dissenting. The accused offered evidence tending to prove, and claimed that he had proved, that the deceased intended to use sufficient force to effect an entrance into the house and take him dead or alive; that he so believed; also that he believed, and had reason for believing, that the deceased intended, and was about to effect, an unlawful entrance into the house and unlawfully arrest him.
These claims upon the part of the accused were supported by admissible testimony, which testimony it was within the legal power of the jury to believe, if they saw fit so to do. Therefore it was a possible fact in the ease that the deceased did so intend and the accused did so believe, and that his *324action was wholly the result of such belief. And upon such possible fact he asked the court to instruct the jury as to his legal rights. The court charged the jury as follows:
“ If you find that the deceased entered upon said land and was approaching said house for the purpose of breaking into the house to arrest the accused in an illegal manner, and the accused, under the circumstances, had reason to believe, and did believe, that the deceased was about to carry such purpose into immediate execution by an assault upon the house, the accused had the right to make all reasonable resistance to prevent the deceased from executing said purpose; and if you find that, under the circumstances, the accused, without saying a word to the deceased by way of warning or otherwise, and while the deceased was at some considerable distance from the house, and had made no actual assault upon it, as claimed by the State, shot at and killed him, such an act would not be a reasonable exercise of the right of the accused to resist, under such circumstances, and such killing, if done with express malice aforethought, as I have explained it, would be murder in the first degree; but if done without such express malice aforethought, but with implied malice, would be murder in the second degree. It is for you to say, as a question of fact from all the evidence in the case, what were the facts and circumstances under which the killing was done, and whether, under all the circumstances, what the accused did was reasonable and proper, and done without express malice; and you are to judge this man as the circumstances appeared to him at the time.”
If a person approaches the house of another with the intent to make an unlawful entrance by force and an unlawful arrest of the owner who is therein, the latter, having reason for believing such to be his intent, and that he is about to carry it into effect, may, for the sole purpose of preventing the execution of such unlawful intent, make resistance sufficient in degree and in time to prevent it. He is under no legal obligation to admit the unlawful intruder or flee from the house and permit him to effect an unlawful ’entrance. If the resistance is neither greater in *325degree nor earlier in time than is necessary, and it results in the death of the assailant, it is justifiable homicide. And the slayer is to be judged as the circumstances really appeared to him at the moment.
If the resistance is unnecessarily great in degree or early in time, and therefore unreasonable, and therefore unlawful, and results in the death of the assailant, it is manslaughter. It is not murder either in the first or second degree, although the act is the result of premeditation and intent, if such premeditation and intent include nothing more than defense against the unlawful attack.
The court had previously instructed the jury that “to constitute murder in the first degree there must have been in the mind of the accused, at the time of the homicide, a deliberate, specific intent to kill, as this is an essential element of this crime. Such a specific, willful, deliberate intent to kill would constitute express malice aforethought.”
In effect, therefore, the jury were instructed that if they should find this killing to have been the result of unnecessary force, or to have been unnecessarily soon, and therefore unlawful, it would be murder in the first degree, if it was done in coolness and with premeditation.
But, as a matter of law, it is possible for a man to be very cool, deliberate and determined in defending his house from an unlawful entry by force for the purpose of making an unlawful arrest of himself, even to the killing of the assailant, by force found to have been unnecessary in degree and time, and therefore unlawful, and yet not to be guilty of murder in the first degree. If the premeditation and intent are the result of previous hatred and malice, and are in any degree based upon revenge for past injuries, and not wholly upon protection from present danger, and if the present danger is used only as an opportunity for such revenge, the killing is murder in the first degree.
The jury are to determine in all cases as to the foundation of the premeditation and intent; aho under instructions by the court as to the rule of law, to determine the fact as to *326the reasonableness or unreasonableness of the force used in repulsion.
It cannot be said as a matter of law that under any and all circumstances the killing of such assailant, even without warning and when twenty feet distant from the house in his approach, was unreasonable and therefore unlawful, and therefore murder or manslaughter in some degree. It is for the jury to say, under instructions as to the rule of law, if a warning was necessary and if the killing at twenty feet distant was unnecessary.
In Commonwealth v. Carey, 12 Cush., 246, the facts were as follows: One Heywood, a constable, without a warrant, had arrested Carey for a misdemeanor, a degree of crime for which in Massachusetts a man could not be arrested by an officer without a warrant. Carey broke away from Heywood and ran off; Heywood pursued him. Carey knew he was a constable. Carey carried a pistol in his hand, which he once or twice pointed at his pursuer, but said nothing. After running about two hundred rods he made a stand, and told Heywood, who was within twenty feet of him, to go back or he would shoot him. Heywood stopped, but refused to go back. Carey took aim and fired. The ball took effect in the constable’s abdomen, and he died in eighteen hours. Shaw, Ch. J., stated that “ the court were of the opinion, and proposed to instruct the jury, that if a prisoner is unlawfully arrested, and if in resisting the arrest or attempting to escape he takes the life of the person so arresting him, although the act is not justifiable, and amounts to a criminal homicide, yet it is not homicide with malice aforethought, which is necessary to constitute murder; but it will in contemplation of law be manslaughter. This was a principle somewhat technical, but yet well established by law, although in many cases, even in the present, the act might be done under such circumstances of deliberate cruelty as would equal or surpass in point of atrocity or moral turpitude many cases recognized as murder; yet the prisoner must be tried by the rules of law, and not by the aggravation of the offense as tried and tested by another standard.”
*327In Commonwealth v. Drew, 4 Mass., 395, Parsons, Ch. J., said: “ It is a rule of law that, where the trespass is barely against the property of another, not his dwelling house, it is not a provocation sufficient to warrant the owner in using a deadly weapon. * * * If any man under color or claim of legal authority, unlawfully arrest or actually attempt or offer to arrest another, and if he resist, and in the resistance kill the aggressor, it will be manslaughter.”
In Rafferty v. The People, 69 Ill., 111, the marginal note is: “ It is a general rule that when persons have authority to arrest or imprison, and while using the proper means for that purpose are resisted in so doing and killed, it will be murder in all who take part in such resistance. But if the officer exceed his authority the killing of the officer in such a case, by the person sought to be arrested, will not be murder but manslaughter only.”
See also 3 Greenleaf on Evidence, (14th ed.) § 123; 1 Bishop on Criminal Law, (7th ed.) § 858: Wharton on Criminal Law, (4th ed.) § 975.
In Pond v. The People, 8 Mich., 150, it is said in the marginal note: “ A man assaulted in his dwelling is not obliged to retreat, but may use such means as are absolutely necessary to repel the assailant from his house, or prevent his forcible entry, even to the taking of life. And if the assault or breaking is felonious, the homicide becomes at common law justifiable, and not merely excusable.
“ The law does not require the necessity for taking human life to be one arising out of actual and imminent danger, in order to excuse the slayer; but he may act upon a belief, arising from appearances which give him reasonable cause for it, that the danger is actual and imminent, although he may turn out to be mistaken. The guilt of the accused must depend upon the circumstances as they appear to him, and he will not be held responsible for a knowledge of the facts, unless his ignorance arises either from fault or negligence.”
In 2 Bishop on Criminal Law, (7th ed.) § 707, it is said: “ The defence of the dwelling house stands on a different ground, and though the question has at some periods of our *328law been in part under a cloud, it may now be deemed to be reasonably clear that, to prevent an unlawful entrance into a dwelling house, the occupant may make defense to the taking of human life, without being liable even for manslaughter. Of course a defense may be of a sort which will constitute manslaughter or even murder.”
In State v. Patterson, 45 Verm., 308, it is said in the marginal note : “ The idea embraced in the expression that a man's house is his castle, is not that it is his property, and that as such he has the right to defend and protect it by other and more extreme means than he might lawfully use to defend and protect his shop, his office or his barn. The sense in which the house has a peculiar immunity is, that it is sacred for the protection of his person and of his family. An assault on the house can be regarded as an assault upon the person only in case the purpose of such assault be injury to the person of the occupant or members of his family, and in order to accomplish this the assailant attacks the castle in order to reach the inmate. In this view it is said, and settled, that in such case the inmate need not flee from his house in order to escape injury by the assailant, but he may meet him at the threshold and prevent him from breaking in by any means rendered necessary by the exigency, and upon the same ground and reason that one may defend himself from peril of life or great bodily harm by means fatal to the assailant, if rendered necessary by the exigency of the assault.”
I think there is error in the charge.
In this opinion Beardsley, J., concurred.