§ 325. Evidence-When duty to retrear exists-Distinction between excusable self-defense and justifiable self-defense.—Where two persons engage in a sudden affray, both being in fault, each is bound to retreat, if possible, before killing the other in self-defense. Blackstone thus states the rule: "The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment; or as far as the fierceness of the assault will permit him.”58 On the other hand, where a party without fault is attacked by another he is not bound to retreat. He may stand his ground, and if necessary to save his life or prevent serious bodily harm he may kill his assailant.5

59

It is now well settled that the accused, when not in fault, is not compelled to flee from his adversary who assails him with a deadly weapon.0 It is to be observed, however, that where both are in fault the accused must cease the combat and retreat as far as safety will permit before he is justified in taking a human life on the ground of self-defense.61 Justice McIlvane says, "By observing the distinction between justifiable and excusable homicide se defendendo, as stated in the authorities above quoted, much of the discrepancy in the decisions of the courts where the common law prevails is

58 4 Bl. Comm. 185. See also Allen v. United States, 164 U. S. 492, 41 L. ed. 528, 17 Sup. Ct. 154, Derby's Cases 219; People v. Constantino, 153 N. Y. 24, 47 N. E. 37; Sullivan v. State, 102 Ala. 135, 15 So. 264, 48 Am. St. 22; Cole v. State (Ala. App.), 75 So. 261; McNeal v. State, 115 Miss. 678, 76 So. 625; State v. Albano (Vt.), 102 Atl. 333; State v. Di Maria, 88 N. J. L. 416, 97 Atl. 248.

591 Hale P. C., ch. 40; Marshall v. United States, 45 App. (D. C.) 373; State v. Merk, 53 Mont. 454, 164 Pac. 655; State v. Meyer, 96

Wash. 257, 164 Pac. 926; People v.

McDonnell, 32 Cal. App. 694, 163 Pac. 1046; State v. Bell, 38 S. Dak. 159, 160 N. W. 727; State v. Donahue, 79 W. Va. 260, 90 S. E. 834; Page v. State, 141 Ind. 236, 40 N. E. 745; State v. Bartlett, 170 Mo. 658, 71 S. W. 148, 59 L. R. A. 756; Wallace v. United States, 162 U. S. 466, 40 L. ed. 1039, 16 Sup. Ct. 859.

60 Tweedy v. State, 5 Iowa 433. 61 State v. Cain, 20 W. Va. 679; People v. Filippelli, 173 N. Y. 509, 66 N. E. 402; Derby's Cases 225; State v. Donnelly, 69 Iowa 705, 27 N. W. 369, 58 Am. Rep. 234, Derby's Cases 220.

made to disappear; most of the cases upon the facts being such as would only excuse the killing.

"It is true, under our constitution, whether the killing in self-defense be justifiable or excusable, there must be an entire acquittal, for the reason that there is no forfeiture of goods in cases of excusable homicide. But this is no reason why the difference between the cases as to the duty of retreating to the wall should be ignored. The taking away of the forfeiture in cases of excusable homicide did not relieve the party in such case from the duty of retreating, nor did it impose such duty in cases where it was not before required.

"It is true, that all authorities agree that the taking of life in defense of one's person can not be either justified or excused, except on the ground of necessity, and that such necessity must be imminent at the time; and they also agree that no man can avail himself of such necessity if he brings it upon himself. The question, then, is simply this: Does the law hold a man who is violently and feloniously assaulted responsible for having brought such necessity upon himself, on the sole ground that he failed to fly from his assailant when he might have safely done so? The law, out of tenderness for human life and the frailties of human nature, will not permit the taking of it to repel a mere trespass, or even to save life, where the assault is provoked; but a true man, who is without fault, is not obliged to fly from an assailant, who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm."62

The right of self-defense is the right to repel force by force unlawfully exerted. The repellent force is protective and not aggressive. When full protection is achieved, the legitimate end of this repellent force, which the law allows, is accomplished; and at this point it should cease.

62 Erwin v. State, 29 Ohio St. 186, 23 Am. Rep. 733. See also State v. Cook, 78 S. Car. 253, 59 S. E. 862, 15 L. R. A. (N. S.) 1013n,

125 Am. St. 788; Young v. State, 53 Tex. Cr. 416, 110 S. W. 445, 126 Am. St. 792, and note to 109 Am. St. 805-820.

§ 326. Defense of third persons, dwelling, or property.Homicide may be justifiable or excusable in the defense of third persons, as a wife, child or near relation, where the circumstances reasonably justify one in believing such person is in imminent danger of death or serious bodily harm.o3 This rule may be applied to the defense of persons not relatives. But one defending a third person has no greater rights than such person would have in defending himself.65

64

Homicide may also be justifiable in defense of one's dwelling, where it reasonably appears necessary to kill in order to prevent the felonious destruction of one's property or habitation or the commission of a felony therein, or to defend one's self and family therein against a felonious assault upon life or person.co

§ 327. Felonious homicide-Definition-Classification.Felonious homicide is the killing of a human being without justification or excuse." In other words, it is the unlawful This latter definition, however,

killing of a human being.

63 Bailey v. People, 54 Colo. 337, 130 Pac. 832, 45 L. R. A. (N. S.) 145, Ann. Cas. 1914 C, 1142n; State v. Turner, 246 Mo. 598, 152 S. W. 313, Ann. Cas. 1914 B, 451; State v. Cook, 78 S. Car. 253, 59 S. E. 862, 15 L. R. A. (N. S.) 1013n, 125 Am. St. 788, 13 Ann. Cas. 1051; Mayhew v. State, 65 Tex. Cr. 290, 144 S. W. 229, 39 L. R. A. (N. S.) 671n; Yardley v. State, 50 Tex. Cr. 644, 100 S. W. 399, 123 Am. St. 869.

64 State v. Hennesy, 29 Nev. 320, 90 Pac. 221, 13 Ann. Cas. 1122, Derby's Cases 230; Weaver v. State, 1 Ala. App. 48, 55 So. 956, Derby's Cases 232. But see Monson V. State (Tex.) 63 S. W. 647.

65 State v. Taylor, 143 Mo. 150, 44 S. W. 785, Derby's Cases 234; Pryse v. State, 54 Tex. Cr. 523, 113 S. W. 938, Derby's Cases 237;

State v. Gray, 162 N. Car. 608, 77 S. E. 833, 45 L. R. A. (N. S.) 71. See also note to 21 Ann. Cas. 721. So a grandmother is justified in killing her son-in-law to prevent his forcible entry into her dwelling to see his child, if her resistance is no greater than necessary

nor

earlier in time, especially where he is threatening to kill her. State v. Perkins, 88 Conn. 360, 91 Atl. 26, L. R. A. 1915 A, 73. And a brother-in-law is justified in killing his sister's husband who is trying to force his way in the house of the brother-in-law and motherin-law to see his wife. Bailey v. People, 54 Colo. 37, 130 Pac. 832, 45 L. R. A. (N. S.) 145n, Ann. Cas. 1914 C, 1142.

66 4 Bl. Comm. 188, 189.

does not apply to conditions as they existed at common law, for the reason that excusable homicide was punishable by forfeiture of the slayer's estate. At present, however, both in England and in this country, the penalty of excusable homicide, which existed at common law, has beer swept away.

In felonious homicide there are at common law, two degrees of guilt, which divide the offense into the following crimes: (1) Murder. (2) Manslaughter.

§ 330 Definition.-Kidnaping, at common law, consists in unlawfully taking a pcrson, against his will, from his own country to another.1

§ 331. Transportation to a foreign country not essential. -In this country, to constitute kidnaping, transportation to a foreign country is not essential.2

In many states statutes exist pertaining to the question of transportation, but they are not uniform. Thus, under the statutes of California it has been held that forcibly taking

1 "The most aggravated species of false imprisonment is the stealing and carrying away, or secreting of any person, sometimes called kidnaping." East P. C. 429, ch. IX. Kidnaping is "the forcible abduction or stealing away of a man, woman, or child, from their own country and sending them to

another." 4 Bl. Comm. 219; Furlong v. German-Amer. Press Assn. (Mo.), 189 S. W. 385. The most aggravated form of kipnaping is "the forcible abduction or stealing and carrying away of any person, by sending him from his own country into some other." 1 Russ. on Crimes (9 Am. ed.) 961.