
    ALLEGHENY COUNTY,
    December Term, 1794.
    Pennsylvania v. Andrew Robertson.
    
      Robertson was indicted for the murder “of an Indian man of the Munsey tribe,” on 1st of May, 1794.—
    
      Robertson was in the employment of the contractor and in a house of his, at Fort-Franklin, and was frying meat on the fire. The Indian came in drunk, and stept across the frying-pan, as if to kick it over. Robertson bade him go out, and on his refusing, said he would put him out. The Indian persisting in his refusal to go out, Robertson proceeded to put him out. A struggle ensued, and both fell. Robertson got up first, and seized the Indian’s feet, to drag him out. When he had dragged him as far as the door, the Indian seized the door post. Robertson called to some present, to part the Indian from the door-post, the Indian said he would let go his hold. Robertson, then let go his hold of the Indian’s feet. On this the Indian kicked Robertson with one of his feet in the face, so that the blood run from his nose in a stream. Then the Indian got up, and made at Robertson, who thereupon seized the bar of the door, which was of cherry-tree, three feet long, about three inches broad, and half an inch thick, and struck the Indian with the narrow side of it, on the side of his head, so that he instantly fell and died. The Indian was a strong man, of about fix feet high, much stouter than Robertson. He was standing outside the door, and between Robertson and the door. The bar was lying outside the door on the ground. The Indian had a knife. The Indians generally were, at that time, supposed to be dangerous, so that the people durst not go out of the fort. The Munsey tribe, or part of them, were hostile, this man was under strong suspicions, was a bad Indian, of no repute among his own people, who thought the killing of him not improper. Such was the case on the evidence.
    
      Brackenridge and Collins, for the prisoner,
    contended, that this was but homicide se defendendo, and the jury ought to acquit. 1 Hawk. 113, 3 Bac. 675, 1 Hale, 486, 4 Comm. 184.
    
      Galbraith, for the state,
    cited 1 Hale, 485, 1 Hawk. 105, 108.
   President.

The circumstances proved clear this case of all presumption of malice. The killing therefore is not murder.

Is it manslaughter ? It was lawful for Robertson to exert as much force, as was sufficient to put the Indian out of the house. It does not appear that he used more. After he had accomplished this, the Indian was the aggressor, by kicking Robertson with his foot. He was prosecuting his attack, “he made at Robertson.” He was a savage, a drunk savage, a savage naturally illdisposed, armed with a knife, a stronger man than Robertson; and his nation and himself were under strong suspicions of hostility. All these circumstances were sufficient to alarm Robertson for his own safety, and induce him to arm himself with a stick, to prevent the danger of the Indianas attack, and save his own life, by a stroke at the life of the Indian.

Foster 279-91.

If you believe, that Robertson might have otherwise entered the house, or escaped, and that the blow was given in a mutual combat, without necessity either from the protection of his life, the possession of his house, or his right of entering it, the killing is manslaughter.

If you believe, that there was no other probable way to get into the house, or otherwise escape from the rage of the Indian, and the danger of his life, than by the blow given, it is but homicide in self-defence.

If you believe it homicide in self-defence, you may acquit the prisoner on this indictment.

Verdict not guilty.  