Sunday, June 26, 2011

Cooley's Treatise on the Constitutional Limitations Which Rest Rest Upon the Legislative Power of the States...

Page 307, Note 4. "That in defence of himself, any member of his family or his dwelling, a man has a right to employ all necessary violence, even to the taking of life, see Shorter v. People, 2 N. Y. 193 ; Yates v. People, 32 N. Y. 509 ; Logue v. Commonwealth, 38 Penn. St. 265; Pond v. People, 8 Mich. 150; Maher v. People, 24 111. 241 ; Bohannan v. Commonwealth, 8 Bush, 481 ; s. c. 8 Am. Rep. 474. But except where a forcible felony is attempted against person or property, he should avoid such consequences if possible, and cannot justify standing up and resisting to the death, when the assailant might have been avoided by retreat. People v. Sullivan, 7 N. Y. 396.  But a man assaulted in his dwelling is under no obligation to retreat ; his house is his castle, which he may defend to any extremity.  And this means not simply the dwelling-house proper, but includes whatever is within the curtilage as understood at the common law.  Pond v. People, 8 Mich. 150. And in deciding what force it is necessary to employ in resisting the assault, a person must act upon the circumstances as they appear to him at the time ; and he is not to be held criminal because on a calm survey of the facts afterwards it appears that the force employed in defence was excessive.  See the cases above cited. Also Schiner v. People, 23 111. 17 ; Patten v. People, 18 Mich. 314 ; Henton v. State, 24 Texas, 454."

Page 350: "A statute prohibiting the open wearing of arms upon the person was held unconstitutional in Stockdale v. State, 32 Geo. 225. And one forbidding carrying either publicly or privately, a dirk, sword-cane, Spanish stiletto, belt or pocket pistol, or revolver, was sustained, except as to the last mentioned weapon ; and as to that it was held that, if the weapon was suitable for the equipment of a soldier, the right of carrying it could not be taken away. As bearing also upon the right of self-defence, see Ely v. Thompson 3 A. K. Marsh. 73, where it was held that the statute subjecting free persons of color to corporal punishment for 'lifting their hands in opposition' to a white person was unconstitutional."

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