The judgment of conviction, in this ease must be reversed because of several errors apparent in the record.
In the first place, the verdict of the jury finds the defendant guilty generally, without specifying the degrey of the homicide. The Code requires that “when the jury fin'd the defendant guilty, under an indictment for murder, they must ascertain, by their verdict, whether it is murder in the first or second degree”-Code, 1876, § 4299. Our decisions have been uniform in holding that no judgment of conviction, under an indictment for murder, can be sustained, unless the verdict of the jury expressly finds the degree of the crime of which the defendant is convicted.-Levison v. The State, 54 Ala. 520; Field's case, 47 Ala. 603; Murphy's case, 45 Ala. 32; Hall's case, 40 Ala. 698; Cobia v. The State, 16 Ala. 781.
Tire oath of the jury was, furthermore, defective, as it appears in the record. The recital is, that they were “ sworn and chai’ged well and truly to try the issue joined.” The record thus purports to set out the whole oath, and fails to do so by omitting a material part of it. The omitted phrase — “ and a true verdict render according to the evidence, so help you God ” — is an essential ingredient, being expressly required by statute.-Code, § 4765. The past rulings of this court on this subject are irreconcilably conflicting, as will appear from the cases cited in Clark’s Cr. Dig. § 574; and Clark’s Man. Cr. Law, §§ 2136, 2960. We adhere, however, to the more recent rulings, as declared in the cases of Allen v. The State, ante, p. 5, and Schamberger v. The State, 68 Ala. 543. The rule, as there settled, is that where a judgment entry purports to set out the full oath administered to the jury, it must express every essential element or ingredient of stock oath, as prescribed by the statute. But a recital that the jury “were duly sworn,” or were “sworn according to law” is clearly sufficient, and we have often said that it is the safer practice for the nisi prius courts to pursue.-Roberts v. The State, 68 Ala. 515; Mitchell's case, 58 Ala. 417; Moore's case, 52 Ala. 424; Smith's case, 53 Ala. 486; Clark’s Cr. Dig. § 574; Commander v. The State, 60 Ala. 1.
The prisoner, as shown by the bill of exceptions, requested the court to give the following written charge, which was refused : “ If there is a conflict m the testimony of the witnesses offered by the State, and those offered by the defendants, the jury must determine which of said witnesses they will believe; and in determining what weight they will attach to the testimony of any particular witness, they may look to the mcwmer *336of such witness on the stand, and to Ms interest and feeling (if any) in the case, and as to whether or not he has been com t/radicted by other witnesses in the cause, or by his own previous statements.” The refusal of this charge was clearly erroneous. It always falls within the province of a jury to determine the weight and sufficiency of the evidence, including the credibility of the various witnesses.-1 Greenl. Ev. § 49; Myers’ case, 62 Ala. 599; Alsabrooks’ case, 52 Ala. 24. This must be done, however, “under such instructions, as to the reason of the case, as may be given by the court.”-Whart. Cr. Ev. § 384. The usual tests of credibility are various, and need not be here enumerated, but among these may very certainly be included the manner of the witness on the stand; his state of prejudice as affected by interest or feeling evinced in behalf of either party; the consistency of. his statements with those of other witnesses examined in the cause, or their repugnancy or harmony with his own previous statements made in the cause, or elsewhere. The charge recognized these elementary principles, and should have been given.-Whart. Cr. Ev. §§ 373, 354; 1 Greenl. Ev. §§ 461, et seq.
It is one of the fundamental principles of the law of homicide, whenever the doctrine of self-defense arises, that the accused himself must alwa/ys be reasonably free from fault, in having provoked or brought on the difficulty in which the killing was perpetrated. If the accused was the aggressor, it is well settled that he can not be heard to urge, in his own justification, a necessity for the killing which was produced by his own wrongful act.-Cross’ case, 63 Ala. 40; Kimbrough’s case, 62 Ala. 248; Whart. on Hom. § 535. Or, as sometimes stated, no one can avail himself of a necessity which he has knowingly and willfully brought on himself.” — Leonard’s case, 66 Ala. 461; 1 Bish. Cr. Law, § 844. Many of the numerous charges requested by the prisoner, as will readily appear from inspection, were properly refused on the ground that they ignored this preliminary principle.
It is another important rule in such cases, that the right of self-defense does not arise until the defendant has availed himself of all proper means in his power to decline the combat by retreat, provided there be open to him a safe mode of escape. Ingram's case, 67 Ala. 67; Eiland’s case, 52 Ala. 322. Such, at least, is the settled principle governing cases of mere assault, or of mutual combat, where the attacking party, as expressed by Mr. Bishop, has not “ th % purpose of murder in his heart.” 1 Bish. Cr. Law, § 850. Where, however, the assault is manifestly felonious in its purpose and forcible in its nature, as in murder, rape, robbery, burglary, and the like, as distinguished from secret felonies, like mere larceny from the person, or the *337picking of one’s pocket, tbe party attacked is under no obliga-tionto retreat. But he may, if necessary, stand his ground and kill his adversary.-Cases on Self-Defence (Horr. & Thomp.), pp. 33, 133, 139; Selfridge's case, Ib. 1; State v. Shippey, 10 Minn. 223; 1 Bish. Cr. Law, § 850; Aaron v. The State, 31 Ga. 167; 1 East P. C. 271. Mr. Bishop observes, that “it is the same where the attack is with a deadl/y weapon/ for, in this case, the person attacked may well assume that the other intends murder, whether he does in fact or not.”-1 Bish. Cr. L. § 850. This observation, however, must be limited to those cases where the attack with the deadly weapon is made under such circumstances or surroundings as to reasonably justify the conclusion that the party assailed, by retreating, will apparently put himself at a disadvantage; for, as Mr. Blackstone has it, he should retreat “as far as he convenientl/y and safely can to avoid the violence of the assault, before he turns on his assailant.” 4 Com. 184; Whart. on Hom. § 485; Selfridge's case, supra; Cases on Self-Defence, 64, 121, 130. Mr. East states the doctrine as follows: “ A man may repel force by force in defense of his person, habitation, or property, against one who manifestly intends, or endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, burglary, and'the like, upon either. In these cases he is not obliged to refrreat, but may pursue his adversary until he has secured himself from all danger; and if he kill him in so doing, it is called justifiable self-defense."-1 East P. C. 271.
Of course, where one is attacked in his own dwelling-house, he is never required to retreat. ILis “ house is his castle,” and the law permits him to protect its sanctity from every unlawful invasion.-Whart. on Hom. § 541; Pond's case, 8 Mich. 150; 1 Russ. Cr. 544.
These principles are of easy application to the evidence, and some of the charges were misleading in failing to clearly recognize them.
The law requires that the circumstances surrounding the prisoner should have created in his mind a reasonable belief of his own imminent peril, and of an urgent necessity to talee the life of his assailant, as the only apparent alternative of saving his own life, or else of preventing the infliction of great bodily harm. Such peril must be, to all appearances, present and immediate, and the belief in the necessity of killing must be well founded and honestly entertained; and of these facts the jury must be the judge.-Carroll's case, 23 Ala. 28; Oliver's case, 17 Ala. 587; Ex parte Brown, 65 Ala. 446; cases on Self-Def. (Horr. & Thomp.), 345, 349, 476, 820; Whart. on Horn. § 517 et seg. Mitchell's case, 60 Ala. 26; Robert's case, 68 Ala. 156.
The charges given by the court fully recognize this principle.
*338The record contains some evidence remotely tending to show that the prisoner was in pursuit of the deceased for the purpose of recapturing a horse, which the deceased had either stolen, acquired by fraud, or else unlawfully converted to his own use.
If the property was merely converted, or taken possession of in such manner as to constitute a civil trespass, without any criminal intent, it would not be lawful to recapture it by any exercise of force which would amount even to a breach of the peace, much less a felonious homicide.-Street, v. Sinclair, ante, p. 110; Burns v. Campbell, ante, p. 271.
Taking the hypothesis that there was a la/roeny of'the horse, it becomes important to inquire what would then be the rule. The larceny of a horse is a felony in this State, being specially made so by statute, without Regard to the value of the animal stolen.-Code, 1876, § 4358. The fifth charge requested by the defendant is an assertion of the proposition, that if the horse was feloniously taken and earned away by the decor red, and there was an apparent necessity for killing deceased in order to recover the property and prevent the consummation of the felony, the homicide would be justifiable. The question is thus presented, as to the circumstances under which one can kill in order to prevent the perpetration of a larceny which is made a. felony by statute — a subject full of difficulties and conflicting expressions of opinion from the very earliest history of our common law jurisprudence. The broad doctrine intimated by .Lord Ookk was, that a felon may be killed to prevent the commission of a felony without any inevitable cause, or as a matter of mere choice with the slayer.-3 Inst. 56. If such a rule ever prevailed, it was at a very early day, before the dawn of a milder civilization, with its wiser system of more benignant laws ; for Blackstone states the principle to be, that “where a crime, in itself ■ apital, is endeavored to be committed by force, it is lawful to repel that force by the death of the party attemptin';-.”' 4 (Join. 181. The reason he assigns is, that the law is too tender of the public peace and too careful of the lives of the subjects to “ suffer, with impunity, any crime to be prevented by death, unless the same, if committed, would also be punishedAyy death.” It must be admitted that there was far more reason in this rule than the one intimated by Lord Cork, although all felonies at common law were punishable by death, and the person killing, in such cases, would seem to be but the executioner of the law. Both of these views, however, have been repudiated by the later authorities, each being to some extent materially modified. All admit that the killing can not be done from mere choice; and it is none the less certain that the felony need not be a capital one to come within the scope of the rule. Gray v. Combs, 7 J. J. Marsh. 478; Cases on Self-Defence (Horr. *339& Thomp.), 725, 867; Oliver v. The State, 17 Ala. 587; Carroll v. The State, 23 Ala. 28.
We find it often stated, in general terms, both by text writers and in many well considered cases, that one may, as Mr^ Bishop expresses it, “ oppose another who is attempting to perpetrate amj felony, 'to the extinguishment, if need be, of the felon’s existence.” — 1 Nish. Or. Law, §§ 849-50; The State v. Rutherford, 1 Hawks, 457. It is observed by Mr. Bishop, who is an advocate of this theory, that “ the practical carrying out of the right thus conceded, is, in some circmnstaces, dan-(/erous, and wherever admitted, it. should. he carefully guarded.” 1 Bish. Or. Law, $$ 855.
After a careful consideration of the subject we are fully persuaded that the rule, as thus stated, is neither sound in principle, nor is it supported by the weight of modern authority. The safer view is that taken by Mr. Wharton, that the rule does not authorize the hilling of pemons attempting secret ,/<?£• onics, not accompanied l>y force.-Whart. on Hom. § 539. Mr, (ptreenleaf confines it to “the prevention of any atrocious¡ crime attempted to be committed l>y force; such as murder, robbery, house-breaking in the night-time, rape, mayhem, or any other act of felony against the person ” (3 Greenl. Ev. 115); and such seems to be the general expression of the common law text writers.-1 Russ. Cr. 665-70; 4 Black. Com. 178-80; Whart. Amer. Cr. Law, 298-403; 1 East P. C. 271; 1 Hale, P. C. 488; Foster, 274. It is said by the authors of Cases on* Self-Defence, that a killing which “appears to be reasonably! necessary to prevent a forcible and atrocious felony against property, is justifiable homicide.” “This rule,” it is added, “ the common law writers do not extend to secret felonies, or felonies not accompanied noth force,” although no modern case can be found expressly so adjudging. They further aql(3: “It is pretty clear that the right to kill in defense of property does not e.dend tobases of larceny, which is a crime of a secret character, although the cases which illustrate this exception are generally cases of theft of articles of small value.”-Cases on Self-Defence (Horr. & Thomp.), 901-2. This was settled in Reg. v. Murphy, 2 Crawf. & Dix C. C. 20, where the defendant was convicted of shooting one detected in feloniously carrying away fallen timber which lie had stolen from the premises of the prosecutor, the shooting being done very clearly to prevent the u.ct, which was admitted to be a felony. Doherty, C. J.,said: “ I can not allow it to go abroad that it is lawful to fire upon a person committing a trespass and larceny; for that would be punishing, perhaps with death, offenses for which the* law has provided milder penalties.” This view is supported by the following cases: State v. Vance, 17 Iowa, 144; McClelland v. Kay, *34014 B. Monroe, 106, and others not necessary to be cited. See Cases on Self-Defence, p. 901, note.
There is no decision of this court, within our knowledge, which conflicts with these views. It is true the rule lias been extended to statutory felonies, as well as felonies at common law, which is doubtless the correct doctrine, but the cases adjudged have been open crimes committed by force, and not those of a secret nature.-Oliver’s case, 17 Ala. 587; Carroll's case, 23 Ala. 28; Dill’s case, 25 Ala. 15.
In Pond v. The People, 8 Mich. 150, after endorsing the rule which we have above stated, it was suggested’ by Campbell, J"., that there might possibly be some “exceptional cases” not within its influence, a proposition from which we are not prepared to dissent. And again in Gray v. Combs, 7 J. J. Marsh. 478, 483, it was said by Nioiiolas, J., that the right to kill in order to prevent the perpetration of crime should depend “ more upon the character of the crime, and the time and ma/nner of its attempted perpetration, than upon the degree of punishment attached by law'.” There is much reason in this # view, and a strong case might be presented of one’s shooting a felon to prevent the asportation of a stolen horse in the night time, where no opportunity is afforded to recognize the thief, or obtain speedy redress at law: Both the Roman and Athenian laws made this distinction in favor of preventing the perpetration of theft by night, allowing, in each instance, the thief to be killed when necessary, if taken in the act. — 4 Black. Coin. 180, 181.
The alleged larceny in the present case, if' it occurred at all,, was in the open daylight, and the defendant is not shown to have been unable to obtain his redress at law. Where opportunity is afforded to secure the punishment of the offender by due course of law, the case must be an urgent one which excuses a killing to prevent any felony, much loss one not of k forcible or atrocious nature. — Whart. Ilom. §§ 536-8. “ No man, under the promotion of tins !aw,' .-ay? Si,-Miouanr. Fos-TKit, “is to be the avenger of lbs own wrongs, Í) they are '•! sucha nature for which the law of society will gi-. o him an .•■d-'nwMfr. remedy, thither he ought to m — ui."--Foster. [■ is everywhere settled that the law will not just'f’- a imum : A which is perpetrated in resisting n mtr- .-hi! trespass rye- .!• .'i\, Ul. !UP i’)ÍC(] i,V ’ ‘ . ■ • , , ' Í' \:„;5 ■; h. , ... 7 ; \\ Í, . 1- oh !'■■■. I 'j .K' !-( a-,-. do. pv.. - •■¡tt'oii of h-.,.,. u •’ . f re miport.itiee '"in rúe ¡vo i.oc-F u) of pioperty. The law may afford <■■. •e-'-'urr 6>v -be loss of tlie one, while it utterly huh t>- >o i->r ft:-- cm-
The rule we have above declared is tin- viler one, hei.m-- >: *341better comports with the public tranquility and the peace of society. The establishment of any other would lead to disorderly breaches of the peace of an aggravated nature, and therefore tend greatly fo cheapen human life. This is especially true in view of our legislative policy which has recently brought many crimes, formerly classed and punished as petit larcenies within the class of statutory felonies. It seems settled that no distinction can, be made between statutory and common law felonies, whatever may be the acknowledged extent of the rule. Oliver’s case, 17 Ala. 587; Cases on Self-Def. 901, 867; Bish. Stat Cr. § 139. The -stealing of a hog, a sheep, or ;a goat is, under our statute, a felony, without regard to the pecuniary value of the animal. So would be the larceny of a single, ear of corn, which is “ a part of any outstanding crop.” — Code, §. 4358 ; Acts 1880-81, p. 47. It would be shocking to the good order of government to have it proclaimed, with the sanction of the courts, that one may, in the broad daylight, commit a willful homicide in order to prevent the larceny of an ear of corn.^ In our judgment the fifth charge, requested by the defendant, was properly refused..
It can not be questioned, however, that if there was in truth a larceny of the prisoner’s horse, he, or any other private person had a lawful right to pursue the thief for the purpose of arresting him, and of recapturing the stolen property. — Code, §§ 4668-70; 1 Bish. Or. Broc. §§ 16A-5. He is not required, in such case, to inform the party fleeing of his purpose to arrest him, as in ordinary cases. — Code, § 4669. And he could, if resisted, repel .force with force, and need not give back, or, retreat. If, under such circumstances, the party making resistance is unavoidably killed, the homicide would be justifiable. 2 Bish. Cr. Law, § 647; 1 Russ. Cr. 665; State v. Roane, 2 Dev. 58. If the prisoner’s purpose was honestly to make a pursuit, he would not for this reason be chargeable with the imputation of having wrongfully brought on the difficulty; but the law would not permit him to resort to the pretense of * pursuit, as a mere colorable device, beneath which to perpetrate crime. f
The character of the deceased was clearly a vital issue, as it is in AH cases where an issue of self-defense properly arises. It wak relevant as having a tendency to justify the belief in the prisoner’s mind of a peril enhanced by the dangerous character of his assailant. A ferocious, vindictive and turbulent man is reputed to be such, because of the frequency with which he executes his revenge, or gives expression, by constant overt acts, to his animosity. A demonstration on his part, especially when preceded by recent and violent threats, ■ may create reasonable apprehension of danger, when the same conduct on the part of *342a notoriously peaceable or timid man would be regarded as entirely harmless. It is cpiite true that no one can, without lawful excuse, kill a blood-thirsty ruffian any more than he can the most orderly citizen ; but it is plain that an overt act done by the former may reasonably justify prompter action, as a necessary means of self-preservation, than if done by the latter. It may sometimes be as material to prove that a man, who assailed you, was a Thug in character, as that he was a Thug in reality. Whart. on Hom. § 606; Robert's case, 68 Ala. 156; Pritchett's case, 22 Ala. 39; Dupree v. State, 33 Ala. 38; Franklin's case, 29 Ala. 14; Stokes’ case, 53 N. Y. 164; Colton's case, 31 Miss. 504; Cases Self-Defense (Horr. & Thomp.), pp. 486, 667, 641, 635, 927, 539.
There are some other questions raised in the record which we do not think necessary to discuss. The judgment of the Circuit Court must be reversed, and the cause remanded for a new trial. In the meanwhile, the prisoner will be retained in custody until discharged by due process of law.