Page:Federal Reporter, 1st Series, Volume 3.djvu/138

 BTATB V. FOST. 131 �the ootton field, and, at the very furthermost, not more than ten steps from where he had stood whan he fired his last shot at the revenue party. The strip of underbrush from which the party in ambush fired was not more than 10 or 15 steps wide, and filled the space between the road, in -which the rev- enue party was moving, and the fence. Into this narrow strip of underbrush, where their assailants were hiding in ambush, the revenue officers, to the number of 8 or 10, fired their guns. Eatteree was hit and found in the fence corner. Jones was hit as he turned to retreat af ter firing his last shot. He was bleeding from his wound when he reached the fence. The whole thing occupied only a few seconds. �If Jones had been found dead in the underbrush, or any- where outside the fence, it seems to me that the charge of murder against the revenue officers would have been prepos- terous. The fact that after reoeiving the fatal shot he ran between one and two hundred yards does not change the case. No shot fired at him after he crossed the fence took effect upon his person. If the shots fired while he was crossing the field did not hit him, the persons firing them may, by that act, be guilty of some offence, but it certainly is neither mur- der nor manslaughter. An attempt was made to show that if Jones had been shot in the ambush it would not have been possible for him to run the distance he did before he fell and died. This attempt, in my judgment, signally faûed. The proof that Jones was shot in the ambush is perfeetly oon- clusive, and outweighs any theory based on facts which are not shown to exist. �The case, then, is this : Jones was fatally shot by a party of revenue officers, standing in the highway, while he and his comrades were in ambush and firing from cover on the rev- enue posse. The facts, in my judgment, so far from showing that there is cause to suspect the revenue officers of the crime of murder, show conelusively that they acted in self-defence/ and that the homicide was justifiable. It bas been claimed by the prosecution that the arrest of Eoss by the retenue offi- cers was unwarranted and without authority. If this be con- ceded, yet his arrest was no concem of Jones and Eatteree ����