Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1874-06-11

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TAI malsgnIIy lnAn human IraIIty, irOn
which malice may well be inferred.
In all cases OF mutual combat, that is
where parties fall out and fight willingly,
and one is slain, the killing will be but
voluntary manslsnghter, provided the occa-
sion was sudden and unprecedented, and
no undue advantage is taken on either side.
And it may be stated tina. no sort of provo
cation will extenuate, if it is sought for or in
duced by defendant or if sufficient time
elapses after the provocation for passion to
subside and reason TO interpOse; or where
there is sufficient evidence of malice.
But in this case it is insisted by the
learned counsel for the defendant, that
although the defendant may have shot and
killed Eagan as charged, still that he ought
to be excused and acquitted, on the grounds
that the killing was Of necessity and in self
defense; and the main force of their argIl-
ment has been directed to this excuse or
plea Of selfdefense.
Now if the jury should be Of the opinion
from the proof in the cause that the killing
was done by this defendant, but that twas
done in the proper and lawful defense Of
his person, Or in other words, it was done
to save his own life, or to project himself
from such great bodily harm as might en-
danger his life, then the killing would be
neither murder or manslaughter, but homi-
eide upon selfdefense, and he should be
acquitted.
But to excuse the homicide upon the
ground of self-deiense, it ought to appear
from the proof that the defendant was in
no fault himself; that he was aSsailed, me
naced or attacked by the deceased, under
such circumstances as to furnish reasonable
grounds for believing or experimenting that
| the deceased intended to tase away his life
| or do him some great personal injury; that
the danger of life or great bodily harm was
either real or honestly believed to be so by
| the defendant at the time he shot; and that
such apprehension or belief was
based upon reasonable and suffi-
cient grounds, such danger being
| there apparent and imminent. Previous
| threats, menaces OT hostile demonstrations,
| however violent, would not Of themselves
| Justify or excuse the shooting; the deceased
| must have used some words or expressions
| or made some hostile demonstration, or ex-
hibited some other overt acts at the time,
| clearly indicating a present purpose
| to do the injury. Any hostile demon
| strations, threats or menaces, which the de-
| ceased may have made toward the defendant
| previous to the killing can only be loOkedto
| in connection with what he didat the time
| of the killing, as grounds of reasonable ap-
| prehension. The deceased's character for
| violence, and his animOsity for defendant,
| as indicated by his words and actions, or
! such of them as may be proven, both before
and at the killing, are proper matters for
the consideration of the jury upon the
question of reasonable apprehension OF
danger. Even if the jury should be OF
the opinion from the proof, that there were
sufficient grounds for experimenting danger
| from the deceased, but that the killing
was not done under such apprehension,
| or that defendants fear was feigned or pre-
| tended, then such defense will be unayail-
able,s To make such defense avail
able, the proof ought to satisfac-
| torily show that the circumstances
we're such as not only to au-
thorize the fear of death or great
| harm, but that such fear or Apprehension f
danger was really ard honestly entertained
by the defendant, and that he took the life
of the deceased under an honest and we'll
| founded belief that it was absolutely nee
essary TO kill at that moment to save him
self from a like injury. For a party
cannot be excused upon the ground
| of self-defense if he can withdraw
from the menaced danger with safety
to himself or the necessity for
taking the life of his adversary can be
avoided. If the jury should believe, fiom
the proof, that, at the time of the killing,
the defendant was in actual, real or appar-
ent danger of death, or great personal lnJu-
N, but that such danger, or apparent dan
ger, was sought after, induced or brought
about by the design, Continuance or fault OF
the defendant, il could avail him nOth-
ing, hnd This plea Of selt-de-
| tense must fail. If, however, such
real or apparent danger did exist, and the
defendant had reasonable grounds to fear
and diG fear, and such danger or apparent
danger was not induced or brought about
by the fault or Continuance of the defend
ant, and he acted upon such fear or appre-
hended danger in good faith and killed the
defendant from such fear and under such
belief to save himself from death or great
personal injury; then he should be excused,
| although i'll fact there was no actual danger
and the deceased may not have intended
any harm But if any less injury than
death or great bodily harm was apprehend-
ed or feared by the defendant, or indicated
| by the circumstances, then the defendant
could not be excused, but it might extenu-
ate or reduce the degree of the crime.
1t NAV be further stated, that when
ever party kills another with a deadly
weapon, before he can excuse himself upon
the plea of self defense, lie ought TO be able
to satisfy the jury that such mode of de-
tense was necessary, that he did all he
could to avoid it,that il was absolutely nee
essary OF that ne honestly believed it 10 be
necessary to kill at that time TO protect
his own life or TO protect himself
from such serious bodily harm, as
wonld give him reasonable Apprehension
that his life was in immediate danger; that
he used the weapon having no other means
Il of resistance, and 10 visible means oil
escape: that he had retreated as far as he
could with safety to himself, or that the at
\ tack, or menace, or attitude OF his adveTSa-
Nv, was such that it wOuld have been more
perilOus to retreat than 10 stand.
Upon the whole the jury ought to be sat
isfed beyond all reasonable doubt Of the
guilt of the defendant before they would
find him guilty of any of the degrees Of
homicide contained in the Indictment. II
the Jury should be in doubt whether the
killing was murder in the first or second
| decree. they should find the less oifense; SC
between murder in the second degree Of
manslaughteI; or if the jury should be in
! doubt whether the killing was done wrong
fully and feloniously, or justifiably and IL
selfdefelise, they should acquit the defend
| ant.
The jury are the exclusive judges of the
| credibility of each witness presented, and
the force and effect of their testimony. If
the Jury should be satisfied that any wit
ness has sworn cOrruptly and knowingly
falsely to any one material fact in issue
they would be warranted in disregardins
his testimony altogether, unless corrobO
rated by other reliable parties in the case
Whenever there are discrepancies or seem
ing conflicts in the statements of wit
nessess it would be the duty of the jury Il
endeavor to reconcile them so as to giy'
/ credit to all, if the same can fairly b
done and they would attribute them rathe
| TO mistake or want of knowledge than to
corrupt motive. If that cannot be reason
ably and fairly done, then the jury SHOULD
give credence to such witnesses, as, from
; their manner of deposing, their character
| and particularly their means of knowledge
5 | - saar, n ha most entitled 10 credit.