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[Cite as Commonwealth v. Riley, Thacher's Crim. Cas. 471 (Mass. 1837). NOTE: This decision concerns self-defense with a knife. To illustrate the common law right to self-defense, the court quotes Sir Michael Foster, Judge of the Court of Kings Bench and Recorder of Bristol: "In the case of justifiable self-defence, the injured party may repel force by force in defence 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 It is justly considered that the right in such case, is founded in the law of nature, and is not, nor can be superseded by any law of society.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." (P. 474-475 quoting M. Foster, Crown Cases 273-74 (London 1776)).]

JANUARY TERM, 1837.

Commonwealth v. Patrick Riley and John Stewart.

Where, in case of a mutual conflict between two persons, one of them declines any further combat, and retreats as far as he can with safety, and then, through necessity and to avoid immediate death, kills his adversary; it is justifiable homicide.

Where, in an affray, A. knocked down and beat B., and C., a bystander, believing that the life of B. was in danger, gave him a knife to defend himself, to prevent further mischief; it was held that C. was justified in giving B. the knife.

Parker, for the commonwealth.

Sprague and Robbins, for the defendants.

Thacher, J. The defendants are on trial for the offence of having killed one James McNally, in this city, on the 7th day of November last. It is denominated in law, manslaughter, which offence consists in the felonious and wilful, or voluntary killing of another, without malice aforethought, which would make the killing murder, but without necessity to justify the deed, or accident to excuse it. It is a case in which the public (p.472)justice is interested; a fellow-being has been suddenly, and by an act of violence, deprived of life; and it concerns the whole community to make solemn inquiry into the transaction, and to punish the bloody actors, if they have violated the law. Both these defendants are on trial for this offence, and it is for you to investigate their respective share in the transaction, and to pass on the case of each as though they were severally on trial; one may be guilty, and not the other, and both may be innocent.

The government must satisfy you that James McNally is dead, and that he came to his death in the manner which is charged in the indictment, before you can call on the defendants for their defence. That McNally is dead is clearly proved and not denied; but that Riley killed McNally, is left to be inferred from the fact, that they were engaged in a conflict in the street, Riley being at the time armed with a knife, and it appeared immediately afterwards, that McNally had received a mortal wound in the abdomen, which, on the following day, terminated his life. But the evidence stops at a most interesting stage of the transaction. We are apprized of facts to this extent only:--After McNally had twice knocked Riley down in the street, and the latter had received from Stewart the knife, he passed from the street towards the sidewalk, followed by McNally. But while McNally followed Riley, and before he had reached him, Stewart begged McNally to go home. What was McNally's reply does not appear; for the witness says, that McNally said something, which he did not hear, but ran to call the watch; and when he returned shortly after, the affray was over. You will naturally inquire, and be desirous to know what occurred between these men on the sidewalk. Did McNally press upon Riley and knock him down? Did Riley try to escape from his attack? Did he retreat to the wall? or was the attack so sudden and violent, and the danger so imminent, that no time was left for retreat? Did both or either fall, and was the wound in the abdomen the effect of accident or design? All these questions are important, and calculated materially (p.473)to influence your minds. If the evidence has left this point in doubt, so that you cannot Conscientiously say, that you believe that Riley voluntarily inflicted that mortal wound upon the deceased, you must pronounce a verdict of acquittal for both defendants. The learned counsel on both sides have argued the case, as though you would come to the conclusion, that this mortal wound was voluntarily inflicted by Riley. If that should be your conclusion, then the question will be, whether it was a justifiable or an excusable act on his part. It is wholly immaterial from whom the facts come, whether from witnesses for the government, or for the defendants. But you must first ascertain the facts, and then judge of them according to the law.

The parties had been amusing themselves at a game of cards, during which, something had occurred which gave offence to McNally; and when he first left the house, and was at the gate, he threatened to flog both Riley and Stewart. He went back into the house, and on his return to the gate, he repeated his threats. Stewart came out and said to him, "surely you will not think it worth while to whip so small a man as me." Soon after Riley came, and stepping to McNally, who stood opposite the gate, on the sidewalk, struck him, and immediately ran off across the street, and around a railing in front, on Bedford street. Stewart then interfered, and said to McNally, "go home McNally, and forgive Riley; he will not think of it in the morning." McNally replied, "the blow had no more effect on him than a blast of wind." Seeing Riley standing by the railing, he pursued him, and Riley ran some distance before McNally caught him. But Riley dodged him, and ran back to the witness, who still stood at the gate. McNally followed, and knocked him down, near to the sidewalk; and then it was, while Riley lay on the ground, and McNally was over him, that the witness says, "he saw McNally's foot going." Riley got up, and, saying it was too bad, walked off towards the middle of the street, when McNally followed, and knocked him down a (p.474)second time. When Riley arose, Stewart went to him, and gave him a knife, and told him "to use his pleasure with it." This was done openly, and in presence of all. But Riley still went off towards the sidewalk, and McNally followed him. The witness says, that both before and after Riley had received the knife, he heard Stewart beg McNally, "for God's sake to go home." During the whole affray, he says, nothing led him to suppose that Riley and Stewart, or either of them, wanted to fight with McNally; and that, with the exception of the blow at the gate, the fight was all on the part of McNally. The witness saw no signs of anger and vengeance in Riley or Stewart; but, he says he expected, if McNally should again strike Riley, he might be tempted to defend himself with the knife, although he did not think that Riley meant to kill McNally. He therefore ran for the watch to prevent further mischief.

It was under these circumstances that the wound was given by Riley to McNally; and if it was done to defend his own life, and to save himself from great bodily harm, it was within the principles of self-defence, and justifiable in law. What is deemed in law the right of self-defence, is proper to be known by you. The principles are the result of long experience and careful consideration of wise men. The law trusts nothing to rash discretion; but requires her ministers, in all cases, to regard former precedents, made by judicial tribunals after mature deliberation. There are two kinds of self-defence; 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-defence, 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 (p.475)have been some fault in the defendant. In the case of justifiable self-defence, the injured party may repel force by force in defence 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.

Another principle of law is worthy of your notice at this time. Where a known felony is attempted upon the person, be it to rob or murder, the party assaulted may repel force by force; and even his servant then attendant on him, or any other person present, may interfere to prevent mischief; and if death ensue, the party so interposing will be justified. In such case, it is said nature and social duty cooperate. There is a species of self-defence known to the law, which, though involving fault to a certain extent, is yet excusable. The killing in such case is voluntary, the party having the intention to kill, or to do some great bodily harm at the time the death happened at least, but to have done it for the preservation of his own life. It arises from a sudden casual affray commenced and carried on in the heat of blood; and supposes that the person when engaged in such sudden affray, quits the combat before the mortal wound is given, and retreats or flies as far as he can with safety; and then, urged by mere necessity, kills his adversary for the preservation of his own life. This last supposed case borders very nearly upon manslaughter; and in fact and experience, the boundaries are in some instances scarcely perceivable; but in consideration of law they have been fixed. In both cases, it is supposed that passion has kindled on each side, and that blows have passed between the parties; but in the case of manslaughter, it is either presumed that the combat on both sides has continued to the time the mortal stroke was given, or that the party giving the stroke was not at that time in imminent (p.476)danger. He therefore, in the case of a mutual conflict, who would excuse himself upon the ground of self-defence, must show, that before a mortal stroke was given, he had declined any farther combat, and retreated as far as he could with safety; and also, that he killed his adversary through mere necessity, and to avoid his own immediate death. If he fails in either of these circumstances, he will incur the penalty of manslaughter.

These principles are drawn from writers of the highest authority, and it belongs to you to apply them so far as they are applicable to the present case. Was it a mutual combat, or were the violent passion and the fight altogether on the side of McNally? Did he pursue Riley with a vengeful spirit? Did he use such force and violence, as made Riley believe, that his life was in danger, or that he was likely to sustain great bodily harm? In this connection you have a right to consider the relative size and strength of the parties and their dispositions and character, as they have been proved on this trial. If you believe, that when McNally had knocked Riley down, he stamped upon him with his foot, or kicked him in a vital part, of which there is some evidence in the testimony of James Devenny, who saw the whole transaction, and in marks seen three days afterwards by Dr. Flint, on Riley's person; I will not undertake to limit his right to defend himself to his own feeble hand; but I consider that he might well defend himself with the knife which he received from Stewart. Had McNally taken the life of Riley, it would have been manslaughter; for, although Riley struck him at the gate, he immediately ran off, and there was no necessity for McNally to pursue him, however much his passions may have been roused by the affront. If Stewart believed at the time, that McNally intended to kill Riley, he had a right to interfere to prevent further mischief, and to give to Riley a weapon which was necessary for his defence.

But of all these facts and circumstances, you must judge. You represent the people, and the justice of the country, and (p.477)you are bound by a solemn oath to pronounce a true verdict. There has been in this case as much testimony in favor of the mild and peaceable disposition of both the defendants, and of their general character for meekness and forbearance under provocations, as is ever to be expected in a court of justice. Merchants and citizens of the best character have attended to testify in their favor, in this hour of their peril; but if the government has made out a case of wilful and felonious killing to your satisfaction, against either or both of these defendants, you must find them guilty accordingly, notwithstanding their former good characters. But, if after a deliberate review of all the circumstances of the case, it remains a doubt in your minds, whether they are guilty or innocent, the law permits you to throw the evidence of their good character into the favorable scale, and it is to weigh on the side of mercy. Still, however, if you believe that Riley used the knife when his life was not in danger, and when he had no reasonable ground to fear any great bodily harm, you must find him guilty; and, under the circumstances, Stewart must share the same fate, unless you should believe that Riley used the knife in a different manner, and for a different purpose from that for which it was put into his hands by Stewart.

The jury, after deliberating for about twenty minutes, returned a verdict of not guilty for both defendants.