
    Darling v. Williams, Administrator.
    1. Homicide is not excusable on the ground of self-defense, although the slayer believes, in good faith, that he is in imminent danger of death, or great bodily harm, and that his only means of escape from such danger consists in taking the life of the assailant, unless there were reasonable grounds for such belief.
    2. In an action under the act of March 25,1851, requiring compensation for causing death by wrongful act, neglect, or default, evidence having been given tending to show that the deceased commenced the affray in which he lost his life, the defendant prayed an instruction to the jury, that if the wrong or fault of the deceased contributed to the injury resulting in his death, no recovery could be had in the action. Held, that the instruction prayed for was properly refused.
    Error to the District Court of Van Wert county.
    George C. Williams, as administrator of the estate of Orlando Meals, brought an action against the plaintiff in error, Squire Darling, under the act of March 25, 1851 (2 S. & C. 1139), for causing the death of Meals.
    The petition alleged, among other things, that death was caused by malicious stabbing, and that Meals left a wife and five children. Prayer for judgment in the sum of $10,000.
    The answer denied that the defendant caused the injury, and, secondly, alleged that whatever injury the defendant below inflicted on the deceased was done in self-defense.
    The matter set up in justification was denied by the reply. A tidal was had, resulting in a verdict, for the plaintiff below, in the sum of $3,000.
    On the coming in of the verdict the defendant moved for a new trial on the following grounds :
    1. Because the court erred in its charge to the jury.-
    2. Because the court erred in refusing to charge as requested by the defendant.
    3. Because the verdict is contrary to the law of the case.
    
      4. Because said vei’diet is contrary to the weight of evidence.
    The motion was overruled, judgment entered, and an exception taken.
    From the bill of exceptions setting out all the testimony and the chai’ge of the court, it appears that evidence was given by the plaintiff below, tending to show, that on the 11th of June, 1874, while the deceased was engaged in driving a calf belonging to him out of the defendant’s barn-yard, a hog belonging to the defendant escaped into the public highway, which the deceased undertook to drive hack; and while engaged in so doing, the defendant went out to the barn-yard gate, and after some angry words passed between the two, the defendant moved towrnrd the deceased with clenched fists, whereupon, the deceased knocked him down. The defendant got up, moved toward the deceased again, and was again knocked down. Whereupon, the defendant drew a pocket-knife and stabbed the deceased, inflicting a fatal wound from which he died in less than an hour.
    Testimony was given by the defendant and his wife, the latter witnessing the transaction, tending to show that the deceased was the assailant, and that he approached the defendant and knocked him down three times, and that after the defendant got up the third time he started for his house, and that the deceased being immediately behind him striking and kicking him, he, to save himself from further serious bodily harm, drew his knife, and struck back at the deceased, inflicting the fatal wound. At the conclusion of the testimony the defendant prayed for the following instructions to the jury: That if, from all the circumstances attending the causing the death of the intestate, Orlando Meals, the jury shall find that the said Orlando Meals was at fault, and guilty of negligence, directly contributing to the injury which caused his death, then the plaintiff is not entitled to recover, and the defendant is entitled to your verdict.
    
      The court declined so to charge, to which the defendant excepted.
    After reading to the jury the statutes under which the action was brought, the court, among other things, gave the following instructions:
    “ It is to be observed, first, that this case is to be tried in the same manner, and is to be governed by the same principles of law, as if the said Meals had not died of the injuries, and had commenced an action for the recovery of ■damages for these injuries; or, in other words, that this action can be sustained under such state of facts, and under such state of facts only, as would have entitled Orlando Meals (had he lived) to have maintained an action, and recover damages for the injuries which caused his death.
    “ If, for instance, Meals had been wounded, and had not died of his wounds, and had brought an action against Darling, for damages, if it appeared that Meals had made the first assault, and this defendant had repelled it by force, ■employing no more force than was necessary to protect himself, the plaintiff, Meals, could not recover; but if the ■defendant, Darling, went unnecessarily beyond this, and employed force entirely disproportionate to the attack, such as to show wantonness, malice, or revenge, he himself would become a wrong-doer, and would be liable for injuries inflicted beyond what was reasonable and necessary.”
    To the instruction that the plaintiff could recover if the deceased made the first assault, the defendant excepted. '
    The court further charged “it seems now to be well settled that, to justify the taking of the life of the assailant when attacked, there must appear to the satisfaction of the jury : First. That the defendant, if assaulted without any wrong or fault on his part, honestly and truly believes that he is in imminent danger of his death, or of great bodily harm; and if, secondly, he has just and reasonable cause to apprehend such danger, which he can not avoid without taking the life of his adversary, he is excusable.” To which the defendant excepted.
    
      The court, at the defendant’s request, further charged as follows :
    “ That every person has the right to defend himself against attacks, or threatened attacks, of such character as would endanger his life or limb, or to do him great or serious bodily injury, even to the taking of the life of the assailant; and where a person apprehends that another is about to do him great bodily harm, and has reasonable grounds for believing the danger imminent, he may safely act upon such apprehension, and even kill the assailant, if that be necessary, to avoid the apprehended danger.
    “ That the necessity which permits, in law, the taking, of life in self-defense, may be either apparent or real. It is real when there is actual danger to life, or great bodily harm ; it is apparent when the circumstances, at the time of taking life, to a reasonable mind, indicate the presence-of actual danger to life, or great bodily harm, though there-is, in fact, none.”
    On petition to the district court, the following errors-were assigned:
    1. That said court erred in its charge to the jury.
    2. That the said court erred in refusing to charge the jury as requested by the said plaintiff in error.
    8. That the said court erred in overruling the motion to-set aside the verdict and grant a new trial.
    The judgment was there affirmed, and it is now sought to-reverse it.
    
      Swan & Moore and Isaiah Pillars, for plaintiff in error :
    If defendant honestly believed that he was in danger of his death, and in self-defense took the life of his assailant, he was justifiable. Maher v. People, 24 Ill. 241; Campbell v. People, 16 Ill. 17 ; Shorter v. People, 2 N. Y. 195.
    The English doctrine, that a party assailed must flee as-far as he can, is not the law in this country. State v. Kennedy, 7 Nevada, 374; Copeland v. State, 7 Humphries (Tenn.), 429; Commonwealth v. Selfridge, H. & T. 1; Pond v. People, 8 Mich. 150 ; Meredith v. Commonwealth, 18 B. Mon. 49.
    
      
      Sutton & Thomas and J. L. H. Long, for defendants in error:
    Even if Meals had made the first assault, and Darling, in repelling the attack, employed force entirely disproportioned to the attack, or used such weapons as to show wantonness, malice, or revenge on-his part, the killing would be wrongful, and the plaintiff entitled to recover. 1 Hilliard on Torts (3 ed.), 184, 188; Hilliard on Remedies for Torts, 454 ; 3 Ohio St. 172 ; Martz v. State, 26 Ohio St. 162.
    As to the law in a case of contributory injury. See 1 Eastman P. C. 236, 320; People v. Doe, 1 Mich. 451; 1 Hill, 377 ; Commonwealth v. Drew, 4 Mass. 301.
   Boynton, J.

It is first contended by counsel for the plaintiff, that the court erred in charging the jury, that in order to justify the taking of the life of the assailant, it must appear that the accused honestly and truly believed that he was in imminent danger of death or of great bodily harm, and that he had just and reasonable cause to apprehend such danger. The proposition asserted in argument is, that an honest belief in the existence of the danger, whether well founded or not, is all that is required to justify the assailed in taking the life of the assailant; or as expressed in the request which the court declined to give, whether or not the party attacked has reasonable ground to apprehend danger to life, or great bodily harm, from the attack of the assailant, he alone is the judge. This q>osition is entirely untenable. One person can justify the taking of the life of another in self-defense only where, in the proper exercise of his faculties, he believes, in good faith, and upon sufficient or reasonable grounds of belief, that he is in imminent danger of death, or grievous bodily harm. Marts v. The State, 26 Ohio St. 162. It is not, however, necessary that the danger should prove real, or in fact exist, for, whether real or apparent, if the circumstances are such as to induce a belief, reasonable and well grounded, that life is in peril, or that grievous bodily harm is impending, the party threatened with the danger may act upon appearanees and slay bis assailant. But there must be a reasonable ground for his belief in the danger threatened, arising out of the circumstances in -which he is placed, otherwise the act of taking the life of the assailant is entirely without justification.

It is next contended, that the court erred in refusing to charge the jury, that, if the fault, or wrong, or negligence of the deceased contributed to the injury that resulted in his death, the action would not lie, and consequently, that there could be no recovery. This claim is so entirely unfounded, that little need be said in disposing of it. "Where death results from an injury caused by negligence, no recovery can be had, where the injury, but for the negligence of the deceased, would not have resulted. The statute expressly requires the wrongful act, neglect, or default to have been such, that the party injured could have maintained the action, if death had not ensued. 2 S. & C. § 1139. The case, however, is not one of negligence. The petition made a case of intentional killing. The defendant denied the charge, and alleged that 'all he did was done in defense of his person against an attack of the deceased. This allegation the plaintiff denied. Upon these issues the case went to trial. There was no pretense that the defendant’s liability arose from negligence. The injury was the outgrowth of a fight or affray. Had the deceased survived, and brought an action for the injury, it would have been an action for an assault and battery. In such action the law governing cases of negligence would have been entirely inapplicable. The party first assaulted is entitled to recover for the injury inflicted upon him by the assailant, and the assailing party may recover for the injury to him resulting from excess of force or beating where the bounds of self-defense have been overstepped. Dole v. Erskine, 35 N. H. 503; Cooley on Torts, 165. The case is clearly within the statute, and the court was clearly right in rejecting the prayer of the defendant.

The remaining objection relates to the sufficiency of the evidence to support the verdict. "We have carefully examined it, and are satisfied that the verdict ought not to be disturbed.

Judgment affirmed.  