Henry Billings Brown

“ The ninth alleged error turned upon the statement made by the court of the circumstances under which the killing would be justifiable:
"It does not mean that defendant was assaulted in a slight way, or that you can kill a man for a slight attack. The law of self-defense is a law of proportions as well as a law of necessity, and it is only danger that is deadly in its character, or that may produce great bodily harm, against which you can exercise a deadly attack. ”

“ It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment, or that he should close his ears to the arguments of men who are equally [p502] honest and intelligent as himself. ”

“ It is driven out of the case when the evidence shows beyond a reasonable doubt that the crime as charged has been committed, or that a crime has been committed. Whenever the proof shows beyond a reasonable doubt the existence of a crime, then the presumption of innocence disappears from the case. That exists up to the time that it is driven out in that way by proof to that extent." The court, having thus charged upon the subject of the presumption of innocence, could not be required to repeat the charge in a separate instruction at the request of the defendant. ”

“ The eighth assignment is taken to the following definition of manslaughter —
"It is the killing of a man unlawfully and willfully, but without malice aforethought. Malice aforethought, as I have defined it to you, must be excluded from it; that is, the doing of a wrongful act without just cause or excuse, and in the absence of mitigating facts, in such a way as to show a heart void of social duty, and a mind fatally bent upon mischief, must be out of the case. If that is driven out of the case, then if it is a crime at all it must come under this statute ”

“ Malice, says the law, is an intent of the mind and heart."
The substance of this instruction is that the intent necessary to constitute malice aforethought need not have existed for any particular time before the act of killing, but that it may spring up at the instant, and may be inferred from the fact of killing. This is within the authorities as applied to the common-law crime of murder, though where the crime is classified, as in some states, proof of deliberate premeditation is necessary to constitute murder in the first degree. ”

“ It is clear that to establish a case of justifiable homicide it must appear that something more than an ordinary assault was made upon the prisoner; it must also appear that the assault was such as would lead a reasonable person to believe that his life was in peril. ”

“ If, unon the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority. ”

“ The sixth assignment is to the following language:
"The law says we have no power to ascertain the certain condition of a man's mind. The best we can do is to infer it more or less satisfactorily from his acts. A person is presumed to intend what he does. A man who performs an act which it is known will produce a particular result is, from our common experience, presumed to have anticipated that result, and to have intended it. ”

“ If he is attacked by another in such a way as to denote a purpose to take away his life, or to do him some great bodily harm from which death or permanent injury may follow, in such a case he may lawfully kill the assailant. When? Provided he use all the means in his power otherwise to save his own life or prevent the intended harm, such as retreating as far as he can, or disabling him without killing him, if it be in his power. The act coming from the assailant must be a deadly act, or an act that would produce great violence to the person, under this proposition. ”

“ Therefore we have a right to say, and the law says, that when a homicide is committed by weapons indicating design, that it is not necessary to prove that such design existed for any definite period before the fatal blow was fired. ”

“ It means an act that is hurled against him, and that [p498] he has not created it, or created the necessity for it by his own wrongful, deadly, or dangerous conduct, – conduct threatening life. It must be an act where he cannot avoid the consequences. If he can, he must avoid them, if he can reasonably do so with due regard to his own safety. ”