
    PEOPLE v. TILLMAN.
    Assault and Battery — Self-Defense — Evidence — Previous Assault.
    A person charged with assault and battery, who claims to have acted in self-defense, may show that on the previous day the complaining witness made an assault upon him for the same cause, as tending to justify a belief that he was in the act of commencing another assault.
    Error to Houghton; Streeter, J.
    Submitted November 20, 1902.
    (Docket No. 218.)
    Decided December 16, 1902.
    Arthur A, Tillman was convicted of assault and battery.
    Reversed.
    Respondent was convicted of assault and battery upon one Komoll. Komoll testified that he had pawned certain tools with the respondent, and secured thereon a loan of $2, for which he had agreed to pay 50 cents. Respondent testified that he had purchased them, and afterwards sold them back to Komoll. Komoll paid respondent $2.50, and received back the tools.- Upon examining them he claimed that some were missing. He charged respondent with taking them, and threatened him with criminal prosecution. Komoll entered the store of respondent, charged him with taking some of the tools, and an affray between them-ensued, each claiming that the other was the aggressor and struck the first blow. On the day previous, Komoll and respondent met upon the street, and Komoll then charged respondent with taking some of the tools. An altercation there ensued, in which each charged that the other was the aggressor. The details of the transaction between the two were fully detailed to the jury. The court instructed the jury that the altercation upon the street the day before could not be considered by them, except as it bore bn the credibility of the witnesses, and added:
    
      “But it would have considerable bearing — might have a considerable bearing — if the case rested alone on the complaining witness and on the testimony of the. defendant as to which one was likely to be the aggressor on the night of the 12th.”
    
      W. A. Burritt, for appellant.
    
      Oscar J. Larson, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). We think the court erred in this instruction. The affray took place in the respondent’s store. He claimed that he acted in self-defense. The complaining witness admitted that he was under the influence of liquor when both altercations occurred. Previous assaults, the conduct and threats of the complaining witness, were competent for.the jury to consider in determining the state of mind of the defendant and the character of his acts. The respondent was justified in acting in view of the surrounding circumstances as they appeared to him at the time. If the complaining witness had made a previous assault upon him for the same cause on the day before, and his attitude and conduct were such as to justify a belief that he was in the act of commencing another assault upon him, the law did not require him to wait until an actual assault had been made. Galbraith v. Fleming, 60 Mich. 403 (27 N. W. 581).

Conviction reversed, and new trial ordered.'

The other Justices concurred.  