GRAINGER v. THE STATE.
Catron, J.*, delivered the opinion of the court.
The bill of exceptions shows that much stress, on the trial, was laid upon the blow given by Broach to Grainger, to reduce the killing to manslaughter; that Grainger's passions had not cooled. He never had any passion; he was much alarmed, and with good cause. A man was on his horse behind him; he could not get away. Henson proves he did not pretend to prevent Broach from whipping Grainger, who believed, and most probably rightfully, that Henson was in "cahoot" with Broach. It was Henson's duty to have protected Grainger, or got off from behind him and left him free to escape from Broach.
Grainger used all the means in his power to escape from an overbearing bully. He was shuddering with fear, and his last hope of protection was defeated when Rainey's door continued closed against him and Rainey did not come to his relief. He shot only to protect his person from threatened violence, and that great. It was certain. Henson sat quietly on the fence; the women and Rainey did not open the door; they were, no doubt, afraid of Broach, who displayed the traits of a reckless bully, and would have attacked Grainger the moment he reached him, as well in the house as out of it. It behooved (p.462)Rainey not to permit the attack in a cabin, amongst women and children, in the dark. He did right not to open the door. From Henson no assistance could be hoped. The women saw him quietly sitting on the fence, which, when Broach crossed, he helped himself over by putting his hand on the shoulder of Henson. These are the facts as presented by the record before us.
Was there malice prepense in this case of homicide, so as to exclude the benefit of clergy, within the 23 Henry VIII, ch. 1? Did Grainger display a cold, deliberate and wicked conduct? a heart lost to all social order, and fatally bent on mischief? It can not be believed. He behaved like a timid, cowardly man; was much alarmed, in imminent danger of a violent and instant assault and battery, and was cut off from the chances of probable assistance. That the act was the result of fear hardly admits of doubt. It is equally certain to our minds that Broach only designed to commit a trespass and battery upon the body of Grainger, without intending to kill him. If the jury had believed that Grainger was in danger of great bodily harm from Broach, or thought himself so, then the killing would have been in self-defence. But if he thought Broach intended to commit a battery upon him less violent, to prevent which he killed Broach, it was manslaughter. 1. Hawk. P. C. ch. 28, sec. 23; 1 East C. L. 272. The judgment will be reversed, and the cause remanded for another trial.
[462.1] Note.--This is a leading case in our state on the subject of homicide occasioned by fear of bodily harm. The facts and the law are so blended in the opinion as to leave the principle of the decisions in some obscurity. The comments in subsequent cases have been rather upon the points as abstracted by the original reporter, or by Mr. Meigs in his digest, than upon an analysis by the judges, except in Williams v. State, 3 Heisk. 393, where Nicholson, C. J., quotes the exact language of Judge Catron. Under these circumstances, while I have made a head-note myself, I think it advisable to retain, in this note, the original head-notes, and to add Mr. Meigs' analysis.
Mr. Yerger's abstracts were as follows:
"If a man, though in no great danger of serious bodily harm, through fear, alarm or cowardice, kill another under the impression that great bodily injury is about to be inflicted upon him, it is neither manslaughter nor murder, but self-defence.
"If a man be in great danger of bodily harm, or thinks himself so, and kill another, it will be a killing in self-defence.
"But if from the facts it appears he only believed that a violent assault and battery, without endangering his life, or inflicting great bodily harm, was intended, it is manslaughter."Mr. Meigs gives us the following, Dig. § 668, subs. 1 and 2:
"Homicide--Excusable. A homicide committed by a person who is, or thinks himself, in great bodily harm from the deceased, is self-defence. If committed to prevent an ordinary battery, it is manslaughter.
"Same--Manslaughter. A homicide committed by a man in fear of violent and instant assault and battery from the deceased, and cut off from the chances of probable assistance by being refused admittance into a house to which he had retreated from his assailant, is not murder, but manslaughter."--Ed.