I dissent. The claim upon the part of appellants that the verdict of the jury was against the evidence cannot be upheld. There was clear proof of a voluntary tilling, from which the law raised a presumption of malice. To rebut this presumption the burden of proving self-defense devolved upon defendants, and, since the jury were not bound to believe the testimony of their witnesses, it cannot be said, as matter of law, that the verdict is without evidence to sustain it. *98I cannot, however, agree with the view of the evidence taken in the opinion of the court, wherein it seems to be held that even if it is accepted as true it does not make out a case of self-defense.
The road in question was one which had been used by the defendants and others for years, and was the only means of ingress and egress to and from the valley for loaded wagons. The deceased, when he came to live on the place where he was killed, found the road open and in common use across the public land upon which he was merely a settler, and the evidence shows without contradiction that he sought and obtained the consent of his neighbors, including these defendants, to inclose this road upon the express condition that he should construct a new road outside of his inclosure in all respects as good as the old road. In pursuance of this agreement he put a wire fence across the old road, and made a pretense of constructing a new one, but the evidence, which is wholly uncontradicted, abundantly shows that the new road was impassable for loaded wagons. It was with difficulty that half a load could be hauled over it, and defendants and others were obliged to make two trips to bring in one load. The defendants could not market their produce or obtain supplies for their families. Under these circumstances, they announced to deceased their intention to resume the use of the old road, whereupon he plainly told them that he would kill any man who attempted to pass that way.
Emphasis was imparted to this threat by the notoriously had character of deceased. The evidence shows abundantly and without contradiction that he was a quarrelsome, turbulent, and dangerous man, always armed and ready on every occasion to resort to violence. The defendants, on the contrary, were shown to have been men of quiet and peaceable disposition. This, then, was the situation of affairs: The defendants, by the wrongful act of the deceased, were shut off from the only practicable road by which they could take their produce to market or bring in supplies for their families. They were in urgent need of relief: they had a clear legal right to travel over the old road; the obstructions erected by deceased constituted a public nuisance, which they were authorized to abate, but they were warned by deceased that their lives were to he the forfeit if *99they attempted to exercise their rights. What were they to do? They had the choice to submit to a lawless invasion of their rights, or to assert them. They chose the latter alternative, and, in my opinion, made the proper and manly choice. Nor are they to be blamed for going armed if their only intention was to defend themselves against a felonious assault, and there is not a particle of evidence that they intended to make any other use of their arms. The open threats of deceased, his notorious bad character, and his constant state of preparation for deadly hostilities, warranted the apprehension that they might be called upon to defend their lives, and his subsequent conduct justified their precautions.
They entered upon the road without any breach of tire peace, and when deceased saw them he left the field where he was at work, proceeded directly to his house, without saying a word, armed himself with a repeating rifle and made for the secure shelter of a large live-oak tree. But one construction could be put upon his conduct, and that was that he was seeking a position from which he would hold the others at his mercy, and no reasonable man could have avoided the conclusion that their lives were in imminent danger. He was shot when he had only six feet to go to shelter himself behind the tree, and after he had been repeatedly warned to stop by the defendants, according to the testimony of their witnesses. The wife of the deceased, the only other, eye-witness of the affair, testified that she had heard no such warning, and to this extent and upon this point alone the evidence is conflicting. Upon the evidence, therefore, assuming it to be true, I consider the plea of self-defense to have been well sustained. But, as above stated, there was against this evidence a legal presumption of malice, from the voluntary killing; and, upon the theory that the jury discredited the testimony for the defense, the verdict may be upheld.
I see no reason, however, why the evidence for the defense should have been discredited.- So far as it appears upon the record, the witnesses were fair and disinterested, as they were wholly unimpeached. Their testimony makes out a case in which the deceased, a bad and dangerous character, was grossly in the wrong, in which he was. clearly the aggressor, and in which the defendants, while peaceably exercising their legal rights, were forced to defend their lives.
*100Such being the case I think we are justified in scrutinizing closely the instructions of the court on the law of self-defense in order to discover whether they were as full and clear and explicit as the defendants had a right to demand.
As to most of the charge of the court there is no criticism to make, but there were three instructions proposed by the defendants in which the jury were told that if they believed certain facts to have been established, then the killing was justifiable, and they must acquit the defendants. It is conceded that these instructions were correct as framed, but the court modified each of them by substituting, for the direction to acquit, the formula that (in the case supposed) the defendants “had the right to defend themselves even to the taking of the life of Hilton.” This action of the court is defended upon the ground that the instructions meant just the same thing after the alteration as before. It is perhaps true that they do mean, to a lawyer, just as much in one form as in the other, but evidently the judge of the superior court thought that in their modified form they would carry some different meaning to the jurors, else why should he take the trouble to make the change? The question for the jury was, What should be their verdict? In the instructions as prayed they were told, and correctly told, that their verdict, in view of certain supposed facts, should be not guilty; in the altered form of the instructions they were merely told that on the same state of facts the defendants had a right to defend themselves even to the extent of taking life. It is true that to any lawyer, and probably to most laymen, the conclusion from this proposition would appear inevitable that the defendants should be acquitted. But why, when an instruction is properly framed, and .states the proper verdict to be rendered upon the hypothetical case, should the court emasculate it by striking out the conclusion and substituting in its place a proposition from which the conclusion can only be inferred?
I think the defendants should have a new trial.