The charge which was given, when considered with reference to the facts set out in the bill of exceptions, was more favorable to the defendant than the law would authorize. There was no evidence that Gilbert was about to shoot Harrison, when the latter killed him ; on the contrary, he was standing with Ms gun on Ms shoulder, and about speaking to his wife, when he was shot down, and this shooting was carrying out a. threat made to the wife of Gilbert by Harrison, that he would kill him if he came there.
The law of self-defence, so far as the proof set out in the record shows the transaction, had nothing whatever to do with the case. Harrison, in the first instance, brought on the difficulty, by a most unneighborly and malicious act in stopping up the ditch, thus injuring himself in order to overflow the growing crop of the deceased. When it was attempted to be opened, he was there, throwing in the dirt, as the wife and children were engaged throwing- it out ; he inflicts personal violence upon one of the children Avith his hoe, and Avhen the child left, he flies to his gun; and Avithout necessity, and in the absence of any attempt or demonstration of an intention to injure him, on the part of the deceased, other than having Ms gun upon his shoulder, he deliberately shoots him down Avhile in the act of speaking to his wife.— It was calculated to mislead the jury to charge on the law of self-defence under such circumstances, for they might well have inferred that the court would not give a charge which was abstract, and hence, that merely having a gun upon his shoulder, Avithout more, put the life of the prisoner in imminent peril, justifying him in what he did. Such is not the. law.
It was correctly said by Ruffin. O. J.. in The State v. William Scott, 4 Iredelhs Luav Rep. 409, that “the belief that a person designs to kill me Avill not prevent my killing him from being- murder, unless he is making some attempt to # *71execute his design, or, at least, is in an apparent situation to do so, and thereby induces me reasonably to think that he intends to do it immediately.” The “ situation” spoken of is, not that he has the means at hand for effecting a deadly purpose, but that: by some act or demonstration, he indicates at the time of the killing a present intention to carry out such purpose, thereby inducing a reasonable belief, on the part of the slayer, that it is necessary to deprive him of .life to save his own. —Pritchett v. The State, 22 Ala. 39; Wharton’s Crim. Law 260.
It is manifest, from what we have said, that there was no error in refusing the charges asked by the counsel for the defendant in the court below.
As to the last charge asked and refused, it is fully covered by what we have said as respects the charge given.
Whether G-ilbert had or had not the right to use force in opening the ditch, was a qiiestion which did not arise upon the proof. It is perfectly clear that the prisoner had no right to take his life to prevent his opening it. — 1 Russell on Crimes 663. If one man deliberately kill another, to prevent a mere trespass upon property, whether such trespass could or could not be otherwise prevented, it is murder.— State v. Morgan, 3 Iredell’s Law Rep. 186; Commonwealth v. Drew, 4 Mass. 391; Wharton’s Crim. Law 258.
There is no error in the record, and the sentence of conviction is affirmed.