dissenting.
The Court in its statement of facts has said: “We have stated the facts from the standpoint of the accused, in view of the disposition we shall have to make of the case, but we should say that the evidence of the Commonwealth is in conflict with that of the accused”. In the instant case we have a jury’s verdict approved by the presiding judge. Ordinarily we stress those facts which sustain the judgment.
Instruction “H”, tendered on behalf of the accused, concludes with this statement: “The court instructs you that the accused is entitled to be tried and judged by facts and circumstances as they reasonably appeared to him and not by any intent that may or may not have existed in the mind of the deceased.” The court declined to give it in the form as tendered, but amended it by this addition: “Provided they would so appear to a reasonable man placed under similar circumstances, and not by any intent that may or may not have existed in the mind of the deceased.”
As tendered it made the accused a final judge of the imminence of his peril. As amended it left this question of facts to the jury.
In 26 American Jurisprudence, p. 253, is this statement of the law: “What appears to be the prevailing rule in America asserts that the apprehension of danger and belief of necessity which will justify killing in self-defense must be a reasonable apprehension and belief, such as a reasonable man would, under the circumstances, have entertained.”
In Addington v. United States, 165 U. S. 184, 17 S. Ct. 288, 41 L. Ed. 679, Addington was charged with murder and convicted by a trial court. The defendant relied upon Beard v. United States, 158 U. S. 550, 15 S. Ct. 962, 39 L. Ed. 1086. The Court in distinguishing the cases said: “On *230the contrary, the court said, in substance, that if the circumstances were such as to produce upon the mind of Adding-ton, as a reasonably prudent man (Italics supplied), the impression that he could save his own life, or protect himself from serious bodily harm, only by taking the life of his assailant, he was justified by the law in resorting to such means, unless he went to where the deceased was for the purpose of provoking a difficulty in order that he might slay his adversary.”
In Mercer v. Commonwealth, 150 Va. 588, 142 S. E. 369, this Court, speaking through Judge Campbell, said: “It is assigned as error that the court erred in amending instruction No. 2-A. This instruction, as offered by the accused, is as follows: ‘If the jury should believe from the evidence that the accused shot the deceased under a reasonable belief that his own life was in danger, or that he was in danger of serious bodily harm, as the facts and circumstances reasonably appeared to him at the time, he was excusable in so doing, whether such danger was real or not. The question for the jury in this case is not whether the taking of the life of the deceased might have been safely avoided, but whether the accused {in the circumstances of agitation and peril in which he was placed, as reasonably appeared to him) might reasonably have believed, and did believe, it necessary to shoot as he did, resulting in the death of the deceased, in order to save his life, or avoid serious bodily harm.’ The amendment consisted in striking out the italicized portion of the instruction. As offered, the instruction was clearly erroneous, as it assumed as an established fact that at the time of the homicide it reasonably appeared to the accused that he was placed in circumstances of agitation and peril, thereby depriving the jury of a prerogative that belonged exclusively to it. As to whether it reasonably appeared to the accused at the time of the homicide that he was placed in a situation of agitation and peril was a question of fact to be determined by the jury from the evidence in the case and the instructions given by the trial court. Clearly, it was proper to *231strike out this portion of this instruction, and no error was committed by the trial court in so doing.”
In McReynolds v. Commonwealth, 177 Va. 933, 15 S. E. (2d) 70, we said: “It is not enough for the accused to say that he was terrified. There is no way by which we can gauge his state of mind. Moreover, one whose nerves were unstrung might have been frightened by facts which would not have troubled an ordinary man at all. It is for a jury to say whether they were reasonably sufficient to warrant an ordinary man in believing that he stood in danger of serious bodily harm. Fortune v. Commonwealth, 133 Va. 669, 112 S. E. 861; Mercer v. Commonwealth, 150 Va. 588, 142 S. E. 369.”
In Thomason v. Commonwealth, 178 Va. 489, 17 S. E. (2d) 374, Judge Eggleston said: “In our opinion it is for the jury to say, under proper instructions, whether the killing was done in justifiable self-defense or whether the accused was guilty of voluntary manslaughter. Wilkins v. Commonwealth, 176 Va. 580, 584, 11 S. E. (2d) 653, 655.
If the peril was imminent or appeared to be imminent it is preeminently a jury question, to be measured by “what appear to a reasonable man placed under similar circumstances, and not by any intent that may or may not have existed in the mind of the deceased”.
If this be not true then in homicide cases counsel in admonition to client need only stress to him the importance of saying in substance to the jury, “I was scared to death. I thought he was going to kill me”.