I cannot concur in the conclusion reached by my Brother Moore in this case. I think the respondent had a fair and impartial trial, that there is no reason for believing that the jury were misled 'by the charge of the court, and that the verdict is fully justified by the record. I think the fair and only inference to be drawn from this record is that the jury must have understood that the respondent was entitled to act upon the situation as it appeared to him. After the instructions given in my brother’s opinion, and near the close of the charge, the court instructed the jury as follows:
“If you believe from the evidence that the respondent was assaulted by the deceased in such a manner as to induce in the respondent a reasonable and well-grounded belief that he was actually in danger of losing his life, or of suffering great bodily harm, and there was no way to escape except to shoot Walker, then he was justified in *249defending himself, whether the danger was real or apparent. Actual or positive danger is not indispensable to justify self-defense. The law considers that persons threatened with danger are obliged to judge from appearances, and determine therefrom as to the actual state of things surrounding them; and in such cases, if persons act from honest conviction, induced by reasonable evidence, they will not be held .responsible criminally for any mistake as to the extent of the real danger. * * * In order for you to convict the respondent of murder in the first degree, you must find from all the evidence, beyond a reasonable doubt, a deliberate intention on the part of the respondent to take the life of Moses Walker. An unlawful killing with malice aforethought, willfully, with premeditation and deliberation, constitutes the crime of murder in the first degree; and the term ‘deliberate’ is not applicable to any act done on a sudden impulse. You cannot find the respondent, guilty of murder in the first degree unless you find from all the evidence, beyond a reasonable doubt, that the respondent did, on the 10th day of July, 189?, kill Moses Walker, and such killing was with malice prepense or aforethought; and also find, beyond a reasonable doubt, that such killing was willful, deliberate, with a design to take the life of deceased. In order for you to convict the respondent of murder in the first degree, the specific intent, as well as all other elements of the offense, which I have mentioned, must be affirmatively proved by the people beyond a reasonable doubt; that said respondent did shoot and kill Moses Walker at the time and place specified, and that such killing was not excusable or justifiable, and that such killing was with malice prepense or aforethought. And if you fail to find, beyond a reasonable doubt, that such killing was perpetrated willfully, deliberately, and premeditately, you cannot find the respondent guilty of murder in the first degree. * * * If you should find that the assault by Walker upon the respondent was fierce, violent, and sudden, and apparently aimed to kill or do great bodily harm, and was not caused by anything that respondent had done at the time, the respondent was justified in repelling it, even to the taking of the life of Walker. It will be unnecessary to inquire what ill-feeling or malice was entertained by the respondent towards Walker, for, if a person is assaulted in a violent, fierce, and sudden manner, so that the only way left is for him to slay his *250aggressor, if it so appears to him, then it is wholly immaterial what ill-will or malice he may have entertained towards him, if he contributed nothing to the attack, or in any manner caused it, for the malice and ill-will, if any existed, are wholly swallowed up in the defense of life itself. ”
As is usual in such cases, the charge of the court was somewhat lengthy, and it is not surprising that the jury returned into 'court, and asked for further instructions in regard to the degrees of murder. After again instructing them upon this, in reply to a question by the court, the foreman said, “That covers the question;” whereupon another juror said, “We do not quite understand what the man’s duty was, under the circumstances, to allow him to shoot a man to be justifiable; in other words, what would excuse him.” Thereupon the court repeated, in substance, his previous instructions upon this point, closing as follows:
“If you believe from the evidence thát respondent was assaulted by the deceased in such a way as to induce in the respondent a reasonable and well-grounded belief that he was actually in danger of losing • his life or suffering great bodily harm, and there was no way to escape except to shoot Walker, then he was justified in defending himself, whether the danger was real or apparent. Actual or positive danger is not indispensable to justify self-defense. The law considers that men, when threatened with danger, are obliged to judge from appearances, and determine therefrom as to the actual state of things surrounding them; and in such cases, if persons act from honest convictions, induced by reasonable evidence, they will not be held responsible criminally for a mistake as to the extent of the danger.”
The verdict of the jury could only have been reached by adopting the theory of the prosecution that the respondent had a motive in killing the deceased, that he premeditated the crime, and that the killing was willful and deliberate. The yerdict precludes the conclusion on the part of the jury that the killing occurred upon a sudden affray and in fear of danger to himself. If the jury had found the respondent guilty of murder in the second de*251gree, there might possibly be some foundation for saying that they misunderstood the instructions; but the verdict shows that the jury placed no faith in the defense that respondent acted on a sudden impulse or in view of threatened danger.
I thinh the conviction should be affirmed.
Hooker, J., concurred with Grant, O. J.