510 Sheet – American State Trials 1918 Volume X Leo Frank Document

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478 X. AMERICAN STATE TRIALS.

Where a known felony is attempted upon a person, be it to rob or murder, the party assaulted may repel force with force. Even the assaulted person's own servant, then attendant on them, or any other person present, may interpose to prevent mischief. If death ensues, the party so interposing will be justified. In this case, nature and social duty cooperate. (Foster 274. Hawkins, P. C, Chap. xxviii, Sec. 25, towards the end.)

Yet it seems that a private person, a fortiori, an officer of justice, who happens unavoidably to kill another in endeavoring to defend themselves from, or suppress dangerous rioters, may justify the fact, inasmuch as they only do their duty in aid of public justice. (Section 24.)

And I can see no reason why a person, who without provocation is assaulted by another in any place whatsoever, in such a manner as plainly shows an intent to murder them, as by discharging a pistol or pushing at them with a drawn sword, etc., may not justify killing such an assailant, as much as if the assailant had attempted to rob them. For is not he who attempts to murder me more injurious than he who barely attempts to rob me? And can it be more justifiable to fight for my goods than for my life? It is not only highly agreeable to reason that a man in such circumstances may lawfully kill another, but it seems also to be confirmed by the general tenor of our law books, which, speaking of homicide se defendendo, suppose it done in some quarrel or affray.

And so perhaps the killing of dangerous rioters may be justified by any private persons, who cannot otherwise suppress them or defend themselves from them; inasmuch as every private person seems to be authorized by the law to arm themselves for the purposes aforesaid. (Hawkins, p. 71, Sec. 14.)

Here, every private person is authorized to arm themselves, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time for their defense, not for offense. This distinction is material and must be attended to. (Hawkins, p. 75, Sec. 14.)

And not only he who on an assault retreats to the wall or some such strait, beyond which he can go no further, before he kills the other, is judged by the law to be excused.

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