The Volokh Conspiracy

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Husband, Wife, Brothel, Knife: Another Case on Carrying a Gun When "Expecting Trouble"


I've been researching the cases dealing with self-defense rights of people who go to a place armed, knowing that it's likely to be dangerous; hence my posts about the Wyoming Buddha/Christ/Hercules case and about the D.C. Laney race riot case. Here's another such case (which I think expresses what today would be the minority view), from 1913 Arkansas, Moore v. State:

Appellant was indicted for the crime of murder in the second degree, alleged to have been committed by shooting her husband, Arthur Moore, and upon her trial she was convicted of voluntary manslaughter and sentenced to two years' imprisonment in the penitentiary.

On the 24th of February, 1913, appellant, a negro woman, went to a house of ill repute in the segregated portion of the city of Little Rock, where she found her husband in the company of a negress named Mary Johnson. Appellant says she went to this house to persuade her husband to leave there and return home with her, but that her husband became angry, coaxed her into an alley adjoining the house, and there attacked her with a knife, telling her he would cut her, cursed her, and was about to stab her with the knife, when she drew a revolver from her bosom and fired twice, and that deceased then dropped the knife and turned to flee, running out of the alley across the street, and fell dead on the sidewalk; that she then went down the alley in the direction deceased had gone, firing two shots about the time she came out of the alley.

She further testified deceased had threatened to kill her if she came to this house for him, that he had beaten her on several occasions, and was a large and powerful man, but without regular occupation, and spent his time gambling and in places of bad repute, and had been frequently confined in jail. Appellant offered evidence tending to corroborate her in several particulars….

The evidence upon the part of the state was to the effect: That deceased was unarmed, and that defendant went to the house for the purpose of killing her husband. That when she had shot him she said: "I killed my husband here, I did; he is my husband." And when asked why she had killed him, she said: ["]I am the one that done the shooting. I'd soon not to have no man at all than have half a man." …

Appellant strenuously insists there should be a reversal because of [among other things] the court's refusal to give [the following instruction]: …

"You are instructed that if you believe from the evidence in this case that defendant saw her husband (this deceased) in the early part of the evening, on the night of the killing, in company with another woman, as she described, she had at least a legal right to interfere and separate them, and that she had a legal right to go to the home where she believed they were staying and to carry with her a weapon to defend herself against any possible attack; and, further, while in an effort to persuade her husband to return home she was attacked by him, she had a perfect right to shoot in her own defense, and should therefore be acquitted." …

[This] instruction is not the law. It is true that one may use in his necessary self-defense a weapon which he is carrying unlawfully; that is, he is not to be deprived of his right to use a weapon in his necessary defense because he is carrying it unlawfully.

But this is not the purport of the instruction, for it says: "She had a legal right to go to the home where she believed they were staying and to carry with her a weapon to defend herself against any possible attack." This instruction … permits one who is expecting trouble, and probably looking for it, to be armed and ready for it when it comes.

Of course, if the husband hadn't been threatening the wife with death or serious bodily injury, and she shot her husband just because she was angry at him for cheating on her or beating her, that would indeed be murder (or manslaughter, if she was sufficiently provoked, but I set that question aside here). But that is a factual question for a jury to determine, with a proper instruction. It also seems to me that shooting him as he's fleeing was likely not self-defense; but that's not what the court focused on in the excerpt above. (Her defense as to those shots was apparently that the first two shots would have been fatal even without the later ones, and thus "the last two shots neither contributed to nor hastened … the death of [the] deceased.")

The court here wasn't considering that question; rather, it was deciding when, as a matter of law, someone who is being threatened with death or serious injury nonetheless loses her right of self-defense. And the court's answer—which would be a minority answer in American jurisdictions today, I think—is that,

  1. when someone "who is expecting trouble" from an encounter
  2. therefore arms herself to be "ready for it when it comes,"
  3. she does indeed lose her right to self-defense,
  4. at least when she voluntarily goes to a place where that trouble is expected.

What do you think: Does that make sense? (Note that figuring out the impact of race on this 1913 Arkansas case might be complicated: The defendant was black, but presumably so was her victim, and while she was found guilty, she was sentenced to a relatively light prison term. I'm more curious about what you think the result ought to be today, setting aside any questions about the race of the parties, and omitting the shots as the husband was running away.)

Note that many courts answer the question by saying that,

  1. when someone specifically intends to provoke a threat of death or serious bodily injury from someone and
  2. therefore arms herself to be able to use that threat as a justification for killing that someone,
  3. she does indeed lose that right to self-defense.

But that wasn't the Arkansas court's position; the court did mention that the wife was "probably looking for [trouble]," but that was just given as a probability, not as something that the prosecution had proved or that the defense had conceded (as it had conceded that she was expecting trouble).