party killing be outrageous in its nature or continuance, and beyond all proportion to the offense, it is rather to be attributed to the effect of a brutal and diabolical malignity, the genuine malice of the law, than human frailty; and therefore the crime will amount to murder in such cases, notwithstanding the provocation. United States v. Cornell,* 2 Mason, 60.

§ 694. It is no extenuation of the crime of murder that the person killing is very irritable and easily excited to the most ungovernable passion by slight provocation. Ibid.

§ 695. Where a tenant was indicted for the murder of a constable while the latter was engaged in levying a distress for rent by order of the landlord, the court was of the opinion that the jury might find a verdict of manslaughter, although they should be satisfied that the constable was not in the execution of his official duty when he was killed. United States v. Williams, 2 Cr. C. C., 458,

§ 696. Homicide in resisting an arrest substantially illegal will, at most, amount only to manslaughter. United States v. Travers,* 2 Wheeler, 490.

§ 697. Under section 5314 of the Revised Statutes, declaring that "Every captain, engineer, pilot, . . . by whose misconduct, negligence or inattention to his duties the life of any person is destroyed, . . . shall be deemed guilty of manslaughter," destruction of human life is the essence of the offense. The offender is not guilty when the misconduct or negligence occurs, but when that misconduct bears fruit by causing the death of a human being. In re Doig, 4 Fed. R., 193 (§§ 8192, 3193).

§ 698. Where, in an indictment for murder upon the high seas, the unlawfulness; wilfulness and maliciousness of the acts are charged, and the acts charged, when proved to have been done wilfully and with malice, would constitute the crime of murder under section 5339 of the Revised Statutes, and when proved to have been done unlawfully and wilfully, but without malice, would constitute manslaughter within section 5341, the prisoner may be found guilty of manslaughter only. United States v. Leonard,* 2 Fed. R., 659.

§ 699. Justifiable or excusable homicide.- Homicide is either felonious or not felonious. Homicide not felonious is either justifiable or excusable. Justifiable homicide may be committed by requirement of law or in self-defense. Excusable homicide is that which occurs by misadventure, or in self-defense under particnlar circumstances, distinguishing it from justifiable homicide from a similar motive. The homicide in self-defense which is excusable, rather than justifiable, is that whereby a man may protect himself from an assault, in the course of a sudden casual affray or quarrel, by killing him who assaults him. Felonious homicide is the killing of any human being without justification or excuse, and is either murder or manslaughter. Manslaughter is the unlawful killing of another without malice, express or implied, and it may be either voluntarily upon a sudden heat, or involuntarily, but in the commission of some unlawful act. United States v. Travers,* 2 Wheeler, 490. See $ 607–610.

$700. Where a man in the lawful pursuit of his business is assaulted, and kills the assailant, it may be manslaughter or excusab e homicide, according to the weapon used in the assault, or the danger to be apprehended; but a rightful application of force against the party killing can never be considered as an assault. Ibid.

§791. The law of self-defense is that a man may oppose force to force, in defense of his person, his family or property, against one who manifestly endeavors, by surprise or violence, to commit a felony, as murder, robbery, or the like. The intent must be to commit a felony. United States v. Wiltberger,* 3 Wash., 515.

702. Where the only object on the part of the deceased was to quell a broil, and no felony was threatened or contemplated, and the only injury or inconvenience intended, or which could under the circumstances be apprehended by the prisoner, was arrest and confinement, the killing by the prisoner of the deceased for that cause, or to prevent such a consequence, is not justifiable. United States v. Travers,* 2 Wheeler, 490.

703. Where an officer, attempting to make a legal arrest on lawful process, is resisted with such force and violence that his life is in immediate danger, he may kill his assailant, and such killing is justifiable. United States v. Jailer of Fayette County, 2 Abb.,

279.

704. If several persons advance upon a peaceable party in a threatening manner, with arms drawn, it is an assault. And if the persons so assaulted have good reason to believe, and do believe, that their lives are thereby in danger, and that it is necessary for them to shoot in self-defense, they are justified in shooting, even if they shoot first. United States v. Doyle,* 6 Saw., 612.

§ 705. Where a person makes a first attack upon another with a deadly weapon, and is killed, such homicide is not excused as being in self-defense, unless he could reasonably have avoided killing his adversary without certain and immediate danger of his life, or of great bodily injury. He need not act with the utmost coolness and deliberation, provided he did not embrace the opportunity to indulge his passion, and believed at the moment that the

only way to preserve his life or his person from great bodily harm was to inflict the mortal wound. United States v. Mingo,* 2 Curt., 1.

§ 706. A soldier employed in aiding revenue officers in raiding illicit distilleries, being in charge of a distillery just captured, and in a neighborhood known to be hostile, and being instructed to guard against surprises, shot at and killed a man approaching the distillery he was guarding. Being indicted for murder, it was held that if the defendant, at the time of the shooting, believed that the deceased, at the time of the shooting, was approaching him with hostile and felonious intent, and that in consequence he stood in peril of his life or great bodily harm, the act was justified, and the defendant must be acquitted. Georgia v. O'Grady,* 3 Woods, 496.

§ 707. A soldier, in time of peace, employed as a part of the posse of a revenue officer, has only the same rights of self-defense under the laws of a state as a private citizen. Ibid. $ 708. Where the prisoner, having been severely beaten by the deceased, fled to his master's boat, and warned the deceased that if he came on board he would shoot him, and did shoot him when he jumped on board, the court instructed the jury that, if they should believe from the evidence that the prisoner was a slave, and had the custody and command of the boat by authority of his master; and that the deceased entered upon the boat after being warned by the prisoner not to do so, and with intent to do great bodily harm to the prisoner; and after being in the boat actually assaulted the prisoner with intent to do him great bodily harm; and that the prisoner had good ground to apprehend, and did fear, that the deceased would do him great harm, and that the prisoner then killed the deceased by shooting him, such killing amounted only to excusable homicide. The court further instructed the jury that jumping on board the boat, under the above circumstances, was not an actual assault on board the vessel. United States v. Frye, 4 Cr. C. C., 539.

§ 709. — shipwreck.— Where a boat is about to go down, and it is necessary to throw some overboard in order to save the balance, the selection should be by lot if there be time. United States v. Holmes,* 1 Wall. Jr., 1. See §§ 618-622.

$710. Where occupants of a crazy boat have thrown other occupants into the sea, to preserve their own lives, the jury are to determine whether "a case of necessity" has arisen which will excuse the homicide. That the persons accused believed such a necessity to exist is not sufficient excuse. Ibid.

$711. The case does not become one "of necessity," excusing homicide, unless the ordinary means of self-preservation have been exhausted. The peril must be instant, overwhelming, leaving no alternative but to lose one's own life, or to take the life of another person. The slayer must be under no obligation to make his own safety secondary to the safety of the person destroyed. Ibid.

§ 712. Where a ship is lost, and all on board have betaken themselves to the small boats for safety, the sailors are bound to preserve the boat and the passengers. If the emergency is so extreme as to call for the sacrifice of life, the sailor owes more benevolence to the passenger than to himself. He cannot lawfully struggle with a passenger for a plank that will support but one. If there be more sailors in the boat than are necessary to manage it, the supernumerary sailors have no right to sacrifice the lives of the passengers for their own safety. Ibid.

$713. Malice presumed. Whenever the fact of killing is proved, the law presumes it to be founded in malice until the contrary appears; all circumstances relied on in justification, excuse or mitigation are to be satisfactorily proved by the prisoner, unless they arise out of the evidence produced against him. United States v. Travers,* 2 Wheeler, 490. See § 602. § 714. Dangerous weapon.— In cases of homicide upon provocation much depends upon the instrument employed, and upon the manner of chastisement. United States v. Cornell,* 2 Mason, 60. See § 148.

§ 715. Misadventure.— If one loads a gun and points it in a dangerous direction, under circumstances which make the act unlawful, and the gun is discharged accidentally and one is killed, the killing is not by misadventure. United States v. Travers,* 2 Wheeler, 490. See $613.

VIII. VIOLATION OF INTERNAL REVENUE LAWS.

[See XXVI, 5, infra. Also see REVENUE.]

SUMMARY- Not necessary to prove precise quantity of spirits removed, § 716; nor precise time of removal, § 717; nor that there was a concealment, § 718; nor that defendant was present at the time, § 719.- Failure to pay special tux; receipt has no retroactive effect, § 720.- Who a retail dealer, §§ 721, 722.

§ 716. On an indictment for fraudulent removal of a quantity of spirits it is not necessary to prove the removal of the precise quantity alleged in the indictment. It is sufficient to

prove any quantity more or less than that alleged. United States v. Nunnemacher, §§ 723See § 742.

732.

§ 717. It is not necessary to prove that the removals took place at the precise time alleged, but it is necessary to prove that the removals were about that time, so that it may be plain that the proof is not of some other transaction than that alleged. Ibid.

§ 718. It is sufficient to insure a conviction that it be shown that there was such a removal, without showing any concealment. Ibid.

§ 719. It is not necessary to show that the defendant was actually present at the time of removal. It is sufficient if it be shown that with guilty knowledge or intent he did the act himself, or jointly with others, or that he instigated, encouraged, incited, advised, procured or assisted in the removal. Ibid.

720. The revenue law (14 Stat. at Large, 112) provides "that any person who shall exercise or carry on any trade, business or profession, or do any act hereinafter mentioned, for the exercising, carrying on or doing of which a special tax is imposed by law, without payment thereof as in that behalf required, shall, for every such offense, besides being liable to the payment of the tax, be subject to imprisonment for a term not exceeding two years, or a fine not exceeding $500, or both." Under this section a receipt for the special tax can have no retrospective effect. One selling liquor without a license cannot blot out the offense by afterwards paying the special tax. He is also liable for selling after his license expires, although he sells only liquors bought before the expiration of the license. United States v. Angell, $ 733-737. See $$ 788. 775.

§ 721. One who purchases a barrel of liquor in his own name, although with the money of others for whom he purchases, and parcels it out to them as they desire, is a retail dealer, and liable if he has no license. Ibid. See § 770.

§ 722. Where congress has by statute declared what shall constitute a retail dealer in liquois, an instruction, on the trial of an indictment for retailing liquor without a license, which defines who is, and who is not, a retail dealer, in the language of the statute, is proper. Ibid.

[NOTES.- Sce § 738-790.]

UNITED STATES v. NUNNEMACHER.

(Circuit Court for Wisconsin: 7 Bissell, 111-12. 1876.)

Charge by DYER, J.

STATEMENT OF FACTS.- The indictment in this case contains four counts. The substance of the first count is, that on the 18th day of December, 1874, the defendant on trial, Jacob Nunnemacher, and the other persons named in the indictment, removed and aided in the removal of three thousand five hundred proof gallons of distilled spirits, on which the tax then due and owing to the United States, and required by law to be paid, had not been paid, from the distillery of the defendant Christian Guenther to the place of business of the defendant August Hauske, and to a place other than the distillery warehouse of the said Christian Guenther, and concealed and aided in the concealment of these spirits.

The second count is like the first, except that the time of alleged removal and concealment of spirits is therein named as the 21st day of December, 1874, the quantity of spirits then alleged to have been removed is stated to be three thousand proof gallons, and the place to which and where they are alleged to have been removed and concealed is stated to be a railroad car in the city of Milwaukee.

The third count is like those that precede it, except that concealment is not charged, and except that the time of alleged removal of spirits is therein named as the 23d day of April, 1875; a railway car in the city of Milwaukee is the place to which these spirits are alleged to have been removed, and the quantity of such spirits is said to be three thousand five hundred proof gallons.

The fourth count charges that on the 18th day of December, 1874, the defendants named in the indictment, including the defendant Jacob Nunne

macher, conspired together by producing and distilling large quantities of distilled spirits at the distillery of Christian Guenther, and to transport and remove the same from the distillery out of this collection district, without payment of the taxes required by law to be paid on distilled spirits, unlawfully to defraud the United States of the tax on said spirits; and as acts charged to have been done, to carry out the purpose of the conspiracy, it is alleged that, on different days named in the count, the defendants produced and distilled at the distillery of Christian Guenther various quantities of spirits which are enumerated, and did not pay the tax thereon required by law to be paid, and removed such spirits from said distillery to a place and to places other than the distillery warehouse provided by law. This is distinguished from the other counts, as the conspiracy count, in this indictment.

The first three counts are based on section 3296 of the Revised Statutes, which provides that "whenever any person removes or aids or abets in the removal of any distilled spirits on which the tax has not been paid, to a place other than the distillery warehouse provided by law, or conceals or aids in the concealment of any spirits so removed," he shall be liable to certain penalties. The fourth count is based upon section 5440 of the statutes, which provides that "if two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable" to certain penalties.

Both in the testimony and the arguments of counsel you have been informed, not only of the different processes involved in the distillation of spirits, but also of many of the requirements of law that must be regarded in carrying on the business. Among those requirements is one to the effect that there shall be a distillery warehouse connected with every distillery, where all spirits manufactured at the distillery shall be deposited and kept under the charge of a government officer, until the tax thereon has been paid and until it may be lawfully removed therefrom for sale or other disposition; and it is, as we have seen from a statutory provision I have quoted, an offense for any person to remove or aid in the removal of any distilled spirits upon which the tax has not been paid, to a place other than the distillery warehouse provided by law. §723. What must necessarily be established to support an indictment charging a defendant with having removed spirits from a distillery to a place other than a distillery warehouse.

To establish the offenses charged in the first three counts in this indictment, as against the defendant on trial, it must be shown: As to the first count, that on the 18th day of December, 1874, or at about that time, there were spirits at the distillery in question upon which the government tax had not been paid; that they were removed to the place of business of August Hauske, or after such removal were there concealed; that this was a place other than a distillery warehouse provided for or authorized by law; and that the defendant. removed, or concealed after removal, or aided in or abetted the removal or concealment of, such spirits.

As to the second count, the same state of facts must be shown, except that the alleged removal or concealment of spirits must be proved to have taken place on the 21st day of December, 1874, or about that time; that the alleged removal was made to a place other than a distillery warehouse in the city of Milwaukee; and that the place of concealment was a railway car. As to

the third count, again the same state of facts must be shown, except that the alleged removal of spirits must be proved to have taken place on or about the 23d day of April, 1875, and that the place to which the spirits were removed, if at all, was a railway car in the city of Milwaukee. Concealment, as I have stated, is not alleged in this count. The offense here charged is simply the act of removal.

$724.

proof of the removal of any quantity, whether less or more than

is alleged, upon which no tax has been paid, is sufficient.

In each of these counts particular quantities of spirits are alleged to have been removed as in the first, three thousand five hundred proof gallons, in the second three thousand proof gallons, and the third three thousand five hundred proof gallons. Nevertheless, it is not necessary to prove that these precise quantities were so removed. So far as quantity is concerned, proof of any quantity removed, less or more than is alleged, upon which the tax had not been paid, is sufficient. You will bear in mind that it is essential that it be proved that the spirits, if any, removed or concealed as alleged in the first and second counts, and removed as alleged in the third count, were spirits upon which the government tax had not been paid, that the places of removal and concealment were as alleged, and that the defendant Jacob Nunnemacher was a party to or aided in or abetted the commission of the acts charged.

$ 725.- as to the particular time of removal, it is necessary at least to prove that the illegal removal took place at or about the time stated.

Particular times of removal, and removal and concealment of spirits, are alleged in these three counts. It is not, however, indispensable that the prosecution prove that these alleged transactions took place at the precise times stated. If it be shown that the removal of spirits alleged in any one of these counts, or the concealment of spirits alleged in the first and second counts, were made at or about the time therein stated, this is sufficient. The time to be proved must be at or about or near the time stated, so that it may be plain that the proof is not of some other transaction than that alleged. Evidence has been introduced tending to show removals of spirits from the distillery mentioned, to places other than the distillery warehouse, at periods considerably anterior and even several years prior to the times stated in either of these three counts in the indictment. Concerning this evidence, I have to say that it was only permitted to be given in support of the fourth or conspiracy count in the indictment, and that evidence is not to be considered by you as at all bearing upon the first three counts or either of them. Evidence of removals of spirits in previous years would not support the allegations in either of those counts. To use it for such purpose would be to accept proof of one offense to convict of a different offense, and this could not be permitted. Conviction on either of the first three counts must be of the specific offense therein charged, and the evidence to establish such offense must be of the transaction or transactions alleged and occurring at or about the time stated.

§ 726. It is not necessary to prove a concealment of the spirits after illegal removal.

I have said that to convict this defendant on either of these counts it must be shown that he was a party to, or aided in, or abetted the commission of, one or more of the acts charged. In this connection I may say that, although the first two counts allege both removal and concealment, if it be proved that the defendant removed, or aided in or abetted the removal from the distillery, of spirits upon which the tax had not been paid, to the place or places stated, at