
    CHARGE TO JURY.
    [Jefferson Circuit Court,
    November, 1896.]
    Uaubie, Frazier and Burrows, JJ.
    John Jordan v. The State of Ohio.
    1. Shooting with Intent to Kiie — -Charge to Jury.
    Where the defendant, charged with shooting another with intent to kill, pleads a justification on the ground of self-defense, it is error to charge :
    
      (a) That the person who assaulted him must have come at him “maliciously and with every manifestation of endeavoring to kill the person assaulted, and. that he was prepared and manifested the fact that he was able to carry out his malicious assault. It is only under such circumstances that the person assaulted may use the force necessary, without retreating,” to kill the assailant.
    (d) That the jury must be satisfied from a preponderance of the evidence that the defendant “used no more force than was necessary to repel the assailant,” or than “ was reasonably necessary to save his life, or his person from great bodily harm.”
    
      2, Charge as to whether there had :;een a Conflict between Defendant and Prosecuting Witness — Keeect.
    Under the facts of this case, it was error to instruct the jury to fine, whether there had been a conflict between the defendant and prosecuting witness, “ and if so, who was the aggressor or the first to make a malicious assault in the conflict,” and that they must be satisfied from a preponderance of the evidence that the prosecuting witness “ first made a malicious assault upon the defendant, and that the defendant did the shooting while enueavoring to defend himself against that malicious assault,” without defining to the jury what, was meant by the word assault,
    Error to the Court of Common Pleas.
   Laubie, J,

Jordan was indicted and coüv'cied of unlawfully and maliciously shooting one Thomas Ferris with intent to kill him.

The evidence shows that Ferris, known as Uncle Tom, had been living in adulterous intercourse with a woman of the name of Mrs. Ellen Logan ; that some time before the shooting, he had quarreled with, and had left her, and the house (her house) where she lived. After this, Jordan became acquainted with the woman, and Ferris was jealous of him, and on the day in question, Ferris saw Jordan hunting ior the woman in order, as Jordan said, to get some clothes that she had washed for his brother. There was no direct evidence of any improper relation or conduct between Jordan and Mrs. Logan. Ferris had been drinking pretty heavily during the afternoon, and in the evening started for the woman’s house, when a friend advised him not to go, that Jordan would be there and might get the drop on him; but Ferris disregarded the advice and went to the house. He found Jordan, Ellen Logan, Sam, her son, aged thirteen, a younger boy, a son by Ferris, and Howard Hagan, aged thirteen, in the sitting-room and he at once raised a disturbance, He accused' Jordan of coming between him and the woman, and on Jordan denying it, he swore he was a liar, and advanced upon Jordan, at the same time putting his hand back into his hip pocket, as if to draw a weapon. At this the woman and children rushed from the room, at the same time hearing Jordan exclaim : “ Back, back off me, Uncle Tom, back off me;” and immediately two shots were fired in quick succession, both by Jordan.

Ferris afterward stated that when Jordan told him to back out, he, Ferris, had his hand on a knife and was trying to open it in his pocket, and that he struck Jordan after the first shot, with this hand.

On the trial, he swore that he had no weapon on his person when Jordan shot him, that he had nothing but a small pen-knife, and did not have that in his hand, and was not trying to open it, and had not said so.

Under this testimony, the jury found Jordan guilty. The preponderance of the evidence was in favor of Jordan on the question of self-defense, and the jury, we think, were misled by the instructions o:;' the trial judge, which were excepted to by defendant’s counsel, .end are in tl e record. Upon that issue, a preponderance of the evidence was all that was necessary to clear the accused.

The question before the jury was, whether the defendant was justified in shooting Ferris — whether there had been such a demonstration on the part of Ferris, at the time, that justified the defendant in believing, and whether he honestly did believe, that Ferris intended to kill him, or do him some great bodily harm.

There was no evidence of any actual conflict or combat, before Jordan shot Ferris, and no witness testified to any blow being struck by either party until after the first shot, and the blow and the second shot were similtaneous.

The court instructed the jury : “ If you find from the evidence, beyond a reasonable doubt, that the defendant did shoot Thomas Ferris, then you will next inquire was it done in self defense; also was there a conflict between the defendant and Thomas Ferris, and if so, who was the aggressor or the first to make a malicious assault in the conflict, and did the defendant only use such force, while engaged in the conflict, as was reasonably necessary to save his life or his person from great bodily harm. If you are satisfied from a preponderance of the evidence that Thomas Ferris first made a malicious assault upon the defendant, and that the defendant did the shooting while endeavoring to defend himself against that malicious assault, in the honest belief that his life was in danger or his person in danger of great bodily harm from said Thomas Ferris, and that the defendant used no more force than was necessary to repel the assailant, then upon such finding your verdict should be for the defendant.”

The word assault has two distinct meanings in reference to private quarrels, one technical, the other common. To assault another, in common acceptation, means to strike or beat another. In law, according to its technical meaning, it signifies, not a blow, but a mere attempt to strike — a threatening motion indicating an intent to strike or shoot another ; as in this case, on the part of Ferris, when he thrust his hand behind him into his hip pocket, and made a threatening movement towards, and advance upon, Jordan, using angry and abusive language toward him. In law, a blow is not an assault, it is a battery.

As we have seen, Ferris had made but a technical assault on Jordan before the first shot — no blow had been struck. The trial judge repeatedly used the words malicious assault in his instructions, and told the jury he wished to emphasize the fact that the assault must have been a malicious assault upon the part of Ferris ; and yet these words were not explained to the jury at all. Having two meanings, one of which applied to the action of Ferris, while the other did not, it was important that the sense in which they were used should be made known to the jury, in justice to the defendant Jordan. As it was, in the light of the evidence, it must be assumed that the jury understood and regarded the phrase in its common and ordinary sense; more especially because of the connection in which it was used: “ Who was the aggressor or the first to make a malicious assault in the conflict.” A conflict is a fight, a battle; and this would seem to imply in view of such ordinary meaning, that such assault must have been part of an actual fight — a striking of Jordan; and the jury could acquit the defendant therefore, on the ground of self-defense, only by finding that Ferris had opened the conflict, and began an actual fight, -before Jordan shot him — that the shooting was done during such conflict; and they must have so understood it, judging from their finding.

The jury were also instructed to determine whether the defendant did “ only use such force, while engaged in the conflict, as was reasonably necessary to save his life, or his person from great bodily harm,” and that they must be satisfied, from a preponderance of the evidence, “ that the defendant used no more force than was necessary to repel the assailant.”

In determining questions upon a preponderance of evidence, a jury is not required to be satisfied, i. e. convinced, of their truth or falsity. The preponderance of the evidence must settle the questions with them, whether they are convinced or not. But, passing this, there is still another serious objection to this part of the charge of the trial court, to-wit, that the defendant must have used no more force than was necessary to repel his assailant.

That proposition is well enough in a proper case, and is an important question in fisticuffs, or in a conflict where one of the combatants, desiring to withdraw from the conflict, flees, and his opponent pursues him, or, where one continues to beat or wound the other after he knows the other is disabled, and unable longer to continue the combat. But it was out of place in the case at bar, at least without proper qualification, and would, and we think did, mislead the jury, to the” prejudice of the accused.

There was no evidence that Ferris had a deadly weapon at the time, unless the small pen-knife, which he described, could be called such; and there was no evidence that Jordan was actually in danger of life or limb from the attack, as even the small knife was not used,and hence the jury would say at once that the defendant had used more force than was actually necessary, as they were required to determine it as matter of fact, and not as matter of appearances. It was not a matter to be determined upon the real facts, as afterwards established. Jordan might have justi-nabfy killed Ferris, although in no actual danger himself of being killed or grievously hurt, by reason of the assault made upon him by Ferris, if it was of such character as would justify a reasonable man in the belief that he had a deadly weapon and was about to draw it and use it:

We must look at such matters in the light of current events. It is -ismaon course of procedure now for men to carry a revolver in the h:'y, or so-called pistol-pocket, and, especially by those oí bad habits, or \.' -,o am of, or are allied to, the criminal classes, to draw and use it on provocation; and when such a person seeks a quarrel with another, :,v,u in hot blood, with abusive words, makes a sudden advance on such other, at the same time thrusting Ms hand into his pistol-pocket, with threatening look and gesture, any reasonable man, in the careful use of his faculties, would look to see such assailant immediately draw and use a revolver. And if one such undertahes to threaten, bully and scare another m that way, and induce him to believe he is about to draw and use such a weapon when he has none, the consequences should rest on his own head, and not on that of him he assaults.

In all such cases, the question before the jury is one of apparent, and not of real facts. How did it appear to the defendant ? Look at it from his standpoint, as reasonable men ? Was the conduct of his sssailant, under all the circumstances, sufficient to induce a reasonable man to ■ honestly believe that such assailant intended to draw a weapon and kill or grievously injure him? If yes, and the defendant did honestly so believe, he was justified in acting on that belief, and in shooting to kill. He was not bound to run the risk of waiting to see if his assailant would, in fact, draw a weapon — that might be too late for safety; nor can we, in such case, limit the amount of force to be used, and say the defendant should have used no more force than was necessary — he should have only knocked his assailant down, or shot him in the arm, instead of in the neck.

The learned trial judge, might have properly submitted to the jury the question whether the defendant unnecessarily used a deadlv weapon, or, if he preferred so to put it, used more force than was necessary, in consideration of all the apparent circumstances, and in view of the action and conduct of Ferris, and their probable effect upon the mind of a reasonable man. But it was a mistake to instruct the jury in substance, that the defendant had no right to use more force than was necessary to repel the assault that was actually., instead of apparently, made by Ferris.

In Darling v. Williams, 35 O. S., 62, Judge Boynton, for the court, laid down the principle that is to govern in such cases in quite forcible language, to wit!: “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, that ho is in imminent danger of death, or grievous bodily harm. * * 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 appearances and slay his assailant.” And this necessarily excludes the.idea that he must have, in fact, used no more force than was necessary to repel the assailant; otherwise, the plea of self-defense would be of no avail unless the danger was real. The able trial judge, as we have seen, recognized the right of the defendant to act upon his honest belief of the danger, but unfortunately he limited that right to the use of no more force than was actually necessary to repel the assailant.

At the'request of counsel for the defendant, the trial judge gave to the jury the following: “That if the accused was in the lawful pursuit of his business, and without blame was violently assaulted by one who manifestly and maliciously endeavored and intended to kill him, the person so assaulted, without retreating, although it be in his power to do so without increasing the danger, may kill his assailant if necessary to save his own life, or prevent enormous bodily harm;” to which the judge added: “I give you this last instruction, gentlemen, and wish to emphasize the fact that the assault must have been a malicious assault; that is, the person making the assault came at the other maliciously, and with every manifestation of endeavoring to kill the person assaulted, and that he was prepared, and manifested the fact that he was able to carry out this malicious assault. It is only under sush circumstances that the person assaulted may use tbe force necessary without retreating, as given in this proposition.”

Medill and Sweeny for Plaintiff in Error.

Erskine, for Defendant in Error.

While the request was somewhat of an abstract proposition of law, and Jordan did not kill Ferris, yet as he was charged with an intent to kill, it may have been proper to give it. But whether it was so or not, as the court did give it, it was bound to give the law correctly in any qualification or explanation of the request given to the jury.

We think the qualification of the request as given by the court, makes the right of self-defense, in cases like the one at bar, impracticable, and impossible of proof. It leaves the assaulted at the mercy of the assailant. He must make up an accurate summary of the situation. He must see to it, and establish, that his assailaut exhibited every manifestation of endeavoring to kill him, (whatever that may mean,) and that he was prepared, and manifested the fact that he was able, to carry out his malicious assault, i. e. to kill him, before the right of slaying his assailant would accrue.

It is clear, that it is not necessary to prove these matters as facts in order to establish a justifiable killing in self-defense. It is not the imminence of the danger that is the test, but the appearance of it. The assailant may not have, in fact, endeavored or intended to kill- — he may not have an implement about Mm that 'would kill, if used, yet if he makes an advance upon, and a movement toward the accused, that would indicate such intent to a reasonable man, in such careful use of his faculties as the situation would permit, and the accused honestly believed that his assailant intended to kill or grieviously wound him, he would, as we have seen, be justified m slaying his assailant.

In short, without further repetition, we think there was error in hese instructions prejudicial to the accused, and that, by reason thereof, he jury were misled into rendering a verdict against him.

Judgment reversed and cause remanded.  