(dissenting). — The thirtieth and thirty-second assignment of error are based upon exceptions taken to the refusal to give the following instructions: No. %. “A person whose life or limb has been threatened by another has a right to arm himself to protect his life or limb from anticipated injury. He is not compelled to keep away from where his adversary is if he has lawful business where he is likely to meet his adversary. He has no right to arm himself for the purpose of hunting down his adversary or killing him, but if he arms himself for self-protection and meets his adversary and such adversary makes an overt demonstration calculated to induce in the mind of a reasonable, cautious man a belief from the circumstances by which he was surrounded that his life or person is in imminent danger unless he fires the fatal shot, then he has a right to use the weapon with which he has armed himself for self-protection, and if he does so and kills his adversary, the killing is excusable.”
No. 5. “If you believe from the evidence that on the *187morning of the homicide the defendant went to the railroad shops in Fernandina for the purpose of getting his tools, or for other lawful purpose, and that while walking in the direction of where his tools were he was spoken to by the deceased, and if you further believe from the evidence that the deceased advanced towards him and that the de« ceased used opprobrious language and threatened to kill the accused or put him out of the shops, [and if you further believe that the conduct and actions coupled with the threatened language of the deceased was such as to induce a reasonable, cautious man to believe from the circumstances by which he was surrounded that his life or person was in imminent danger unless he fired the fatal shot, then the killing would be excusable, and from the circumstances as they appeared to the defendant Sylvester in the light of the evidence must be adduced the excusing belief of the existence of imminent danger to his life or person].”
The testimony for both the State and the defense showed that on the morning of the homicide the defendant was notified that he was discharged by order of the deceased, and that he thereupon left the shops where he was employed, but .subsequently returned armed with a pistol which he had procured while away, and there was testimony tending to prove every fact hypothesized in the refused instructions.
The fact that defendant armed himself and returned to the shops where he had reason to know the deceased would be found was one of the most incriminating circumstances proven against him. According to his testimony he armed himself for self-protection only, fearing the deceased would attempt to carry out his threats -of the day before, and went to the shops not for the purpose of provoking a difficulty with the deceased, but to get certain .tools which he had left there, and to get his travelling card stamped and the money due him for work in the shops. He had a right to an instruction from the court that if the facts so testified *188to and hypothesized in the instruction were true he would not be deprived of his right of self-defense by reason of procuring the weapon and returning to the shops with it. The court had not defined the expression “reasonably free from fault” and “provoke a difficulty,” used in the general charge, and the refusal of the second instruction left the jury free to say that even though defendant armed himself for self-protection alone and returned to the shops for legitimate purposes, and with no intention of harming the deceased, yet such conduct placed him in the wrong in the inception of the difficulty, thereby forfeiting his right of self-defense. The fact that defendant went away, armed himself and returned, was one from which the jury could and most probably would draw influences most harmful to defendant, and he had a right to guard against improper inferences if as a matter of law under the circumstances stated in the instruction he had not forfeited his right of self-defense by such conduct. The instruction was correct, and the court committed an error from which injury may have resulted to defendant, in refusing it. Gourko v. United States, 153 U. S. 183, 14 Sup. Ct. Rep. 806; Blalack v. State, 79 Miss. 517, 31 South. Rep. 105. See, also, Smith v. State, 25 Fla. 517, 6 South. Rep. 482. The court did instruct the jury that “a person who goes to a .place on lawful business and is suddenly attacked in such manner and under such circumstances as would lead a reasonably prudent man to believe that he was in imminent danger of death or great personal injury, and does believe this, and that it was necessary to fire the fatal shot to avoid such danger, and acting on this belief does fire a fatal shot, is not required to retreat to the wall, but may stand his ground,” but this is quite a different thing from saying that the party under such circumstances will be excusable, or that if a party goes to a place on lawful business and is suddenly attacked, he may kill in self-defense even though he had previously armed himself, if such arming was only *189for the purpose of self-defense, as required in, the refused instructions.
The twelfth instruction given on behalf of defendant was practically the same as the fifth refused, except that it omitted the words “or for other lawful purpose,” required the defendant to believe that his “life or limb was in danger,” and omitted the words “and from these circumstances as they appeared to the defendant Sylvester, in the light of the evidence must be adduced the excusing belief of the existence of imminent danger to his life or person.” Although the court in its general charge instructed the jury that the defendant must not only have had reasonable ground to believe, but that he must have believed that he was in imminent danger of death or great bodily harm in order to justify the killing on the ground of self-defense, there was nowhere in the charge a suggestion as to how the jury were to ascertain the existence or nonexistence of the belief. The latter portion of the fifth requested instruction was pertinent and material because it told the jury how they were to ascertain whether the belief existed or not, to-wit: from the circumstances as they appeared to the defendant in the light of the evidence, and this part of the instruction, together with all that I have included in brackets, was copied almost literally from the opinion in the case of Pinder v. State, 27 Fla. 370, 8 South. Rep. 837. There is not a suggestion in the testimony tending to show that if reasonable ground existed for exercising the right of self-defense, the element of belief on the part of Sylvester was lacking. On the contrary, he testified to his belief on that subject, and there was nothing whatever to contradict it. It may be said, therefore, that there was • no issue between the State and the defendant as to the fact of actual belief, but only as to reasonable ground, and such being the case the court should have given the instruction asked, even though it be construed as requiring rather than authorizing the jury to find or infer the belief from the ex-*190isteince of the reasonable ground. This as I understand is in accordance with the decision in Pinder’s case and with the ruling in Lovett’s case, 30 Fla. 142, text 164, 11 South, Rep. 550, where it is said that while the law does not regard the belief as immaterial yet where there is such an apparent necessity as would naturally cause a reasonably cautious or prudent man to believe that the necessity was actual, a defendant acting under such circumstances will be accredited by the jury with the belief that the danger was actual and the killing will be excusable, and that the law regards homicide committed under such circumstances of apparent danger as done under the impelling influence of a reasonable belief that the stated necessity exists, and, therefore, excuses the killing the same as if the necessity had been real instead of merely apparent. I do not regard the case of Lane v. State, 44 Fla. 105, 32 South. Rep. 896, as modifying or everruling the Pinder and Lovett cases. In Lane’s case the only question considered was whether evidence as to the defendant’s belief was material, and this question was answered in the affirmative. No question as to the propriety of charges upon the subject was there involved, and as the charge requested in this case is in accordance with the Lovett and Pinder cases it should have been given under the facts developed in evidence here. The court in this case by holding this instruction properly refused extends the doctrine of the Lane case so far as to overrule the authority of the Pinder and Lovett cases to the proposition I have cited, although those cases are not referred to in the opinion. I regret that such is the case, for under our rulings, the right of self-defense is out of harmony with decisions elsewhere under similar statutes, and out of harmony with decisions following the common law. Perhaps the nearest approach to our doctrine is maintained in South Carolina where it is held that the jury should not ask themselves the question what they would have done under the circumstances surrounding the accused *191at the time, nor should they place themselves in the shoes of the defendant at the time, but they should look carefully at all the circumstances surrounding the accused as they appeared at the time the fatal wound was inflicted and ask themselves two questions: first, did the accused at the time believe that he was in such immediate danger of losing his life or sustaining serious bodily harm that it was necessary for his own protection to take the life of his assailant; second, were those circumstances such as would justify such a belief in the mind of a person of ordinary firmness and reason. State v. Wyse, 33 South. Car. 582, 12 S. E. Rep. 556. I do not find that this doctrine is maintained in any other State. The Supreme Court of the United States hold that the defendant must believe under circumstances that would lead a reasonable preson to believe. Allen v. United States, 164 U. S. 492, 17 Sup. Ct. Rep. 154. In West Virginia and Indiana it is held that the defendant must believe upon grounds which the jury think justified him in believing, and condemn instructions which require the circumstances to be such as to create reasonable apprehension in the mind of a man of ordinary intelligence and courage, or in the mind of a man of ordinary prudence. State v. Cain, 20 West. Va. 679; Batten v. State, 80 Ind. 394, two well considered cases. The rule in this State is that the defendant must believe upon grounds that would induce a reasonable, prudent and cautious man to believe, Morrison v. State, 42 Fla. 149, 28 South. Rep. 97, and in Lane's case we held that evidence as to defendant’s actual belief is not admissible unless and until reasonable ground, i. e., such appearances as would induce a reasonable, cautious and prudent man to believe, is first shown, thereby in effect holding that defendant’s belief becomes material only when reasonable ground is shown. In Missouri, where the statute regulating self-defense is like ours, the court says “the question propounded to the defendant when on the stand as a witness as to whether he really apprehended that unless *192he shot White, he, White would inflict great bodily harm on him, was properly excluded. The answer to such a question would have been perfectly immaterial and entitled to no weight whatever. The statute provides that a homicide shall be justifiable ‘when there shall be reasonable cause to apprehend a design to commit a felony or to do some great personal injury, and there shall be reasonable cause to apprehend immediate danger of such design being accomplished.’ The question to be settled by the jury was, whether the defendant had reasonable cause to apprehend injury to his life or limb. It was a matter of no importance whether the defendant imagined himself to have reasonable cause to apprehend danger or not, his opinion about the matter was of no importance and was not legitimate evidence. It was for the jury to say, on the facts in evidence, whether the defendant had reasonable cause to apprehend danger to his life or limb or not.” White v. Maxcy, 64 Mo. 552. This ruling is repeated in State v. Gonce, 87 Mo. 627. In Wisconsin, from which State I feel sure our statute was adopted; the court say in Clifford v. State, 58 Wis. 477, text 487, 17 N. W. Rep. 304, “the appearances must have given the defendant reasonable ground to apprehend that such design would be accomplished, not that they caused him to apprehend the danger, reasonably or unreasonably, because to ascertain such a state of condition of the mind of the defendant would be impossible. The language of the statute is ‘when there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury and there shall be reasonable cause for believing that there is imminent danger of such design being accomplished,’ etc. The statute precludes any other criterion than reasonable ground to apprehend and reasonable cause for believing. The statute can not be extended by construction or by other language, and a trial court can not do better than instruct the jury in the precise language of the statute.” And in that State *193it seems that the defendant’s right of self-defense is to be tested by what an ordinarily prudent man would have done in the position of the accused, hearing what he heard, seeing what he “saw, knowing what he knew. Perugi v. State, 104 Wis. 230, 80 N. W. Rep. 593; Frank v. State, 94 Wis. 211, 68 N. W. Rep. 657. The doctrine maintained by the great text-writers seems to be that in determining what is reasonable ground, it must be judged of from defendant’s standpoint, as a reasonable man, and not from that of the ideal “reasonable, cautious and prudent man.” 1 Bishop’s New Crim. Law, sec. 3052 and note, 874; Wharton on Homicide, sec. 493 et seq. This court should hold either with those following the common law that the defendant’s actual belief based upon grounds reasonable to him, or with those having statutes like ours that reasonable grounds alone, i. e., such as would induce a reasonable, prudent and cautious man to believe, will justify on the ground of self-defense. But we hold with neither when we say the defendant must have believed upon grounds that would have induced a reasonable, prudent and cautious person to believe. But aside from these considerations, how is the defendant’s belief to be ascertained? And what amount of proof must there be to require the jury to find its existence? The belief must ordinarily be proved by circumstances. It must be deduced as an inference from facts proven. If the facts shown in evidence be such that a reasonable, cautious and prudent person, placed in defendant’s situation, would have believed his life in imminent peril and the defendant acted under such circumstances,does not this prove the defendant’s belief? The matter of belief is an operation of the mind. If the mind of a reasonable, cautious and prudent person would have been impressed by the circumstances with a belief, can it be said the defendant’s was not? We can ordinarily ascertain the existence of a belief in one person only by . inquiring what others would have believed under like circumstances. The fact that the defendant (who is the *194only person that can give direct testimony as to belief) may testify as to his belief does not alter the question, for the credibility of his testimony will inevitably be tested by the rule as to what others would have believed under like circumstances. The instruction here under consideration, giving it the most strained interpretation, merely told the jury that if the circumstances were such as to induce a reasonable, cautious and prudent man under like circumstances to believe, then the defendant must be accredited with the requisite belief, and in view of the fact that defendant testified that he. did believe, and there was no evidence tending to show that he did not believe, the instruction should have been given. I have not found a single case, nor does the court cite one, where it has been held that proof of circumstances and overt acts sufficient to induce a reasonably cautious and prudent man to believe would not as a matter of law be sufficient to prove that the defendant believed when acting under the same circumstances. In reason those facts are sufficient, and if the law so deems them the court should so instruct the jury. I have not overlooked the usé of the word adduced-for deduced used in this instruction, which I think could not have misled the jury, nor the-use of the words “life or limb” and “life or person,” used in both instructions, instead of the words “life or some great personal injury.” The same words are used in the general charge of the court, and in other instructions given on behalf of defendant, and taken in connection with the general charge, the jury could not have been misled into the belief that those words as used implied less than the words “life or some great personal injury.” I understand the court approves the ruling refusing the instructions upon two grounds: 1st. Because they omit to state the rule as to self-defense when the party is himself at fault and was the aggressor in the difficulty. 2nd. Because they do not correctly instruct the jury as to defendant’s belief. I have already considered the fifth request in the light of the *195second objection and as to the second instruction I do not think the last objection is tenable for two reasons: 1st. Because the court in its general charge and in instructions given on behalf of defendant told the jury that defendant must have believed, in order to be justified, so that the jury could not have been misled in that respect by giving the charge asked; and, second, even if the charge is.open to the construction that it tells the jury as a matter of law that the facts stated require a finding of the requisite belief, I think it was correct under the facts of the case, for reasons already stated. As to the other objection, viz: that the instructions omit to state the rule as to self-defense when the party is himself at fault and was the aggressor in the difficulty, the court had already in the general charge fully and elaborately instructed the jury that in order to justify on the ground-of self-defense the defendant must himself have been reasonably free from fault and must not have provoked the difficulty. In the case of Padgett v. State, relied on to sustain this branch of the contention the proofs both for the State and the defendant tended to show that the defendant was not free from fault, so that the requested instruction in that case unqualified as it was, was not justified by the facts. But here the testimony for defendant tends to .show the contrary, and he had a right to an instruction based upon the truth of the evidence produced 'by him. Besides, in view of the general charge of the court, the jury could not by this instruction have been misled into supposing that if defendant provoked the difficulty he could avail himself of the right of self-defense. I think there was no error in refusing the other requested instructions assigned as error, because they were all in substance embraced ih the charges given.
The matters sought to be presented under the fortieth assignment of error are not properly before the court because not assigned as error. Besides, some of the argument of counsel now asserted to have been harmful and improper *196was not excepted to at the time, and this can not be considered for that reason. Having determined that the matter is not so presented as to require consideration I think the court is not justified in going further and deciding upon the matter, for even though not strictly obiter, it is wholly unnecessary, and my experience has taught me that intimations as to the law upon matters not necessary to be decided, bring trouble to an appellate court, and confusion in the law. Courts are not so careful to be right in their remarks upon matters not necessary to be decided,, nor to state the legal principles with exactness. For these reasons I express no opinion upon these matters.
Upon other questions discussed in the opinion, while I do not agree to all that is said regarding some of them, I concur in the conclusions reached.