
    Henry Shorter, plaintiff in error, vs. The People, defendants in error.
    One who is without fault himself, when attacked by another, may kill his assail, ant, if the circumstances be such as to furnish reasonable ground for apprehending a design to take away his life or do him some great bodily harm, and there is also reasonable ground for believing the danger imminent that such design will be accomplished; although it may afterwards turn out that the appearances were false and there was in fact no such design nor any danger that it would be accomplished. The revised statutes (2 B. S. 660, § 3, sub. 2,) have not changed the law on this subject.
    But this principle will not justify one in returning blows with a dangerous weapon when he is struck with the naked hand, and there is no reason to apprehend a design to do him great bodily harm.
    Nor will it justify homicide when the combat can be avoided, or where, after it is commenced, the party can withdraw from it in safety before he kills his adversary.
    A verdict will not be set aside on bill of exceptions, although there was error on the trial, if the error was such that it could do no legal injury: and the rule in this respect is the same in criminal as in civil cases.
    And the rule applied in a capital case where there was an error in the charge to the jury respecting the law of homicide, but the facts cf the case did not call for a charge upon the point.
    People v. Shorter, 4 Barb. 460, affirmed.
    
      Henry Shorter, a negro, was indicted for the murder of Stephen C. Brush, and tried at the Erie county oyer and ter miner in November, 1848. It was proved on the trial that on the 19th day of September, 1848, at about eleven o’clock in the evening, the deceased was passing down Seneca-slreet in the city of Buffalo, in company with some boys from fifteen to seventeen years of age; that they were conversing and laugh ing about a negro character that had been acted that evening at the theatre; and that they passed the prisoner and another negro on the side walk. The prisoner and the other negrc walked behind for a few rods and then came up with them, and the prisoner passed between the deceased and the boys, and as he passed % fight occurred between the deceased and the prisoner. One of the witnesses thought that the deceased had the best of the fight at first. None ot the other persons interfered. After several blows had passed the deceased hallooed, “he has got a knife,” and he then retreated to the middle of the road. The prisoner followed him and blows were passing between them, or else the prisoner was striking the deceased and the deceased defending against the blows, until he got to the middle of the road, when he fell down and died in about fifteen minutes. When he fell the prisoner and the other negro ran away.
    The evidence tended to show that the prisoner carried with him on the occasion a large dirk knife, with which he inflicted on the deceased nine or ten severe wounds, one of which entered the cavity of the heart and was mortal. One was also in the lungs and several were on the back of the neck. It also appeared that when the deceased and the boys passed the prisoner some words occurred between them. The witnesses did not agree as to what the precise words were, but the evidence tended to show that the prisoner said as the deceased passed, “ what about negroes ?” The persons in company with the deceased testified that the prisoner struck the first blow, but the other negro testified that- the first blow was struck by the deceased. There was no evidence of any previous acquaintance between them.
    The evidence having closed, Justice Hoyt, presiding at the trial, proceeded to charge the jury at large upon the case, and having done so, the counsel for the prisoner requested the court to charge that if the deceased struck the first blow, and if there was reasonable ground to apprehend a design on the part of the deceased to do the prisoner some great personal injury, and the prisoner believed that there was imminent danger of such design being accomplished, it was a case of justifiable homicide, although he might be mistaken in such belief; and that the question was not whether such danger existed, but whether the prisoner believed it to exist. The court refused so to charge, but on the contrary charged that to render the killing justifiable the jury should be satisfied that there was in fact imminent danger that the deceased would commit some great personal injury upon the prisoner. The prisoner’s counsel excepted to this part of the charge and to the refusal to charge as requested. The jury found the prisoner guilty of murder. A bill of exceptions was made and the case removed by certiorari into the supreme court, where a new trial was refused. The prisoner brought error to this court.
    
      Eli Cook, for the plaintiff in error.
    I. Homicide is not criminal when from the attendant circumstances there is a reasonable ground to believe that there is a design to commit a felony or do some great personal injury, and to apprehend imminent danger of its accomplishment, although it should afterwards appear that there was in fact no such design or danger. (2 R. S. 660, § 3, sub. 2; 3 id. 811, Rev. notes; Levet’s case, Hale’s P. C. 42; Hawkins’ P. C. b. 1, ch. 28, § 23; ch. 29, § 14; case of Wm. Hawkesworth, mentioned by Hale, p. 40, and by East, 1st vol. P. C. 275; Meade’s case, Lewin’s Cr. Ca. 184, cited in Roscoe’s Cr. Ev. 721, ed. of 1840; Commonwealth v. Selfridge, opinion of Ch. J. Parker in note to 1 Russel on Crimes, 577, 5th Am. ed.; The People v. Rector, 19 Wend. 569: 7 Law Reporter, 518, trial of Peter York.)
    
    II. The judge charged the jury “ that to render the killing justifiable they should be satisfied that there was in fact imminent danger that the deceased would commit some great personal injury to the prisoner.” He erred in charging the jury that the prisoner was bound to prove imminent danger in fact ¡ he should have charged that the prisoner was bound to prove a reasonable ground of apprehension.
    III. While the jury were unable to say upon their oaths that there ivas in truth and fact imminent danger cf great personal injury being inflicted upon the prisoner, there were facts and circumstances proved upon the trial from which they could have said that there were reasonable grounds to apprehend the infliction of great personal injury and in which the prisoner believed. This was a question of fact for the jury, and upon which the prisoner had a right to have them pass.
    
      B. H. Austin, (district attorney,) for the- people.
    I. The judge in his charge to the jury, fully, fairly and plainly submitted the law relative to the crime of murder, and the different degrees ,of manslaughter, to which there was no exception, and his charge in respect to excusable and justifiable homicide is in the exact language of the statute, (2 R. S. 2d. ed. 550, § 3, sub. 2.)
    II. Even if the judge erred in refusing to construe the statute as requested by the prisoner’s counsel, the prisoner could .not have been prejudiced thereby, because if the judge had charged as requested, there were no facts in the case to which such a charge would have been applicable; there being no proof to rebut the legal presumption of malice. (4 Black. Com. 201.) The prisoner did not decline the combat nor retreat to the wall. (1 Russ, on Crimes, 543; 4 Black. Com. 184, 185.)
    III. The exception must stand or fall upon the principle of full justification, to sustain which the case is entirely destitute of the necessary facts. To justify the killing the intent of Brush todo the prisoner some great bodily harm must have been apparent, the danger must have been imminent, and the killing necessary to avert the danger. (U. States v. Wiltberger, 3 Wash. C. C. R. 515.) Killing by a blow in mutual combat without necessity is manslaughter. (Pennsylvania v. Robertson, Add. R. 248; 4 Black. Com. 184.
   Bronson, J.

When one who is without fault himself, is attacked by another in such a manner or under such circum stances as to furnish reasonable ground for apprehending a design to take away his life, or do him some great bodily harm, and there is reasonable ground for believing the danger imminent that such design will be accomplished, 1 think he may safely act upon appearances, and kill the assailant, if that be necessary to avoid the apprehended danger; and the killing will be justifiable, although it may afterwards 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. He must decide at his peril upon the force of the circumstances in which he is placed, for that is a matter which will be subject to judicial review. But he will not act at the peril of making that guilt, if appearances prove false, which would be innocence had they proved true. I cannot better illustrate my meaning than by taking the case put by Judge, afterwards Chief Justice Parker, of Massachusetts, on the trial of Thomas 0. Selfridge. “A. in the peaceable pursuit of his affairs sees B. walking rapidly towards him with an outstretched arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A. who has a club in his hand, strikes B. over the head, before, or at the instant the pistol is discharged ; and of the wound B. dies. It turns out that the pistol was loaded with powder only, and that the real design of B. was -only to terrify A.” Upon this case the Judge inquires, “ will any reasonable man say that A. is more criminal than he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require, that a man so attacked must, before he strikes the assailant, stop and ascertain how the pistol was loaded—a doctrine which would entirely take away the right of self-defence. And when it is considered that the jury who try the cause, and not the party killing, are to judge of the reasonable grounds of his apprehension, no danger can be supposed to flow from this principle.” The Judge had before instructed the jury, that “when from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life, or commit any felony upon his person, the killing of the assailant will be excusable homicide, although it should afterwards appear that no felony was intended.” (Selfridge's Trial, p. 160; 1 Russ. on Crimes, 699, ed. of ’24; p. 485, note, ed. of ’36.) To this doctrine I fully subscribe. A different rule would lay too heavy a burden upon poor humanity.

I have stated the case of Selfridge the more fully, because '£ is not only an authority in point, but it is one which the revisers professed to follow in framing our statute touching this question.

I shall not stop to consider the common law distinctions between justifiable and excusable homicide, because our statute has placed killing in self-defence under the head of justifiable homicide. (2 R. S. 660, § 3.)

The Massachusetts case lays down no new doctrine. The same principle was acted on in Levett’s case, recited by Jones, J. in Cook’s case, (Cro. Car. 538,) to the following effect. Levett was in bed with his wife, and asleep, in the night, when the servant ran to them, in fear, and told them that thieves were breaking open the house. He arose suddenly, and taking a drawn rapier in his hand, went down and was searching the entry for the thieves, when his wife espying some one whom she knew not in the buttery, cried out to her husband, in great fear, here they be that would undo us.” Levett thereupon hastily entered the buttery in the dark, not knowing who was there, and thrusting with his rapier before him, killed Frances Freeman, who was lawfully in the house, and wholly without fault. On these facts, found by special verdict, the court held that it was not even a case of manslaughter, and the defendant was wholly acquitted. Now here, the defendant acted upon information and appearances which were wholly false : find yet as he had reasonable grounds for believing them true, he was held guiltless. Foster, (Crown Law, p. 299,) says of this case, possibly it might have been better ruled manslaughter at common law, due circumspection not having been used.” I do not understand him as questioning the principle of the decision, but as only expressing a doubt whether the principle was properly applied. He calls it nothing more than a case of manslaughter, when, if a man may not act. upon appearances, it was a plain case of. murder. So far as I have observed, no other writer upon criminal law has questioned, in any degree, the decision in Levett’s case; and most of them have fully approved it. East, in his Pleas of the Crown, (vol. 1, p. 274, 375,) has done so. Hale, (1 P. C. 42, 474,) mentions it among cases where ignorance of the fact will excuse from all blame. Hawkins, (1 P. C. 84, Curwood’s ed.) says the killing had not the appearance of a fault. Russell (on Crimes, vol. 1, p. 550, ed. of 1836,) approves the decision, which he introduces with the remark, that “important considerations will arise in cases of this kind, [he was speaking of homicide in defence of one’s person, habitation, of property,] as to the grounds which the party killing had for supposing that the person slain had a felonious design against him ; more especially where it afterwards appears that no such design existed.” Roscoe, (Crim. Ev. p. 639,) says, “ 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.” And he then gives Levett’s case as an ex ample.

The case of Sir William Hawkesworth, who, through his own fault, was shot by the keeper of his park, who took him for a stranger who had come to destroy the deer, went upon the same principle. (1 Hale’s P. C. 40; 1 East, P. C. 275; 1 Russ. on Cr. 549.) Other cases are put in the books where the killing will be justified by appearances, though they afterwards prove false. A general, to try the vigilance or courage of his sentinel, comes upon the sentinel in the night in the posture of an enemy, and is killed. There the ignorance of the sentinel that it was his general, and not an enemy, will justify the killing. (1 Hale’s P. C. 42; 1 East’s P. C. 275; 1 Russ. 540.) The case mentioned by Lord Hale, which was before him at Peterborough, where a servant killed his master, supposing he was shooting at deer in the corn in obedience to his master’s orders, belongs to the same class. (1 Hale’s P. C. 40, 476 ; 1 Russ. 540.) In Rampton’s case, (Kelyng Rep. 41,) the defendant killed his wife with a pistol which he had found in the street, after ascertaining, as he supposed, by a trial with the ramrod, that it was not loaded, though in fact it was charged with two bullets. This was adjudged to be manslaughter, and not merely misadventure. Foster, (Crown Law, 263-4,) calls this a hard case, and thinks the man should have been wholly acquitted, on the ground that he exercised due caution—the utmost caution not being necessary in such cases. But if the . decision was right, as I am inclined to think it was, for the want of proper caution, still the case goes on the ground that the degree of guilt may be affected by appearances which afterwards prove false; for if he had not tried the pistol, it would have been murder. . Foster, (p. 265,) mentions a case which was tried before him, where the prisoner had shot his wife with a gun, which he supposed was not loaded. The judge, being of opinion that the prisoner had reasonable ground to believe that the gun was not loaded, directed the jury, that if they were of the same opinion, they should acquit the prisoner; and he was acquitted. In Meade's case, (1 Lewin’s Cr. Cas. 184,) the prisoner had killed with a pistol one of a great number of persons who came about his house in the night time, singing songs of menace, and using violent language. Holroyd, J., told the jury that if there was nothing but the song, and no appearance .of violence—if they believed there was no reasonable ground for apprehending danger, the killing was murder. And in The People v. Rector, (19 Wend. 569,) Cowen, J., said, alarm on the part of the prisoner, on apparent though unreal grounds, was pertinent to the issue. In The U. S. v. Wiltberger, (3 Wash. C. C. 515, 521,) the judge told the jury, that for the purpose of justifying the killing, the intent of the deceased to commit a felony must be apparent, which would be sufficient, although it should afterwards turn out that the real intention was léss criminal, or even innocent. He afterwards added, that the dangei must be imminent—meaning, undoubtedly, that it must wear that appearance. The State v. Wells, (1 Coxe N. J. Rep. 424,) is entirely consistent with this doctrine. The supreme court of Tennessee has gone still further, and held that one who kills another, believing himself in danger of great bodily harm, will be justified, although he acted from cowardice, and without any sufficient ground, in the appearances, for the killing. (Grainger v. The State, 5 Yerger, 459.) This was, I think, going too far. It is not enough that the party believed himself in danger, unless the facts and circumstances were such that the jury can say he had reasonable grounds for his belief.

We have been referred to two cases where it was said, in substance, that the killing must be necessary; (Regina v. Smith, 8 Car. & Pay. 160, and Regina v. Bull, 9 id. 22;) and other authorities to the same effect might have been cited. The life of a human being must not be taken upon slight grounds; there must be a necessity, either actual or apparent, for the killing, or it cannot be justified. That, I think, is all that was meant by such remarks as have been mentioned. The unqualified language that the killing must be necessary has, I think, never been used when attention was directed to the question whether the accused might not safely act upon the facts and circumstances as they were presented at the time. I have met with no authority for saying, that a homicide which would be justifiable had appearances proved true, will be criminal when they prove false.

But it is said that our statute has changed the rule of the common law on this subject; and that there must in fact be danger of great bodily harm, or the killing cannot be justified. We know that such a change was not intended by the revisers, for they said in their notes, that the provision was “ according to the views of most of the writers on the subject, and the express decisions in Massachusetts and New Jersey.” Those writers and decisions have already been noticed. As I read the statute, it affirms the rule of the common law. The words are, homicide in self-defence is justifiable “when there shall be area sonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished.” (2 R. S. 660, § 3, sub. 2.) The words “ imminent danger,” in the last branch of the clause, do not mean, as the argument for the prisoner assumes, that there must in fact be an impending evil which is ready to fall; but only that there is a threatened evil, or one which appears as if it were ready to fall. There must be reasonable ground to apprehend a wicked design, and apparent danger that such design will be accomplished. It is enough, by the express words of the statute, that there is reasonable ground to apprehend a wicked design; and it is absurd to suppose that such a provision was immediately followed by another, that the danger of the apprehended design being accomplished must be actual, and not merely apparent. Such a construction would make the last part of the clause nullify the first; for if there must be actual danger that the design will be accomplished, there must of necessity be an actual design to be accomplished.

Although I cannot concur in the law of that part of the charge to which exception was taken on the trial, it does not necessarily follow that we must reverse the judgment. The evidence did not make a case for laying down the law of justifiable homicide; and an error of the court concerning an abstract proposition, having nothing to do with the matter in hand, is not a sufficient ground for reversing a judgment. If every controverted fact mentioned in the bill of exceptions is taken in favor of the prisoner, the best case which he can possibly make will be substantially as follows: There was a sudden combat between the parties in the night, in which the deceased gave the first blow ; but the prisoner entered readily into the fight. The deceased had no weapon, and gave blows with his naked hands or fists, while the prisoner struck with a knife, inflicting not less than nine wounds, one or more of which were mortal. After several blows had passed, the deceased hallooed, “he has got a knife,” and retreated towards the middle of the street. The prisoner followed, and continued to give blows ; the deceased at the same time either giving blows or defending himself against those given by the prisoner. The prisoner did not leave the side walk. When the deceased got to the middle of the road, he cried out “ oh boys,” fell, and died in a few minutes. The prisoner did nothing to shun the combat, nor did he show any disposition to stop the fight after it had commenced. Although one witness thought the deceased had the best of the fight at first, no important advantage was gained over the prisoner : he was neither knocked down, nor seriously injured, noi was he in any danger of life or limb. He followed when the deceased tried to escape, still giving blows with a deadly weapon, until very near the moment when the deceased fell down and expired. This is the most favorable statement of the case for the prisoner which can be drawn from the facts detailed in the bill of exceptions ; and much more favorable than any intelligent jury would draw from the whole of the evidence. But taking the case as I have stated it, there is no color for calling it justifiable homicide, or for leaving any such question to the jury. If it was not murder, it was manslaughter at the least; and so far as relates to these offences, no exception was taken to the charge. When a man is struck with the naked hand, and has no reason to apprehend a design to do him any great bodily harm, he must not return the blow with a dangerous weapon. After a conflict has commenced he must quit it, if he can do so in safety, before he kills his adversary : and I hardly need add, that if his adversary try to escape, he must no‘. pursue, and give him fatal blows with a deadly weapon.

As there was no question of justifiable homicide, in the case, the prisoner had no right to call on the court to instruct the jury on that subject; and although the instruction given was wrong in point of law, I do not see how it can possibly have operated to the prejudice of the prisoner. As this is a criminal and a capital case, I cannot but feel a strong disposition to give the prisoner a new trial. But the law concerning bills of exceptions is the same in criminal as it is in civil cases ; (The People v. Wiley, 3 Hill, 194, 214,) and we must not allow our feelings to draw us into the making of a bad precedent. I am of opinion that the judgment of the supreme court should be affirmed; and my brethren concur in this opinion, upon both the points which have been considered.

Judgment affirmed. 
      
       Where one believes himself about to be attacked by another, it is his duty, ii possible, to avoid it; the right of attack for the purpose of self-defence, does not arise, until he has done everything in his power to avoid its necessity. People v. Sullivan, 7 N. Y. 396. People v. Cole, 4 Park. 35. Commonwealth, v. Drum, 58 Penn. St. 9. Commonwealth v. Crause, 4 Clark (Pa.) 500. The plea of self defence must be made out beyond reasonable doubt; the prisoner must show an actual necessity for taking life, or a seeming one, so reasonably apparent and convincing as to lead him to believe he could defend himself in no other way. Logue v. Commonwealth, 38 Penn. St. 265. Commonwealth v. Poke, Lewis Cr. L. 394. See Copeland v. State, 7 Humph. 479. Commonwealth v. Riley, Thatcher’s Cr. Cas. 471.
     