charged the jury as follows:
The homicide in this case can be justifiable only on two grounds:
1. If the prisoner was resisting an attempt to commit a felony upon or in his dwelling-house, or —
2. In the lawful defense of himself, his wife or child.
There is no reason to suppose that the deceased was making any attempt to commit a felony in the prisoner’s dwelling-house, for a trespass is no felony; and it was, therefore, the second point only that the jury wrere to consider.
That involved the defense of the persons of the prisoner and his family, and not of his property. The jury would therefore discard from their minds all considerations of the apprehension of fire or robbery, and look only to the question of danger to the persons of the prisoner and his family; and, as to that, the question was, was there a reasonable ground to *155apprehend a design to do some great personal injury to them, and was there imminent' danger of such design being accomplished ?
And in regard to that, the question was, not whether there was actual danger, nor whether the prisoner honestly entertained apprehensions of it, but whether, in the judgment of the jury, under all the circumstances of the case, there was reasonable ground to apprehend such danger to the persons of the prisoner and his family.
That subsequent events showed that there was, in fact, real danger, is not the point, but whether those coming events so cast their shadows before, as to cause well-grounded apprehension of it, and not whether the prisoner apprehended danger, or honestly believed he had cause to apprehend it, but whether, in the opinion of the jury, there was reasonable ground for apprehension.
It was important to keep this distinction in view, for in one case it would be the fears of timidity that would render a homicide justifiable, and, in the other, it would be the fact of reasonable cause, judged of by men of sense and discretion.
If, then, the jury believed that at the time of the homicide there was, in fact, and not merely in the prisoner’s mind, reasonable ground to apprehend there was a design to do some great personal injury to the prisoner, or bis family, and that there was, in fact, and not merely in his mind, imminent danger of such design being accomplished, they would find the homicide justifiable, and acquit the prisoner of all charge.
But if, on the other hand, they believed that the acts and threats of the deceased were merely to get possession of the store, under the contract of sale, then, no matter what may have been the apprehensions of the prisoner, the homicide was not justifiable, and the prisoner was guilty of either murder or manslaughter.
To find him guilty of murder the jury must be satisfied that when he procured and used the gun he had an intention to take life; and they might well inquire whether his intention was not, rather, to use the weapon just so far as would *156be necessary to protect himself and family, and domicil, from the repeated and threatened invasions of the deceased.
If one of these suppositions was as likely to be true as the other, then it would not do for the jury to find an intention to kill, and convict the prisoner of murder.
Then, as to manslaughter, the jury could not find the prisoner guilty in the first or second degrees at all, nor in the third, unless they were satisfied that the killing was both by a dangerous weapon, and in the heat of, and impelled by, passion ; and, if not so-satisfied, the offense would be manslaughter in the fourth degree.
In looking for evidence of the heat of passion, the jmy would not overlook the fears of the prisoner, the provocations he had received, his ignorance of our laws, and, above all, the pains he had taken to inquire of the only authority accessible to him, whether he had a right to use firearms under the circumstances.
At the same time the jury must beware that they did not permit these considerations to carry them too far. Eor while, if we could look only at the prisoner, we might well say that he was guilty only of a mistake, into which he had been led by the imperfect answer of the police, and he ought therefore to go free. On the other hand, the court and jury have a duty to the public to perform, and that is to so administer the law as shall lay down rules that will protect- the lives of the people, even from the consequences of a mistake as to the law.
The prisoner was found guilty of manslaughter in the fourth degree.