1. On a careful examination of the charge of the court, and the exceptions thereto specified in the motion for a *694new trial, read in connection with the whole charge and construed therewith, we find but a single error which, in our judgment, requires the grant of a new trial. That is' the omission of the court of all allusion to the rencounter of defendant with J. W. Cooper, the brother of deceased, with whom defendant was engaged when deceased ran up to the place of combat. It appears that the accused had been accosted by the brother of deceased, and was the aggressor in a series of altercations which culminated in á deadly struggle between the two, during which the accused wrested his antagonist’s pistol from him, and fired a shot or two over his head or at him, when the deceased ran up from the store of his brother to the scene of the fight. As he approached, the accused turned the pistol upon him, and shot him down, and then turned it again upon his former antagonist and wounded him.
We think that the true legal question for the jury was, whether the accused was actuated by the fears of a reasonable man that, when deceased ran up to the scene of the conflict, he was armed, and came there for the purpose of joining in the melee, supporting his brother in the fight, and whether he really apprehended that his’own life or person was thus exposed- to a felonious attack, and had reasonable fears, the fears of a reasonable man, from all the circumstances that the two brothers had united, or were about to unite, in a common assault with intent to kill or maim him, and verily believed, and was authorized by the circumstances to believe, as a reasonable man, that it was necessary to shoot the deceased in order to defend himself from such joint attack. If he did so believe, and had reason so to believe, from the facts around him, then he was justifiable in shooting deceased. The doctrine of reasonable fears was properly and clearly given by the court as applicable to a contest between man and man. Precisely the same doctrine should have been given in this case, but it should have been applied to the facts ol this case, where a brother ran up to the scene of a fight be*695tween his brother and another, and thus may have reasonably excited the fears of a reasonable man that he was about to be overwhelmed by the joint attack, and unless he shot, and shot quickly, life or limb would be in serious and imminent jeopardy.
We do not mean to say that the facts in the case before us make such circumstances as would excite the fears of a reasonable man that such danger threatened him. He had disarmed his first antagonist of his pistol and was shooting that. Did that antagonist have another weapon, and of what sort ? Was he still in danger from that knife, if he had one, or other weapon, if he had that, or did he verily believe that he was so in danger, and were the circumstances such as to excite the fears of a reasonable man to such belief ? Was the brother—the unfortunate deceased—armed, or were the circumstances such as to excite the fears of a reasonable man that he was armed ? Was he approaching to take part in the contest against the accused, or was his object to induce his brother to retire and make peace ? Or were the circumstances such as to excite the fears of a reasonable man that his design in running up was not peace, but war on him?
These, we think, are the points of law which would guide the jury to the true solution of this problem—to the legal verdict in this case. As they answer these questions, the verdict should be justifiable homicide, if the facts and circumstances surrounding the accused were such as to excite the fears of a reasonable man that a joint felonious assault was being made upon him; it should be voluntary manslaughter, if they were such only as to excite the fears of a reasonable man that some bodily harm, less than felony, was imminent and impending; it should be murder, if the circumstances were not such as to excite the fears of a reasonable man that he was in any serious danger at all.
Inasmuch as the law thus applicable, as we think, to the peculiar circumstances of this case was not given to the jury; as the brother who first engaged in the contest *696with the accused, and brought on the entire trouble, was ignored in the charge, and thus the fact that the two brothers were on the ground together, and may have excited the fears of a reasonable man more readily than if one alone was there, was not presented at all to the jury for their consideration, we deem it our duty, notwithstanding the ability, fairness and lucidness of the charge in other respects, to reverse the judgment denying a new trial, and to direct that the case be again tried in accordance with the view hereinbefore taken of the law of this case. "We do not decide or intimate, what the verdict should be. The real issue of law was not submitted to the jury, and could not have been applied by them to the facts. That is all that we rule, leaving the jury to find the same, or a different verdict, as they may view the facts in the light of this law.
2. It was admissible to prove the remark.of deceased as he left the store, as part of his act of going to the scene of contest.
3. With the charge to the jury in regard to their power of rejecting the dying declarations altogether, and giving to them such credit only as they would be entitled to if made in view of death, we see no error in the admissibility of the testimony, so qualified and guarded by the charge. Perhaps it would hav.e been better to guard more clearly the words, “ whether such death was approaching fast or slow.” How slow ? But really the facts stated by Cooper as dying declarations were merely cumulative, and perhaps the state had better dispense with them.
The other objections to the admission of evidence seem to be of little consequence; and the verdict would nbt have been disturbed by us at all, but for the failure in the charge to lay down the law of the case, where the two brothers were on the scene together, as we have indicated it above.
Judgment reversed.