The misnomer of a defendant in an indictment is matter of a plea in abatement, not of objection on the trial after arraignment and the plea of not guilty, or of motion in arrest of judgment.
The statute commits to the discretion of the jury the punishment of murder in the second degree, subject to no other limitation than that it must be imprisonment in the penitentiary, or hard labor for the county, for a term not less than ten years. If the facts of the case seem to them to require it, they may impose imprisonment for life, or for any number of years exceeding ten.- — R. C. § 3654.
*157The charges given by the court are free from error. They assert only the familiar rule that, to constitute murder in the first degree, there need not be, for any appreciable space of time before the killing, deliberation and premeditation on the part of the slayer. These must concur with willfulness and malice to make up the offense. It is enough that they existed, though instantaneous with the commission of the deed.—Whart. Hom. § 180; People v. Williams, 43 Cal. 344.
Previous preparation for a rencounter evinces deliberation and premeditation, and unexplained is evidence of express malice. It may have been argued for appellant that he did not obtain and carry the pistol after the first altercation for the purpose of attack, but for defense, and that therefore the inference of malice which could be properly drawn from the fact, was repelled. It is a legal, constitutional right to bear arms. The only restraint on the right is that they must not be concealed about the person. This restraint is removed, if the person has good reason to apprehend an attack. — R. C. § 3555. As an abstract legal proposition, it may be correctly asserted that if the appellant had good reason to apprehend an attack from the deceased, he had the right to arm himself for defense. Such reason appearing, the presumption of malice would be lessened, or it may be entirely repelled, in the judgment of the jury. The difficulty we have is not in the correctness of the proposition, but in reaching the conclusion the record discloses evidence rendering it applicable to this case. We cannot say, after a careful examination of the record, there is not some evidence, though it may be weak, or countervailed by other evidence, rendering it proper the proposition should have been given in charge to the jury. Without such evidence, the charge requested, asserting the proposition, would have been abstract, and its refusal not erroneous. The rule of this court is, that a charge based partly or entirely on a state of facts, of which there is no evidence, should be refused.— 1 Brick. Dig. 338, § 41. But a charge can not be considered abstract when there is evidence, however weak, tending to support it. — Ib. § 42. Nor can a charge be regarded as misleading because it is founded on a part only of the evidence, or because it may seem to give undue prominence to the facts on which it rests, or to a particular phase of the case. Bell v. Troy, 35 Ala. 184. Such a charge would require from the court an additional charge divesting it of the injurious consequences apprehended from it. While we are constrained to the conclusion, the charge requested asserts a correct legal proposition, and is not without some evidence, weak though it may be, to support it, and its refusal erro*158neous, it should have been followed by additional instructions. The right of the appellant was to obtain and carry the pistol for defense, not for aggression. His responsibility for its subsequent use is not diminished because of the right he had to obtain and carry it. If, after having- obtained it, he repaired to the place of the first quarrel, expecting to meet the deceased, and provoked the fatal rencounter, the degree of his guilt is the same it would have been if no reason for apprehending an attack had been furnished by the previous conduct of the deceased. Or, if in mutual combat, without the existence of imminent peril to life-, or of great bodily harm, he took the life of the deceased, the measure of criminal responsibility is not lessened, because of the existence of a reasonable apprehension of attack, justifying arming for its resistance. The existence of such apprehension in this case, is material only as it affects the question of malice. If, notwithstanding the existence of such apprehension, the jury are satisfied that the killing was malicious— that the weapon was obtained, not for the purpose of defense alone, but with a view to a rencounter, in which the appellant intended to take the life of the deceased, and which he intended to provoke, or did not intend to avoid, the degree of the offense is not mitigated. Accompanied by additional instructions, the charge requested should have been given. The error of refusal compels a reversal of the judgment, and remandment of the cause.
The appellant must remain in custody until discharged by due course of law.