B. Foster, Judge. Hiram M. Dilburn was indicted on a charge of murder in the first degree, was convicted of murder in the second degree, and from the judgment he appeals.
Key passage — most relied on by later courts
“The trial judge in his oral charge charged the jury:”
Good law ✅— No negative treatment on recordhow we know
Reversed and remanded · Decided 1918-02-05
How this case has been cited
Cited by 13 later decisions — most recently May 2009
13 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1
[1,2]
The trial judge in his oral charge charged the jury:
“He [the defendant] would not be justified in using a deadly weapon if struck by tbe fist, or any other assault which would not likely cause serious bodily harm.”
¶2
This was in effect charging the jury that under the evidence the defendant was ’ not justified in using a deadly weapon, and that the blow struck by the fists was not likely to cause serious bodily harm, which was the very question then being submitted to the ju
*372
ry. The rule is that the killing of one who is the assailant mjist be under' a reasonable apprehension of loss of life or of great bodily harm, and the danger must appear to be so imminent at the moment of the assault as to present no alternative of escaping its consequences except by resisting. Scales v. State, 96 Ala. 77, 11 South. 121. It was said in Shorter’s Case, 2 N. Y. 194, 51 Am. Dec. 286, “When a man is struck with the naked hand, and has no reason to apprehend a design to do him great bodily harm, he must not return the blow with a dangerous weapon,” and this expression was quoted with approval in the 'Scales Case, supra.
¶3
[3]
But it is a question for the jury to satisfy itself from all the evidence in the ea.se whether or not the defendant was in imminent and manifest danger either of losing his own life or of suffering grievous bodily harm, or that it appeared so to the mind of a reasonable man. 3 Greenl. Ev. § 116. That part of the oral charge of the court excepted to was in conflict with the foregoing views, and for that error the judgment must be reversed.
¶4
[4]
The other questions raised will probably not arise on another trial, but for the guidance of trial courts in such matters, we may say that where the official stenographer is absent, or for other reasons is disqualified, and the court makes use of another stenographer, the record of the court should show his special appointment and that he qualified as required by law.
¶5
For the error pointed out, the judgment is reversed, and the cause is remanded.
