of assault with intent to murder in jurisdictions where a homicide committed under such circumstances would be manslaughter.17

§ 432. Acts constituting aggression or provocation. To constitute provoking the difficulty the party must do something to provoke it. A mere purpose and intent to provoke it is not enough.18 Nor is the right of self-defense lost by seeking another for the purpose of an explanation merely.19

Generally speaking, mere opprobrious or abusive language does not make the person using it the aggressor in a resulting difficulty. 20 But some courts have held to the contrary,21 especially in states where the statute makes the use of insulting language a justification for an assault.22 Even under the latter rule, however, the mere fact that a person answers one verbal insult or abusive epithet with another does not deprive him of the right of self-defense, provided he does not fight willingly or by his voluntary consent.23 Nor will opprobrious or abusive language have that effect where the person using it did not see the other party to the encounter when he used it, and did not know that he was within hearing.24

An adulterer has no right to defend himself against an attack by

17 Thompson v. State, 85 Tex. Cr. 144, 210 S. W. 800; Solis v. State, 76 Tex. Cr. 230, 174 S. W. 343; Carter v. State, 28 Tex. App. 355, 13 S. W.

147.

That a homicide under such circumstances is manslaughter and not murder, see § 718, infra.

18 Price v. State, 46 Tex. Cr. 80, 79 S. W. 540. And see § 715 et seq., infra.

19 Ward v. Com., 31 Ky. L. Rep. 807, 103 S. W. 719; Parish v. State, 69 Tex. Cr. 254, 153 S. W. 327.

20 Wicker v. State, 107 Miss. 690, 65 So. 885; State v. Gamble, 119 Mo. 427, 24 S. W. 1030; Smith v. State, 8 Lea (76 Tenn.) 402.

Since under the Georgia statute opprobrious words will not justify a felonious assault, the use of them will not take away the right of selfdefense against such an assault. Fussell v. State, 94 Ga. 78, 19 S. E. 891. And see § 717, infra.

21 Shoemaker v. State, 71 Tex. Cr. 445, 160 S. W. 356; Rogers v. State, 71 Tex. Cr. 271, 159 S. W. 44; Nickerson v. State, 69 Tex. Cr. 659, 154 S. W. 992; Shaw v. State (Tex. Cr.), 73 S. W. 1046; State v. McConaghy, 84 Wash. 168, 146 Pac. 396.

Where the language is calculated to cause a breach of the peace. State v. Lawhorn, 88 N. C. 634. And see § 717, infra.

22 Johnson v. State, 136 Ala. 76, 34 So. 209; Howell v. State, 79 Ala. 283; Brown v. State, 74 Ala. 42.

The effect of the Alabama statute is to make abusive language legally tantamount to an assault, against which the party abused may defend himself by a blow, within the discretion of the jury. Brown v. State, 74 Ala. 42.

As to such statutes, see § 440, infra. 23 Howell v. State, 79 Ala. 283.

24 Harrison v. State (Tex. Cr.), 102 S. W. 412.

the woman's husband, by using a deadly weapon.25 And a trespasser has no right of self-defense as against the owner of property who is using such force against him as is necessary to protect the same,26 or to eject him.27 But the fact that one is a trespasser does not deprive him of the right of self-defense, where the owner uses excessive force in attempting to eject him.28

§ 433. Duty to retreat. According to the weight of authority, a person who is assaulted by another, without fault on his part, is not bound to retreat before resorting to measures of self-defense short of taking life or inflicting great bodily harm.29 But there are. some holdings to the effect that he must retreat if he can safely do so,3 30

especially before resorting to the use of a deadly weapon.31 And a person who is himself at fault in bringing on the difficulty cannot invoke the doctrine of self-defense until after he has in good faith withdrawn from the conflict.32 In no jurisdiction, however, is a person bound to retreat when attacked in his own dwelling house.33

§ 434. Resisting arrest. A person is guilty of an assault if he resists a lawful arrest with violence, provided he knows or is notified. that the person attempting to arrest him is an officer.34 But a person who has no such notice or knowledge may resist even a legal arrest without being guilty of an assault, provided he uses no more force than is apparently reasonably necessary to prevent it.35 And if an officer uses more force than is reasonably necessary to make a legal arrest, the person arrested may in self-defense use so much force as is necessary on his part to repel it.36

Generally speaking, a person has a right to use such force as is reasonably necessary to resist his unlawful arrest by an officer,37 or a

32 See § 431, supra. 33 Jacobs v. State, 146 Ala. 103, 42 So. 70; State v. Mills, 6 Pennew. (Del.) 497, 69 Atl. 841; State V. Cessna, 170 Iowa 726, 153 N. W. 194. Ann. Cas. 1917 D 289. And see § 711 et seq., infra.

34 California. People v. Craig, 152 Cal. 42, 91 Pac. 997; People v. Nihell, 144 Cal. 200, 77 Pac. 916.

Delaware. State v. Wyatt, 4 Boyce 473, 89 Atl. 217.

Georgia. Chastain v. State, 3 Ga. App. 448, 60 S. E. 112.

Indiana. Gross v. State, 186 Ind. 581, 117 N. E. 562, 1 A. L. R. 1151. Massachusetts. Com. v. Cooley, 6 Gray 350.

Missouri. State v. Fuller, 96 Mo. 165, 9 S. W. 583.

State v. Belk, 76 N. C. 10.

36 State v. Wyatt, 4 Boyce (Del.) 473, 89 Atl. 217; Holmes v. State, 5 Ga. App. 166, 62 S. E. 716; Plummer v. State, 135 Ind. 308, 34 N. E. 968; Roberson v. United States, 4 Okla. Cr. 336, 111 Pac. 984.

37 California. People v. Craig, 152 Cal. 42, 91 Pac. 997.

Florida. Roberson v. State, 43 Fla. 156, 29 So. 535, 52 L. R. A. 751.

Georgia. Shubert v. State, 127 Ga. 42, 55 S. E. 1045; Harris v. State, 21 Ga. App. 792, 95 S. E. 268; Dorsey v. State, 7 Ga. App. 366, 66 S. E. 1096; Holmes v. State, 5 Ga. App. 166, 62 S. E. 716.

Indiana. Gross v. State, 186 Ind. 581, 117 N. E. 562, 1 A. L. R. 1151. Iowa. State v. Row, 81 Iowa 138, 46 N. W. 872. Massachusetts. Com. v. Wright, 158 Mass. 149, 33 N. E. 82, 19 L. R. A. 206, 35 Am. St. Rep. 475; Com. v. Ruggles, 6 Allen 588; Com. v. Cooley, 6 Gray 350.

North Carolina. State v. Belk, 76 N. C. 10.

private citizen,38 or to free himself from such an unlawful arrest.39 Even where there is a right to resist, the person resisting is guilty of an assault if he uses more force than is reasonably necessary, or apparently reasonably necessary, 40 or if he assaults the officer wantonly and maliciously, and not for the purpose of preventing the arrest or releasing himself from it. As a rule a person has no right to use or offer to use a deadly weapon if he has no reason to apprehend a greater injury than a mere unlawful arrest.42 But he may use such a weapon in resisting an arrest attempted to be made without lawful

Tennessee. Galvin V. State, 6 Coldw. (46 Tenn.) 283.

Texas. Nickerson v. State, 69 Tex. Cr. 659, 154 S. W. 992; Williams v. State, 64 Tex. Cr. 491, 142 S. W. 899; Miller v. State, 31 Tex. Cr. 609, 21 S. W. 925, 37 Am. St. Rep. 836; Alford v. State, 8 Tex. App. 545.

Vermont. State v. Hooker, 17 Vt.

658.

West Virginia. State v. Gum, 68 W. Va. 105, 69 S. E. 463, 33 L. R. A. (N. S.) 150; State v. Clark, 64 W. Va. 625, 63 S. E. 402.

As to homicide in resisting an unlawful arrest, see § 702, infra.

38 California. People v. Denby, 108 Cal. 54, 40 Pac. 1051.

Georgia.

Holmes v. State, 5 Ga.

App. 166, 62 S. E. 716.
Mississippi. Spradley v. State, 80
Miss. 82, 31 So. 534.

North Carolina. State v. Allen, 166
N. C. 265, 80 S. E. 1075.

Texas. Russell v. State, 37 Tex. Cr. 314, 39 S. W. 674; Alford v. State, 8 Tex. App. 545.

By one who is not an officer de facto or de jure. Brown v. State, 43 Tex. Cr. 411, 66 S. W. 547.

39 People v. Denby, 108 Cal. 54, 40 Pac. 1051; Holmes v. State, 5 Ga. App. 166, 62 S. E. 716; State v. Allen, 166 N. C. 265, 80 S. E. 1075; Williams v. State, 64 Tex. Cr. 491, 142 S. W. 899; Alford v. State, 8 Tex. App. 545. 40 Delaware. State v. Wyatt, 4 Boyce 473, 89 Atl. 217.

Florida. Roberson v. State, 43 Fla. 156, 29 So. 535, 52 L. R. A. 751. Georgia. Harris v. State, 21 Ga. App. 792, 95 S. E. 268.

Iowa. State v. Row, 81 Iowa 138, 46 N. W. 872.

Massachusetts. Com. v. Wright, 158 Mass. 149, 33 N. E. 82, 19 L. R. A. 206, 35 Am. St. Rep. 475.

North Carolina. State v. Hedrick, 95 N. C. 624.

Tennessee. Galvin v. State, 6 Cold.

283.

Texas. Miller v. State, 31 Tex. Cr. 609, 21 S. W. 925, 37 Am. St. Rep. 836; Alford v. State, 8 Tex. App. 545.

West Virginia. State v. Gum, 68 W. Va. 105, 69 S. E. 463, 33 L. R. A. (N. S.) 150; State v. Clark, 64 W. Va. 625, 63 S. E. 402.

41 Nickerson v. State, 69 Tex. Cr. 659, 154 S. W. 992.

42 California. People v. Seeley, 39 Cal. App. 586, 179 Pac. 541.

Florida. Roberson v. State, 43 Fla. 156, 29 So. 535, 52 L. R. A. 751.

Iowa. State v. Row, 81 Iowa 138, 46 N. W. 872.

Oklahoma. Clark v. State (Okla. Cr.), 106 Pac. 803.

or by the use of excessive force,44 or where he believes on reasonable grounds that the officer is not acting in good faith, but is using his position to gratify personal feeling against him,45 when its use is apparently reasonably necessary to defend himself from death or great bodily harm. And a person who assaults an officer with a deadly weapon in the heat of passion aroused by an attempted illegal arrest cannot be convicted of an assault with intent to murder.46 Before the person attempted to be arrested is justified in using physical force, in any case, the officer must have made some physical attempt to effect the arrest. His mere statement that he has a warrant for a person's arrest, and that he must consider himself under arrest, is not enough.47