Page:Federal Reporter, 1st Series, Volume 9.djvu/581

566 FEDERAL SEFOBTJSB. �strike the mate with the knife unless the mate renewed the assault. When the mate discovered the knife in Murray's hand he was well juatified in obtaining a belaying pin 'with which to defend himself, and Murray was without excuse in pursuing him and procuring a similar weapon. He then had his knife, which was all the means of protection he could need, even if the mate should renew the assault upon him with the pin. Up to the moment when the eaptain ordered Murray to put down the pin and go to his work, his conduct was wholly without justification or excuse, as the assault upon him by the mate with his open hand would not justify his use of the knife, even if he had reason to suspect that the mate raight repeat the blow, as by such a blow no great personal injury could be inflicted, which would alone authorize the use of a deadly instrument in defence. Thus far the libellant was substantially the wrong-doer; but from this stage the court finds the mate's conduct was inex- cusable. In his answer he says — �" That the libellant, with the knife in one hand and the belaying-pin in the other, tumed towards the respondent, when the eaptain ordered him to put back the pin and go to his work, which he did, and respondent went at once to his cabin." �The mate thus admits that the libellant had returned to his duty, and the mate, therefore, was without excuse for the subsequent assault on Murray. �The mate is but 22 years of age, and, of course, with no long expe- rience in that capacity. He acknowledges he was greatly excited by Murray's conduct, and well he might be ; but after Murray's prompt obedience to the master's command, the mate should have restrained his anger and exoitement, and if Murray was, deserving of punish- ment for his misbehavior, as the court most decidedly thinks he was, it should have been imposed by authority of the master, with calm- ness and deliberation, and in such a manner as to insure obedience from all the crew, and not in the manner adopted by the mate. �When Murray had peaceably returned to his duty, and was at work in obedience to the captain's orders, the mate rushed at him with his pistol raised, inquiring of him "if he intended to eut him with that knife." The knife was not then visible, but at sight of the revolver pointed at him by the mate his knife was drawn by Murray, and at the same time the mate fired and wounded Murray. The mate tes- tifies that in presenting his pistol at Murray "he hoped the sight of it would enforce order." Such an excuse is probably an after- ��� �