State v. Kennedy

j. homicide: self-defense. The eighth section of the court’s charge (the only portion excepted to by the appellant) was this : “A person may repel force by force in defense r J, l. J 0f i,js person, habitation or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony on either; and if a conflict ensue in such case, and life is taken, the killing is justifiable. It must be proved that the assault was eminently perilous. And unless there be a plain manifestation of a felonious intent, no assault will j ustify killing the assailant. A party is not compelled to flee from his adversary, who assails him with a deadly weapon, before he can justify the homicide. The assault may be so fierce as not to allow the party assailed to yield a step without manifest danger to his life, or of enormous bodily injury. In such case, if there be no other way of saving his own life, he may, in self-defense, kill his assailant.

But the rule of law is different when the attack is not felonious. * * * An assault without a weapon of any kind, by a quarrelsome and violent man upon another, when there is no reason for the belief by the person *572attacked, that his person was in danger of death or great bodily harm, bat that an ordinary battery was all that was intended, and all that he had reason to fear from the acts of his assailant, the party assailed has no right to take the life of such assailant.”

It will be perceived that this portion of the charge was taken from the judgment of this court in The State of Iowa v. Thompson, 9 Iowa, 188. That it is the law, unless changed by statute, admits of no doubt, Fost., 273, 277; 1 East P. C, 272, §§ 44, 273, 45, 221, 7, p. 3; Hawk. P. C, § 23; Id., 87, § 13.

Upon the law of homicide there is no higher authority than Mr. Justice Foster. By no other writer have the general principles of the law of self-defense been at once so clearly and concisely laid down. Fost., 273, 277. Speaking of instances like the present, where death has resulted in a case of mutual conflict, he sums up the law as follows:

“ He, therefore, who, in the case of a mutual conflict, would excuse himself upon the foot of self-defense, must show that before a mortal stroke given, he had declined any further combat and retreated as far as he could with safety; and also that he killed his adversary through mere necessity and to avoid immediate death. If he failed in either of these circumstances, he will incur the penalties of manslaughter. Fost., ch. 3, p. 277.

Mr. East lays down the rule somewhat less rigid, as follows: “He must have no other possible, or at least probable, method of escaping his own immediate destruction, or great bodily harm.'' 1 East P. G, p. 221, § 7. And the rule as thus stated by Mr. East, was the one adopted by this court in the case of The State of Iowa v. Thompson, above cited, and the same rule prevails generally in this country. Further than this, the law cannot be relaxed without ignoring or disregarding the sanctity of human *573life; and further than this we have no disposition to go. We reaffirm the case of The State of Iowa v. Thompson, supra.

2. — statstrued. The defendant contends, however, that the rule as stated in the case last cited, has been changed by sections 4442, 4443 of the Revision. These provide as follows: “ g 4442. Lawful resistance to the commission of a public offense, may be made by the party about to be injured, or by others: § 4443. Resistance sufficient to prevent the offense may be made by the party about to be injured: 1. To prevent an offense against his person: 2. To prevent an illegal attempt by force to take or injure property in his lawful possession.”

The defendant’s counsel argues thus: “ If the offense cannot be prevented except by the killing of the person attempting to perpetrate it, the killing will be justifiable. The statute does not limit the right to resist to a known felony, but gives the right to make ‘ sufficient ’ resistance, which includes misdemeanors as well as felonies.” Revision, § 4218.

The nature of the resistance, however, must as before, have regard to the nature of the offense about to be committed. Under the statute I may slay a robber or a burglar in my dwelling in the night time as I might at common law. But if one attempt to commit an ordinary assault and battery upon me, or take my goods, or cut down my timber as a trespasser merely, or is simply attempting to pick my pocket (1 Hale, 488), though I may justify beating him so as to make him desist, and sufficiently to accomplish the purpose, yet if I make use of a deadly weapon and slay him, I will not stand justified in the eyes of the law. 1 East P. C., 272, § 44; 1 Hale, 485, 486 ; 1 Hawk. P. C., ch. 28, § 23; Regina v. Smith, 8 C. & P., 160, per Bosanquet, J.; Wilde's Case, 2 Leo., 214.

The deceased had no weapons. Every person upon *574whom he could rely for help, had fled the room alarmed and panic-stricken. The appellant knew his brother was near, even if he was not actually present, aiding and assisting him. The jury has found, under appropriate instructions, that the resort to a deadly weapon was not necessaiy. That finding is, in our judgment, most clearly supported by the evidence. That the appellant was at least guilty of manslaughter, we entertain no doubt. The State of Iowa v. Decklotts, 19 Iowa, 447. The most the deceased did was to commit an ordinary assault, one accompanied with no imminent bodily danger, and one which the Kennedys had done much tq provoke. The jury should not have been told, as the appellant’s counsel has argued they should, that if John Kennedy could not otherwise protect .his person from such an assault he was justified in killing Dolan. The State of Iowa v. Neely, ante; The State of Iowa v. Decklotts, supra. Human life in Iowa is not so cheap nor its legal tenure so precarious as such a doctrine would make it.

Affirmed.