The appellant was convicted of murder in the second degree. The killing was admitted and the plea of necessary self-defense interposed.
The altercation began and ended in a store-room. The defendant and deceased were both armed with pistols. There was testimony tending to show that the deceased made the first demonstration of violence by attempting to draw his pistol; that the defendant first succeeded in getting his pistol in condition for use, and fired while the deceased was attempting to extricate his pistol from entanglement in a handkerchief which he carried in the same pocket; that, while the defendant fired, the deceased slowly moved off, seeking constantly an opportunity to return the fire. He never passed the door of the room, and fell with his pistol in his hand. The court instructed the jury, among other things, as follows :
1. Homicide : Self defense : R e-treat of adversary. “The jury are instructed that the killing of a human being can be justified only in necessary self-defense, and the slayer is guilty of murder when he pursues an adversary and kills him in retreat, unless the proof should show that the deceased at the time had given such provocation as to evidence a sudden and irresistible passion, in which case it would be manslaughter."
2. Instruction:should apply to opposing theories. The deceased never retreated to a place from which he •could not, if he had desired, have shot the defendant. The evidence tended to show that he was not attempting to retire from the combat, but was merely seeking a situation more favorable for waging it. If such was true, it was not incumbent on the defendant to suspend his defense until the deceased .had gained the situation he sought, but he had the same right to defend himself as if the deceased were standing and attempting to shoot him. If the deceased was in fact seeking to retire from the combat, and his conduct manifested such purpose, the defendant was not justified in shooting him. The instruction quoted, properly declared the law in the view of the facts taken by the State, but fails to state it in the view taken by the defense. The law should have been declared as applicable to any view that might be taken.
We do not think it is sufficiently done in any other instruction given. If the seventh instruction asked by the defense had been given without modification, it would have supplied the omission in the instruction quoted. But this instruction as modified, with the instruction quoted, might reasonably have impressed the jury that the defendant could not excuse himself for shooting the deceased while withdrawing, although he were doing so to secure a position from which he might renew the combat more effectively.
For this reason the judgment is reversed and the cause remanded.
Sandels, J., Hughes, J., and Hemingway, J., concurred.