Tombstone epitaph., 1920-03-28

ing self-defense Is to be judged; some holding that the situation is to be viewed from the standpoint of the defendant. as it appeared to him at the time, and others that the matters are to be looked at from the stand point of what would appear to req sonable man under the circumstances to be the situation and the immi- hence of the threatened danger. Up- on that point our statute settles the rule in favor of the latter position. But aside from that, it is settled by Section 1s1 of the Penal Code that mere fear, without an overt act or demonstration. cannot be made the basis of a claim of self-defense. The authorities upon these matters will be found cellaied in 21 Cyc-. s14. S17 and SIS. To justify. therefore. the claim of self-defense. the facts must bring the case within the rule as above stated, and Brown. the per son charged with having been de- ported. must be shown to have been sufficiently an aggressor to bring the situation within such rules. Unless. therefore. there can be shown a si.- uation in which not only threats Of violence and fear of violence existed. but such hostile acts or demonstra- ton as warrant the application of the rule of self-defense, that claim can not be sustained. And unless Brown. either himself committed such hostile acts or made such hos file demonstration, or participated l with others therein. the element O. self-defense is wanting and cannot be asserted as a defense to the act 1 complained or
 As 10 the claimed right of self. defense. the matters stated in the or fer of proof fail short of bringing this case within the ordinary rule According to that statement, there were threats of violence, there was preparation for the commission oi violence, there were assaults com n,itted, though it is not asserted up on any of the persons involved in this case; but there was nothing else ! Defense presupposes an attack 'and self-defense can only be resorted to when there is some hostile act O, demonstration directed against the person asserting the claim. Threats are not sufficient, and preparation fo: an attack is not an attack. They may warrant preparation for a de fense. but nor the invasion of the right of another or the injury of an other on the ground of self-defense Applying then the ordinary rules governing the right of seif-defense as Ilaid down by our statutes and the au. thorities before cited, the facts pre- posed to be shown by the defendant fall short of laying a sufficient foun- dation for the assertion of such a right.
 As to the necessity claimed by the defense the court after thoroughly covering the point at issue upheld the defendants contention and con. ciuded as follows:
 .As to the rule of necessity: Il has been shown by the authorities before cited that there is such a rule and in case justifying its ap plication the party acting by reasc, of necessity is excused from the con
 sequences of what would otherwise be criminal act. The cases are and must be rare and conditions exceD
 tional in which such rule may be | invoked. No case exactly like the present has been found in which il
 was invoked. Nevertheless, the rule
 remains. though, as stated by the au
 thorifses. 1t is difficult to define tts extent or the cases Tn which it may
 be applied. Each must necessar.y stand upon its own facts, and as nc two cases are exactly alike. neces szrily @ each arises the application must be made according to the na
 ture of the sitpation presented
 The unusual character of the ds fsnse and she infrequency wish which it 1s eladmed naturally re quires cautioa to ses thafA case Is presented jnstifyins tho accued in | = ux~.-----ur~-