Shorter v. People

When one who is without fault himself, is attacked by another in such a manner or under such circum stances as to furnish reasonable ground for apprehending a design to take away his life, or do him some great bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, 1 think he may safely act upon appearances, and kill the assailant, if that be necessary to avoid the apprehended danger; and the killing will be justifiable, although it may afterwards turn out that the. appearances were false, and there was in fact neither design to do him serious injury, nor danger that it would be done. He must decide at his peril upon the force of the circumstances in which he is placed, for that is a matter which will be subject to judicial review. But he will not act at the peril of making that guilt, if appearances prove false, which would be innocence had they proved true. I cannot better illustrate my meaning than by taking the case put by Judge, afterwards Chief Justice Parker, of Massachusetts, on the trial of Thomas 0. Selfridge. “A. in the peaceable pursuit of his affairs sees B. walking rapidly towards him with an outstretched arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A. who has a club in his hand, strikes B. over the head, before, or at the instant the pistol is discharged ; and of the wound B. dies. It turns out that the pistol was loaded with powder only, and that the real design of B. was -only to terrify A.” Upon this case the Judge inquires, “ will any reasonable man say that A. is more criminal than he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require, that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol was loaded—a doctrine which would entirely take away the right of self-defence. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle.” The Judge had before instructed the jury, that “when from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life, or commit any

I have stated the case of Selfridge the more fully, because '£ is not only an authority in point, but it is one which the revisers professed to follow in framing our statute touching this question.

I shall not stop to consider the common law distinctions between justifiable and excusable homicide, because our statute has placed killing in self-defence under the head of justifiable homicide. (2 R. S. 660, § 3.)

The Massachusetts case lays down no new doctrine. The same principle was acted on in Levett’s case, recited by Jones, J. in Cook’s case, (Cro. Car. 538,) to the following effect. Levett was in bed with his wife, and asleep, in the night, when the servant ran to them, in fear, and told them that thieves were breaking open the house. He arose suddenly, and taking a drawn rapier in his hand, went down and was searching the entry for the thieves, when his wife espying some one whom she knew not in the buttery, cried out to her husband, in great fear, “ here they be that would undo us.” Levett thereupon hastily entered the buttery in the dark, not knowing who was there, and thrusting with his rapier before him, killed Frances Freeman, who was lawfully in the house, and wholly without fault. On these facts, found by special verdict, the court held that it was not even a case of manslaughter, and the defendant was wholly acquitted. Now here, the defendant acted upon information and appearances which were wholly false : find yet as he had reasonable grounds for believing them true, he was held guiltless. Foster, (Crown Law, p. 299,) says of this case, “ possibly it might have been better ruled manslaughter at common law, due circumspection not having been used.” I do not understand him as questioning the principle of the decision, but as only expressing a doubt whether the principle was properly applied. He calls it nothing more than a case of manslaughter, when, if a man may not act. upon appearances, it was a plain

The case of Sir William Hawkesworth, who, through his own fault, was shot by the keeper of his park, who took him for a stranger who had come to destroy the deer, went upon the same principle. (1 Hale’s P. C. 40; 1 East, P. C. 275; 1 Russ. on Cr. 549.) Other cases are put in the books where the killing will be justified by appearances, though they afterwards prove false. A general, to try the vigilance or courage of his sentinel, comes upon the sentinel in the night in the posture of an enemy, and is killed. There the ignorance of the sentinel that it was his general, and not an enemy, will justify the killing. (1 Hale’s P. C. 42; 1 East’s P. C. 275; 1 Russ. 540.) The case mentioned by Lord Hale, which was before him at Peterborough, where a servant killed his master, supposing he was shooting at deer in the corn in obedience to his master’s orders, belongs to the same class. (1 Hale’s P.

We have been referred to two cases where it was said, in substance, that the killing must be necessary; (Regina v. Smith, 8 Car. & Pay. 160, and Regina v. Bull, 9 id. 22;) and other authorities to the same effect might have been cited. The life of a human being must not be taken upon slight grounds; there must be a necessity, either actual or apparent, for the killing, or it cannot be justified. That, I think, is all that was meant by such remarks as have been mentioned. The unqualified language that the killing must be necessary has, I think, never been used when attention was directed to the question whether the accused might not safely act upon the facts and circumstances as they were presented at the time. I have met with no authority for saying, that a homicide which would be justifiable had appearances proved true, will be criminal when they prove false.

But it is said that our statute has changed the rule of the common law on this subject; and that there must in fact be danger of great bodily harm, or the killing cannot be justified. We know that such a change was not intended by the revisers, for they said in their notes, that the provision was “ according to the views of most of the writers on the subject, and the express decisions in Massachusetts and New Jersey.” Those writers and decisions have already been noticed. As I read the statute, it affirms the rule of the common law. The words are, homicide in self-defence is justifiable “when there shall be area sonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished.” (2 R. S. 660, § 3, sub. 2.) The words “ imminent danger,” in the last branch of the clause, do not mean, as the argument for the prisoner assumes, that there must in fact be an impending evil which is ready to fall; but only that there is a threatened evil, or one which appears as if it were ready to fall. There must be rea

Although I cannot concur in the law of that part of the charge to which exception was taken on the trial, it does not necessarily follow that we must reverse the judgment. The evidence did not make a case for laying down the law of justifiable homicide; and an error of the court concerning an abstract proposition, having nothing to do with the matter in hand, is not a sufficient ground for reversing a judgment. If every controverted fact mentioned in the bill of exceptions is taken in favor of the prisoner, the best case which he can possibly make will be substantially as follows: There was a sudden combat between the parties in the night, in which the deceased gave the first blow ; but the prisoner entered readily into the fight. The deceased had no weapon, and gave blows with his naked hands or fists, while the prisoner struck with a knife, inflicting not less than nine wounds, one or more of which were mortal. After several blows had passed, the deceased hallooed, “he has got a knife,” and retreated towards the middle of the street. The prisoner followed, and continued to give blows ; the deceased at the same time either giving blows or defending himself against those given by the prisoner. The prisoner did not leave the side walk. When the deceased got to the middle of the road, he cried out “ oh boys,” fell, and died in a few minutes. The prisoner did nothing to shun the combat, nor did he show any disposition to stop the fight after it had commenced. Although one witness thought the deceased had the best of the fight at first, no important advantage was gained over the prisoner : he was neither knocked down, nor seriously injured, noi was he in any danger of life or limb. He followed when the deceased tried to escape, still giving blows with a deadly weap