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entry can be resisted in no other way, he may kill the intruder. And there is this difference between a man being in his house and out of it when attacked, — in the latter case, we have seen he is required to "retreat to the wall;" but in the former he is not obliged to retreat his house is the "wall" for this purpose.

10. Against attacks on other property. This being a mere trespass, is subject to the same rule as a common assault on the person, the necessity alone does not justify a killing.

HOMICIDE-SELF-DEFENSE -- NECESSITY PRODUCED BY SLAYER.

VAIDEN v. COMMONWEALTH.

[12 Gratt. 717; Horr. & Thomp. Cas. Self-Defense, 222.] The deceased and Vaiden were at the latter's house one evening drinking and playing cards together. Some high words passed between them, growing out of the deceased charging Vaiden with cheating. Vaiden's wife told the deceased that he had promised to make no "fuss" to which he assented, said goodnight and left the house. He did not go away, however, for he was heard in the yard swearing very loudly and apparently much enraged. Hearing him, Vaiden took up his gun and started for the door, but was induced by his wife not to go out. Guns were evidently used instead of walking sticks in that neighborhood, for just then the deceased called through the window that he wanted his gun, and the weapon was handed to him through the door by Mrs. Vaiden.

The deceased then walked away, accompained by two other persons, and by a son of Vaiden's who went with the party as far as the fence to let them through the draw-bars. As they stood at the fence talking Mr. Vaiden appeared with his gun, seeing which the deceased jumped over the fence, took hold of his gun by the barrel as if to use it as a club and rushed at Vaiden. The latter called out that if he did not stop he would shoot him. The warning went unheeded,

and when the deceased got within a few feet of him, Vaiden falling back a few steps fired. The deceased then struck Vaiden two blows with the breach of his gun and staggered back, mortally wounded, dying a few hours afterwards. Vaiden, indicted for the killing, set up the plea of self-defense. But the court held that he being responsible for the altercation in following the deceased with his gun after he had departed from the house, could not avail himself of that plea, and he was convicted.

The prisoner must be without fault in bringing upon himself the necessity for killing another. "It will not do," said one judge, "to say that a party may commence an affray and when he is about to suffer the penalty of his temerity, may take the life of his adversary to avert the danger that threatens him." Stoncifer's Case, 6 Cal. 407. This principle has been said to be a kind of estoppel in analogy to the maxim of the civil law-"No man shall take advantage of his own wrong."

The doing of the following acts, it is said in a learned work on this subject (Horr. & Thomp. Cas. Self-Defense, 226), has been held so far to abridge a man's right of defense that if he thereupon kill another, he cannot be acquitted of the crime, viz.:

(a.) Commencing an assault, attack, or battery upon another. (b.) Attacking another with a deadly weapon.

(c.) Going to the place where the slain person is, with a deadly weapon, with the purpose of provoking a difficulty or with the intent of having an affray.

(d.) Using provoking language or resorting to any other device in order to get another to commence an assault, so as to pave a pretext for taking life.

(e.) Agreeing with another to fight him with deadly weapons. This is the case, for example, of a duel.

(f.) Other cases of wrong doing. An Iowa case presents an instance of this kind. A saloon-keeper sold a man liquor by the glass until he was very drunk. He left the saloon in this condition, but late at night forced his way in again and endeavored to provoke a

fight with the saloon-keeper, and made an assualt on him without a weapon. The saloon-keeper thereupon shot and killed him, and on his trial urged that the killing was done in self-defense. But Dillon, J., said: "The conduct of the deceased was highly blameworthy. He it was that provoked the difficulty instigated, doubtless, by the liquor which he drank and to which he became a victim. The only mitigation which his conduct finds, if it finds it at all, is in the fact that he was intoxicated and in part by liquor sold to him by the defendant. It will not do to hold that a saloonkeeper may sell a man that which steals away his senses and clouds his reason, and then himself being in no serious danger, shoot him dead, because he is unreasonable, insulting and quarrelsome." State v. Decklotts, 19 Ia. 446.

As to the crime which the slayer commits:

1. If he provoked the combat or produced the occasion in order to have a pretext for killing his adversary or doing him great bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat.

2. If he provoked the combat or produced the occasion, intending only an ordinary battery, the final killing will be manslaughter.

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HOMICIDE - SELF-DEFENSE - UNLAWFUL ARREST.

NOLES v. STATE.

[26 Ala. 31; Horr. & Thomp. Cas. Self-Defense, 697.]

Mrs. Noles, having made a complaint against her husband to a justice of the peace, the latter, without issuing any legal warrant, told Sharp, a constable, to arrest Noles. Sharp summoned a posse of seven or eight men and started for Noles' house. As they approached, Noles came into the yard with a gun in his hand and ordered them off; remarking that if they abused him he would shoot some of them; that they were a drunken, rowdy set, and that if they would go away and send some old man or some ten-year-old boy he would go with him. The party at this halted, and Sharp told Noles not to shoot, that they would come back in the evening and arrest him. Noles replied that he would be at home then.

In the evening, Sharp having increased his forces, and having armed himself with a shot-gun, made an

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