^ shall determine that position and conduct to have
been from the evidence in this cause.' " ^

§ 2170. IXSTRUCTION AS TO THE RiGHT TO ACT OX REASONABLE AP-
PEARANCES OF Danger. — " In order to justif}^ homicide on the ground
of self-defense, or defense of another, it is not essential that there should
be any actual or real danger to the life or person of the party killing, or
to the life or person of the party for whose protection the homicide is
committed, if there be an appearance of danger, caused bj' the acts or
demonstrations of the party killed, or by words coupled with the acts or
demonstrations of such party ; and if such acts or demonstrations, or
such words coupled with acts or demonstrations, produce in the mind of
the party slaying a reasonable expectation or fear of death or some
serious bodily injury to himself, or to the person in whose behalf he
interferes, the party killing will be justified if he acts on such appear-
ance of danger, and under such reasonable expectation or fear, even
though it subsequently' appear that there was in reality no danger." ^

1 Approved in People v. Guidice isappliedto various hypotheses of fact

(Cal.), 15 Pac. Rep. +4. l)reseuted by the evidence iu a charsjje

- Approved hi Kemp v. State, 13 Avhk-h was liiiildy coimneuded by the

Tex. App. 5G1, 5G5, where the principle appellate court.



Tit. V, Ch. LXI.] MATTEKS OF CRIME. 1547

§ 2171. The Same subject continued. — "To justif}- the use of a
deadly weapon in self-defense, it must appear that the danger was so
urgent and pressing that in order to save his own life, or to prevent his
receiving great bodily harm, the attack upon the prosecuting witness
was al)solutely necessary ; and it must appear that the prosecuting wit-
ness was the assailant or that the defendant had really and in good
faith endeavored to decline further struggle before the blow was given.
A bare fear of the commission of the offense, to prevent which defend-
ant used a deadlj^ weapon, is not sufficient to justify it ; but the cir-
cumstances must be sufficient to excite the fears of a reasonable man,
and the party attacking must have acted under the influence of such
fears alone. It is not necessary, however, to justify the use of adead-
I3- weapon, that the danger be actual. It is enough that it be an appar-
ent danger; such an appearance as would induce a reasonable person,
in defendant's position, to believe that he was in immediate danger of
great bodily injury. Upon such appearances a party may act with
safety ; nor will he be held accountable though it should afterwards ap-
pear that the indications upon which he acted were wholly fallacious,
and that he was in no actual peril. The rule in such cases is this :
What would a reasonable person, — a person of ordinary caution,
judgment and observation, — in the position of the defendant, seeing
what he saw, and knowing what he knew, suppose from this situation
and these surroundings? If such reasonable person, so placed, would
have been justified in believing himself in imminent danger, then the
defendant would be justified in believing himself in such peril, and act-
ing upon such appearances." ^

§ 2172. Another Instruction on the same Principle. — " The bare
fear that a man intends to commit murder or other atrocious felony,
however well grounded, unaccompanied by any overt act indicative of
any such intention, will not warrant killing the party by way of pre-
vention. There must be some overt act indicative of imminent danger
at the time, but the jury will judge whether the conduct and acts of
the deceased, llenr^^ Brown, at the time of the shooting were of such a
character as to create in the mind of the prisoner a reasonable fear
that the deceased intended to commit murder or other felon}', or to do
the prisoner great bodily harm. Apprehension of danger, to justify a
homicide, ought to be based not alone on surmises ; but there ought to
be coupled therewith some act on the part of the party from whom

Approved iu People v. Guidice (Cal.), 15 Pac. Kep. i-to



1548



PROVINCE OF COURT AND JURY. [2 ThoiU}). Tl.,



danger was apprehended, evidencing an immediate intention to cany
into execution bis ttireats or designs ; and the jury are to judge of the
reasonable grounds for such apprehension on the part of the prisoner,
from all the facts and circumstances, as the}' existed at the time of the
killing."!

§ 2173. IXSTRUCTION AS TO PREVIOUS ThKEATS, ETC., COXSIDERED AH

Chakact^rizing the Attack. — " Previous threats or acts of hostility
of the deceased towards the defendant, however violent they may have
been, were not of themselves sufficient to justify defendant in seeking
and slaying the deceased. To excuse him, or justify him, he must
have acted under an honest belief that it was necessary at the time to
take the life of the deceased in order to save his own ; and it must ap-
pear that there was reasonable cause to excite this apprehension on his
part ; so that if you find that the deceased, at the time he was killed,
did nothing to excite in the mind of the defendant the fear that de-
ceased was about to execute his threats, then the threats and bad char-
acter of deceased, whatever you may find them to have been, are



1 Approved iu State v. Cain, 20 W.
Va. 710. " This iustructiou ])vo-
pounds the law correctly." Stone-
man's Case, 25 Gratt. (Va.) 887. " It
also recognizes in the clearest lan-
guage what we have already decided,
that it is the prisoner''s stand-point
which the jury must regard, and not
that of the ideal ' reasonable man.' "
This principle will be found embodied
iu many other instructions, but it is
believed in none in a clearer manner
than iu the three f oi'egoing. See in-
structions on this subject iu State v.
Starr, 38 Mo. 273; State v. Thompson,
9 Iowa, 190; State v. Vausant, 80 Mo.
G7 (where the Supreme Court criticised
the use of the word "believe," and
substituted the word " apprehend,"
so as to make the usual expression
read, " reasonable cause to apprehend
and did apprehend;" instead of,
•' reasonable cause to believe and did
believe ") ; People v. De Witt, 68 Cal.
584, 58fi; Greschia r. People, 53 111.
29G; Williams V. Slate, Neb. 330;



May V. People, 8 Colo. 224; State v.
Griffin, 87 Mo. 608, 613; State r. Gee,
85 :\Io. 647; State v. Bohan, It) Kan.
30 (on the authority of State v.
Home, 9 Kan. 119; State v. Howard,
14 Kan. 173) ; Darling r. Williams,
35 Oh. St. 61 (civil case); Lee©.
State, 21 Tex. App. 244; Reins v.
People, 30 111. 262; State tJ. Jones, 78
Mo. 283, 284 (citing State v. Eaton,
75 Mo. 586). See also Grainger v.
State, 5 Yerg. (Tenn.) 459; Kippy v.
State, 2 Head (Tenn.), 217; Williams
V. State, 3Heisk. (Tenn.) 376; Tealr.
State, 22 Ga. 75; State v. Sloan, 47
Mo. 604; State v. Byrant, 55 Mo. 75;
Oliver I'. State, 17 Ala. 587; CaiToU v.
State, 23 Ala. 28; Noles v. State, 26
Ala, 31; Wesley r. State, 37 Miss. 327;
Evans v. State, 44 Jliss. 762; Gladdeu
V. State, ]2Fla. 562; State r. Neeley,
20 Iowa, 108; State v. Collins, 32 la.
36; State v. Morphy, 33 la. 270; State
V. Potter, 13 Kan. 414; Stonemau v.
Com., 25 Gratt. (Va.) 887.



Tit. V, Ch. LXI.] MATTERS OF CKIME. 1549

unavailing, and should not be considered by j'ou. But if the evidence •
leaves you in doubt as to what the acts of deceased were at the time,
or immediately after the killing, you may consider the threats and
character of the deceased, in connection with all the other evidence, in
determining who was probably the aggressor. The ^nry are instructed
that no mere threats made by deceased before or at the time of killing,
unaccompanied at the time of killing with any attempt to carrj'' them
into execution, are sufficient to justify the killing, or reduce it to a
lower degree of homicide than murder ; and if you find that defendant
shot and killed the deceased because of such threats, and because de-
fendant thought such threats would justify him in killing deceased, and
that when he shot and killed him he was in no fear of imminent danger,
he is guilty of murder. Ami if the killing was the result of a deliberate
purpose fixed in his mind to kill, it Avas murder in the first degree." ^

§ 2174. IXSTRUCTIOX AS TO CHARACTER OF DECEASED FOR VIOLENCE AS

CharacteuizixCt Appearance of Danger. — " The character of the de-
ceased is a proper matter for your consideration, and 3'ou should give
it such weight as you deem proper, in determining whether or not he,
by his acts at the time of the wounding, gave the defendant reasonable
cause to apprehend such danger as to justif}' his act of wounding on
the ground of self-defense, according to the law upon that suliject as
stated in these instructions. The mere fact, however, that the deceased
was a man of bad character, if you believe he was of such character,
will not justify the taking of his life." -

§ 2175. Arrest without Warrant: Reasonable Appearance
of Offense having been Committed. — lu making an arrest upon
personal observation and without warrant, the officer will be ex-
cused when no offense has been perpetrated, if the circumstances
are such as reasonably to warrant the belief that it has been
done ; ^ and whether the grounds of the belief were reasonable
will be a question for a jury.^

^ Approved in Mize v. State, 3G Ark. State, 18 Tex. App. 72, 90; citing Smith

661, 602. Other instructions on the v. State, 15 Tex. App. 338); State v.

same theory, less comprelieusive than Jones, 78 Mo. 283; People v. Guidice,

the foregoing, will be found in the fol- 73 Cal. 27G; s. c. 15 Pac. Kep. 44.
lowing cases : State v. Shelledy, 8 2 Approved in State r. Vausant, 80

Iowa, 485 (tliat threats do not justify Mo. G7, 70.

bringing on a difficulty, see State v. ^ Xeal r. Joyner. 89 N. C. 287.

Vansant, 80 Mo. C7, 70; Parker v. * State v. McNincli, 90N. C. 695, 699.



1550



PROVINCE OF COURT AND JURY. [2 Tliomp, Tr.,



§ 2176. Instruction as to Power of Peace Officers to Arrest for
Breaches of the Peace in their Presence. — " Constables are peace
officers, and it is their I'ight and duty to arrest, with or without a war-
rant, any person who has committed any public offense in their pres-
ence, or who is at the time engaged in, or about to commit, any breach
of the peace ; and they have the right in making such arrest, to use such
force as is necessary therefor, and to summon to their aid a posse suf-
ficient to accomplish such arrest. A breach of the peace is a public
offense, and it may be committed by any loud or boisterous language
calculated to disturb the good order of the persons there assembled, or
by the drawing or brandishing of deadl}' weapons accompanied by
threats to attack or kill another then and there present." i



1 Approved in Fleetwood v. Com.,
80 Ky. 1 (citiug Mockabee v. Com., 78
Ky. 380). lu Fleetwood v. Com., there
is a loug series of instriictious applica-
ble to the various hypotheses of fact
arisiug in a case where a peace officer
was killed in endeavoring to effect an
arrest for a breach of the peace com-
* mitted in his presence, involving the
questions of unnecessary force on the
part of the officer, and of the right of
self-defense on the part of the pris-
oner, which usually arise in such
cases. In State v. Green, 66 Mo. 640,
641, there are two instructions on the
theory that the killing of an officer in
order to resist or avoid arrest is mur-
der in the first degree. The court
citing in support of the common-law
rule that such a killing is murder, the
following authorities: 1 Russ. on
Crimes, 592; 1 East P. C. 30'J; 1 Hale
P. C. 464-5; 2 Hale, 118; and under
the Missouri statute the following:
Johnson v. State, 7 Mo. 183; State v.
Jennings, 18 Mo. 435. In Pierce v.
State, 17 Tex. App. 238, there is a
series of instructions, given in a crim-
inal prosecution for resisting an
officer in the execution of a warrant
of arrest, under the Texas statute.
In Ballard v. State, 43 Oil. St. 341,
there is a series of instructions given



in a case where a peace officer was
killed while endeavoring to effect an
arre.>t, and the prisoner was prose-
cuted for murder. In the course of
this instruction the following propo-
sition was laid down: "The point is
made by defense that unless the officer
has absolute knowledge that an offense
is being committed against the laws
of the State, he has no right to arrest
without a warrant for a misdemeanor.
This claim is not tenable. If the per-
son arrested is, as a matter of fact,
in the act of committing such offense,
at the time of the arrest, and the offi-
cer has information or knowledge
which induces him to reasonably be-
lieve, and at the time of the arrest he
does believe, that such offense is being
committed, and the arrest is made on
that account, this is sufficient." The
same charge also contained the fol-
lowing counter proposition: "The
State claims that if an officer, at a ven-
ture, without any information, knowl-
edge, or suspicion on the subject,
arrests a man without a warrant for
unlawfully carrying a pistol concealed
on his person, and it turns out as a
matter of fact that the party arrested
is, at the time of the arrest committing
the offense for which he is arrested,
the officer is protected, and the ar-



Tit. V, Ch. LXI.] MATTERS OF CRIME. 1551

§ 2177. Necessity of Taking Life in Oi'der to Prevent a
Rescue. — Whether it was necessary for an officer having a pris-
oner under arrest to take the life of a person attempting to rescue
him, will be a question of fact for the jury.^

§ 2178. Instance of a Proper Instruction upon this Question. —
" If the jury shall be satisfied by the evidence, that the defendant was
at the time a police officer of Bell's Ferry, admitted to be an incorpo-
rated town, and that Tom Brooks was in said town at the time, engaged
in a difficulty with a negro, or was drunk and disorderly in the pres-
ence of the defendant, then the defendant not only had the right,
but it was his duty to arrest him without a warrant ; and if he did
arrest him under such circumstances, he had the right, and it was his
duty to keep him in custody, and to this end to commit him to the
place of confinement used by the town, until he could conveniently be
carried before the mayor of the town ; and if, while he had him under
arrest, the deceased attempted to rescue him, or to prevent the defend-
ant from using the necessary means to keep him in custody until such
time as he might conveniently take him before the maj'or for trial ; and
if, in order to keep Brooks in custody and prevent his rescue by deceased
it was necessary for the defendant to strike the deceased with the billy,
and defendant, in striking the blow, used no more force than was neces-
sary (and in estimating the necessary force in this view of the case, the
jury need not be very nice, or, as is sometimes said, weigh in gold
scales), the defendant will be justified or excused, and the jury will re-
turn a verdict of not guilty." -

§ 2179. [Continued.] When the Officer would be Guilty of
Manslaughter. — "But when the defendant arrested Brooks, it was
his duty to carry him before the maj'or for trial as soon as he con-
veniently might ; and if he could have done so immediately, and Brooks
at the time was not too much intoxicated, but in condition to be tried
by the mayor, then the defendant had no right to carry him to the
place of confinement used by the town ; and unless defendant acted

rest is lawful. This claim, I say to lief should be based upou such facts

the jury, cannot be allowed. In such or sucli information, or both, as miglit

case, to make the arrest lawful, tlie reasonably induce such belief."
officer should believe that the party i State v. Bland, 97 N. C. 438.

arrested is guilty of the offense for ^ Approved in State v. Bland, 97 N.

which the arrest is made, and the be- C. 438.



1552 TROVINCE OF COURT AND JURY. [2 TllOmp. Tl'.,

honestly, according to his sense of lighi, and not under a pretext of
duty in starting with Broolcs to sucli place, — if he struck the de-
ceased the fatal blow to prevent the deceased from defeating his,
defendant's purpose to carry Broolcs to such place of custody, he would
be guilty of manslaughter." ^

§ 2180. Necessity of Tying the Prisoner. — An officer ar-
resting a prisoner, under a State's Avarrant charging him with an
escape, has a right to tie him if he deem it necessary to secure
him; and of this he is necessarily the judge, subject to the future
decision of a jury, in an indictment for assault and battery, upon
the question whether he acts in good faith and as a man of ordi-
nary prudence would act under the circumstances ; and it is for
them to say whether he abused his authority.^

§ 2181. What is a Deadly or Dangerous Weapon. — Whether
a weapon used in making an assault was a deadly weapon, under
the circumstances in which it was used, is generally a question of
fad for the jury,^ to be determined from its description by wit-
nesses, the nature of the wound inflicted, the opinion of experts,
and other circumstances in evidence* The court should not, in
instructing the jury, assume that a deadly weapon was used, or
that the weapon which is shown by the evidence to have' been
used, was a deadly weapon ; but it will not be presumed on appeal,
wdiere the record does not disclose the fact, that the court failed
properly to instruct the jury as to what would constitute a deadly
weapon, within the meaning of the law,^



^ Approved iu State v. Blaud, 97 N. sault with a dangerous weapon (Act of

C. 439. Congress of March M, 1825, § 22 ; 4 U.

2 State V. Stalcup,2 Ired. L. (N. C.j S. Stat, at Large, 121), it is reasoned
50. Compare State v. Pendergrass, 2 that, while the court may, iu general
Dev. & Bat. L. (N. C.) 3G5, wliere the terms, define the meaning of tlie statute,
question related to the power of a as that it means that tlie weapon used
schoolmaster to infiict punishment. nnist be a weapon dangerous to life, —

3 People V. McFaddeu, G5 Cal. 445. and while, iu many cases, it will be
* S}'lvester v. State, 71 Ala. 18, 25. practicable for the court to declare
''' Jenkins v. State, 82 Ala. 25 ; s.c.2 that the particular weapon was or was

South. Kep. 150. In a prosecution not a dangerous weapon, within the

under a statute for committing anas- meaning of the law, and that, when il



Tit. V, Cll. LXI.] MATTERS OF CRIME. 1553

§ 2182. Disturbing- Religious Worsliip. — Whether a soci-
ety is "met together for public worship," within the meaning
of a statute detiuing and punishing the disturbance of reliirious
worship, has been held a question of fact, in the sense that the
judge cannot direct the jury that a society is not so assembled,
even after the pastor has pronounced the benediction.^ But,
with more sense, it was said by another court: " After the min-
ister in charge dismisses the congregation, it then ceases to be a
congregation met for religious worship. There must be some
point of time when the purpose for which the congregation
met is ended, and that time has always been understood to be
when the head of the congregation dismisses it; " ^ ^nd accord-
ingly, an instruction was approved which told the jury that if
the acts complained of were not committed until after the con-
gregation were dismissed, they would find the defendant not
guilty.^ Whether a temperance camp-meeting is *' a public as-
sembly convened for the purpose of religious worship," within
the meaning of a statute punishing the offense of disturbing such
assemblies,* has been held a question of fact for the jury.^

§2183. Manslaughter: Reasonable Provocation : "Cooling
Time." — If a homicide be committed under the influence of
passion, or in heat of blood, produced by an adequate or reason-
able provocation, and before a reasonable time has elapsed for
the blood to cool and reason to resume its habitual control, and
is the result of the temporary excitement by which the control

is so practicable, it is a matter of laio, to the jury; and it must be left for them

and the court must take the respousi- to decide whether the assault, if com-

bility of so declaring (United States mitted, was with a dangerous weapon.

V. Small, 2 Curt. C. C. (U. S.) 241, 243; United States v. Small, supra (citing

citing United States v. Wilson, Baldw. Rex v. Noakes, 5 Carr. & P. 326) .

(U. S.) 78), yet where the question is ^ State v. Snyder, 14 lud. 429,

whether an assault with a dangerous 2 state v. Jones, 53 Mp. 488.

weapon has been proved, and the 3 /^jy;. Another instruction in a

weapon might be dangerous to life or case of disturbing religious worship

not, according to the manner in which will be found in State v. Stubblefield,

it was used, or according to the part of 32 Mo. 5G4.

the body attempted to be struck, then a * Gen. Laws N. H., ch. 273, § 9.

more general direction must be given ^ State v. Norris, 59 N. H. 536.

98



1554 PROVINCE OF COURT AND JURY. [2 Tlioiiip. Tr.,

of reason has been disturbed, rather than of any wickedness of
heart or cruelty or recklessness of disposition, the offense is
manslaughter only, and not murder.^ The provocation which
will have this effect is often spoken of in the books as a rea-
sonable provocation.'^ It has been ruled that the question
what is a sufficient provocation to reduce the homicide to the
grade of manslaughter is a question of laic, to be ruled l)y the
court, and to be expounded by the judge to the jury in hypo-
thetical instructions; and that it would be error to submit that
question to the jury.^ It was so held of the following instruc-
tion: " If the jury believe from the evidence that Payne killed
White upon legal provocation, and without malice, and in sudden
heat and passion, and not in self-defense, they must find him
guilty of manslaughter."* On the contrary, it has been rea-
soned in a leading case, in which the opinion was given by a judge
who w^as a master of the criminal law, that, the question whether
the provocation was adequate or reasonable, such as will reduce
the homicide to the grade of manslaughter, is a question of fact
for the jury; so also is the question wdiether, at the time when
the fatal act w^as committed, a reasonable time had elapsed for
the passions to cool and for reason to resume its accustomed
sway.^ Indeed, it is difficult to understand how this question of
reasonableness can be decided as a question of law, since reason-
ableness generally is a question of fact for the jury,^ and since
the law cannot formulate any definite rule upon the subject for
the guidance of juries. In one case, where the question related
not to manslaugrhter but to murder in the second degree under a



1 Maherv. People, 10 Mich. 212. in this couuection iuterchangeably

2 1 East. r. C. 232; 2 Bish. Cr. L. with " hiwful " " legal," " sufficicut,"
(7th etl.), § 097 ; 1 Whart. Cr. L. (7th etc.).

ecl.),§9C9; IRuss.Cr.L. (7thAra.ed.) '^ State v. Duiiu, 18 Mo. 419; State

580; State v. Holme, .54 Mo. 153, 165; v. Jones, 20 Mo. 58, (i4; Payne v. Com.,

Young V. Sfate, 11 Humph. (Teuu.) 1 Mete. (Ky.) 370; State u. Ellis, 74

200; Post. Cr. L. 313; Rose. Crim. Mb. 207, 219.

Ev. 557; State v. Zellers, 7 N. J. L. * Payne i;. Com., 1 Mete. (Ky.) 370.

220; State v. Ellis, 74 Mo. 207, 215 « Maher v. People, 10 Mich. 212.

(where there is au argument proving ^ Ante, § 1530.
that the Avord "reasonable" is used



Tit. V, Ch. LXL] matters of ckime. 1555

pecaliar construction of a statute, it was said: " What words of
reproach and attendant circumstances will be deemed a just
cause of provocation, and constitute the homicide murder in the
second degree, is, in every case, a question of law for the court;
and whether the state of mind necessary to make the killing the
lowest grade of murder, w^as, in fact, superinduced by such provo-
cation and actually existed at the time of the killing, is a ques-
tion of fact for the jury. And the cases must be decided as they
arise, each upon its own facts." ^ In another case, in the same
court, it was said: "It is impossible, in the nature of things,
for the court to lay down a rule explaining lawful provocation in
every given case. This must depend upon the varied facts and



Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 2) → online text (page 47 of 126)