The court correctly refused to set aside the verdict and grant a new trial. There was evidence in support of all the facts necessary to sustain the verdict, and it was the jury's province to weigh the evidence and say whether those facts were proven or not.
The claim that there was error in the court's refusal to charge as requested is without foundation. The court charged all the defendant's requests, except the third and sixth, in substance and practically in the language of the requests. The sixth was a request that the court should instruct the jury that certain facts should have great weight with them. The court might, in its discretion, comment on the weight of the testimony, but it was not bound to do so, and the weight to be given to it was for the jury. It was not error to refuse the request. State v. Smith, 49 Conn. 376, 387. The third request was not a full statement of the law as applicable to the claimed facts in the case, and was properly refused.
All the questions asked the two daughters which appear in the statement were objected to. They were admitted upon the ground that they might serve to indicate what was or ought to have been the state of mind of the accused at the time of the homicide; that the condition in the household might tend to show whether the accused really believed that Demery came to the defendant's home to kill him, or for some other purpose. The purpose for which it was admitted was thus to show malice, and that the accused had no reasonable ground for believing himself in danger of great bodily injury from the assault which admittedly was made upon him.
The State was bound to prove that the killing was *Page 267 with malice. That is a fact to be proved like any other fact. It may be proved by declarations on the part of a person charged with crime showing express malice, or it may be proved by circumstances from which malice may be inferred as a question of fact. Any facts showing what the defendant's state of mind was toward Demery at and before the homicide would be admissible, therefore, as bearing upon the question whether the killing was done with malice.
Did the testimony of the daughters tend to show his state of mind? Could the fact that the elder daughter, after she left the house, gave her mother money (it not appearing that this fact was known to the father or uncle) indicate in any degree the defendant's state of mind toward the uncle? Could the fact that the defendant had different and a greater variety of food than his wife, do so? These facts, in themselves, have no tendency to prove the condition of mind of the defendant. It is claimed that, when charged by Demery with starving the wife, the defendant's feelings would be different if the charge were true than they would if it were false; that in the former case his feeling would be that of humiliation, while in the latter it might be that of just indignation. If this were true, it would not justify the admission of the testimony in question. The two questions last referred to do not tend to prove that the wife was being starved. The same is true of the other questions. They show simply that the wife was not supplied with a variety of food. They do not show that the food which she had was deficient in quantity or quality. The jury might be convinced by it that she ought to have had different food, and a greater variety, and so draw the inference that the defendant was a poor husband and a mean man, especially if they were satisfied that he at the same time provided himself with better and a greater variety of food. Such an inference *Page 268 would tend to prejudice the jury against the defendant, and thus the admission of the testimony would be harmful to him. The evidence should have been excluded.
The testimony of the defendant's witness Max Frederick was properly excluded. The statements of the defendant which it was sought to prove thereby were self-serving, and for that reason inadmissible.
We think that error is well assigned upon that portion of the charge which relates to the duty of a person assaulted within his own home to retreat before killing his assailant. The general rule is that where one, without fault himself, is assaulted in his dwelling-house, he need not retreat from his assailant, but may resist the assault even to the extent of taking the life of his adversary when necessary. It is claimed that there is an exception to this rule, and that when the assailant has come into the house by invitation, express or implied, as for business purposes, and while there gets into an altercation with the owner and starts to assault him, the latter is required to retreat reasonably to avoid the conflict. The charge complained of does not make this distinction, but gives the jury to understand that in any case the person assailed in his own house should, if he can do so without leaving his house, withdraw somewhat in order to avoid the conflict. The evidence on both sides showed that Demery was not in the defendant's house with any respect for it or its master. He did not greet the defendant as he entered it. He gave directions with respect to what should be done within it. He declared himself to be the master of it. He then proceeded to assault the owner of it as he was seated in his chair. The defendant claimed that Demery entered the house wrongfully, with the purpose to assault and kill him. The charge complained of did not sufficiently meet this aspect of the case. *Page 269
We think that the remaining part of the charge complained of is open to the same criticism. The jury were told that knowledge on the part of the defendant that Demery was irritated and indignant at what he thought was ill treatment of his sister might lead to a reasonable belief that Demery would make an ordinary assault upon him for that reason, but that it would not naturally lead him to think that Demery would kill him, or do him great bodily harm, for that reason; that such belief would not be a reasonable belief. That may be true, if the jury were to decide as to Bissonnette's belief concerning Demery's intentions solely from the fact that the latter was indignant at the treatment of his sister. But Bissonnette's belief might be formed from other facts in connection with that. If Demery, to the knowledge of the defendant, had long entertained hostile feelings toward him, and had threatened to kill him, these facts, as well as the nature of the assault, were to be considered in connection with the recent irritation arising from the supposed ill treatment of his sister in her confinement. Whether, in view of all the facts, the defendant was justified in believing that Demery meant to kill him, or do him great bodily harm, was a question of fact for the jury. The recent irritation was only one of the facts from which they were to draw their inferences.
There is error and a new trial is ordered.
In this opinion the other judges concurred.