1. The right of a man to stand his ground and defend himself
when attacked with a deadly weapon, even to the extent of taking
his assailant's life, depends upon whether he reasonably believes
that he is in immediate danger of death or grievous bodily harm
from his assailant, and not upon the detached test whether a man of
reasonable prudence, so situated, might not think it possible to
fly with safety or to disable his assailant, rather than kill him.
P.
256 U. S. 343.
Beard v. United States, 158 U. S. 550.
2. So
held of a homicide committed on a post office
site by one who was there in discharge of his duty. P.
256 U. S.
344.
3. In a prosecution for murder, it appeared that the defendant
shot the deceased several times and again when the deceased had
fallen and was lying on the ground.
Held that evidence of
self-defense
Page 256 U. S. 336
was for the jury, and that, if they disbelieved the defendant's
testimony that the last shot was an accident, they might still have
acquitted him if, though intentional, it followed close upon the
others in the heat of the conflict and while he believed he was
fighting for his life. P.
256 U. S.
344.
257 F. 46 reversed.
Certiorari to review a judgment of the circuit court of appeals
affirming a judgment of the district court upon a conviction of
murder in the second degree. The facts are given in the opinion,
post, 256 U. S.
341.
Page 256 U. S. 341
MR. JUSTICE HOLMES delivered the opinion of the Court.
The petitioner was convicted of murder in the second degree
committed upon one Hermis at a place in Texas within the exclusive
jurisdiction of the United States, and the judgment was affirmed by
the circuit court of appeals. 257 F. 46. A writ of certiorari was
granted by this Court. 250 U.S. 637. Two questions are raised. The
first is whether the indictment is sufficient, inasmuch as it does
not allege that the place of the homicide was acquired by the
United States "for the erection of a fort, magazine, arsenal,
dockyard, or other needful building," although it does allege that
it was acquired from the State of Texas by the United States for
the exclusive use of the United States for its public purposes, and
was under the exclusive jurisdiction of the same. Penal Code of
March 4, 1909, c. 321, § 272, Third; 35 Stat. 1088;
Page 256 U. S. 342
Constitution, Art. 1, § 8. In view of our opinion upon the
second point, we think it unnecessary to do more than to refer to
the discussion in the Court below upon this.
The other question concerns the instructions at the trial. There
had been trouble between Hermis and the defendant for a long time.
There was evidence that Hermis had twice assaulted the defendant
with a knife, and had made threats communicated to the defendant
that the next time, one of them would go off in a black box. On the
day in question, the defendant was at the place above mentioned,
superintending excavation work for a post office. In view of
Hermis' threats, he had taken a pistol with him, and had laid it in
his coat upon a dump. Hermis was driven up by a witness, in a cart
to be loaded, and the defendant said that certain earth was not to
be removed, whereupon Hermis came toward him, the defendant says,
with a knife. The defendant retreated some twenty or twenty-five
feet to where his coat was and got his pistol. Hermis was striking
at him and the defendant fired four shots and killed him. The judge
instructed the jury, among other things, that
"it is necessary to remember, in considering the question of
self-defense, that the party assaulted is always under the
obligation to retreat so long as retreat is open to him, provided
that he can do so without subjecting himself to the danger of death
or great bodily harm."
The instruction was reinforced by the further intimation that,
unless "retreat would have appeared to a man of reasonable
prudence, in the position of the defendant, as involving danger of
death or serious bodily harm," the defendant was not entitled to
stand his ground. An instruction to the effect that, if the
defendant had reasonable grounds of apprehension that he was in
danger of losing his life or of suffering serious bodily harm from
Hermis, he was not bound to retreat, was refused. So the question
is brought out with sufficient clearness whether the formula
Page 256 U. S. 343
laid down by the Court and often repeated by the ancient law is
adequate to the protection of the defendant's rights.
It is useless to go into the developments of the law from the
time when a man who had killed another, no matter how innocently,
had to get his pardon, whether of grace or of course. Concrete
cases or illustrations stated in the early law in conditions very
different from the present, like the reference to retreat in Coke,
Third Inst. 55, and elsewhere, have had a tendency to ossify into
specific rules without much regard for reason. Other examples may
be found in the law as to trespass
ab initio, Commonwealth v.
Rubin, 165 Mass. 453, and as to fresh complaint after rape.
Commonwealth v. Cleary, 172 Mass. 175. Rationally, the
failure to retreat is a circumstance to be considered with all the
others in order to determine whether the defendant went farther
than he was justified in doing, not a categorical proof of guilt.
The law has grown, and even if historical mistakes have contributed
to its growth, it has tended in the direction of rules consistent
with human nature. Many respectable writers agree that, if a man
reasonably believes that he is in immediate danger of death or
grievous bodily harm from his assailant, he may stand his ground,
and that, if he kills him, he has not succeeded the bounds of
lawful self-defense. That has been the decision of this Court.
Beard v. United States, 158 U. S. 550,
158 U. S. 559.
Detached reflection cannot be demanded in the presence of an
uplifted knife. Therefore, in this Court at least, it is not a
condition of immunity that one in that situation should pause to
consider whether a reasonable man might not think it possible to
fly with safety or to disable his assailant, rather than to kill
him.
Rowe v. United States, 164 U.
S. 546,
164 U. S. 558.
The law of Texas very strongly adopts these views, as is shown by
many cases, of which it is enough to cite two.
Cooper v.
State, 49 Tex.Cr.R. 28, 38.
Baltrip v. State, 30
Tex.App. 545, 549.
Page 256 U. S. 344
It is true that, in the case of Beard, he was upon his own land
(not in his house), and in that of Rowe, he was in the room of a
hotel, but those facts, although mentioned by the Court, would not
have bettered the defense by the old common law, and were not
appreciably more favorable than that the defendant here was at a
place where he was called to be in the discharge of his duty. There
was evidence that the last shot was fired after Hermis was down.
The jury might not believe the defendant's testimony that it was an
accidental discharge, but the suggestion of the government that
this Court may disregard the considerable body of evidence that the
shooting was in self-defense is based upon a misunderstanding of
what was meant by some language in
Battle v. United
States, 209 U. S. 36,
209 U. S. 38.
Moreover, if the last shot was intentional and may seem to have
been unnecessary when considered in cold blood, the defendant would
not necessarily lose his immunity if it followed close upon the
others while the heat of the conflict was on, and if the defendant
believed that he was fighting for his life.
The government presents a different case. It denies that Hermis
had a knife, and even that Brown was acting in self-defense.
Notwithstanding the repeated threats of Hermis and intimations that
one of the two would die at the next encounter, which seem hardly
to be denied, of course, it was possible for the jury to find that
Brown had not sufficient reason to think that his life was in
danger at that time, that he exceeded the limits of reasonable
self-defense, or even that he was the attacking party. But, upon
the hypothesis to which the evidence gave much color, that Hermis
began the attack, the instruction that we have stated was
wrong.
Judgment reversed.