The petitioner was convicted of murder in the second degree committed upon one Hermes 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 Fed. Rep. 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, dock-yard, 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.
The other question concerns the instructions at the trial. There had been trouble between Hermes and the defendant for a long time. There was evidence that Hermes 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 postoffice. In view of Hermes's threats he had taken a pistol with him and had laid it in his coat upon a dump. Hermes 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 Hermes 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. Hermes 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 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 Hermes he was not bound to retreat was refused. So the question is brought out with sufficient clearness whether the formula
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 Massachusetts, 453, and as to fresh complaint after rape. Commonwealth v. Cleary, 172 Massachusetts, 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 exceeded the bounds of lawful self-defense. That has been the decision of this Court. Beard v. United States, 158 U.S. 550, 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, 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. Crim. Rep. 28, 38. Baltrip v. State, 30 Tex. Ct. App. 545, 549.
The Government presents a different case. It denies that Hermes had a knife and even that Brown was acting in self-defence. Notwithstanding the repeated threats of Hermes 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-defence or even that he was the attacking party. But upon the hypothesis to which the evidence gave much color, that Hermes began the attack, the instruction that we have stated was wrong.
MR. JUSTICE PITNEY and MR. JUSTICE CLARKE dissent.