The exceptions taken by the prisoner’s counsel to .the evidence are untenable; but I think the exception to the judge’s charge is well taken. The language of the charge is: “If you (the jury) find that the prisoner was justified in defending himself, and carried that protection further than was necessary for his defense, then he is guilty of manslaughter in some (meaning some one) of the four degrees.” This is a positive and unqualified instruction to the jury on a relevant and important point. I do not find it limited, qualified or explained in any other part of the charge. It tells the jury, in substance, that they have to determine whether, at the time of the fatal blow, the prisoner carried the means of defending himself further than was necessary for his defense. But this is not the question for the jury, but whether the prisoner was assailed under such circumstances as to furnish him reasonable ground for apprehending a design to take away his life. (See Shorter v. The People, 2 Comst. R., 193.) The question, I repeat, is, whether the prisoner had reasonable ground to believe himself in danger of great bodily harm or loss of life, and not whether such danger actually existed.
The judgment should be reversed, and a new trial ordered.
Barnard, J., dissented.
Judgment reversed, and new- trial ordered.