out at the front door, deceased shot at him, and the prisoner testified that he went back and stayed about fifteen minutes and then went out at the back door with a rifle, to see if deceased had gone, and that he was shot at by deceased and shot back, because he was afraid deceased would shoot again before he got to the house, the court erred in refusing to submit a prayer presenting defendant's theory of self-defense. Williams, 141-823.

In the case of a mutual combat, in order to excuse the killing on the ground of self-defense, it is necessary for the accused to show that he quitted the combat before the mortal wound was given and retreated as far as he could with safety, and that then, being urged by necessity, he killed to save his own life. Garland, 138-675.

The necessity, real or apparent, for killing one's assailant to protect one's self is a question for the jury to be determined on the facts as they reasonably appeared to the one assailed. Blevins, 138-668.

In ordinary assault, not felonious, even with a deadly weapon, the man assailed is required to withdraw, if he can do so, and to retreat as far as consistent with his own safety, before killing his assailant. Blevins, 138-668.

The fact that the defendant procured a pistol on the morning of the homicide is not conclusive evidence of an intent to use it if an emergency arose, where it appears that the deceased had threatened to kill the defendant, and there was a great disparity in the size and strength of the two men. Hough, 138-663.

If an assault be committed under such circumstances as to naturally induce the defendant to believe that the deceased was capable of doing him great bodily harm, and intended to do it, then the law will excuse the killing, because any man who is not himself legally in fault has the right to save his own life, or to prevent enormous bodily harm to himself. Hough, 138-663.

Where a man is without fault, and an assault with intent to kill is made upon him, he is not required to retreat, but may stand his ground, and if he kill his assailant and it is necessary to do so to save his own life, or protect his person from great bodily harm, it is excusable homicide. Blevins, 138-668.

An instruction that requires the prisoner to prove beyond a doubt that deceased was actually making a felonious assault and that the prisoner had reasonable ground to believe at the time that the deceased was making such assault, is erroneous. Clark, 134–698.

Where an instruction states that, in order to justify the use of a deadly weapon in self-defense, it must appear that the danger was so great that to save his own life or prevent great bodily harm the shooting by defendant was "absolutely" necessary, the error as to the existence of the absolute necessity was not cured by a subsequent instruction explaining what kind of reasonable apprehension would have justified the defendant in acting on the facts and circumstances as they appeared to him. Clark, 134—699.

Where deceased was attempting to kill another or to do him great bodily harm, or defendant had a well-grounded belief or apprehension that he was attempting to do so, he had a right to interfere to prevent deceased from executing his intention, and if, while engaged in the interference for such lawful purpose, deceased advanced on him in such a manner as to induce defendant to personally apprehend, and he did actually apprehend, that he was about to be killed or suffer great bodily harm, he was justified in killing deceased to save his own life, or prevent great bodily harm to himself. Clarke, 134—

699.

In an indictment for murder, where the prisoner contended that he was suddenly assaulted, the court did not err in charging that in such cases the right of self-defense exists if there is apparent danger from waiting for the assistance of the law and there is no other probable means of escape. Lilliston, 141-857.

While a person may act upon a reasonable apprehension of danger he must do so in good faith and with ordinary firmness. Clark, 134–704.

One who defends his action in taking life upon the doctrine of a reasonable apprehension of danger is not to be judged by what the deceased actually intended to do, but by the reasonable apprehension existing in his own mind by the acts of the deceased as to what the latter intended, and yet this defense has this limit: While the jury are bound by law to pass upon the facts and circumstances as they appeared to the person claining such defense, the jury alone can judge of the reasonableness of the grounds of apprehension. Clark, 134-704.

Where an instruction as to the right of the prisoner to slay his assailant if the prisoner at the time was about to receive great bodily harm is given, with the modification that the prisoner had a right to take life under the circumstances "provided the assault made upon the defendant was felonious or with felonious intent," without any explanation as to what is meant by a felonious assault, such modification is erroneous. Clark, 134-704.

If the assault upon the prisoner by the deceased was for the purpose of inflicting great bodily harm it was not necessary that it should have been a felonious assault, and an instruction that requires the prisoner to show a Ifeonious assault made upon him by the deceased is erroneous. Clark, 134— 710.

Where an instruction is given that the prisoner was justified in meeting force with force, it was error to add: "But you are to be the judges of the force necessary, and not the prisoner," since the jury should find merely whether he did more than a reasonable man should have done. Castle, 133769.

It was error to charge that it was incumbent on defendant to first use gentle means, and that if he used more force than was necessary and the deceased could have been ejected without it, he would be guilty of murder in the second degree, since the instruction made the right of self-defense turn on the necessity for the force used, without reference to whether it reasonably appeared necessary. Castle, 133-770.

Where there is evidence tending to show that the killing may have been done from a principle of self-preservation, it is competent to show the general reputation of deceased for a particular character of violence, as that deceased would pretend to be a friend and thus take advantage of another to do him some bodily injury, if such character was known to the prisoner. Sumner, 130-718.

Where the defense is justification, and the judge in his charge takes it for granted that the homicide was committed by the defendant, this does not amount to an expression of opinion, since justification necessarily admits the homicide. Miller, 18 (1 D. & B.), 501.

A man murderously assaulted in his own house he is already to the wall and need not retreat. Gentry, 125–736.

If the fierceness and suddenness of the attack are such that a retreat can not be made with safety the assailed may slay the aggressor without retreating. Gentry, 125-735.

Where the prisoner knew that the deceased was a deputy sheriff, and that he had a warrant for his arrest for a misdemeanor, it was his duty to submit to arrest, and, in resisting it with a gun in his hand, it is not open to him to say that he acted in self-defense, and this is not affected by the fact that the officer was not justified in shooting him to make the arrest. Horner, 139-. 603.

The distinction between an assault with felonious intent and an assault without such intent is that in the former a person attacked is under no obligation to fly, but may stand his ground and kill his adversary if necessary,

while if the assault is without felonious intent he may not stand his ground and kill if there is any way of escape open to him. Hough, 138-663.

Where a man puts himself in open defiance of the officer of the law he is not allowed to take advantage of his own wrong, if his life is thereby endangered, and set up the excuse of self-defense. Horner, 139–604.

19. KILLING IN DEFENSE OF HOME OR PROPERTY.

A man may repel force by force in defense of his person, habitation or property against one who manifestly intends or endeavors by violence to commit a felony, such as murder, rape, burglary, robbery and the like, upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger and if he kill him in doing so it is called justifiable self-defense. Hough, 138-667.

20. KILLING WHILE ENGAGED IN UNLAWFUL ACT.

Where the defendant, while hunting on lands without written permission of the owner, as required by statute, killed the deceased unintentionally, and the special verdict having found that the act in which defendant was engaged was not in itself dangerous to human life and negatived all idea of negligence, the case was one of excusable homicide, as the offense of so hunting was merely malum prohibitum. Horton, 139–588.

The test responsibility depends upon whether the conduct of the defendant was unlawful, or not being so, was so grossly negligent, reckless or violent, as necessarily to imply moral impropriety or turpitude. Capps, 134-631.

Where two persons enter upon a common purpose unlawfully, and so manifestly act together that a killing by either inculpates both, the doctrine that if there is a reasonable doubt as to which one fired the fatal shot both must be acquitted does not apply. White, 138–723.

Where the defendant testifies that the gun was not intentionally pointed at the deceased, and that he did not fire it, but that it went off accidentally, the case ought to be submitted to the jury and it is improper to charge that the defendant is guilty of manslaughter at least. Turnage, 138-369.

Where a gun is pointed at another and is discharged such a killing is manslaughter whether the gun was inentionally discharged or not. Turnage, 138— 569.

Since simply pointing a gun at another is a misdemeanor, an accidentally killing by thus pointing at another is manslaughter. Turnage, 138-568.

Where a man provokes a fight by unlawfully assaulting another, and in the progress of the fight kills his adversary, he will be guilty of manslaughter at least, though at the precise time of the homicide it was necessary for him to kill in order to save his own life. Garland, 138-675.

The principle of self-defense does not apply to one who puts himself in armed resistance to the process of the state. Garrett, 60-144.

It is not sufficient that the prisoner intended to kill at the very moment he gave the fatal blow, but he must have coolly and deliberately considered the consequences of his act. Bishop, 131-736.

In order to make the prisoner guilty of murder in the first degree in killing B when the prisoner was in the act of trying to kill A there must be some legal connection or relation between the original purpose and act and the unexpected result. Cole, 132-1076.

Where a person is killed by the accidental- discharge of a gun in an attempt by another person to execute an unlawful purpose, the person making the attempt is guilty of manslaughter. Hall, 132-1094.

Where prisoner and his companions were violating a town ordinance by the use of loud and profane language in the presence of deceased, a policeman who had on his uniform, cap and billy, and when spoken to about their conduct by deceased, cursed him, the deceased had a right to arrest them without a warrant, and when he attempted to do so and was shot at several times by one or more in the crowd and killed, the only question was as to who in that party did the fatal shooting. Edwards, 126-1051.

21. JURY ATTENDING CHURCH.

Where the jury attend church by consent of the prisoner, an exhortation from the pulpit for them to do their duty between the state and the prisoner, followed by a prayer for a fair trial, though wanting in propriety, was not prejudicial to the prisoner. Kinsauls, 126–1095.

22. MISCELLANEOUS QUESTIONS.

EFFECT OF NEW TRIAL.-Where upon indictment for murder a conviction is had for a lesser offense, if upon appeal a new trial is granted, the case goes back for trial for the full offense charged in the indictment. Freeman, 122-1013.

If the prisoner is convicted of a lesser offense, and upon appeal a new trial is granted the case goes back for trial de novo upon the charge of murder. Craine, 120-601.

KILLING BY SECOND ASSAILANT.-If deceased, while languishing of a mortal wound, is killed by a second assailant, the first is not guilty of murder. Hambright, 111–707.

WOUND AGGRAVATED BY DECEASED.-If the wound is mortal-sufficient to produce death-and death follows, it will be attributed to the wound, even though death was facilitated by some act of the deceased. Hambright, 111707.

SUBMISSION FOR MANSLAUGHTER-EFFECT.-Where a prisoner agrees to a verdict of manslaughter, which is entered, the submission to such verdict is an acknowledgement and confession of the facts which constitute that crime, and an appeal from the judgment thereon can not bring into question the regularity and correctness of the proceeding. Moore, 120-565.

NEGLECT OR MALTREATMENT.—It is no excuse to show that had proper caution and attention been given a recovery might have been effected. Neglect or maltreatment will not excuse except in cases of doubt as to the character of the wound. Hambright, 111-707.

KILLING IN SPORT THE TEST.-Where one kills another in sport and by accident the test of responsibility depends upon whether the conduct of the accused was lawful, or, not being so, was so grossly careless or violent as necessarily to imply moral turpitude; if the sport is unlawful and dangerous the killing is manslaughter; if lawful and not dangerous it is homicide by misadventure. Vines, 93-493.

GUILT OF OTHERS.-The fact that one person charged in the same bill has been convicted of the crime alleged, is no bar to the conviction of the other parties indicted. Jacobs, 107–873.

DISPROPORTIONATE VIOLENCE.-When a man makes an assault, which is returned with a violence manifestly disproportionate to that of the assault, the character of the combat is essentially changed, and the assaulted becomes in turn the assailant; and if the person who made the first assault, in the transport of passion thus excited, and without previous malice, kill his adversary, the proper inquiry as to the degree of his guilt is not whether he was possessed of deliberation or reflection so as to be sensible of what he was then about to do, and intentionally did the act, but whether a sufficient time had

elapsed after the violent assault upon him, and before he gave the mortal wound, for passion to subside and reason to re-assume her sway, for if there had not, he would be guilty of manslaughter only. Hill, 20 (4 D. & B.),

491.

DEATH FROM WANT OF CARE AFTER WOUND GIVEN.-Where the wound is adequate and calculated to produce death, it is no excuse to show that had proper caution and attention been given a recovery might have ensued. Neglect or maltreatment will not excuse except in cases where doubt exists as to the character of the wound. Baker, 46 (1 Jones), 267.

REQUIRING PRISONER TO STAND UP.-The omission to require the prisoner charged with a capital felony to stand up and look upon the jury on the return of the verdict, does not affect the verdict or judgment thereon. l'ankey, 104-840.

VERDICT MUST BE CERTAIN.-The certainty requisite to a verdict of guilty is the same for all grades of criminal offenses. Hicks, 125–636.

SON FIGHTING FOR FATHER. While a son may fight in the necessary defense of his father, yet his act must receive the same construction as the act of the father would have received. Brittain, 89-481.

"I

PLEADING INSANITY.-On indictment for murder, defendant pleaded: admit the killing, but was insane at the time of the commission thereof, therefore not guilty." The court rejected all the plea except "not guilty:" Held, no error, since under the plea of not guilty, every defense to the charge cm. braced in the rejected part of the plea was admissible. Potts, 100-457.

A plea in abatement for incompetency of one of the grand jurors comes too late after pleading to the indictment. Ibid.

ORDER OF EXAMINATION OF WITNESSES.-The state is not bound to examine all the witnesses who were present at the commission of the homicide or all who were sent to the grand jury. Martin, 24 (2 Ired.), 101.

WORDS OR GESTURES.-No words or gestures, nor anything less than the indignity to the person of a battery, or an assault, at least, will extenuate a killing to manslaughter. Barfield, 30 (8 Ired.), 344.

AIDER AND ABETTOR, WHO IS.-One who is present and sees that a felony is about to be committed and does in no manner interfere, does not thereby participate in the felony committed. Every one may, on such occasions, interfere to prevent, if possible, the perpetration of the felony, but he is not bound to do so at the peril, otherwise, of partaking of the guilt. It is necessary in order to make him an aider or abettor that he should do or say something showing his consent to the felonious purpose and contributing to its execution. Hildreth, 31 (9 Ired.), 440.

CORPUS DELICTI.-The rule which seems at one time to have prevailed in England, "that upon charges of homicide, the accused shall not be convicted unless the death be first distinctly proved, either by direct evidence of the fact, or by inspection of the body," is not of universal application, but where the identity of the body is completely destroyed by fire or other means, the corpus delicti, as well as other parts of the case, may be proved by presumptive or circumstantial evidence. Williams, 52 (7 Jones), 446.

BURDEN ON DEFENDANT TO SHOW INSANITY.-Where insanity is relied on as a defense, the burden is on the defendant to establish it to the satisfaction of the jury. Potts, 100-457.

DIPSOMANIA AND MORAL INSANITY.-While the law recognizes delirium tremens as a species of insanity, "dipsomania" and "moral insanity" are not recognized as defenses. Potts, 100-457.

PRESENCE OF PRISONER IN COURT.-Where on the removal of a trial for murder, the record shows that the prisoner was arraigned, and then the order of removal immediately follows, before any order remanding the prisoner, it necessarily appears by implication that the prisoner was in court when such order was made. Anderson, 92-732.