dissenting. The reason why it is generally reversible error for the court to charge sections 70, 71, and 73 of the Penal Code together, without proper explanation, is that the jury may be misled into thinking that even though the defendant may have killed the deceased under the fears of a reasonable man that a felony was about to be committed on his person, the killing would not be justifiable unless it appeared to him that the danger was so urgent and pressing at the time of the killing that, in order to save his own life, the killing of the other was absolutely necessary. In the instant case I do not see how the jury could have been so misled, for, after charging the above three code-sections (and all three were applicable), the jury were clearly and correctly instructed, several times, that if the circumstances were sufficient to excite the fears of a reasonable man that a felony was about to be committed on him, the killing would be justifiable and the defendant should be acquitted. Immediately after the excerpt from the charge complained of, the court charged as follows: “The fears of a person should be the fears of a reasonable man—one reasonably courageous, reasonably self-possessed,— not those of a coward. If the circumstances were sufficient to excite the fears of a reasonable man that a felony was about to be inflicted upon him, then the killing would he presumed to be the result of such fears and he would he justifiable. If the jury have a reasonable doubt as to whether the circumstances were sufficient to excite the fears of a reasonable man, then the killing would he justifiable. The killing is not justifiable because one feels that he has reason to fear that he will be injured without regard to the character of the injury some person is about to inflict upon him. If the assailant intended or endeavored to commit a misdemeanor or a trespass only upon the person, the killing of such person would be voluntary manslaughter. But if he intended to commit a felonious assault, then the killing would b§ *128justifiable. If the circumstances are not such as to excite the fears of a reasonable man that he is in any danger at all, and when he is in no danger he shot and killed another with malice, then such killing would be murder. If the circumstances were sufficient to excite the fears of a reasonable man that an injury was about to be inflicted upon him less than a felony, under those circumstances such a killing would be voluntary manslaughter. When the circumstances are sufficient to excite the fears of a reasonable man that a felony is about to be inflicted upon him, and under those circumstances he kills another, then the killing would be justifiable. In order to justify the killing on the ground that the accused acted under the fears of a reasonable man that a felony was about to be inflicted upon him, it must appear that there was real or apparent danger sufficient to justify the belief that a felony was about to be inflicted upon him. If the circumstances surrounding the defendant at the time, as they appeared to him at that time, situated as he was, were sufficient to excite the fears of a reasonable man that there was real or apparent danger that a felony was about to be inflicted upon him, and he acted under the influence of those fears, and not in a spirit of revenge, and killed another, then such, killing would be justifiable.” And the very last part of the charge is as follows: "If you do not believe he is guilty of either offense [murder or voluntary manslaughter], or have reasonable doubt of it, or if you find he was justified in doing whatever he did do, or that he acted under the fear of a reasonable man that a felony was about to be inflicted upon him, or if you have a reasonable doubt of the guilt of the accused of either, offense named, it would be your duty to acquit him, and the form of your verdict would be 'We, the jury, find the defendant not guilty.’ ”
In my opinion, in the light of the entire charge, the excerpt from the charge complained of did not mislead the jury into thinking that if the accused killed the deceased under the fears of a reasonable man that a felony was about to be committed upon him, the killing would nevertheless not be justifiable unless it appeared to him that the danger was so urgent and pressing that in order to save his own life the killing of the other was absolutely necessary. I think the judgment should be affirmed.