Although I cannot concur in all the views/ expressed by Mr. Justice Burnett, yet I do concur in his conclusions that prejudicial errors affecting substantial rights of the accused occurred *459during the trial, and that the judgment, from which the defendant appealed, must be reversed and a new trial granted. A statement of the facts may be found in the opinion written by Mr. Justice Burnett.
9. The testimony of W. S. Caverhill about the defendant’s saying that “no deputy sheriff would take him, he wouldn’t allow any John Carter to be fooling around him”; and that, “he wasn’t afraid of the law,” is, in the circumstances shown by this record, manifestly incompetent. There are many cases where statements made subsequent to a homicide are received in evidence as part of the res gestae; and there is a class of cases where hostile declarations made after the killing are admissible for the . purpose of showing the state of the accused’s mind toward the decedent: State v. Brown, 28 Or. 147, 158 (41 Pac. 1042); 21 Cyc. 898. The defendant requested Norman Caverhill to notify the sheriff of what had occurred and if the officer wished, the defendant would go to Canyon City, the county seat, or if the sheriff, “thought necessary he could come over after the defendant.” The sheriff came to Long Creek, which is but a short distance from the scene of the homicide, and the defendant surrendered himself to the sheriff at that place. At no time did the defendant defy arrest. Immediately after the shooting Bader went to the home of Eqrl Caverhill, told of what had occurred and suggested that “one fellow better go for a doctor.” The defendant returned to the house where McCue was, and, according to the evidence, took some part in caring for McCue until the time of his death. The allusion to the deputy sheriff was prompted by the circumstance that Joe Wilmoth and John Carter “were deputies over there.” Defendant “didn’t want to come with them” because of some bad feeling be*460tween him and them. If the defendant had defied anyone to arrest him, or if he had resisted arrest, quite a different situation would have been presented. The accused never at any time said or indicated that he could not be or would not be arrested; but, upon the contrary, he took active steps to notify the sheriff and expressed a willingness to go to the sheriff or await his arrival. On the record presented here the testimony of W. S. Oaverhill was not competent, and its only possible effect wasi to create 'a pronounced prejudice against the defendant.
10. The letter written by Jean Meyer was not made to appear competent. It was proper to show upon cross-examination that this witness was interested in the outcome of the trial; and if the letter related to the case now under consideration, it was competent for the plaintiff to show that fact, not as evidence against the defendant, but for the purpose of disclosing the extent of the interest manifested by the witness: State v. McCann, 43 Or. 158 (72 Pac. 137); State v. Lem Woon, 57 Or. 482, 489 (107 Pac. 974, 112 Pac. 427). There is not a syllable of evidence indicating that the letter related to the case then on trial; but, upon the contrary, every word of affirmative testimony is to the effect that the letter did not relate to “this case.” The following questions were asked and answers given by the witness:
“Q. Did you write any letters in connection with it?
“A. None whatever.
“ Q. Positive of that as any statement you have made in this case, now?
“A. Well, I don’t know of any letters I have ever written to anyone.
“Q. Didn’t you offer in writing to see that a man was properly financed if he would come here as a witness?
“A. Not to that effect, no, sir.
*461“Q. Nothing to that effect?
“A. No, sir, not in this case.”
The trial began on May 29, 1918, and the letter was dated May 18, 1918. It is entirely clear from the record that the witness was aware of the fact that the cross-examiner was in possession of the letter even though we assume that she had not yet seen it in his hands; and it is likewise clear that she had not forgotten the contents of the letter which she had written only a few days previously; and, hence, so far as her testimony is concerned, it is unequivocally and affirmatively to the effect that the letter did not relate to “this case.” Aside from the testimony of Jean Meyer there is no evidence whatever upon the subject except inferences to be drawn from the letter itself. E. Barr, the person to whom the letter was addressed, for aught that appears in the record, was neither called nor subpoenaed as a witness by either party; nor does it appear that he had knowledge of any fact which would have been competent as evidence in the ease. Moreover there is no evidence to show that Jean Meyer thought or feared that E. Barr would or might he a witness in “this ease.” One might speculate about the purpose of the letter, hut the result would he a mere guess. If the letter did in truth relate to “this case,” the prosecution might he entitled to it as evidence affecting the interest of the witness and for that purpose only; and even then fairness to the accused would suggest that the court explain to the jury the purpose of the evidence and the limitations which must he placed upon it. If, on the other hand, the letter did not in truth relate to “this case,” the prejudicial effect of the letter is so manifest that argument about it becomes wasteful excess. Before the prosecution can rightfully submit the letter to the jury there must be *462some evidence showing that the writing relates to “this case.” The record presented to ns is wanting in this respect.
The testimony of the lawyer concerning the advice given by him to the decedent was incompetent.
11. In the opinion of the writer the testimony of Charles Lnnceford was competent. The conversation between this witness and the defendant occurred while the-latter was on his way to the Johnson place. The defendant offered to sell the grass on that place for a specified sum. There was evidence from which the jury could infer that the defendant knew that McCue was at that very moment in possession of the Johnson place, i The conversation with Lunceford characterized the mental attitude of the defendant. It was competent for the jury to cpnsider all that was said by the defendant in this conversation for the purpose of determining the' mental attitude of the defendant towards McCue. No living person, except the defendant, saw what occurred in the cabin during the interim between Hale’s first departure from the cabin and his" return when he found the defendant “churning” the defendant’s head upon the floor. It was for the jury to decide who was the aggressor, and in order that the jurors might properly decide that question, it was proper for them to consider the mental attitude of the defendant.
12. Instruction No. 19 was as follows:
“By ‘great bodily harm’ is meant more than a mere injury by the fist such as is likely to occur in an ordinary assault and battery. The injury apprehended must be more severe and serious than that usually inflicted in an ordinary fight with the fists, without weapons. Fear of a slight injury is not sufficient. Nor will a mere assault, not felonious, furnish an excuse for the taking of life. If the intention of the assailant is only to commit a trespass or simple beat*463ing, it will not justify his killing. But you may consider the relative size and strength of the parties and the ferocity of the attack in determining whether the intended heating, if any, was of such a character as to endanger life or limb, and if so, it will then be felonious and the assaulted person is justified in taking the life of his assailant, if necessary, to preserve his own person or to protect him from such felonious beating.”
It will be observed that the court told the jury that “if the intention of the assailant is only to commit a trespass or simple beating, it will not justify his killing” ; and then the court informed the jurors that they could consider the relative size and strength of the parties and the ferocity of the attack in determining whether “the intended beating” was of such a character as to injure life or limb. The right of self-defense is not controlled by the intention of the assailant, for the assailed may act upon appearances. This rule is hornbook law in this jurisdiction. Obviously, the instruction was error, for by that instruction the jury was told:
“If the intention of the assailant is only to commit a trespass or simple beating, it will not justify the killing.”
There were, other instructions, it is true, which correctly told the jury that the defendant had a right to act upon appearances.
We have then for consideration a charge containing correct and also incorrect instructions. The charge to the jury must of course be read as a whole; but when the instructions are so read, the correct instructions cannot be said to have cured the incorrect instructions. In the very nature of things instruction No. 19 is one of the instructions which the jury undoubtedly understood and remembered. All the direct evidence is to *464the effect that the decedent used his hands only in making any assault that he may have made upon the defendant; and, hence, when the court gave instruction No. 19 we must reasonably assume that every juror instantly made a mental application of the instruction to the concrete facts of the alleged assault. The very circumstances of the assault which the defendant claimed was made upon him by the decedent served to emphasize and give prominence and individuality to instruction No. 19. On the other hand, correct instructions relating to self-defense were couched in general and comprehensive language; and, as it seems to the writer from an examination of the record, there was nothing to give to any of these correct instructions the same degree of emphasis as was given to instruction No. 19 by the peculiar circumstances of the alleged assault. If the jury followed instruction No. 19, a substantial right of the defendant was prejudiced. If the. jury obeyed the correct instructions, the accused was not injured. It is not known, nor can it be ascertained, whether the verdict was based upon the erroneous or upon the correct portions of the charge. The instructions are in direct conflict and are so disconnected in context “that they cannot be read together as a harmonious .and correct statement of the principle of law involved”: State v. Miller, 43 Or. 325, 333 (74 Pac. 658, 660).
The defendant vigorously contends that the right of self-defense is not limited to the prevention of a felony actually or apparently about to be committed upon the slayer. This question raised by the defendant cannot here be said to be merely academic as it was in State v. Butler, (Or.), 186 Pac. 55, for here the instructions to the jury and the recorded evidence necessarily require a solution of the problem. In instruc*465tion No. 15 the court told the jury that the statute of this state provides that “the killing of a human being is justifiable when committed by any person to prevent the commission of a felony upon him.” Again, after instructing the jury that “before a person is justified under this law of self-defense in taking the life of another, it must appear” that the danger is actually or apparently imminent and must be such that the assailed believes, and has good reason to believe, “that he is in danger of losing his life or of great bodily harm; the danger must be that of a threatened felony. ’ ’
13. Throughout the discussion we must bear in mind that there are no indictable common-law offenses in this state. We must look to our statutes for the crimes themselves, although when necessary we may look to the common law for definitions of crimes: State v. Gaunt, 13 Or. 115, 120 (9 Pac. 55); State v. Ausplund, 86 Or. 121, 131 (167 Pac. 1019).
The Code defines murder in the first degree, murder in the second degree and manslaughter. The term “manslaughter” includes five specified classes of cases of homicide; as, a voluntary killing without malice and without deliberation, upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible; an involuntary killing in the commission of an unlawful act or a lawful act without due caution or circumspection; assisting another to commit self-murder or purposely and deliberately procuring another to commit suicide; death caused by an unlawful abortion; and an involuntary killing of a patient by an intoxicated physician. The next section of the Code, Section 1902, L. O. L., declares that:
“Every other killing of a human being by the act, procurement, or culpable negligence of another, when such killing is not murder in the first or second degree, *466or is not justifiable or excusable as provided in this chapter, shall be deemed manslaughter. ’ ’
If, therefore, a killing “is not justifiable or excusable as provided in this chapter,” the inescapable result is that the killing must be culpable, because, if not murder in the first or second degree and even though not coming 'within any one of the five specified classes of manslaughter, a homicide is inevitably manslaughter by force of the words ‘ ‘ every other killing * * by the act # # of another,” in Section 1902, L. O. L.
We are nowise concerned in the common-law distinctions between justifiable and excusable homicide, for the present inquiry is not dependent upon any of those differences. Sections 1908, 1909 and 1910, L. O. L., are the sections “in this chapter” which enumerate the cases of justifiable and excusable homicide. Section 1908 may be eliminated, since it applies only to a killing when committed by public officers or those acting in their aid and assistance and by their command in either of four specified classes of cases. Section 1910 may also be excluded from the discussion, for.it excuses certain cases of homicide resulting from accident or misfortune. Section 1909, the remaining section, is the only one which is relevant to the present investigation and for that reason it is here transcribed in full:
‘ ‘ The killing of a human being is also justifiable when committed by any person as follows:
“1. To prevent the commission of a felony upon such person or upon his or her husband, wife, parent, child, master, mistress, or servant;
“2. To prevent the commission of a felony upon the property of such person, or upon property in his possession, or upon or in any dwelling house where such person may be;
“3. In the attempt, by lawful ways and means, to arrest a person who has committed a felony or in the *467lawful attempt to suppress a riot or preserve the peace.”
8. The only portions of Section 1909 which can anywise be material to our inquiry are subdivision 1 and the words “or upon or in any dwelling-house where such person may be.” But whether the third or both these portions are applicable, the result is the same, because each declares that a homicide is justifiable when committed to prevent the commission of a felony; and this is one way of saying that homicide when done to prevent the commission of a misdemeanor is at least manslaughter, because if the killing does not fall within one of the sections defining murder or within any one of the five sections specifically defining manslaughter, it is irresistibly drawn within the embrace of Section 1902, L. O. L.; and, therefore, unless Section 1909 is invalid, it is correct to instruct a jury that the danger whether actual or reasonably apprehended, “must he that of a threatened felony.”
The Code divides crimes into felonies and misdemeanors: Section 1370, L. O. L. There is no middle ground; no third class of crimes. Every criminal act of violence is either a felony or misdemeanor. Any act, if made criminal at all by our Code, is necessarily a felony or a misdemeanor. All crimes which are punishable with death or by imprisonment in the penitentiary are felonies, while “every other crime is a misdemeanor ’ ’: Sections 1371 and 1372, L. O. L. When the legislature used the word “felony” in Section 1909, L. O. L., it necessarily meant the offense defined in Section 1371, L. O. L., for that section contains the only definition of the term found in the Code: Ex parte Biggs, 52 Or. 433, 435 (97 Pac. 713).
If alternative penalties for a crime are provided for, so that the offender may either be committed to the *468penitentiary, or, in the discretion of the trial judge, be sentenced to pay a fine or serve time in the county jail, the offense is nevertheless deemed to be a felony until and unless the penalty actually imposed is other than imprisonment in the penitentiary; but if the penalty actually imposed is other than imprisonment in the penitentiary, the crime is deemed a misdemeanor after the judgment prescribing the penalty: Section 1371, L. O. L.; Turner v. State; 40 Ala. 21, 29; State v. Waller, 43 Ark. 381, 388; People v. War, 20 Cal. 117, 119; Miller v. State, 58 Ga. 200, 203; In re Stevens, 52 Kan. 56, 60 (34 Pac. 459); State ex rel. v. Foster, 187 Mo. 590, 603 (86 S. W. 245); People v. Hughes, 137 N. Y. 29, 34 (32 N. E. 1105); People v. Van Steeansburgh, 1 Parker Cr. (N. Y.) 39, 45; McKelvy v. State, 87 Ohio St. 1, 7 (99 N. E. 1076); Quillian v. Commonwealth, 105 Va. 874, 882 (54 S. E. 333, 8 Ann. Cas. 818); State v. Harr, 38 W. Va. 58, 65 (17 S. E. 794). When, therefore, life is taken to prevent an offense which, if committed, may be punished by imprisonment in the penitentiary, the slayer prevents the commission of a “felony” within the meaning of Section 1909, even though for such offense there is a lesser alternative penalty.
The defendant argues that the right of self-defense is not limited to the prevention of a felony, but that it extends to all cases where it is necessary to prevent death or great bodily harm. This is another way of saying that a person may slay to prevent the commission of an act which would, if consummated, produce great bodily harm, regardless of whether such consummated act is or is not a felony. .
Although'the words “great bodily harm” do not constitute the only language of the books, yet their frequent appearance has placed them among the familiar *469words of text-writers and jurists. The reported opinions of this court show that the words “great bodily harm” have been a part of the vocabulary of nearly every, if not every, member of this tribunal who has written upon the subject of self-defense: Goodall v. State, 1 Or. 334, 337 (80 Am. Dec. 396); State v. Dodson, 4 Or. 65, 70; State v. Morey, 25 Or. 241, 250 (35 Pac. 655, 36 Pac. 573); State v. Tarter, 26 Or. 38, 42 (37 Pac. 53); State v. Henderson, 24 Or. 100, 105 (32 Pac. 1030); State v. Porter, 32 Or. 135, 154 (49 Pac. 964); State v. Bartmess, 33 Or. 110, 125 (54 Pac. 167); State v. Smith, 43 Or. 109, 117 (71 Pac. 973); State v. Gibson, 43 Or. 184, 192 (73 Pac. 333); State v. Miller, 43 Or. 325, 332 (74 Pac. 658); State v. Gray, 43 Or. 446, 454 (74 Pac. 927); State v. Thompson, 49 Or. 46, 49 (88 Pac. 583, 124 Am. St. Rep. 1015); State v. Remington, 50 Or. 99, 110 (91 Pac. 473); State v. Doris, 51 Or. 136, 157, 165 (94 Pac. 44, 16 L. R. A. (N. S.) 660); State v. Doherty, 52 Or. 591, 594 (98 Pac. 152); State v. Finch, 54 Or. 482, 495 (103 Pac. 505); State v. Goodager, 56 Or. 198, 201 (106 Pac. 638, 108 Pac. 185); State v. Ryan, 56 Or. 524, 536 (108 Pac. 1009); State v. Meyers, 57 Or. 50, 56 (110 Pac. 407, 33 L. R. A. (N. S.) 143).
The word “felony” is likewise a part of the language of the books, for since the time slaying in self-defense was recognized by the common law as a right, every writer and jurist who has discussed the subject in the light of the common law has inseparably connected the term “felony ” with the right of self-defense.
Nearly two centuries ago Sir Michael Poster wrote as follows:
“In the case of justifiable self-defense the injured party may repel force by force in defense of his person, habitation, or property, against one who manifestly intendeth and endeavoreth by violence or surprise to *470commit a known felony lipón either ’ ’: Foster’s Crown Cases, 273.
The words “known felony” are designedly used for the purpose of excluding secret felonies. Again, the same writer, when speaking of a killing in a mutual conflict, said:
“He therefore who, in the case of a mutual conflict, would excuse himself upon the foot of self-defense must show, that before a mortal stroke given he had declined any further combat and retreated as far as he could with safety; and also that he killed his adversary through mere necessity, and to avoid immediate death. If he faileth in either of these circumstances he will incur the penalties of manslaughter”: Foster’s Crown Cases, 277.
See, also, 1 Hawk. P. C. 82; 1 Hale’s P. C. 482-488; Wharton on Homicide (3 ed.), 361; 2 Cooley’s Blackstone (3 ed.), 282 (Book IV, 180).
In his discourse on homicide Sir Michael Foster also wrote as follows:
“The right of self-defense in these cases is founded in the law of nature, and is not, nor can be, superseded by any law of society; for before civil societies were formed, (one may conceive of such a state of things thoug’h it is difficult to fix the period when civil societies were formed,) I say before societies were formed for mutual defense and preservation, the right of self-defense resided in individuals; it could not reside elsewhere ; and since in cases of. necessity, individuals incorporated into society cannot resort for protection to the law of the society, that law with great propriety and strict justice considereth them, as still, in that instance, under the protection of the law of nature”: Foster’s Crown Cases, 273.
The same thought is expressed by Blackstone as follows :
*471“Self-defense, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society”: 2 Cooley’s Blaekstone, 3 (Book III, 4).
This doctrine has been repeated with such frequency that it has come to be almost an axiom of the law: Isaacs v. State, 25 Tex. 174, 177; Long v. State, 52 Miss. 23, 28; Gray v. Combs, 7 J. J. Marsh. (Ky.) 478 (23 Am. Dec. 431, 436); Wharton on Homicide (3 ed.), 354; United States v. Cuterbridge, 5 Sawy. 620, 623 (Fed. Cas. No. 15,978); 1 Michie on Homicide, 322; Young v. State, 53 Tex. Cr. App. 416 (110 S. W. 445, 447, 126 Am. St. Rep. 792); Lander v. State, 12 Tex. 462, 476; Parrish v. Commonwealth, 81 Ya. 1, 12; State v. Tarter, 26 Or. 38, 43 (37 Pac. 53); State v. Ryan, 56 Or. 524, 536 (108 Pac. 1009).
While it is true that it has been said that “society may curtail this right” of self-defense “and no doubt does restrain its exercise in many important particulars”: Gray v. Combs, 7 J. J. Marsh. (Ky.) 478 (23 Am. Bee. 431, 437); 13 R. C. L. 810; yet at this stage of the discussion we are not so much interested in determining whether society can curtail the right of self-defense, or in the extent to which curtailment can be carried, as we are concerned in ascertaining the exact meaning and extent of the right of self-defense when viewed in the abstract.
This right of self-defense, now often designated by writers and jurists as a natural right which has not been and cannot be superseded by society, passed through a slow process of development before it was finally established. There was a time, indeed, when homicide in self-defense was itself a capital offense. Originally, slaying in self-defense operated as a forfeiture of the property of the slayer, and, in order to *472avoid the physical penalty of his act, he applied to the king for a pardon. The chancellor signed the pardon in the king’s name, but in order to avoid this useless formality “the chancellor as the dispenser of equity soon surpassed the chancellor as the mere keeper of the great seal.” Finally, subsequent to the enactment of the Statute 24 Henry VIII, c. 5, “partly as the result of a statute [the statute last mentioned] and partly by the liberality of the courts of common law,” the equitable defense, so designated because of the authority exercised by the chancellor as the dispenser of equity, became a legal defense. The history of the law of self-defense to the middle of the eightéenth century was as follows:
“Self-defense merely was no excuse, but ground for pardon; but it was an excuse in equity, and the equitable defense was at last accepted at law”: 16 Harvard Law Review, 567, 572.
See, also, 21 Cyc. 794; 3 Columbia Law Review, 526; 2 Pollock and Maitland on History of English Law, 479.
The law upon the subject of forfeiture remained in practice for a long time; and while the law finally fell “into desuetude in the course of the eighteenth century,” yet it was not until 1828 that forfeitures were formally abolished in England by 9 Geo. IV, c. 31, Section 10, which provides that no punishment or forfeiture shall be incurred by any person who shall kill ■another in his own defense: 3 Stephen on History of the Criminal Law of England, 77; 2 Pollock and Maitland on History of English Law, 481. Thus it appears that slaying in self-defense, now designated by modern authorities as an inalienable right, was originally an offense, and on that account was followed ,by a forfeiture of the slayer’s property; and, moreover, it was necessary for the slayer to apply for a pardon in order *473to avoid an additional penalty, which without a pardon could be imposed upon his person. In an early period pardons were not issued “as of course,” although at a later date they “became pardons of course”; and at a still later time, instead of a pardon being issued by the king or by the chancellor, the jury was empowered to acquit the slayer. The practice of forfeiture seems to hgve endured longer than the practice of issuing pardons. There is, therefore, in view of the history of the right of self-defense, substantial foundation for the statement in 16 Harvard Law Review, 567, that
“The right to kill in self-defense was slowly established and is a doctrine of modem rather than of medieval law.”
Although expressions may be found in some of the earlier writings which go no further than to say that the assailed may slay to prevent immediate death, yet all will admit that the right of self-defense is not confined within such narrow limits. It is conceded by all that an ordinary assault with the fists or the danger of a mere battery alone without any danger or apparent danger of more serious harm will not justify the taking of human life: State v. Gray, 43 Or. 446, 454 (74 Pac. 927); 1 Bishop’s New Criminal Law, 508; 21 Cyc. 801, 813. However, it is likewise conceded by all that a strong and powerful man with his fists alone is capable of visiting great physical injury upon a weak and frail man; and hence when the assault is attended with such demonstration and the present ability to execute it, whether the assailant is armed or not, as to indicate to the assailed, acting reasonably upon appearances, that he is in imminent danger of being beaten and disfigured, or maimed, or his life imperiled, he has a right to withstand the assault, even to the extent of taking the life of the assailant”: State v. Gray, *47443 Or. 446, 455 (74 Pac. 927); State v. Benham, 23 Iowa, 154 (92 Am. Dec. 417); 13 R. C. L. 820. Here, then, is at least one limitation upon a right which, after a slow process of development, was incorporated into the common law and was a part of it when we received and accepted that great body of law. Does the common law prescribe any other limitations? If it does, what are those limitations?
One may not lawfully kill in self-defense to prevent a simple assault or ordinary battery with the fists, but one may slay to avert a more serious harm. How much more serious must that harm be? "When common-law writers speak of “great bodily harm,” what do they mean? Are the words “great bodily harm” used to mean the same thing as “felony” or do they signify something less than or different from a felony? The books abound with a variety of expressions when speaking of the circumstances which will or will not justify slaying in self-defense; as, “death or great bodily harm” (21 Cyc. 791, 800, 802, 812, 813-817, 819; 13 R. C. L. 811, 813, 814, 820); “if the assault is not felonious” the slayer is not justified (21 Cyc. 791); “death, great bodily harm, or some felony” (21 Cyc. 800); “must be of a felonious nature; it must be of such a nature as to apparently indicate that if carried out it will result in death or great bodily harm” (21 Cyc. 801); killing is not justifiable “unless it is ficcompanied by acts indicating imminent danger of great bodily harm or 'felony * * or if it is some other act less than a felony” (21 Cyc. 802); “may kill to save life, or limb, or to prevent a great crime” (13 R. C. L. 814); “loss of life or of suffering serious bodily harm” (13 R. C. L. 816); “must be one of great injury to the person, that would maim or be permanent in its character, or which might produce death” (Wharton *475on Homicide, 376); “the danger must involve peril to life or limb, though the injury feared need not necessarily be a forcible felony, or felonious assault.” (Wharton on Homicide, 376, citing Rogers v. State, 60 Ark. 76 (29 S. W. 894, 46 Am. St. Rep. 154, 31 L. R. A. 465); Evans v. State, 120 Ala. 269 (25 South. 175); Ritchey v. People, 23 Colo. 314 (47 Pac. 272, 384).
The holdings in Rogers v. State and Ritchey v. People were based upon statutes; and so, too, many of the modern precedents are likewise based upon statutes. In twenty-four of the states there has been legislation defining the right of self-defense. In some of the states, as, in Arizona, California, Idaho, Montana and Utah, there are statutes providing that a homicide is justifiable when resisting any attempt to murder any person “or to commit a felony, or to do some great bodily injury upon any person”; or, when committed in the lawful defense of such person or certain other named persons, “when there is reasonable ground to apprehend a design to commit a felony, or to do some great bodily injury”: Rev. Stats. Ariz. (1913 Penal Code), § 180; Cal. Penal Code (Deering 1915), § 197; 2 Idaho Rev. Codes, §6570; 2 Rev. Codes of Mont. (1907), § 8301; Comp. Laws of Utah (1917), § 8032. In Arkansas the legislature has said that homicide is justifiable 'when committed in necessary self-defense “against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony”; and, further, “in ordinary cases * * it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary”: Digest of the Statutes of Arkansas, § 1911. The states of Colorado and Illinois have statutory provisions like that of Arkansas: 1 Mills Ann. Stats. (1912), §§1761 *476and 1763; 2 Ill. Stats. Ann. (1913), §§ 3763, 3764. In Florida a homicide is justifiable when committed in the lawful defense of such person or of certain named persons “when theré shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury”: 2 Fla. Comp. Stats. (1914), § 3203. The states of Minnesota, New York and Washington have statutes like that of Florida: Gen. Stats. Minn. (1913), § 8623; Gilbert’s Cr. Code (1919), § 1055; Remington & Ballinger’s Ann.. Code & Stats, of Washing-ton (1909), § 2406. In Kansas the statute reads as follows :
Homicide shall be deemed justifiable when committed “in resisting any attempt to murder such person, or to commit any felony upon him-or her, or in any dwelling-house in which such person shall be; or, second, when committed in the lawful defense of such person * * when there shall be a reasonable cause to apprehend a design to commit a felony, or to do some greap personal injury * * ”: Gen. Stats. Kan. (1915), § 3370.
Mississippi, Missouri, New Mexico, North Dakota, Oklahoma, South Dakota and Wisconsin have statutes like the legislation in Kansas: 1 Hemingway’s Ann. Miss. Code, § 960; 2 Rev. Stats. Mo. (1909), § 4451; New Mexico Stats. (1915), § 1471; 2 Comp. Laws N. D. (1913), § 9503; 1 Rev. Laws Old. (1910), § 2334; Comp. Laws S. D. (1913), § 268; Wis. Stats. (1917), § 4366. In Vermont a killing is guiltless when a person kills another “in the just and necessary defense of his own life” or the life of certain designated persons, or kills “another who is attempting to commit murder, rape, burglary or robbery, with force or violence”: Pub. Stats, Vt. (1906), §5698. The legislation in Georgia will be referred to hereinafter. Thus it is seen that in each of the states of Arkansas, Colorado and Illinois *477there is a statute which affirmatively declares that slaying is justifiable to prevent “great bodily harm”; and, therefore, in view of this affirmative legislation the holdings in Rogers v. State, 60 Ark. 76 (29 S. W. 894, 46 Am. St. Rep. 154, 31 L. R. A. 465), and Ritchey v. People, 23 Colo. 314 (47 Pac. 272, 384), lose much of their force when attempted to be applied in jurisdictions like Oregon, when there is no analogous legislation. It will also be observed that in all the remaining states to which attention has been directed, except the state of Vermont, the language of the statutes is in the alternative, for the words are: “Felony, or * * some great bodily injury”; and, hence, precedents based upon statutes in any of those jurisdictions necessarily proceed upon the theory that “great bodily harm” is not always the equivalent of “felony,” and consequently cases like State v. Sloan, 22 Mont. 293 (56 Pac. 364), cannot aid us when dealing with our statute, which is wholly different from the Montana enactment. Territory v. Baker, 4 N. M. (Johns.) 117 (13 Pac, 30, 40), is sometimes referred to as authority for saying that “great bodily harm” must amount to a felony before life may be taken in self-defense. When that case was decided there was a statute declaring that homicide was justifiable when committed in the lawful defense of such person “when there shall be reasonable ground to apprehend a design to commit a felony, or to do some great personal injury * * ”; and in view of that language it is difficult to agree with the conclusion that “great bodily harm” must amount to a “felony.” The holding in State v. Sloan, 22 Mont. 293 (56 Pac. 364), is sounder, more logical and more consistent with the plain words of positive legislation.
We may now give our attention to precedents which were unaffected by and were decided upon rules of the *478common law. In Pond v. People, 8 Mich. 150, Mr. Justice Campbell, one of America’s really great judges, said:
“The danger to be resisted must be to life, or of serious bodily harm of a permanent character.
And, again:
“The rule extends only to cases of felony; and in those it is lawful to resist force by force. If any forcible attempt is made, with a felonious intent against person or property, the person resisting is not obliged to retreat, but may pursue his adversary, if necessary, till he'finds himself out of danger.”
In United States v. Wiltberger, 3 Wash. C. C. 515 (Fed. Cas. No. 16,738), Mr. Justice Washington said:
“The law is, that man may oppose force to force, in defense of his person, * * against one who manifestly endeavors, by surprise or violence, to commit a felony, as murder, robbery, or the like. * * The intent must be to commit a felony. If it be only to commit a trespass, as to beat the party, it will not justify the killing of the aggressor. * * The intent to commit a felony must be apparent; which will be sufficient, although it should afterwards turn out that the real intention was less criminal, or was even innocent. This apparent intent is to be collected from the attending circumstances.”
In State v. Benham, 23 Iowa, 154 (92 Am. Dec. 416), we find the following :
“There can be no successful setting up of self-defense, unless the necessity for taking life is actual, present, urgent, — unless, in a word, the taking of his adversary’s life is the only reasonable resort of the party to save his own life, or his person from dreadful harm, or severe calamity, felonious in its character. ’ ’
In State v. Kennedy, 20 Iowa, 569, the trial court told the jury among other things that: “Unless there *479be a plain manifestation of a felonious intent, no assault will justify killing tbe assailant”; and Mr. Justice Dillon, speaking for the appellate court, said tbat tbe charge of tbe trial judge expressed tbe law “unless changed by statute.” In Acers v. United States, 164 U. S. 388, 391 (41 L. Ed. 481, 17 Sup. Ct. Rep. 91, 92, see, also, Rose’s U. S. Notes), tbe trial court charged the jury tbat: “Great injury to tbe person injured tbat would maim him, or tbat would be permanent in its character, or tbat might produce death”; and it was held tbat this “was a fair definition of what is necessary to constitute self-defense by reason of tbe existence of real danger.” Among the multitude of reported decisions announcing tbe rule as stated in Pond v. People and kindred precedents, the following may be found: State v. Thompson, 9 Iowa, 188 (74 Am. Dec. 342); State v. Burke, 30 Iowa, 331; Commonwealth v. Riley, Thach. C. Cas. 471; Shorter v. People, 2 N. Y. 193 (51 Am. Dec. 286); Brownell v. People, 38 Mich. 732; United States v. Outerbridge, 5 Sawy. 620 (Fed. Cas. No. 15,978). Additional authorities may be found in tbe opinion of Mr.. Justice Bennett rendered in State v. Butler, (Or.), 186 Pac. 55. At this point, it is worth noting tbat tbe excerpt herein quoted from Slate v. Benham is quoted with approval in State v. Hawkins, 18 Or. 476, 487 (23 Pac. 475). State v. Benham is also cited in State v. Gray, 43 Or. 446, 456 (74 Pac. 927); and in State v. Doherty, 52 Or. 591, 596 (98 Pac. 152), this court relied upon State v. Benham and Acers v. United States, supra.
Tbe rule of law justifying homicide to prevent felonies extends to violent and forcible acts which are by statute made felonies, even though such acts were not felonies at common law: Pond v. People, 8 Mich. 150, 181.
*480There are a few reported decisions found in jurisdictions, which have no legislation upon the subject, which either intimate or hold directly that the right of self-defense is dependent upon the essential quality and inherent character of the assault itself rather than upon the grade of punishment attached to it by the law. Among the former is: Evans v. State, 120 Ala. 269 (25 South. 175), and yet in addition to what was said in Eiland v. State, 52 Ala. 322, that court criticised a requested charge in Blackburn v. State, 86 Ala. 595, 599 (6 South. 96), because it did not assert that the “danger must involve peril to life or limb.” A case belonging to the, latter class and directly holding that the right of self-defense depends upon the character t of the offense and not upon the penalty attached to it, is Gray v. Combs, 7 J. J. Marsh. (Ky.) 478 (23 Am. Dec. 431); but Mr. Bishop criticises that case by saying:
“These observations leave out of view the central truth that legal doctrine is shaped to promote certainty of judicial decision,' as well as justice in the particular instances. And 'among the distinctions devised to bring together justice and certainty is the division of crime into felony and misdemeanor, with the different consequences which flow from each”: 1 Bishop’s New Criminal Law, 515.
In brief, the rule seems to be as firmly established as quantity and quality of precedents can establish any given doctrine that the right of self-defense, in the absence of a statute, is at common law limited to the prevention of felonies; and that an assault, actual or threatened, which does not really or apparently involve harm amounting to a felony is not “great bodily harm” within the meaning of the books. It is true that the classification of crimes under our Code turns upon the penalty attached to a given crime; but the *481same thing has always been true of crimes at common law. In 2 Pollock and Maitland on History of English Law, 466, the authors define felonies and there remark:
“We thus define felony by its legal effect; any definition that would turn on the quality of the crime is unattainable.”
If we now turn to our Code and examine the chapter on ■ ‘ crimes against the person ’ ’ it will be seen that every crime in the chapter is made a felony within the meaning of the law of self-defense, which deems an act a felony if it may be punished by imprisonment in the penitentiary, except Section 1924, L. O. L., defining assault and battery, Section 1925, L. O. L., which makes it an offense purposely to point a gtm at another even though done without malice, and Section 1930, L. O. L., which defines libel; so that if Section 1909, L. O. L., is construed to mean what it plainly says, it is equivalent to saying, so far as practical results are concerned, that slaying in self-defense may if necessary be resorted to in order to prevent any “known” crime against the person except simple assault and battery. The act of pointing a gun at another may also, in certain circumstances, actually be or appear to be a felony. And, hence, for all practical purposes it may with propriety be said that Section 1909, L. O. L., includes every offense involving bodily harm, except the single misdemeanor of simple assault and battery.
The legislation in Georgia is exactly like the legislation in this state. There as here, crimes are divided into felonies and misdemeanors; and there as here, felonies include all offenses punishable by death or imprisonment in the penitentiary, while “every other crime is a misdemeanor”: 6 Park’s Ann. Code of Ga. *482(1914), § 2. In Section 70 of the Georgia Code we read:
/“There being no rational distinction between excusable and justifiable homicide, it shall no longer exist. Justifiable homicide is the killing of a human being by commandment of the law in execution of public justice; by permission of the law in advancement of public justice; in self-defense, or in defense of habitation, property, or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either; or against any persons who manifestly intend and endeavor, in a riotous and tumultuous manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein.”
This statute has been in force in Georgia since 1817: Prince’s Digest of Laws of Ga. 347; and beginning with Hudgins v. State, 2 Kelly (2 Ga.), 173, 182, decided in 1847, down to 'the latest reported decision, the Supreme Court of that state has consistently upheld the statute and ruled that a killing to prevent an injury not amounting to more than a misdemeanor is not justifiable.
In Powell v. State, 101 Ga. 9, 23 (29 S. E. 309, 318, 65 Am. St. Pep, 277), it is said that Section 70 and another section of the Georgia Code “are parts of the common law.” In Battle v. State, 103 Ga. 53, 59 (29 S. E. 491, 493), the trial judge refused to charge the jury that:
“If the jury should believe from the evidence that the defendant hit the deceased the fatal blow in defense of his person, to preyent a serious personal injury, the defendant would be justified in killing the deceased; or that defendant killed deceased to prevent a felony being committed upon his property by deceased, then the killing would be justifiable; or if the killing was done to prevent the deceased from com*483mitting a trespass upon his property, the killing would not be murder, but would only be manslaughter. ’ ’
On appeal the defendant complained because the requested charge was not given and the Supreme Court said:
“We cannot think that any proposition contained in this written request to charge should have been given in charge to the jury. So far as the first is concerned, it is not the law. The language of our Code justifies a homicide to prevent the commission of a felony upon the person of the slayer. An act of violence committed on the person of another, which is included within the class of offenses which the law declares to be felonious, will always include a serious personal injury; but an act of violence so committed, although it amounts to a ‘serious personal injury’ does not necessarily come within the class of crimes known as felonies. If, under our Code, the injury about to be inflicted was less than a felony, it would not be sufficient cause to justify the taking of life in self-defense. This justification is complete only (when the life of the assailant is taken) where the deceased, manifestly intended or endeavored by violence or surprise to commit a felony on the person of the accused.”
In Drew v. State, 136 Ga. 658, 661 (71 S. E. 1108, 1110), Mr. Justice Lumpkin ruled as follows:
“It may be said that the taking of human life by a private person is a grave matter, and is generally to be justified only as an actual or reasonably apparent necessary defensive or preventive measure against a trespass amounting to a felony.”
The following are among the other Georgia precedents: Keener v. State, 18 Ga. 194 (63 Am. Dec. 269); Aaron v. State, 31 Ga. 167; Simmons v. State, 79 Ga. 696 (4 S. E. 894); Cumming v. State, 99 Ga. 664 (27 S. E. 177); Crawford v. State, 90 Ga. 701 (17 S. E. 628, 35 Am. St. Rep. 242); Smarrs v. State, 131 Ga. 21 *484(61 S. E. 914); McCray v. State, 134 Ga. 416 (68 S. E. 62, 20 Ann. Cas. 101); Worley v. State, 136 Ga. 231 (71 S. E. 153); Johnsson v. State, 136 Ga. 804 (72 S. E. 233).
While it has been held that the refusal to give a requested instruction defining the meaning of the term “felony,” it has also been decided that, in the absence of, a request, failure to inform the jury of the meaning of the word will not necessarily work a reversal: Holland v. State, 3 Ga. App. 465 (60 S. E. 205); Roberts v. State, 114 Ga. 450 (40 S. E. 297); Pickens v. State, 132 Ga. 46 (63 S. E. 783); Mills v. State, 133 Ga. 155 (65 S. E. 368); Scott v. State, 137 Ga. 337 (73 S. E. 575); Helms v. State, 138 Ga. 826 (76 S. E. 353).
If we again give our attention to our own precedents' we shall see that, although the word's “great bodily harm” have become a part of our judicial vocabulary, nevertheless, it has never been expressly decided that Section 1909, L. O. L., does not mean what it says; but, upon the contrary, this court has more than once used the words “felony” and “felonious” when describing the character of the assault which will justify slaying in self-defense: Goodall v. State, 1 Or. 334, 338 (80 Am. Dee. 396). In State v. Olds, 19 Or. 397, 431 (24 Pac. 394, 417), we read:
‘ ‘ The right either of the state ,or of an individual to take human life must be sanctioned by law. In the latter case it must appear that it was done to prevent the commission of a felony upon the individual, etc., as provided in” Section 1909, L. O. L.
In State v. Smith, 43 Or. 109, 117 (71 Pac. 973, 976), it was said:
“Before one can excuse his,conduct in taldng the life, of another, it must appear that it was done to prevent the apparent commission of a felony by the latter *485upon him”: citing State v. Olds, 19 Or. 397 (24 Pac. 394).
In State v. Doherty, 52 Or. 591, 596 (98 Pac. 152, 154), we find the following:
‘ ‘ Pear of a slight injury is not sufficient, nor will a mere assault, not felonious, furnish an excuse for the taking of life. * * But, considering the relative age and strength of the parties or the ferocity of the attack, if the intended beating is of such a charactér as to endanger life or limb, then it will be felonious, and the assaulted person is justified in taking the life of his assailant if necessary to preserve his own or protect him from such beating.”
In State v. Walsworth, 54 Or. 371 (103 Pac. 516), Charles H. Walsworth and Norval Walsworth were tried and convicted of the murder of James P. Mankin. They defended upon the ground of self-defense; and they also asserted the right of Norval Walsworth to protect his mother from danger. Eeferring to the charge given to the jury this court, speaking through Mr. Justice McBride, used the following language:
“The charge of the court admirably stated the issue to the jury, and the general charge upon the law of self-defense, so far as it related to the right of Norval and Charles H. Walsworth to defend themselves, is a model charge; but the court entirely omitted to" charge the jury upon the right of defendant, Norval Walsworth, to protect his mother from danger to her life from an alleged unjustifiable attack upon the house by deceased and his brother. ”
An examination of the original record shows that this “model charge” upon the subject of self-defense contains the following language taken from State v. Benham, 23 Iowa, 154 (92 Am. Dec. 416), and repeated approvingly in State v. Hawkins, 18 Or. 476, 487 (23 Pac. 475, 479):
*486“The law regards human life as the most sacred of all interests committed to its protection, and there can be no successful setting up of self-defense, unless the necessity of taking life is actual, present, urgent, unless in a word, the taking of his adversary’s life is the only reasonable resort of the party to save his own life or his person from deadly harm or severe calamity felonious in its character.”
The following are additional apropos decisions rendered by this court: State v. Tarter, 26 Or. 38, 45 (37 Pac. 53); State v. Thompson, 49 Or. 46, 49 (88 Pac. 583, 124 Am. St. Rep. 1015); State v. Young, 52 Or. 227, 232 (96 Pac. 1067, 132 Am. St. Rep. 689, 18 L. R. A. (N. S.) 688).
When our statute justifies homicide to prevent a felony, it is a confirmation rather than a departure from the Common-law rule. Violence to the person which amounts to no more than the misdemeanor of simple assault and battery does not justify taking life; but a person is justified in slaying to avert imminent danger of violence amounting to a felony. Violence which rises to the degree of a felony is “great bodily harm”; violence which falls to the degree of a misdemeanor is not “great bodily harm.” There was no error ip informing the jury that “the danger must be that of a threatened felony.”
I concur with Mr. Justice Burnett’s criticism of that part of the charge to the jury which speaks of indirect evidence; and I also concur in what he says on the subject of uncommunicated threats.
The judgment should be reversed and a new trial granted for the reasons hereinbefore stated.
McBride, C. J., and Bean, Benson and Bennett, JJ.. concur.