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Show I POPULAR TALKS ON LAW I The Right of Self Defense H Ry Wnltcr K. Towers, A. B., J. I)., of the Michijnn Bar. MB John nice roll Into u dispute with Loren 2 Devlin wlilcji rose to n point whore Rico H rushod upon Dovlln and struck at him, HI though ho Tailed to touch him. Thus as- Hj saultcd Dovlln took vigorous action aud M proceeded to pound nice Into a stato or m lnsoiisibility. Tho public prosecutor pro- Hj cecded against Devlin in a criminal action M Tor assaulted hattory, and ho was round H guilty and lined, nice also sued Devlin Hj In a civil action ror assault and battery H and recovered damagcB. Dovlln claimed H that he had acted only in soir doronso. WM While thero is a right or seir doronso H recognized by law It Is not broad enough H to cover an action such as Dovlln's. Ono M whose person Is assaulted may dorond M lilmseir; but in dorcndlng hlmsolr ho may H not use moro forco than is reasonably H nccessury under tho circumstances. If M you aro assaulted you may strlko back, H btit you may not strlko back moro vigor- 1 ously than is necessary to dorond your porson rrom tho tliroatenod attack. In this case Devlin was Justlilod In resisting Rico. Rico having been resisted, and having ceased to attack, however, Devlin was not Justified in continuing rurthor. In doing so he become tho assailant, and bis rurthor action was a now assault and battery in which ho was llablo both In a civil suit ror damages and In a criminal action. Tho law does not requlro that tho vigor or tho doronso bo absolutoly ad-Justed ad-Justed to tho vigor or tho attack, sinco it recognized that this is not always possible or accurate dotormlnatlon. It is required, however, that tho dorendor do not stop beyond tho bounds or reason In his acts or 'deTense. s tho Now York Court has remarked: seir derense is a primary law or nature, na-ture, and It is an excuse ror broaches or tho peace, and even Tor homicide itself, liut care must be taken that tho resistance resist-ance docs not exceed the bounds of mere derense, prevention, or recovery, so as to bocome vindictive; for then the defender would lilmseir become the aggressor. The force used must not exceed the necessity of tho case." To Justify tlie use or rorce on the ground that it was in seir doronso thero must have been an actual attempt to oiror bodily harm. Tho attack resisted must bo apparontly roal. Seir derenso may not bo claimed when tho forco was exerted after tho danger of attack had passed. Tlio tliroatenod assault having passed, there is no longer any need ror seir do-fonce. do-fonce. The means that a person may take in bis own deronso must depend, or course, upon the particular danger which treat-ens. treat-ens. A degree or rorce may bo used in seir derense equal to the degree or force with which the defender Is attacked. Killing Kill-ing an assailant may even become Justl-llablo Justl-llablo by way or seir defense, especially where he attacks with a deadly weapon. O'Mallcy and Qrady had had many quar-rols quar-rols and nnally one roso which was particularly (Utter. Qrady vigorously threatened to kill his adversary on sight. Later in Hie day tliey met and drady at onco assaulted O'Malley with alarge club dealing hln sever' 1 serious blows about the head. Unable o ward oft" these blows Q'Malley drew his pistol and fired, killing Qrady. He was tried on a charge or manslaughter, man-slaughter, but held not guilty, the Jury finding that he hud acted In reasonable solf derense. As a general rule one may kill an assailant as-sailant when It is apparently necessary in order to save himself from death or gre.it bodily harm, while In the midst or a sudden combat which '" has not lilmseir provoked Generally speaking, the law requires re-quires that the person attacked retreat, if possible, before lie may kill an assailant and claim seir derense in Justification. The person attucked need not retreat IT to do so would place him in c. more pre- riMlMMWfTTIM carious position, but ho must retroat ovon though to do so would not apparontly improve im-prove his position. Thoro aro somo Btatos in which tho courts hold that a person attacked may stand his ground under practically all circumstances, but such a rulo is rathor exceptional. It is probably a ramlllar rulo that a porson attackod need not retrout rarther than his own promises. Ono attackod in his own homo, or in his own omco is under no obligation to rotroat, but may stand his ground, no mattor how threatening tho attack, and while so standing his ground may 'till his assailant If necessary neces-sary to savo M- own liro or to avoid great bodily harm, or tho commission or a rolony within bis promises. Ono may not only dorond his own porson por-son with the degree or rorco necessary to resist tho attack, but ho may dorond tho porson or tlio mombors or his family as woll. Thus a rathor may dorond a son, and a son his rathor. A master may also dorond his servant, and vice versa the sorvant his mastor. Tlio right of doronso cxtonds to property prop-erty as woll. Ono may dorond tho prop-orty prop-orty which ho lawrully has in his possession. posses-sion. Tlio property need not bo his own. it is enough that ho has It rlghtrully within with-in his custody. Jenkins rontod a horso from Dalo's livery. While riding on the horso Jowott stoppod him and domandod tho horso. Jowott was a creditor or Dalo's and said that tho debt being long ovor duo, ho Intended to onrorco his rights. Ho ondoavored to take tho horso away rrom Jonklns by rorco. Jonklns resisted with rorco and succoded In retaining possession pos-session or tho horso. Jowott sued Jonklns ror assault and battery ror his uso of forco In resisting tho efforts to socuro tho horse. Tho court rulod that Jonklns was Justified in derendlng tho property rlghtrully rlght-rully within his possession, and having used no greater rorco than necessary in Its derense was not llablo to Jowott, whom ho had In no way wronged. In derendlng ono's own promises rrom Invasion thoro aro cortaln roqulromonts ir tho right or solf doronso Is to bo oxor-clsod. oxor-clsod. Ono may not rorclbly ojoct another an-other rrom his promlsos mcroly bocauso ho is a trespasser. Tho trospassor must llrst bo ordorod to dopart, and only la tho ovont that ho roruscs may rorco bo usod to ojoct him. Tho trospassor must first bo glvon tho opportunity to dopart poacoably. If tho trospassor has como upon tho promlsos violently or contrary to oxpross command or tho ownor ho may bo rcslstod and ojoctod without demand that ho dopart. In nolthor caso, howovor, may moro forco than necessary bo usod for tho removal or tho trespasser, olso tho right or deronso will bo oxcooded. Thero aro certain other legal Justifications Justifica-tions ror the application or rorco in a manner that would othorwlso amount to assault and battory. Cortaln Individuals havo authority ovor others or a naturo which pormlts tho uso or rorco as a moans or punlshmont or coorcoln. The parent, lias tho right to glvo modorato chastlso-mont chastlso-mont to a minor child without bolng-guilty bolng-guilty or assault and battory. So, too, a guardian standing In tho placo or a paront, may punish a child in his caro. An official offi-cial in charge or a public institution usually usu-ally has the right to enforce his authority by moderate chastisement. Oonorally a master has no right to chastise his servant, but tho master or a ship, bolng In an unusual un-usual position, may onrorco his authority by tho uso or rorco on the porsons or Ms subordinates. One Is Justified In applying rorco to ono who Is engaged In criminal conduct, Tor the purpose or deterlng him. One who notices another who is unconsciously in an oxposed or dangerous position, and who applies Torce to that person to rescue him is Justified. The collisions and conflict which occur botweon participants in tho course or various gamos aro not gonorally volwcd as assaults and battorlos. IT a player goos boyond tho rules or tho games and checks or strikes another, violently and In a manner not permitted by tho rules it amounts to an assault and battery. Prlzo rights aro velwcd as somewhat exceptional ex-ceptional and participants are hold guilty or assault and battory though both consented. con-sented. Somo peculiar derenses havo been raised in assault and battery cases. Ono Is disclosed by tho following quotation rrom tho opinion or a California Jndgo: "ir a strong man has a weak ono in his power, and gives his victim tlio cholco or bolng kicked or cuffed, ho cannot dcrend tho battory on the ground that tho Injured man consented." Tho average porson, or poacoablo inclinations, incli-nations, will not go rar wrong in tho dally affairs or liro ir ho remembers that rorco is not to bo exerted against another even by way or derense except in circumstances or obvious necessity. (Copyright, 1913, by Woltor K. Towers.) |