William Howard was walking past a house at night and saw Henry Schmidt run out of the backyard. Howard assumed that Schmidt was a criminal who was fleeing the house and began chasing after Schmidt yelling “Stop thief!” Schmidt did not stop, and Howard continued to chase and yell after him. George Kilvington (defendant) was a police officer and night watchman in that part of town. Kilvington heard the commotion and saw Schmidt running toward him with Howard in pursuit yelling “Stop thief!” Kilvington ordered Schmidt to stop multiple times. Schmidt failed to do so but threw up his hands as he continued to run. Kilvington thought he saw something in Schmidt’s hands. Kilvington drew his gun and fired it toward Schmidt, intending to intimidate him into stopping but not to wound or kill him. Schmidt was struck and killed by the shot. Kilvington was charged with murder, convicted of manslaughter, and appealed.