
    Henry Marts v. The State of Ohio.
    1. On the trial of an indictment for murder, the prisoner may, for the purpose of showing that the homicide was justifiable on the ground of self-defense, prove that the deceased was a person of violent, vicious, and dangerous character, and that that character was known to the prisoner at the time of the rencontre between them.
    2. Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger.
    •8. Where the plaintiff examines a witness in chief, who merely testifies to matters which are not controverted by the defendant or his witnesses, and after the close of defendant’s testimony the same witness, upon being recalled by the plaintiff as a rebutting witness, contradicts the testimony of the defendant and his witnesses, the defendant has a right then to prove the bad reputation of the witness for truth and veracity.
    
      ■4. On the trial of an'indictment for murder it is competent for the jury, where the evidence justifies it, to find the defendant guilty of an assault and battery only, and it is error to the prejudice of the defendant to instruct the jury otherwise.
    Error to the Common Pleas of Logan county.
    Marts was tried at the November term, 1874, on an in•dictment for murder, and was convicted of manslaughter, .and sentenced to the penitentiary. The only defense set up -on the trial was, that the homicide was justifiable under the law of self-defense. The evidence' tended to show that death was caused by a stone thrown from the hand of the prisoner; and there was also evidence tending to show that at the time the stone was thrown the deceased was armed with a pistol, and in the act of drawing the same, threatening that he would “ fix ” the prisoner. The evidence also showed that the deceased had previously threatened the prisoner’s life, and that the prisoner had knowledge of that fact. Eor the purpose of further showing the imminence of prisoner’s danger, and that his act was justifiable on the ground of self-defense, his counsel offered to prove that the deceased was a man of violent, vicious, and dangerous character, and that the prisoner, at the time of the rencontre, had knowledge of the fact. This evidence the court rejected, and the prisoner’s counsel excepted to the ruling of the court.
    The record also shows that, after the defense had closed its testimony, the state recalled one of its witnesses, who had been examined in chief, but who had testified to nothing that was disputed or denied by the prisoner or his witnesses, and by this witness contradicted material parts of the testimony of the prisoner and his witnesses. The prisoner’s counsel thereupon offered testimony to prove the bad character of the witness for truth and veracity. But the court rejected the evidence, on the ground that it came too late. This ruling of the court was also excepted to by the counsel for the prisoner.
    After the evidence had closed, the prisoner’s counsel .asked the court to instruct the jury as follows:
    “ If Marts procured the stone he threw only for purposes of lawful self-defense, and if Brooks was armed with a deadly weapon and was turning to attack him, and if an attempt to flee by Marts would endanger his life, and he believed and knew all this in good faith, and if Marts threw the stone in good faith, believing it was the only mode by which he could avoid great bodily harm, then his act was not unlawful, and he could not be convicted of manslaughter.”
    
      The court refused so to charge, but did charge as follows :
    “If you are satisfied, from the testimony, that the defendant had good cause to fear death or great bodily harm, from the deceased, and the danger was imminent—so much so that retreat would increase the danger—this act would* be excusable. You will look to the evidence, and see whether there was danger.' The palpable fact must exist that there was danger; and the fact that the defendant believed he was in danger of great bodily harm will not excuse him, unless in fact he was in danger of such bodily harm.”
    The prisoner’s counsel also asked the court to instruct the jury that, if in their opinion the evidence warranted it,, they might bring in a verdict for assault and battery only. The court refused to give this instruction, and said to the-jury that if they failed to find the prisoner guilty of murder or manslaughter, they should return a verdict of not guilty generally.
    In these several rulings of the court, and in others which-need not be specified, it is now claimed that the court’ erred.
    
      William Lawrence and Joseph JI. Lawrence, for the plaintiffs in error:
    If Marts threw the stone against his assailant then arcned' with a deadly weapon, in good faith believing it was the only mode by which he could avoid great bodily- harm,- his act was not unlawful, and the court erred in refusing to so charge. Stewart v; State, 1 Ohio St. 72; 2 Moak’s English Rep. 163.
    1 Bishop Criminal Law (5 ed.), sec. 303, collects the authorities: Way land Moral Science, 81; Reg. v. Thurborn,, 1 Den. C. C. 387; 1 Alison Crim. Law, 565; 1 Hume Grim. Law (2 ed.), 449; McDonald’s case, 1 Brown, 238; ■ The State v. Scott, 4 Ired. 409; Rex v. Scully, 1 Car. & P. 319; State v. Field, 14 Maine, 244; Grainger v. State, 5 Yerg. 459; State v. Rutherford, 1 Hawks, 457; State v. Roane, 2-Dev. 58; Rex v. Holloway, 5 Car. & P. 524; 1 East P. C. ■273-277; 1 Hale P. C. 42; Broom Leg. Max. (2 ed.) 200, 201; 1 Gab. Crim. Law, 13; Oliver v. State, 17 Ala. 587; United States v. Wiltberger, 3 Wash. C. C. 515; State v. Shippcy, 10 Minn. 223 ; State v. O’Connor, 31 Mo. 389; Yates v. People, 32 N. Y. 509; Smaltz v. Commonwealth, 3 Bush, 32; Isham v. State, 38 Ala. 213. Contra, majority of the court, in People v. Shorter, 4 Barb. 460. And see McDaniel v. State, 8 Sm. & M. 401; Fahnestock v. State, 23 Ind. 231; State v. Rutherford, 1 Hawks, 457; State v. Scott, 4 Ired. 409; United States v. Wiltberger, 3 Wash. C. C. 515; Shorter v. People, 2 ■Comst. 193; People v. Shorter, 4 Barb. 460; Oliver v. State, 17 Ala. 587; Carroll v. State, 23 Ala. 28; People v. Sullivan, 3 Seld. 396; Monroe v. State, 5 Ga. 85. See Grainger v. State, 5 Yerg. 459; State v. Clements, 32 Maine, 279; State v. Harris, 1 Jones N. C. 190; 2 East P. C. 273; People v. Austin, 1 Parker, 154; Meredith v. Commonwealth, 18 B. Mon. 49; Teal v. State, 22 Ga. 75; Keener v. State, 18 Ga. 194; McPherson v. State, 22 Ga. 478; Commonwealth v. Fox, 7 Gray, 585; Lingo v. State, 29 Ga. 470; Parsons, C. J., in the Massachusetts court, charge to the grand jury in Self-ridge’s case, Whart. Horn. 417, -418; Lloyd’s report of the case, 7-160; Logue v. Commonwealth, 2 Wright (Penn.), 265, 268; S. P., People v. Cole, 4 Parker, 35; Pond v. People, 8 Mich. 150; Schnier v. People, 23 111. 17; Maher v. People, 24 111. 241; Hopkinson v. People, 18 111. 264; Washington Territory v. Fisk, 3 Am. Law Record (Nov. 1874), 303; Coffman v. Commonwealth, 4 lb. 438.
    II. Where a party assailed by an adversary, armed with .a deadly weapon, and under the sole influence and impulse of fright, brought on by the wrongful act of the assailant, without any formed purpose, inflicts a mortal injury on the assailant, the party so assailed is excused.
    This the court refused to charge, and in this there is error. Broom Legal Maxims (2 ed.), 226, 232, 239, 275, 633, ..and note; Bishop Crim. Law (5 ed.), sec. 288, and note.
    III. The defense had a right to prove that the deceased was a dangerous, violent, and vicious man, and that this was known to the accused.
    The character of the attack may he proved. It is, in fact, a part of the res gestee. Net the character of the attacking party is equally so. It is a part of the information on which the party assailed judges of his danger and his duty. 5 Ga. 85; Dusenberry v. State, 8 Stew. & Port. 808; State v. Tackett, 1 Hawks, 210; Oliver v. State, 17 Ala. 599; Com. v. Seibert, "Wharton on Homicide, 227; Wright v. State, 9 Terg. 842; Franklin v. State, 29 Ala. 14; Cotton-v. State, 31 Miss. (2 George), 504; Pritchett v. State, 22 Ala. 39; State v. Hicks, 6 Jones (Mo.) 588'; Payne v. Com.., 1 Met. (Ky.) 370.
    IY. The jury should have been instructed that they might find the accused guilty of an assault and battery. 1 Chitty Grim. Law, 250, 638; Stewart v. State, 5 Ohio, 242; Sharp v. State, 19 Ohio, 379; 2 Campb. 84, 583; 1 Leach, 36, 88; 2 East P. C. 516-518; 2 Hale, 352; Hawkins, b. 2, c. 47, secs. 4-6; 1 Burr. 399; Hudson v. State, 1 Blackford, 318; Durham v. State, 1 Blackford, 33; Morris v. State, 1 Black-ford, 37; State v. McCoy, 2 Aiken (Yt.), 181; Roscoe Big. Grim. Ev. 74; 1 Stark. Ev. (5 Am. ed.) 418; State v. Burt, 25 Yt. (2 Beane), 373; Foley v. State, 9 Ind. 363; State v. Bowling, 10 Humph. 52. This was expressly decided in State v. Steedman, 7 Porter, 495; Clark v. State, 12 Ga. 350; 1 Bishop Grim. Procedure (2 ed.), sec. 478; 1 Wharton Grim. Law (5 ed.), secs. 383-385, 560-565, 617-627; R. v. Mitchell, 12 Eng. Law & Eq. 588; Carpenter v. State, 23 Ala. 84 State v. Kennedy, 7 Blackford, 233; McBride v. State, 2 Eng. (Ark.) 374; Reynolds v. State, 11 Texas, 120; Com. v. Kirby, 3 Cush. 577; Fanned v. Com., 12 Met. 240; Carpenter v. People, 4 Seam. 197; Gillespie v. State, 9 Ind. 380; Johnson v. State, 14 Ga. 55; Cameron v. State, 8 Eng. (13 Ark.) 712.
    Y. The refusal to receive evidence of the bad character of the acting and de facto wife of the accused was a denial of justice. The offer to impeach was at the first moment when it became material and possible. Judicial discretion can never be allowed to defeat the ends of justice.
    
      
      Price ‡ Martin, also for plaintiff in error :
    The court erred in excluding testimony as to the violent, vicious, and dangerous character of the deceased.
    For the rule as to the admissibility of such testimony, see 1 "Wharton Crim. Law, sec: 641, and eases there cited.
    The court erred in its instructions to, and in its refusal to instruct the jury.
    It seems to us a monstrous doctrine that if a man is misled concerning facts, without his own fault or carelessness, he is nevertheless criminally responsible if it should turn out that he was mistaken. To establish such a principle is to remove the foundation-stone of all criminal jurisprudence, for “ the doctrine of intent, as it prevails in the criminal law, is necessarily one of the foundation principles of public justice. There is only one criterion by which the guilt of men is to be tested. It is whether the mind is criminal,” etc. 1 Bishop Crim. Law, see. 287 (5 ed.)
    For the rule, see 1 Bishop Crim. Law, secs. '303, 305 (5 ed.); and also see Territory of Washington v. Fisk, Am. Law Rec. for Nov., 1874; Coffman v. Commonwealth, Am. Law Ree. for Jan., 1875; Wharton on Homicide, 418.
    The decisions cited are so consonant with natural reason, that it is difficult to see why the doctrine has ever been doubted. They are in accordance with the maxim—“Actus non faeit reum, nisi mens sit rea.”
    
    
      Duncan Dow and J. Duncan McLaughlin, for the state.
   Welch, J.

We think the court was wrong in its instructions to the jury as to the law of self-defense. Homicide is justifiable on the ground of self-defense, where the slayer, in the careful and proper use of his faculties, bona fide believes, and has reasonable ground to believe, that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, although in fact he is mistaken as to the existence or imminence of the danger The fact of the existence of such danger is not an indispensable requisite.

Such being the law of the case, it follows, we think, that the court erred in ruling out the evidence of the “ violent, vicious, and dangerous character” of the deceased. That evidence, offered as it was in connection with proof that this character of deceased was known to defendant, was competent for the purpose of showing that the homicide was justifiable on the ground of self-defense. It tended to show the quo animo of the prisoner, and it was for the jury to determine its weight. It could only be used for that single purpose, and could not be considered or used for the purpose of disproving the homicide, or of showing that the prisoner was assaulted, attacked, or menaced by the deceased. It will be observed that the evidence so offered and rejected was not evidence of the reputation of the deceased, but evidence of his “ character.” We suppose that evidence of the reputation of the deceased as being a vicious, violent, or dangerous person, could only be given after the introduction of testimony tending to show that such was in fact his character, and then only for the purpose of proving that the prisoner had notice of that character. In other words, the dangerous character of the deceased can not be proved by proof of his reputation, but notice of that character to the prisoner may be shown by proof of such reputation, in connection with proof that the prisoner had the means of knowing that reputation.

We are also of opinion that the court erred in rejecting the testimony offered to impeach the witness recalled by the state. As we understand the record, it was not until the witness was recalled that she testified to anything that was disputed, either by the defendant or any of his witnesses, and therefore he had no occasion to impeach her until after her re-examination. To hold that it was too late then to impeach her, would be to require him to impeach a witness whose testimony he believed to be true, or rather to deny him the right of impeachment altogether.

Ve hold also that the court should have instructed tho jury, as requested, that it was competent for them, if, in their opinion, the evidence justified it, to find the defendant guilty of an assault and battery only, and that the refusal of the court to give such an instruction was error to the prejudice of the defendant. It is true that if death resulted from the unlawful assault and battery, the assailant was guilty of manslaughter; but the jury might have foumj. that it resulted from some other cause. Had the court charged the jury, that if they found that the death resulted from the assault and battery, they could not properly find him guilty of assault and battery only, the charge would have been right.

Several other assignments of error are made upon the record; but we deem it unnecessary to notice them, further than to say, that in our judgment they are not maintainable

Judgment reversed and cause remanded.

McIlvaine, 0. J., White, Rex, and Gilmore, JJ., concurred.  