Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1888-09-20

the most material parts of Judge Whit
, houses charge to the jury:
, Ii is not IN controversy that on the II
t day of May last blow was Inflicted BY II
) defendant with his INST upe
{ The mouth of the deceased Nu
; II. Hopkins, causing him to tall bacl
ward Anu strike has head upon guard raj
or other hard substance, ,hus frscturing Ii
skull and causing his death.
The go,erninrnI claims that this was q
uhiawfui blow and charges the defendai
~nh the crime OF manslaughier. The d.
fendant claims that he was acting III sell
defence; that the blow was Il lawIul Que AN,
not calculated to cause death; and that he
not guilty of amy CRIME.
1he government does not claim that tn
detehuaut had any inlention 10 take hfe, o
that the blow was calculated 10 cause deat
under Ordinary circumstances, but II is SUI
claimed tia tneie MAS AN unlawful killing
30 ihat the deIendant Is gully ot mansl.,ugll Ia
Ter as defined by The conIinon law.
lou must De sailsned that the killing WA
unlawful. there may be lawful kiiilng oi
u human being. kilnng in seii-deIence i,
lawful. Self preserssuon is termed til.
primary law OF nature. ltis an instlucuy,
impulse with the lower auinials, and \ ra.
tionai principle pertaining 10 The social con,ii.
ton OF man. But the law has a sacred re-
gard Tor human hfe, and it is n principle tina,
undeIlies ali crlulInai law upon this suuIect
that every niau is unuer obiigativn to do All
ne safely can do 10 avoid taxing human nfe.
] II one Is Threatened wltn au
assault and battery only, however,
imminent The assault may be, he must le.
treat 10 the vail, that Is, 10 the limits W y, r
| svnai safety, before resoIung 10 The perfect
rght o1 seii-deiense, The eat. eme measure oi
taxing lie 10 project himself from sucn All
INJURY. lie is Jusuned IN taking nte III sell
defense only ~hen he has Reasonable ground
~ believe aud does pvIl,ye
tnat, under ali the circumstanves .
ot the case, it is necessary to save his own
iiIe, OF protect himself tIom great boull,
narm and no other means are pracucail,
available Tor that purpose.
But This Is nUl Inc princlple which the de-
fendant inyuk.s. We have not YET reach.d
the precise Issue in th.s case, Inc ueieud-
ant does nvt claim thai he was placed ia such
Il situation that At Was necessary Tor ham tv
Jake the l,ie ot Hopkins 10 save his own or
n oid great Uouily harm.
1he defendant uv,s not hot claim the extreme
night ot self defense, the risut to take HE,
but ouiy The ordinary right winch every per.
son has 10 protect himself against IA tnivat
,ued Injury by the use oI such REASONABLE
force, al propriale III KIND anu degree, as may
he necessary 10 accomplish The puIp puse win
vut taking hte. Inns partial rignt VI self
1eteuse every person INA! .xelc,se, under
sumo circumstances without r.tT.athg 10 the
wall. When threatened with assault and
battery, two COURSES may be open 10 ham.
IA
tuuity and due regard ior the peace aud
good order OF sUciet! 10 less Than the t.ach
lngs OF the highest code OF morals would tor
bad any person 10 lay violent hands upon hIs
heighbor, Without an end.a, or 10 avoid his
assault. But the law is designed lo be pie-
,eutIye as well as remedial.
II Is desigued TO be JUS, 10 the assailed as
well as 10 the assaiiaht 1t requires no nau
10 wait until he Is b,alen and bruised before
Iesorting 10 Reasonable ioroe tu PROJECT tam
self. lie may resist torce by lo,ce; but the
resistance must not exceed The bounds OF de-
tense and preventlon. He may even give
blow Tor blow under some cucunistaLc,s;
not however by way OF punishment Or retail
ation, but only 10 pie,ebt 1ur,her injury,
When other measures are not 50 reasonably and
promptly available AS 10 be effective Tor pro-
lection. Noman is allowed 10 take the law
into his own hands 10 lifict punishment On
another tor injuries received. lie Is not al
low ed to strike back out ot revenge merely
when no further injury Is threatened or APP
pretended. Nor Is he allowed 10 use any
more or other force than Is reasonably nee
essary TO accomplish the purpose. For any
excess of iuIce he becomes himself liable tor
assault aud battery aud Tor the consequences
of such assault and battery whatever they
may be. Not under any circumstances viii
mere abusive words or tauhts Justify an as
assault.
But in determining both these questions,
whether the act ot returning blow for blow was
reasonably necessary to protect his person,
aud ~heiher excessive force wgs used, it 10
my duty to present another consideration,
and that Is, that as far as practicable you
are to put yourselves in place of the de-
fendant. 1t is one thing to sit in calm and
deliberate review of the action of others and
TO decide what ought to have been done in
the light of the result after it is known. 1t
is another and sometimes very different
thing TO decide these questions in the excite
ment of the moment. We are
to make all reasonable allow
ance for the infrmities of human nature,
and consider the natural and instructive i'm
pulse which every man has to strike back in
self protection, when he is assaulted. But
we must be cautious in applying this consId-
Grafton, as one of the purposes of the law is
10 teach men self control.
Then you will perceive that n blow struck
for self protection may be lawful blow.
But it is not claimed by the defendant that
these principles of self defence are applicable
"hen the parties go out and engage as pug-
lists under mutual agreement to fight In
such a case. ordinarily, neither is trying to
avoid II collision, but both are inviting it.
Each is iry ing TO disable or exhaust the other
IN The manner khown to pugilists and prize
lighters. The blows of both parties not
being in accordance with these principles of
5, If de fence are, therefore, unlawful Every
person is responsible for the consequences of
an unlawful blow. Hence, it is familiar
rule of criminal law, that if two persons en-
gage III a fight under an agreement for that
purpose, without any dangerous weapons,
aud one kills the other, though accidentally
by the force and effect OF his unIaw ful blow
he is guilty of manslaughter. Therefore, !
say to You in this case, that if you find that
Geicneil and Hopkins eDgag d in a mutual
fight under an agreement or under standing to
that effect, for the purpose of settling the
question of their relative skill, strength and
endurance as pug lists. and find that Getchel
Inflicted the blow in question upon Hopkins in
pursuance of that understanding and not on
| account of any new exigency which afforded
him reasonable ground to believe that such a
blow was necessary to protect his person, and
that from the force and feet of that blow
Hopkins fell backward, striking the back OF
his head ON the guard rail or other hard sub
stance. thereby fIacturing his skull, and thai