Statement of the Case. latter drew his pistol and fired, shooting deceased through the body; that at the time the defendant fired the two men were in striking distance of one another. The shot struck deceased in the right arm, near the elbow, and ranged through the body from right to left side; that when shot was fired deceased ran, and when defendant turned round the blood was streaming from his face, where he had been cut by deceased, and he said to the bystanders to go for a doctor, that he was killed; that a short time after the difficulty the knife used by deceased on defendant was found near the place where the trouble occurred; that a knife was also found on the person of deceased after his death. "The testimony on the part of the defence tended to show that on the day of the difficulty defendant came into town from his home, about twenty miles distant, with his wife to do some shopping; that he brought his pistol with him and left it at the livery stable where he put up his team, and at supper time went by the stable and got his pistol, fearing that it might be stolen; that defendant did not have anything to say to deceased in the dining-room, but was talking with the father of the deceased, and that defendant was not intoxicated; that when defendant came out in the office deceased used the language indicated in the statement for the government, or words to that effect, and defendant kicked at him and probably struck him lightly; that when defendant kicked he stepped back and leaned up against the counter and deceased sprang at him and began cutting him with a knife; that deceased cut him in the face and kept on striking at him with the knife, and after he was cut in the face defendant drew his pistol and fired at deceased, who was in the act of striking him again with the knife. The foregoing is in substance the statement of the defendant who testified in his own behalf. "Proof was also offered tending to show that the reputation of the deceased as a dangerous and lawless man was bad; that the reputation of the defendant as a peaceable and law-abiding man was good, and that the reputation of prosecuting witness Thomas Boseman was bad for truth in the communities where he had resided." Statement of the Case. The court delivered an oral charge, occupying twenty-seven pages of the printed record, and embracing a discussion of most of the leading principles in criminal law, as well as many extracts from adjudged cases and elementary treatises. Referring to the law of self-defence, the court said to the jury: "A man might be to some extent in the wrong, and yet he might avail himself of the law of self-defence, but what is meant by his being in the lawful pursuit of his business means that he is not himself attempting to kill, or that he is not doing an act which may directly and immediately produce a deadly affray between himself and his adversary. He is not allowed to do either. The only time when he can do an act of that kind is when the condition exists which gives him the right to invoke this law. I say if he is attempting directly to kill, he is not in the lawful pursuit of his business unless it is in his own defence under this law; and when he is doing a wrongful act which immediately contributes to the result – brings into existence an affray in which violence may be used by the adversary and he may kill because of that violencewhen that is the case, the law says he is so far the author of that violent condition as that he cannot invoke this law of self-defence, and it depends upon the circumstances and conditions of the case whether or not he can invoke the law so far as to have his crime mitigated from murder to manslaughter. Then, when he is in the lawful pursuit of his business-that is, when he is occupying the relation to the state of case where the killing occurred which I have named-and then is attacked by another under circumstances which denote an intention to take away his life or to do him some enormous bodily harm, he may lawfully kill the assailant, provided he use all the means in his power otherwise to save his own life or prevent the intended harm, such as retreating as far as he can or disabling his adversary without killing him, if it be in his power. Now, let us go over that again and see what these propositions are. He must be measurably in the right — and I have defined to you what that means - and when he is so situated he is attacked, in this case, by Frank Bozeman, the man who Statement of the Case. was killed, and attacked under circumstances which denoted an intention to take away his life or to do him some enormous bodily harm, he may lawfully kill the assailant, provided he use all the means in his power otherwise to save his own life or prevent the intended harm, such as retreating as far as he can or disabling his adversary without killing him, if it be in his power. This proposition implies that he is measurably in the right. If he is doing any of these things which I will give you after awhile, which deprive him of the law of selfdefence because of his own conduct in precipitating a conflict in which he kills, then he is not in the right; he is not doing what he had a right to do, and this proposition of the law of self-defence would not avail him; he could not resort to it, because his own conduct puts him in an attitude where, in the eye of the law, he is by his own wrong the creator of the necessity under which he acts, and he cannot invoke that necessity. The necessity must be one created by the man slain and which was not brought into existence by the direct act of the defendant contributing to that necessity." After saying that both the accused and the deceased were upon the same plane in respect of the place or house in which they were at the time, each having the right to be there, the court proceeded: "Neither one of them was required to retreat under such circumstances, because the hotel or temporary stopping place of a man may be regarded as his dwelling place, and the law of retreat in a case like that is different from what it would be on the outside. Still, situated as was the defendant and as was the deceased, there was a rule incumbent upon both of them which required that they should use all reasonable means to avoid the condition which led to a deadly conflict, whether that means could have been avoided by keeping out of the affray or by not going into it or by stepping to one side; and this law says again that if a man is in the right, if he stands without being the creator of that condition and that condition is created by the man whom he kills, and the man is doing that in the shape of exercising an act of violence which may destroy his life or inflict great injury upon his person, yet if he could have paralyzed that Argument for Defendants in Error. arm, if he could have turned aside that danger by an act of less deadly character than the one he did exercise, the law says he must do that. If he could have inflicted a less dangerous wound upon the man under the circumstances the law commands him to do that, because when he is doing that he is accomplishing the only purpose the law of self-defence contemplates he has right to accomplish — that is, to protect himself and not to execute vengeance, not to recklessly, wantonly and wickedly destroy human life, but to protect his own life when he is in the right and the other party is in the wrong." Mr. Benjamin T. Duval and Mr. William F. Cravens for plaintiff in error. Mr. Assistant Attorney General Dickinson for defendants in error. I. The court properly charged that malice must be gathered, as an inference of law, from facts and circumstances proved. It was correct in saying that a man is presumed to intend the natural and probable consequence of his voluntary acts. Clarion Bank v. Jones, 21 Wall. 337; Commonwealth v. York, 9 Met. (Mass.) 93, 103; Commonwealth v. Webster, 5 Cush. 295, 305; People v. Potter, 5 Michigan, 1, 8; People v. Scott, 6 Michigan, 287, 296; United States v. Taintor, 11 Blatchford, 374, 375. II. The portion of the charge which relates to the right to kill in self-defence when necessary is criticised on two grounds. (a) It is said that the proof tended to show that defendant had retreated and had declined further contest, and that the above portion of the charge is erroneous because it does not recognize the right of self-defence on the part of one who has begun an affray, has in good faith retired from it, and has thus manifested his purpose, and after that is assailed by his ad versary. This portion of the charge was not upon the particular facts of this case, or upon the theory of either the government or Argument for Defendants in Error. the defence. It was a general declaration of the law of selfdefence, confined to a state of facts where the one who does a wrongful act "which immediately contributes to the result" kills his adversary who followed up this act with an attack. There was no error in what the court said. Self-defence is no excuse for a homicide if the accused brought on the difficulty and was himself the aggressor. 1 Hale, P. C., 482. Gibson v. State, 89 Alabama, 121; People v. Robertson, 67 California, 646; Kinney v. People, 108 Illinois, 519; State v. Neeley, 20 Iowa, 108; State v. Murdy, 81 Iowa, 603; State v. Scott, 41 Minnesota, 365; Allen v. State, 66 Mississippi, 385; State v. Brittain, 89 N. C. 481; Stewart v. State, 1 Ohio St. 66; Stoffer v. State, 15 Ohio St. 47; State v. Hawkins, 18 Oregon, 476. This part of the charge had no application to the case of withdrawal from combat assumed in the brief and which is the foundation of the criticism. If the judge did not charge sufficiently, or at all, on that theory, he should have been so requested. No request was preferred. Therefore, if he charged the law of self-defence correctly as far as he went, the case should not be reversed because he did not extend the charge to a particular theory advanced by defendant. This theory rests on the narrowest of grounds. There was nothing in the proof for defendant tending to disprove the evidence for the government which tended to show that after they came out of the dining-room defendant accosted deceased. The evidence for the defendant tended to show that immediately after the remark of deceased, which followed this accosting, defendant kicked deceased, and stepped back and leaned up against the counter, and deceased sprang at him, cutting him with a knife, and then defendant shot him. There was no evidence here tending to show a retirement from the affray. The whole tragedy was in one act. There is nothing to indicate any interval. Even if there be any grounds for saying that this evidence might have indicated such a purpose, it is so slight that the judge ought not to be put in error for not charging upon that aspect of the right of self-defence without a special request. |