This section contains the nature of the case and procedural background.

Hermes and Brown (D) had many previous altercations. Hermes said that at the next fight one of them would die. D took a pistol to work with him. Hermes attacked D with a knife and D retreated twenty feet to his jacket where he got his pistol. D then fired four shots and killed Hermes. D was charged with murder. At trial, the judge gave an instruction that unless retreat would have appeared to a man of reasonable prudence, in the position of the defendant, as involving danger of death or serious bodily harm, D would not be permitted to stand his ground. D was convicted of murder and appealed.

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