But further than this, we hold that in view of the undeniable
fact that the Justice had knowledge of the fact that the
Terrys, man and wife, had sworn to punish him; that they
had indulged in threats against him of the most pronounced
character; that they had boarded a train on which it is
probable they knew he had taken passage from one part of his
circuit to another in his capacity as a magistrate; in view of
the fact that Terry sought the first opportunity to approach
and strike him, and that, too, when seated; and in view of the
notorious fact that Terry always went armed--the man who shot
Terry would have been justified in doing so had he not even
been commissioned as an officer of the court. He warned the
assailant to desist, and knowing his custom to go armed, and
that he had threatened the Justice, and Terry refusing to
restrain his blows, it was Neagle's duty to save life, to
strike down the assailant in the most effectual manner. Men
who, having the ability to prevent murder, stand by and see
it committed, may well be held to accountability for criminal
negligence.
But in this case it is clear that murder was intended on the
part of the Terrys. One of them ran for her pistol and brought
it, and would have reached the other's side with it in time,
had she not been detained by strong men at the door.
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