*1 THE SUPREME COURT. IN State Nash. v. like those we have If the facts are anything supposed, for is pretext application principle slightest are unable to discover error in the record. self-defence. any We be certified to the court of This Cum- must, therefore, superior berland that the case be with to this may proceeded according and the law. (cid:127) - Affirmed. No error. R.
STATE v. S. NASH. Assault, in—Evidence. justification believe, believe, A who has reason to and does at the time and under circumstances, danger, justified resisting that he is in immediate assailant, though exist; danger did jury notin fact but the must belief; Therefore, determine the of his reasonableness it was error to exclude consideration evidence which such belief is grounded. (Chief-Justice Smith, dissenting. Scott, (State 409, Ired., v. and approved). cited for an assault and tried at Pall battery Term, INDICTMENT 1882, of RICHMOND before Superior Court, Gilmer, J.
The indictment that the assault was committed charged (See Nash, 86 N. deadly weapon. C., 650). State On the Nathan trial, on whom the assault Reynolds, person made, testified state, of 23d December, he and other 1879, men of the young neighbor hood made a “bell number, crowd” of up about twenty between and nine o’clock that eight went around night, bells house, and that ringing horns, blowing 1883.
FEBRUARY TERM. which were carried perhaps pistols, some of the party guns, *2 and were fired few after times, they away off a going about off still within yards and had house got thirty-five (but reached the the enclosure, the having gate), crowd, fired his the out on his and at defendant came porch gun the witness into his wound on by a serious shooting leg inflicting three of size of which still remain shot), the duck shot eight (of been extracted. therein, the others having stand as a was the witness his own defendant put upon The crowd, he at the fired the and behalf, admitted gun who fired, child, he his near a that before sleeping prove the which noise of the beils and house, window through flash was heard and the of the seen,, horns firing firing on to the witness with blood her face rose and ran (caused up not then learned, but did know, he afterwards by running n against a and under the impulse end of moment, the table), and went to shot, been got gun believing she fifed the flash of as he door, and, pistols supposed by the seeing crowd, fired at and into the crowd. This retreating the the state and excluded the court, by by evidence objected excepted. the that on the next defendant also proposed testify day The the which house, embedded plank saw some shot the to and excluded. were not before. day Objected Defendant excepted. that the defendant had not shown instructed the
The court the Verdict-of guilty; judgment; shooting. justification defendant. appeal by for the State.
Attorney-General, for the Burwell, Tillett, Walker defendant. &
Messrs. was there is, record by The presented J. question Ashe, to receive the evidence offered error in refusal judge error in there was are of the defendant. We IN THE COURT. SUPREME ». Nash much of so as tended to proposed testimony show, rejecting that, on the reasonable part ground of belief bis had fired into his house and trespassers his child. wounded be, as testified band of may prosecutor, who went to the defendant’s house men,
young innocent amusement; intended but there is one only question, feature in the unusual and rather extraordinary transaction, serenade, a mere on an should, occasion, the party intending are unusual instru- certainly very pistols; carry guns hands music even of band. calithumpian ments marched number; entered round enclosure, twenty They bells and horns, house, pis- blowing ringing firing guns *3 must have the frightened family which tols; greatly unless he is a man than himself, of more ordinary num- awed or not such a of But whether display courage. the of he sub- lawlessness, to dictates yielding prudence, bers and and remained within doors, the to humiliating indignity mitted to him as he to ran little daughter, show, until cir- as was natural under the and face believing, bleeding; went shot, had been he seized his and cumstances, that she and shot into crowd the flash of the fire-arms, saw door, the all the We must it was the suppose wounded prosecutor. and instant. of an work have reasonable circumstances, under these the
Did the had been and shot, that his to believe daughter ground had, If him and his house continuing? upon assault to have been acquitted. ought but a much mooted upon this has been know question, We a rea- is, that authorities, our conclusion an investigation on is in committed that a the act of being belief felony sonable no assailant, the though the of will excuse killing one, homi- whatever will excuse intended. And in fact felony course, assault and excuse an battery. will of cide, consulta- “In the court Ired., say: 4 409, v. Scott, In State TERM, FEBRUARY 1883. time the it seemed to at one case
tion ns properly might to the have been left the favorably prisoner, jury, prin Car., Hale, is, of Cro. which case, Levet’s ciple (1 474), if the had reasonable the ground prisoner believing and him, intended to kill under that belief him, deceased slew at most in would be or excusable, only manslaughter, though no such at the time.” truth the deceased had is to be design But the court did not the noted that Levet was give acquitted. the benefit of the for the Scott’s rea case, principle, prisoner, son been asked the court that no such instruction below, the would have court prisoner concluding requested belief; if he had acted and there were instruction, which case, other circumstances. prevented besides But it is be deduced clearly application principle. who for the Chief-Justice Ruffin, spoke be invoked case, that iu a court, principle might proper also, Barb., Patterson v. 627. excuse defendant. See People, enunciated afterwards J., doctrine was Parker, The same Massachusetts, court of Chief-Justice supreme Trial, 100, case of Self. famous Commonwealth Selfridge, “A, is thus illustrated: peaceful pursuit principle him with an outstretched arm B towards sees affairs, walking violent menaces in his hand, against using pistol near life as he advances. Having approached enough hand, has a club in his strikes B over A, who attitude, same fired, of the wound or at instant head before pistol *4 was in with out that fact loaded turned B dies. pistol to the real of B terrify and that only design only, powder “ man that Will reasonable say The A.” any judge inquired: if been he would have been there had criminal than A is more Crin). Law, note; in the § ?” Whar. ball pistol (g) 215, et Homicide, Law of Whar. seq. acted too rashly: bemay
But objected he should have taken use of to the his gun, he resorted before whether, his child been the fact to ascertain the precaution IN THE COURT. SUPREME with the doctrine is inconsistent princi- shot. But that actually to believe defendant had reason we announced. If the have ple to act as had the though right did believe danger, then, and was imminent. existed, Taking, danger actually had fired info be, fact trespassers no continued, his child, house and shot firing The action. time for The occasion prompt delay. required other member of family. him or some next shot strike might the defendant circumstances, the law would these justify Under himself and his family. in defence of his assailants in firing upon reason- must be of belief But, said, as we have grounds of time, at the ground defendant must able. The judge, for it is at his and he must peril; judge his apprehension, the reasonable trial to determine province refus- the court’s here, And the error his belief. of ground and submitting ques- to receive proposed ing evidence^ must be de novo A venire tion to the consideration jury. awarded. the other J., I am unable to concur with
Smith, C. dissenting. reached, the testi- of in the conclusion court, members if admit- conduct, of the defendant mony explanation to the or have believed, charge, any be a defence ted and would offence, hence, as imma- than other effect mitigate legal mislead, there is no error terial the issue tending upon it. rejecting are sum- with this statement facts in connection
The crowd, in what seems and unruly as follows: A boisterous marily frolick, early the defendant’s have been a enter which, fire-arms, the noise bells, with horns and greatly and his are family around his himself dwelling, they pass about to leave, As are and their disturbed. annoyed peace to him blood upon runs up his little frightened daughter table, but which her face, caused by striking against wound. from a shot Acting to proceed *5 TERM, 1883. FEBRUARY Johnston. without this impulse produced by misconception stopping or make the cause extent of the he seizes inquiry inquiry, loaded with shot hastens to the door and size, large out and, into flash of a fires into the porch, seeing gun, near outer some retreating body yards thirty-five gate, distant, without a word of or remonstrance, and wounds warning one of number the leg. inwas,
This a and unauthorized act in the my hasty opinion, not in or use of defence of himself deadly weapon, or family, but the of a of retaliation for what he premises, spirit offspring to have been and whose error erroneously done, could have at once been corrected. If death ensued, the circum- not homicide; stances would have excused the and as it was not it cannot be an fatal, less than assault.
Human life is too law to allow it to be safely guarded by put and, much it peril upon provocation; however may pal- liate the defendant’s rash act which it resulted, impulse cannot, excuse his use of a my instrument opinion, deadly in so reckless manner. Venire de novo.
Per Curiam. STATE B. JOHNSTON.
Comments Larceny. of Govmsel — ' tracks, defendant did make the If “If the not who did? he did not make ought them, another, made ; were the defendant it” show Held, that argument these of the solicitor in remarks on a larceny, proof trial for where there that the tracks about the corresponded place, made the defendant at another time those objectionable, especially exception were when the is taken after verdict.