State v. . Gibson

Aug 5, 1849

Versions:32 N.C. 214

Lead Opinion

If there was any doubt in this case, it was upon the facts and not upon the law, for we think the rule of law was properly laid down by his Honor. In an action against the defendant, his plea of son assault demesne must have averred that the prosecutor, just before his alleged battery on her, made an assault on him and would then have beaten him if he had not immediately defended himself against her; whereupon he did then and there defend himself against her, and, in so doing, did a little beat and ill-treat her. Precedent in 3 Chit. Pl., 1067. It is clear, therefore, that the law does not justify any assault by way of retaliation or revenge for a previous one by the prosecutrix, but only in the defendant‘s own defense; for it cannot be doubted that a party must be liable to the public for an assault in any case in which he would be to the private person in an action. In cases of homicide, indeed, there is an intermediate grade of guilt between that of the highest degree, murder, and a case of self-defense, which is manslaughter, in which there is palliation, but not justification. But in cases of battery merely, the party who strikes another must be guilty unless he be justified in committing it as an act of self-defense; for although, on the indictment, he need not plead the matter specially, but may insist on the defense under not guilty, yet the special matter given in evidence on not guilty, in order to be available, must be such as would support the special plea if it had been necessary to put it in. It is true, the defendant need not generally show affirmatively that the other party was in the act of striking again when he struck, as that is to (216) be presumed when the blow is returned immediately or the parties are in the attitude or position in which the first blow was given. It is therefore, ordinarily, necessary, in order to repel the presumption, that something should come from the State to satisfy the jury that in fact the first assailant had done, and that the defendant might have so seen; for, otherwise, the jury will generally and, indeed, naturally conclude that the defendant returned the blow, not in malice and in vengeance, but in defense of himself. How it is in any particular case is, of course, a question of fact for the jury; and we suppose they must have thought, here, that as the prosecutrix was a woman and several yards from the defendant, then on horseback on the opposite side of the fence, he could not have believed himself in further danger from her, and therefore that his alighting from his horse and going the several yards to her and striking her with a stick on the head was not in defense of himself, but an act of unmanly aggression on her. At all events, the inquiry was one for the jury, and their decision cannot be reviewed here, as we think the law was properly laid down to them.

Addendum

The judge charged that the defendant was guilty, unless he struck to protect himself from bodily injury, by which it is understood he means, unless after receiving one blow it was necessary for him to strike in order to prevent another.

This, in cases of assaults and batteries, is fixing limits to the ground of defense, in my opinion, more narrow than the law contemplates, and I, therefore, with all deference, cannot concur with a majority of the Court. Our sturdy ancestors, “who built up the common law,” did not require a man to turn and flee when he received a blow; he is allowed to return blow for blow, provided he does not give an excessive blow, such as was not called for by the occasion; and this, not exclusively upon the ground that it was necessary to protect himself on that particular occasion from further bodily injury, but because it is prompted by natural impulse, which originates in (217) the principle of self-protection, and tends to self-defense in general, by having it understood that our persons are not to be assaulted with impunity, but that, if assaulted, a blow will be given in return. If one pulls the nose of another, or strikes a dastardly blow from behind, and starts to run off, so as to make it manifest that there is no danger of his striking again, and is at the instant pursued and stricken as he deserves, no excess of force being used, can it be said the party who returns the blow is to be convicted for an assault and battery, and that he has no extrajudicial remedy in an emergency of the kind, because he had no reason to think that the assault would be repeated?

In cases of homicide the ground of self-defense is more narrow, because the blow returned is excessive; the party is therefore required to retreat to the wall and not to take life, unless it be necessary to save his own life or to avoid great bodily injury; but in homicide the law has provided a middle ground between conviction for murder and acquittal for self-defense — manslaughter. Hence the plea of self-defense is more restricted in homicide than in assault and battery, where there is no such middle ground; and the dividing line between conviction and acquittal in assaults and batteries takes in the middle ground on the side of acquittal. The authorities upon this question are less clear and distinct than might be supposed. Upon examination no direct authority can be found. In 1 East P. C., 406, it is laid down, son assault demesne is no excuse, if the retaliation be excessive and bear no proportion to the necessity or the provocation received. So in 1 Hawk. P. C., ch. 60, sec. 23. Blackstone, in his Commentaries, 3 vol., page 3, in treating of extra judicial remedies, puts down in the first place self-defense, and holds if one is attacked it is lawful to repel force by force, and the breach of the peace is chargeable (218) to him who gives the first blow, for the law in such cases respects the passions of the human mind and makes it lawful in him to do himself that immediate justice to which he is prompted by nature and which no prudential motive is strong enough to restrain. It considers that the future process of the law is by no means an adequate remedy.

From the general tone of the authorities I am led to the conviction that one who receives a blow is not restricted in self-defense so as to be allowed to strike only in order to protect himself from another blow, but may excuse, upon the ground of self-defense, a reasonable retaliation for the blow received, although it be manifest that the other party intends to give no other blow, and is allowed to do himself that immediate justice to which he is prompted by nature.

Had this been the case of two men, the law, in my opinion, would be clear for the defendant, but as the person stricken was a woman, and the reasoning upon which the law is founded does not so forcibly apply where the party giving the first blow is a female, I would willingly make a distinction, if any authority could be found for it.

PER CURIAM. Judgment affirmed.

Cited: Rogers v. Ratcliff, 48 N.C. 231; S. v. Dunn, 134 N.C. 663.

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