#### THE STATE vs. ADDISON GIBSON.

lu caserof assault and battery, the party, who strikes, another , must bo guilty, unless ha be justified in committing it, as an act of self defence.

The law does not justify any assault by way of retaliation or revengo for , a blow previously received.

Appeal from the Superior Court of Law of Iredell County, at the Spring Term 1849, his Honor Judge Ellis presiding.

This is an indictment for a battery on Jemima Somers ; and, on not guilty pleaded, she was sworn as a wdtness, and stated, that she was in her .field at the fence, and that the defendant rode by and she asked him why he had been, talking about her, and a .quarrel ensued ; and she then threw a stone at him, as he sat on his horse a few yards off and missed him: and that she then threw a stick at him, which might have brushed against the side of his arm ; and that then he got off his horse, picked up the branch of a sapling and walked up to the witness and struck her with it on the head. Another witness for the State deposed, that, afer the affray, the defendant .said he had just come from Mrs Somers’, and that she was a bad woman, and had thrown stones at him and had hit him with a stick; and that, to extricate himself, he was compelled to get off his horse and strike her with a stick ; that he struck her on the head and she went off crying. The Court directed the jury, that if they believed the defendant-acted in self-defence, that is, to protect himself from bodily injury, they should acquit *215him — otherwise, they ought to find him guilty. The defendant was convicted and after judgment he appealed.

Attorney General, for the State*

No counsel for the defendant.

Ruffin, C. J.

If there was any doubt in thiscase.it was upon the facts, and not upon the law ; for we think the rule of law was properly laid down by his Honor. In an action against the defendant,his plea of [son assault demesne must have averred, that the prosecutor, just before his alleged battery on her, made an assault on him and would then have beaten him, if he had not immediately defended himself against her; whereupon he did then and there defend himself against her, and, in so doing, did a little beat and ill-treat her. Precedent in 3 Chit. PL 1067. It is clear, therefore, that the law does not justify any assault by way of retaliation or revenge for a previous one by the prosecutrix, but only in the defendant’s own defence ; for it. cannot be doubted, that a party must be liable to the public for an assault in any case, in which he would be to the private person in an action. In cases of homicides-* indeed, there is an intermediate grade of guilt between that of the highest degree, murder, and a case of self-defence, which is manslaughter, in which there is palliation, but not justification. But in cases of battery merely, the party, who strikes another, must be guilty, unless ho be justified in committing it, as an act of self-defence; for although, on the indictment, he need not plead the matter specially, but may insist on the defence under not guilty, yet the special matter, given in evidence on not guilty, in order to be available, must be such as would support the special plea, if it had been necessary to put it in. It is true, the defendant need not generally shew affirmatively, that the other party was in the act of striking again when he struck; as that is to be presumed., *216when the blow is returned immediately, or the parties are in the attitude or position-, in which the first blow was given. It is, therefore, ordinarily, necessary, in order to repel the presumption, that something should come from the State to satisfy the jury, that in fact the first assailant had done, and that the defendant. might have so seen ; for, otherwise, the .jury will generally and, indeed, naturally conclude, that the defendant returned the blow, not in malice and i n vengeance, but in defence of himself. How it is in any particular case, is, of course, a question of fact for the jury ; and, we suppose, they must have thought here, that, as the prosecul rix was a woman and several yards from the defendant, then on horseback óh the oppositesidc of the fence, he could not have believed himself in further danger from her, and therefore that his alighting from his horse and going the several yards to her and striking her with a stick on the head, was not-in defence ol himselt, but an act of unmanly aggression on her. At all events, the inquiry was one for the jury, and their decision cannot be reviewed here, as we think the law was properly laid down to them.

Pearsox, J.

The Judge charged, that the defendant was guilty, unless he struck to protect himself from bod-’ ily injury, by which it is understood he means, unless, after receiving one blow, it was necessary tor him to strike in order to prevent another.

This, in cases of assaults and batteries, is fixing limits to the ground of defence, in my opinion, moré narrow than the law contemplates,'and I, therefore, with all deference, cannot concur with a majority of the Court. Our sturdy ancestors, ‘*who built up the common law,” did not require a man to turn and flee, when he received a blow; he is allowed to return blow for blow, provided he does hot give an excessive blow, such as was not called for by the occasion; and Lhis.not exclusively upon the ground, that it was necessary to protect himself on that particu* *217lar occasion from further bodily injur}', but because it is prompted by natural impulse, which originates in the principle of self protection, and tends to self defence in general, by. having it understood that our persons are not to be assaulted with impunity, but that, if assaulted, a blow will be given in return. If one pulls the nose of another, or strikes a dastardly blow from behind, and starts to run. off, so as to make it manifest, that there is no danger of his striking again, and is at the instant pursued and stricken as he deserves, no excess of force being used, can it be said the party, who returns the blow, is to be convicted for an assault and battery, and that he has no extra-judicial remedy in an emergency of the kind, because he had no reason to think that the assault would be repeated ?

In cases of homicide, the ground of self defence is more narrow, because the blow returned-is excessive ; the party is therefore required to retreat'to the wall and not to take life, unless it be necessary to save his own life, orto avoid great bodily injury ; but, in homicide, the law has provided a middle ground between conviction for murder and acquittal for self defence — manslaughter. Hence the plea of seif defence is more restricted in homicide than in assault and battery, where there is no such middle ground; and the dividing line between conviction and acquittal in assaults and batteries takes in the middle ground on the side of acquittal. The authorities upon this question are less clear and distinct than might be supposed. Upon examination no direct authority can be found. In 1st East. P. C. 406, it is laid down, son assault demesne is no excuse, if the retaliation be excessive and bear no proportion to the necessity or the provocation received. So in 1st Haw. Ck. 60, Sec. 23. Blackstone? in his commentaries, 3 vol. page 3, in treating of extrajudicial remedies, puts down in the first place self defence, and holds, if one is attitcl^ii, it is lawful to repel *218force by force, and the breach of the peace is chargeable to him who give the first blow, for the law in such cases respects the passions of the human mind and makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motive is strong enough to restrain. It considers, that the future process of the law is by no means an adequate remedy.

From the general tone of the authorities, I am led to the conviction, that one who receives a blow is not restricted in self defence, so as to be allowed to strike only in order to protect himself from another blow, but may excuse, upon the ground of self defence, a reasonable retaliation for the blow received, although it be manifest, that the other party intends to give no other blow, and is allowed to do himself that immediate justice, to which he is prompted by nature.

Had this been the case of two men, the law, in my opinion, would be clear for the defendant, but as the person stricken was a woman, and the reasoning, upon which the law is founded, does not so forcibly apply, where the party giving the first blow is a female. I would willingly make a distinction, if any authority could be found for it.

Per Cur tam

Judgment affirmed.