delivered the opinion of the court:
The record contains evidence amply sufficient to sustain the verdict. No other conclusion than that of the guilt of the plaintiff in error could be reached if the evidence of the prosecution alone be considered. The jury were not bound to accept the account of the transaction given by the plaintiff in error and disregard that of the witnesses for the prosecution. To determine the facts and the credibility of the various witnesses is th'e special function of the jury. Whether the evidence favorable to the defense was sufficient to raise a reasonable doubt of the guilt of the plaintiff in error was a question of fact peculiarly within the province of the jury to determine. This court will not interfere with that determination except where it clearly appears, from a consideration of all the evidence, that there is a reasonable doubt of the defendant’s guilt. Gainey v. People, 97 Ill. 270; Henry v. People, 198 id. 162; People v. Deluce, 237 id. 541.
During the progress of the trial an effort was made on the part of the prosecution to introduce in evidence a writing claimed to be a dying declaration of the deceased. Evidence was heard in the absence of the jury from which the court determined that the writing was admissible, and upon the return of the jury some evidence was offered of the circumstances under which the writing was prepared and signed, but the court finally determined that the writing was incompetent and excluded it. No part of it was read to the jury and they received no information in regard to it, except that the deceased said she was about to die and wished to make a statement and a written statement was made and signed by her. They knew that the court held it to be incompetent as evidence and they knew no part of its contents. No harm came to the plaintiff in error by the action of the court in this particular. ■
Several witnesses testified for the prosecution whose names were not endorsed upon the indictment, and the plaintiff in error objected to their examination for that •reason. It is within the discretion of the court to allow witnesses to testify whose names are not endorsed on the indictment, and the exercise of that discretion cannot be assigned as error. Gore v. People, 162 Ill. 259; Hauser v. People, 210 id. 253.
The third instruction given at the request of the People was as follows:
“The court instructs the jury that no threats or menaces made by John W. Hardy against the defendant, Andrew Williams, can avail said defendant unless at the time he made the assault alleged in the indictment he was actually assailed or had sufficient evidence to convince any reasonable person like situated that he was in danger of receiving great bodily injury or of losing his life at the hands of the said John W. Hardy. Whatever threats may have been made by the said John W. Hardy,-if any were made, cannot be of avail to the defendant unless at the time of the assault something was done by said John W. Plardy that would induce a reasonable man like situated to suppose that he was in danger of receiving great bodily harm or his life. All antecedent threats, if any were made, are dependent upon the facts at the time of the assault, and in order to justify the assault it must appear that at the time it was committed there was some action which would induce a reasonable man to believe that he was in danger of great bodily harm or of losing his life.”
This instruction is said to have been erroneously given because it assumes that the plaintiff in error made the assault; because it fails to take into account the intelligence and experience of the plaintiff in error in announcing that he must have sufficient evidence to convince any reasonable person like situated that he was in danger of receiving great bodily harm; because the use of the word “convince” required too high a degree of evidence for the justification of the plaintiff in error; and because it states that antecedent threats are dependent upon the facts at the time of the assault. An instruction so carelessly written ought not to have been asked and might better have been refused. In this case, however, we do not think the jury could have been misled by it. There is no question that an .assault occurred, that the plaintiff in error took part in the affray and that he fired the first shot in it. He says so himself. The instruction was intended to inform the jury as to the right of the plaintiff in error to defend himself against apprehended danger and of the effect of previous threats against him. It did so awkwardly and incompletely but without substantial error when the other instructions in the case are read in connection with it. It was not necessary to direct the jury, in this instruction, to take into consideration the intelligence and experience of the plaintiff in error. The fear under the influence of which a person may take the life of his assailant is the fear of a reasonable person excited by the circumstances surrounding him at the time. If, acting under the influence of such fears, he does what a reasonable person might have done under the circumstances he will be justified. The word “convince” was too strong a word to use as it was used in the instruction. The term used at another place, “induce to suppose,” expresses the right meaning. In view of the full information on the subject given to the jury in instructions 4 and 52 for the plaintiff in error there could have been no misunderstanding in this particular. The idea sought to be conveyed in regard to antecedent threats was, that they could only be considered in connection with some action at the time of the affray. By themselves' they could not justify an assault, but they were proper to consider in connection with the acts, at the time of the assault, of the person making them. The jury would so understand this part of the instruction, and so understood it is correct.
It is objected to instruction 21 that it assumes that the death of Ophelia Williams was caused by a wound inflicted by the plaintiff in error, but when the whole instruction is read together it contains no such assumption.
Instructions numbered 22, 31, 32, 33, .34, 35 and 36 deal with the subject of self-defense against apparent danger and are criticised because it is said they require that the apparent danger referred to should be such as was apparent to the jurors from the evidence at the trial, and not such as might have been apparent to the plaintiff in error at the time of the affray. We do not think the instructions have that meaning, but if they were doubtful they are made certain by other instructions given which told the jury that actual and positive danger is not indispensable to justify self-defense; that if the circumstances induced in the mind of the defendant a reasonable and well grounded belief that he was in danger of losing his life or suffering great bodily harm then he was justified in shooting; that a man threatened with danger must judge from appearances as to the actual state of things, and if he acts from honest conviction, induced by reasonable evidence, he will not be held responsible, criminally, for a mistake as to the extent of the actual danger, and that his right of self-defense is the same in apparent as in actual danger.
Instruction No. 29 told the jury that if the plaintiff in error, with malice aforethought, made an assault with a deadly weapon upon Ophelia Williams, in manner and form as charged in the indictment, not in self-defense, they should find him guilty. This instruction was erroneous because it did not require the jury to find that the death of Ophelia Williams resulted from the assault. There is, however, no possible doubt as to the cause of Ophelia Williams’ death. She died from the wound she received. If the plaintiff in error made the assault upon her as stated in the hypothesis of the instruction, she. did die as the result of it. The only question presented to the jury was the claim of self-defense. If the shooting occurred, as claimed by the plaintiff in error, in his justifiable self-defense he was not guilty; if it did not so occur he was guilty. Every phase of the case bearing on that issue was presented to the jury. They were fully instructed in regard to it. The issue was fairly tried, and the conclusion reached ought not to be disturbed because of an erroneous instruction which could not have affected the result.
It is urged that the court erroneously refused to give to the jury the ninth, tenth and fourteenth instructions asked by the plaintiff in error. The ninth was properly refused because there is no basis for it in the record, and the fourteenth because it is included in the People.’s twentieth given instruction. The tenth instruction was condemned in Tri-City Railway Co. v. Gould, 217 Ill. 317, and Johnson v. Farrell, 215 id. 542.
We find no error in the record for which the judgment should be= reversed. It will therefore be affirmed.
The clerk of this court is directed to enter an order fixing the period between nine o’clock A. M. and five' o’clock P. M. of the 22d day of October, A. D. 1909, as the time when the original sentence of death entered in the criminal court shall be executed. A certified copy of that order will be furnished by the clerk to the sheriff of Cook county.
Judgment affirmed.