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Brown v. United States, 256 U.S. 335 (1921). Cases Citing This Book View Copy Cite
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cited 28× by 24 distinct cases, 1955–2025 · 18 courts↑ Rising · …detached reflection cannot be demanded in the presence of an uplifted knife. at p. 343 ✓
cited 8× by 6 distinct cases, 1984–2016 · 4 courts→ Stable · …detached reflection cannot be demanded in the presence of an uplifted knife, at p. 343 ✓
cited 3× by 3 distinct cases, last quoted 2001 · 3 courts · …djetached reflection cannot be demanded in the presence of an uplifted knife. at p. 343 ✓
543 citation events (165 in the last 25 years) across 67 distinct courts.
Strongest positive: v. Monroe (colo, 2020-06-29)
Treatment trajectory · 1922 → 2026 · click a year to view as-of
1922 1974 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) v. Monroe (3×) also: Cited as authority (quoted), Cited "see"
Colo. · 2020 · signal: cf. · quote attribution · 2 verbatim quotes · confidence high
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.
examined Cited as authority (verbatim quote) TAMEKA PARKER v. UNITED STATES (7×) also: Cited as authority (rule), Cited "see, e.g."
D.C. · 2017 · quote attribution · 1 verbatim quote · confidence high
detached reflection cannot be demanded in the presence of an uplifted knife.
examined Cited as authority (quoted) United States v. Alfonso Tunley (3×)
8th Cir. · 2012 · signal: see also · quote attribution · 3 verbatim quotes · confidence low
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 defence.
discussed Cited as authority (rule) In re L.C. (2×)
D.C. · 2025 · confidence medium
The objective reasonableness of an individual’s exercise of force in self-defense or defense of another is analyzed through the lens of the individual’s own circumstances, including what the individual perceived “while the heat of the conflict was on,” Brown v. United States, 256 U.S. 335, 344 (1921), rather than with the benefit of hindsight, Alcindore v. United States, 818 A.2d 152, 157 (D.C. 2003) (“Under our law, the actor’s subjective perceptions are the prime determinant of the right to use force—and the degree of force required—in self-defense, subject only to the constr…
discussed Cited as authority (rule) United States v. Joseph Thompson, Sr.
8th Cir. · 2025 · confidence medium
Finally, Tunley cites to Brown v. United States, 256 U.S. 335, 343 (1921), “which is a Supreme Court case which contains language . . . akin to the Eighth Circuit pattern instruction.” Id. at 52–53. “[G]iven the awkwardness of this fact scenario and application to the state stand-your-ground statute, and the authority resisting and cited in Greer, and the concern of uniformity in application of federal statutes,” the district court “conclude[d] that the proposed instruction from [Thompson] drawing from portions of the state statute of stand-your-ground should be refused.” Id. at …
cited Cited as authority (rule) State of Louisiana v. Emmanuel Dewayne Johnson
La. Ct. App. · 2024 · confidence medium
Id., 256 U.S. at 344 , 41 S. Ct. at 502 (1921).
discussed Cited as authority (rule) McLeod v. City of Redding
E.D. Cal. · 2024 · confidence medium
In the now famous 8 words of Justice Holmes, “[d]etached reflection cannot be 9 demanded in the presence of an uplifted knife.” Brown v. United 10 States, 256 U.S. 335, 343 (1921). 11 The Supreme Court has taught us that qualified immunity 12 protects “‘all but the plainly incompetent or those who knowingly 13 violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731 , 743 (2011) 14 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see also 15 Kisela, 584 U.S. at 104 (same).
discussed Cited as authority (rule) State v. Clara
Utah · 2024 · confidence medium
“Detached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U.S. 335, 343 (1921) (Holmes, J.). ¶49 And when we apply this understanding of the reasonable person standard here, we are persuaded that a reasonable person in Clara’s shoes could have believed that the snowplow was an imminent threat.
discussed Cited as authority (rule) Evans v. United States
D.C. · 2023 · confidence medium
But there is a competing principle that self-defense is grounded in reasonableness and “‘rules consistent with human nature.’” Parker v. United States, 155 A.3d 835 , 844 n.15 (D.C. 2017) (quoting Brown v. United States, 256 U.S. 335, 343 (1921)).
discussed Cited as authority (rule) Estate of Ronald Singletary v. City of Philadelphia
3rd Cir. · 2023 · signal: cf. · confidence medium
At that point Officer Schutte discharged two times into his lower torso with his firearm.”); Officer Gresham Interview (App. 532) (“[H]e immediately popped back up, still holding the knife and again charged towards our direction.”); Officer Schutte Interview (App. 563) (“He proceeded to rush toward us with the knife in an overhand position and I discharged my weapon twice.”). 3 Sacramento, 888 F.3d 1030 , 1038–39 (9th Cir. 2018) (immunizing officer applying deadly force in apartment after the deceased held “a knife in his hand in an elevated position”); cf. Brown v. United Stat…
discussed Cited as authority (rule) Marquinn Jones-Nelson v. State of Alaska (2×)
Alaska · 2022 · confidence medium
When a defendant uses deadly force as defined in AS 11.81.900(b)(16), the defendant must show that the additional requirements of AS 11.81.335 are satisfied.29 A person is entitled to use deadly force in self-defense if nondeadly force is justified under AS 11.81.330 and the person “reasonably believes the use of deadly force is necessary for self-defense against . . . death[,] . . . serious physical injury,” or one of the crimes listed in the statute.30 Whether such force is necessary must be evaluated based on the circumstances as they appeared to the defendant at the time the force was …
cited Cited as authority (rule) Fermin Valenzuela v. City of Anaheim
9th Cir. · 2022 · confidence medium
In the words of Justice Holmes, “[d]etached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U.S. 335, 343 (1921).
discussed Cited as authority (rule) People v. Wiliams
Ill. App. Ct. · 2020 · confidence medium
App. 3d 128, 133-36 (1975) (reversing a defendant’s aggravated battery convictions where the State failed to negate the defendant’s claim of self-defense and indicating in a situation where all of the shots were fired in rapid succession, that when a defendant was initially justified by self-defense in firing a gun, it was incumbent upon the State to prove that a sufficient time interval passed between the initial shots and subsequent shots that would have allowed the defendant, acting as a reasonable person, to realize that no further shooting was necessary); Brown v. United States, 256 U…
cited Cited as authority (rule) State v. Alan M. Johnson
Wis. Ct. App. · 2020 · confidence medium
We are reminded of a quote from Justice Oliver Wendell Holmes, Jr.: “Detached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U.S. 335, 343 (1921).
examined Cited as authority (rule) Marquinn Jones-Nelson v. State of Alaska (4×) also: Cited "see"
Alaska Ct. App. · 2019 · confidence medium
Rather, the question is whether the defendant’s use of force, and the level of that force, was reasonable under the circumstances as they were known to the defendant at the time.10 8 See Weston v. State, 682 P.2d 1119, 1121-22 (Alaska 1984); McCracken v. State, 914 P.2d 893, 898 (Alaska App. 1996). 9 McCracken, 914 P.2d at 898 . 10 See State v. Miller, 798 N.W.2d 827 , 831 (Neb. 2011) (noting, in analyzing a similarly flawed instruction, that “[w]hat the jury believes is actually necessary in response to such a threat with the benefit of calm hindsight is not the inquiry, because ‘[d]eta…
discussed Cited as authority (rule) Pamela Goode v. City of Philadelphia
3rd Cir. · 2019 · confidence medium
A. Yes he did[]” (App. at 137,)—and, Avery’s account—the gun “was pointed at me” (App. at 64,)—both support the conclusion that, not only did Goode possess the gun when he was shot but that it was aimed at Avery. 8 reflection cannot be demanded in the presence of an uplifted [deadly weapon.]” (citing Brown v. United States, 256 U.S. 335, 343 (1921))).
discussed Cited as authority (rule) Richard Vos v. City of Newport Beach
9th Cir. · 2018 · confidence medium
CITY OF NEWPORT BEACH 25 assailant rather than to kill him.” Brown v. United States, 256 U.S. 335, 343 (1921) (Holmes, J.) (reversing a defendant’s conviction for second degree murder and finding no obligation for defendant to retreat rather than use deadly force when presented with the immediate mortal threat of an uplifted knife) (emphasis added).
discussed Cited as authority (rule) State v. Anderson
N.M. Ct. App. · 2015 · signal: cf. · confidence medium
See UJI 14-5190; cf. Brown v. United States, 256 U.S. 335, 344 (1921) (acknowledging that retreat, or failure to retreat, is a fact to be considered in determining whether actions made in self-defense were reasonable); Rowe v. United States, 164 U.S. 546, 558 (1896) (holding that a defendant’s self-defense acts were reasonable where the law did not require him to retreat when threatened with a deadly weapon).
discussed Cited as authority (rule) State v. Anderson
N.M. Ct. App. · 2015 · signal: cf. · confidence medium
See UJI 14-5190; cf. Brown v. United States, 256 U.S. 335, 344 (1921) (acknowledging that retreat, or failure to retreat, is a fact to be considered in determining whether actions made in self-defense were reasonable); Rowe v. United States, 164 U.S. 546, 558 (1896) (holding that a defendant’s self-defense acts were reasonable where the law did not require him to retreat when threatened with a deadly weapon).
discussed Cited as authority (rule) Ray v. Wal-Mart (2×)
Utah · 2015 · confidence medium
There need not be actual danger; it is sufficient merely that defendant believe there is danger, provided the belief is reasonable.‖). 167 As Justice Holmes famously observed, ―[r]ationally‖ failing to flea a violent confrontation that ended in death would be ―a circumstance to be considered with all others in order to determine whether the defendant went farther than he was justified in doing.‖ Brown v. United States, 256 U.S. 335, 343 (1921).
discussed Cited as authority (rule) Com. v. Gesslein,A.
Pa. Super. Ct. · 2014 · confidence medium
However, to paraphrase Justice Oliver Wendall Holmes, Jr., “Detached reflection cannot be demanded in the presence of an uplifted [gun].” Brown v. United States, 256 U.S. 335, 343 (1921); Commonwealth v. Soto, 657 A.2d 40, 41 (Pa. Super. 1995) (A court must be careful not to examine the reasonableness of a defendant’s belief with 20/20 clarity of hindsight).
discussed Cited as authority (rule) Commonwealth v. Gesslein
pactcompllehigh · 2013 · confidence medium
However, to paraphrase Justice Oliver Wendall Holmes, Jr., “[djetached reflection cannot be demanded in the presence of an uplifted [gun].” Brown v. United States, 256 U.S. 335, 343 (1921); Commonwealth v. Soto, 657 A.2d 40, 41 (Pa. Super. 1995) (A court must be careful not to examine the reasonableness of a defendant’s belief with 20/20 clarity of hindsight).
cited Cited as authority (rule) Sherrill Johnson, Individually and as next friend and mother of Victoria Johnson, a minor v. Metropolitan Government of Nashville and Davidson County
Tenn. Ct. App. · 2008 · confidence medium
Justice Holmes once observed that “detached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U.S. 335, 343 (1921).
cited Cited as authority (rule) State of Idaho v. Lon T. Horiuchi
9th Cir. · 2000 · confidence medium
In the words of Justice Holmes, "[d]etached reflection cannot be demanded in the presence of an uplifted knife." Brown v. United States, 256 U.S. 335, 343 (1921).
discussed Cited as authority (rule) Vanessa Abraham, in Her Own Right and as Administratrix of the Estate of Robert Abraham, Deceased, and on Behalf of Robert Christopher Abraham, Jr., Labreea Von Abraham and Taquan Carey, the Minor Children of Decedent Cna Insurance Company (Intervenor-Plaintiff in d.c.) v. Kimberly Raso, Badge No. 243, Individually and in Her Official Capacity as a Township of Cherry Hill Police Officer the Township of Cherry Hill Cherry Hill Center, Inc. The Rouse Company of New Jersey, Inc. The Rouse Company MacY East Inc. Liberty Mutual Insurance Company (Intervenor-Defendant in d.c.) Kimberly Raso Joris Hoogendoorn v. The Estate of Robert C. Abraham, Deceased Vanessa Abraham, Administratrix of the Estate of Robert C. Abraham Vanessa Abraham, Individually MacY Department Store John Doe(s), a Fictitious Name or Names, Jointly Severally or in the Alternative Vanessa Abraham, in Nos. 98-5405. Kimberly Raso Joris Hoogendoorn, in Nos. 98-5406
3rd Cir. · 1999 · confidence medium
As Justice Holmes memorably said in a different context, "Detached reflection cannot be demanded in the presence of an uplifted knife." Brown v. United States, 256 U.S. 335, 343 , 41 S.Ct. 501, 502 (1921). 47 Combining the standards announced in Garner and Graham, our inquiry for the use of deadly force is as follows: Giving due regard to the pressures faced by the police, was it objectively reasonable for the officer to believe, in light of the totality of the circumstances, that deadly force was necessary to prevent the suspect's escape, and that the suspect posed a significant threat of dea…
discussed Cited as authority (rule) State v. Moore
N.J. · 1999 · confidence medium
"Detached reflection cannot be demanded in the presence of an uplifted knife," Brown v. United States, 256 U.S. 335, 343 , 41 S.Ct. 501, 502 , 65 L.Ed. 961, 963 (1921), and the law thus recognizes the frailties of human perception, requiring only a reasonable, and not necessarily correct, judgment.
discussed Cited as authority (rule) State v. Bryant
N.J. Super. Ct. App. Div. · 1996 · confidence medium
"Detached reflection cannot be demanded in the presence of an uplifted knife," Brown v. United States, 256 U.S. 335, 343 , 41 S.Ct. 501, 502 , 65 L.Ed. 961, 963 (1921), and the law thus recognizes the frailties of human perception, requiring only a reasonable, and not necessarily correct, judgment.
discussed Cited as authority (rule) Commonwealth v. Soto
Pa. Super. Ct. · 1995 · confidence medium
As Justice Oliver Wendell Holmes, Jr. noted, “the law does not require detached reflection in the presence of an upraised knife.” Brown v. United States, 256 U.S. 335, 343 , 41 S.Ct. 501, 502 , 65 L.Ed. 961, 963 (1921).
discussed Cited as authority (rule) Commonwealth v. Ferguson
Mass. App. Ct. · 1991 · confidence medium
Quoting from Justice Holmes in Brown v. United States, 256 U.S. 335, 343 (1921), that in some instances “[d]etached reflection cannot be demanded in the presence of an uplifted knife,” counsel urged a more relaxed version of the standard self-defense instruction and requested an accident defense instruction as to the complaints for assault and battery by means of a dangerous weapon. 1 *583 The judge declined, and a defense objection was recorded before and after the judge’s charge.
cited Cited as authority (rule) Culverson v. State
Nev. · 1990 · confidence medium
As Justice Holmes stated, “[djetached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U.S. 335, 343 (1921).
discussed Cited as authority (rule) State v. Hall
Conn. App. Ct. · 1989 · confidence medium
Authority: Brown v. United States, 256 U.S. 335, 343, 344 (1921); Rowe v. United States, 164 U.S. 546, 558 .” Our review of the list of Robinson’s many convictions leads us to conclude that the only conviction deserving of the trial court’s close scrutiny was Robinson’s manslaughter conviction in 1967.
discussed Cited as authority (rule) Carson v. State
Alaska · 1987 · confidence medium
We then quoted with apparent approval from Brown v. United States, 256 U.S. 335, 343 , 41 S.Ct. 501, 502 , 65 L.Ed. 961, 963 (1921), in which Justice Holmes stated “[djetached reflection cannot be demanded in the presence of an uplifted knife.” 682 P.2d at 1121-22 .
discussed Cited as authority (rule) People v. Armitage
Cal. Ct. App. · 1987 · confidence medium
Just as “[d]etached reflection cannot be demanded in the presence of an uplifted knife” (Brown v. United States (1921) 256 U.S. 335, 343 [ 65 L.Ed. 961, 963 , 41 S.Ct. 501 ], Holmes, J.), neither can caution be required of a drowning man.
discussed Cited as authority (rule) State v. Kelly (2×)
N.J. · 1984 · confidence medium
“Detached reflection cannot be demanded in the presence of an uplifted knife,” Justice Holmes aptly said, Brown v. United States, 256 U.S. 335, 343 , 41 S.Ct. 501, 502 , 65 L.Ed. 961, 963 (1921); and the law accordingly requires only a reasonable, not necessarily a correct, judgment.
discussed Cited as authority (rule) Weston v. State (2×)
Alaska · 1984 · confidence medium
As Justice Holmes stated in Brown v. United States, 256 U.S. 335, 343 , 41 S.Ct. 501, 502 , 65 L.Ed. 961, 963 (1921), “[djetached reflec tion cannot be demanded in the presence of an uplifted knife.” We conclude Weston did produce “some evidence” that a reasonable person might have used deadly force under the circumstances.
discussed Cited as authority (rule) State v. Hass (2×)
N.D. · 1978 · confidence medium
As Justice Holmes said in Brown v. United States, 256 U.S. 335, 343 , 41 S.Ct. 501, 502 , 65 L.Ed. 961, 963 (1921): "Detached reflection cannot be demanded in the presence of an uplifted knife." The defendant, according to the prosecution, was standing within a few feet of the vehicle in which the witness and others were seated, pointing a rifle directly at them, and discussing the possibility of blowing their heads off.
discussed Cited as authority (rule) Commonwealth v. Shaffer
Mass. App. Ct. · 1974 · confidence medium
Contrast the statement in Commonwealth v. Edmonds, 365 Mass. 496, 504-505 (1974). 5 Compare the statement by Holmes, J., in Brown v. United States, 256 U. S. 335, 343 (1921), that “[rjationally, 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. ...” 6 While the specific question whether there is a rule as tó a duty to retreat where one is attacked at home has not been passed on by the Supreme Judicial Court, it has been said that a defendant’s contention “that there is …
discussed Cited as authority (rule) Commonwealth v. Smith
Mass. App. Ct. · 1973 · confidence medium
See Monize v. Begaso, 190 Mass. 87, 89 (1906); Commonwealth v. Houston, 332 Mass. 687, 690 (1955); Commonwealth v. Kendrick, 351 Mass. 203, 211 (1966); Brown v. United States, 256 U.S. 335, 343 (1921).
examined Cited as authority (rule) United States v. Bennie L. Peterson (5×) also: Cited "see", Cited "see, e.g."
D.C. Cir. · 1973 · confidence medium
Brown v. United States, 256 U.S. 335, 342, 344 , 41 S.Ct. 501 , 65 L.Ed. 961 (1921) ; United States v. Burks, 152 U.S.App.D.C. 284 , 287 & n. 5, 470 F.2d 432 , 435 & n. 5 (1972) ; United States v. Bush, 135 U.S.App.D.C. 67, 69-70 , 416 F.2d 833, 825-826 (1969) ; Harris v. United States, 124 U.S.App.D.C. 308 , 309, 364 F.2d 701, 702 (1966) ; Inge v. United States, 123 U.S.App.D.C. 6, 9 , 356 F.2d 345, 348 (1966) ; Sacrini v. United States, 38 App.D.C. 371, 377-378 (1912) ; Harris v. United States, 8 App.D.C. 20, 24 , 36 L.R.A. 465 (1896). 43 .
discussed Cited as authority (rule) Burt v. United States (2×)
Ct. Cl. · 1972 · confidence medium
Brown v. United States, 256 U.S. 335, 343 (1921); Greenstone, Liability of Police Officers For Misuse of Their Weapons, 16 Clev.-Mar.
discussed Cited as authority (rule) Hebah v. United States
Ct. Cl. · 1972 · confidence medium
The standard by which an officer’s conduct with respect to the use of deadly force is measured is whether he had grounds to reasonably believe that his life or the lives of others were in immediate danger of death or serious bodily harm, not whether a reasonably prudent man would so believe or whether he behaved as the ideal officer would have, Brown v. United States, 256 U.S. 335, 343 (1921).
cited Cited as authority (rule) State v. Bonano
N.J. Super. Ct. App. Div. · 1971 · confidence medium
As Mr. Justice Holmes cryptically put it, “Detached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U. S. 335, 343 , 41 S. Ct. 501, 502 , 65 L.
cited Cited as authority (rule) State v. Abbott
N.J. · 1961 · confidence medium
As Mr. Justice Holmes cryptically put it, “Detached reflection cannot be demanded in the presence of an uplifted knife.” Brown v. United States, 256 U. S. 335, 343 , 41 S. Ct. 501 , 65 L.
discussed Cited as authority (rule) People v. Mitchell (2×)
Cal. · 1939 · confidence medium
Brown v. United States, 256 U.S. 335, 343 [ 41 S.Ct. 501, 502 , 65 L.Ed. 961 , 18 A.L.R. 1276 ].
discussed Cited "see" Jonathan Dawkins v. United States (2×) also: Cited "see, e.g."
D.C. · 2018 · signal: accord · confidence high
Gillis, 400 A.2d at 313 ; see also Carter v. United States, 475 A.2d 1118 , 1124 n.1 (D.C. 1984) (“In the District of Columbia, it is recognized that when an individual is faced with a real or apparent threat of serious bodily harm or even death itself, there is no mandatory duty to retreat.”); accord Brown, 256 U.S. at 343 (holding that in a federal murder prosecution there is no duty to retreat and, instead, that “[r]ationally the failure to retreat is a circumstance to be considered with all the 21 others in order to determine whether the defendant went farther than he was justified i…
examined Cited "see" Jonathan Dawkins v. United States (5×) also: Cited "see, e.g."
D.C. · 2018 · signal: accord · confidence high
Gillis , 400 A.2d at 313 ; see also Carter v. United States , 475 A.2d 1118 , 1124 n.1 (D.C. 1984) ("In the District of Columbia, it is recognized that when an individual is faced with a real or apparent threat of serious bodily harm or even death itself, there is no mandatory duty to retreat."); accord Brown , 256 U.S. at 343 , 41 S.Ct. 501 (holding that in a federal murder prosecution there is no duty to retreat and, instead, that "[r]ationally 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 ju…
cited Cited "see" United States v. Daija
S.D.N.Y. · 2008 · signal: see · confidence high
See id. at 73:9 to 74:9, 76:6-10.
examined Cited "see" People v. Humphrey (8×)
Cal. · 1996 · signal: see · confidence high
Code, § 198.) Accordingly, "self-defense may be analyzed as having two requirements: (1) the defendant's acts causing the victim's death were motivated by an actual (also referred to as `genuine' or `honest') belief or perception that (a) the defendant was in imminent danger of death or great bodily injury from an unlawful attack or threat by the victim and (b) the defendant's acts were necessary to prevent the injury; and (2) a reasonable person in the same circumstances would have had the same perception and done the same acts." ( People v. Aris (1989) 215 Cal. App.3d 1178, 1186 [ 264 Cal. …
examined Cited "see" United States v. Robert D. Black (6×)
4th Cir. · 1982 · signal: see · confidence high
See generally Brown v. United States, 256 U.S. 335, 344 , 41 S.Ct. 501, 502 , 65 L.Ed. 961 (1921).
examined Cited "see" Commonwealth v. Fisher (3×)
Pa. · 1980 · signal: see · confidence high
See Brown v. United States, 256 U.S. 335, 344 , 41 S.Ct. 501, 502 , 65 L.Ed. 961 (1921); Inge v. United States, 356 F.2d 345 (D.C.
Retrieving the full opinion text from the archive…
Brown
v.
United States
103.
Supreme Court of the United States.
May 16, 1921.
256 U.S. 335
1921 U.S. LEXIS 1607
Mr. James R. Dougherty and Mr. E. C. Brandenburg, with whom Mr. W. E. Pope, Mr. Gordon Boone and Mr. H. S. Bonham were on the brief, for petitioner:, Mr. Assistant Attorney General Stewart, with whom Mr. W. C. Herron was on the brief, fpr the United States:
Holmes, Pitney, Clarke.
Cited by 176 opinions  |  Published
2 passages pin-cited by 2 cases
Pinpoint authority: #36,698 of 633,719
Citer courts: Eighth Circuit (3) · Supreme Court of Colorado (1)
Mr. Justice Holmes

delivered the opinion of the court.

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.[*342] Constitution, Art. I, § 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 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 déath 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[*343] 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 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 dr 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.

[*344] 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 defence 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 Hermes 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-defence is based upon a misunderstanding of what was meant by some language in Battle v. United States, 209 U. S. 36, 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 beat 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 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 wbuld 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.

Judgment reversed.

Mr. Justice Pitney and Mr. Justice Clarke dissent.