Claude Moore to act in his brother's defense and is as favorable to him as the evidence warranted.

While the states of Missouri and Texas hold to the contrary, that is, to the effect that the culpability of one who kills in defense of a relative is not measured by the right of the relative to defend himself, but upon appearance of conditions when he entered the conflict, unless he knew or might reasonably have known the rights possessed by the other under the circumstances of the conflict, such holding in our opinion wholly ignores the right of the deceased, or, in cases of assault, the injured party or prosecuting witness to defend himself. In effect such decisions hold that although the deceased or injured party may at the time be acting wholly within his rights in defending against an unlawful assault, and if killed or injured by the relative who brought about such assault such relative could not claim the right of self-defense, on the other hand, he may under such circumstances be killed or injured by a relative of the party in fault who voluntarily entered the conflict when the first relative was still at fault without criminal responsibility. Further, while the law would require the relative who provoked the attack to withdraw in good faith from the conflict, no such requirement attaches to the relative who without knowledge of the other's fault enters voluntarily into a conflict with deceased or prosecuting witness and accomplishes the very result for which the relative first in the wrong sought and brought about the conflict.

To so hold, in our opinion, puts too cheap a valuation upon human life and upon security against unlawful injury. The great weight of authority is to the effect that one who goes to the aid of a relative or third person acts at his own peril, and his right to defend the other is coextensive with the other's right to defend himself at the time.

It must be understood in this connection that it is intended not to be held, and that we do not hold, that the right of self-defense can never arise at any stage of a difficulty when one is defending himself against dangers of any kind which he may have unlawfully provoked. In all cases where one has withdrawn from the affray or difficulty as far as he possibly can and fairly indicates his desire for peace, and is thereafter pursued by the other party who renews. the difficulty, his right of self-defense, though once lost, is revived. and may be successfully pleaded by him, and thereafter his actions. will be justified even to the extent of taking human life if necessary. This is also the law as to the relative who enters such conflict after such withdrawal, either with or without knowledge of such withdrawal. And, further, if the relative last entering the conflict abandons his plan to defend the other and himself withdraws in good faith and is himself thereafter pursued by the prosecuting witness or deceased as the case may be, his right to defend himself MIK.CR.L. (2D ED.)-23

from the latter attack is complete, although the relative to whose aid he first entered the conflict has not withdrawn therefrom.

Judgment affirmed.

DOYLE and BESSEY, JJ., concur.

VI. ACTS IN DEFENSE OF PROPERTY

HINCHCLIFFE'S CASE.

(York Assizes, 1823. 1 Lew. 161.)

Prisoner was indicted for manslaughter. It appeared that a man and his servant had insisted upon placing corn in the prisoner's barn, which she refused to allow. They exerted force. A scuffle took place, in which the prisoner received a blow on the breast, whereupon she threw a stone at the deceased (the master), who, falling down, was taken up dead.

Per HOLYROYD, J. "The case fails on two accounts. It is not proved that the death was caused by the blow, and, if it had been, it appears that the deceased received it in an attempt to invade her barn against her will. She had a right to defend her barn, and to employ such force as was reasonably necessary for that purpose, and she is not answerable for any unfortunate accident that may have happened in so doing." Under his lordship's direction, the prisoner was acquitted, and forthwith discharged.1

STATE v. MORGAN.

(Supreme Court of North Carolina, 1842. 25 N. C. 186, 38 Am. Dec. 714.) GASTON, J. Assuming, then, that the constable had wrongfully taken the gun, and that the defendant had a right to require its return, and that exertion of force, nothing short of that which was begun on the part of the defendant, would have availed to compel its return, in our opinion the assault is not justified. It was made with a deadly weapon, which, if used, would have probably occasioned death, and made without any previous resistance on the part of the officer. It was, therefore, an assault with intent to kill. If this intent were lawful, the assault with that intent was lawful. If this intent were unlawful, an assault with that intent cannot stand justified. Now, when it is said that a man may rightfully use as much force as is necessary for the protection of his person or property, it should be recollected that this rule is subject to this most

1 For right, in the protection of property, to kill an animal, see State v. Smith, 156 N. C. 628, 72 S. E. 321, 36 L. R. A. (N. S.) 910 (1911).

2 Part of this case is omitted.

MIK.CR.L. (2D ED.)

important modification: that he shall not, except in extreme cases, endanger human life or do great bodily harm. It is not every right of person, and still less of property, that can lawfully be asserted, or every wrong that may rightfully be redressed, by extreme remedies. There is a recklessness, a wanton disregard of humanity and social duty, in taking or endeavoring to take the life of a fellow being, in order to save one's self from a comparatively slight wrong, which is essentially wicked, and which the law abhors. You may not kill, because you cannot otherwise effect your object, although the object sought to be effected is right. You can only kill to save life or limb, or prevent a great crime, or to accomplish a necessary public duty. Thus an officer, acting under a legal process, has a right to arrest the person against whom it is directed, and retake him, if he break custody; and for such purpose he may and ought to use necessary force. Yet, if the process be in a civil case, or for a misdemeanor only, and the officer, although he cannot otherwise arrest or retake his prisoner, intentionally kills him, it is murder. 1 Hale, 481; Foster, 271; 1 East, P. C. c. 5, §§ 306, 307. The purpose is indeed rightful, but it is not one of such paramount necessity as to justify a resort to such desperate means. So it is clear that if one man deliberately kills another to prevent a mere trespass on his property, whether that trespass could or could not be otherwise prevented, he is guilty of murder. If, indeed, he had at first used moderate force, and this had been returned with such violence that his own life was endangered, and then he killed from necessity, it would have been excusable homicide; not because he could take life to save property, but he might take the life of the assailant to save his own. If these principles be right, and we think they cannot be contested, it would follow that, if unfortunately the rage of the defendant in this case had not been pacified, and the fatal blow had fallen and death ensued, it would have been a clear case of murder. If so, then the assault made was an assault with intent to commit murder. A justifiable assault with intent to commit murder is a legal solecism.

This opinion must be certified to the superior court of Henderson, with instructions to render judgment for the state upon the special verdict.

PER CURIAM. Ordered accordingly.3

3 Accord: Reg. v. Sullivan, 1 Car. & M. 118 (1841); People v. Horton, 4 Mich. 67 (1856); State v. Shippey, 10 Minn. 223 (Gil. 178), 88 Am. Dec. 70 (1865); Davison v. People, 90 III. 221 (1878); Wallace v. U. S., 162 U. S. 466, 16 S. Ct. 859, 40 L. Ed. 1039 (1895); State v. Green, 118 S. C. 279. 119 S. E. 145, 19 A. L. R. 1431 (1921); Pierce v. Commonwealth, 135 Va. 635, 115 S. E. 686, 28 A. L. R. 864 (1923). Cf. People v. Payne, 8 Cal. 341 (1857).

For the right of the owner of property to maintain his possession by force against an officer attaching it as the property of another, see Commonwealth v. Kennard, 8 Pick. (Mass.) 133 (1829), for the right, and State v. Selengut, 38 R. I. 302, 95 A. 503, L. R. A. 1916B, 955, Ann. Cas. 1917D, 303 (1915), against the right.

ANDERSON v. STATE.

(Supreme Court of Tennessee, 1872. 6 Bax. 608.)

TURNEY, J., delivered the opinion of the court.

The court charged the jury: "That if he (Wright) deceived him (Anderson), or even told Anderson a falsehood, and by that means got possession of the money, Anderson would not have the right to take hold of him to force him to return the money, and if he did take hold of him to force him to return the money, it would be a battery; and also if he got possession in that way, by fraudulent misrepresentations, that Wright would have the right to keep it, and apply it to the execution in his hands against Anderson."

This was error, first, because Anderson did not voluntarily part with his possession, and discovering that Wright proposed to appropriate it against his consent, and without having notified him of such purpose before receiving the money, he stands in no better attitude than if he had gotten the money by robbery or theft, so far as the rights of Anderson to defend his possession are involved. If a man meets another in the highway, and by false and fraudulent misrepresentations induces that other to surrender to him the possession of his horse and carriage, and when he has so obtained possession, shows a different purpose, by word or act, to appropriate it to his own use, and to escape with it, surely it will not be held the person so deprived of property is compelled to stand with folded arms and see the fellow so escape beyond the reach of the law, or the hope of a restitution of his property, or be guilty of a violation of law in attempting to recover possession. On the contrary, every man has a right to defend his property, and his possession thereof, and to use such force as will secure to him its full enjoyment. If he use the necessary force to eject the intruder from his house or premises, upon the same principle he may use like force to recover a chattel attempted to be converted by a dissembler or felon.

In the second place the charge is erroneous because the proof shows that at the time Wright attempted to, and did keep the $5 bill, that only $1.50 belonged to Anderson. Anderson was simply bailee of the remainder, and delivered the whole to be charged, that his part of it might be applied by Wright to the payment of the execution for taxes.

Reverse the judgment.

If anybody in a case of Hamsoken, which is the invasion of a house against the peace of the king, defends himself in his own house, and the invader is killed, he shall remain unpersecuted and unavenged,

if he, whom he invaded, could not otherwise defend himself, for it is said he is not worthy to enjoy peace, who is not willing to keep it. Bracton, f. 144 b.

COOK'S CASE.

(King's Bench, 1639. 3 Croke, 537.)

Cook was indicted for the murder of Marshal. Upon his arraignment, he pleaded not guilty; and it was found, that the said Marshal was a bailiff to the sheriff of Somerset, and had several warrants upon several capias ad satisfaciendum against the said Cook and his father, directed to him and other bailiffs; and that they, by virtue or colour thereof, entered into the said Cook's stable and outhouse, and hid themselves there all night; and at eight of the clock the next morning came to Cook's dwelling-house, and called him to open his doors and suffer them to enter, because they had such warrants upon such writs, at the suit of such persons, to arrest him, and willed him to obey them. But the said Cook commanded them to depart, telling them, they should not enter. And thereupon they brake a window, and afterwards came to the door of the said house, and offered to force that open, and brake one of the hinges thereof. Whereupon the said Cook discharged his musquet at the said Marshal, and stroke him, of which stroke the day following he died. The doubt was, whether upon all this matter he be guilty of murder or manslaughter?

And it was now argued by Rolle, for Cook, that it was not murder; for although a bailiff were slain, yet it was by his own procurement in doing an unlawful act, viz.: in breaking the window and door, and attempting to enter and serve process, which is not lawful for a personal duty, unless in the king's case; and for that purpose he cited 5 Co. 91, b. 92; Seamain's Case, 13 Edw. IV.

And after argument at the bar, all the Justices seriatim delivered their opinions, that it was not murder, but manslaughter only; for though he killed a bailiff, yet he killed him not in duly executing process; for it is not murder, unless there be malitia præcogitata, or malitia implicita; as to murder one suddenly, or in resistance of an officer doing his office; but that last ought to be where he is duly executing his office, by serving the process of law, wherein he is assisted cum potestate regis et legis; but here this bailiff was slain in doing an unlawful act, in seeking to break open the house to execute process for subject, which he ought not to do by the law; and although he might have entered if the door had been. opened and arrested the party, and it had been lawful, yet he ought not to break open the house, for that is not warranted by law and especially lying there in the night, and in the morning breaking the window and offering to force the door, which is not sufferable;