To touch a virtuous wife in the way of illicit love is a far greater outrage than to touch her in anger.9 95 § 207. Self-defense. The right of self-defense is founded upon the law of nature, and existed, therefore, before the formation of societies, but its scope and extent is now clearly defined and well understood generally. The right is the same in civil as in criminal cases.96 One seeking to avail himself of the right of self-defense must show that he has acted upon a real and honest conviction or belief that he was in danger of great bodily injury, and it must appear also from the circumstances that his fears were reasonable.97 It matters not if he makes a mistake in his belief as to the apparent danger, if he has acted honestly, and the circumstances were such as to justify a reasonably prudent and cautious man in the belief that there was danger.98 But if one acting on the defensive goes beyond what is reasonably neces sary to ward off an attack, and uses more force than is necessary, or is guilty of an unreasonable and disproportionate degree of force, he cannot avail himself of the right of self-defense, but is liable for the excess. Nor can the right be invoked by one who brings on the difficulty,100 nor can an assault be jus 99 95 State v. White, 52 Mo. App. 285. 96 Thomason v. Gray, 82 Ala. 291, 3 South. 38. 97 Higgins v. Minaghan, 78 Wis. 428, 23 Am. St. Rep. 428, 47 N. W. 941; Courvoissier v. Raymond, 23 Colo. 113, 47 Pac. 284. 98 Id. 99 Curtiss v. Carson, 2 N. H. 539; Brown v. Gordon, 1 Gray, 182; Dole v. Erskine, 35 N. H. 503; Hannen v. Edes, 15 Mass. 349; Trogden v. Henn, 85 Ill. 237; Watson v. Hastings, 1 Pennewill (Del.), 47, 39 Atl. 587; Close v. Cooper, 34 Ohio St. 98. 100 Von Reeden v. Evans, 52 Ill. App. 209; Sullivan v. State, 31 Tex. Cr. 486, 37 Am. St. Rep. 826, 20 S. W. 927; Thomason v. Gray, 82 Ala. 291, 3 South. 38; State v. White, 18 R. I. 473, 28 Atl. 968; Hulse v. Tollman, 49 Ill. App. 490; Rogers v. Waite, 44 Me. 275 (where street-car conductor commenced the altercation); Kosters v. Brooklyn etc. Ry. Co., 10 Misc. Rep. 18, 30 N. Y. Supp. 531. tified on the ground that the person committing the same was provoked by opprobrious words or insults.1 101 While the one assaulted may pursue his assailant, he can do so only so long as it may be reasonably necessary to make his defense effectual.102 There is some authority supporting the right of the first assailant to maintain an action against the assailed who uses more force than is necessary to defend, as well as the right of the latter to maintain an action against the former for the first assault,103 but such a doctrine is not sound. § 208. Same-Further as to Justification.-Nothing seems better settled than that words, however insulting or offensive, or threats, will not justify an assault and battery, 104 but they must be accompanied by some hostile demonstration, indicating danger, and even then they may be shown for the purpose only of giving character or coloring to the act.1 Nor can previous threats, without proof of an attempt to execute the same, or without some overt act, be shown, but they must be so recent as to be a part of the assault, and then may be shown for the pur 106 105 101 Hayes v. Sease, 51 S. C. 534, 29 S. E. 259; Crosby v. Humphreys, 59 Minn. 92, 60 N. W. 843; Goldsmith v. Joy, 61 Vt. 488, 15 Am. St. Rep. 923, 17 Atl. 1010; Munday v. Landry, 51 La. Ann. 303, 25 South. 66. 102 Waldon v. State, 34 Tex. Cr. 92, 29 S. W. 273. 103 Dole v. Erskine, 35 N. H. 503. 104 Welburn v. State (Tex., 1894), 24 S. W. 651; Reid v. State, 71 Ga. 865; Crosby v. Humphreys, 59 Minn. 92, 60 N. W. 843; Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630; Murray v. Boyne, 42 Mo. 472; Goldsmith v. Joy, 61 Vt. 488, 15 Am. St. Rep. 923, 17 Atl. 1010; Shipley v. Edwards, 87 Iowa, 310, 54 N. W. 151; Martin v. State, 5 Ind. App. 453, 32 N. E. 594; Berryman v. Cox, 73 Mo. App. 67. 105 Hulse v. Sollman, 49 Ill. App. 490. 106 Cummins v. Crawford, 88 Ill. 312, 30 Am. Rep. 558; Lee v. Woolsey, 19 Johns. 319, 10 Am. Dec. 230; Avery v. Ray, 1 Mass. 12; Ireland v. Elliott, 5 Iowa, 478, 68 Am. Dec. 715. pose above mentioned. Acts of provocation must, to be availing, be immediately connected with the assault.107 It is not sufficient provocation to justify an assault upon a trespasser who is not using any violence, unless upon request to leave the premises, he refuses and resists efforts to remove him.108 § 209. Defense of Member of Family.-One has the right to go to the same extent in defending members of his family, or persons standing in particular relation to him, as in defense of himself,109 and may resort to such force in protecting such persons as is reasonably necessary under the circumstances.110 And this right extends to attacks or acts of violence by one member upon another member, to the same extent as it does to outsiders, the head of the family having the right to preserve order in his family, using whatever force is necessary to accomplish the purpose.111 Applying the principles underlying the right of selfdefense, it follows that the danger to which the member of the family is subjected must be such as to induce a person exercising a reasonable and proper judgment to interfere to prevent the injury.1 The right of course does not exist where the member of the family is himself the aggressor. 113 112 § 210. Defense of Property.-The extent to which one may go in the defense of his property depends entirely upon circumstances. He may use any force that may be reasonably necessary to make the defense effectual, which will depend entirely upon the 107 Terry v. Eastland, 1 Stew. (Ala.) 156. 108 Scribner v. Beach, 4 Denio, 448, 47 Am. Dec. 265. nature of the trespass or attack made. If more force is used than the exigency of the case requires, the owner may render himself liable for assault. The right of defense of property cannot be measured by the same principles or rules which govern the right of defense of the person. The owner of property cannot, in defense thereof, resort to means reasonably calculated to endanger life;114 he can never be justified in taking the life of a trespasser.115 He may, whenever it is necessary to make the defense effectual, be justified in committing an assault and battery, 116 but he has no right to wound or inflict a great bodily injury;117 nor can an assault upon one who comes onto premises by invitation be justified, if the conduct of the person assaulted be occasioned by the owner's abuse.118 The owner may himself be justified in resorting to the use of a deadly weapon where the trespasser uses a similar weapon.119 Even throwing a stick at a trespasser may constitute an assault,120 though it has been held in one state that the owner may strike him with a stick if he is unable to make the defense effectual by merely laying hands on him.121 Exhibiting a gun in an angry and threatening manner, without excuse or occasion, is not justified. 122 An intruder, or one who conducts him 114 State v. Dooley, 121 Mo. 591, 26 S. W. 558; State v. Forsythe, 89 Mo. 667; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1. 115 Carroll v. State, 23 Ala. 228, 58 Am. Dec. 282. See, also, 82 Am. Dec. 675, note. 116 Shain v. Markham, 4 J. J. Marsh. 578, 20 Am. Dec. 232; 2 Hawk. P. C., c. 23, sec. 23; Stachlin v. Destrehan, 2 La. Ann. 1019. 117 Id. 118 Watrous v. Steel, 4 Vt. 629, 24 Am. Dec. 648. 119 People v. Dann, 53 Mich. 490, 51 Am. Rep. 151, 19 N. W. 159. 120 Talmage v. Smith, 101 Mich. 370, 45 Am. St. Rep. 414, 59 N. W. 656. 121 State v. Burke, 82 N. C. 551. 122 State v. Martin, 52 Mo. App. 609. self in an improper manner, may, on refusal to leave be expelled by the use of such force as may be reasonably necessary.123 The law justifies the use of no greater force than is necessary in the exercise of a reasonable and proper judgment to prevent the consummation of the injury. 124 An assault upon an old man who, prompted by a passion for flowers, goes into a garden to pick flowers, without notice or warning, cannot be justified.125 § 211. Action for Injury in Mutual Combat.-The ordinary rule is that an injury cannot be done to a person who by his own acts consents thereto, but an individual can never consent to a breach of the peace. Prize fighting, boxing matches, and encounters of that sort tend to breaches of the peace, and are unlawful even when entered into by agreement and without anger or mutual ill-will.126 So one cannot consent to assault and battery by voluntarily entering into a fight, and if one party license another to beat him, such license is void.127 The state is interested in maintaining peace and quiet, and no agreement can be made which will deprive the state of its right to preserve the peace. Consent to an injury is always regarded as a complete defense whenever redress therefor is sought by the party injured, but this is limited to rights in which only the individuals engaged were concerned, and the doctrine 123 Canfield v. Chicago etc. Ry. Co., 59 Mo. App. 354; Brebach v. Johnson, 62 Ill. App. 131. 124 State v. Martin, 52 Mo. App. 609; Harrison v. Harrison, 43 Vt. 417; Drew v. Comstock, 57 Mich. 176, 23 N. W. 721. 125 Chappell v. Schmidt, 104 Cal. 511, 38 Pac. 892. 126 Fost. C. L. 260; 2 Greenleaf on Evidence, sec. 85; 1 Stephens' Nisi Prius, 211; Commonwealth v. Collberg, 119 Mass. 350, 20 Am. Rep. 328. 127 Matthew v. Ollerton, Comb. 218. |