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506 X. AMERICAN STATE TRIALS.

nay, while soldiers are in the immediate service of the king,
and the regular discharge of their duty, they rather come
within the reason of civil officers and their assistants, and 50
are alike under the peculiar protection of the law.
If you are satisfied upon the evidence, that Killroy killed
- Gray, you will then inquire, whether it was justifiable, excusa-
ble, or felonious homicide, and if the latter, whether it was
with or without malice. If the attack was upon the party of
soldiers in general, and in the manner I have just mentioned,
as some of the witnesses say it was, it is equally an assault
upon ali, whether all were in fact struck, or not, and makes no
material difference, as to their respective right of firing; for
aman is not obliged to wait until he is killed, or struck, before
he makes use of the necessary means of self-defense. If the
blows with clubs were, by an enraged multitude, aimed at the
party in general, each one might reasonably think his own
life in danger; for though he escaped the first blow, he might
reasonably expect more would follow, and could have no assur-
ance that he should be so fortunate as to escape all of them.
Therefore, I do not see but that Killroy is upon the same
footing with Montgomery; and your verdict must be the same
as to both, unless what Hemmingway swears Killroy said, or
the affray at the rope-walks, or both, materially vary the case.
Hemmingway swears, that he and Killroy were talking about
the town’s people and the soldiers, and that Killroy said, ‘‘He
never would miss an opportunity, when he kad one, to fire on
the inhabitants; that he had wanted to have an opportunity,
ever since he landed.’’ But he says he cannot remember what
words immediately preceded or followed, or at what partieu-
lar time the words were uttered, nor does he know whether
Killroy was jocular or not, If the witness is not mistaken ag
to the words, the speech was, at least, very imprudent and
foolish, However, if Killroy, either in jest or in earnest,
uttered those words, yet if the assault upon him was such, ag
would justify his firing and Killing, or alleviate it so as to
make it but manslangbter, that will not enhance the Killing to
murder. And though it has been sworn that Kilroy, and

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