While I concur in the judgment of reversal, and in what is said in the opinion of Mr. Justice Battle concerning the law of self-defense, I do not fully agree with his criticism of the. instructions given by the trial judge. I think the instructions referred to are not only defective in form, but that it is hardly correct to say, as these instructions say, that the circumstances under which defendant acted must have been sucH as “to induce” a reasonable person to believe that the danger was so urgent and pressing that the killing was necessary to save his own life or prevent great bodily harm. It is sufficient if the circumstances were “calculated to induce” such belief in a reasonable person, or, to put it in different and perhaps clearer language, sufficient if the defendant had reasonable grounds to believe that he was in imminent danger if he honestly entertained and acted upon such belief. But the opinion goes further, and condemns the reference to “a reasonable person” contained in these instructions. The argument is that they thus set up a mythical or ideal reasonable person as a criterion by which to judge the defendant, and are therefore erroneous.
But I do not think the instructions are erroneous in this respect, for on that point they substantially follow the law as stated by this court in the case of Palmore v. State, 29 Ark. 248, a case which has been often approved in later decisions. In that case, the court, quoting the statute, said: “To excuse homicide, it must appear that the danger is not only impending, but so pressing and urgent as to render the killing necessary; and the circumstances must show that there was sufficient to arouse the fears of a reasonable person, and that the party killing really acted under their influence, and not in a spirit of revenge.” Palmore v. State, 29 Ark. 266; Levells v. State, 32 ib. 585; Fitzpatrick v. State, 37 ib. 257; Sand. & H. Dig., §§ 1675— 1676.
The law presumes that men are sane, and have ordinary reason, until the contrary is shown, and, as nothing appears to the contrary here, the judge could assume that the defendant was a sane man, possessed of ordinary reason, and accountable as such. This being so, it seems to me that the instructions given in this case and the law as stated in Palmore v. State amount to the same thing as saying, though in different words, that to justify homicide on the ground of self-defense the defendant must not only believe that the necessity to take life exists, but there must be reasonable grounds for such belief on his part. If the circumstances under which defendant acted were not calculated to raise in the mind of a reasonable person placed in defendant’s situation a belief of imminent danger, then it cannot be said that he had reasonable grounds for such belief; andif he had no reasonable grounds to believe thathe was in imminent danger, he was not justified in taking life. Shorter v. People, 2 N. Y. 193. To quote the language of the supreme court of Massachusetts, the justification or excuse of self-defense rests on two propositions: “One the reasonable cause, the other the actual apprehension or thought of the defendant, and his purpose or intent. Both must exist, or neither will avail.” Commonwealth v. Woodward, 102 Mass. 155. Not only this, but as a general rule “to justify the taking of life in self-defense the party must employ all means within his power and consistent with his safety to avoid the danger and avert the necessity.” McPherson v. State, 29 Ark. 225.
It is of course true that the danger need not be actual; it is sufficient if it appears to the defendant to be so. If, being without fault himself, he acts upon the honest belief that the danger is actual and imminent, and has reasonable grounds for such belief, he will be excused, though it should turn out that he was mistaken. Shorter v. People, 2 N. Y. 193. No one would dispute this proposition, and I am inclined to the belief that this court was mistaken in attributing a contrai'y meaning to the instructions discussed in Smith v. State, 59 Ark. 132. On other grounds, though, I think the judgment in that case was correct, for that was not an ordinary case of killing in self defense. The defendant there was at the time of the killing assisting a peace officer endeavoring to make an arrest, and under the facts the instructions given seem to have been misleading. But, while the instructions there were misleading, I do not think they quite bear the meaning attributed to them in the opinion, and for the same reason I think the criticism of the instructions in this case is not altogether correct. While, therefore, I agree to the judgment, I must differ from some statements in the opinion.