Page:Federal Reporter, 1st Series, Volume 5.djvu/708

 696 FEDERAL REPORTER. �with drawn pistols, aimed at Clark, Crow, and Hart, they committed an assault which was a breach of the peace — was a breach of the law; and if they did it in such a way that Hart and Crow, or a reasonable man in their position, would have good reason to believe, and should believe, that their lives were in danger, and that it was necessary for them to shoot in self-defence, they would be justified by the law in shooting, even if they shot first. A man who is attacked, who is assaulted with a deadly weapon, who is in danger of being instantly shot down, is not bound to wait until he is shot himself. Then if Hart did shoot first it does not afîect the question, provided he was in such position that the law would justify him in shooting; whether he was in such dan- gerous position or not, is a question for you to determine f rom ail the evidence in this case. Now, then, whoever it was that provoked that contest, whoever it was that was the assaulting party under such circumstances as placed the other party so assaulted in a position that justified him in shooting to de- fend himself, that party so assaulting is the one upon whose skirts the blood of those seven men who were killed rests, even if the party thus assaulted was the first to fire. Who it is I do not know. It is for you, not me, to determine from thô testimony. If, however, they made this assault in a threatening manner, in the way that I have indicated, before any action upon the part of Hart or Crow, whatever Hart or Crow's internai unmanifested intention may have been, if the defendants thus did it, they were the assaulting party, and it was a continuation of the obstruction and resistance before commenced to the execution of the writ by, the marshal. These things ail occurred in a very few seconds. The testi- mony of ail the witnesses is to that effect. The marshal tes- tifies that it was ail over before he succeeded in getting from the ground upon which he had been thrown by the rushing horsemen, and getting the dust out of his eyes so that he could see. �Gentlemen, you are to determine whether that was also a continuance of a resistance which had before already begun and been perfected suf&ciently within the law or not. Imme- ����