charged the jury that there being no dispute *85in the case that the homicide had been perpetrated by the prisoner, the question was, what was the quality of the act ? Was it murder, or manslaughter, or excusable or justifiable homicide?
Was it excusable? That depended on whether it had been by accident or misfortune, upon any sudden combat, and without any dangerous weapon being used.
Was it justifiable? To make it so it must have been committed in defense of himself when there was a reasonable ground to apprehend a design to do some great personal injury, and there was imminent danger of such design being accomplished.
Upon this point the inquiry was, not whether the prisoner apprehended an evil design, but whether the jury think, under the circumstances, there was reasonable ground for his fears.
So, too, it must be a great personal injury that was to be apprehended, and not a mere assault and battery, for then a mere blow with the fist would justify the taking of life.
And so, too, as to. the “ imminent danger,” it was for the jury, and not the prisoner, to say there was such danger.
To determine these questions, the jury must inquire, was the fatal blow necessary for self-protection? To produce that necessity the prisoner must have retreated as far as he could. However chivalrous, he might have felt, he had no right to stand his ground at the risk of sacrificing a human life, and he must make it appear that he used all due precautions to prevent fatal consequences, and that there was no fault on his part.
If, however, the jury could not excuse or justify the act, then it was murder or manslaughter.
To make it murder, the jury must be satisfied beyond all reasonable doubt, that the blow was struck with an intention to kill.
If they were not satisfied that there was such an intention, then the offense was manslaughter; and it was manslaughter in the third degree if a dangerous weapon had been used; that *86is, if the weapon used, though made for other purposes, could not be used in striking a blow at the human body without endangering life.
The prisoner was convicted of manslaughter in the third degree.
[Note.—A touching incident occurred when the prisoner was brought up for sentence. His mother was present, and sent to the court a request to be by his side when sentence was pronounced. It was granted, and she took her seat by his side. She was of middle age, plainly dressed, but a very interesting woman. She held his hand in hers while he was receiving his sentence. The sentence was never executed. The presiding judge interposed and obtained from the Governor a pardon, on the ground that all had been done that the supremacy of the -law required, and that all beyond would be unnecessary suffering, and ruin to a young man who had shown throughout the deepest penitence, and gave the fairest promise for the future.]