concurring:
I concur in the order and in all phases of the opinion of Mr. Justice Coleman, save and except that which deals with instruction No. 27, as given by the trial court. As to this instruction, however, I am not in accord with the views of my learned associate.
In this case the appellant was charged with the crime of murder. He relied on a defense of justifiable homicide. The court gave the following instruction:
“You are instructed that no provocation can justify or excuse homicide, but may reduce the offense to manslaughter. Words or action, or gestures, however grievous or provoking, unaccompanied by an assault, will not justify or excuse murder; and, when a deadly weapon is used, the provocation must be great to make the crime less than murder.”
The instruction as given is assigned as error. It cannot, in my judgment, receive the sanction of this court. To approve of the giving of this instruction would be to strike down the defense of justifiable homicide. The very first assertion in the instruction declares “that no provocation can justify or excuse homicide.” This very assertion, standing alone, would nullify the provisions of our statute defining “justifiable homicide.” There (Rev. Laws, 6894) it is declared:
“Justifiable homicide is the killing of a human being in necessary 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, or against any person or persons who manifestly intend and endeavor, in a violent, riotous, or tumultuous manner, to enter the habitation of another, for the purpose of assaulting or offering personal violence to any person dwelling or being therein.”
Section 6396, Rev. Laws, provides:
“Homicide is justifiable when committed by a public officer, or person acting under his command and in his aid, in the following cases:
“(1) In obedience to the judgment of a competent court.
*280“ (2) When necessary to overcome actual resistance to the execution of the legal process, mandate or order of a court or officer, or in the discharge of a legal duty.
“ (3) When necessary in retaking an escaped or rescued prisoner who has been committed, arrested for, or convicted of a felony; or in arresting a person who has committed a felony and is fleeing from justice; or in attempting, by lawful ways or means, to apprehend a person for a felony actually committed; or in lawfully suppressing a riot or preserving the peace.”
Section 6397, Rev. Laws, provides:
“All other instances which stand upon the same footing of reason and justice as those enumerated, shall be considered justifiable or excusable homicide.”
Section 6398, Rev. Laws, provides:
“Homicide is also justifiable when committed either—
“ (1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or,
“(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.”
Section 6399 makes provision as to the burden of proving circumstances of mitigation or justification of homicide.
Section 6401 provides:
“The homicide appearing to be justifiable or excusable, the person indicted shall, upon his trial, be fully acquitted and discharged.”
Section 6402 provides :
“If a person kill another in self-defense, 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 harm, the killing of the other was absolutely *281necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given.”
Justifiable or excusable homicide has been repeatedly dealt with by this court. The law of the subject is expressed in State v. Grimmett, 33 Nev. 531, 112 Pac. 273, where it is said:
“The law is well established that where a person, without voluntarily seeking, provoking, inviting, or willingly engaging in a difficulty of his own free will, is attacked by an assailant, and it is necessary for him to take the life of his assailant to protect his own, then he need not flee for safety, but has the right to stand his ground and slay his adversary.”
The same principle is involved in State v. Forsha, 8 Nev. 140. The question was also dealt with by this court in the case of State v. Smith, 10 Nev. 106.
As said in the case of Maher v. People, 10 Mich. 212, 81 Am. Dec. 781:
“Homicide, or the mere killing of one person by another, does not, of itself, constitute murder; it may be murder, or manslaughter, or excusable or justifiable homicide, and therefore entirely innocent, according to the circumstances.”
In Commonwealth v. Webster, 5 Cush. (Mass.) 295, 52 Am. Dec. 711, it is said:
“Homicide, of which murder is the highest and most criminal species, is of various degrees, according to circumstances. The term, in its largest sense, is generic, embracing every mode by which the life of one man is taken by the act of another. Homicide may be. lawful or unlawful; it is lawful when done in lawful war upon an enemy in battle; it is lawful when done by an officer in the execution of justice upon a criminal, pursuant to a proper warrant. It may also be justifiable, and of course lawful, in necessary self-defense.”
We are referred to the decisions of this court in the eases of State v. Anderson, 4 Nev. 265, and State v. *282Raymond, 11 Nev. 98. They are in no wise applicable to the question raised here. The rule asserted in those cases is that where there is an intent to kill upon the part of the person taking the life of another, or when the act is one which would otherwise be murder, no words of reproach, no matter how grievous, or however abusive and insulting, are a sufficient provocation to free the slayer from the guilt of murder. This rule has been consistently adhered to, not only by this court, but by many others, and we do not find it at all necessary to disturb such doctrine in this case. Again, we are referred to the case of State v. Crozier, 12 Nev. 300. The only application that this latter case can have to the matter at bar is that it may apply to the latter part of the instruction as given; that is, it may sanction the doctrine that, where a homicide was committed with a deadly weapon, the provocation must have been very great to warrant an inference that it was done in the heat of blood to lower the grade of the crime from murder to manslaughter. Neither of the cases last referred to bears to any extent whatever on the objectionable feature designated in the instruction as given by the lower court in the case at bar. The positive assertion found in the instruction here, to the effect that no provocation can justify or excuse homicide, removes the case at bar from the effect of any of the decisions j ust referred to.
It will not do to say that another instruction correctly defined the law of justifiable homicide. Where a jury is instructed, by one assertion coming from the court that the defendant has the right of self-defense, and by another assertion, coming from the same court, that no provocation can justify or excuse homicide, the latter is not cured by the former.
In the case of State v. Scott, 37 Nev. 412, 142 Pac. 1053, we laid emphasis on the rule which we find to be of general acceptation that where a record in a criminal case shows that the court differently defined the law upon any given subject, one clause being correct, the *283other erroneous, injury must be presumed to follow from such a state of facts, unless the record clearly shows that no injury resulted therefrom. To the same effect is the case of State v. Ferguson, 9 Nev. 106. The holding of this court in the last-cited case was cited approvingly by the. Supreme Court of Washington in the case of McClaine v. Territory, 1 Wash. 345, 25 Pac. 456.
To1 my mind it would be unreasonable to say that, where a defendant in a criminal case interposed a defense of justifiable or excusable homicide, the court in giving the law to the jury could instruct them that no provocation can justify or excuse homicide, without thereby taking from him every element of his defense, thus committing irreparable injury. The statute law of the state in express terms provides that one accused of murder may interpose a plea of self-defense. For us to sanction the instruction as given in this case would be equivalent to a setting aside of the statute. We are unable to see our way clear to do this.
The judgment and order appealed from must be reversed.