The daily union. [volume] (Washington [D.C.]) 1845-1857, 1854-06-23

Q
manslaughtef Where parties engaged in combat
equal ters and there being occasion to TO suc
means for and protection, kills the other
n he is guilty of this crime
But where in sudden aray is beaten or ASSAULTED
IN such manner as TO peril his life place him in dange
of great bodily harm, when there is other way Of
cape he has right 10 kill his adversary and the law ca
il justifabe killing in selfdefence The law
very tender of human life and therefore homicide ii
is spoken Of BY the English authorities
cusable rather than justifaben And thus the definition
Of it given by Lord Bacon is ~ blanable necessity!
Yet though blamabe it is necessity and it
acquits party 1t described as that whereby in sud
den broi or quarrel man may protect himself from
sauls or The like by killing the who assaults him
But II must not be used cloak for resengefu and
wicked heart for we are explicitly told that may moi
exercise it. but in where sudden and violent suffering
would be caused by waiting for the intervention Of the
i law
Language cannot be palmer than that of this dstin
gnished author Judge Blackstone aAnd his' he says
is the doctrine of universal justice, well municipal
law" II is another principle equally well established thai
except In cases OF extraordinary violence where 1t
be done without subecting him to enormous peril
must retreat to the wallp other impediment
which he cannot pass before he may take the life Of his
adversary,
Gentlemen, shall trouble you with but few more ex-
tracts from this any other author You in what JUS
able homicide consistsyou see that YOU have a right
to kill when you cannot otherwise escape death
bodily harm but that you must exercise this right only in
a case of extremty-only in sudden aifrayonly when
subjected to condition where you longer defend
yourself but by killing 1t not every blow that
sarly gives the right to take life If the person be
ure the blows not severe and the parties not unequal in
physical strength or the who is assaulted may retreat
without further harm the homicide is not justifable.
l. Cases have been read to you that if provoke
himself for the sake obtaining preex to carry
out the malignant and wicked purpose of his heart and
during it, kill his opponent il is not excusabe but is
der think yon readily perceive however that this prn-
ice seeking opportunity to kill and provoking quar-
rel that he may do So carries out his purpose the act is
murder Mr. Gibson read to you yesterday Of this
kind but here the defendant sought quarre-no
ba-no difficuty-he sought reconciliation. With what
proprey then do the gentlemen attempt TO confound in
your minds cases where men seeking to exercise the
malice OF wicked and revengefn heart, with such
as ths2 They have connexion whatever
| 1t is well-esabshed principle, (Wharton's American
ASSAULT and do aia that no words win justify an as
sant" Mr. Ward had made assault 1t is true he APP
piled opprobrous words but they neither constituted
justified one The gentlemen have told you their
own witnesses have testified it-tha Mr. Butler was
man Of courage, who would not receive such language
without giving blow in return. do not complain Of
them for showing that he was man of spirit; but do
contend that they have TO look to the law for
any justification of his conduct lie had right under
the circumstances to take redress into his own handsthe
principle is laid down in many words. He first in
fulthe made the first assault Ward forced back
until he could retreat furthern the literal language
of the law, he had been driven the wall 2 and there
pressed back and bent down and beaten in the face by his
adversary, he shot him.
Now, gentlemen have not brough, this case not only
within the principles, but within the words OF the
law relating to ustable homicide? And have not done
it by relying subtletes and echncalites but have
proved 1t on the natural and eternal principles of sede
| fence
We told that where there any other probable mode
of escape without losing life receiving serious injury
man is not justifable in killing True; but am not
aware that any such possibility existed here The pris
confined, and beaten, you have heardCamp-
bell just taking the tongs give his assistance neces-
sary and Sturgus also in motion will say more
about the extreme debility and eebeness of the accused
| for you know it and perceive it, You also know
Notwithstanding the assumption Of the prosecuonthat
Butler a of than ordinary muscular power
he had habit
in the gymnasium and out of it, those exercises that tend
directly to develop and strengthen the muscles Of the
the habitua welding Of the blacksmths hammer
The many excellent qualities of the deceased and his
virtuous character freely admit deplore his death
The aed circumstances that led to it all before you
That death has been the effect Of
nate circumstances-but without any prcmeditaton
malice the part Of the accused. The circum-
stances which show that his hand inflicted the fatal blow
show from the nature and suddennes of the OCCASION that
there of that malice wickedness which alone
could make ii crime His character, too, pleads like
angels voice against such an mputaton upon him.
In his state ofeebleness irritation he may have natu-
rally overrated the violence and injury with which he
threatened and the necessity Of protecting and defending
himself by shooting the deceased. But surely man. in
such condition is not TO be sacrificed for msudgent
of the exact degree of the necessity which warrants him in
such defence
You will make all just and humane allowances on this
subject You, sitting here in quiet solemn consideration
must yourselves feel difficulty in deciding the exact
degree Of violence with which he threatened and the
lawful extent of the defence which il justified How then
you expect him to decide those questions in the strife
! and passion of the moment2
The decision in Tennessee to which your attention has
been called establishes the principle that if man. from
good beres his life his person TO be in danger
he has the right to kill He must act upon the instant
not at al-in the heat of passion and conflict and when
his for observation limited. The real question
here is whether Matt Ward in his feeble and reduced
don did not apprehend and that from good reasons that
he in danger II he did, there gult-no crim-
! nality-and he deserves acquittal.
The gentlemen for the prosecution have spoken OF the
declarations of Mr. Butler his dying bed. Now the
inquiries of DR. Thomson made for the purpose Of as
certainng medical fact He desired TO learn what was
the position Of Butler when he received the shot and But
! Ter replied TO him that they cnched. The o
Professor Butler was raised and was then found that hs
probe followed the wound, at least for short distance
when before il did not penetrate al ALL This demonstrates
anaomcally naturally necessarily that Butler and Ward
have been engaged in combat when the fatal event
occurred Why the hand Of Butler raised II he was
not engaged in struggle This is the legitimate infer
4 ence from the testimony given by DIR. Thomson.
But Barlow present at the time and while DR.
Thomson engaged in taking out his instruments and
preparing to attend his professional duties he with
curiosity perfectly natural inquired how this had hap
pened. had been shot down under peculiar cir
cumsanccs and IL not strange that Barlow should fol-
low him Colonel arneys residence and ask how II had
been brought about Butler replied "e gave me the lie
and struck him for II then he shot me- According tc
this Butler admitted that he struck the first blow II II
true he was provoked by the language used but You have
been reminded that neither those any other words jus
n tify blow.
II But the counsel for the Commonwealth contend that
Butler could never made those statements simply be
cause DR. Thomson did not hear them The doctor him
self however has told you that there five six per
In the and you Judge for yourself whether
physician under such circumstances when his mind was