Evening star. [volume] (Washington, D.C.) 1854-1972, 1856-07-26
STAR.
JUDGE CRAwFoRD's DECISION.

day upon the instructions which had been
asked by counsel for the defence, which in
structiOns (being nearly the same as those
given to the jury at the first triaD the Judge
explained, as follows:
The instructions asked by defendant were
given substantially at the last trial, with such
short explanations as seemed to be calculated
to aid the jury in comprehending them. They
will be given again with fuller but still brief
explanation, out of respect for the counsel
who have argued for and against the prayers
The jury, as has already been mentioned
should look to the whole evidence and not to
any statement of facts made by either side
short of the whole of it..
The first instruction asked for is in these
| words:
"1st If a sudden affray arose between the
accused and the deceased, and afterwards
several other persons interfered to assist the
deceased, and by these assailants the defend
ant was borne down and beaten, and had rsa-
| son to believe that he was in imminent danger
Of great bodily harm, from which he could
not safely escape, and while in this position
| fired the pistol by which the deceased was
| killed, it was, in Judgment of law, case of
| excusable homicide, and it is immaterial, in
| the absence of premeditation and malice, by
whom the affray was commenced. And il is
| also not material that the accused might have
| escaped before the imminent peril came upon
| him, II, at the time the peril came, he had
reason to believe himself in imminent peril of
| life, or of great bodily harm, and when he
| fired the pistol he could not safely escape"
The branch Of the instruction asked which
L will first notice is, whether it is material
| who struck the first blow under the circum-
| stances in evidence.
| In the case Of sudden ARRAY where parties
fought on equal terms, that is, at the COM
| mencement or onset of the conflict, is matters
| not who gave the first blow-l Russ on
Crime, (S45) 5S7-S) If, upon a sudden quar-
| REL blows pass without any intention TO kill
| or lnJure another materially, and in the course
OF the scufie, after the parties are heated by
| the contest, one kill the other with deadly
| weapon, unless he had q previous intention or
made previous preparation to use such a wea-
pom in the course Of the ARRAY, q Russ on
Crime, 5SS;) that is, when the contest contin-
ues as it began, and there was no addition of
force to either side or change of parties, and
no danger nor reason to believe there was
| danger to life or serious bodily harm or if
one party should be joined by other individ-
uals and by his and their active co operation
there was such danger and no power to re-
treat, then the right Of self-defence arises
| Il Russ. on Crime, 661, Fosters, 277 As In
| the case of manslaughter upon sudden provo
| cation, when the parties fight upon equal
| terms, all malice apart, it matters not who
| gave the first blow, so in the case of excusa-
BILE self-defence, it seems that the first assault
In sudden afrGy, all malice apart, will
| make no difference; If either party gaeit the
| combat and retreat before q mortal round be
gtUen.-Q Russ. on Cr. 662) He must en-
| deavor to retreat, in the language Of 4th
Blackstone s Com. 1891 f; that is, he is obliged
to retreat if he can safely; but if by reason of
the herceness of the attack, or by surround
| ing obstacles or impediments, or by his hav-
| ing been held, and so prevented from moving
! away, he could not retire from the contest and
retreat with safety, the law does not require
it of him, but he is excused in the same man
| ner M as If ne had fled Il Hale's P. C Qs47)
| 4o2. Wharf. G. S 256. Russ on Cr. 66l.
| I. S. VS.. Noah Green. 2 It. III. C.'s opinions
| 179, decided by this Court at December I.
| lo5l) The moment when a man is bound 10
| retreat is that in which the danger becomes
apparent Up to that time there is nothing
| to retreat from. A man may, to be sure, de.
| cline combat when there is no existing or
| apparent danger, but the retreat to which the
| law binds him is that which is the conse-
quence. (Foster, Cr. Law Several blows
were struck before the retreat, and several
| cases cited by counsel on boM Sides show this
| to be law From these well established prin-
ciples it results
Thatif you believe, from the whole evidence
which you have heard on this trial that
| sudden affray arose, without malice on either
SIDE, between the deceased and the accused,
and that afterwards several other persons in
| terfered to assist the deceased, and that bv
them the prisoner was borne down and broken
down and beaten, and had Just reason to be-
lleve that his life was in danger, or that some
grievous bodily harm was impending over
him, from which he could not safely retreat,
and that, thus situated and SO circumstanced,
| he fired the pistol to save his own life from
a nr h Exn,s
| it is a case Of eXcusable homicide
If you believe from the evidence that there
was an absence of all malice, il is not mate
rial who struck the first blow The defendant
was bound to retreat, If lie could, before he
can be excused on the foot of self. defence
| but if you believe from the evidence that he
had, underline circumstances mentioned above.
good ground to believe that his life was ir.
danger or that he was about to receive some
| grievous personal harm, and that at the time
| this danger was apparent, and when he fred
the pistol he could not safely retreat it is not
| material that he might have escaped at the
| commencement of the affray.
The following are the remaining instru,-
tions asked for by the defence, and Judge
Crawford's decisions thereon:
I'd. TO have authorized Herbert to take
! the life of Keating the necessity for doing so
need not be actual for if the circumstances
were such as to impress his (Herbert's 81 mind
| with the reasonable belief that such necessity
was impending it is sufficient
There is, strictly speaking, no authority,
except the order of the law, for taking
| mans life, but a homicide may be excusable.
If the defence of an accused party is put
upon the ground of the act charged being me-
cessary to save his own life, or his own person
from great bodily harm, the question is, had
be just foundation, proper reasons for the be-
lief that he was in danger; not what he
thought, but whether the circumstances which
| surrounded him were such as to create the
apprehension of said danger in the mind of a
reasonable man? And that is a question for
you to determine. If circumstances did exist
that would justify the apprehension of danger.
then it is not necessary that the danger i'm
point Of fact existed. UNITED States as
Cook, December term, 1S45; U. S. as Usher,
June term, 1S47 iva 107, Hale, p. C.. QS47l
4S1, 4S2, Russ on Cr. 669
"3d. If the jury believe from the evidence
that at the time the pistol was discharged Her.