Richardson, J.
(after stating the case as above), delivered the opinion of the court.
The several objections taken by the plaintiff in error to certain rulings of the trial-court are comprehended in the one [175]*175question, Did. the court correctly propound the law, as applicable to the. evidence in the case, as respects the ruling complained of? '
The first assignment of error is to the action of the court overruling the prisoner’s motion to quash the indictment. The objection to the indictment is that it is insensible and uncertain as to the number of persons charged with the offence set forth. The record, aside from the indictment itself, shows that the indictment was a joint indictment against Columbus Hash and Rowan Hash for a felony. But on looking to the indictment itself we find that it charges that the oftence was committed by “ Columbus Hash, Rowan Hash,” omitting the copulative conjunction “ and.” After the usual formula, the indictment sets forth : “ That Columbus Hash, Rowan Hash, on the-day of May, 1890, in the said county of Grayson, and in the jurisdiction of said court, with force and arms, in and upon the body of one Anderson Rutherford, in the peace of the said commonwealth, then and there being, feloniously, wilfully, and of their malice aforethought, did make an assault, and the said Columbus Hash, Rowan Hash, a certain pistol of the value of two dollars, then and there charged with gunpowder and leaden bullets, which said pistol they the said Columbus Hash, Rowan Hash, in their right hands then and there had and held, then and there feloniously, wilfully, and of their malice aforethought, did discharge and shoot off, to, against, and upon the said Anderson Rutherford, and that the said Columbus Hash, Rowan Hash, with the leaden bullets aforesaid, out of the pistol by the said Columbus Hash, Rowan Hash, discharged and shot off, as aforesaid, then and there feloniously, wilfully, and of their malice aforethought, did strike, penetrate, and Avound the said Anderson Rutherford, in and upon the head of him, the said Anderson Rutherford, giving to him, the said Anderson Rutherford, then and there, with the leaden bullets aforesaid, so as aforesaid discharged and shot out of the pistol aforesaid, by the said Columbus [176]*176Hash, Rowan Hash, in and upon the head of him, the said Anderson Rutherford, one mortal wound, of which said mortal wound he, the said Anderson Rutherford, from the -hour of the evening of the-day of May, 1890, to the-hour of the evening of that day, in the year aforesaid, did languish, and languishing did live, on which said evening of the - day of May, in the year aforesaid, the said Anderson Rutherford, in the county aforesaid, of the said mortal wound died ; and so the jurors aforesaid, upon their oaths aforesaid, do say that the said Columbus Hash, Rowan Hash, the said Anderson Rutherford, in manner and form aforesaid, feloniously, wilfully, and of their malice aforethought, did kill and murder, against the peace and dignity of the commonwealth of Virginia.”
The insistence is that- the indictment is insensible and uncertain as to the number of persons charged, by reason of the absence of the conjunction “ and ” whenever the words Columbus Hash, Rowan Hash ” occur, in the indictment. We are, however, clearly of the opinion that the objection is not well taken. It will be observed that in every instance in which the expression occurs in the indictment, the words “ Columbus Hash ” are followed by a comma, and then come the words Rowan Hash. The use of the comma clearly indicates that the words “ Columbus Hash ” represent the name of one of the two persons jointly indicted, and the words “ Rowan Hash ” represent the name of the other, and that, by necessary intendment, the meaning is the same as if the expression had been written Columbus Hash and Rowan Hash.
It is true that in speaking of the pistol frpm which the fatal shot was fired the indictment proceeds — “ which said pistol they, the said Columbus Hash, Rowan Hash, in their right hands, then and there had and held,” &c. If we take but a superficial view of the thing, we are almost irresistably led to the conclusion that it is senseless to say that, in the midst of a heated and deadly conflict, two persons could, at the same [177]*177time, hold in their right hands and fire the same pistol; hut, however improbable such an assurance may be, it cannot he said to he impossible. Bishop says: “ Where the indictment is against, more defendants than one for an offence committed by them jointly, it need not employ the word jointly in describing the offence. According to the forms generally used, it simply means the defendants, and says they did so and so. Offences are in law several, even when jointly committed; and such au allegation, therefore, is equivalent to saying that each defendant did the criminal act.” 1 Bish. Or. Pro. § 471.
We are, therefore, of opinion that, while the indictment is awkwardly drawn, it is nevertheless sufficient. It, with sufficient certainty, charges that Columbus Hash and Rowan Hash committed the criminal act therein set forth. Hence, if the proof sustains the charge in the indictment, they are both guilty, no matter which of them fired the fatal shot.
The real questions presented by the record arise upon certain instructions given by the court on behalf of the commonwealth, and on certain others asked for by the prisoner, but refused by the court. But before considering these questions it is necessary to call attention to the material evidence in the cause, so as to test, in the light of the legal principles applicable thereto, the correctness of the instructions in question.
The plaintiff in error, Columbus Hash, and the deceased, Anderson Rutherford lived in a few hundred yards of each other in the county of Grayson, were adjoining land-owners, and got at outs about a division fence which had been recognized as the line fence between them. In the evidence certified by the court-, it is distinctly stated in the testimony of Isham Rutherford, a son of the deceased, and the only person that testified on behalf of the commonwealth, who was an eye witness to the homicide, that the fence was built by the plaintiff’in error, and that the deceased had no interest in the fence. The plaintiff in error determined to move this fence a short [178]*178distance on Ms side, and lie forbade the deceased from joining liis fence thereto. And in turn the deceased forbade the removal of said fence. The plaintiff' in error, with liis two brothers, on Thursday preceding the Saturday on which the. homicide occurred, proceeded to move the fence, and on Saturday the day of the homicide the work was complete, except the erection of a pair of draw-bars, for which a space remained open. On the last named clay (Saturday) the deceased and his son Isham came to the open space in the fence where the plaintiff in error, aided by his said two brothers was about to erect the draw-bars, and very soon the deadly conflict arose, which resulted in the death of the deceased, Anderson Rutherford. Only three persons were present. They were Isham Rutherford, the son of the deceased, and Seabert Hash and Rowan Hash, brothers of the plaintiff in error. At the risk of tediousness we will give their evidence in full, as certified by the trial court.
Isham Rutherford, the son of the deceased, testifies as follows : “ That he is a son of Anderson Rutherford, and that he was present when his father, the said Anderson Rutherford was killed. Just after 12 M. we passed out to see if any stock was in our field; Mr. Hash and liis two brothers were fencing; father says, I see you are building some fence; my ould pa studied a little while and said, I will build me a piece of fence ; they then came up to us, Columbus Hash said to my old pa, what made you present your gun on me this morning, my poor old pa told him he was a liar he never drew it; the prisoner said you are a g — d d — n liar; prisoner then drew his pistol, my poor old pa says I have no weapons, prisoner then shot him, and in a minute Rowan Hash drew a pistol; the ball struck my father in the head, he (A. Rutherford) fell with his head to the H. E. I then ran home to tell my folks, when I got back my poor old pa was lying on the side of the road, twenty-two steps from where he was shot, was lying on his back, he lived till after dark. The tragedy occurred about 1 P. M., Rowan [179]*179Hash, Seabert Hash, deceased, the prisoner and myself Avere present. They were propping up the fence down at the loAver end of the fence they had moA’ed; my poor old pa said I Avill get me tAvo or three hands and build me a fence, prisoner said nothing to that hut AA’ent to driAÚng stake, then threw his axe doAA'n and started at pa. Hash says to my poor old pa, Avhat made you draw your gun on me this morning ? Pa told him he AA’as a liar he neATer done it; prisoner replied you are a g — d d — n liar; prisoner drew his pistol, my poor old pa said he had no Aveapons and just stood there; there AAras gum stump AA’here he (deceased) fell and open Avoods around. When the com’ersation commenced my poor old pa and myself Avere at the draAAr-bars close to the road, they Avere fifty yards north of us ; AA’hen Ave Avent up there AAre AA'ent the path to the bars. The chestnut tree Avas twenty-two steps from AA’here my poor old pa 'A’as shot; AA’hen AA’e left the path aa’c started toAA’ards home and AA'ent a little above- the path; Ave Avere near the Hash’s above the path, they Avere beloAv us, Ave first Avent aboA’e it: after AA’hile my sister Tinsey and myself came back; father Avas on bank of the road near the bars, I don’t knoAv Iioav he got there; Aunt Peggy Itutherford and William LoA’elace came next; my sister and myself came back to AA’here pa AA'as together, Ave Avalked back; I had to run about 200 yards to tell my folks poor old pa aaus killed ; I saAV my sister Tinsey coming AA’alking, after she came up Ave Avalked back together; my father had no interest in the fence; Mr. Hash built the fence, the fence Avas to tlie loAA’er side of the draAA’-bars; my father had no Aveapon except a little old knife, I neA’er saAV the knife; he had nothing in his hand AA’hen the prisoner shot him.
On cross-examination, this Avitness testified in the remarkable manner folloAA’ing: “My lather and myself started about 1 P. M. to Avhere the tragedy occurred; Ave Avere one-half hour going; Ave had a clock at our house ; it is 250 yards from our house to AA’here my poor old pa Avas killed; Ave AA’ent up.the hill from our house to top of the hill and then went the old [180]*180path; the first place we stopped at was the draw-bars, near the chestnut tree ; the way I know it was 1 o’clock when my poor old pa was killed was because I looked at our clock, for we owned one and had it in our house on the day of the killing; I know it was twenty-two steps from the gum stump to where my poor old pa fell, for I stepped it; when I stepped it I only stepped a foot at a time ; I don’t know how many feet there are in a yard, lmt they tell me there are three feet in a yard; I don’t know how many yards it takes to make a foot, but they tell me it takes three feet to make a yard; when I went home after the pistol shot I was gone but a minute or two; I then went back in company with my sister, Tinsey, and I got'there first and she was just behind me; I do not know why I passed the gum stump and went to the road; but he was shot at the gum stump ; my pa was fifty-seven years of age; no one told me to call him my old pa.”
Such is the incredible story told by Isham Rutherford, the son of the deceased, and the only witness for the commonwealth who was present at the time of the tragedy. It is, on its face, unnatural, senseless, self-contradictory, and unworthy of credit, and is, in material particulars, flatly contradicted, not only by his two sisters, Tinsey Rutherford and Hellie Rutherford, who testified on behalf of the commonwealth, but by other witnesses and by the surrounding circumstances. There is but little in the evidence of Tinsey and aSTellie Rutherford that is material; and, in this connection, it need only be referred to in so far as it contradicts a material statement made by their brother, Isham, as to the time of day when the homicide occurred. His statement substantially is that he and his father started out, about half past 12, to see if there was any stock in the field; that they went by the path leading from the. house to the draw-bars near which the killing occurred; and then, after giving his account of how the conflict cáme about, he adds that his father was killed about 1 o’clock P. M.; and in his cross-examination he says, “ the first [181]*181place we stopped, at was the draw-pars, near the chestnut tree: the way T know it was 1 o’clock when my poor old pa was killed was because I looked at our dock, for we owned one and had it in our house on the day of the killing.” But both Tinsey and Xellie Rutherford testify that there was no clock in the house on the day of killing, the latter stating that they never had one.
The theory of the defence was, that at the time the fatal shot was fired by the accused the deceased was making a sudden, fierce, and murderous assault upon him, with a dangerous and deadly weapon, and that the killing was done in necessary self-defence; and, from the evidence disclosed by the record, such theory was supported by an overwhelming preponderance of evidence. It was, then, of the utmost-importance for the commonwealth to show both the time and manner of the killing, and this was attempted by her chief witness, Isham Rutherford, who fixes the time at about 1 o’clock, and to support 1ns accuracy he says that, on leaving the house with his father he looked at the clock; that it was then half-past 12; that it took them half hour to walk to the draw-bars, where they first stopped, and that the. killing occurred at about 1 o’clock; when his two sisters, Tinsey and Rellie, both testify that there was no clock in the house on the day of the homicide, and 'Rellie says they never had one. And the undisputed evidence is that the homicide occurred nearly 4 o’clock in the afternoon.
Again this witness testifies positively, in his examination in chief that his father, the deceased, was shot and fell" at the gum stump, twenty-two steps from the draw-bars and in the direction of his house.; that he (witness) “ ran to the top of the hill to telbhis folks that- poor old pa was killed; that he was gone only a minute or two ”; and that on his return he found his father, the deceased, lying near the road, twenty-two steps from the gum stump. For some unexplained reason, this witness thus sought to create the impression that the accused had, [182]*182after shooting the deceased, moved Iris body hack to the roadside near the draw-bars, the obvious purpose being to show that the deceased had been pursued to the gum stump and there shot. The story is a most improbable one. Its ready refutation is found in the evidence of the witness himself. He says he was gone only a minute or two, in which time it is not reasonable to believe that the body could have been moved, if, indeed, the thought of doing so could have occurred to the accused under the circumstances. Moreover, there was direct, independent and uncontradicted, evidence that this witness was, for only some fifty yards distance traversed by him in going to tell what had occurred, out of view of the gum stump; and from his own statement that he was gone only a minute or two, he could not have been out of sight of the gum stump for as much as a half a minute. And yet, irfter making this incredible statement that the deceased was shot and fell at the gum stump, and that the body was moved back to the roadside, twenty-two steps distant, this same witness, in his cross-examination, says : “I know it was twenty-two steps from the gum stump to where my poor old pa fell, for I stept it; when I stept it I only stept a foot at a time.” Obviously this witness was either a part simpleton or one wholly incompetent to testify; and it would seem that but little credit could be given to his statement by any upright judge presiding at a trial involving the life of a human being.
Seabert Hash and Rowan Hash, brothers of the plaintiff' in error, were the only other witnesses to the deadly conflict. Seabert Hash is certified as saying : “ I am sixteen years old. I remember the day deceased was killed; I was there; I went to help Col.; help fix up his fence. As we got done, A. Rutherford came up on hill near a chestnut tree. Rutherford cam e to the bars and asked brother if he was going to put tip bars; told him he need not clo it, that he would build a fence.' Rutherford came to the chestnut tree and was sighting down the fence, and as the accused passed through the draw-bar. [183]*183place Rutherford said to him : £ Are you going to put up draw-bars here?’ Accused said, ‘Yes/ Rutherford said, ‘You need not do it; I will get me some hands and build me a fence.’ Accused said, ‘ Build as much as you please, but build it outside of the row of stakes which you see I have driven in the ground.’ 'Rutherford replied, ‘I will build it where I d — d please, and I am going to have this line run.’ Accused said, ‘ Run it as much as you please, so you pay for it.’ Rutherford said, ‘ I will make you help pay for it.’ Accused said, ‘ Did 1 not offer you everything fair, even after you drew your gun twice on me this morning.’ Rutherford said, ‘ You are a d — d liar, I didn’t draw my gun on you.’ Accused said ‘ You are another.’ Rutherford said, ‘ You are a d — d liar, G — d d — n you/ and here drew his knife open, from bis right pants pocket, and struck the accused, cutting his pants and drawers about the waist-band, and cutting his left arm between the elbow and shoulder. And the accused, retreating from the time the knife was first drawn until he was down to a fence, when lie raised up his left hand to ward off’ another blow of said Rutherford, and caught said blow with his arm and hand raised, between the thumb and first finger, and at this time the accused had drawn his pistol, raised it and tired, and the ball took effect in the forehead, above the left eye of Rutherford, and he fell to the ground. And the accused received a severe cut between the thumb and forefinger just before or about the time Rutherford was shot. Rutherford fell and we left. I went after our coats, Rowan after axe, and Columbus went on down the road. Isham Rutherford was near deceased when shot. He went off towards home. Xone of us touched the body after it fell. The deceased was shot by the side of the road, and was left lying there. The body was lying on its back. Saw no one about the gum stump. Didn’t see deceased’s hat after he was shot. Don’t know how long Rutherford had been there before difficulty. Rutherford first asked Columbus if he was going to build a pair of bars there. [184]*184Defendant replied, ‘Yes.’ Deceased said, ‘If yon do, build it over yours.’ "We went out there just after 12 o’clock to fix up fence. From Hash’s to where the difficulty occurred was about 100 yards, There were thirty-one panels of fence. Had knife in his hand when he fell. I saw knife after he fell. Stakes wore put there by Columbus on the line. Deceased cut Hash three times across body, on arm and on hand.”
On cross-examination this witness said, in substance :“I and my brother were helping Columbus make fence. I was twenty steps behind when difficulty began, and heard what was said. Accused asked deceased if he (Hash) had not offered to do all that was fair and right, even after he (Rutherford) drew his gun on him. That deceased drew the knife out of his pocket. I saw him. I saw part of the handle and the blade, and can swear that it was the knife exhibited in court. He had cut my brother three times xvlien lie shot him.”
Roxvan Hash, in his account of lioxv the homicide occurred, said: “ Rutherford came to the chestnut tree, and xvas sighting doxvn the fence, and, as the accused passed through the draxxrbar place, Rutherford said to him, ‘ Are you going to put up draxx'-bars here?’ Accused said, “Yes.” Rutherford said, ‘ You need not do it; I xvill get me some hands, and build me a fence.’ Accused said, ‘ Build as much as you please, but build it outside of the roxv of stakes xvliieh you see I hax^e driven in the ground.’ Rutherford replied, ‘ I xxúll build it xxdiere I cl- — d please, and I am going to have this line run.’ Accused said, ‘ Run it as much as you please, so you pay for it.’ Rutherford said, ‘ I xvill make you help pay for it.’ Accused said, ‘ Did I not offer you everything fair, ex'-en after you drexv your gun txvice on me this morning ? ’ Ruthei’ford said, ‘ You are a d — -d liar, I didn’t draxv my gun on you.’ Accused said, ‘ You are axxother. Rutherford said, ‘ You are a cl — dliar, Gr — d cl — d you,’ and here drexvlxis kxiife, open, from his right paxxts pocket, and struck the accused, cutting his pants aixcl draxvers about the xvaistband, and cutting his left arm, betxx-een the elboxv and shoulder, [185]*185and tlie accused retreating from tlie time tlie knife was first drawn until lie was down to a fence, when lie raised up his left hand to ward oft' another blow of said Rutherford, and caught said blow, with his arm and hand raised, between the thumb and first, finger; and at this time the accused had drawn his pistol, raised it, and fired; the ball took effect in the forehead, above the left eye of Rutherford, and he fell to the ground, and the accused received a severe cut between tlie thumb and fore-finger, just before or about the time Rutherford was shot.” Tie further testified, in substance, that he (Rowan Hash) had no pistol; that the body of the deceasetl was not moved after he fell, and that he fell near the road, about nine steps from the new draw-bar place ; that accused gave back when deceased was striking at him. He further says that he saw deceased draw the knife from his right pocket; that it was a large knife, with buck-horn handle, and that the knife was gripped in the hand of deceased after he fell; that deceased did not cut accused to the hide on the body, but cut his arm, and it bled freely; that he (witness) was not about the gum stump that day, and that the stump was about thirty steps from draw-bars; that there was no difficulty at the stump, and that witness .did not see the accused there that day; and that the chestnut tree is about three or four panels of fence from the bars.
These two witnesses, who were introduced in behalf of the accused, substantially agree in their statements as to how and where the homicide occurred. They both testify that the deceased was shot and fell at or near the draw-bars. The accused also testified, and his statement agrees substantially with that of Seabert and Rowan Hash; aiid all of them concur in saying that the deceased came first to the chestnut tree, from which point he was sighting down the fence; that lie then came to the draw-bars, where the conversation was commenced by him with the accused, and near which point he was shot and fell.
[186]*186Bucli being tlie theory of the defence, what was that of the prosecution ? Briefly recapitulated it may be stated thus :
Isham Rutherford, the son of the deceased, and only witness introduced for the commonwealth, who was present, and saw whát occurred, says that he and the deceased went by the path from the house to the draw-bars, near the chestnut tree. This was said on his cross-examination. He had, on his examination in chief, made this statement: “ They ” (meaning the accused and his two brothers) “ were propping up the fence down at the corner end of the fence they had moved. My poor old pa said, ‘ I will get me two or three hands, and build me a fence.’■ Prisoner said nothing to that, but went to driviug stake; then threw his axe down, and started at pa. Hash says to my poor old pa, ‘ What made you draw your gun on me this morn ? ’ Pa told him he was aliar, he never done it. Prisoner replied, ‘You are a G — dd—n liar.’ Prisoner drew his pistol. My poor old yia said he had no weapons, and just stood there. There was gum stump where he (deceased) fell and open woods around. When the conversation commenced ray poor old pa and myself were at the draw-bars, close to the road; they were fifty yards north of us. When we went up there we went the path to the bars. The chestnut tree was twenty-two 'steps from where my poor old pa was shot. When -we left the tree we started towards home,” &c.
He (Isham Rutherford) had just previously, in his statement in chief, made a less circumstantial but much clearer statement,, in which he said: “ Mr. Hash and his two brothers were fencing. Bather says, ‘I see you are building some fence.’ My poor old pa studied a little while, and said, ‘ I will build me a piece of fence.’ They then came up to us. Columbus Hash said to my old pa, ‘ What made you present your gun on me this morning ? ’ My poor old pa told him he was aliar, he never drew it. The prisoner said, ‘ You are a G — d d — n liar.’ The prisoner then drew his pistol. My poor old pa says, ‘ I have no-[187]*187weapons.’ Prisoner then shot him, and in a minute Rowan Hash drew a pistol,” &c.
Take all the variant statements of this witness together, and it is impossible to extract from them any meaning other than that the fatal encounter occurred at the draw-bars, and that the deceased was there shot and there fell. He distinctly states that the conversation which led up to the conflict of blood was commenced by his father, the deceased, at the draw-bars. He does not intimate that there was any lull in the conversation from its commencement until the fatal shot was fired and the deceased fell. Xor is it possible, from his statement, that the deceased ever, of his own volition, left the draw-bars, where, according to this witness, he stood unarmed and was shot. He nowhere speaks of the deceased going from the draw-bars to the chestnut tree; nor does he intimate that the deceased was either pursued or intercepted and shot; but after showing that the deceased must have been shot at or near the draw-bats, he does say that when deceased left the tree (chestnut tree), “ We started towards home,” and that “ there was gum stump where deceased fell.”
In this state of the testimony the tidal judge, by certain instructions given or refused, propounded the law in the remarkable manner now to be inquired into.
As already stated, of the six instructions offered by the commonwealth the court gave the first four, to which there was no objection, hut in lieu of the last two it gave two others, of which the first is as follows :
Fifth. “ If the jury believe from the evidence that deceased was going from draw-bars towards his home, and had got to a point at which a gum stump stands, and the accused advanced towards and came near to him, and drew from his person a pistol, and that the pistol up to that time had been concealed, and that the accused then and there, with a willful, deliberate and premeditated intent to kill deceased, shot him fatally with the pistol, and that the deceased was making no assault [188]*188nor doing any overt act indicative of an intention to make an assault on the accused, then the accused would be guilty of murder in the first degree.”
In the light of the evidence contained in' the record, this instruction is pregnant with error, there being at least two sound objections thereto. First. There is no evidence in the record which tends to establish the main proposition contained in the instruction. The only tacts testified to by Isham Rutherford, the only witness introduced by the commonwealth, who was present when the homicide occurred, tending to that result, is the fact that the accused drew his pistol and shot the deceased, and that he fell at the gum stump. There is no evidence that the deceased, after the commencement, of the conversation at the draw-bars, was going home and had got to the gum stump, and that the accused advanced towards and came near to him, and (then) drew from his person a pistol, and that the pistol up to that time had been concealed. On the contrary, as already shown, this witness testified that when the conversation commenced “ we were at the draw-bars; ” that the deceased addressed a remark to the accused and his brothers: that they then came up to us; that then the lie was given and returned, and that the accused then drew his pistol and shot the deceased. There is nothing whatever tending to show that the deceased was either pursued or intercepted by the accused, and was shot by him with a pistol, which, up to the time of his overtaking the deceased, had been concealed, as is erroneously assumed in the instruction. Hence, the instruction was irrelevant, well calculated to mislead the jury, and doubtless did mislead them. Second. The instruction, in effect, suppresses the evidence tending to support the theory of defence set up by the accused. It is a rule too ’well settled to need the citation of' authorities, that where an instruction undertakes to recite the evidence, it must not garble the same by giving a portion of it and withholding the rest, the well established principle being that the accused has a right to a [189]*189full and correct statement by the court of the law applicable to the evidence in his case, and that any misdirection by the court in point of law on matters material to the issue is ground for a new trial. Whar. Crim. Pl. and Pr., §§ 709-10. Rhea v. Trotter, 26 Gratt. 585; Honesty's Case, 81 Va. 283.
In the present case there were other persons present, at the homicide and who testified at the trial. The court should not have based its instruction as it did, upon the testimony of the only witness whom the attorney for the commonwealth saw fit to introduce. ■ It should have recited the testimony of Seabert Hash, Rowan Hash and the accused, and have based a hypothetical alternative instruction upon their testimony, and thus have presented the theory of the defence as well as that of the prosecution, so that the jury might, be enabled to have before it the whole case and to adopt the one theory or the other, according to their opinion, as to the credibility of the respective witnesses.
In lieu of the sixth instruction asked for by the attorney for the commonwealth, the court, of its motion, gave the following :
“ The court instructs the jury that a man cannot in any case justify the killing of another upon the pretence of self-defence, unless he be without, fault in bringing the necessity of so doing upon himself. Therefore, if the jury believe from the evidence that, the accused built the fence spoken of by the witnesses, running north frond the draw-bars mentioned by the witnesses, upon the line between himself and the deceased so that it- rested partly on the land of each, and that the deceased joined to the same at the draw-bars, thereby inclosing his premises, and that said fence had been used as a line fence between the accused and deceased for a number of years, and that déceased had notified accused not to remove said fence, and that the accused afterwards, on the day of the homicide, armed himself with a pistol, and in company with two brothers went to the fence with intent to remove the same with force, if necessary, and [190]*190did remove said fence, then he was guilty of an unlawful act, and if the deceased came upon the premises while the unlawfiil act was being committed and then and there on account thereof a conflict arose in ívhich the accused killed the deceased, then the accused cannot .avail himself of the plea of necessary self-defence. But the court instructs the jury further, that if they believe from the evidence that the accused had reasonable ground to fear that deceased might Mil him or do him some grave bodily harm while he was engaged in the exercise of his lawful right of removing said fence, then the accused might lawfully arm himself for the purpose, if it became necessary, of protecting his life and person. And if the accused did, after being notified by the deceased not to remove said fence, on the day of the homicide and in company with two brothers, after arming 'himself with a pistol proceed to remove said fence with no intent to use said pistol except only to protect, his life and person while engaged in the exercise of liis lawful right, then the accused was not engaged in an unlawful act; and if the deceased came upon the premises while the accused was so engaged in removing the fence, or after its removal, and on account thereof a conflict arose, then the accused would not be precluded from availing himself of the plea of self-defence if the conflict was of such a character, and the conduct of the accused in the conflict was such as to make the killing of deceased, by the accused, excusable homicide.”
This instruction is palpably erroneous in several respects. The law, under circumstances such as characterize the present case, asserts no such cruel and inhuman doctrine. First. The word “ pretence ” in the first paragraph of the instruction implies sham, falsity, and groundlessness; and, now as it is in the outset of the instruction, it gives color to all that follows, and in effect says to the jury that- the defence set up by the accused is a mere false pretence, and could but prejudice the minds of the jury against the theory of necessary self-defence relied on by the accused. Instead of the word “pretence,” [191]*191thus employed in the introductory sentence of the instruction', the word “ píen ” should have been used.
It is often the case that the circumstances attending a homicide are such that the court may, in an instruction to the jury, based on the evidence adduced at the trial, properly employ the word “pretence ,” as, for instance, where, the evidence strongly tends to show that the accused sought and brought about the deadly conflict in order to have a pretext for killing his adversary or doing him great bodily harm. In such case it would not only be the right but the duty of the court to propound to the jury a hypothetical case, based upon such evidence, and to say to them that, if from the evidence they believe the case supposed in the instruction to be true, then the accused is guilty of murder, and that he cannot justify such killing under the “pretence ” of necessary self-defence. But this is widely different from saying, as the court did in the paragraph under consideration, that “ a man cannot in any case justify the killing of another upon the pretence of self-defence unless ho be without fault in bringing the necessity of so doing upon himself.”
Not only does this part of the instruction assert a proposition that cannot he entertained, as will presently be shown, but in its frame and structure it is paradoxical and absurd. It asserts in one sentence two irreconcilable propositions : first, that no man can justify the killing of another upon the pretence of self-defence unless he be without fault in bringing the necessity of so doing upon himself; and, second, by necessary implication, that a'man may, in any case, justify the killing of another upon the pretence of self-defence, if he he without fault in bringing the necessity of so doing upon himself. Obviously no question could arise in either case as to pretence. The absurdity is too palpable to need comment.
But the paragraph in question goes further and asserts a proposition which, in effect, strikes at some of the most vital principles of criminal jurisprudence touching the law of self-defence.
[192]*192Iii discussing tlie question, wlien killing in self-defence is permissible, Bishop says: “ The rule is commonly stated in the American cases thus : If the individual assaulted, being himself without fault, reasonably apprehends death or great bodily harm to himself, unless he kills his assailant, the killing is justifiable.” 1 Bishop Cr. Law (6th ech), § 865.
“ There are two kinds of permissible defence of person or property. The one extends, when necessary, to the taking of the aggressor’s life; and this is called the perfect defence. The other, or imperfect defence, does not permit him who employs it to go so far, but he may resist trespass on his person or property to an extent not exactly the same in all circumstances, yet not involving the life of the trespasser; and this is called the imperfect defence. 1 Bish. Cr. Law, §§ 840, 841.
The same eminent author says : “ The right to defend one’s person or property proceeds from necessity. And, however complete this right may be, or however far the law permits it to be carried, it stops where necessity ends. The party making the defence may use no instrument and no power beyond what will simply prove effectual. Thus, though it is lawful for one to oppose another who is committing felony, even to the taking of his life, yet, if there is no obstacle to his arrest, the shooting of him in the felonious act, instead of having him arrested, is a felonious homicide. Anil, while it is lawful to kill a man in self-defence, still his mere assault with the fist will not justify the instant taking of his life by a stab; and to thus resort to a defence wholly unnecessary is murder. It is not lawful to kill another who even meditates the taking of one’s life till some overt act is done in pursuance of the meditation; in other words, till the danger becomes immediate. The steps necessary may be taken, and no more. Thus, again, a man who expects to be attacked should first employ the means in his power to avert the necessity of self-defence, and, until he has done this, his right of self-defence does not arise. Hor can a man avail himself of a necessity which he has knowingly [193]*193and 'wilfully brought upon himself. Yet one assaulted by another who has threatened to kill him is not bound to run in the particular instance, thus increasing his danger by encouraging the assailant to repeat the attempt when he will be less prepared to resist.” Ib., §§ 842, 843 and 844. In support of these propositions, which are founded in reason, justice, and humanity, the author cites very numerous authorities.
In the above summary we have a clear statement of the law with respect to one’s right to defend his person, and how far that right may be carried. Elsewhere the same author gives a summary showing the right to defend one’s property. He says: “ One, in defence of his property, must not commit, a forcible detainer, a riot, or any like crime. He must not. kill the aggressor; but-, if the question comes to this, he must find his redress in the courts. If the wrongful act is proceeding to a felony on the property, he may then kill the. doer to prevent the felony, if there is no other way; otherwise this extreme measure, is not lawful. And the defence may be such, and such only, as necessity requires, of course, within the limit, which forbids the taking of life. Therefore a man commits a felonious homicide who inflicts death in opposing an unlawful endeavor to carry awaj’ his property. There is here the right to resist, but not to the taking of life.”
In the above formula we have the doctrine concisely stated in respect to both the perfect and the imperfect right of self-defence, and we have, also, a clear recognition of the essential distinction between the two. The perfect right of self-defence extends, when necessary, to the taking of the aggressor’s life; but it cannot be resorted to for the protection of property, except where it consists of the castle, or a felony is being committed on it; while, on the other hand, the imperfect right of defence is permitted as well of the property as the person. Hence, a man may lawfully defend his property in possession by any degree of force, short of taking of life, necessary to make the defence [194]*194effectual, unless it amounts to a riót, a forcible detainer, or some otlier like crime. Yet he cannot proceed therein beyond what necessity requires. 1 Bishop Cr. L., §§ 860-861.
The doctrine of perfect and imperfect defence is well illustrated by Bishop, as follows : “ If, -without provocation, a man draws his sword upon another, who draw's in defence, whereupon they fight, and the first slays his adversary, his crime is murder. Bor he who seeks and brings on a quarrel, cannot, in general, avail himself of his oum wrong in defence. But where an assault, which is neither calculated nor intended to kill, is returned by violence beyond what is proportionate to the aggression, the character of the combat is changed; and if, without time for his passion to cool, the assailant kills the other, he commits only manslaughter.”
Horrigan & Thompson, in their cases in self-defence, p. 227, in a note to Stoffer v. State, 15th Ohio St. 47, cited in State v. Partlow, 90 Mo. 608, give an admirable summary' of the authorities on this subject, as follow's: “If he (the slayer) provoked the combat or produced the occasion, in order to have a pretext for killing his adversary, or doing him great bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat. But if he provoked the combat, or produced the occasion, without any felonious intent, intending, for instance, an ordinary battery merely, the final killing in self-defence w'ill be manslaughter only.” Here is a clear recognition of the doctrine, that although the slayer provoked the combat, or produced the occasion, yet, if it was done without any felonious intent, the party may avail himself of the plea of self-defence. In the case of State v. Partlow, supra, the learned judge, delivering the opinion, cites in support of this doctrine, State v. Lane, 4 Ired. 113; Ray v. Smith, 8 Car. & P. 160 ; Slaughter’s Case, 11 Leigh, 680; Murphy v. State, 37 Ala. 142; Adams v. People, 47 Ill. 376; State v. Hildreth, 9 Ired. 429; State v. Hogue, 6 Jones’ Law, 381; State v. Martin, 2 Ired. 101; Atkins v. State, 16 Ark. 568; [195]*195Cotton v. State, 31 Miss. 504; Stewart v. State, 1 Ohio St. 66; State v. Hill, 4 Dev. & Bat. 491; and 2 Bish. Cr. L., § 702, supra; and by wav of enforcing this well settled legal principle, the learned judge makes this remark: “ Indeed the assertion that one who begins a quarrel or brings on a difficulty with the felonious purpose to kill the person assaulted, and accomplishing such purpose is guilty of murder, and cannot avail himself of the doctrine of self-defence, causes with it in its very bosom the inevitable corollary that if the quarrel be begun without a felonious purpose, then the homicidal act will not be murder. To deny this obvious deduction is equivalent to the anomalous assertion that there can be a felony without a felonious intent; that the act done characterizes the intent, and not the intent the act. The bare statement of such a doctrine accomplishes its own ample refutation; a doctrine inconsistent with its premises and illogical in its conclusion. In the light of this well settled doctrine, it is manifest that the trial court erred egregiously in saying to the jury that “ a man cannot in any case justify the killing of another upon the pretence of self-defence, unless he be without fault in bringing the necessity of so doing upon himself.”
Recurring now to the rule laid down by Bishop, that if thc; individual assaulted, being himself without fault, reasonably ajtpreliends death or great bodily injury to himself unless he \ kills the assailant, the killing is justifiable, the inquiry pre- ! sonts itself, what “fault” is it that will deprive a man of his 5 plea of justifiable self-defence? This question has already 1 been answered by the authorities cited. It is the “ fault ” of ! seeking and directly bringing about the occasion for the kill- j ing, limited, however, by the intention with which the ocea- ' sion was brought about.
Inasmuch, therefore, as the right of a party accused of a felonious homicide to avail himself of the plea of justifiable self-defence depends xrpon the intent with which he provoked the difficulty, and inasmuch as it is the doctrine of the, law [196]*196that no man is to be punished as a criminal, unless his intent is wrong, and as the intent is a fact to be found by the jury, then in every ease where the evidence creates any doubt as to the character of the intent, the court should instruct the jury as to the distinction between perfect and imperfect, defence, as applicable to the particular circumstances attending the homicidal act of the accused. Menley's Case, 8 Am. State Reports, 478, and authorities cited.
Second-. The second paragraph of said sixth instruction is to the effect that if the jury should believe that the accused had built the fence on the line between his land and that of the deceased, and that said fence had been used as a line fence for a number of years, and deceased had notified accused not to remove it, then the removal of the fence by the accused, under the circumstances, was an unlawful act, and that, if the accused killed the deceased in a conflict on account thereof, then the accused could not avail himself of the plea of necessary self-defence.
: This is unquestionably a misstatement of the law. Such - removal of the fence could have amounted to nothing more ■ than a mere trespass, if that; and if, to prevent such trespass, . the deceased had made an attack on the accused with .a deadly I weapon, under circumstances calculated to excite in the mind I of the latter a reasonable apprehension of death or great ’ bodily injury to himself, can it be possible that to kill his ! assailant under such circumstances would deprive him of the ■ right to avail himself of the plea of self-defence ? Certainly not, as is shown by the authorities already referred to. A man may even draw his sword in a quarrel with his adversary; then on reflection may decline the fight and -withdraw; but. on being pursued may turn and, if necessary, may slay his pursuer in self-defence. But, while there was evidence tending to prove that- the fence was on the land of the deceased and was recognized and used as the line fence, the overwhelming preponderance of evidence" was to the effect that it was not [197]*197on the line, hut was removed thereto; that it was built by the accused and that the deceased had no interest in it. Under such circumstances, was the removal of the fence a tortious act? We think not.
In Second Waterman on Trespass (Real Estate) it is said in respect to property in fences, that fences are a part of the freehold, and the fact that the materials of which they are composed are accidentally or temporarily detached vrithout any intent in the owner to diArest them from their use as a part of the fence, Avorks no change in their nature. If I build a fence on my neighbor’s land it is his, not mine ; and the dominion which every man has OAmr his own property gives him a right to remove it whenever he pleases. If it be useful to me as well as to him, and if I build it in consideration of his promise that it shall stand there permanently, and he remoATes it in violation of that promise, I may recover in an action on the contract, the Amine of my labor, and perhaps for the consequential injury; but I cannot maintain trespass.
In a note the author cites Burrell v. Burrell, 11 Mass. 294, which was an action of trespass for entering on the plaintiff ’s land and taking away a fence on the dividing line between premises owned by the parties respectively. The part of the fence remoA-ed by the defendant Avas made of rails; and lie proAred that he built it twenty-three years previous, and had ever since kept it in repair, and that, at the time of the alleged trespass, he took away the rails in order to replace the fence by a stone Avail, which he built the following year, putting it nearer to his own land than the place where the fence rail stood. A Arerdict was found for the defendant in the court below, and the Supreme Court in sustaining it said : “ The only question which could exist at the trial Avas whether the facts there testified were true ; and the jury having decided that they were, the Arerdict was a necessary legal consequence. There is nothing in the report from Avliich an entry on the plaintiff’s land can be inferred, unless such entry was neces[198]*198sary for tlie purpose of taking down the fence in order to rebuild it, which would not be tortious. The part of the fence assigned to the defendant to keep in repair 'was his property, so far, at least, that the removal of it for lawful purposes could not make Mm a trespasser; and we do not think there was any joint tenancy or tenancy in common of the materials of which the fence -was composed.”
That case, in its facts, as to the erection, ownership, and use of the fence, was almost precisely like the case here. If we apply to the evidence in the present case the principles applied under similar circumstance in that case, it is plain that the accused, in removing the fence in question, did no legal wrong to the deceased, and that there was nothing in the evidence upon which to base the direction to the jury contained in the second paragraph of the said sixth instruction, and the jury should not have been so instructed;
Third. ' The third paragraph of said sixth instruction, taken in connection with the second, was well calculated to mislead the jury and induce them to make the conviction or acquittal of the accused depend upon the decision of the question whether the accused had or not the right to remove the fence, whereas such right was wholly immaterial in considering his guilt or innocence, the undisputed testimony being that the [ fence had been removed before the deceased went to the scene | of the conflict which resulted in his death; and the clear preI ponderance of evidence being to the effect that the deceased ; sought and, without any sufficient provocation, brought about the conflict which resulted so fatally to him, and made a 'fierce and murderous assault upon the accused with a deadly weapon, knife suddenly drawn, open, from his right pants pocket.
Fourth. The fourth and last paragraph of the said sixth instruction is amenable to the same criticism, and should not have been given.
On behalf of the accused ten instructions were asked for, all of which the court gave except the seventh and eighth.
[199]*199The seventh instruction asked for by the accused, and refused by the court, is as follows :
“ The jury are further instructed that the accused must have í been without fault in bringing on the combat, and that he must not have provoked the combat, or produced the occasion for killing the said Anderson Rutherford, or doing him some great bodily harm. Ihit if they shall also believe, that even if the accused was not without fault in bringing on the combat, or that he provoked the same, or produced the occasion, in order to have the pretext for killing said Rutherford, or doing him some great bodily harm ; yet, if they shall also believe that' the accused fairly, declined the said contest, by retreating as far as he could, then killed said Rutherford in self-defence, the killing was excusable, and they should acquit the accused.”
We are of the opinion that this instruction correctly propounded the law, and there was evidence in the case tending to establish the proposition contained therein, and that the court erred in refusing to give it.
The. eighth instruction asked for by the accused, and refused by the court, is as follows :
“If the jury shall believe from the evidence that Isham Rutherford, a witness called on by the prosecution, and sworn in court to give evidence in this case, testifies that he knew that the difficulty occurred between Anderson Rutherford, the deceased, and the. accused, between the hours of 12 and 1 o’clock on the day that said Anderson Rutherford was killed; and if they shall also believe that Isham Rutherford gave as the reason why he knew that the said difficulty occurred at the time so testified by him, was that his father, the said Anderson Rutherford, owned a clock, and that it was in house at that time, and that he looked at the clock before he started with his father to the place of said difficulty. And if they shall also believe that said witness wilfully swore falsely in this behalf, then such false testimony or swearing of said witness vitiated and destroyed the whole of his evidence, and the same should be disregarded by the jury.”
[200]*200We are of opinion that this instruction does not correctly propound the law, and that the court did not err in refusing it.
The jury is the sole judge of the credibility of witnesses, and to have given the instruction would have been to invade the rightful province of the jury.
Tor the errors hereinbefore pointed out the judgment of the circuit court'must be reversed and annulled, the verdict of the jury set aside, and the cause remanded to said circuit court for a new trial, to be had therein in accordance with the views expressed in this opinion. .
Judgment reversed.