by John Marshall Harlan

“ This great law of self-defense commands him at all times to do that which he can do under the circumstances, to wit, exercise reasonable care to avoid the danger by getting out of the way of it, or by exercising less violence than that which will produce death, and yet will be equally efiective to secure his own life. ”

“ Indeed, the tendency of the American mind seems to be very strongly against the enforcement of any rule which requires a person to flee when assailed, to avoid chastisement, or even to save human life; and that tendency is well illustrated by the recent decisions of our courts bearing on the general subject of the right of self-defense. ”

“ Now, if a man does that, he is in the wrong, and he is cut off from the right of self-defense, no matter what his adversary may do, because the law says in the very language of these propositions relating to the law of self-defense that he must avoid taking life if he can with due regard to his own safety. ”

“ In Bishop's Criminal Law, the author, after observing that cases of mere assault and of mutual quarrel, where the attacking party has not the purpose of murder in his heart, are those to which is applied the doctrine of the books that one cannot justify the killing of another, though apparently in self-defense, unless he retreat to the wall or other interposing obstacle before resorting to this extreme right, says that: 'Where an attack is made with murderous intent, there being sufficient overt act, the person attacked is under no duty to fly. ”

“ In East's Pleas of the Crown, the author, considering what sort of an attack it was lawful and justifiable to resist, even by the death of the assailant, says: 'A man may repel force by force in defense of his person, habitation, or property against one who manifestly intends and endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, burglary, and the like, upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger ”

“ The trial court charged the jury that if the defendant was in the lawful pursuit of his business at the time the fatal shot was fired, and was attacked by the deceased under circumstances denoting an intention to take life or do great bodily harm, he could lawfully kill his assailant, provided he used all 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 his adversary without killing him, if it be in his power' ”

“ There is but one place where he need not retreat any further, where he need not go away from the danger, and that is in his dwelling house. He may be upon his own premises, and if a man, while so situated, and upon his own premises, can do that which would reasonably put aside the danger short of taking life, if he can do that, I say, he is called upon to do so by retreating, by getting out of the way if he can, by avoiding a conflict that may be about to come upon him ”

“ But a bare fear of any of these offenses, however well grounded,-as that another lies in wait to take away the party's life,-unaccompanied with any overt act indicative of such an intention, will not warrant in killing that other by way of prevention. ”

“ In the afternoon of the day on which the Jones brothers were warned by Beard not again to come upon his premises for the cow unless attended by an officer of the law, and in defiance of that warning, they again went to his farm, in his absence,-one of them, the deceased, being armed with a concealed deadly weapon,-and attempted to take the cow away, but were prevented from doing so by Mrs. ”

“ State, 3 Minn. 270, 273 (Gil. 185) ; Pond v. People, 8 Mich. 150, 177; State v. Dixon, 75 N. C. 275, 279; State v. Sherman, 16 R. I. 631, 18 Atl. 1040; Fields v. State (Ind. Sup.) 32 N. E. 780; Eversole v. Com. ”