dissenting: There is evidence tending to prove that the defendant Wattie Greer and the deceased, Will Fin-ney, engaged in an affray, and that both fought willingly, and that during the affray they clinched and fell, Finney on top, and that Finney drew his knife and stabbed Wattie and had his arm drawn back to stab-him again, when defendant Wallace Greer rushed up and struck Finney on the head with an *653axe and killed Mm. "Wattie was unarmed, and at tbe time was flat on tbe ground witb Finney on top of him. . Tbe evidence of defendant Wállace tended to prove that Wattie and Finney were having some words about a quarter of a dollar; that Wallace separated them and stopped tbe quarrel; that Wallace turned away and went to bis buggy and started to drive off; that be beard some one exclaim, “Don’t let Finney kill Wat-tie !”; that be turned and saw that Finney was astride of Wat-tie and bad stabbed him and bad bis arm drawn back to stab him again; that Wallace grabbed an axe and struck Finney on tbe bead before Finney could stab Wattie again.
In bis charge bis Honor made tbe guilt of Wallace depend exclusively upon tbe guilt of Wattie, saying: “His guilt or innocence would depend upon tbe question as to whether Wattie was at fault or not; that is, as to whether Wattie engaged in tbe fight willingly or used language calculated or intended to bring on a fight.”
This charge is sustained by our precedents in case tbe jury should find that Wallace entered into tbe fight for tbe purpose of aiding Wattie and defending him in the affray witb Finney.
It is well settled that “though a son may 'fight in tbe necessary defense of bis father, yet tbe act of tbe son must receive tbe same construction as tbe act of tbe father.” S. v. Brittain, 89 N. C., 482; S. v. Johnson, 75 N. C., 175. This is upon tbe ground that these relatives stand in mutual relation one to tbe other, and where one enters into tbe fight to assist in defending the other be becomes bis confederate, and bis act must have tbe same construction as the' act of tbe assisted party. 1 Hale P. C., 484 ; 3 Blackstone, 3, and note; S. v. Medlin, 126 N. C., 1127.
"Although this doctrine has been severely criticised by some courts, I am not disposed to abrogate or qualify it.
But there is a phase of tMs case which bis Honor did not present to tbe jury, and which is not obnoxious to tbe authorities I have quoted.
By several appropriate prayers for instruction tbe defendant Wallace Greer substantially requested tbe court to instruct tbe *654jury that if he, Wallace Greer, did not enter into the fight for the purpose of assisting and defending Wallace in his contest with Finney, but struck the blow which killed Finney on a sudden emergency with the sole purpose of preventing Finney from committing a felonious homicide, and such blow was necessary for that purpose, then defendant Wallace was justified, and the jury, if they so find, should acquit.
I think this view of the evidence should have been presented to the jury.
The evidence'tends to prove that had Finney succeeded'in stabbing Wattie the second time, and had killed him, he would have been guilty of a felonious homicide, and that the blow administered • by Wallace prevented such result. Wharton on Homicide, sec. 533, thus states the law:
In section 533 it is said: "Bona fide belief by the defendant that a felony is in process óf ■ commission, which can only be averted by the death of the supposed felon, makes the killing excusable homicide, though if such belief be negligently adopted by the defendant, then the killing is manslaughter. ... If A honestly and without negligence on his part believes that B is in- the process .Of committing a felony, which can only be arrested by B’s death, A is excused in killing B.” See, also, sections 537 and 539.
“It is the duty of every man, whether an officer of justice or private citizen, who sees a felony attempted by violence, to prevent it if possible, and in the performance of his duty such person has the legal right to use all means which appear to him as a reasonable man to be necessary to make the resistance and interference effectual, and if the felony cannot be prevented by other means, he is justified in taking life.” 21 Enc. of Law, 207. • ' '•
“A homicide is justifiable when committed by necessity and in good faith- in order to prevent a felony attempted by force or surprise, such as murder ... To justify the killing, however, it most be done in good faith and under an honest and reasonable belief that such felony is about to be committed, and that the killing is necessary in order to prevent its accomplish*655ment, and must be done while the person is in the act of committing' the offense, or after some act done by him showing an evident intent to commit such an offense.” 21 Cyc., 798, 799.
These authorities show that if it appears that a person is about to commit a felony upon another, a third party has the' right to take the life of the one about to commit the felony, if he believes it is necessary in order to prevent the felony, and a man of ordinary firmness and intelligence would have reached the same conclusion.
I think there is a well marked distinction between the case where there is only an intention to prevent a felony and that in which the third party, whether related or not, espouses the cause of one of the participants to defend him in the contest. In the latter case the parties, in law, become confederates and their relation becomes mutual. In the former case a third party is excused, even in taking human life, if the sole motive which prompted him to interfere was to prevent the perpetration of a felonious homicide, and the jury should also be satisfied that the facts, as they appeared to him, were such as might reasonably have convinced a man of ordinary firmness and intelligence that such a felony was about to be committed.
The distinction is recognized by the Supreme Court of Michigan in People v. Curtis, 52 Mich., 617, in which it is held that a dangerous felony may be forcibly prevented by any one who is not himself in the wrong directly or by complicity.
Under the common law the right of mutual defense was given to nearly all the domestic relations, but there is no principle of the common law which denies to a relative the right to prevent the commission of a felonious homicide to the same extent and under the same circumstances as one not related may prevent it.
When one intervenes in a fight for the sole and only purpose to prevent the commission of a felonious homicide, and uses no more force than is reasonably necessary, he'is not considered as fighting in defense of any one, but only to uphold the law of the land and to prevent the destruction of human life. The principle of justification in such case is broader than the mere idea of self-defense. It is founded upon duty to the State and *656not to an individual. Upon tbe same principle private citizens may arrest'felons to prevent escapes, without warrants. S. v. Bryant, 65 N. C., 327. There can be no doubt that this defense would be open to the defendant Wallace Greer upon the evidence in this case, had he not been the brother of Wattie. The fact that he is his brother-ought not to deprive him of the benefit of it.
Waluer, J., concurs in the dissenting opinion of BeowN, J.