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but for such acts would never have been occasioned.

How far and to what extent he will be excused or excusable in law must depend upon the nature and character of the act he was committing, and which produced the necessity that he should defend himself. When his own original act was in violation of law, then the law takes that fact into consideration in limiting his right of defence and resistance whilst in the perpetration of such unlawful act. If he was engaged in the commission of a felony, and, to prevent its commission, the party seeing it or about to be injured thereby makes a violent assault upon him, calculated to produce death or serious bodily harm, and in resisting such attack he slays his assailant, the law would impute the original wrong to the homicide and make it murder. But if the original wrong was or would have been a misdemeanor, then the homicide growing out of or occasioned by it, though in self defence from any assault made upon him, would be manslaughter under the law."

After quoting from these and other cases, Sherwood, J., delivering the opinion of the Supreme Court of Missouri in State v. Partlow, remarked: "Indeed, the assertion of the doctrine that one who begins a quarrel or brings on a difficulty with the felonious purpose to kill the person assaulted, and accomplishing such purpose, is guilty of murder, and cannot avail himself of the doctrine of self defence, carries with it, in its very bosom, the inevitable corollary, that if the quarrel be begun without a felonious purpose, then the homicidal act will not be murder. To deny this obvious. deduction is equivalent to the anomalous assertion that there can be a felony without a felonious intent; that the act done characterizes the intent, and not the intent the act."

In this case it is evident that Wallace was bent as far as practicable on defending his possession against what he regarded and the evidence on his behalf tended to show was an unwarrantable invasion. But a person cannot repel a mere trespass on his land by the taking of life, or proceed beyond what necessity requires. When he uses in the defence of such property a weapon which is not deadly, and

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death accidentally ensues, the killing will not exceed manslaughter, but when a deadly weapon is employed it may be murder or manslaughter, according to the circumstances. 1 Hale P. C. 473; 1 Hawk. P. C. c. 31, §§ 34, et seq.; Foster, 291; Davison v. People, 90 Illinois, 221; People v. Payne, 8 California, 341; Carroll v. State, 23 Alabama, 28; 1 Whart. C. L. § 462, and cases cited.

Whether the killing with a deadly weapon may be reduced in any case to manslaughter when it is the result of passion excited by a trespass with force to property, we need not consider, as the question, perhaps in view of the interval of time during which Wallace was seeking his gun, does not seem to have been raised. Conceding, though without intimating any opinion on the facts disclosed, that Jerry Wallace committed a crime, still the inquiry arose as to the grade of the offence, and, in respect of that, the threats offered to be proven had an important, and it might be decisive bearing, nor was the mere fact that Wallace procured the gun as stated in itself sufficient ground for their exclusion.

In Gourko v. United States, 153 U. S. 183, this court held that it was error to instruct a jury that preparation by arming, although for self defence only, could not be followed, in any case, by manslaughter, if the killing after such arming was not, in fact, necessarily in self defence; and that if, under the circumstances on the occasion of the killing, the crime were that of manslaughter, it was not converted into murder by reason of the accused having previously armed himself.

In Beard v. United States, 158 U. S. 550, 563, it was said: "In our opinion, the court below erred in holding that the accused, while on his premises, outside of his dwelling-house, was under a legal duty to get out of the way, if he could, of his assailant, who, according to one view of the evidence, had threatened to kill the defendant, in execution of that purpose had armed himself with a deadly weapon, with that weapon concealed upon his person went to the defendant's premises, despite the warning of the latter to keep away, and by word and act indicated his purpose to attack the accused. The de

Opinion of the Court.

fendant was where he had a right to be, when the deceased advanced upon him in a threatening manner, and with a deadly weapon; and if the accused did not provoke the assault and had at the time reasonable grounds to believe, and in good faith believed, that the deceased intended to take his life or to do him great bodily harm, he was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, was necessary to save his own life or to protect himself from great bodily injury."

In Allison v. United States, 160 U. S. 203, it was held that in charging the jury on a capital trial in respect of the possession of a deadly weapon by the accused, it was error to ignore evidence indicating that such possession was for an innocent purpose. The subject of threats was there somewhat considered and authorities cited.

Necessarily it must frequently happen that particular circumstances qualify the character of the offence, and it is thoroughly settled that it is for the jury to determine what effect shall be given to circumstances having that tendency whenever made to appear in the evidence.

In Stevenson v. United States, 162 U. S. 313, we said:

"The evidence as to manslaughter need not be uncontradicted or in any way conclusive upon the question; so long as there is some evidence upon the subject, the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might bring the crime within the grade of manslaughter, it then became a proper question for the jury to say whether the evidence were true and whether it showed that the crime was manslaughter instead of murder. The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder and not manslaughter, or an act performed in self defence, and yet, so long as there was some evidence relevant to the issue of manslaughter, the

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credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court.

66

By section 1035 of the Revised Statutes of the United States it is enacted that 'in all criminal causes the defendant may be found guilty of any offence, the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offence so charged: Provided, That each attempt be itself a separate offence.' Under this statute a defendant charged in the indictment with the crime of murder may be found guilty of a lower grade of crime, viz., manslaughter. There must, of course, be some evidence which tends to bear upon that issue. The jury would not be justified in finding a verdict of manslaughter if there were no evidence upon which to base such a finding, and in that event the court would have the right to instruct the jury to that effect. Sparf v. United States, 156 U. S. 51. . . Manslaughter at common law was defined to be the unlawful and felonious killing of another without any malice, either express or implied. Whart. Am. Cr. L. (8th ed.) sec. 304. Whether there be what is termed express malice or only implied malice, the proof to show either is of the same nature, viz., the circumstances leading up to and surrounding the killing. The definition of the crime given by section 5341 of the Revised Statutes of the United States is substantially the same. The proof of homicide, as necessarily involving malice, must show the facts under which the killing was effected, and from the whole facts and circumstances surrounding the killing the jury infers malice or its absence. Malice in connection with the crime of killing is but another name for a certain condition of a man's heart or mind, and as no one can look into the heart or mind of another, the only way to decide upon its condition at the time of a killing is to infer it from the surrounding facts, and that inference is one of fact for a jury. The presence or absence of this malice or mental condition marks the boundary which separates the two crimes of murder and manslaughter."

Treating the excluded evidence as admitted, and assuming that Wallace would have testified that he believed from Zane's

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demonstration that Zane intended to kill him, the evidence on defendant's behalf tended to establish bad feeling between Zane and Wallace in reference to the line between Mrs. Wallace's land and that of Julia Zane; an attempt on Zane's part to include a part of Mrs. Wallace's land in the Zane parcel; declarations by Zane the day before the homicide that he was going the next day to run a fence across what Wallace claimed to be his land, and threats that, if Wallace interfered with him in so doing, Zane would kill him, all communicated to Wallace before the homicide; previous threats also communicated that he would kill Wallace; forcible entrance by Zane, accompanied by several others, into the field claimed by Wallace, in which he was ploughing, and fencing off part of it commenced; boisterous and disorderly manifestations on their part and refusals by Zane to leave when ordered to go; such demonstrations by Zane at the moment as induced Wallace to believe that he was in imminent danger, and action based on that belief. Granting that the jury would have been justified in finding that Wallace's intention in going for the gun and returning with it as he did was to inflict bodily harm on Zane if he did not leave, still the presumption was not an irrebuttable one, and it was for the jury to say whether Wallace's statement that he procured the gun only for self protection was or was not true. And if they believed from the evidence that this was true, and that the killing was under reasonable apprehension of imminent peril, then it was for the jury to determine under all the facts and circumstances whether Wallace had committed the offence of manslaughter, rather than that of murder, if he could not be excused altogether.

We think that the threats were admissible in evidence, and, this being so, that the question as to Wallace's belief should not have been excluded. It has been often decided that where the intent is a material question, the accused may testify in his own behalf as to what his intent was in doing the act. People v. Baker, 96 N. Y. 340; State v. Banks, 73 Missouri, 592; Thurston v. Cornell, 38 N. Y. 281; Over v. Schiffling, 102 Indiana, 191; People v. Quick, 51 Michigan,