#### THE STATE vs. SOLOMON MORGAN.

December 1842.

When A., being within striking distafice, raises a weapon for the purpose of striking B. and at the same time declares that if B. will perform a certain act he will not strike him, and B. does perform tile required act, in consequence of which no blow is giren, this is an assault in A.

It *seems*that an officer does not, in any case, become a trespasser by seizing under an execution privileged articles, súch as artas for muster. Certainly he does not become so, unless he seizes with a knowledge that they are privileged goods.

If one man deliberately kills another to prevent a. mere tresspass on his property, whether that trespass could or could not be otherwise prevented, it is murder; and consequently an assault, with intent to kill, cannot be justified on tlie ground that it was necessary to prevent a trespass on property.

A man. shall not,.even in defence of his person or property, except in extreme cases, endanger human life or great bodily harm.

In criminal as in civil cases, if there be an assault, it cannot be justified other than by shewing specially all the circumstances,, which render the act rightful ; and the sufficiency of the alleged justification is a matter of law.

The case of *Stale*v *Crow,*1 Ired. Rep. 375, eited and approved.

Appeal from the Superior Court of Law of Henderson County, at Fall Term, 1*842, his Honor Judge Pearson presiding..

This was an indictment against the defendant for an assault and battery on Elias Cantrell, to which he pleaded *“*not guilty.” The jury impannelled to try the issue returned the following special verdict: Elias Cantrell, on the day set out in the indictment, being a constable, and having a *fieri fa-cids*against the- goods of.the defendant Morgan, went to the House of Morgan, in the county of Henderson, and, in the presence of Morgan’s wife, she forbidding him to do so, took into his hands a gun, the property of Morgan. She then proposed that Cantrell should not take the gun off until Morgan was sent for. Cantrelf assented, and held the *187gun in his hands, in the presence of the wife, in the yard, having stepped out of the house into the yard with the in his hands, until Morgan came, which was about ten minutes. Morgan came up with an axe in his hand, and required Cantrell to give up the gun. Cantrell refused; whereupon Morgan stepped up within reach of him, held the axe up in a position to strike, and said “ give up the gun or I’ll split you down.” Cantrell did not at the time give up the gun, but proposed some arrangement, upon which Morgan let the axe down. The matter was arranged, and then Cantrell gave up the gun. Morgan was, at the time, liable to muster, and the gun was his arms tor muster. The jury further find, that Morgan, at the time he went up to Cantrell and raised the axe within reach of him, intended to strike, unless Cantrell gave up the gun ^ but did not intend to strike, if Cantrell gave up the gun — that Morgan used no more force than was necessary to eompel Cantrell to give up the gun. Whether, upon these facts, the defendant, in law, committed an assault, and, if so, whether the assault was justified as being in the defence of his property, the jury are ignorant and pray the opinion of the court. If the court, upon these facts, is of opinion that the defendant is guilty, then the jury so find; and if the court is of opinion that the defendant is not guilty, then the jury so find.

' The court was of opinion, that raising the axe, with an intention to strike unless the gun was given up,|did amount | to an assault! for if a man draws a weapon, intending to strike if the other does not pull off his hat, or surrender his money, or do some act which he has no right to require, the offer and intention amount to an assault, although it be his intention only to strike, provided his unlawful terms are not complied with. But the court was of opinion, that, as the officer had no right to take the gun under the execution, although he did trke it in his hands, yet the wife being present, when the defendant came up, the possession of the gun was not so lost by him and acquired by the officer, as to take from him the right to justify an assault in defence of his property; for a man may not only prevent another from laying hands on his property, but he may prevent him from *188taking it off, although it happens to get into the hands of the before he is stopped — the possession for this purpose not being lost, while the property remains in the presence °f his agent or himself. The court, therefore, pronounced judgment in favor of the defendant, from which the Solicitor for the State appealed to the Supreme Court.

*Attorney General*for the State.

No counsel for the defendant.

Gaston, J.

Two questions are presented for our consideration on this special verdiet, and for the purpose of per-specuity it is necessary that they should be examined separately. The first is, whether the defendant committed an as - sauit-; and the second, if he did., whether that assault was justified as having been committed in the rightful defence of his property.

' Upon the first question, this court entertains the same opinion, which was expressed in the Superior Court. There are several ancient cases in which it was held, that an assault might be committed by threats of future violence ; but it has long been settled, that words alone cannot constitute an assault. They may endanger the public peace, but do not break it. There is no assault, unless there be some *act,*amounting to an attempt or offer to commit personal violence. The instances usually given of such attempts or offers to do wrong to the person of another, are “ by the striking at him with or without a weapon, or presenting a gun at him within a distance which the gun will carry, or pointing a pitch-fork at him standing within the reach of it, or by holding up one’s fist at him in an angry threatening manner.” 1 Hawk. c. 15. The law regards these acts as breaches of the peace, because they *directly*invade that personal security, which the law guaranties to every citizen.— They do not excite an apprehension that his person may be attacked on a future occasion, and thus authorize a resort to cautionary remedies against it; but they are the beginnings of an attack, excite terror of immediate personal harm or *189disgrace, and justify a resort to actual violence to repel the impending injury and insult. But even acts, which *facie*and unexplained are undoubtedly assaults, like other acts which are not unequivocal in their character, may be shewn to be in truth different from what they purport to be; that they are not attempts or offers to do harm, but merely angry gestures without any accompanying purpose of mischief. The attending circumstances may plainly shew this, and, among other circumstances, the declarations of the party at the time, inasmuch as such declarations are ordinarily indicative of the party’s purpose, are very proper to be considered and weighed. The ordinary illustration of the doctrine, that a seeming assault may be explained away by the declarations of the supposed assailant, is the very familiar case, where a man laid his hand on his sword and said to the person, with whom he was quarrelling, “if it were not assise time, I would not take such language from you.” There is also an illustration of it in the case of the *State*v *Crow,*1 Ired. Rep. *375,*where the defendant, when he raised the whip, used the words, “ if you were not an old man, I would knock you down.” In both it was held to be a fair subject of enquiry, whether, at the time these acts were done, there was a present purpose of doing harm, and that, if there was not, the acts did not amount to an assault. But these, and all the cases within our recollection where this doctrine has been held, were cases, in which there was a declared intent not to do harm at the time. The present case is one of a very different character. The act was not only apparently a most dangerous assault, but accompanied with a present purpose to do great bodily harm ; and the only declaration, by which its character is attempted to be changed, is, that the assailant was not determined to execute his savage purpose unconditionally and without a moment’s delay. He had commenced the attack and raised the deadly weapon and was in the attitude to strike, but suspended the blow, to afford the object of his vengeance an opportunity to buy his safety, by compliance with the defendant’s terms. To hold that such an act, under such circumstances, was not an offer of violence — not an attempt to commit violence, would *190be, we think, to outrage principle and manifest an utter want of that solicitude for the preservation of peace, which characterizes our law, and which should animate its administra-iors- To every purpose — both in fact and in law — the attack on the prosecutor was begun — and in the pause, which intervened before its consummation, most happily.for both parties an arrangement was made, which prevented the probably fatal result. But this pause — though intentional, and announced when the attack began — does not prevent that attack from being an offer or attempt to strike. If a ruffian were to level his rifle at a traveller, and announce to him that he might have fifteen minutes to make his peace with his'God — and the unfortunate man should save his life by prayers, by remonstrance, by money, or by any other means before the expiration of that time, could it be pretended that there had been no attempt nor offer to hurt him, because the intent was not to kill instantaneously, and therefore did not accompany the act? Will it be doubted, if a bully should present his pistol at a 'citizen and order him, under pain of ■death, not to walk on the same side of the street with him, whether there was an offer of violence, because the purpose to kill was not absolute but conditional merely ? Wherever the act is done *in fart execution*of a purpose of violence — whether that purpose be absolute or provisional — makes no •difference as respects the question, whether the act be an assault. In both cases the assailant equally violates the public peace. In both he breaks down the barrier which the law has erected for the security of the citizen. In the former he sets •up none in its place. In the latter, he substitutes for it the protection of his grace and favor.

Upon the second question, the opinion of this court differs from that of the Superior Court. If an assault be committed, but it is done in the lawful defence of one’s person or property; the defendant cannot, in a civil action, give this justification in evidence under the plea of not guilty, but must set it Forth to be judged of by the court by a special plea. The act done was in law an assault, notwithstanding it was rightfully done. His plea therefore confesses the assault charged in the declaration, but avers that the plaintiff *191•cannot maintain an action therefor, because of the special circumstances rendering the ;.ct, complained of, one, the defendant might of right do. But upon an indictment for an assault, the traverser may, under the plea of not guilty, shew any matter of justification. There can be no of-fence against the community, where the accused has done no more than the law sanctions, and it is most convenient for the accused generally, that they should not be tied down to the strict rules of pleading. But in criminal, as in civil cases, if there be an assault, it cannot be justified other than by shewing specially all the circumstances which render the act rightful; and the sufficiency of the alleged justification is a matter of law. The defendant in this case is guilty of an assault, unless the facts found by the verdict, make up a legal justification. In the judgment of this court, they do not.

In the verdict it is found that the gun, which the constable seized under they?, fa. against the goods of *the*defendant, was his *“*arms for muster,” but it is not found that the / constable either knew that fact, or was notified thereof by J the defendant or any other person, Being his arms for mus- I ter, the gun was by law privileged from seizure. But we are *J*not prepared to hold that the seizure was necessarily a tres-' pass. If a sheriff under a writ against A. arrest B, he is guilty of a trespass, because he acts wholly without authority. But it he arrest, under a valid writ, one who is privileged from arrest, he is not guilty of a trespass. See *Countess of Rutland’s*case, 6 Co. 53. *Tarleton*v Fisher, Doug. 672. *Cropley v Shaw, 2*Bl. Rep. 1085. *Cameron v Lightfoot,*Id. 1190. *Parsons*v Lloyd, 3 Wils. 340. Watson on Sheriffs, 91, 92. The appropriate remedy for (he privileged person so arrested, is to move the court for his discharge. So, if a sheriff, under a *fi.fa.*against the goods of A., take the goods of B., he is a trespasser. But it would seem, that if under the *fi.fa.*he take goods in a privileged place, as in the King’s palace, or take goods which the law exempts from seizure, as the goods of a certificated bankrupt, or of a person discharged under an insolvent act, he is not a *192tresspasser, but the party must apply to the court for relief. Watson on Sheriffs, 174, 175. *Winter*v Miles, 10 East, 578. *Lister*v *Mundell,*1 Bos. & Pul. 427. And the distinction in both classes of cases seems reasonable. The sheriff or officer, acting beyond the mandate of the writ, is necessarily a wrong-doer. He must therefore take the responsibility of determining, whether the person or the goods taken be the person or goods, which he is ordered to take.— But privilege — or exemption — is a legal advantage, which may or may not be claimed. Whether the person or goods be privileged or not, he has not the means nor the judgment to decide. Among the articles privileged from seizure, are “ necessary school books.” Must the officer decide at his peril what school books are necessary ? One bed and furniture, one bible, one loom, one hymn book, &c. are privileged. Which of these, if there be many, must he leave, and how is he to know whether the defendant in execution has but one? But, at all events, if the seizure of privileged goods can make the officer a trespasser, we are satisfied that it can only be, where he seizes with a knowledge that they are privileged goods. Our opinion, therefore, is, that the substratum of the alleged justification is removed in this base. It does not appear that the constable was a trespasser.

But we should be reluctant to decide the case upon this ground only, as possibly it was au inadvertent omission in the verdict in not stating, that the constable knew that the gun seized was the defendant’s arms for muster ; and, therefore, we proceed to a further consideration of the justification claimed for the assault. Assuming, then, that the constable had wrongfully taken the gun, and that the defendant had a right to require its return, and that exertion of force, nothing short of that which was begun on the part of the defendant, would have availed to compel its return, in our opinion the assault is not justified. It was made *with a deadly weapon,*which, if used, would have probably occasioned death, and made without any previous resistance on the part of the officer. It was, therefore, an assault with in*193*tent to*kill. If this intent were lawful,- the assault with that intent was lawful. If this intent were' unlawful, an with that intent cannot stand justified. Now, when it is said that a man may rightfully Use as much force, as is necessary for the protection of his person or property, it should be recollected that this rule is subject to this most important modification, that he shall not,- except in extreme cases, eh-danger human life or great bodily harm. It is not every right of person, and still less of property, that can lawfully be asserted, or every wrong, that may rightfully be redressed by extreme remedies. There is a-recklessness — a wanton disregard of humanity and social duty — in taking or endeavoring to take the life of a fellow being, in order to save one’s self from'a comparatively slight wrong — which is essentially wicked, and which the law abhors. You- may not kill, because you cannot otherwise effect your object, although the object sought to be effected is right. You can only kill to save life or limb, or -prevent a great crime, or to accomplish a necessary public duty. Thus an officer, acting under a legal process, has a right to arrest the person against *whom*it is directed, and.to retake him, if he break custody;. and for such purpose he may and ought to use necessary force — yet, if the process be in a civil case, or a misdemeanor only, and the officer, although lie Cannot otherwise arrest or retake his prisoner, intentionally kills him, it is murder. 1 Hale, 481. Foster, 271. 1 East P. C. ch. 5, s. 306, 307. Tiie purpose is indeed rightful,.but it is notone of such paramount necessity as to justify a resort to such desperate means. So it is clear, that’ if one man deliberately kills another to prevent a mere trespass on his property — whether that trespass could or could not be otherwise prevented — he is guilty of murder. If indeed he had at'first used moderate force, and this had been- returned with such violence that his own life was endangered, and then he killed from necessity, it would have been excusable homicide. Not because he could take life'to'save his property, but he. might take the life of the assailant to save his own. If these prin-*194ciptes be right, and we think they cannot be contested, it' would follow that, if unfortunately the rage of the defendant in this case had not been pacified, and the fatal blow had fallen and death ensued, it would have been a clear case of murder. If so, then the assault made was an assault with intent to commit murder. A justifiable assault with intent to commit murder is a legal solecism.

This opinion must be certified to the Superior Court of Henderson, with instructions to render judgment for the State, upon the special verdict.

Per- Curiam. Ordered accordingly.