Essex County herald. [volume] (Guildhall, Vt.) 1873-1964, 1913-07-11
Popular Talks on Law
THE RIGHT OF SELF DEFENSE

John Rice fell into dispute with
Loren Devlin which rose to a point
where Rice rushed upon .Devlin
and struck at him, though he fail
ed to touch him. Thus assaulted
Devlin took vigorous action and
proceeded to pound Rice into a
state of insensibility. The public
prosecutor proceeded against Dew
lin in criminal action for assault
and battery, and he was found
guilty aud fined. Rice also sued
Devlin in a civil action for assault
and battery and recovered dam
ages. Devlin claimed that he had
acted only in self defense.
While there-isl a right of self de-
Tense recognized by law it is not
broad enough to cover an action
such as Devlin's. One whose per-
son is assaulted may, defend him
self; but in defending. himself he
may not use more force than is
reasonably necessary under the
circumstances. Ifyou are assault
en- you may strike back, but you
may not strike back more vigorous
ly than is necessary to defend your
person from the threatened attack.
In this case Devlin was justified in
resisting Rice. Rice having obeen
resisted, and having ceased to at
tack, however, Devlin was not jus
tilted in continuing further. In
doing so he became the, assailant,
and his further action was new
assault and battery for which he
was liable both in civil suit for
damages and in a criminal action.
The law does not require that the
vigor of the defense be absolutely
adjusted to the vigor of.the attack
since it recognizes that this ssis not
always possible ofaccurate determ-
nation. 1t is is required, however
that the defender do not step be-
yond the bounds of reason in his
acts of defense.
AS the New York Court has re.
marked:
"Self defense is primary law OF
nature, and it is. an excuse. for
breaches of the peace, and even
for homicide itself. But care must
be taken tnat the resistance does
not exceed the bounds of mere de-
tense, presentation, or recovery so
as to become vindictive; for then
the defender would himself become
the .aggressor., The force used
must not exceed the necessity Of
the case.
To justify the use, of force on
the ground that it was in self de-
Tense there must have been an
actual attempt to offer bodily
harm. The attack resisted must
be apparently real, Self defense
may not be claimed when the force
was exerted after the danger of at
tack had passed, there is no longer
any need for self defense.
The means that a person may
take in his own defense must de
pend, of course, upon the particu
lar danger. which threatens. A
degree of force may be used il
self defense equal to the degree OF
force with which the defenderis at
tackled. Killing an assailant may
even become justifable by way Of
self defense, especially where he
attacks with deadly weapon.
| O'Mallyg and Grady had hac
many quarrells and finally one
arose. which was particularly, bit
ter, Grady vigorously threatened
to kill his adversary on sight.Late
in the day they met and, Grady a
once ASSAULTED O'Malley with
large club dealing him several seri
Gus blows about the head. Unable
to ward off these blows, O'Mall,
drew his pistol, and fired, killing
: Grady. He was tried OH a 'charg
of manslaughter, but held no
guilty, the jury finding that he ha
acted TO reasonable self defense.
AS general rule one may xii
an assailant, when it is apparently
necessary in order to save himsel
from death or, great bodily harm
while in the midst of a sudde
combat which he has not himsel
provoked. b, Generally speaking
the law requires that the perso
, attacked retreat, if possible, befor
he may kill an assailant and clair
self defense asa justification. TIL
person attacked need not retreat
to do so would place him in NOR
precarious position, but he mus
retreat even though toldo so woul
not apparantlo improve his posi-
ton. There are some states i
which the courts hold that a pei
son attacked, may stand his groun
Q under practically all circumstance
: but such a rule is rather excep