
    Grainger vs. The State.
    If a man, though in no great danger of serious bodily harm, through fear, alarm or cowardice, kill another under the impression that great bodily injury is about to be inflicted upon him, it is neither manslaughter nor murder, but self-defence.
    If a man be in great danger of bodily harm, or thinks himself so, and kill another, it will be a killing in self-defence.
    But if from the facts it appears he only believed that a violent assault and battery, without endangering his life, or inflicting great bodily harm* was intended, it is manslaughter.
    In this case, the plaintiff in error was indiGte'd in the circuit court of Henry county for the murder of-Broach, was tried, convicted, and moved for anew trial on several grounds. His motion was overruled, and sentence of death being passed upon him, he appealed in error to this court. The bill of exceptions shows the following facts, viz: On the 9th of July, 1829, Broach, the deceased, and Henson, were at Norwood’s. Late in the evening Grainger came there and had his gun with him, which he generally carried, being a hunter. Broach and Henson were drinking cordial; Broach asked Grainger to drink with them; he replied he did not drink cordial, but would drink whiskey, and called for an half pint. Broach and Henson drank three half pints of cordial, and Grain-ger the half pint of whiskey. All this time Broach and Grainger seemed friendly. Grainger was setting off for home; Henson asked him to wait for Broach; Grainger replied he knew Broach, that he would not go till he Chose, and declined waiting for him. Henson went into the house and requested Broach to go; he then returned, and he and Grainger set off together, leaving Broach at Norwood’s. Henson was on foot, and Grainger riding. The latter invited Henson to get up behind him, which he did. About three eighths of a mile from Norwood’s, Broach overtook them, riding ata fast gate. He immediate-Jy commenced a quarrel with Grainger, by charging him with having spoken disrespectfully of him, and that he had held his negroes till the children of Grainger had whipped them. Grainger denied the charges, said he had not said any thing about Broach, or held his negroes, as charged. Broach said “you are a liar, and if you deny it I’ll knock you off your horse.” Grainger still denied the charges. Broach rode up to him and struck him a violent blow on the breast. Grainger turned his horse suddenly away, and rode a short distance apart from Broach, saying to witness, Henson, “take notice, I will make him pay for it.” The quarrel and ill language continued for about five eighths of a mile further, when they came to the corner of Rainey’s fence, about forty yards from the house. Grainger threw his leg over his horse’s neck and lighted on the ground, turned his horse to the fence, when Henson also alighted. At this moment Broach also alighted from his horse; Grainger threw his bridle over a rail, crossed the fence and walked towards the house, saying to Henson, “you are in cahoot with Broach.” Henson said he had nothing against Grainger, who replied, “I don’t know that you have.” The house stood some ten yards inside of the line of fence, and forty yards in advance of where the parties alighted. Grainger walked inside; Broach and Henson outside. Opposite the house there was a gap. Rainey, his wife and two other women, were awakened from their sleep by the violent quarrelling. The first Rainey heard was the defendant crying, Rainey! Rainey! like one afraid and calling for help. The women got up and looked through a crack of the cabin; Grainger was standing two or three yards from the wall, Broach advancing upon him, having passed through the gap. Grainger said to him, “I will shoot you if you follow me;” Broach replied, “I am not afraid of your shooting; damn you, you would not shoot a cat; shoot!” Defendant said, “I haye a mind to shoot you.” Broach said, “here I stand, shoot!” Defendant fired and killed Broach. Broach was eighteen or twenty feet from Grain- ! . „ , , , ger when the gun fired. Ihe witness, Elizabeth i orbes, could not see Broach when he was shot, because he was in the shadow of a tree; but Henson, who was sitting on the fence in the gap, a few yards off, could see Broach, who advanced directly on Grainger without stopping, and whilst advancing, was shot. Henson also proves, that Grainger said, when he first crossed the fence, “If Broach don’t let me alone, I will shoot him.” Broach said, “you cany your gun to defend yourself.” Grain-ger replied, “I do not.”
   Cateon, J.

delivered the opinion of the court.

The bill of exceptions shows, that much stress, on the trial, was laid upon the blow given by Broach to Grain-ger, to reduce the killing to manslaughter; that Grain-ger’s passions had not cooled. He never had any passion; he was much alarmed and with good cause. Aman was on his horse behind him; he could not get away. Henson proves he did not pretend to prevent Broach from whipping Grainger, who believed, and most probably rightfully, that Henson was in “cahoot” with Broach. It was Henson’s duty to have protected Grainger, or got off from behind him, and left him free to escape from Broach.

Grainger used all the means in his power to escape from an overbearing bully. He was shuddering with fear, and his last hope of protection was defeated when Rai-ney’s door continued closed against him, and Rainey did not come to his relief. He shot only to protect his person from threatened violence, and that great. It was certain. Henson sat quietly on the fence; the women and Rainey did not open the door; they were, no doubt, afraid of Broach, who displayed the traits of a reckless bully, and would have attacked Grainger the moment he reached him, as well in the house as out of it. It behooved Rainey not to permit the attack in a cabin, amongst wo-J , ^ . , , TT , , ° men and children, m the dark. He did right not to open the door. From Henson no assistance could be hoped the women saw him quietly sitting on the fence, which when Broach crossed, he helped himself over, by putting his hand on the shoulder of Henson. These are the facts as presented by the record before us.

Was there malice prepense in this case of homicide, so as to exclude the benefit of clergy, within the 23 Henry VIII, ch. 1? Did Grainger display a cold, deliberate and wicked conduct? A heart lost to all social order and fatally bent on mischief? It cannot be believed. He behaved like a timid, cowardly man, was much alarmed, in imminent danger of a violent and instant assault and battery, and was cut off from the chances of probable assistance. That the act was the result of fear, hardly admits of doubt. It is equally certain to our minds, that Broach only designed to commit a trespass and battery upon the body of Grainger, without intending to kill him. If the jury had believed that Grainger was in danger of great bodily harm from Broach, or thought himself so, then the killing would have been in self defence. But if he thought Broach intended to commit a battery upon him, less violent, to prevent which he killed Broach, it was manslaughter. 1 Hawk. P. C. ch. 28, sec. 23: 1 East C. L. 272. The judgment will be reversed, and the cause remanded for another trial.

Judgment reversed.  