Brown v. United States, No. 103

CourtUnited States Supreme Court
Writing for the CourtHOLMES
Citation256 U.S. 335,65 L.Ed. 961,18 A.L.R. 1276,41 S.Ct. 501
Docket NumberNo. 103
Decision Date16 May 1921

256 U.S. 335
41 S.Ct. 501
65 L.Ed. 961



No. 103.
Argued Nov. 19, 1920.
Decided May 16, 1921.

Page 336

Messrs. James R. Dougherty, of Beeville, Tex., E. C. Brandenburg, of Washington, D. C., and W. E. Pope, of Corpus Christi, Tex., for petitioner.

[Argument of Counsel from page 336-337 intentionally omitted]

Page 337

Mr. Assistant Attorney General Stewart, for the United States.

[Argument of Counsel from pages 337-341 intentionally omitted]

Page 341

Mr. Justice HOLMES delivered the opinion of the Court.

The petitioner was convicted of murder in the second degree committed upon one Hermis at a place in Texas within the exclusive jurisdiction of the United States, and the judgment was affirmed by the Circuit Court of Appeals. 257 Fed. 46, 168 C. C. A. 258. A writ of certiorari was granted by this Court. 250 U. S. 637, 39 Sup. Ct. 494, 63 L. Ed. 1183. Two questions are raised. The first is whether the indictment is sufficient, inasmuch as it does not allege that the place of the homicide was acquired by the United States 'for the erection of a fort, magazine, arsenal, dockyard, or other needful building,' although it does allege that it was acquired from the State of Texas by the United States for the exclusive use of the United States for its public purposes and was under the exclusive jurisdiction of the same. Penal Code of March 4, 1909, c. 321, § 272, Third; 35 Stat. 1088 (Comp. St. § 10445);

Page 342

Constitution, art. 1, § 8. In view of our opinion upon the second point we think it unnecessary to do more than to refer to the discussion in the Court below upon this.

The other question concerns the instructions at the trial. There had been trouble between Hermis and the defendant for a long time. There was evidence that Hermis had twice assaulted the defendant with a knife and had made threats communicated to the defendant that the next time, one of them would go off in a black box. On the day in question the defendant was at the place above mentioned superintending excavation work for a postoffice. In view of Hermis's threats he had taken a pistol with him and had laid it in his coat upon a dump. Hermis was driven up by a witness, in a cart to be loaded, and the defendant said that certain earth was not to be removed, whereupon Hermis came toward him, the defendant says, with a knife. The defendant retreated some twenty or twenty-five feet to where his coat was and got his pistol. Hermis was striking at him and the defendant fired four shots and killed him. The judge instructed the jury among other things that 'it is necessary to remember, in considering the question of self defence, that the party assaulted is always under the obligation to retreat so long as retreat is open to him, provided that he can do so without subjecting himself to the danger of death or great bodily harm.' The instruction was reinforced by the further intimation that unless 'retreat would have appeared to a man of reasonable prudence, in the position of the defendant, as involving danger of death or serious bodily harm' the defendant was not...

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150 practice notes
  • Townsend v. United States, No. 6928.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 7, 1938
    ...the killing of a human being, because of imminent danger of death or of great bodily harm either to the killer (Brown v. United States, 256 U.S. 335, 41 S.Ct. 501, 65 L.Ed. 961, 18 A.L.R. 1276) or to a member of his family (People v. Forte, 269 Ill. 505, 110 N.E. 47, L.R.A.1916B, 924), or i......
  • State v. Johnson, Appeal No. 2018AP2318-CR
    • United States
    • Court of Appeals of Wisconsin
    • July 8, 2020
    ...Oliver Wendell Holmes, Jr.: "Detached reflection cannot be demanded in the presence of an uplifted knife." Brown v. United States , 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961 (1921). It was for the members of the jury—bringing whatever real world experiences they might have—to consider t......
  • Henderickson v. Warden Lebanon Corr. Inst., Case No. 2:10-cv-1084
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • November 2, 2011
    ...The exigency of that situation does not require analytical precision. To paraphrase Justice Holmes in Brown v. United States (1921), 256 U.S. 335, 65 L.Ed.2d 961, detached reflection in the presence of deadly force is an unreasonable demand. However, we do not impose such an unreasonable st......
  • State v. Hall, No. 5398
    • United States
    • Appellate Court of Connecticut
    • February 21, 1989
    ...whether the trial court erred in rejecting the defendant's requested instruction on self-defense that was based on Brown v. United States, 256 U.S. 335, 41 S.Ct.[17 Conn.App. 516] 501, 65 L.Ed. 961 (1921). 6 In this regard, we conclude, for the purposes of the new trial, that the trial cour......
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149 cases
  • Ray v. Wal-Mart Stores, Inc., 20130940.
    • United States
    • Supreme Court of Utah
    • September 17, 2015
    ...with all others in order to determine whether the defendant went farther than he was justified in doing.” Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961 (1921). But the law “has tended in the direction of rules consistent with human nature,” and therefore for purposes......
  • State v. DeJesus
    • United States
    • Supreme Court of Connecticut
    • September 4, 1984
    ...follows closely upon any incapacitating force as long as the defendant believes that he is fighting for his life. Brown v. United States, 256 U.S. 335, 344, 41 S.Ct. 501, 502, 65 L.Ed. 961 (1921); Perry v. United States, 422 F.2d 697 (D.C.Cir.1969); Inge v. United States, 356 F.2d 345 (D.C.......
  • State v. Kelly
    • United States
    • United States State Supreme Court (New Jersey)
    • July 24, 1984
    ..."Detached reflection cannot be demanded in the presence of an uplifted knife," Justice Holmes aptly said, Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, 963 (1921); and the law accordingly requires only a reasonable, not necessarily a correct, judgment. See Stat......
  • United States v. Bink, C-16937.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • September 30, 1947 confusing. See United States v. Cornell, Fed.Cas.No.14,868; Brown v. United States, 5 Cir., 257 F. 46, reversed on other grounds, 256 U.S. 335, 41 S.Ct. 501, 65 L.Ed. 961, 18 A.L.R. 6 The illuminating opinion of Judge Charles E. Clark in Weinberg v. United States, 2 Cir., 126 F.2d 1004, ......
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1 books & journal articles
  • The State of the Castle
    • United States
    • Criminal Justice Review Nbr. 34-4, December 2009
    • December 1, 2009
    ...R. M. (1991). No duty to retreat: Violence and values in American history and society. New York: Oxford University Press.Brown v. State, 256 U.S. 335 (1921).Cannon v. State, 464 So. 2d 149 (1985).Casenote. (1904). Homicide. Self-defense. Necessity of retreat. Yale Law Journal, 13, 398-399.C......

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