ON MOTION FOR REHEARING.
RAYNOLDS, J.A motion for rehearing has been filed by the appellant, in which he calls attention to a condition in the instructions which it is alleged was presented in the original briefs, and was overlooked by the court. The defense in the case was accidental killing. Surrounding this general proposition there were questions as to the law of the defense of habitation, the law of self-defense, and the law of excusable homicide; but these questions were all collateral to the ultimate specific defense of accidental killing. In describing the occurrence, the defendant, the only witness on the subject, testified as follows:
“Q. Do you state now to the jury that in the struggle over this gun, when you hit him and he grabbed the gun, whether you pulled the gun off, or did he pull the gun off? A. He pulled the gun off, or it went off. I don’t say how that was; it was in the struggle, in a mad moment. I didn’t pull the trigger, and I didn’t shoot the man, and I didn’t take the gun with that intention, and I didn’t shoot him.
“Q. How were you using it — as a club? A. Yes; to strike him.
“Q. For what purpose were you doing that? A. To keep him from attacking me, and perhaps killing me.”
On cross-examination, appellant, when pressed for a more definite statement as to just how the killing occurred, testified as follows:
“Q. What did he do when yon hit him? A. He grabbed the gun. As I said, the gun went off in the tussle.
“Q. That was accidental shooting? A. Yes.
“Q. Self-defense, but coupled with an accident, caused the deceased’s death? A. That’s"the idea; he killed himself.
“Q. Committed suicide? A. That is what I want the jury to believe; he grabbed the gun, and in the tussle the gun went off without my putting my finger on the trigger.
“Q. Mr. Bailey, you were holding the gun by the handle, were you, when you hit him, and he grabbed the barrel? A. Grabbed right this way.
“Q. Got hold of the gun barrel? A. No; got hold with both hands, got hold of the whole thing.
“Q. The whole thing? A. Yes; the whole thing, and I believe that — that’s the hammer, and at the time he grabbed that way and got in that position, he grabbed — his hand went over there and pulled the hammer back, and in the tussle it released and caused the gun to go off. * * *
“Q. You shot the man accidentally? A. The man shot himself.
“Q. The man shot himself? A. Yes.
“Q. You were acting in self-defense? A. And I hit him in self-defense, and acted all the time in self-defense.
“Q. You had no feeling against that man whatever? A. There was no intention to shoot him. I didn’t shoot him. I didn’t take up the gun to shoot him.”
It will thus be seen that the appellant undertook to say and did say that the deceased caused the gun to be discharged by grabbing hold of it while it was in the appellant’s hands being used as a club. At the time of the trial counsel for appellant evidently took the view that this was what the testimony showed, and in accordance therewith requested the court to give instruction No. 19, which was done. This instruction is as follows:
“19. You are instructed that, if you find from the evidence in this case that on the occasion of the killing of James M. Bedore, the deceased, immediately before the said killing, entered the house or- place of abode of defendant in a violent and angry manner, and either assaulted, the defendant, or manifested an immediate intention to violently assault the defendant, and the defendant, believing it was necessary to protect himself from such violent assault of the deceased, seized a pistol and struck' the deceased with it, and the deceased seized the pistol in the hands of the defendant, and in the struggle between the deceased and the defendant, which thereupon ensued, the deceased caused the pistol to be discharged' in said struggle, and the deceased was thereby killed, then the defendant would not be guilty as charged, and you should acquit him; and if you have a reasonable doubt as to such facts, you should acquit defendant.”
[6] This instruction, while it is not now objected to by counsel for appellant as being erroneous, is now said to be partial and insufficient to cover the whole ground, for the reason that it restricts the defense of accidental killing to a case where the gun was caused to be discharged by the deceased, and does not include the accidental discharge ■ of the pistol by either the deceased or the defendant. It clearly appears, however, from the quotation of the testimony heretofore made, that the instruction exactly covers the situation as portrayed by the defendant in his testimony. He denies that he accidentally discharged the gun, and asserts that the deceased caused it to be discharged. Under such circumstances the instruction fully covers the facts as developed at the trial, and the appellant has no cause for complaint of the same.
[7] By way of further argument to the effect that the defense of accidental homicide was never fully presented to the jury, counsel for appellant complain of the refusal of the court to give their requested instruction No. 8, which is as follows;
“8. The court instructs the jury that if they believe from the evidence that James M. Bedore was accidentally killed, or entertain a reasonable doubt thereon, you should find the defendant not guilty.”
It is apparent at a glance that the requested instruction was erroneous, and was correctly refused. The instruction directs the jury that, if the deceased was accidentally killed under any circumstances whatever, the defendant should be acquitted. This 'instruction leaves out of consideration all of the circumstances showing whether the defendant was at fault, was the aggressor, or was entirely in the wrong in the use of the pistol, as outlined in the testimony. These circumstances must necessarily appear in the instruction before it would be competent for the court to direct the jury that the accidental killing of the deceased would entitle the defendant to an acquittal.
Much reliance is placed by appellant upon the case of State v. Legg, 59 W. Va. 315, 53 S. E. 545, 3 L. R. A. (N. S.) 1152. In that case a wife was on trial for the murder of her husband. The defense was accidental killing, and the facts were that her husband instructed her to hand him his- gun, and she undertook to get the gun down from the rack where it was kept to hand to him, and, according to the defendant, it was accidentally discharged and killed the husband. The defendant requested two instructions, which were refused as requested, but erroneously modified, and, as "modified, given by the court; the first being in the exact language of appellant’s instruction No. 8, supra, and the second applying the doctrine of accidental killing to the specific facts as above set out. Counsel overlook the distinction between the Legg Case and the case at bar. In the Legg Case, the defendant, in any view of the testimony, either for the prosecution or defense, was engaged in an entirely lawful act, unaccompanied by any circumstances which could deprive her of her defense of accidental killing. She could not be guilty unless the killing was intentional. In the case at bar, under the facts shown, the appellant may have been guilty, even if the firing of the gun was accidental, by reason of his attitude towards and in the controversy. Appended to the Legg Case is an extensive note, collecting the cases on accidental killing as an excuse.
[8] Complaint is made of the refusal of the court to give appellant’s requested instruction No. 1. This instruction is in the exact language of section 1472, Code 1915, which is as follows:
“Such homicide is excusable when committed by accident or misfortune [in lawfully correcting a child], or in doing any other lawful act by lawful means, with usual and ordinary caution,' and without any unlawful intent; or by accident and misfortune in the heat of passion, upon any sudden and sufficient provocation; or upon sudden combat, without any undue advantage being taken, and without any dangerous weapon being used, and not done in a cruel or unusual manner.”
The instruction omits only the words in brackets above indicated. The instruction as asked’ is clearly inapplicable. It is an abstract statement of the law, and no attempt is made to apply the provisions of the statute to the facts in the case. But, even assuming that the court might well have modified the instruction and -applied the statute to the facts in the ease, we think the court fully covered the ground in instruction No. 19, supra. It is to be observed that the statute covers three classes of cases: (1) Where the homicide is committed by accident or misfortune in doing any other lawful act by lawful means, with usual and ordinary caution and without any unlawful intent; (2) by accident or misfortune in the heat of passion upon a sudden and sufficient provocation; and (3) upon a sudden combat without any dangerous weapon being used, etc.
We assume that there is no magic in the word. “excusable” as used in the section, and that, if every phase of appellant’s defense was duly presented in the instructions, he will have no cause to complain at the refusal of the court to use the exact language of the statute. The question, then, is whether the instructions given did cover the whole field. It is to be observed that instruction No. 19, directed the jury that under the circumstances detailed by the defendant and assumed in the instruction, he should be acquitted. The instruction, therefore, in eifect directed the jury that, under the assumed circumstances, the act of striking deceased with a pistol was a lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. This satisfied the first clause of the statute.
The second clause of the statute assumes the presence of heat of passion. An examination of defendant’s testimony discloses that he disavows heat of passion and states that he acted at all times solely in self-defense. This clause of the statute is therefore inapplicable to the defense interposed.
The third clause of the statute contemplates a sudden combat, without any dangerous weapon being used. The defendant in his testimony says that he entered into no combat, but that he merely defended himself against the assault of the deceased. This does not constitute combat, as used in the statute. Sudden combat signifies a sudden fight in the nature of a duel, in which both participate in an aggressive way, rather than a one-sided affair, in which one party merely defends himself against the assault of another. It thus appears that section 1472, Code 1915, is in no way applicable to the facts in the case, except the first clause thereof, which as before seen, was substantially presented in instruction No. 19.
[9] Appellant complains of instruction No. 18 on the subject of the defense of one’s person while in his own dwelling and the force which may be employed to expel the intruder. The instruction is as follows:
“18. You are instructed that a person may repel force by force in the defense of his person, being in his own habitation, against one who manifestly intends and endeavors violently to enter therein and to do him bodily harm, and if a conflict ensue under such circumstances, and life is taken, the.killing is justifiable. It must appear, however, that the assault was .imminently perilous, and unless there be an apparent manifestation of an intent to take life, or to do great bodily harm, no assault will justify the killing of an assailant. A person repelling an attack in his own dwelling is not compelled to flee from his adversary, but he may use such force as is necessary to expel him therefrom, and he may stand his ground and defend his life, or defend himself from bodily harm, and he may even pursue his assailant until the danger to his life and danger of bodily harm to him is past.”
There is evident confusion in this instruction of two doctrines, viz. the doctrine of self-defense and the doctrine of defense of habitation.. The two doctrines bear such marked resemblance to #each other, however, as to be almost identical; but by reason of the varying circumstances attending them there are points of divergence in the doctrines. There is, however, the common principle in both, viz. that it is the necessity of preventing the commission of a felony which justifies the killing of the assailant. . Thus, in case of personal assault, the attempted infliction of death or great bodily harm is the felony which authorizes the killing of the assailant. In cases of assault upon the habitation it is the felony of burglary, robbery, or like crimes, which authorizes the inhabitant of the dwelling to resist the assault, even to killing the assailant if necessary. Or if the assault upon the habitation is for the purpose of reaching and committing a felony upon the dweller therein, or one of his family, this justifies resistance to the extent of killing, if necessary to prevent the felony. Where expulsion of an intruder from a dwelling is attempted, a slightly different situation arises. The owner may expel the intruder, using all the force necessary to accomplish that end. He may take an affirmative and aggressive attitude, and if a conflict ensues, and the intruder endangers his life, or places him in great bodily harm, he may slay the intruder. But it is not true that ,a man may kill another in his house when under the same circumstances of danger, or apparent danger, to person or property, he would not be justified in killing outside his house. In personal encounters outside a dwelling, the appearances are usually plain and unmistakable, while in assaults upon or in dwellings the appearances are often not so plain, and apparently a greater latitude is, and should be, allowable, to a man in his own house in taking life. But the principle governing action is the same in both cases. Upon this subject see 21 Cyc. 828; 1 Bish. New Crim. Law, §§ 858, 859; 2 Bish. New Crim. Law, § 707; Carroll v. State, 28 Ala. 28, 58 Am. Dec. 282; State v. Patterson, 45 Vt. 308, 12 A. Rep. 200; Thompson v. State, 61 Neb. 210, 85 N. W. 62, 87 Am. St. Rep. 453; State v. Sumner, 55 S. C. 32, 32 S. E. 771, 74 Am. St. Rep. 707, and note; 13 R. C. L. Homicide, §§ 144, 145; note to Newman v. State (Tex.) 21 Ann. Cas. 721.
In view of what has been said, we have no criticism of instruction No. 18, except in its confusion of the two situations above mentioned. But just why the court should have submitted any such proposition to the jury we do not understand, except that it was requested by the defendant. Why the right to kill in self-defense, or in defense of habitation, was a question to be submitted to the jury, does not appear.. The defendant says that he never intended ■ to kill deceased, did not attempt to kill him, and did not kill him. No question as to the right to kill was involved, and the defendant was not entitled to have the same presented to the jury.
[10] The giving of instruction No. 20 was not excepted to and need not necessarily be considered. The instruction, however, is unobjectionable. It was intended to inform the jury that, if the assault by the defendant upon the deceased with a pistol was not in fact in defense of defendant’s person, or for the purpose of expelling deceased from the dwelling, but was in fact for the purpose of engaging him in a difficulty, and of then killing him, the appellant could rely neither upon the law of self-defense, defense of habitation, nor accidental killing. We can see no objection to this statement of the law.
In connection with the discussion of these instructions, we do not wish to be understood as departing from the well-established practice of refusing to consider questions on instructions where they have not been duly saved. We have been led in this case to depart somewhat from the strict letter of the rule on account of the enormous consequences to the appellant; he being under sentence of death. For this reason alone, we have been desirous of satisfying ourselves that by no possibility has the defendant been unjustly convicted.
It follows from the foregoing that the court committed no errors in the instructions to the jury, to which the motion for a rehearing is directed, and that the former opinion in the case should be adhered to; and it is so ordered.
ROBERTS, C. J., and PARKER, J., concur.