DeArman v. StateDeArman v. State
It is a matter resting entirely within the discretion of the trial court, to continue or refuse to continue causes, civil or criminal, and suсh action can not be revised on error. And the rule applicable to putting the State, in criminal causes, to the admissiоn as to what an absent witness of a defendant would testify, if present, is necessarily the same. The primary court has a discretionary power to require either party to make a proper showing, under oath, as to what he expects to prove by an absent witness, and what diligence he has used to obtain Ins testimony; and if the adverse party refuses to admit what it is alleged suсh absent witness would swear, the practice is not to continue the cause on account of the absence of suсh testimony. There is nothing in the action of the court touching these matters which is subject to our review. And if it were otherwise, we arе not prepared to say that its discretion has not been exercised, in every particular, so as to be entirely freе from criticism. — Peterson v. The State,
2. Whether the Circuit Court erred, under the peculiar circumstances of this case, in ordering a special venire of jurors to bе summoned for the trial, in accordance with section 4874 of the Code (1876), is one of the questions raised by the record, and urged upon our consideration. It is a sufficient answer to this inquiry, that the court had jurisdiction to grant this order, and it was granted in response to an express demand for such a jury, made by the defendant prior to entering upon the trial; and no exception can be based upon any ruling of a court which was induced by the request or objection of. the party excepting. Our past decisions fully commit us to this salutary principle. Shelton v. The State,
3. We may add, however, that no difficulty, can arise, in similar cases in the future, if the proper practice is enforced. The indictment is for murder, and to this the defendant pleaded
4. The first three charges in the record, requested by the defendant, were properly refused by the court, because they were repugnant and misleading. Each asserts the prоposition, at least by implication, that one may kill another with malice and premeditation, and yet do so in self-defense, so as to be acquitted of аll criminality. Malice, or, as it is commonly called, malice prepense, or aforethought, is the chief characteristic of murder, and has. been said to be the grand criterion by which it is distinguished from any other species of homicide. — 1 Russell on Cr. (9th Ed.), 667. It is indicativе of a wicked, depraved, and malignant spirit — a heart regardless of social duty, and deliberately bent on mischief. — Foster, 256. And it can scarcely mean less than an intent from which flows an unlawful and injurious act committed without legal justification. 1 Bish. Cr. Law (7th Ed.), § 429. Self-defense is the creature of necessity, and a killing in self-defense must be a killing from necessity, and not from malice and with premeditation. “ In аll cases of homicide excusable by self-defense,” says Mr. Bus-sell, in his work on Crimes, “it must be taken that the attack was made upon а sudden occasion, and not premeditated, or with malice /” and after observing that the person who kills another
5. There are, without doubt, cases of emergency, when no duty devolves uрon one who is feloniously and forcibly assaulted by another with a deadly weapon, to decline combat by retreat. The instances must be few, however, and the evidence must be clear and free from all conflict, where the court, if ever, is рermitted to make such a deduction. "We have repeatedly declared the rule in effect to be, and the practice has commonly been, to submit to the jury, as a question of fact, the inquiry as to whether the party assailed could have conveniently and safely retreated without apparently putting himself at a probable disadvantage. — Story's Case,
We discover no error in the record, and the judgment must be affirmed.