What is or what is not an overt demon stration of violence sufficient to justify a resistance which ends in the death of the party making the demonstration varies with the circumstances and is a question for the jury ; Allison v. U. S., 160 U. S. 203, 16 Sup. Ct. 252, 40 L. Ed. 395.
If a person, under the provocation of of fensive language, assaults the speaker per sonally, but in such a way as to show that there is no intention to do him serious bodily harm, and then retires under such circum stances as show that he does not intend to do anything more, but in good faith with draws from further contest, his right of self defence is restored when the person assault ed, in violation of law, pursues him with a deadly weapon, and seeks to take his life, or do him great bodily harm ; Rowe v. U. S., 164 U. S. 546, 17 Sup. Ct. 172, 41 L. Ed. 547 ; Par ker v. State, 88 Ala. 4, 7 South. 98; Whart. Hom. § 483; Beard v. U. S., 158 U. S. 550, 564, 15 Sup. Ct. 962, 39 L. Ed. 1086; but there must be a real and bona fide surrender and withdrawal on the part of the original ag gressor, otherwise he will continue to be so regarded; Whart. Cr. L., 9th ed. § 486. The meaning of the principle is that the law will always leave the original aggressor an op portunity to respond before he takes the life of his adversary ; Bish. Cr. L., 7th ed. § 871; 1 Bish. N. Cr. L. § 702. It is "for the jury to say whether the withdrawal was not in good faith or was a mere device by the accused to obtain some advantage of his adversary"; Rowe v. U. S., 164 U. S. 546, 17 Sup. Ct. 172, 41 L. Ed. 547. It is said of the two United States cases cited that they "consistently united in expressing a judicial policy on the subject of self-defence which is not only logical in principle, but commends itself to the prac tical sense of justice" ; 55 Alb. L. J. 268; to the same effect in substance are recent cases in state courts ; State v. Evans, 124 Mo. 397, 28 S. W. 8 ; Page v. State, 141 Ind. 236, 40 N. E. 745.
A person assaulted may do more than ward off a blow ; he may strike back ; Car man Deana, Cr. App. Rep. (Engl. 1909) 75.
The possession of a good conscience is not an indispensable prerequisite to justification of action in the face of imminent and deadly peril, nor does the intrinsic rightfulness of the occupation or situation of a party, hav ing in itself no bearing upon or connection with an assault, impose a limitation upon the right to repel it; Starr v. U. S., 153 U. S. 614, 14 Sup. Ct. 919, 38 L. Ed. 841.
It has been said that the justification of self-defence must be established by a prepon derance of evidence ; State v. Ballou, 20 R. I. 607, 40 Atl. 861; State v. Welsh, 29 S. C. 4, 6 S. E. 894 ; but see Gearty v. New York, 171 N. Y. 71, 63 N. E. 804; and perhaps the doctrine is too broadly stated. One who starts an affray with intent to kill the de ceased cannot plead self-defence; Ander sen v. U. S., 170 U. S. 481, 18 Sup. Ct. 689, 42 L. Ed. 1116; so of one who provoked an affray by insulting language; State v. Scott, 41 Minn. 365, 43 N. W. 62; Shaw v. State (Tex.) 73 S. W. 1046. Where one sought a meeting to provoke an assault, but was attacked without provocation, he may plead self-defence; 1 Hale, P. C. 479; contra, State v. Neeley, 20 Ia. 108; Vaiden v. Com., 12 Gratt. (Va.) 717.
The doctrine of constructive self-defence comprehends the principal civil and domestic relations; therefore master and servant, par ent and child, husband and wife, killing an assailant in the necessary defence of each, respectively, are excused, the act of the rela tion being construed the same as the act of the party himself ; 4 Bla. Com. 186; Hath
away v. State, 32 Fla. 56, 13 South. 592 ; strangely enough, there seems to be no au thority for placing a brother or sister in tbis category, though they doubtless occupy' as good a position as a stranger; 25 Alb. L. J. 187. See 2 Bish. Cr. L. 877.
A man may defend himself when no fel ony has been threatened or attempted. First, when the assailant attempts to beat another and there is no mutual combat : as where one meets another' and attempts to commit or does commit an assault and battery on him, the person attacked may defend him self ; Bartlett v. Churchill, 24 Vt. 218; Hazel v. Clark, 3 Bar. (Del.) 22; Com. v. Ford, 5 Gray (Mass.) 475 ; 3 C. & P. 31; but it is not true as a general proposition, that one who is assaulted 'by another with a danger ous weapon is justified in taking the life of the person so assaulting him ; State v. West, 45 La. Ann. 14, 12 South. 7; and in case of an -offer or attempt to strike another, when suffi ciently near, sa that there is danger, the per son assailed may strike first, and is not re quired to wait until he has been struck ; Bull. N. P. 18. Second, when there is a mutual -combat upon a sudden quarrel. In these cas es both parties are the aggressors; and if in the fight one is killed, it will be manslaughter at least unless the survivor can prove two things, viz. : that before the mortal stroke was given he had refused any further combat, and had retreated as far as he could with safe ty; Hodges v. State, 15 Ga. 117; Stewart v. State, 1 Ohio St. 66 ; and that he killed his adversary from necessity, to avoid his own destruction; Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286; Dill v. State, 25 Ala. 15.
A person assaulted by another, whom he kills, cannot set up the plea of self-defence if he could have safely retreated or have disarmed the other without danger to him self, and believed himself able to do so; Fal lin v. State, S6 Ala. 13, 5 South. 423; State v. Dillon, 74 Ia. 653, 38 N. W. 525.
The settled rule that where a person hav ing authority to arrest and using the proper means foe that purpose is resisted, he can repel force with force, and, if the party mak ing the resistance is unavoidably killed, the is justifiable, may be invoked by a person who resists and kills the officer, if he was ignorant of the fact that he was an officer ; Starr v. U. S., 153 U. S. 614, 14 Sup. Ct. 919, 38 L. Ed. 841.
A man may defend himself against ani mals, and he may during the attack kill them, but not afterwards; 1 C. & P. 106 ; Credit v. Brown, 10 Johns. (N. Y.) 365. See Horr. & T. Cas. on Self-Defence, where the eases are collected.
In early English law killing in self-defence was not justifiable homicide. The party indicted was not entitled to an acquittal by a jury. He was sent back to prison and must trust to the king's mercy for a pardon. And although he obtained a pardon, he forfeited his goods for the crime. But by 1400, self-defence had become a bar to an action for a battery. Pardons for killing in self-defence became a matter of course ; ultimately the jury was per mitted to give a verdict of not guilty in such cases, and the practice of forfeiting the goods of the de fendant died out. Ames, Lect. Leg. Hlst. 436.
See DEFENCE; COOLING TIME; JUSTIFICA TION; MURDER ; HOMICIDE.