The Charlotte News

Saturday, January 22, 1938

FIVE EDITORIALS

Site Ed. Note: "Out-Faced" and the other two editorials of this date (which we now believe confidently were by Cash and so have removed the previously assigned asterisks) were part of the original upload of the site in December, 1998. Now, however, we discover that we left in a major transcription error when the dictation software slipped our proof-reading notice and deposited a whole clause and two sentences of the second paragraph, starting with "...though it caused their annihilation...", into the last paragraph, changing thereby the sense of the piece. So, we break our otherwise firm rule for about the second time only and correct that which was here originally, to accord the proper text. You may now read it afresh, again and for the first time, assured that you are now reading with perfect sense. And not to be out-faced, we duly and humbly apologize for the transcription error of nine years ago.

"Comfort for the Chivalrous", so that you won't become unduly lost and confused, is written in irony. Because of the recent erroneous application of "self-defense" doctrine where the would-be attacker was nevertheless in full retreat, shot in the back, sarcasm had come creeping into the column's examination of homicide cases of late. But in the instant case, it would appear that the man in question did in fact enjoy the right of self-defense. For it is based on a reasonable belief that the need for defense of self or others is present in the face of apparent imminent assault. It is entirely circumstance dependent, and the jury must determine what is reasonable under the circumstances of the moment: whether the defendant reasonably apprehended an immediate assault. If the would-be attacker appears to the reasonable person to have been in retreat, the right ceases. That analysis concluded to the defendant's benefit, the jury must then examine the degree of force used to repel the assault by looking at what the defendant reasonably apprehended as the force necessary to ward off the attack. (In some jurisdictions, the question must also be examined as to whether the defendant properly retreated to the wall, before using deadly force; in other jurisdictions, the defendant is allowed to stand one's ground, regardless of initial attempts to retreat from the attacker.) If the force of the assailant reasonably appeared deadly, deadly force generally could be used to repel the attack. If less than deadly force appeared, then only like force might be used to thwart it. The answer to this latter question is often more thorny than the first.

If a person approaches with a baseball bat in hand, raised and clutched in bellicose fashion, gritting teeth, and making remarks, such as, "I'm about to knock me a homer, Homer, and your head looks like the ball to me," then the defendant likely would be deemed able to resort to deadly force to repel the attack, assuming he didn't first have the duty to retreat to the extent reasonably open to him.

But, if the bat is poised restfully on the shoulder, and the would-be assailant says, "Hi ye, I'd be heading out to do some batting practice here directly; care to join me?" the while grinning a friendly Jack Grady grin, well, you have a very close case then. Better not cut his hands off just yet, Windy.

If, on the other hand, a person sees in the night a figure approaching out of the dark with an arm raised and it appears, by the shadow on the wall, to be a knife in the hand of the would-be assailant who the defendant, awakened from a sound sleep, takes for an intruder, lunges for the gun on the bedstand, blindly fires, killing the apparent knife-wielder, the jury might reasonably find the matter to be one of proper self-defense, even though in fact it was Jack approaching the bed with a beefstick in hand, having had the sudden urge for a snack in the middle of the night, unknown to Windy who was sound asleep at the time of departure from dream land. But that is only applicable should the jury believe Windy's explanation. If it turns out, by the young lad's testimony, that pop had a habit of grabbing a beefstick almost every night as the boy had seen his dad do so many times, and that ma was well aware of the practice, as she regularly complained in front of the lad about the beefstick snacking each morning after, then Windy has a problem.

Or, if upon careful courtroom re-creation of the described scene, and that photographed by the crime lab detail, there would be no way for a shadow as that described by Windy to have appeared on the wall, as the flowers by the deck of cards missing the Jack of Diamonds would have obscured it, and that, furthermore, even if observable as such, the shadow imagery of Jack's beefstick bore no resemblance to a knife in hand, more like a bunny rabbit, then again Windy's precious little neck would appear headed for a date at midnight with the creaking gallows, or at least Tehachapi (even though no longer a women's prison).

Moral: Beware guns on the nightstand and midnight snacks, as well anyone who grew up watching Alfred Hitchcock.

In Federal court here last Thursday, Mr. Oswald Ryan, counsel for the Federal Power Commission, delivered himself to the effect that the "impression which exists in some minds" that the Federal Power Act represents an encroachment of the Federal authority on the rights of the States, is all a very nonsensical error.

Said he:

Well, we aren't prepared to argue it, not being too familiar with the exact terms of the power act. Maybe John C. Calhoun actually could have written it. But about the administration of the act by the present power commission we shall not be so humble and acquiescent. Looking at the decision of that commission that the Carolina Aluminum Company can build its $6,000,000 dam at Tuckertown only under Federal license, on the fictional ground that the Pee Dee, into which the Yadkin flows, is a navigable river--looking at that, we are pretty certain, that, if John C. Calhoun could have written the act, he never could have administered it so--never for a moment would have agreed to its being administered so. And we think we've got Counsel Ryan dead to rights there, have we not?

We were beginning to think that maybe North Carolina was going to come out of the ranks of the gallant states. Judge Grady had, indeed, behaved most gallantly toward comely Mrs. Sina Pope Godwin, but then the state rose up its legs and made such an indignant uproar about it that the Judge had to be reversed and Mrs. Godwin taken off instead to work in the convict's laundry.

But the champions of gallantry, we see from the Hartle decision at Winston-Salem, need not despair. There was, to be sure, some question of self-defense in the trial of the 63-year-old grocer, but there was no evidence that the man he killed was running desperately away or that he was shot in the back. On the contrary, Hartle himself testified that he killed as the fellow advanced, face forward, out of a darkened room. So, his attorneys seem to have concluded cannily that, under the American rules of self-defense established in the Garr case in Kentucky and in others, the case for the argument was pretty weak, and that it would be best to confine themselves mainly to the "unwritten law." And it was on that basis, apparently that the jury reached its verdict.

"We done," explained a juror succinctly, "what we thought was right." Okay. But what they done, nevertheless, was not in accord with the law as written. And so, as we say, the champions of gallantry plainly need not despair. There is a lot of vitality in the old tradition yet.

Site Ed. Note: The rest of the page chivalrously defends itself, and others, here.