Dissenting.Opinion by
Judge Carroll:Á.s I do not concur in the opinion of the majority of the court in this ca.se, I think it proper to state the reasons for my dissent.
The only ground upon which the judgment of conviction is reversed is because the trial court refused to give instruction A-3 copied in the opinion, stating in substance that if Lucas believed, or had reasonable grounds to believe, that either he or Dailey was in danger from harm at the hands of the deceased Sagaser, or his companions Stone, Prebble and Fronk, or any of them, acting in concert with Sagaser, and it reasonably appeared to Lucas to be necessary to shoot and kill Sagaser to avert the danger to himself or Dailey at the hands of Sagaser and his pomp anions Stone, Prebble or Fronk, or'either of them, then he had the right to kill Sagaser in self-defense. It will thus be seen that the only matter I need discuss is, whether or not there is any evidence or fair inference therefrom in the record that would have justified the trial court in giving this instruction. To put the question squarely so that there may be no misunderstanding about my positiou, I agree *288that if there is in the record any evidence that Lucas or Dailey were at the time or before Sagaser was killed in any danger from Stone, Prebble or Fronk, or either of them, or, if there is any fact or circumstance in the record from which it can be reasonably or fairly inferred that Lucas at the time or before he killed Sagaser believed or had reasonable grounds to believe that either he or Dailey was in danger at the hands of either of'them, or, if there is any evidence in the record even tending to show that Stone, Prebble or Fronk, or either of them, were acting in concert or agreement with Sagaser. or in any way aiding or abetting him when he assaulted or attempted to assault either Lucas or Dailey, then the court should have given the instruction requested and refused. On the other hand, if there is no evidence in the record that either Lucas or Dailey were at any time in any danger from Stone, Prebble, Fronk, or either of them, and if there is no fact or circumstance from which it can be reasonably and fairly inferred that Lucas or Dailey were at any time in danger from Stone, Prebble or Fronk, and if there is no evidence tending to show that Stone, Prebble or Fronk, or either of them, were acting in concert or agreement with Sagaser, or aiding and abetting him in assaulting or attempting to assault either Lucas or Dailey, then it is equally plain that the instruction should have been refused, it is so elementary as not to need citation of authority that an instruction presenting an issue should not be given unless there is some evidence upon which to base it. I may say, however, at the outset that it is conceded in the opinion that neither Prebble, Fronk nor Stone made any attack upon Lucas or Dailey and so this feature need not be again alluded to. Addressing myself then to the only point in issue, I feel warranted in making the broad statement that there is not a single fact or circumstance in the record that either shows or tends to show that Scone, Prebble or Fronk, or either of them, were acting in concert with or aiding or abetting Sagaser in the assault he made or attempted to make upon either Lucas or Dailey. This being so, it is clear that the trial court properly refused to give the instruction requested. Dut, in order that there may not be any doubt as to the correctness of this statement, I have copied all of the evidence of Dailey and Lucas that has any reference to 1 his question. I shall not allude to the evidence of any other *289witness, because no other witness introduced made any statement that throws any light upon it except Stone, Prebble and Fronk, and each of them say that Lucas killed Sagaser without excuse or provocation, and that he had not assaulted or attempted to assault either of them. They were not called on to deny that they,were acting in concert or agreement with Sagaser, or in anyway aiding or abbetting him, because this was not made an issue in the case and no question suggesting this was asked either of them by counsel for Lucas, although each of them was cross-examined at great length and upon every possible feature of the case.
Lucas upon the point under consideration testified upon this direct examination as follows:
££Q. Now, Mr. Lucas, what happened when you reached the corner of Seventh and Pleasant?”
“A. Well, after we passed down by that church, just a little while before we got to the crossing, there was some men overtaken us, and asked us where we was going to stay all night at, and Dailey told them he was going to old man Curtis’, where he has stayed some nights before, that he kept an all-night house, that he was going to stay there in order to get off on the early morning train to Cynthiana,, which he claimed left- at five thirty in the morning; that he didn’t intend to lay down, so he could leave the town about six o’clock, and Dailey fell back with these fellows and I walked on a little distance ahead, and just about the time-we crossed that street, I'looked back, and there was some gentleman walking on the right-hand side of Dailey, v/as in the act of hitting him on the head with something in his hand, and he struck this thing at him, striking him right here, and I remarked to the gentlemen, £Oh, hell, boys, don’t do that,’ and immediately he run backward and at the same time he come near hitting me over the head with that; I run back and got my gun as quick as I could and commenced firing at him just immediately, and in running backward he struck at me the second time, and when I seen he was running I quit shooting. I walked over to Dailey and asked him what that fellow had hit him for, and Dailey said: Those fellows meant to rob us, and Dailey had his gun in his hand and his handkerchief in his left hand wiping his nose. It was all bleeding. And he said, We’d better get away from here,’ and we started and went away immediately.”
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*290“Q. How were those shots fired!”
“A. They was fired just about as fast as I could shoot them.”
‘“Q. Have you auy idea what time this killing occurred ! ’ ’
“A. Yes, sir, it was not far from one o’clock in the night, I don’t think.”
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“Q. .Did you tell four men that you didn’t want a boarding house or a hotel, that you wanted tc- find a stable where you. could lie down!”
“A. We didn’t. They asked us where we were going, and Dailey told them we were going to Curtis’, and some one of them, I don’t know who, said, ‘If you fellows have got any whisky, we can take you up here to a stable,” and Dailey said that he was.going to Curtis’, where he could take that early train.”
“Q. Where was that conversation!”
“A. Eight about the corner where the shooting took place. ’ ’
“Q. Mr. Lucas, I will ask you if, at the corner where the shooting took place, Mr. Dailey asked four men to come have a drink with him, and you said to him, ‘Don’t give those sons of bitches- any of our whisky!’ ”
“A. I didn’t. Dailey didn’t offer no whisky. All that was said, Dailey told them he had a quart of whisky, and they said we could go to that stable and stay there. He didn’t say what stable.”
“Q. He never asked them to have any whisky at all ?”
“A. No, sir.”
“Q. They did say, after they came up to you, that you could all go to the stable and stay all night!”
“A. ‘Have you men got any whisky!’ I think I remarked to Dailey to come on, and when I stopped and looked back, this man was a hitting Dailey.”
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“Q. How far ahead of Dailey were you!”
“A. At the'time that fellow hit him I suppose it was six' or eight feet, something like that, ahead.”
“Q. Further north on Pleasant street than was Dailey!”
“A. Yes, sir.”
“Q. Have jmu any idea what it was that this man Sagaser was hitting Dailey with!”
“A. He was hitting him with some kind of an instrument that hung down. I could see it and heard it crack *291when it hit Dailey’s cheek, hut what it was — I couldn't be able to say what it was.” ■
‘‘Q. After you said to Sagaser, ‘Hell, boys, don’t do that,’ what then did Sagaser do?”
“A. He immediately made at me with a hea\ry blow, overhanded, as he struck — overhanded that way as he run back at me, and I run back, which was oiit of his way and got my gun and, therefore, immediately com menced shooting at him.”
“Q. IIow did you say these shots were fired?”
“A. Just about as fast as I could shoot them.”
“Q. Did you say anything at all to those' four men until they overtook you there on the corner?”
“A. I did not.”
“Q. Did not? ' Did Dailey?”
‘‘A. No, sir.”
On his cross-examination, he was asked and testified as follows:
“Q. What happened between Sagaser at that time, or the one man with Dailey?”
“A. What happened?”
“Q. Yes.”
“A. Why, this here fellow hit Dailey in the face with something.”
‘‘Q. What did he hit him with?”
“A. I couldn’t be able to say what he hit him with. With some kind of a stick he had in his hand, struck him right there with something. I says, ‘Oh, hell, boys, doc’t do that.’ ”
“Q. Do you know what he hit him with?”
“A. No, sir.”
“Q. Don’t know now?”
“A. I do not.”
“Q. Well, when he did that, what did he do?”
“A, I says, ‘Oh, hell, boys, don’t do that.’ ”
“Q. Then what happened?”
“A. Then he made directly at me with a blow, that way. I got my gun and immediately commenced firing at him, at the man.”
“Q. Did he strike you?”
“A. No, sir, he didn’t hit me.”
“Q. How many times did he strike at you?”
“A. Twice.”
“Q. How many times did he strike Dailey?”
“A. He struck Dailey once that I know of.”
*292“Q. Where did he hit Dailey?”
“A; Right here.”
“Q. What position was Sagaser in when you fired the first shot?”
“A. The man that was doina- the striking at me'?”
“Q. Yes.”
“A. Sagaser was coming this way at me. I was running back and I got my gun and commenced shooting back, back that way.”
“Q. Took your gun out of your pocket?”
“A. Yes, sir.”
“Q. Which pocket did you take it out of?”
“A. Out of my right hippocket.”
“Q. What position was he in when you fired the first shot?”
“He was facing me, as I thought. I held the gun just this way, shooting at the man.”
“Q. As you thought?”
“A. Yes, sir.”
“Q. Didn’t you know?”
“A. I tbink he was.”
“Q. What was he doing?”
“A. H.e was striking at me.”
“Q. Where was he when you fired the first shot!”
“A. Yes, sir.”
“Q. What did he do when you fired the third shot?”
“A. By the man being shot in the back — ”
“Q. I’m not asking you that. What did you see?”
“A. Why, I couldn’t say what I saw.”
“Q. You don’t know? Don’t you know where he was?”
“A. Yes, sir.”
“Q. Where?”
“A. Right in front of me.”
“Q. How far?”
“A. He was, I expect, five or six feet.”
Dailey, on his direct examination, testified as follows :
“Q. Now, tell all the conversation that took place there, and if anything occurred there, tell it all?”
“A. As we walked down the street there, these four men came up, and one gentleman walked up by the side of me, on the right side walking along the street, and I was talking, and we got down to the corner there by the church, there was something said about — he asked me where we was going to stay at that night, this fellow *293that was walking by the side of me says, ‘Where you going to stay at tonight?’ And I said I thought J would go down to old man Curtis’, that he kept open all night, that I wanted to get away on the early train back to Cynthiana, on that train that leaves at 5:35, due to leave here, I think it is or was at that time, it is due in Cyuthiana at six o’clock, and he says to me, ‘I have a friend down here at the livery stable where we can all go, if ■we go in and don’t strike our matches.’ I says, ‘I don’t care to go to no livery stable to stay all night.’ . At that, this fellow struck me with something, or- the other, I don’t know what it was. I didn’t know what it was at the time, I don’t know yet. He struck me with something. I kind of staggered back, that way, and Mr. Lucas turned around and says, ‘Don’t do anything like that, boys.’ and this fellow started — Mr. Lucas had kind of turned to the right, not further than five or six steps, and this fellow started at-him with his hands in this position as though he was going to strike him or something of the kind, and at that time the shooting was done. All these men left us right there, they was running towards this corner, run back around the corner, the way we come down, two of them run that way, and the other two around the other one, and we went down the street to the left by this church.”
“Q. How hard did he hit you with this instrument, whatever -it was?”
“A. You say, how hard?”
“Q. Yes.”
“A. Well, he hit a pretty hard lick, enough to stagger me back off the sidewalk into *the street, like.”
“Q. Had you said anything to provoke an assault on the part of that man?”
“A. No. sir, I didn’t say anything at all except that I said that I didn’t care to go to a stable to stay all night, in the first place, when he asked me where we was going to stay all night.”
“Q, Had any difficulty with these men?”
“A. No, sir, had not had any words with nobody.”
“Q. Did you have any difficulty or any words with any member of this party of four men?”
“A. No, sir.”
“Q. Had you done anything at all to cause this man to strike you with this instrument?”
“A. No, sir, I had not.”
*294“Q. What effect, if any, did this blow have upon your face?”
“A. Right there, struck me right there.”
“Q. Say where?”
“A. On the side.”
“Q. On the side of the nose?”
“A. Yes, sir.”
‘.‘Q. On the cheek?”
“A. On the jaw, kind of blasted my jaw, right there, between the cheek-bone, right in there, where he struck me, on the right side.”
“Q. Now, after the shooting occurred, what happened? I mean immediately, right there?”
“A. Well, immediately, right there, the men all disappeared, and Mr. Lucas walked to me and says, ‘'Are you hurt?’ And I says, ‘Well, I am hurt pretty bad’ I was kind of stunned at the time. My nose was a bleeding a little, and he says, ‘Well, you arn’t hurt bad,’ and I says, ‘No, sir,’ and he says, ‘Let’s go on down street,’ and we walked on down street.”
“Q. Say anything else?”
“A. He asked me what this man hit me for, and I said I didn’t know unless they intended to try to knock me down and try to get what I had. ’ ’
It will thus loe seen that Lucas placed his entire defense and his right to shoot Sagaser upon the ground that Sagaser after attacking Dailey started towards him. There is no evidence in the record that Stone, Sagaser or Fronk ever saw Dailey with any money, or knew that he had any money, although he had about eight dollars, nor is there an intimation in the record that either of them, or any person in the presence of either of them ever made any suggestion to Dailey or Lucas about gambling. Prebble, a saloon-keeper, knew thair Dailey had some money, because he saw him with it when he bought the whisky; but, no person pretends to say that Prebble ever mentioned gambling to either of them. Nor is there a particle of evidence or any circumstance from which it can be inferred that either of these parties made any effort to or had any intention of robbing Dailey. It is true that Lucas says in the testimony before quoted that after he had killed Sagaser, he asked Dailey “What that fellow had hit him for,” and Dailey said, “Those fellows meant to rob us,” and Daile3r testifies that after the shooting Lucas asked him “What this man hit him for, and I said, I didn’t know *295unless they intended to try to knock me down and try to get what I had.” But this is the only mention, ei¿her directly or indirectly, of robbery in the record, and this matter was brought to the attention of Lucas after he had killed Sagaser.
I may also mention that although the record shows that Sagaser was a young man of bad character, or rather that he was a quarrelsome and dangerous man, no attack whatever was made upon the reputation of either Prebble, Stone or Fronk; nor is there any evidence in the record that either of them was of bad character. It is true that these four men were together when they met Lucas and Dailey, in front of the Methodist church on one of the principal streets of the city, but the uncontradicted evidence is that Prebble after closing his saloon for the night, went out on the street and met Sagaser, and asked him to go home with him and stay all night,, that Stone and Fronk were also on the street in front of the saloon at a lunch wagon, where there were several other persons, and Stone and Fronk walked along with Prebble and Sagaser, and in this wayr all of them happened to be together when they met Lucas and Dailey: ’ Now, unless the mere fact that these four men —two of them going home and the other two walking along with them — on a bright, moonlight September night, is evidence that they were together for the purpose of assaulting or attacking or trying to rob Lucas or Dailey, there is no evidence whatever in the- record that they were together for either of these purposes. They were out on the street as they had the right to be and in the absence of some evidence to support it, and there is none, it is not fair to say that they were together for any evil purpose. That they were not aiding Sagaser or acting in concert with him when the shooting occurred has already been shown. And yet, in the face of this evidence, the court orders a reversal because the trial judge did not submit to the jury an instruction presenting an issue that was unsupported by any evidence.
Lucas, an intelligent man of mature years, who was not tried for several months after he had killed Sagaser by shooting him in the back, placed his right to thus kill Sagaser upon the sole ground that Sagaser was in the act of assaulting him. And upon this issue, which was the only one in the case, the jury was properly instructed.
*296In this connection it may also be said that Dailey and Lucas who had been making the rounds of the saloons were both under the influence of liquor — Lucas being very drunk. They were each armed with piston, while neither Prebble, Fronk or Stone had any weapons. The evidence further shows that on the night of the killing, as well as on the next morning, Lucas said he was drunk and did not know that he had killed anybody, and three disinterested and reputable witnesses say that they saw and talked to Dailey on the next morning and did not notice any bruise on Ms face.
It, therefore, seems to me that the conclusion reached by the majority of the court in ordering a reversal of this case is a backward step in the administration of the criminal law. It lays down a rule, in conflict with the settled practice, that an instruction should be' given only when authorized by the, evidence, and in effect directs trial judges to submit when requested instructions upon issues that are not in the record or based on any reasonable inference that can be drawn therefrom.
Judges Settle and Lassing concur in this dissent.