delivered the opinion of a majority of the court:
It is insisted that the court below erred in refusing to quash the venire for the petit jury. That a panel was chosen, and a venire facias was issued requiring the attendance of the jurors on the third week of the term, whilst it was afterwards changed, without authority, requiring their attendance on the second week, and they were summoned and attended at the latter named time. And that accused was thereby compelled to select a jury from the panel chosen for a different week than that on which he was tried. The court was convened on the 6th day of February, 1865, and the trial commenced on the 21st day of that month. It thus appears that the trial was had during the third week of the term. But the affidavits of the sheriff and the clerk are not made a part of the record by a bill of exceptions, and cannot, therefore, be considered, and we are unable to see from the record, that accused did not have the proper panel from which to select a jury on his trial. But we are not prepared to hold, that such a change, if it had occurred, would have been ground of reversal.
The accused, on the trial below, peremptorily challenged a juror, because he was over sixty years of age, but the court refused to allow the challenge, which is assigned for error. It was held in the case of Davis v. The People, 19 Ill., 74, that this was not a disqualification, but was an exemption or privilege of which the juror could alone avail .himself. But was not ground of challenge by either party. We see no reason to change the rule there announced.
It is urged with great earnestness that the court below erred, in receiving the declarations of deceased, without a proper foundation. It is contended, that it does not sufficiently appear that deceased, when he made the statements, was aware of his situation, and had lost all hope of recovery Metzner testifies that he was present at the time, and drew up the caption of the statement made by deceased, and informed him that he would have to swear to it; that he read it over to him. This witness says he heard deceased express no opinion as to whether he believed he would recover or not, but he inquired of witness for his opinion, when he informed him that he believed he would not recover, and Shies died the next day.
Searles testifies that he was present and heard the statements made, and being read to deceased, he swore him to their truth. Metzner states that he took down the substance of the statement, not using the precise language of the deceased. He also states that deceased was under the influence of morphine, and that to some of the questions he nodded assent, and to others he gave answers. At times while the declaration was being made, it became necessary to rouse him before it could proceed. It also appears that he was visited by his spiritual adviser, and partook of the last rites of his church, before the declarations were made, and we think that it appears that he must have lost all hope of recovery, and his declarations were so taken as to authorize them to be read to the jury.
It is, however, true, that from the condition of deceased, when they were taken, they are not entitled to much weight, and they alone could not sustain the verdict. But they in most material points are corroborated by other evidence. In fact there was an abundance of evidence independent of this to sustain the verdict. "We cannot say that it tended to mislead the jury. These declarations were before them for their consideration, and they no doubt considered all the circumstances which attended them when made, and gave to them no more weight than they were entitled to receive. Again, the attending physician gives the statements of deceased made to him, in reference to the occurrence, and it in the main corresponds with the written statement, although more favorable to the accused. And when the whole testimony is considered outside and independent of these declarations, there was, we think, an abundance of evidence to warrant the conclusion at which the jury arrived. It was proved beyond all reasonable doubt that the accused inflicted the mortal wound, and this being established, the law implies the malice, and it devolved upon him to show the justification or mitigation, to reduce it from murder, or to obtain an acquittal, unless the whole circumstances show that it was not accompanied by malice.
Some confusion seems to exist in the evidence as to some circumstances connected with the transaction. After the fight occurred in the street, as to how or why it took place, there seems to be no evidence, plaintiff in error went into his house and procured his gun, and returned with it—some of the witnesses say into the street, and others that he remained inside of his enclosure. This shows that he did not decline the fight, as he at least advanced from the inside of his house to his gate, if not into the street, apparently seeking the contest. There is no evidence that he advanced for any other purpose, nor does it appear that deceased was endeavoring to enter his premises, or to inflict injury on him or his property. It is true that he warned deceased not to advance or he would shoot. There is no evidence that deceased was armed, or was advancing in á menacing manner, but on the contrary he was assuring accused that he intended no harm, but wished to explain and be friendly.
The deceased seems to have attempted to turn the muzzle of the gun to one side, and in doing so, appeared to be afraid that accused would shoot. He probably feared to retreat, and saw no other means of escape. "We are unable to see anything in the evidence, from which it appears that the life of accused was in danger, or that he was likely to receive a grievous bodily injury, and nothing to excite apparently a well-grounded fear of such results. When considered altogether, we think the evidence could not fail to convince the jury that there was a want of justification in the killing, and this, too, whether the declarations were received or were rejected.
It is likewise insisted that the court erred in giving instructions asked by the prosecution, and in refusing a portion of those asked by the accused. After a careful examination of the instructions given for the people, we find them correct, or made so by those given for the defence. As a general rule, instructions depend upon themselves, but they, when taken together, may, and frequently do, by explaining others, become freed from objections. In the twelve given for the defendant, the law of the case seems to be clearly announced, so far as it was applicable to the facts of the case. And those given for the defence, with one or two exceptions, announce the principles contained in those that were refused. When a legal principle has been once announced, there can be no necessity for its repetition, and there can be no error in refusing to give it in a second instruction.
The refusal to give the first, second, eighth and ninth of the instructions asked by defendant below, is principally complained of as error. They, in a variety of ways, state that if there was a struggle between the accused and the deceased for possession of the gun, and it was discharged in consequence of the struggle, they should acquit. We are unable to perceive any evidence, or anything tending to prove a struggle for possession of the gun. There was a contrariety of evidence whether deceased ha¡d hold of the gun when it was discharged. But even if there was such evidence, it may have been that deceased saw that the only means he had to prevent accused from shooting him. was to wrest it from the accused. In such a case, it cannot be said that a man doing all within his power to take the life of another is j ustified in doing so because the person assailed endeavors simply to dispossess the assailant of the weapon as a means of preserving his own life, although it may have contributed unintentionally to the discharge of the gun. Such a rule would deny to the person assailed the means of self-defence, and warrant the aggressor in perpetrating his purpose, simply because the other endeavored, as the only means presenting itself to save his life, to take from him the deadly weapon.
In the remaining five instructions asked, and refused, we perceive no error. So far as they contain correct principles, they had already been given, and there was no reason for their repetition. From the entire record in the case, it appears that the accused has had a fair trial, and that no error has intervened in his conviction. The judgment of the court below must, therefore, be affirmed.
Judgment affirmed.