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Jordan v. The State of Ohio.

sense in which they were used should be made known to the jury, in justice to the defendant Jordan. As it was, in the light of the evidence, it must be assumed that the jury understood and regarded the phrase in its common and ordinary sense; more especially because of the connection in which it was used : “Who was the aggressor or the first to make a malicious assault in the conlict.” A conflict is a fight, a battle ; and this would seem to imply in view of such ordinary meaning, that such assault must have been part of an actual fight-a striking of Jordan; and the jury could acquit the defendant therefore, on the ground of self-defense, only by finding that Ferris had opened the conflict, and began an actual fight, before jordan shot him--that the shooting was done during such conflict; and they must have so understood it, judging from their finding.

The jury were also instructed to determine whether the defendant did “only use such force, while engaged in the conflict, as was reasonably necessary to save his life, or his persoa from great bodily harm," and that they must be satisfied, from a preponderance of the evidence, “that the defendant used no more force than was necessary to repei the assailant."

In determining questions upon a preponderance of evicicncc, a jury is not required to be satisfied, i. e. convinced, of their truth or falsity. The prepondcrence of the evidence must settle the questions with them, whether they are convinced or not. But, passing this, there is still another serious objection to this part of the charge of the trial court, to-wit, that the defendant must have used no more force than was necessary to repel his assailant.

That proposition is well enough in a proper case, and is an important question in fisticuffs, or in a conflict where one of the combatants, desiring to withdraw from the conflict, flees, and his opponent pursues him, or, where onc continues to beat or wound the other after he knows the other is aisabled, and unable longer to continue the combatBut it was out of place in the case at bar, at least without proper qualification, ani would, and we think did, mislead the jury, to the prejudice of the accused.

There was no evidence that Ferris had a deadly weapon at the time, unless the smail pen-knife, which he described, could be called such; and there was no evidence that Jordan was actually in danger of life or limb from the attack, as cven the small knife was not used, and hence the jury would say at once that the defendant had used more force than was actually necessary, as they were required to determine it as matter of fact, and not as matter of appearances. It was not a matter to be determined upor he real facts, as afterwards established. Jordan might have justifiably küled Ferris, although in no actual danger himself of being killed or grievaiely hurt, by reason of the assault made upon him by Ferris, if t was of such character as wouió justify a reasonable man in the belief The me had a deadly weapon and was abou: to draw it and use it.

We must look at such matters in te light of current events. It is " mon course of procedure now for men to carry a revolver in the

, óc so-called pistol-pocket, aná, especially by those o bad habits, or 9 21- of, or are aiiied to, the criminal ciasses, to draw and use it on

provocation; and when such a perscn seeks a quarre with another, 160 100 biood, with abusive words, makes a sudder dance on such czer, at the same time thrusting his hand into his pistoi-pocket, with threatening look and gesture, any reasonabíc man, in the careful use of his faculties, woulă look to sec such assailant immediately draw and usc 2 voiver. And if one such undertal:es to threaten, bully and scare

Jefferson Circuit Court.

another in that way, and induce him to believe he is about to draw and use such a weapon when he has none, the consequences should rest on his own head, and not on that of him he assaults.

In all such cases, the question before the jury is one of apparent, and not of real facts. How did it appear to the defendant? Look at it from his standpoint, as reasonable men? Was the conduct of his sssailant, under all the circumstances, sufficient to induce a reasonable man to honestly believe that such assailant intended to draw a weapon and kill or grievously injure him? If yes, and the defendant did honestly so be lieve, he was justified in acting on that belief, and in shooting to kill. He was not bound to run the risk of waiting to see if his assailant would in fact, draw a weapon-that might be too late for safety; nor can we, in such case, limit the amount of force to be used, and say the defendant should have used no more force than was necessary-he should have only knocked his assailant down, or shot him in the arm, instead of in the neck.

The learned trial judge, might have properly submitted to the jury the question whether the defendant unnecessarily used a deadly weapon, or, if he preferred so to put it, used more force than was necessary, in consideration of all the apparent circumstances, and in view of the action and conduct of Ferris, and their probable effect upon the mind of a reasonable man. But it was a mistake to instruct the jury in substance, that the defendant had no right to use more force than was necessary to repel the assault that was actually, instead of apparently, made by Ferris.

In Darling v. Williams, 35 O. S., 62, Judge Boynton, for the court, laid down the principle that is to govern in such cases in quite forcible language, to wit: “One person can justify the taking of the life of another in self-defense only where in the proper exercise of his faculties, he believes in good faith, that he is in imminent danger of death, or grievous bodily harm. *

* It is not, however, necessary that the danger should prove real, or in fact exist, for, whether real or apparent, if the circumstances are such as to induce a belief, reasonable and well grounded, that life is in peril, or that grievous bodily harm is impending the party threatened with the danger may act upon appearances and slay his assailant.” And this necessarily excludes the idea that he must have, in fact, used no more force than was necessary to repel the assailant; otherwise, the plea of self-defense would be of no avail unless the danger was real. The able trial judge, as we have seen, recognized the right of the defendant to act upon his honest belief of the danger, but unfortunately he limited that right to the use of no more force than was actually necessary to repel the assailant.

At the request of counsel for the defendant, the trial judge gave to the jury the following: "That if the accused was in the lawful pursuit of his business, and without blame was violently assaulted by one who manifestly and maliciously endeavored and intended to kill him, the person so assaulted, without retreating, although it be in his power to do so without increasing the danger, may kil! his assailant if necessary to save his own life, or prevent enormous bodily harm;" to which the judge added: "I give you this last instruction, gentlemen, and wish to emphasize the fact that the assault must have been a malicious assault; that is, the person making the assault came at the other maliciously, and with every manifestation of endeavoring to kill the person assaulted, and that he was prepared, and manifested the fact that he was able to carry out this malicious assault. It is orly under such circumstances that the person

Tempest v. Commissioners.

assaulted may use the force necessary without retreating, as given in this proposition.”

While the request was somewhat of an abstract proposition of law, and Jordan did not kill Ferris, yet as he was charged with an intent to kií, it may have been proper to give it. But whether it was so or not, as the court did give it, it was bound to give the law correctly in any qualification or explanation of the request given to the jury.

We think the qualification of the request as given by the court, makes the right of self-defense, in cases like the one at bar, impracticable, and impossible of proof. It leaves the assaulted at the mercy of the assailant. He must make up an accurate summary of the situation. He must see to it, and establish, that his assailaut exhibited every manifestation of endeavoring to kill hian, (whatever that may mean,) and that he was prepared, and manifested the fact that he was able to carry out his malicious assault, i. e. to kill him, before the right of slaying his assailant would accrue.

It is clear, that it is not necessary to prove these matters as facts in order to establish a justifiable kiiling n self-defense. It is not the imminence of the danger that is the test, but the appearance of it. The assailant may not have, is faci, endeavored or intended to kill he may not have an implement about him that would kill, if used, yet if he makes an advance upon, and a movement toward the accused, that would indicate such intent to a reasorabic man, in such careful use of his faculties as the situation would perhet, and the accused honestly believed that his assailant intended to Kax or grieviously wound him, he would, as we have seen, be justified in slay ug anis assailant.

In short, without furtier repetition, we think there was error in hese instructions prejudicial to the accused, and that, by reason thereof, he jury were misicú into rendering a verdict against him.

Judgment reversed ará cause remanded.
Medill and Sweeny cor Plaintin in Error.
Erskine, for Defendant in Error.

STATUTES-COUNT COMMISSIONERS.

(Lucas Circuit Court, January 22, 1897.]

Jaynes and King, IJ. Steam CANAL BOAT TEMPEST, v. COMMISSIONERS 07 LUCAS Co. SCOPE OF WORD "PERSONS" AC USED IN SECTION 863 REVISED STATUTES.

The word "persona",1 secton C33 Revised Statutes, is sufficiently bröad to include the Eringing of a suit nder sectior. 5880, 3. S., by the board of county commissicurangalast a boat " name that has committed an .njury to a bridge located within the jur suction of the county.

ERROR. HAYNES, J.

This action is brorght for "he purpose of reversing the judgment of the ccurt o corp.com. i. an accon wherein the coun'y commissicners were piaiucts ana ide dout sy name was defendantsThe piaintiff in its anended peition stis tp the fuct or ti existence ví ihe board of

Lucas Circuit Court.

county commissioners, and the fact that there is a bridge in the county of Lucas, across the Miami and Lake Erie Canai, and that this is a bridge that is under the care and control of the county of Lucas, and belongs to said county; and it avers that the defendant boat, while navigating saia canaí, and when approaching the bridge, instead of opening the bridge it: the usual and ordinary manner, it being a turn bridge, ran against it, and threw it off of its proper bearings, and injured it to quite an extent. And the plaintiff therefore prays damages, etc. The action came up for trial, resulting in a verdict in favor of plaintiff

, and a judgment. Motion was made for a new trial, which was overruled, and thereupon this petition in error was filed to reverse the judgment which was rendered upon the verdict.

The contention of plaintiff in error is confined to one or two points, and his first, and the main point which he has argued in this court, is, that the commissioners have no right to sue the canai boat by name. He claims, and with a good show of authority in the form of decisions of the supreme court, that the board of county commissioners, if a corpration, is one that is limited, and can only maintain actions in thai class of cases wherein it is authorized by statute; and he claims that there is no authority under the statutes of this state for the maintenance of this action against this canal boat by name. He discusses sections 85C and 863 R. S. Section 860 provides that

"The commissioners shall construct and keep in repair all necessary bridges over streams and public canals on all state and county roads, free turnpikes, improved roads, and abandoned turnpikes and piankroads, in common public use, except only in ch cities and villages as, by law, have the right to demand and receive part of the bridge sund levied upon property within the same.'

It is conceded by both parties that this bridge is of the class named in this section of the statute, and is one of the bridges therein described. Section 863 provides

"Where a bridge on any state or county road, or any public buiiding, the property of, or under tùe control or supervision of, any county, is injured or destroyed, or where any state or county road, or public hig: way, has been injured or impaired by placing or continuing therein, irith. out lawful authority, any obstruction, or by the changing of the line, filling up or digging out of the bed thereof, or in any manner renderii.g the same less convenient or useful than it had been previously, by any person or corporation, such person or corporation shall he subject to ar. action for damages; and the board of commissioners of the proper county is authorized to sue for and recover of such person or corporation so causing, or having caused, such injury or impairment, such damages as have accrued by reason thereof, or such as are necessary to remove the obstruction or repair the injury, and the money so recovered shall when colected by the proper oficer, be paid into the treasury of the proper county, and shall be appropri tea is the commissioners thereof to repairing such briâge, building, or roaầ, or r„moving such obstruction, as the case may be, or to reimburse the county or expenditure in that behalf

Lefendant in error claims that ine onis right that the county commissioners have to maintain this action is by virtue of this section of the statate, and that it must be united to the cases and to the parties therein nameä; inat masmucn sijaws and gives a right of action oriy against 2. corporation or person who may injurc a br.ige, that right cannot be eviarged by any construction so as to include a canal boat by name.

Tempest v. Commissioners.

We do not fully agree with him in the doctrine, as stated by him. This statute gives to the county commissioners the right to sue for this alleged injury. The only question is whom may they sue. Two statutes seem to have reference to this, but I think only one was quoted. I will refer to them. The first is the watercraft law:

"Sec. 5880. Any steamboat or other watercraft, of twenty tons burden and upward navigating the waters within or bordering upon this state, shall be liable, and such liability shall be a lien thereon, for all debts contracted on account thereof, by the master, owner, steward, consignee, or other agent, for materials, supplies, or iabor in the building, repairing, furnishing, or equipping of the same, or for insurance, or due for wharfage, and also for damages arising out of any contract for the transportation of goods or persons, or for injuries done to persons or property by such craft, or for any damage or injury done by the captain, mate, or other officer thereof, or by any person under the order or sanction of either of them, to any person who is a passenger or hand on such steamboat or other watercraft at the time of the infliction of such damage or injury.”

It was suggested by way of argument that this being a bridge, appurtenant to the land, that an action would not lie against the boat for the injury to the bridge ; but under this statute we have no doubt that the boat would be liable for any injuries that would be inflicted upon the bridge, or even upon other articles upon the land. I remember myself once bringing an action under this statute against a vessel in this city, in Swan Creek, for running into a lumber pile, and breaking and injuring the lumber, and the action was sustained, and I have no doubt upon a full examination of the authorities then made, rightfully sustained.

Then there is another section that seems to bear upon this question:

"Sec. 7790. If any person, in navigating or managing, or assisting in the navigation or management of any boat or other float, on either of the canals of this state, shall, through design or negligence, in the navigation or management thereof, fail or neglect to open or close any swing bridge crossing either of the said canals, or shall injure in such navigation or management, any lock, lock gate, waste gate, guard gate, bridge, aqueduct or other work or device appurtaining to either of said canals, such person shall, for every such offense, forfeit and pay the sum of twentyfive dollars, as a penalty for such offense; and every master, owner or part owner of such boat or float, and also the boat or float itself, shall severally be liable for the payment of such penalties, and moreover be liable for the payment of all damages occasioned by such failure to open or close the said swing-bridges, or by such mismanagement or negligence.”

In delivering his charge to the jury the learned judge below pointed that out as a statute upon which the action might be maintained. We think it is clearly maintainable under the other section, and if it is maintainable under this also, then this is simply cumulative.

Section 5880 is part of the act commonly called the "Watercraft Act,” which was passed in this state for the purpose of enabling parties who held claims against a watercraft to proceed against it by name, holding the watercraft and the owner both liable; and it was to enable parties who have such a claim to have a speedy remedy, and that they might not be compelled to hunt up the owners, who may be non-residents of the state and not easily found, it might be difficult to ascertain who the owners were. For that reason, for a certain class of claims and

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