Hart, J.',
(after stating the facts). The court gave the following instruction at the request of the defendant:
“No. 5. You are instructed that if defendant had reason to believe he or any one at his house would probably be attacked, then as a matter of law he had a perfect right to arm himself and prepare not only for his own defense, but that of his home and all persons being • therein at the time; and if deceased, either alone or with others acting with him, advanced upon defendant’s home for the purpose of renewing a difficulty with or attacking any person therein, defendant would not be required to retreat, but may stand his ground and meet force with force, and if necessary to prevent either himself or any person in his home from receiving great bodily injury at the hands of the deceased, or him and those with him and acting with him, either or all of them, or if situated as he was, viewing the facts and circumstances as they appeared to him, and from his standpoint he had reason to believe and did believe he or any person at his house was in imminent and immediate danger of losing his life or receiving some great bodily injury at the hands of the deceased or him and those acting with him, any or either of them, and in good faith, without fault or negligence on his part, he shot and killed the deceased, then such killing would in law be justified, and' you should acquit the defendant, although you may believe such killing unnecessary or that such danger did not exist.”
Counsel for defendant also asked the court to give additional instructions with reference to the defense of his habitation, and error is assigned because the court refused to give them. Counsel contends that instruction No. 5, above set out, limited the right of defendant to shoot the deceased to the defense of his own person or some inmate of his house, but omitted to charge the jury with reference to the right of the defendant to defend his home.
We do not think this instruction restricted or limited the defendant to a defense of his own person or some inmate of his house. It went further, and, -in plain and express terms, also submitted to the jury the law of justifiable homicide in the defense of the defendant’s home. In addition to instruction No. 5, the court, at the request of the defendant, read to the jury sections 1795 and 1796 of Kirby’s Digest, which are as follows:
“Section 1795. Every man’s house or place of residence shall be deemed and adjudged, in law, his castle.” “Section 1796. A manifest attempt 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 shall be a justification of homicide.”
It is next insisted that the court erred in refusing to give instruction No. 3, at the request of the defendant. The instruction is as follows:
“You are further instructed that the right given a man to defend his home against invasion and violence extends to and includes the immediate premises surrounding and environing the house, whether the same is fenced as a yard or not. If you believe from the evidence in this case that deceased, either on his own initiative or with others acting with him, entered the yard or immediate territory surrounding defendant’s house and in close proximity to the house and a part of the house premises, in a violent, riotous or tumultuous manner with intent to offer personal violence to any person in or about the house, or thought to be there, and defendant situated as he was, and viewing the facts and circumstances from his standpoint, acting as a reasonable person, believed it necessary to slay the deceased to prevent such invasion and violence, and so believing he shot and killed the deceased, then in law such killing would be justified, and you should acquit the defendant.”
We do not think the court erred in refusing to give this instruction. The first sentence of the instruction, in effect, told the jury, as a matter of law, that the rights given a man to defend Ms home extended to the premises surrounding it, regardless of the fact of whether the person intended to enter the dwelling house or not. At the common law an assault upon a man’s house was an assault upon himself, and he could therefore repel such an assault by the force necessary to defeat it. In discussing sections 1795 and 1796 of Kirby’s Digest, in the case of Brown v. State, 55 Ark. 593, Mr. Justice Mansfield, speaking for the court, said:
“Following the doctrine of the common law, the statute regards the violent attempt to enter the house as equivalent to an assault upon the person to be injured; and when it is obviously about to be made, he may at once put himself in an attitude to repel the aggressor. It was not practicable to give a rule applicable to all cases for determining what acts or conduct will constitute the actual attempt to enter a house. But it must be a ‘manifest’ attempt; and'we take this to mean one so plainly made that no reasonable doubt will exist as to the purpose of the aggressor. At what point the effort to enter the house was begun, and how far it may be permitted to proceed with safety to the life or person of the individual assailed, must be determined by the circumstances of each case. And these are questions more of fact than of law.”
In the case of the State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200, the court said:
“The idea that is embodied in the expression that a man’s house is his castle, is not that it is his property, and, as such, he has the right to defend and protect it by .other and more extreme means than he might lawfully use to defend and protect his shop, his offices, or his barn. The sense in which the house has a peculiar immunity is, that it is sacred for the protection of his person and of Ms family. An assault on the house can be regarded as an assault on the person, only in case the purpose of such assault be injury to the person of the occupant or members of his family, and, in order to accomplish tMs, the assailant attacks the castle in order to reach the inmates. In this view, it is said and settled that, in such case, the inmate need not flee from his house in order to escape from being injured by the assailant, but he may meet him at the threshold, and prevent him from breaking in by means rendered necessary by the exigency; and upon the same ground and reason as one may defend himself from peril of life, or great bodily harm, by means fatal to the assailant, if rendered necessary by the exigency of the assault.”
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Hart, J.',
(after stating the facts). The court gave the following instruction at the request of the defendant:
“No. 5. You are instructed that if defendant had reason to believe he or any one at his house would probably be attacked, then as a matter of law he had a perfect right to arm himself and prepare not only for his own defense, but that of his home and all persons being • therein at the time; and if deceased, either alone or with others acting with him, advanced upon defendant’s home for the purpose of renewing a difficulty with or attacking any person therein, defendant would not be required to retreat, but may stand his ground and meet force with force, and if necessary to prevent either himself or any person in his home from receiving great bodily injury at the hands of the deceased, or him and those with him and acting with him, either or all of them, or if situated as he was, viewing the facts and circumstances as they appeared to him, and from his standpoint he had reason to believe and did believe he or any person at his house was in imminent and immediate danger of losing his life or receiving some great bodily injury at the hands of the deceased or him and those acting with him, any or either of them, and in good faith, without fault or negligence on his part, he shot and killed the deceased, then such killing would in law be justified, and' you should acquit the defendant, although you may believe such killing unnecessary or that such danger did not exist.”
Counsel for defendant also asked the court to give additional instructions with reference to the defense of his habitation, and error is assigned because the court refused to give them. Counsel contends that instruction No. 5, above set out, limited the right of defendant to shoot the deceased to the defense of his own person or some inmate of his house, but omitted to charge the jury with reference to the right of the defendant to defend his home.
We do not think this instruction restricted or limited the defendant to a defense of his own person or some inmate of his house. It went further, and, -in plain and express terms, also submitted to the jury the law of justifiable homicide in the defense of the defendant’s home. In addition to instruction No. 5, the court, at the request of the defendant, read to the jury sections 1795 and 1796 of Kirby’s Digest, which are as follows:
“Section 1795. Every man’s house or place of residence shall be deemed and adjudged, in law, his castle.” “Section 1796. A manifest attempt 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 shall be a justification of homicide.”
It is next insisted that the court erred in refusing to give instruction No. 3, at the request of the defendant. The instruction is as follows:
“You are further instructed that the right given a man to defend his home against invasion and violence extends to and includes the immediate premises surrounding and environing the house, whether the same is fenced as a yard or not. If you believe from the evidence in this case that deceased, either on his own initiative or with others acting with him, entered the yard or immediate territory surrounding defendant’s house and in close proximity to the house and a part of the house premises, in a violent, riotous or tumultuous manner with intent to offer personal violence to any person in or about the house, or thought to be there, and defendant situated as he was, and viewing the facts and circumstances from his standpoint, acting as a reasonable person, believed it necessary to slay the deceased to prevent such invasion and violence, and so believing he shot and killed the deceased, then in law such killing would be justified, and you should acquit the defendant.”
We do not think the court erred in refusing to give this instruction. The first sentence of the instruction, in effect, told the jury, as a matter of law, that the rights given a man to defend Ms home extended to the premises surrounding it, regardless of the fact of whether the person intended to enter the dwelling house or not. At the common law an assault upon a man’s house was an assault upon himself, and he could therefore repel such an assault by the force necessary to defeat it. In discussing sections 1795 and 1796 of Kirby’s Digest, in the case of Brown v. State, 55 Ark. 593, Mr. Justice Mansfield, speaking for the court, said:
“Following the doctrine of the common law, the statute regards the violent attempt to enter the house as equivalent to an assault upon the person to be injured; and when it is obviously about to be made, he may at once put himself in an attitude to repel the aggressor. It was not practicable to give a rule applicable to all cases for determining what acts or conduct will constitute the actual attempt to enter a house. But it must be a ‘manifest’ attempt; and'we take this to mean one so plainly made that no reasonable doubt will exist as to the purpose of the aggressor. At what point the effort to enter the house was begun, and how far it may be permitted to proceed with safety to the life or person of the individual assailed, must be determined by the circumstances of each case. And these are questions more of fact than of law.”
In the case of the State v. Patterson, 45 Vt. 308, 12 Am. Rep. 200, the court said:
“The idea that is embodied in the expression that a man’s house is his castle, is not that it is his property, and, as such, he has the right to defend and protect it by .other and more extreme means than he might lawfully use to defend and protect his shop, his offices, or his barn. The sense in which the house has a peculiar immunity is, that it is sacred for the protection of his person and of Ms family. An assault on the house can be regarded as an assault on the person, only in case the purpose of such assault be injury to the person of the occupant or members of his family, and, in order to accomplish tMs, the assailant attacks the castle in order to reach the inmates. In this view, it is said and settled that, in such case, the inmate need not flee from his house in order to escape from being injured by the assailant, but he may meet him at the threshold, and prevent him from breaking in by means rendered necessary by the exigency; and upon the same ground and reason as one may defend himself from peril of life, or great bodily harm, by means fatal to the assailant, if rendered necessary by the exigency of the assault.”
It is next insisted by counsel for' defendant that the evidence is not sufficient to warrant a verdict of murder in the second degree. In the ease of Brown v. State, supra, the court held that an attack upon a man’s dwelling is regarded in law as equivalent to an assault upon Ms person, .and that in order to justify a killing in defense of one’s house, or of the inmates thereof, it is not necessary that there should be actual danger, provided the defendant acts upon a reasonable apprehension of danger. But the court further said that it is the duty of the householder to prevent the entry by means not fatal, if he can do so consistently with Ms own safety. So it may.be said that if the defendant kills where there are no reasonable grounds of apprehension of danger it is manslaughter; and if the killing is done with malice, express or implied, it is murder. Even though the deceased is attempting at the time unlawfully to enter the defendant’s dwelling house, if the killing is with malice and ill will, and not for self-protection or the protection of the house, it is murder. See State v. Scheele, 57 Conn. 307, 14 Am. St. Rep. 106. For, as it is there said, “the law of self-defense, or the defense of one’s domicile, does not require the giving to- evil-minded persons an op$ortunit3r to take the life of another on such easy terms.” Of course, if the testimony of the defendant is to be believed, he shot the deceased at the time the latter was violently attacking him with a knife, and the killing was done in .self-defense. On the other hand, according to the evidence adduced by the State, the defendant had taken the gun away from the deceased and had. extracted the shells therefrom. The deceased was unarmed, and was not in any way resisting the defendant or endeavoring to do him bodily harm. When the defendant drew his gun on deceased he begged defendant not to shoot him, and grabbed the gun in an effort to prevent the defendant from shooting him. The defendant, with the assistance of Steve Whitley, jerked the gun away and immediately drew it on the deceased and killed him. The deceased at the time was begging him not to shoot him, and had several times insisted that he was not going to harm the defendant or try to enter his house. The defendant was talking in a loud and angry manner and applying vile epithets to the deceased and his companion, telling him that they would have to turn back and not travel the road any further. If the jury believed this testimony, there is nothing from which it might reasonably have inferred that the deceased intended violence to the person of the defendant or that he was attempting to enter defendant’s dwelling house. The jury might have found that the killing was without provocation and that the defendant was moved by a depraved mind, regardless of human life, without the specifically formed design to take human life essential to murder in the first degree. Under such circumstances, the defendant would be guilty of murder in the second degree, and the evidence was sufficient to warrant the verdict. It was the peculiar province of the jury to weigh the testimony of the witnesses, and this court is not at liberty to reduce the punishment, even though we might think it too severe.
Finally, it is contended by counsel for defendant that the judgment should be reversed on account of certain prejudicial remarks made by the prosecuting attorney in the course of his argument. The remarks of the prosecuting attorney do not appear in the bill of exceptions, but are only set out as exhibits to the motion for a new trial. It is the office of the bill of exceptions to bring upon the record matters which do not appear upon the record proper, and errors which do not appear in the bill of exceptions can not be reviewed on appeal, although set out in the motion for new trial. Wolfe v. State, 107 Ark. 29, and cases cited.
We find no prejudicial error in the record, and the judgment will be affirmed.