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the belief may be. The law, says Judge Campbell, of Michigan,“ does not hold men responsible for a knowledge of facts, unless their ignorance arises from fault or negligence": 1 Bishop's New Criminal Law, secs. 304, 305; 1 Wharton's Criminal Law, 9th ed., secs. 487 a-493; Kerr on Law of Homicide, sec. 169.
Professor Wharton, in his work on Criminal Law, explains what we have said as follows:
138 “A is assaulted by B, with what appears to be a loaded pistol in his hand. A kills B, believing the pistol to be loaded, when it is not. This, it is agreed, may constitute a good case of self-defense. When we come to analyze A's belief, however, we find that it is an ordinary conclusion of inductive reasoning; a conclusion which is erroneous, because its minor premise is false. Putting this process in syllogistic form, it stands as follows:
“Whoever assaults me with a loaded pistol endangers my life.
“B assaults me with a loaded pistol, etc.
“Supposing, however, we substitute for the subject of the major premise the term'garroter,' slightly varying the predicate, the process may be then thus stated:
“A garroter taking me by the throat is likely to do me great bodily harm.
“B is a garroter taking me by the throat, etc.
“Now, in the first case, it is enough if I honestly, though erroneously, believe that B’s pistol is loaded; and, in the second case, it is enough if I honestly, though erroneously, believe that B is a garroter. In both cases the error of the conclusions is one of the apprehensive powers. I err in my apprehension; I do not see aright; or I have been misinformed; or I have not heard aright. But in each case the error for which I am to be put on trial is my error, not somebody else's error. It is no excuse to me, if I resort to selfdefense, that some reasonable' looker-on believes the pistol to be loaded, when I know that it is unloaded. So it is no excuse to me, if I shoot down a person suddenly hustling me, that some reasonable looker-on believes the supposed assaiiant to be a garroter, when I know him not to be a garroter. So if I, according to my own lights, conclude the pistol to be loaded, or the assailant to be a garroter, 139 then I am to be acquitted of malice if I act upon this belief, though I cannot be acquitted of manslaughter if I arrive at this belief negli
gently. In other words, I cannot be convicted of murder, which involves a malicious intent, unless I have malicious intent; though I may be convicted of manslaughter if I have killed another by aiming at him a dangerous weapon without due consideration."
In the instruction given upon this subject, in this case, the court virtually told the jury that the defendant could not be justified on the ground of self-defense, unless it appeared to them from the evidence "that the danger was not only impending, but was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily injury, the killing of John Boyd was necessary,” and that he had employed all reasonable means within his power and consistent with his safety to avert the necessity of taking life.” This was error.
As to the other instructions, given or refused as before stated, it is sufficient to say: A peace officer may arrest any one committing a misdemeanor in his presence, without a warrant, and, if necessary, orally summon as many persons as he deems necessary to aid him in making the arrest. In making the arrest, or in preventing an escape after the arrest, the officer or person assisting him in obedience to a summons, when resisted by the offender, is not bound to retreat, but may use such physical force as is apparently "necessary, on the one hand, to effect the arrest by overcoming the resistance he encounters, or, on the other, to subdue the efforts of the prisoner to escape; but he cannot in either case take the life of the accused, or even inflict upon him a great bodily harm, except to save his own life or to prevent a like harm to himself”: Thomas v. Kinkead, 55 Ark. 502; 29 Am. St. Rep. 68.
140 Affidavits of jurors are not admissible to show that the jury received evidence after they had retired to consider their verdict. Under the statutes of this state a juror cannot be examined to establish any ground for a new trial, except that the verdict was made by lot: Mansfield's Digest, Bec. 2298; Wilder v. State, 29 Ark, 293.
For the error indicated the judgment of the circuit court is reversed, and the cause is remanded for a new trial.
JURORS.-DISQUALIFICATION FOR EXPRESSION OF OPINION.: See the ex. tended notes to Smith v. Eames, 36 Am. Dec. 521, and Commonwealth v. Browon, 9 Am. St. Rep. 746. And see, also, State v. Sheerin, 12 Mont. 5395 33 Am. St. Rep. 600, and note.
HOMICIDE_SELF-DEFENSE. -Life may lawfully be taken in self-defense, but it must appear that he who takes it was in imminent danger of death or great bodily harm, and that no other way of escape from the danger was open to him: Commonwealth v. Breyessee, 160 Pa. St. 451; 40 Ain. St. Rep. 729, and note, with the cases collected.
HOMICIDE TO PREVENT ESCAPE OF MISDEMEANAYT.-Where one accused of a misdemeanor has been arrested and is fleeing, a peace officer is not justified in killing him to prevent his escape, although no other means of prevention are available: Thomas v. Kinkead, 55 Ark. 502; 29 Am. St. Rep. 68, and note; Handley v. State, 96 Ala. 48; 38 Am. St. Rep. 81, and note.
TRIAL-AFFIDAVIT OF JURORS TO IMPEACH VERDICT. —No affidavit, dep. osition, or other sworn statement of a juror can be received to impeach or explain a verdict, or to show on what ground it was rendered: Weather. ford v. State, 31 Tex. Cr. Rep. 530; 37 Am. St. Rep. 828, and note; but in Gordon v. Trevarthan, 13 Mont. 387, 40 Am. St. Rep. 452, it was held that in Montana the affidavit of a juror may be received to attack his verdict if such affidavit shows a resort to the determination of chance.
LEAMING V. MOMILLAN.
(59 ARKANSAS, 162.) JUDGMENTS--VACATING FOR UNAVOIDABLE CASUALTY.–The serious sick.
ness of an attorney's wife is an unavoidable casualty, excusing his nonattendance at court at the time his client's case is set for trial, and is ground for setting aside a judgment rendered at that time dismissing the action for want of prosecution, if the client has a meritorious cause of action, and has not been guilty of laches. APPLICATION to set aside a judgment dismissing the action of Thomas Darling against McMillan and Dreyfus. Darling attached the property of the defendants, and subsequently one Waterman levied an attachment on the same property. At the term of court to wbich Darling's attachment was returned, and before any answer to his complaint had been filed, Waterman was made defendant to Darling's action, and a judgment of dismissal of the action for want of appearance and prosecution was rendered against him on the motion of Waterman. Darling at this time was over eighty years of age, feeble, and unable to leave his home, and had intrusted the management of the case entirely to his attorney, who, because of the serious illness of bis own wife, was unable to attend court at the term when the judgment of dismissal was rendered. Neither Darling nor his attorney learned of this judgment of dismissal until the next term of court after it was rendered. Darling died before the term of court at which this application to set aside such judgment was heard, and Leaming, his administrator, was substituted as plaintiff. The court denied the application to set aside the judgment of dismissal and to revive the action, and Leaming appealed.
Auten & Moss, for the appellants.
164 HUGHES, J. It appears from the statement of the case that the failure of the plaintiff, Darling, to appear at the term of the court when the judgment of dismissal was rendered was caused by an unavoidable casualty, and that the nonattendance of himself and counsel was excusable under the circumstances.
In Tidwell v. Witherspoon, 18 Fla. 282, it was held that “the neglect of an attorney to prepare and file a plea, caused by his being summoned to a distant place 165 on account of the serious illness of his wife, even though he might have made arrangements with another attorney to prepare it, or might have notified his client, yet did not do so because of his anxiety for his family, is not such neglect as should operate to the prejudice of his client." And in this case the judgment by default was opened up. In McArthur v. Slauson, 60 Wis. 293, it was held that the refusal of the trial court to open a judgment obtained in the unavoidable absence of the defendant's attorney, for the purpose of allowing a defense, was error: See, also, Snell v. Iowa Homestead Co., 67 Iowa, 405; Triplett v. Scott, 5 Bush, 81. In Nye v. Swan, 42 Minn. 243, a default by reason of the sickness of an attorney was opened to allow a defense. The statute of Minnesota made this a matter of right under the circumstances.
Under the circumstances of the case at bar, there being no contention that Darling's case lacked merit, we think no laches was imputable to him, and the sickness of his attorney's wife was an unavoidable casualty, excusing his nonattendance at the court.
We therefore reverse the judgment of the circuit court, with directions to reinstate the cause, and revive it in the name of Darling's administrator.
JUDGMENTS, VACATING FOR UNAVOIDABLE CASUALTY.—That an attor. ney was prevented from attending court by the serious illness of his wife is sufficient reason for vacating a judgment taken against him: Hill v. Crump, 24 Ind. 291. Where a defendant is constructively served, but was absent from the state on account of illness that prevented his return, a default against him will be vacated: Sage v. Matheny, 14 Ind. 369. That a defendant was suffering from such a severe illness that he could not present his defense will justify the court in setting aside a judgment rendered against him: Luscomb v. Maloy, 26 Iowa, 444. To the same effect, see Bristor v. Galvin, 62 Ind. 352. See Freeman on Judgments, 3d ed., seo. 115. For a thorough discussion of the subject of vacating judgments on the ground of “mistake, surprise, or excusable neglect," see the extended note to Burnham v. Hays, 58 Am. Dec. 393; and the note to Williams v. Wescott, 14 Am. St. Rep. 296.
Hollis v. STATE.
(59 ARKANSAS, 211.) HOMESTEADS.-WIFE IS ENTITLED TO Claim a bomestead for herself and
children out of the property of her husband after he has become a fugi. tive from justice, if she and her children continue to remain on and
occupy the land. HOMESTEADS–LIABILITY FOR CogTg.-Homesteads are not subject to sale
under execution to satisfy a judgment for a fine or costs in a criminal prosecution. Crump & Watkins, for the appellant. J. P. Clarke, attorney general, for the appellee.
213 RIDDICK, J. The facts in this case are as follows: Appellant, R. J. Hollis, a married man, the head of a family, and the owner of a homestead, was convicted of murder in the second degree in the Marion circuit court, and a judge ment rendered against him for imprisonment and the costs of prosecution. After his conviction he broke jail and escaped. An execution on said judgment for costs, amounting to about eight hundred dollars, was issued against him. He was a fugitive from justice, his whereabouts unknown, but his family continued to remain and occupy the homestead. In the absence of her husband his wife filed a schedule, claiming the homestead and some personal property as ex. empt from sale under execution. The clerk of the court is. sued a supersedeas staying the execution as to the homestead. On motion of the prosecuting attorney this supersedeas was quashed by the court, and the homestead 213 ordered sold. From this order an appeal was taken.
The question for this court to determine is whether the homestead is subject to sale under such circumstances. In other words, can the wife claim a homestead for herself and children after her husband has become a fugitive from justice, and is the homestead exempt from the lien of the state for costs in a criminal prosecution?