as in Bohannon v. Commonwealth, 8 Bush, 481; 8 Am. Rep. 474, that where a man has been threat ened by another with murderous violence, he may arm himself and go about his legitimate business, and if " he casually meets his enemy, having reason to believe him to be armed and ready to execute his murderous intentions, and he does believe, and from the threats, the previous assault, the character of the man, and the circumstances of the meeting, he has the right to believe, that the presence of his adver sary puts his life in imminent peril, and that he can secure his personal safety in no other way than to kill him, he is not obliged to wait until he is actually as sailed. He may not hunt his enemy acd shoot him down like a wild beast : nor has he the right to bring about an unnecessary meeting in order to have a pre text to slay him; but neither reascn nor the law de mands that he shall give up his business and aban don society to avoid such meeting." In iMissouri, the doctrine of the last case has re ceived an extension, and it was held in the very re cent case of State v. Evans, 28 S. W. Rep. 8, that one whose life has been threatened may arm himself and knowingly go into the vicinity of the threatening party; and that the mere fact that he does so in the expectation of being attacked will not deprive him of the right to take life in self-defense. In comment ing upon this case a recent writer of the Harvard Law Review suggests a doubt whether the right of the threatened person to go into his enemy's presence is not dependent on the necessity of his doing so in the pursuit of his legitimate business. But I agree with the editor of the New York Law Journal that no such distinction is reasonable, and that no person can by murderous threats exclude another from any part of the habitable globe, so long as he does not provoke an assault. The doctrine intimated by the Review would be extremely inconvenient in case the threatening party were a commercial traveller or a or a post-office carrier. May not one go to church or to the theatre although he knows his enemy is lying in wait for him there? The liberty of the cit izen may not be thus circumscribed. In some of our frontier communities such a rule would amount to a serious embarrassment if not a total suspension of commercial industry and enterprise. The most recent and authoritative judicial declara tion on this subject is found in the case of Babe Beard, in the United States supreme court. This was a case of homicide upon the defendant's premises and in resistance to an unlawful carrying away of his property, and must be regarded as a notable exten sion of the "castle" doctrine. Mr. Justice Harlan said : — "The Court, several times in its charge, raised or sug gested the inquiry whether Beard was in the lawful pursuit
of his business, that is, doing what he had a right to do, when, after returning home in the afternoon, he went from his dwelling-house to a part of his premises near the or chard fence, just outside of which his wife and the Jones brothers were engaged in a dispute — the former endeav oring to prevent the cow from being taken away, the latter trying to drive it off the premises. Was he not doing what he had the legal right to do, when, keeping within his own premises and near his dwelling, he joined his wife, who was in dispute with others, one of whom, as he had been informed, had already threatened to take the cow away or kill him? We have no hesitation in answering this ques tion in the affirmative. * * * In our opinion, the Court below erred in holding that the accused, while on his premises, outside of his dwelling house, was under a legal duty to get out of the way, if he could, of his assail ant, who, according to one view of the evidence, had threatened to kill the defendant, in execution of that pur pose had armed himself with a deadly weapon, with that weapon concealed upon his person went to the defendant's premises, despite the warning of the latter to keep away, and by word and act indicated his purpose to attack the accused. "The defendant was where he had a right to be when the deceased advanced upon him in a threatening manner and with a deadly weapon; and if the accused did not pro voke the assault and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life or to do him great bodily harm, he was not obliged to retreat, .nor to consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such way and with such force as under all the circum stances he, at the moment, honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury." The necessity for retreating is necessarily ignored, although the point is not explicitly passed upon in Tillery v. State, 24 Tex. App. 251; 6 Am. St. Rep. 882, and Bemarda v. State, 88 Tam. 183; and in Perkins v. State, 78 Wis. 551, it was held error to charge that self-defence " will not justify the killing if the necessity for the killing can be avoided by re treat"; and in State v. Reed, 53 Kans. 767 : 42 Am. St. Rep. 322, it was held " that if one is unlawfully attacked by another, he may stand his ground and use such force as reasonably appears necessary to re pel the attack and protect himself." It seems to the writer that the modern doctrine is the more reasonable. As the question of the safety of retreat is one that must be instantly decided by the person assailed, he should be left to judge of it, and if he chooses to stand his ground he is exercising the right of the citizen and should be absolved. There is no pretence that one assailed with bare fists may not resist with bare fists and is not bound to run away, and it seems a travesty on justice to say that a would-be murderer has larger privileges and must be afforded a greater opportunity to commit wrong.
