dissenting. I am unable to concur with the other members of the court, in the conclusion reached, that the testimony of the defendant in explanation of his conduct, if admitted and believed, would be a defence to the charge, or have any other legal effect than to mitigate his offence, and hence, as immaterial upon the issue and tending to mislead, there is no error in rejecting it.
The facts in connection with this proposed statement are summarily as follows: A boisterous and unruly crowd, in what seems to have been a frolick, enter the defendant’s premises in the early night with bells, horns and fire-arms, by the noise of which, as they pass around his dwelling, himself and his family are greatly annoyed and their peace disturbed. As they are about to leave, his little frightened daughter runs up to him with blood upon her face, caused by her striking against a table, but which he then supposed to proceed from a shot wound. Acting upon the *623impulse produced by this misconception and without stopping to make inquiry as to the cause or extent of the inquiry, he seizes his gun loaded with shot of large size, hastens to the door and out into the porch, and, seeing the flash of a gun, fires into the retreating body then near the outer gate, some thirty-five yards distant, without a word of warning or remonstrance, and wounds one of the number in the leg.
This was, in my opinion, a hasty and unauthorized act in the use of a deadly weapon, not in defence of himself or family, or premises, but the offspring of a spirit of retaliation for what he erroneously supposed to have been done, and whose error could at once have been corrected. If death had ensued, the circumstances would not have excused the homicide; and as it was not fatal, it cannot be less than an assault.
Human life is too safely guarded by law to allow it to be put in peril upon such provocation; and, however much it may palliate the defendant’s impulse and the rash act in which it resulted, it cannot, in my opinion, excuse his use of a deadly instrument in so reckless a manner.
Per Curiam. Venire de novo.