Raftsman's journal. [volume] (Clearfield, Pa.) 1854-1948, 1860-06-27


Esaa,res. for tho prisoner. and closed by j. b.
M'Enaliy, Esq. Tor the Commonwealth
tho counsel acqutting themselves In credi-
liable manner, and faithfully performing their
sworn duty.
Charge Of his Honor, Judge Linn.
The Court after commenting upon the ma
turc and Importance of the case and the neces-
sity for dives,ing their minds of all un1avoraoie
impressions, or bias produced by rumor or
otherwise, instructed the jury In substance as
follows;
That they must first be satisfied that the de,
ceased came TO bis death by gun-shot wound
inflicted by the prisoner.
III this fact be proven to your satisfaction
then the killing is either justiiable, excusable,
or felonious. There is nothing in the case to
warrant you in saying that it is justifiable. Is
it excusabie 2 The prisoners counsel con-
tend that the act was done in self defence, and
if so, excusable. To render the taking of life
excusable, when alleged to have been done in
defence of ones person, it must appear that
the danger was imminent and immediate, and
that there was no other way of escape. Moth
ing but dire necessity will excuse the act, and
it lies upon the prisoner to show that such ne
cessity existed at the time.
(The facts and circumstances attending the
killing were then referred to, and an intima-
ton given by the Court that there was no such
render the act excusable, but the question was
referred to the jury.)
But the prisoners counsel contend that the
act was excusable on another ground, and they
accordingly request the Court to1 instruct
you as follows:
/. Ii the Jury believe that the prisoner at
the time Of the killing, from the threats OF
Thompson then, from his advance towards him
and his assault upon him-frOm his repeated
previous assaults and threats siuce the trial OF
the indictment for riot--from the natural ex-
citability and weakness of mind of the prison
er,with the superior bodily strength OF Thomp-
son to his own, or from any other physical
causes; was in the delusiye belief that great
bodily injury was about to be committed upon
him by Thompson, and the killing was the re-
suit OF that belief, then the crime is neither
murder nor manslaughter, but Sc defendendo,
and the prisoner should be acquitted.
2. The Jury are to take into consideration
the relative strength of the prisoner and the
deceased-the conduct of the deceased iowa rd
the prisoner, since the trial of the prosecution
for riot-the abuse of the prisoner by the de-
ceased at the time of the killing-his threat
ening gestures and advance towards him then
the repeated previous abuse of the prisoner
by the edeceased-yiewing the deceased as the
man he was and the prisoner as he was, with
the other evidence ih the cause, and If there
,ras reasonable ground by the prisoner to appre-
bend death or serious bodily injury at the hand
of Thompson at the time, the killing is Sc de-
fendendo, and the prisoner should be acquitted.
3. If the Jury believe that the prisoner at
the time of the killing, under all the circum-
stances, had reasonable ground to fear great
bodily injury from the deceased-and If they
believe that his retreat into the door after the
threats and abusive language of the deceased,
was with desire to avoid that danger, and
there was no means OF exit from the bar-room
4 A.. 49, IN
al injury, the prisoner was not legally bound
to stand and submit to the violence OF the de-
ceased, but was authorized to protect his per-
son even to the killing of his assailant, the
killing is then Sc defendendo, and the prisoner
should be acquitted.
These points considered together assert that
an apprehension, delusve or real, OF an imme-
diate and actual danger to life, il sincere, con-
stitutes defence to charge of unlawful kill
ling, and that the taking of life under such
apprehension is excusable homicide and neith-
er murder nor manslaughter. In order to
render an act committed under such appre-
hension, excusable homicide; 1t must appear
that there were such facts and circumstances
existing at the time of the commission of the
offence, as would lead to the reasonable belief
by the prisoner that the design on the part of
the deceased which he apprehended was about
to be accomplished, and that he was in immi-
d
lily harm. There must have been such acts
and such an attempt or attack on the part OF
the deceased upon the prisoner as would lead
him to believe that there was immediate dan
ger of death or great bodily harm, from which
he could not escape by retreat from the assail-
ant, or otherwise than by taking the life OF the
party making the attack. The principle con
tended for in these points put by the priso
ner's counsel must be limited in its applica
tion to cases where not only there is reasona
BILE ground to believe that there is a design tC
destroy life, but where that reasonable belle
is based not on surmises or differences, how
ever-but on an actual, immediate and physi
cal attack from the assailant. An illustration
of this principle of the law of self defence un
der such circumstances is given in the books
thus :--"A. in the peaceable pursuit OF his af
fairs, sees B. rushing rapidly towards him will
an outstretched arm, pistol in his hand, ant
using violent menaces against his life as h'
advances. Having approached near enough il
the same attitude, A., who has club in hi
hand, strikes B. over the head, before or a
the instant the pistol is discharged, and of tn
wound B. dies. 1t turns out that the pisto
was loaded with powder only, and that the rea
design OF B. was only to terrify A. Viii
any reasonable man say A. is more crimina
than he would have been if there bad been
bullet in the pistol? II will be noticed first
that b. employed weapon likely to kill, ant
accompanied it with menaces of killing. Sec
ondly, that the parties were in actual confic
at the time and thirdly, that A. used wea
pon not in itself mortal.'' A force which tn,
defendant has right to resist, must itself b.
within striking distance. 1t must be mena
cling, and apparently able to inflict bodily in
jury unless prevented by the force he opposes
The right of rcsorting to force upon the prin
ciple of self defence, does not arise while tn
apprehended mischief exists in machinatior
only. The belief that person designs to xii