The Columbia Democrat. [volume] (Bloomsburg, Pa.) 1837-1850, 1838-02-10

OF lmpueuj WHICH may DC ellner DOttt3ltUfY
upon sudden heat, or invoLafary but in
the commission of some unlawful act'' un-
der the degree of felony. Itis only with
voluntary manslaughter that the jury have
any thing to do in the present Indictment.
With involuntary manslaughter they have
nothing to do at present further than to ac-
quit if the prisoner is guilty ofno higher
offence.
Before we proceed 10 inquire whether
the prisoner is guilty of either fthe offence
charged In the Indictment, it is proper to
ascertain if he has any available ground Of
defence. After hearing the evidence in re-
gard to the blow inflicted by the prisoner
upon the head fthe deceased, with an axe,
and the evidence of the three gentlemen
who conducted the post mortem examina-
lion, the prisoners counsel very candidly
and very properly admitted that the blow
was given by the prisoner, and that it eau
sed the death of the deceased. Is there
any substantial grounds of defence resting
upon the principles of self-protection! Jus
tyiabfe Sel(-d9ence is when man at
tempts by violence or surprise to commit
known felony upon the person, habitation
or property of another. In that case the
individual whose rights are thus assailed
may, if he finds it necessary, to kill his as
sailant in his own defence, and the act is
perfectly justifable in him. But on sur
vey of the evidence in this case we find
no indication of any felony having been at
tempted by the deceased upon the person,
habitation or property Of the prisoner
The court are unable to perceive any suffi-
cient defence arising out of this branch of
the case. But if the prisoner is net per-
perfectly justifable is he ercusable, upon
grounds of self-delencel The law has made
a slight distinction between acts which are
perfectly justifaJIe and those only ercusa-
BILE. At the present day if the prisoner is
ercuSed it amounts to the same thing as
being justified npon grounds ofselEdeience
When there is an attack, under circumstan-
ces denoting an intention to take away life,
or TO do some enormous bodily harm, it is
lawful for the party thus in danger to kill
the assailant if all other means are used o.
therwise to prevent the injury or save the
life Of the party attacked. The means to
be used in this case in order to avoid the
alternative of taking the life of another in
defence oiyour own, are such as retreatIng
as far as possibly consistent with your own
safety or disabling tho adversary without
killing him if it be in your power. When
the attack upon an individual is so sudden,
fierce or violent as that retreat would not
diminish but increase the danger, he may
Instantly kill his adversary without retrea-
ting at all. When from the nature of the
attack there is reasonable ground TO believe
there is design to destroy life, or commit
any felony upon his person, killing the as
sailant will be eXcusable humicide, although
1t should afterwards appear that no felony
was intended. 1t is for the jury to decide
whether the attack upon the prisoner demo-
ted an intention to take away life or to do
him soms enormous bodily harm. If so,
and he had no other means Of preventing
the injury, or preserving himself, he is ex-
cusable, and ought in that case to be acquit-
ted. In like manner, if the jury believe
that the attack was made under circumstan-
ces which induced the prisoner to believe
that there was design to destroy his life
or to commit any felony upon his person,
the prisoner would be excusable, although
in reality no such injury or felony was in
tended. 1t was for the jury to decide
whether any circumstances existed which
presents case Of excusable homicide ac-
cording to the legal principles already laid
down. Still the court will give the jury
the benefit of their opinion on this question.
The attack was made without any weapon,
and without any attending circumstances