ever, deny this.36 Blackstone says, "The penalty inflicted by our laws is said by Sir Edward Coke to have been anciently no less than death; which, however, is with reason denied by later and more accurate writers. It seems rather to have consisted in a forfeiture, some say of all the goods and chattels, others of only part of them."37 At present, however, it is not punishable at all, either in England or in this country.38

The affray, from which this kind of homicide may spring, may arise in various ways, as from resenting and returning a blow, from resenting insulting words, from resisting a trespass on land or goods, or from resisting an unlawful arrest.39 It is to be observed, however, that none of these provocations, of itself, excuses a homicide.

§319. The danger must be imminent.-To render the homicide excusable, the danger to the slayer must, at the time of the homicide, be at least apparently imminent and not merely prospective. The danger, or apparent danger, must be present, not prospective; not even in the near future. If it be prospective, it may, in most cases, be averted in various ways; as by taking shelter in one's own dwelling, having the would-be assailant arrested, etc. Human life must not be sacrificed under the apprehension of a prospective, probable danger, even in the near future. 40 When there is no necessity, real or apparent, to slay an adversary to save one's life or person from great harm, there can not, in the nature of things, be a right to kill in self-defense.41

361 Hale P. C. 425; 4 Bl. Comm. 188.

37 4 Bl. Comm. 188.

38 2 Bish. New Crim. L. (8th ed.) §§ 618, 622.

39 Bennett v. State, 19 Ga. App. 442, 91 S. E. 889.

40 Dolan v. State, 81 Ala. 11, 18,

1 So. 707. See also State v. Beckner, 194 Mo. 281, 91 S. W. 892, 3 L. R. A. (N. S.) 535n.

41 Kennedy v. Commonwealth, 77 Ky. (14 Bush) 340; United States v. Suterbridge, 5 Sawy. (U. S.) 620, Fed Cas. No. 15978, Derby's Cases 221.

§ 320. Facts admissible to prove danger imminent.-Any fact which tends to prove that the slayer was in imminent danger at the time he committed the homicide is admissible in evidence. Thus, it may be shown that deceased had made threats that he would shoot the slayer at sight; that he carried arms; that he attempted to draw from his pocket a weapon; that he lay in wait; that his character for violence or lawlessness was bad, etc.42

§ 321. Evidence-Right of attack in self-defense. It is sometimes said that the right of self-defense does not imply the right of attack. This, however, is not strictly true. When a person has reasonable ground to believe that another person intends to do him immediate serious bodily harm, and that such design will be accomplished unless prevented, he need not wait until his adversary gets advantage over him, but, if necessary to avoid the danger, he may kill his would-be assailant immediately;43 and the killing will be justifiable, although it may afterward turn out that the appearances were false, and there was, in fact, neither design to do him serious injury nor danger that it would be done.**

§ 322. Evidence-Actual danger not essential.-A few cases hold that actual danger of death or serious bodily injury to the slayer is essential to render his act excusable selfdefense.45 The better view, however, as well as the great 42 Kennedy v. Commonwealth, - (Iowa), 160 N. W. 10; State v. Bell, 77 Ky. (14 Bush) 340.

43 State v. Matthews, 148 Mo. 185, 49 S. W. 1085, 71 Am. St. 594. See also State v. Gardner, 96 Minn. 318, 104 N. W. 971, 2 L. R. A. (N. S.) 49n; and note to 109 Am. St. 805-820; McNeal v. State, 115 Miss. 678, 76 So. 625; Jones v. State, 147 Ga. 356, 94 S. E. 248; State v. Merk, 53 Mont. 454, 164 Pac. 655; State v. Goodwin, 271 Mo. 73, 195 S. W. 725; Tittle v. State (Ala. App.), 73 So. 142.

44 Parker v. State, 24 Wyo. 491, 161 Pac. 552; State V. Towne

38 S. Dak. 159, 160 N. W. 727; Commonwealth v. Digeso, 254 Pa. St. 291, 98 Atl. 882; Blacklock v. State (Tex. Cr.), 196 S. W. 822; State v. Dickens (N. Mex.), 165 Pac. 850; Mullins v. Commonwealth, 172 Ky. 92, 188 S. W. 1079; Barton v. State, 72 Fla. 408, 73 So. 230.

45 Reg. v. Smith, 8 Car. & P. 160; Reg. v. Bull, 9 Car. & P. 22; State v. Vines, 1 Houst. Cr. C. (Del.) 424. See also State v. Benham, 23 Iowa, 154, 92 Am. Dec. 416.

weight of authority, is to the contrary.16 The rule is that, a bona fide belief on the part of the slayer, founded upon reasonable grounds, that he will suffer death or great bodily harm unless he kills his assailant, will excuse him to the same extent as if the danger were real.47 Thus, where a person has threatened to take another's life at sight, and upon meeting the latter makes a movement as if to draw a weapon to carry out the threat, and the other party, under a bona fide belief that it is necessary to kill him to save his own life or prevent great bodily harm, takes the life of his wouldbe assailant, the homicide is excusable, though it appear later that the deceased was unarmed.48

§ 323. Evidence-Grounds of apprehension must be reasonable. It has been held that a homicide may be excusable where the slayer's apprehension of death or serious bodily harm results from cowardice on his part, rather than appearances. 49 This view, however, is erroneous, and not at all in harmony with the great weight of authority. The law makes no discrimination in favor of a coward, a drunkard, or any particular person. The circumstances must be such as to justify the fears of a reasonable man.50

A homicide is not excusable on the ground of self-defense unless the danger of death or serious bodily harm is actual,

46 Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286, Beale's Cases 331; Logue v. Commonwealth, 38 Pa. St. 265, 80 Am. Dec. 481; Patten v. People, 18 Mich. 314, 100 Am. Dec. 173; People v. Morine, 61 Cal. 367; Keith v. State, 97 Ala. 32, 11 So. 914; Brown v. Commonwealth, 86 Va. 466, 10 S. E. 745; State v. Eaton, 75 Mo. 586; Steinmeyer v. People, 95 Ill. 383; Marts v. State, 26 Ohio St. 162.

47 Enright v. People, 155 I11. 32, 39 N. E. 561; Pond v. People, 8 Mich. 150; Brown v. Commonwealth, 86 Va. 466, 10 S. E. 745;

Amos v. Commonwealth, 28 S. W. 152; 16 Ky. L. 358; State v. Dyer, 147 Iowa 217, 124 N. W. 629, 29 L. R. A. (N. S.) 459.

48 Patillo v. State, 22 Tex. App. 586, 3 S. W. 766.

49 Grainger v. State, 5 Yerg. (Tenn.) 459, 26 Am. Dec. 278.

50 Golden v. State, 25 Ga. 527; Atkins v. State, 119 Tenn. 458, 105 S. W. 353, 13 L. R. A. (N. S.) 1031; State v. Stockman, 82 S. Car. 388, 64 S. E. 595, 129 Am. St. 888; State v. Goodwin, 271 Mo. 73, 195 S. W. 725.

present and urgent; or the slayer has reasonable ground to apprehend a design, on the part of the would-be assailant, to commit a felony, or do him some great bodily harm, and there is imminent danger of such design being accomplished. The mere fear, or belief, however sincerely entertained by one person, that another intends and designs to take his life will not justify the former in taking the life of the latter. Merely an attack with fists or mere threats of injury will not excuse killing another.51

Where the danger is neither real nor urgent, to render a homicide excusable or justifiable within the meaning of the law, there must, at the least, be some attempt to execute the apprehended design; or there must be reasonable ground for the apprehension that such design will be executed, and the danger of its accomplishment imminent.52 "It is not essential that an actual felony should be about to be committed in order to justify the killing. If the circumstances are such as that, after all reasonable caution, the party suspects that the felony is about to be immediately committed, he will be justified."53

§ 324. Evidence-What constitutes reasonable cautionThe correct standard.-The imminency of the danger and the necessity of the killing must, in the first instance, be determined by the slayer. In doing so, however, he acts at his peril; as the jury must pass upon his actions in the premises. The jury, however, must view those actions from the slayer's standpoint at the time of the killing; and if they believe, from all the facts and circumstances in the case, that the slayer had reasonable grounds to believe, and did believe, the danger imminent, and that the killing was

51 Shorter v. People, 2 N. Y. 193, 51 Am. Dec. 286, Beale's Cases 331; Derby's Cases 213; State v. Doherty, 52 Ore. 591, 98 Pac. 152; Derby's Cases 224; Newsom V. State (Ala. App.), 72 So. 579; Ex parte Newsom (Ala.), 73 So. 1001;

Smith v. State, 80 Tex. Cr. 221, 189
S. W. 484.

52 Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62; State v. Scott, 4 Ired. L. (N. Car.) 409, 42 Am. Dec. 148.

53 Roscoe's Crim. Ev. (8th ed.)

at least apparently necessary to preserve his own life or to protect him from great bodily harm, they should acquit him.

It is important to remember, in this connection, that the question of apparent necessity for the killing must be determined from the slayer's standpoint. A reasonable apprehension in the mind of a man of ordinary intelligence and courage is not the standard.54 The belief of the ideal reasonable man is not admissible to acquit, a fortiori, it is inadmissible to convict.55

In such a case the following instruction is correct: "As to the imminency of the danger, which threatened the prisoner and the necessity of the killing, in the first instance he is the judge, but he acts at his peril, as the jury must pass upon his actions in the premises, viewing said actions from the prisoner's standpoint at the time of the killing, and if the jury believe from all the facts and circumstances in the case, that the prisoner had reasonable grounds to believe, and did believe, the danger was imminent, and that the killing was necessary to preserve his own life, or to protect him from great bodily harm, he is excusable for using a deadly weapon in his defense; otherwise he is not."56 r the purpose of showing that the defendant had reasonable grounds to believe that the danger was imminent and the killing necessary, "threats, menaces, assaults, lying in wait, carrying arms, the character of the deceased for violence or lawlessness, the circumstances of the meeting, and any other facts tending to show that the slayer was in peril at the time of the homicide," are admissible in evidence.57

54 State v. Cain, 20 W. Va. 679. 551 Whart. Crim. L. (11th ed.), § 620.

56 State v. Cain, 20 W. Va. 679. See also Beard v. State, 47 Tex.

Cr. 50, 81 S. W. 33, 122 Am. St. 672; Andress v. State (Ala. App.), 72 So. 753.

57 Kennedy v. Commonwealth, 77 Ky. (14 Bush) 340.