By the Court,
Lewis, C. J.:The jury in this case were instructed that, “ In order to make a killing, under such circumstances as have leen proven, justifiable homicide, it must appear that the party killing had retreated as far as he safely could at the time, and in good faith declined all further contest; and was compelled to kill his adversary in order to save himself from death or great bodily harm, which to a reasonable .man would appear imminent.” This instruction clearly assumes the proof of material facts, leaving but one question to be determined by the jury, namely: whether the defendant had retreated as far as he safely could, before he killed the deceased. The “ circumstances proven,” as it is stated by the court, rendered him clearly guilty of a crime, provided the jury did not find the one fact — that he retreated as far as he safely coaid — in his favor. This was substantially saying to the jury that the defendant was guilty, either of murder or manslaughter, provided they were satisfied he did not retreat to the wall before he killed the deceased, thus assuming the proof of all the other material and essential facts.
The evidence shows that, a short time before the killing, the deceased had beaten the defendant in a brutal manner, and when compelled to desist by the interference of third parties, asked, in the hearing of the defendant, for a pistol; and said that he would shoot him, the defendant,on sight.” There is also some slight evidence that, ten or fifteen minutes afterwards, when the parties met, the deceased rushed at the defendant in a hostile manner, when the scuffle which resulted in the death of deceased occurred. If it be true that the threat was made by the deceased to kill defendant the first time he saw him, and when they next met he rushed at him with hostile demonstrations, the defendant (if not the assail*377ant) would not be compelled to retreat, but if the demonstrations were such as to justify the belief that the deceased intended to carry out his threat, the defendant would be justified in killing him without retreating. Roscoe’s Crim. Evidence, 765. But this instruction ignores all these circumstances of the case, and assumes that there was no ground of justification to the defendant except that of having retreated as far as he safely could.
Judgment reversed.