Page:Federal Reporter, 1st Series, Volume 3.djvu/140

 STATE V. PORT. 133 �the payment of stale and county tax. For a citizen to fire npon them while in the discharge of their duty was as heinous an offence against law as it would have been to fire upon the tax collector of the county to prevent him from enforcing the pay- ment of the county tax. These revenue oiScers knew their peril. They knew that they went to the discharge of their duty with their lives in their hands. They went armed, so as to resist unlawf ul violence. They were compelled at every hait to station pickets to prevent surprise. They were sober men. The testimony is that their orders were that not a drop of ardent spirits should be drunk by the party while on the ex- pedition, and that the orders were obeyed. They proceeded in the discharge of their perilous duty cautiously and lawfnlly. Their guns were carried empty until occasion arose for their
 * 6. They were twiee fired on from ambush while traveling

the highway by concealed assailante, whose numbers they oould not and did not know, standing in the public road, upon the property of the public, where they had a right to be, and where their duty required them to be. They returned the fire of their assailants, aiming generally at those points in th» thicket where they saw the smoke of their assailants' guns. This fire wounded slightly one of the men in ambush, and wounded fatally another, and for this act the court is asked to say that there is probable cause to believe that these officers were guilty of the crime of murder. I am not of that opinion. In my judgment, they fired the shot by which the unfortunate and misgaided Jones was killed strictly in self-defence. They onght, therefore, to be discharged from custody, and it is s* erdered. ����