if the weapons or means used by the party attempting or committing such murder or maiming, are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury." Texas Penal Code, art. 569; Paschal, Dig. art. 2227.

"Homicide is justifiable also in the protection of the person or property against any other unlawful and violent attack besides those mentioned in the preceding article, and in such cases, all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack besides those mentioned in the preceding article, and any person interfering in such case, in behalf of the person about to be injured, is not justifiable in killing the aggressor, unless the life or person of the injured party is in peril, by reason of such attack upon his property." Texas Penal Code, art. 570; Paschal, Dig. art. 2228.

"The party whose person or property is so unlawfully attacked, is not bound to retreat in order to avoid the necessity of killing his assailant." Texas Penal Code, art. 571; Paschal, Dig. art. 2229.

"The attack upon the person of an individual, in order to justify homicide, must be such as produces a reasonable expectation or fear of death, or some serious bodily injury." Texas Penal Code, art. 572; Paschal, Dig. art. 2230.

"When under article 570 a homicide is committed in the protection of property, it must be done under the following circum

stances:

"1. The possession must be of corporeal property, and not of a mere right; and the possession must be actual, and not merely constructive. 2. The possession must be legal, though the right of property may not be in the possessor. 3. If the possession be once lost it is not lawful to regain it by such means as result in homicide. 4. Every other effort in his power must be made by the possessor, to repel the aggression, before he will be justified in killing." Texas Penal Code, art. 573; Paschal, Dig. art. 2231.

"Simple assault and battery or mere trespass upon property, will not justify homicide, nor will any offense, not accompanied by force, such as theft, except in the night time, and from some house or place, such as defined in articles 680 and 681." Texas Penal Code, art. 574; Paschal, Dig. art. 2232.

The statutory provisions above expressed are in effect generally adopted in this country. The phraseology of the Texas statutes is more didactic and concise than many others and has for this reason been selected for illustration.

$477. When Causing Death does not Amount to Homicide. Under the English rule, "a person is not deemed to have committed homicide, although his conduct may have caused death, in the following cases: (a) When the death takes place more than a year and a day after the injury is inflicted is to be counted as the first day. (b) [It is said] When the death is caused without any definite bodily injury to the person killed, but this does not extend to the case of a person whose death is caused, not by any one bodily injury, but by repeating acts affecting the body which collectively cause death, though no one of them by itself would have caused death. (c) [It seems] When death is caused by false testimony given in a court of justice." Stephen, Dig. art. 221.

§ 478. A Celebrated Case Examined.-The case of Com. v. Selfridge (Horrigan & T. Cases on Self-Defense, 1) decided by the supreme judicial court of Massachusetts in 1806, is one of the celebrated cases in American criminal law. It established certain rules of action and principles of evidence, that many years after inspired distinctive legislation in the criminal codes of New York, Kansas, Missouri, Minnesota, Wisconsin and other states, that must ever be regarded as both wise and salutary. Mr. Wharton, whose primacy upon matters pertaining to criminal law, we all cordially recognize--has fallen into an unaccountable error in his extended criticism of this case. (Vide 1 Whart. Crim. Law, (5th ed.) note appended to § 1026.) Aside from the dogmatic assertion of his language, which is a disfigurement to any text, and especially unfortunate to the semi-judicial treatment of a serious topic concerning the life of fellow citizens; and his offenses in this direction become positively inexplicable, when he embarks in a very decided attempt to impugn the character of one of the most stainless jurists, who has ever graced the bench in this or any other land.

Returning to the case of Com. v. Selfridge, supra, we may say, that the positions it established are these: First. A man, who in the lawful pursuit of his business, is attacked by another, under circumstances which denote an intention to take away his life, or do him some enormous bodily harm, may lawfully kill the assail

ant, provided he uses all the means in his power, otherwise, to save his own life, or prevent the intended harm-such as retreating as far as he can, or disabling his adversary, without killing him if it be in his power. Second. When the attack upon him is so sudden, fierce and violent, that a retreat would not diminish, but increase his danger, he may instantly kill his adversary withour retreating at all. Third. When, from the nature of the attack, there is reasonable ground to believe that there is a design to destroy his life, or commit any felony upon his person, the killing the assailant will be excusable homicide, although it should afterward appear that no felony was intended.

Of these three propositions the last one is the only one that will be contested anywhere, and this will not be doubted by any one, who is conversant with the principles of the criminal law. Indeed, if this last proposition be not true, the preceding ones, however true and universally admitted, would, in most cases, be entirely efficacious.

There are two kinds of self-defense: the one which is justifiable, and perfectly innocent and excusable; the other, which is in some measure blamable, and barely excusable. All the writers agree, says Sir Michael Foster, that there are cases in which a man may, without retreating, oppose force to force, even to the death. They all agree, also, that there are cases, in which the defendant cannot avail himself of the plea of self-defense, without showing that he retreated as far as he could with safety, and, then, merely for the preservation of his own life, killed the assailant. A homicide committed under these circumstances is excusable, notwithstanding there may have been some fault in the defendant. In the case of justifiable self-defense, the injured party may repel force by force in defense of his person, habitation, or property, against one who manifestly intendeth and endeavors by violence or surprise, to commit a known felony upon either. It is justly considered that the right in such case, is founded in the law of nature, and is not, nor can be, superseded by any law of society. There being at the time no protection from society, the individual is remitted for protection to the law of nature.

When a known felony is attempted upon the person, be it to rob or murder, the party assaulted may repel force for force; and even his servant then attendant upon him, or any other person present, may interfere to prevent mischief; and if death ensue, the party so interposing will be justified.

§ 479. Intent to Kill is the Essence of the Crime.-Many cases have been decided, in all of which has been held that the intention to kill is the essence of the offense, therefore, if any intention to kill exists, it is willful; if this intention be accompanied by such circumstances as evidence a mind fully conscious of its own purpose and design, it is deliberate; and if sufficient time be afforded to enable the mind fully to frame the design to kill, and to select the instrument, or to frame the plan to carry this design into execution, it is premeditated. The law fixes upon no length of time, necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury, from all the facts and circumstances in evidence. Weston v. Com. 111 Pa. 251.

The decisions hold clearly enough, that no particular time need elapse between the formation of the intent to kill, and the act of killing, but none hold that there need be no time, or that there could be murder in the first degree where there was no intent, except such as was practically concurrent with the act. Premeditation and deliberation necessarily involve the idea of time. State v. Hockett, 70 Iowa, 442. The barbarous manner in which a homicide was committed does not of itself furnish any basis for the defense of insanity. United States v. Lee, 2 Cent. Rep. 692, 4 Mackey, 489.

The killing of a human being with an instrument likely to produce death, is a stupendous fact as a guide to intention. Weeks v. State, 79 Ga. 36.

The law requires all persons to be exceedingly cautious and careful in the use and handling of fire-arms, and one who purposely draws upon another a gun or pistol does an unlawful act, and is guilty of felonious homicide if death results from the act, unless, indeed, the act of pointing the weapon is justifiable or excusable upon some legal ground. Lange v. State, 95 Ind. 114. If a man has a beast which is used to do mischief, and he, knowing this, purposely turns it loose, though barely to frighten people, and make what is called sport, and death ensues, it is as much murder as if he had incited a bear or a dog to worry the party; and if, knowing its propensity, he suffers it to go abroad, and it kills a man, even this is manslaughter in the owner. 4 Bl. Com. 197; Palmer, 545; 1 Hale, P. C. 431.

"In proving murder by poison, the evidence of medical men is

frequently required, and in applying that evidence to the facts of the case, it is not unusual for difficulties to occur. Upon this subject the following observations are well deserving attention. In general it may be taken that where the testimonials of professional men are affirmative, they may be safely credited; but where negative, they do not appear to amount to a disproof of a charge otherwise established by strong, various, and independent evidence." 2 Roscoe, Crim. Ev. 948.

§ 480. How Death may be Accomplished.-The killing may be by any of the thousand forms of death by which life may be overcome. 4 Bl. Com. 196. But there must be a corporal injury inflicted; and therefore, if a man, by working upon the fancy of another, or by any unkind usage, puts another into such a passion of grief or fear, as that he either dies suddenly or contracts some disease, in consequence of which he dies, that is no felony, because no external act of violence was offered of which the law can take notice. 1 Hale, P. C. 429. Seven modes of killing are enumerated by Lord Hale. 1. By exposing a sick or weak person to the cold. 2. By laying an impotent person abroad so that he may be exposed to and receive mortal harm. 3. By imprisoning a man so strictly that he dies. 4. By starving or famine. 5. By wounding or blows. 6. By poisoning. 7. By laying noxious and noisome filth at a man's door to poison him. 1 Hale, P. C. 431.

§ 481. Burden of Proving Mitigating Circumstances.Upon the defendant is cast the burden of proving circumstances of mitigation, or that justify or excuse the commission of the homicide. This does not mean that he must prove such circumstances by a preponderance of the evidence, but that the presumption that the killing was felonious arises from the mere proof of the prosecution of the homicide, and the burden of proving circumstances of mitigation, etc., is thereby cast upon him. He is only bound, under this rule, to produce such evidence as will create in the minds of the jury a reasonable doubt of his guilt of the offense charged. People v. Boling, 83 Cal. 380; Biggs v. State, 29 Ga. 723, 76 Am. Dec. 630; Pond v. People, 8 Mich. 150; State v. Christian, 66 Mo. 138; Nichols v. Com. 11 Bush, 575.

§ 482. Evidence of Character in Cases of.-"As a general rule in cases of homicide, evidence of the bad character of the deceased for turbulence and violence is not admissible, unless it tends to qualify, or explain the conduct of the deceased, or to