dissenting.
“ Any person who shall be guilty of the act of stabbing another, except in his own defence, or,other circumstances of justification, with a sword, dirk or knife, or other instrument of the like kind, shall, on conviction, be punished,” etc.
The plainliff in error was indicted and convicted of the offense of stabbing, under the act above copied from Code, section 4369, and the judgment of the presiding judge overruling his motion for a new trial, for alleged error in two charges to the jury, is reversed by this court by the 'concurring judgments of my brethren.
• A sense of duty on a matter of vital interest to the people of the state, in the preservation of human life from the unlawful use of deadly, stabbing and cutting weapons, impels me to dissent from this judgment of this court.
The charges pronounced erroneous are as follows: “If the evidence satisfies you- that defendant gave the first insult and struck Jowers, the prosecutor, the first blow, the defendant cannot be justified for defending himseli *486against the blows from Jowers with his fist, by cutting Jowers, although you may believe at the time of the cutting there was inequality of strength or other circumstances of a'dvantage in favor of Jowers and against defendant, unless the defendant had, in good faith, waived or endeavored to abandon the fight, or there was actual necessity to defend himself from serious injury;” and also as follows: “If defendant and Jowers agreed to fight, and did so, or went into the fight by mutual consent, defendant could not legally defend himself against blows from Jowers with his fist, by cutting him, although there might have been, at the time of the cutting, circumstances producing relative inequality between them, unless, before the cutting, the defendant had, in good faith, waived or endeavored to abandon the fight, or was under absolute necessity to do so, to prevent serious injury.”
1. The first charge is substantially that, if a man gave the first insult and struck the first blow, he will not be justified in cui ting and stabbing the person thus insulted, and not only first insulted but struck first by him, though the person thus assailed by him was getting the better of the fistfight, unless this assailant had, in good faith, endeavored to abandon the fight, “ or there was actual necessity to defend himself from serious injury,”
Surely this must be law. It is eminently just and full of good sense; and in a long experience I have found that justice and good common sense and law generally harmonize.
What! A man first insult another, then assault and strike him, and thus force him to defend himself, and the man thus assaulted,insulted and struck is discovered by Ins assailant to be too hard for him with nature’s weapons,— can it be that the law will justify such an assailant in stabbing, unless the stabbing be necessary to keep the man he assailed from seriously hurting him ! The propo sition does not accord with the very simplest elements of right, according to my conception of right and wrong. It *487will not attune itse.f with any chord of justice that my -brain can touch with a single one of its nervous strings. It cannot be the law; but the law must be that the assailant must try to decline the contest he began, or apprehend serious injury, before he can be justif'ed in using the weapon of the assassin.
2. The other charge of the presiding judge, if possible, is still better law. It is that, where the two agree to fight a fair fist and skull fight, the plaintiff in error would not be justified in using his knife, though his opponent was getting the advantage of him by blows with the fist, and proving himself to be the better man with the fist—the weapon agreed upon—unless, in good faith, he waived, or endeavored to abandon, the fight before he used the deadly weapon, “ or was under absolute necessity to do so, to prevent serious injury.”
I cannot look this charge squarely in the face without being impelled to approve it, not only from the same sense of justice which required my approval of the other, but by every sentiment of honor and fair dealing.
The combatants are young men, nineteen and twenty, I believe; they agree to fight a fair fight without weapons; they are fighting according to the terms agreed upon; one is about to win the victory with his fist, and the other, without an effort honestly made to abandon the fight, or without the necessity of using his knife to prevent a serious injury to himself by the former, abandons the fair fight he had agreed upon, and cuts and stabs the other with a weapon likely to produce death, and it is the law that he is justified ; that is to say, that our law makes it just for him to act in that way! In my judgmént the law does no such thing; and God forbid that it ever shall be so framed as to encourge such unfairness, and the disastrous consequences to youthful honor and integrity, and the disregard of life in the heat of passion, which would flow from the principle, if enacted into law.
3. I do not believe that my brethren can mean what *488this reversal on these grounds will be construed to mean. It will be observed that they putin their judgment that the charges are erroneous on the idea thatthey are calculated to withdraw from the consideration of the jury any circumstances of justification which may have been shown, such as inequality in strength, age, weight or size, the exact position of the parties when the stabbing was done, and the character of the blows inflicted by the prosecutor.”
I am glad that the charges, then, may not be pronounced inherently erroneous by this court, but erroneous because calculated to withdraw other cirdumstances of justification from the jury. Let us see what is thereby withdrawn. It cannot be “ inequality of strengthbecause if that inequality existed to any considerable degree, serious injury might have been imminent, and both these charges cover such inequality as that; and surely slight, or not serious, inequality would hárdly make it right to use the knife in either case put by the learned judge below. The same is true of inequality of “ age,” “ weight ” or “ size.” Each, of these, if greatly superior, so far as fair fist and skull fighting is concerned, would be only dangerous if the strength of one was so superior to the other as to threaten “ serious injury.” Nor is the consideration of “ the exact position of the parties when the .stabbing was done,” excluded, because that must necessarily have been considered by the jury, when they deliberated on the danger of serious injury, which, if necessary to be prevented, the judge in these very charges had told them would justify the stabbing. And so of “ the character of the blows inflicted by the prosecutor;” the jury could not touch the danger plaintiff in error was in of serious injury, without meeting right before their eyes the blows the prosecutor was inflicting at the time the knife was used.
So that I cannot see how any part of the fight or any act of either combatant, bearing upon the use of this knife,.how used, when used, what was being done to him, *489how heavy the blows, how great the strength of his antagonist, how little his own, what position each was in, or any other thing or circumstance bearing on the stabbing, was withheld by either of these charges from the jury.
4. It was precisely the right way to charge a jury, to apply the law to hypotheses arising from the facts. No other sort of charge is understood by a jury. Generalities and abstractions do not accomplish what a charge of law is meant to do, to reach the understanding of men ignorant of law. And this court has unanimously, again and again, commended such charges as this, and reprobated mere general principles of law.
5. Itis well, in construing this section, 4369 of our Code, on stabbing, to consider the proviso thereto, which is in these words: “Provided, always, that if such stabbing shall produce death, the offender shall be guilty of murder or manslaughter, according to the facts and circumstances of the case; or if such stabbing shall not produce death, and the facts and circumstances show that it was the intention of the person stabbing to commit the crime of murder, then, and in such case, the offender shall be guilty of the offense of an assault with intent to murder.”
This proviso shows that the law of murder, of manslaughter, and of assault with intent to murder, are all involved in cases of stabbing, under certain circumstances. And it may be deduced from the proviso that the general assembly meant by the entire section, that when, if the offender had killed, it would be muider, then, if he did not kill, the offense is assault with intent to murder; when; if he killed, the crime would be manslaughter, then, not killing, the offense is stabbing; and if, under the circumstances, he had killed, it would be justifiable homicide, then the stabbing would be justifiable, but not oiherwise.
Would this plaintiff in error have been justified had the stabbing here produced death, unless he had endervored to decline the combat, or had found it necessary to use the deadly weapon to prevent serious injury to himself, under *490the circumstances of this case ? Certainly not, I think. Then, in this view of the whole law of stabbing, in the whole section construed together, there is no error in either charge, and I dissent from the judgment which pronounces either erroneous.
I write this opinion with deference and respect towards both of my associates, impelled by my clear conviction of what the law is, and what terrible consequences would result from any other view of it.