U.S. Supreme Court Brown v. United States, 256 U.S. 335 (1921)
Brown v. United States
Argued November 19, 1920
Decided May 16, 1921
256 U.S. 335
CERTIORARI TO THE CIRCUIT COURT OF APPEALS
FOR THE FIFTH CIRCUIT
1. The right of a man to stand his ground and defend himself when attacked with a deadly weapon, even to the extent of taking his assailant's life, depends upon whether he reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, and not upon the detached test whether a man of reasonable prudence, so situated, might not think it possible to fly with safety or to disable his assailant, rather than kill him. P. 256 U. S. 343 . Beard v. United States, 158 U. S. 550 .
2. So held of a homicide committed on a post office site by one who was there in discharge of his duty. P. 256 U. S. 344 .
3. In a prosecution for murder, it appeared that the defendant shot the deceased several times and again when the deceased had fallen and was lying on the ground. Held that evidence of self-defense
was for the jury, and that, if they disbelieved the defendant's testimony that the last shot was an accident, they might still have acquitted him if, though intentional, it followed close upon the others in the heat of the conflict and while he believed he was fighting for his life. P. 256 U. S. 344 .
257 F. 46 reversed.
Certiorari to review a judgment of the circuit court of appeals affirming a judgment of the district court upon a conviction of murder in the second degree. The facts are given in the opinion, post, 256 U. S. 341 .
MR. JUSTICE HOLMES delivered the opinion of the Court.
The petitioner was convicted of murder in the second degree committed upon one Hermis at a place in Texas within the exclusive jurisdiction of the United States, and the judgment was affirmed by the circuit court of appeals. 257 F. 46. A writ of certiorari was granted by this Court. 250 U.S. 637. Two questions are raised. The first is whether the indictment is sufficient, inasmuch as it does not allege that the place of the homicide was acquired by the United States "for the erection of a fort, magazine, arsenal, dockyard, or other needful building," although it does allege that it was acquired from the State of Texas by the United States for the exclusive use of the United States for its public purposes, and was under the exclusive jurisdiction of the same. Penal Code of March 4, 1909, c. 321, § 272, Third; 35 Stat. 1088;
Constitution, Art. 1, § 8. In view of our opinion upon the second point, we think it unnecessary to do more than to refer to the discussion in the Court below upon this.
The other question concerns the instructions at the trial. There had been trouble between Hermis and the defendant for a long time. There was evidence that Hermis had twice assaulted the defendant with a knife, and had made threats communicated to the defendant that the next time, one of them would go off in a black box. On the day in question, the defendant was at the place above mentioned, superintending excavation work for a post office. In view of Hermis' threats, he had taken a pistol with him, and had laid it in his coat upon a dump. Hermis was driven up by a witness, in a cart to be loaded, and the defendant said that certain earth was not to be removed, whereupon Hermis came toward him, the defendant says, with a knife. The defendant retreated some twenty or twenty-five feet to where his coat was and got his pistol. Hermis was striking at him and the defendant fired four shots and killed him. The judge instructed the jury, among other things, that
"it is necessary to remember, in considering the question of self-defense, that the party assaulted is always under the obligation to retreat so long as retreat is open to him, provided that he can do so without subjecting himself to the danger of death or great bodily harm."
The instruction was reinforced by the further intimation that, unless "retreat would have appeared to a man of reasonable prudence, in the position of the defendant, as involving danger of death or serious bodily harm," the defendant was not entitled to stand his ground. An instruction to the effect that, if the defendant had reasonable grounds of apprehension that he was in danger of losing his life or of suffering serious bodily harm from Hermis, he was not bound to retreat, was refused. So the question is brought out with sufficient clearness whether the formula
laid down by the Court and often repeated by the ancient law is adequate to the protection of the defendant's rights.
It is useless to go into the developments of the law from the time when a man who had killed another, no matter how innocently, had to get his pardon, whether of grace or of course. Concrete cases or illustrations stated in the early law in conditions very different from the present, like the reference to retreat in Coke, Third Inst. 55, and elsewhere, have had a tendency to ossify into specific rules without much regard for reason. Other examples may be found in the law as to trespass ab initio, Commonwealth v. Rubin, 165 Mass. 453, and as to fresh complaint after rape. Commonwealth v. Cleary, 172 Mass. 175. Rationally, the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing, not a categorical proof of guilt. The law has grown, and even if historical mistakes have contributed to its growth, it has tended in the direction of rules consistent with human nature. Many respectable writers agree that, if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant, he may stand his ground, and that, if he kills him, he has not succeeded the bounds of lawful self-defense. That has been the decision of this Court. Beard v. United States, 158 U. S. 550 , 158 U. S. 559 . Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore, in this Court at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant, rather than to kill him. Rowe v. United States, 164 U. S. 546 , 164 U. S. 558 . The law of Texas very strongly adopts these views, as is shown by many cases, of which it is enough to cite two. Cooper v. State, 49 Tex.Cr.R. 28, 38. Baltrip v. State, 30 Tex.App. 545, 549.
It is true that, in the case of Beard, he was upon his own land (not in his house), and in that of Rowe, he was in the room of a hotel, but those facts, although mentioned by the Court, would not have bettered the defense by the old common law, and were not appreciably more favorable than that the defendant here was at a place where he was called to be in the discharge of his duty. There was evidence that the last shot was fired after Hermis was down. The jury might not believe the defendant's testimony that it was an accidental discharge, but the suggestion of the government that this Court may disregard the considerable body of evidence that the shooting was in self-defense is based upon a misunderstanding of what was meant by some language in Battle v. United States, 209 U. S. 36 , 209 U. S. 38 . Moreover, if the last shot was intentional and may seem to have been unnecessary when considered in cold blood, the defendant would not necessarily lose his immunity if it followed close upon the others while the heat of the conflict was on, and if the defendant believed that he was fighting for his life.
The government presents a different case. It denies that Hermis had a knife, and even that Brown was acting in self-defense. Notwithstanding the repeated threats of Hermis and intimations that one of the two would die at the next encounter, which seem hardly to be denied, of course, it was possible for the jury to find that Brown had not sufficient reason to think that his life was in danger at that time, that he exceeded the limits of reasonable self-defense, or even that he was the attacking party. But, upon the hypothesis to which the evidence gave much color, that Hermis began the attack, the instruction that we have stated was wrong.