Dilburn v. State

[1,2] The trial judge in his oral charge charged the jury:

“He [the defendant] would not be justified in using a deadly weapon if struck by tbe fist, or any other assault which would not likely cause serious bodily harm.”

This was in effect charging the jury that under the evidence the defendant was ’ not justified in using a deadly weapon, and that the blow struck by the fists was not likely to cause serious bodily harm, which was the very question then being submitted to the ju ry. The rule is that the killing of one who is the assailant mjist be under' a reasonable apprehension of loss of…