134 Mass. 215 | Mass. | 1883
This is an indictment for manslaughter, charging the defendant with the killing of one Thomas Barnacle, by stabbing him with a knife. The evidence tended to show that said Thomas attacked the defendant with a knife and fork. The defendant contended that he stabbed Thomas when this attack was made; and that he acted in self-defence, and under a reasonable apprehension that Thomas would do him great bodily harm. To prove this issue, he offered to show by a witness, who knew both Thomas and the defendant, that Thomas was a larger and more powerful man than the defendant. Upon the objection of the Commonwealth’s attorney, the court rejected this evidence; and the defendant excepted.
It is well settled that, if a man is attacked, he has the right to defend himself. If the attack is of such a character, and made under such circumstances, as to create a reasonable apprehension of great bodily harm, and he acts under such apprehension, and in the reasonable belief that no other means will effectually prevent the harm, he has the right to kill the assailant. In such cases, therefore, the' questions whether there was reasonable cause to apprehend great bodily harm, and whether the defendant acted under such apprehension, are material issues. Commonwealth v. Woodward, 102 Mass. 155. Commonwealth v. O'Malley, 131 Mass. 423. It necessarily follows, that, in the case before us, the question whether the defendant acted under a reasonable apprehension of great bodily harm to himself from the attack of Thomas, was a material issue. Any evidence which tends to prove this issue is competent. The jury could not intelligently pass upon this issue without being informed as to the character and circumstances of the attack. It seems to us clear, that the fact that the assailant was a larger and more
We are of opinion that the fact which the defendant offered to prove, that the said Thomas was a larger and more powerful man than the defendant, was competent, and should have been admitted.
The Commonwealth relies upon the cases of Commonwealth v. Hilliard, 2 Gray, 294; Commonwealth v. Mead, 12 Gray, 167; and Commonwealth v. York, 7 Law Reporter, 497, 507. In Commonwealth v. Hilliard, the question we have discussed does not appear to have been raised. The defendant there offered to show the general character of the deceased as a fighting, brutal man, of great strength; and the decision was that the evidence was too remote, the court saying that “ the provocation under which the defendant acted must be judged of by the res gestee; and the evidence must be confined to the facts and circumstances attending the assault by the deceased upon the defendant.” It does not decide that the defendant could not put in, as part of the res gestee, the fact that the deceased was larger and more powerful than himself.
So in Commonwealth v. York, the defence being that the homicide was committed under provocation and in mutual
in addition to the cases mentioned in the opinion, cited Selfridge’s case, 33, 56, 60, 64, 66, 164; Hurd v. People, 25 Mich. 405; Dukes v. State, 11 Ind. 557; State v. Keene, 50 Mo. 357; State v. Bryant, 55 Mo. 75; State v. Harris, 59 Mo. 550; State v. Benham, 23 Iowa, 154; State v. Collins, 32 Iowa, 36; People v. Lamb, 2 Keyes, 360, 364; Commonwealth v. Drum, 58 Penn. St. 9; State v. Tackett, 1 Hawks, 210; State v. Hogue, 6 Jones (N. C.) 381; State v. Smith, 12 Rich. 430; Fields v. State, 47 Ala. 603; Rippy v. State, 2 Head, 217; Wesley v. State, 37 Miss. 327.
In Commonwealth v. Mead, the court held that evidence tending to prove the great muscular strength of the deceased was incompetent. That case has not, we think, been followed by other courts, and has been much questioned by the profession. So far as it conflicts with our decision in the case before us, we feel constrained to overrule it.
Exceptions sustained.