The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1885-07-11

I
effect whether the person accused is charged
with murder, or an assault to commit MUIR
der, and relate to the justification of either
crime or to the commission of any lesser
offense necessarily included in either OF
them.
In this case, the defendant, Adolph 3.
Spreckels, admits that on the 10th day OF
| November, 1884 with a loaded pistol he
shot.M. II. De Young, and pleads in excuse
and justification, that he did that shooting
in self-defense, to save his own life, at the
hands of the said NJ. H. De Young.
To make the act of the defendant one of
Self-defense, it must appear that at the time
of the assault here charged, he had other
or probable means of escape to save his life,
or to avoid the infection of great bodily in
jury upon him. By this is not meant that
at the first discovery of peril man is bonnd
to flee from apprehending danger without
stopping to consider whether fight may not
render the predicament more hazardous,
and the risk of life or personal safety
greater. This line of conduct is neither re-
CURED nor commended by law.
Wien person without fault--in place
sailed, he may, without retreating, repel
force by force, in the reasonable exercise of
self-defense. But mere apprehension is in
sufficient to justify a homicide or the use of
deadly weapons. The fear of death or great
bodily injury must have been produced by
! such circumstances would be sufficient to
excite the fears of reasonable person.
The law of self-defenSe is law of neces-
sity, but that necessity which authorizes
resort to it must be real or apparently real.
A party acting under it may act upon APP
pearances, and he will be justified in acting
| upon them even though they turn out to
have been false. And whether the appear
ances were real apparently real is for you,
gentlemen. to decide s:pon all the circum-
stances out of which the necessity springs.
To make the assault here charged justif-
able on this legal ground, the danger to the
| defendant must have been either actual,
! present and urgent, or that the shooting
was done under circumstan that afforded
reasonable ground to him, to apprehend
| that M. 81. De Young designed then to kill
or do some great bodily harm to him, and
that there was imminent danger of such de-
! sign being accomplished. 1t is for you
alone, gentlemen, to decide from evidence
whether he had such reasonable grounds to
| act as he did when the assault was COM
| mitted.
No man by his own lawless &C Is can create
\ necessity for acting in self-detense, and
then upon killing or wounding the person
with whom he seeks the difficulty interpose
this plea to justify his conduct.
The necessity must not have been created
by the fault of him who pleads it; but if you
are satisfied that in this case the necessity
for acting was not occasioned by the de-
PENDANT and that al the time of the shoot
ing he honestly believed himself to be in
imminent danger of death or serious bodily
harm, your verdict should be not guilty.
You have heard considerable testimony as
to whether not Mr.. De Young was armed
with pistol at the time of the shooting,
and also as to whether he made hostile
movement as if to draw 4 pistol when called
by the defendant.
Upon these pOin Us, well as throughout
the whole case, it is for you to determine
what the facts are, and if you find that Mr..
De Young did assume menacing attitude,
accompanied with an apparent effort to
draw pistol from his right hip pocket, and
that the defendant had reasonable ground
to believe he did, then the defendant was
not bound to wait until Mr.. De Young had
withdrawn his hand from his pocket before
exercising his right of self-defense, no mat
ter whether Mr.. De Young was armed OF
net. Otherwise, if the defendant, having
icto in 1, han cd Ia
Young once or oftener, and Mr.. De Young
then in reality or by appearance of doing SO,
attempted or feigned to draw a pistol after
discovering the defendant armed and hastily
approaching him, and thereupOn the defend
ant, ithout provocation, shot and wounded
De Young, the defendant could not justify
his act on the ground of selfdefense, be-
cause in that case the defendant would
himself be the agGressor, and consequently
g.ilty of the crime charged in the informa-
ton.
If the evidence shows that the shooting IN
ques ton was done by the defendant without
provocation, you may infer malice from the
mere commission of the act without further
proof as to the intent of the defendant at
the time of the alleged shooting, provided
the defendant was not then insane, according
to the definitions of insanity which 1 am
about to give
In determining the question of pro-
vocation you must exclude altogether
from your considerat ton the numerous ar
ticles from the San Francisco Chronicle -
which were admitted in evidence and read
to you during the trial. Ii is the law of
this State and indeed of all the States of
the Union, that no man can take vengeance
into his own hands. No words, however
aggravating, no libel, however scandafous,
will authorize the suffering party to revenge
himself by blows or violence Of any kind.
Undoubtedly a may lawfully aid his
father, if beaten, and protect him from a
threatened felony or personal mischief, and
in like cases father may assist son and
in either instance should severe harm or
even killing take place, it is excusable but
ither one nor the other can justify resort