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[Cite as Philips vs. Commonwealth, 63 Ky. (2
Duv.) 328 (1865). NOTE: This decision concerns a case of self-defense
with a gun. It speaks of "the sacred right" of self-defense, and is cited by
Carico v. Commonwealth, 70 Ky. (7 Bush) 124, 128 (1870) where
the court comments further on the "perfect right" to self-defense.]
CASE 35--INDICTMENT--FEBRUARY 28.
Philips vs. Commonwealth.
Appeal from mercer circuit
1. In testing instructions given on a trial for
murder, every deduction which the jury might have been authorized to make from
the testimony, must be assumed as a fact proved.
2. See the opinion for a statement of the facts upon
which it is held erroneous to instruct the jury that they ought to find the
accused guilty of murder, unless they should also be of opinion that he, when he
fired the pistol, had reasonable ground to believe, and did believe, in good
faith, that the deceased was then about to carry his previous threats into
execution, and would do so unless prevented by killing him, and that the accused
had no other means of escape.
3. The principle applicable to a mutual rencounter,
or an affray with deadly weapons, does not apply to a case in which the first
escape from threatened assassination by a determined and persevering enemy would
not probably secure the ultimate safety of the accused. (2 Stark. on
Ev., p. 523.) The party once assailed by an enemy who had threatened
to kill him, is not bound to run and thereby escape that assault,
leaving the danger still impending, and, perhaps, increased by the act of
Hooe & Gaither, for
appellant, cited 4 Bl. Comm., 184; 2 Kent's
Comm., 15; 7 J. J. M., 484; 1 Hawk. Pl.
Cr. Ch., 28, sec. 21; Foster on Hom., 273,
274; 14 B. Mon., 622.
Hunt, Beck & Clark, on same side, cited
15 B. Mon., 546; 1 Met., 379; 18
B. Mon., 53; 2 Starkie on Ev., 523.
C. A. Hardin, on same side, cited 18
B. Mon., 53.
John M. Harlan, Attorney General, for the
Commonwealth, cited Civil Code, sec. 334;
14 B. Mon., 622.
JUDGE ROBERTSON delivered the opinion of the
Convicted and sentenced to be hung for killing, by pistol shots, his
neighbor and wife's cousin, Madison Miller, the appellant, Richard
Philips, appeals to this court for a reversal of the judgment, because, as
he says, he had not a fair trial--the jury being confused and misled by
instructions both bewildering and erroneous.
In testing the instructions, every deduction which the jury might
have been authorized to make from the testimony, (p.329)must be assumed as a fact proved. Tried by this rule,
the following facts characterize the case, as exhibited in the record--
1. About four weeks before the homicide, Miller, armed with a pistol,
went to a field, where the appellant and others were working, avowing his
purpose to chastise a white boy then and there in the employment, and confided
by his father to the care and protection, of the appellant; and the required
surrender of the boy being refused, Miller, in a violent rage, pointing
his pistol at the appellant, threatened to shoot him, and being, probably,
prevented by the presence of others, cursed and denounced him, and asseverated
that, wherever he might see him again, he would shoot him.
2. The threat was afterwards, more than once, repeated to other
persons, and Miller was once seen watching for the appellant, on the road
he was expected daily to travel, and avowed his purpose to kill him.
3. Miller was a man of strong passions, unrelenting in resentment,
and rather peculiarly bold, reckless, and inflexible in the execution of his
4. On the day of the homicide the appellant, on horseback, going
with his wife and brother to his field with a scythe and cradle on his shoulder,
met Miller unexpectedly, and, inquiring of him whether he intended then
to execute his threat, Miller answered that he did, and put his hand in
his pocket, indicating an intention to draw his pistol. Whereupon, the appellant
charged on him and shot him several times until he was, apparently, dead. A
rather feeble-minded boy, who was with the appellant and his wife and brother,
at the time of that fatal meeting, testifies to that conversation and
demonstration, as the only witness, the wife being incompetent, and the brother
being incapacitated by the joint indictment against the appellant and himself,
without any apparent or presumable reason for joining him, unless the object was
to deprive the appellant of his testimony. And, although the only remaining
witness of the conversation was much confused by severe cross-examination, the
jury had a right to (p.330)believe him, and
such belief was, therefore, hypothetically assumed in some of the
On these facts the circuit court gave several instructions, rather
too multifarious to be certainly understood and rightly applied by the jury, and
refused some others asked by the appellant's counsel.
In two of the instructions, as given, the court told the jury that,
if they should believe the substance of the foregoing facts, they ought,
nevertheless, to find the appellant guilty of murder, unless they should also be
of the opinion that he, when "he fired the first shot, had reasonable ground to
believe, and did, in good faith, believe that Miller was then about to
carry (his) threats into execution, and would do so unless prevented by killing
him (Miller), and that he (appellant) had no other apparent
means of escape."
The principle assumed in these instructions, as to the duty of
escaping, we cannot recognize as either safe, sound, or maintainable as the law
of the land. The principle applicable to a mutual rencounter, or an affray with
deadly weapons, does not equally apply to such a case as this, in which the
first escape from threatened assassination by a determined and persevering enemy
might not, and probably would not, secure the ultimate safety of the doomed
victim. The law of self-defense is, in such a case, more comprehensive,
conservative, and assuring. Mr. Starkie, in his 2d volume on
Evidence (side page 523), says: "The accused may also show in
justification that he committed the act in self-defense. If A
manifestly intends to commit a felony on the property or person of B,
by violence or surprise, B is not obliged to retreat, but may pursue his
adversary till he find himself out of danger; and if, in the conflict, A
happeneth to die, such killing is justifiable; but, in the case of mutual
conflict, the party, to excuse himself, must show that he retreated as far as he
could before he gave the mortal stroke, and that he killed his adversary through
mere necessity to avoid immediate death."
This is British law. Why, when properly understood and applied,
should it not be, in principle (without now defining the extent of its
application), American law? And if the (p.331)principle illustrated in the first part of the extract
be sound, must it not be pre-eminently applicable to continual danger
to life, reasonably and actually apprehended from persistent threats?
In such a case, an escape from immediate danger is only momentary,
and may be no escape from the danger still impending, and perhaps increased;
because running once may induce the assailant to believe that the assailed will
never stand and manfully defend himself, and thus embolden him to renew his
attacks without apprehension of any resistance perilous to himself. If the party
once assailed by an enemy who had threatened to kill him is bound by law to run
if he can thereby escape that assault, legal self-defense may become a
mockery and the sacred right itself a shadow. Like the sword of Damocles,
the threatened danger is continually impending every moment and everywhere. The
threatened man may be waylaid or otherwise attacked unawares, without the
possibility of defense or of escape, and may never, day or night, feel safe, or
actually be so, while his enemy lives, who, whenever he may see him, or wherever
he can find him, may be anxious and able to kill him. And does either
human or divine law require such prolonged agony and peril? Or can the best and
most prudent men suicidally forbear to strike for riddance if they have the
courage to defend themselves in the only way of secure and lasting
escape? Starkie says no, and we too say no. Whether, in such a
case, the threatened man, anticipating the attack, may always hunt his
enemy and kill him in self-defense, we do not mean to intimate. It is sufficient
for this case to decide, that, if the appellant had reason to apprehend and did
apprehend that Miller would shoot him unless he could run away, or shoot
Miller first, the law does not require him to run and be shot, perhaps,
in the back, or afterwards secretly assassinated, but justified his taking
Miller's life. And if he believed that Miller was drawing out a
pistol to shoot him, the fact afterwards developed that Miller had
then no pistol, but was only maneuvering to make him run, cannot make
him culpable for doing what he had good reason to believe was necessary for
either the immediate or ultimate security of his life.(p.332)
It is evident that the appellant had not been seeking, but rather
eluding, Miller, whose vindictive passion and bloody purpose seem to have
been not only unjustifiable but causeless. Did the public interest or the reason
of the law require the appellant to continue to skulk and endure the agony of
impending death as long as Miller might seek his life? This cannot be.
Then why, if the testimony be true, was it his duty, when he met Miller,
ignominiously to flee and thereby prolong and increase his peril? This was not
the way to save himself or to "escape" being shot in the dark, at home
or abroad, by stealth or surprise, when self-defense would be impossible. And
unless he could, by running, have escaped all these continually impending
perils, why should the law require him to run? Regard for his own life would not
allow it, and, as a proper man and prudent citizen, he was not bound to do it.
And the example of such humiliating and imperiling recreance would do more harm
than good to the public security and peace.
We are of the opinion, therefore, that, as herein before indicated,
the circuit court radically erred.
Wherefore, the judgment of conviction is reversed, and the cause
remanded for a new trial, when, if the appellant be guilty, he may be punished
justly, according to the laws of his country.