dissenting.
Most lawyers devoting thoughtful consideration to the law of homicide in this State, as embraced in our statute and decisions upon the subject, will be forcibly impressed with the uncertainty of this law, and the difficulty of its administration. The law relating to this subjcet is of the highest importance, the penalties imposed by it, the severest known to our criminal jurisprudence, and because of its importance it ought to be certain and definite, and not beclouded by the introduction of subtle and- refined distinctions and theoretical impracticable qualifications, which can neither be understood nor given practical application by juries. The statute itself is in many 'respects exceedingly indefinite and uncertain,' so much so that a court in many cases can never feel that a particular construction given to it is the correct one. *124This court has sometimes felt that the statute was not designed for the purpose of remedying defects in the common law relating to homicide, and of making definite and certain matters relating to that offense which were uncertain at common law, as many other courts have regarded similar statutes, but as creating statutory offenses to be ascertained and prosecuted by reference to the statute alone, without invoking the aid of the common law upon the subject in its construction, and without reference to the common law presumptions upon the subject of homicide, except as they might or might not be drawn and applied by the jury as presumptions of fact, while’ at other times the court has felt it proper to approve and apply to the law of homicide under the statute, certain legal presumptions recognized by the common law relating to this offense. See Adams v. State, 28 Fla. 511, 10 South. Rep. 106, and the previous Florida cases referred to therein as illustrating some of the rulings along this line. The statute relating to self-defense provides that homicide is justifiable “when committed in the lawful defense of such person when there shall be a reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.” The statute does not in terms make the defendant’s belief of any fact an essential element of his right of self-defense, nor is the word belief used at all. But the court in several cases has held that the accused must believe and have reasonable ground to believe that his life was then in imminent danger or that he was in imminent danger of great bodily injury, or he will not be justified. Smith v. State, 25 Fla. 517, 6 South. Rep. 482; Wilson v. State, 30 Fla. 234, 11 South. Rep. 556; Lovett *125v. State, 30 Fla. 142, 11 South. Rep. 550; Ballard v. State, 31 Fla. 266, 12 South. Rep. 865. It is possible that by the common law the belief was an element in self-defense, and this element recognized by our decisions as necessary under the statute must therefore have been so found by construing the statute in connection with the common law. Perhaps the decision in this case will introduce a further qualification of the law of self-defense by requiring the defendant to show that his belief was a “real, honest” one, as one of the questions asked the defendant and excluded by the trial court was whether his belief or apprehension of danger was. a “real, honest belief” on his part or not. In some jurisdictions the defendant’s belief of imminent danger when entertained without fault or carelessness on his part is of primary importance, but under our statute a reasonable ground for belief is the essence of the right to act in self-defense, and the belief of the accused, if necessary at all, is of secondary importance and will be presumed to exist whenever reasonable ground is shown. This distinction should not be lost sight of in considering the decisions in other States upon the subject. It may be well to remark just here that this court has never held that defendant can testify to his belief, or intimated that testimony upon that subject is admissible, or that the belief would not be presumed in all cases where reasonable ground is shown. Our decisions up to this time seem to divide self-defense into two branches, viz: Reasonable ground to believe, and belief based upon such reasonable ground. The reasonable ground can exist only where the defendant is surrounded by such circumstances that a reasonably prudent man, standing in defendant’s shoes, knowing what he knew, seeing what he saw, and hearing what *126he heard, would be induced to believe or apprehend a design to commit a felony or to do some great personal injury and that there was imminent danger of such design being accomplished, and if the reasonable ground thus defined does not exist, self-defense can not be invoked, even though the defendant had a belief, or a “real, honest” belief, that reasonable ground did exist, or that his person or life was then in imminent danger. Wilson v. State, 30 Fla. 234, 11 South Rep. 556; Padgett v. State, 40 Fla. 451, text 458, 24 South. Rep. 145; Frank v. State, 94 Wis. 211, 68 N. W. Rep. 657; Perugi v. State, 104 Wis. 230, 80 N. W. Rep. 593. I cite Wisconsin cases because the Wisconsin statute upon the subject of homicide is almost identical with our statute of 1868, which, though amended in some respects by our Revised Statutes, is still the basis of our la.w of homicide. It has also been held that if the evidence upon the subject of self-defense in a case goes far enough to raise a reasonable doubt in the minds of the jury, it is sufficient for acquittal whether the jury are satisfied upon the point or not. Hubbard v. State, 37 Fla. 156, 20 South. Rep. 235. Applying this rule to the two branches of the law of self-defense, it results that there need not in fact be reasonable ground to believe, as required by the statute, nqr in fact á belief as required by our decisions, but that a reasonable doubt, whether nr not a reasonable ground existed, coupled with a reasonable doubt whether or not defendant believed, will require acquittal; while on the other hand a finding that reasonable ground existed, but that defendant had no belief upon the subject—having acted instinctively without time for forming a belief— must necessitate conviction, and hereafter perhaps in consequence of this decision juries will be further mysti*127fied and confused by being required to determine whether there is a reasonable doubt as to the belief being “real and honest,” and required to convict persons having reasonable grounds to believe, and believing, in cases where the belief is not a “real and honest” one. It seems to me that the law upon the subject, just at this point, goes to seed as it weie, and is incapable of any further growth or higher development. It becomes too finespun and abtruse to be intelligently administered by courts and juries, and in my humble judgment the doctrine relating to the defendant’s belief can not be further extended along the lines pointed out in the previous décisions of this court without destroying its efficiency and vitality. I think we may safely hold as was intimated in Lovett’s case, 30 Fla. 112, 11 South. Rep. 550, that while the law does not regard the defendant’s belief as immaterial, yet the law regards homicide committed under such circumstances as under the statute constitute reasonable ground to believe, as done under the impelling influence of a reasonable belief that the necessity exists and therefore excuses the homicide the same as if the necessity had been real, instead of merely apparent; in other words, that when reasonable ground is shown to exist, the law conclusively presumes the belief, and therefore evidence upon that subject is immaterial. This is evidently in keeping with the language of the statute which does not make the belief an essential element to be proved upon the trial (White v. Maxcy, 64 Mo. 552; State v. Gonce, 87 Mo. 627), and I am not sure that a different rule obtained at common law. In this view it seems to me the court below ruled correctly in declining to permit the defendant to testify to his belief, or to state that he entertained a “real, honest” belief. I am also of opinion that *128the ruling was correct for another reason, viz: because there was no evidence showing reasonable ground for such a belief, and, therefore, the defendant’s belief under our decisions was wholly immaterial. This question 1 will discuss more at length hereafter. T am also of opin ion that conceding the law to be that defendant had a right to testify to his belief, the error in rejecting the two questions propounded upon that subject was harmless, in view of the fact that defendant was during his examination, permitted to state hiis1 belief and the grounds upon which it was based without objection as is shown by the statement of defendant’s testimony in the opinion of the court.
In respect to the fourteenth instruction given by the trial court, it is, under recent decisions of this court, unquestionably erroneous, if considered alone without reference to other instructions given, but I do not agree to the proposition that when read in connection with the other institutions in the case, the jury could have been misled by it. The jury we must assume construe,dl and applied it in connection with the other instructions, and those instructions fully secured to the defendant the right to an acquittal, if from the evidence a reasonable doubt of his guilt appeared, or if he acted in lawful defense of himself when the danger was only apparent as well as when real. More than one specific instruction upon the subject of self-defense emphasized the fact that apparent danger was all that the law required, and in each of them the danger of great bodily harm as well as danger to life were fully recognized as elements in self-defense. By one instruction the jury were told that the law did not require the defendant to prove himself innocent, but that it required the prosecution to prove him guilty t *129the satisfaction of the jury beyond all reasonable doubt, and unless this was done defendant must be acquitted, Under my view of the matter, taking the entire charge of the court into consideration, the general language used in the fourteenth instruction was fully explained and qualified by the other instructions, so that it did not and could not convey the broad meaning which, standing alone, it would naturally bear. The jury could not under the entire charge have supposed that the law required the defendant to satisfy them further than to produce in their minds a reasonable doubt, or that it required the danger to be real, or to be to life as distinguished from great bodily harm, or great personal injury. I can not procure my consent to a reversal of the judgment upon the supposed errors in this instruction, for to my mind those errors are entirely eliminated when the charge is taken as a whole. I am also of opinion that there was no testimony in this case which, if true, would justify the defendant in his act on the ground of self-defense, and therefore, that any error that may have been committed by the court in refusing to permit the defendant to testify as to his belief, or in giving charges upon the subject of self-defense should not work a reversal of the judgment. Under our statute, as has been shown, there must be a reasonable ground to apprehend a design to ■commit a felony or to do some great personal injury, and reasonable ground to apprehend imminent danger of such design being accomplished, in order to justify the accused. If this reasonable ground does not exist, his act can not be justified, though he believed that the reasonable ground did exist, or that his life was in danger. If, therefore, the testimony in the case was such that upon no view of it could the jury lawfully find that such cir*130cumstances existed as would constitute reasonable ground, that is, such as would induce a reasonably prudent man to believe that the deceased designed to commit a felony or to do some great personal injury, and further to believe that there was imminent danger of such design being accomplished, there is no self-defense in the case, and "as no other defense was suggested by the evidence, the defendant could not lawfully have been' acquitted, even though error in these respects had intervened. The proof is ample that defendant killed the deceased, and if he did not act in self-defense, his act was unlawful. Of course the jury must ascertain the existence of the facts which go to make up a case of self-defense, but when the facts are ascertainned the law declares whether such facts are sufficient to constitute self-defense. Gladden v. State, 12 Fla. 562; Long v. State, 52 Miss. 23. In more than one case this court has held as a matter of law that certain facts shown in evidence did not constitute self-defense, and has held that error in instructions given upon the subject of self-defense or in refusing instructions upon that subject in such cases should not work a reversal of the convi ctior. Smith v. State, 25 Fla. 517, 6 South. Rep. 263; Ballard v. State, 31 Fla. 266, 12 South. Rep. 865; Johnson v. State, 29 Fla. 558, 10 South. Rep. 686. There is no testimony aside from the testimony of the defendant as a witness tending to show any overt act on the part of the deceased. Two witnesses for the defense testified to threats, one that about a week before the homicide deceased said he thought defendant did not like him; that if defendant wanted a fuss he could get it and that deceased would shoot' it out or cut it out with him; another, that a few minutes before the homicide deceased said he was going to see defendant about his *131check, and if defendant did not make it right he would go into the office and knock him out. Neither of these threats was communicated to defendant before the homicide. The defendant as a witness stated that the pistol he used was a self-cocking one; that the deceased never secured either the deerfoot or the hatchet; that he stood at his desk when he fired, shooting over the lattice gate between him, and the deceased, and that he was about eight or ten feet from deceased when he fired. The remainder uf his testimony relating to the claim of self defense is substantially stated in the opinion of the court. Under the circumstances detailed by this witness, in my judgment, there was no such state of affairs as wouldjiave induced a reasonably prudent man situated as defendant was to believe that his life was in imminent danger, or that he was in imminent danger of great personal injury. There had been no previous quarrels between the parties, and though the deceased had made threats against the defendant, the latter did not know it; the deceased was unarmed when shot, therefore did not go prepared with a deadly weapon to execute his threats, and the defendant had no cause to suspect that deceased was armed or designed to injure "him when the quarrel between them first began. The defendían! during the controversy about the check gently pushed the deceased, requesting him to go out of the office, deceased did go after some hesitation, after which the parties were cursing; defendant in his office, deceased walking up and down the counter, but ai no -time did the deceased say to the defendant anything that indicated a present or future purpose to do him personal injury. Words increased and excitement grew higher and finally while deceased was walking up and higher, and finally, while deceased was walking up- and *132out. Deceased turned, cursed and started toward defendant, advancing rapidly in an angry and very excited manner, with his right hand extended over the railing of the counter reaching over to where the deerfoot and hatchet were lying, and defendant turned to the drawer of his desk took out his pistol and fired two shots in quick succession. Defendant turned to his drawer for the pistol when he saw deceased thus advancing, secured it and fired before the deceased had succeeded in procuring either the deerfoot or hatchet, if it can be said such was his purpose. Under the facts, as I have stated them, it is not clear that deceased was really or apparently attemptii)|g to secure the deerfoot or hatchet, but admitting that he was, where is the fact or circumstance tending to show that he apparently proposed to use it instantly, or to show that he: could apparently have used'it effectively, at the distance he was from the defendant? The law of self-defense does not ordinarily permit a deadly weapon to be used as a precautionary measure, before imminent danger arises, but only in cases where the design to do great personal injury is apparent and where the danger of such design being accomplished is imminent. It seems to me that the utmost that can be claimed from the defen-dant’s testimony is that there was apparently a design on the part of the deceased to procure a weapon and apparently imminent danger of such design being accomplished, 'but these facts alone are insufficient to constitute self-defense. Had deceased actually procured the weapon, the defendant would not have been in imminent danger, • for with a self-cocking pistol in his hand, he could safely have waited until deceased manifested his supposed design by continuing to advance upon him in a threatening ^manner after securing the hatchet or deerfoot, thus evi*133dencing a purpose to assume a position where his weapon would be effective. It is not claimed that deceased manh fested a purpose to secure the hatchet or deerfoot and throw it at defendant, but rather the contrary, because defendant says he supposed deceased was “coming to either murder me or beat me.” To my mind the defendant, according to his own statement, acted too hastily, for with a self-cocking pistol in hand there was no necessity for him to act, or rather the danger to him was not apparently imminent until deceased had placed his hand upon the weapon he was apparently endeavoring to secure, and indicated by some word or act an intention to use it. The word imminent in tin- st.-.tate excludes the idea that defendant may act before there is really or apparently a pressing necessity therefor, and in this case no such necessity existed, according to his own statement. There being no reasonable ground for belief, the defendant’s belief is entirely irrelevant, and the law' of self-defense does not apply to the facts of this case.
I have not attempted to determine the oreddbility of any testimony in the case, as it would not be proper to do so, but have considered as true everything in the evidence that tends to support the plea of self-defense, and my conclusion is that there is nowhere in the evidence a showing of reasonable ground for believing that defendant was in imminent danger when he fired the fatal shot. I think this case can be disposed of without passing upon the question whether an accused must be personally present when a special venire for jurors to try his case is ordered or drawn, hence express no opinion upon that subject.