The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-10-13
attacked, that you should acquit him. That is

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not the law"
To such portions Of the charge as above SET
out the defendant by his counsel, excepted.
Tho jury found the .prisoner guilty Of man.
slaughter in the second degree, to which YER
dict, counsel for defendant excepted as being
against the law and tho evidence.
The Court in addition 10 the various matters
excepted to, instructed the jury that "To make
homicide excusable on the ground Of self
defence, tho danger must be actual and urgent.
No contingent necessity will avail; aud when
the pretended necessity consists Of the az yet,
unexecuied Vaccinations Of another, the de-
fendant is not allowed TO Justify himself BY
reason OF their existence. The right Of resort
ing 10 force, upon the principle OF self-defence,
does not arise while the apprehended mischief
exists in machinatiOn only, nor does it continue
so as to authorize violence by way Of retalia-
ton, or revenge for a past injury He must
first retreat as far as he safely can, to avoid
the violence threatened by the party he is
obliged to kill. The retreat must be with an
honest intention to escape, and he must fee as
Tar as he conveniently can, by reason Of some
impeachment, or as far as the ferceness or the
assault will permit him, and then in his de-
fencc he may kill his adversary. This law is
the best, the safest, the most conducive TO
morality, safety and protection Of human life.n
The Court also said: "There are three de-
grees of manslaughter. 1 do not agree with
the counsel for the defence, that il is the pro-
vince of the Jury to weigh the consequences Of
the result Of conviction in the several degrees
and apportion punishment in this case: that
responsibility rests with the Court. You must
find the degree from your estimate Of the facts
Of the case"
We consider this last instruction to be cor
rect, and that it covers the exception on this
point.
The case of Granger rs. The Slais, (Tennes-
see) 5 Yerg. 459, cited by counsel for the de-
PENDANT, has been frequently overruled, ex-
planned or disregarded.
In Rippy rs. The !Stdte, (Tonnessee) Head,
III, Carruthers J. in delivering the opinion Of
the Court, thus alludes TO il; 1.-THE doctrine
OF the Granger case, as explained by that of
Copeland q Hump. 429,) is undoubtedly the
law. Yet no case has been more perverted and
misapplied by advocates and iuries."
We consider the contention made on behalf
OF the defendant, that he was in fear of his life,
and was therefore authorized to carry a loaded
revolver for protection, and to use il as he did,
is untenable
1t appears TO us by his conduct he eyincel
no such fear, but armed himself for the pur-
pose Of shooting the deceased on the slightest
provocaiion. Surprising community TO be
without an authoritative police government, n
person may be justified in sacrificing the life
Of another, actually seeking his life But it is
otherwise where there is opportunity TO invoke
the interposltion Of the law. a man who DO
lieves bis life is in danger, but whose rights
are not as yet attacked, ought, if lie has access
TO tribunal clothed with the ordinary powers
of justice of tue peace, (which is the case in
this Kingdom, penal Code, Chapter ~ to
apply TO such tribunal TO interfere. If he have
ground enough to excuse him, in killing the
person from whom he believes himself in dan
ger, he has ground enough 10 have that person
bound over to keep the peace or committed in
default Of bail.
Wharton's Criminal Law, See. 4s7.
The present is the first case of exactly this
character in this Kingdom, and it becomes the
duty of the Court to declare the law on the
subject. The law has at all times been Jealous
of human life and person who slays another
does SO at his own peril, and must show mat
tiers in justification, excuse mitigation to the
satisfaction Of the jury.
That eminent Judge Sir Michael Foster
stated the law as follows: "Where known
felony is attempted upon the person, be il to
rob or murder, here the party assaulted NAV
repel force by force and even his servant at
tendant upon him, or any other person present
may interpose Cor preventing mischief. and if
death ensueth, the party so interposing will bo
justified. In this case nature ard social duty
cooperate" Fost. Or. Law 274.
Mr.. East P. C. 27l states the law as fol.
lows: "a man may repeI force by force in
the defence of his person, habitation or mo-
perty, against one who manifestly intends or
endeavors by violence or surprise to commit
known felony, sucb as murder. rane robborv
arson, burglary and the like, upon either. In
these cases he is not Obliged 10 retreat, but
may pursue his adversary until he has secured
himself from all danger, and if no kill him in
80 doing, i. ia called iustiiable homicide"
The killing is limited by the rule of neces
sity, upon which the right to kill in defence
of person, habitation or property ia uniyersal-
ly placed, and such necessity is question for
the jury on the evidence.
"If person is assaulted in such manner
as to put him in immediate and obvious danger
Of instant death or grievous bodily harm, he
may defend himself on the spot, and may kill
or wound the person by whom he is assaulted"
eff a person by whom he is assaulted by
another without any fault of his own, with
deadly weapon it is his duty TO abstain from
the Intentional inHicton of death or grieyous
bodily harm on the person assaulting until he
1.-THE person assaulted) has retreated as far as
he can with safety to himself"
But this is always subject TO the rule that
he inficts no greater injury in any case than
be in good faith and on reasonable grounds
believes necessary when he inhicts it.
Stephens Or. Law, Article 200.
The principles here enumerated were re-
cognized in the early history of this Court
(ls53) by Lee c. J. in Rer. vs. Sherman
Hawn. IS.
Sherman was gaoler and was called to a
cell in the Fort TO quell disturbance and he
killed prisoner named Burns for which act
he was indicted for murder. The prisoner
commended that he was doing nothing more
than lawful act in quelliDg the disturbance,
that be was in tho strict path of duty, r.pel-
ling force by force, and that even allowing he
killed Burns, he did it in selfdefence, and the
killing was justifabe homicide. The learned
G. j. told the jury. "Where an officer is re-
sisted be may repel force by force. and he will
be justified in so doing, even if death should
ensue; yet he ought not to come to extremities
upon every slight interruption, nor without
reasonable necessity. = '1f you find that
Sherman used an undue degree of force in this
case, thathe dealt the blow when not acting
in self defence, it was a base and covardly
act, for which he should answer, and the least