The opinion of the court was delivered by
Mr. Justice McIver.The appellant was indicted for and convicted of the murder of one William IT. Brooks, on Friday, the 26th of April, 1889, and the appeal is based upon exceptions taken to the rulings of the Circuit Judge in empanelling the jury and in excluding certain testimony, as well as to certain portions of the judge’s charge to the jury.
When the prisoner was arraigned, it appearing that only thirty-one petit jurors were present, his counsel moved that the jury commissioner be ordered into court and required to draw1 a sufficient number of additional jurors to make up a full panel of thirty-six. This motion was refused, to which exception was duly taken, and this constitutes the basis of the first ground of appeal on this branch of the case.
When the case was called for trial, and both parties had announced themselves ready, it appeared that a jury was then in their room, engaged in the consideration of another case, whereupon counsel for the prisoner moved to await the return of the absent jury, so that the names of the entire panel in attendance on the court might be placed in the hat before commencing the drawing of the jury to be charged with the trial of this case. This motion was likewise refused, and counsel for prisoner excepted. The drawing of the jury was then commenced, and before any juror was challenged, but after two had been accepted by the prisoner, the absent jury returned into court, when their names were also placed in the hat and the drawing proceeded, and before the prisoner had exhausted his peremptory challenges (only five having been so challenged), a jury was obtained, which was duly charged with the trial of the case. The refusal of this last mentioned motion furnished the basis of the second ground of appeal.
It appeared from the testimony that on the Saturday night preceding the Friday on which the homicide occurred, that the prisoner, in company with one Rogers, had been fired upon by *39the deceased, or by a party of persons amongst whom was the deceased, and in his defence the prisoner proposed to show by the testimony of Rogers, as well as by his own, what passed between himself and Rogers, not in the presence or hearing of the deceased, in regard to returning the fire, for the avowed purpose of showing that the prisoner desired to avoid taking life. Upon objection, this testimony was ruled out as mere hearsay, and not constituting any part of the res gestae; and this ruling affords the basis of the third and fourth grounds of appeal.
The appeal is also based upon sundry exceptions to the judge’s charge, which will be hereinafter stated and considered ; but as they rest upon detached portions of the charge, we think that, in justice to the Circuit Judge, his charge should be set out in ex-tenso in the report of this case.
We see no error in the refusal of either of the motions made in reference to the formation of the jury. There is no statute or rule of practice, so far as we know, which requires that thirty-six, or any specific number of, jurors shall be in attendance on the court at the time a jury for the trial of a capital case is organized. If a sufficient number are present to enable the accused to enjoy all the rights guaranteed to him by the law, he cannot complain that there has been any error of law in organizing the jury for the trial of his case. He is entitled to be tried by a jury composed of twelve men, and also to the number of peremptory challenges prescribed by statute ; and if these rights are accorded to him, as they undoubtedly were in this case, we do not see what ground of complaint, so far at least as numbers are concerned, he can have. Indeed, the statute (Gren. Stat., § 2251) does not declare that thirty-six jurors shall be drawm and summoned, but, on the contrary, the language is: “No more than thirty-six persons to serve as petit jurors shall be drawn and summoned to attend, at one and the same time, at any court unless the court shall otherwise order.” This plainly shows that whether a greater number of jurors shall be drawn is a matter left to the discretion of the court.
But without pursuing the subject further, it seems to us that the question has been distinctly decided in the case of the State v. Stephens (13 S. C., 285), where it is said: “It was not neces*40sary that the whole number of thirty-six jurors should be present at the commencement of the trial. No sanction éxists for such a demand either in the statute or the authorities.” The distinction suggested by counsel for appellant between that case and this, that there no motion was made to fill up the panel-as was done here, does not seem to us to be well founded. In that case, objection was made to proceeding with the organization of the jury because thirty-six were not present, which practically amounted to a motion to fill up the panel. But more than this, the decision in that case was not rested upon the ground that no motion had been made to fill up the panel, but was placed distinctly upon the ground that there was no law requiring that thirty-six jurors should be present.
The next objection, based upon the fact that the names of all the jurors in attendance upon the court were not placed in the hat when the drawing commenced, cannot be sustained. We do not see how it is possible that this could have impaired or in any way affected any legal right to which appellant w'as'entitled. It could not possibly affect his right of challenge, which it is well settled is a right to reject and not a right to select jurors (State v. Wise, 7 Rich., 412, followed in numerous cases, including the very recent case of State v. Jacob, 30 S. C., 131), as is conclusively shown by his having obtained a jury without exhausting his peremptory challenges.
The third and fourth grounds of appeal imputing error to the Circuit Judge in ruling out the testimony of Rogers and the prisoner as to what passed between them on the evening of Saturday, nearly a week before the homicide was committed, cannot be sustained. This testimony was manifestly nothing more than hearsay, and, occurring nearly a week before the homicide was committed, clearly cannot be regarded as any part of the res gestae. The prisoner was allowed to prove the threats alleged to have been made against him by the deceased, as well as the demonstrations of violence made by deceased on the Saturday night previous; and we can conceive of no ground upon which a private conversation between the prisoner and the witness Rogers, occurring about a week before, not in the presence of the deceased, *41and not communicated to him, could be regarded as competent evidence.
The exceptions to the judge’s charge are somewhat peculiarly framed, consisting, with one exception, of mere extracts from the charge, .and their point can only be discovered by reading them in connection with the argument submitted on behalf of the appellant. The first exception is as follows: “The want of ma]ice is adjudged to exist when the killing is done in sudden heat and passion, on a sudden quarrel; and, although I do not see it laid down in any particular case, yet I would say further, that when the defendant believed that his life was in danger, although you should come to the conclusion that a case of self defence was not made out, and that he killed to save his own life, or to preserve his life from great harm, that then it would be a case of manslaughter.” Turning to the argument, we find that the point of this exception rests upon the assumption that the words, “although you should come to the conclusion that a case of self-defence was not made out,” are parenthetical, and may, therefore, be omitted without destroying, or in any way impairing, the sense of the passage in which such parenthetical words are found; and if omitted, then the proposition of law stated was erroneous, inasmuch as it took away from the jury the consideration of the plea of self-defence. We are at a loss to conceive any authority whatever for omitting the words above quoted. We do not see any reason why those words, any more than any other words found in the extract constituting the first exception, should be omitted as parenthetical, or for any other reason. We must judge of the correctness of the charge’by the language found in it, and not by omitting portions of it, or substituting other language.
It seems to us, that when that portion of the charge now under immediate consideration is read in connection with other portions of the charge, as it should be, its obvious meaning is very different from that sought to be attributed to it by the unwarranted omission of the words above quoted; and that, in fact, if there was error in it, the error was in favor of rather than against the accused. In other portions of the charge, his honor had explicitly and correctly, as we shall see, instructed the jury as to what elements were necessary to constitute self-defence, amongst which *42were that the party setting up such defence must not himself be in fault in bringing on the difficulty, and must riot only believe, but also have good reason to believe, that his own life was in danger, or that he was in danger of some serious bodily harm ; and there can be no doubt that in the extract constituting the first exception, the judge obviously intended to say to the jury, that even if all the elements necessary to constitute self defence -were not present, yet if the accused, in sudden heat and passion, on a sudden quarrel, believing that his life was in danger, fired the fatal shot, it would be manslaughter and not murder. This was certainly going as far, if not farther, than the law would warrant in favor of the accused. We cannot see, therefore, that there is any ground for the first exception.
The second exception consists of the following extract from the charge : “The defendant’s counsel argued to you erroneously that the defendant did not have to wait to be assaulted. I charge you that he did have to wait to be assaulted; that the threats, that the conduct of the deceased, before that time, entitled him not to step up to the deceased and shoot him without the deceased making the first assault; but it entitled him to be the more watchful, and to interpret the acts of the deceased more harshly than he otherwise would have interpreted them. That is all that the threats or previous quarrels entitled the defendant to do.” The precise error complained of in this exception seems to be in telling the jury that the prisoner was bound to wait until he was assaulted before he would be warranted in taking the life of the deceased; but when the language used by the Circuit Judge is taken in connection with other portions of his charge, especially where he told the jury what would constitute an assault — “it is an act accompanied with circumstances which denote a present intention with a probable ability to do violence to the person of another. So that an effort to draw a pistol by an enraged man, putting his hand in his hip-pocket, might, or might not, owing to the circumstances, be construed to be an assault” — it is quite clear that there was no error in that part of the charge which constitutes the basis of the second exception. We do not see how the jury could fail to understand that the judge simply meant to instruct them, that the demonstration of violence made by the deceased towards the *43prisoner nearly a week before, together with the threats made in the meantime, would not warrant the prisoner in shooting the deceased when they met in the store, unless, at that time, the deceased had made some demonstration of his purpose to execute the threats. An assault has been defined to be “an offer or attempt to do violence to the person of another in a rude, angry, or resentful manner”; and it is well settled that no words, however violent or threatening in their character, will justify even a battery, much less a homicide, unless they are accompanied with some act — some offer or attempt to do violence to the person of another.
The third exception is based upon the following extract from the charge: “Then was the defendant here assaulted? You are not trying Mr. Brooks. It does not make any difference what he did. He might have shot a hundred times at the defendant here, and if the defendant was not in any danger from that shooting, and he knew he was not in any apparent danger from that shooting, although murder might have been in the heart of Mr. Brooks, it would not justify him. You are not to pass upon any supposed malice in the heart of Mr. Brooks, so as to discount it against any supposed malice, or any proven malice, that might have been in the heart of the defendant. There is no discount in the case.” Reading this language in the light of the undisputed facts of the case, as is the only proper way to do, it is impossible to suppose that the jury could have understood it as referring to anything else but the shooting which occurred on the Saturday night previous to the homicide, for there was not the slightest pretence that the prisoner had ever been shot at by the deceased upon any other occasion. So reading, it is clear that there was no error in the instruction complained of; for it simply amounted to this, that even assuming that the deceased had, on the Saturday night previous, entertained the most murderous purpose against the prisoner, that would not justify him in killing the deceased as soon as he saw him on the following Friday, unless such purpose was then manifested in some way that rendered it necessary for the prisoner to prevent the execution of such purpose by taking the life of his adversary.
The fourth and fifth exceptions need not be set out in extenso *44here, as their sole purpose is to question the correctness of the instruction given to the jury, that in order to make out the plea of self-defence, it is not only necessary that the accused should actually believe, when he takes the life of his adversary, that his own life was in imminent danger, or that he was in imminent danger of some serious bodily harm, but the circumstances must be such as would justify a reasonable person, of ordinary firmness and discretion, in entertaining such belief. The correctness of the charge in this respect is fully vindicated. by at least two distinct decisions in this State — State v. McGreer (13 S. C., 464), where it is said: “To make out a case of self defence, two things are necessary: 1. The evidence should satisfy the jury that the accused actually believed that he was in such immediate danger of losing his life, or sustaining serious bodily harm, that it was necessary, for his own protection, to take the life of his assailant. 2. That the circumstances in which the accused was placed were such as would, in the opinion of the jury, justify such a belief in the mind of a person possessed of ordinary firmness and reason. It is not a question which depends solely upon the belief which the accused may have entertained, but the question is, what was his belief, and whether, under all the circumstances, as they existed at the time the violence was inflicted, the jury think he ought to have formed such belief.” And State v. Turner (29 S. C., 44), where the Chief Justice lays down the rule in these terms: “It ought to have been left to the jury to determine, under the facts stated, if proved, whether there was great danger of bodily harm, * * * or, in- other words, whether he had well grounded reasons to believe (such as would influence ordinary men) that his life or body was in danger.”
The judgment of this court is, that the judgment of the Circuit Court be affirmed, and that the case be remanded to that court for the purpose of having a new day assigned for the execution of the sentence heretofore passed.