Mr. Chief Justice
Magruder delivered the opinion of the court:
First — It is conceded, that plaintiff in error shot and killed the deceased Charles Jennings with a shot-gun on the morning of June 18, 1900, while Jennings was sitting in a buggy or phaeton with his wife. The theory of the defense is, that the deceased Charles Jennings had a revolver, and fired once at the plaintiff in error, and was about to fire again when plaintiff in error shot him. In other words, it is claimed on the part of plaintiff in error, that he fired the fatal shot, which resulted in the death of Charles Jennings, in self-defense, and to save his own life. The evidence tends to show that the plaintiff in error was a violent and dangerous man, and known as such in the community where he lived. He entertained feelings of hostility towards his sister,-and after the occurrence of June 14, 1900, had evidently become angry with his brother-in-law, the deceased Charles Jennings. At the time of the occurrence on Saturday, June 16, in Nebo, the streets appear to have been well filled with people. More than seven witnesses testify that on Saturday afternoon the plaintiff in error ran after the deceased and his wife, while they were passing through one of the streets of Nebo in a vehicle, and in an angry manner called to the deceased to stop, and used abusive and profane language towards him, and made threats against him. It is also clearly proven that his own wife sought to restrain him from any attempt to interfere with Charles Jennings on Saturday afternoon.
There are circumstances, tending to show that the occurrence of Monday morning was simply a continuation of the occurrence of Saturday afternoon. There are circumstances, tending to show that plaintiff in error expected and prepared for the meeting, which took place between himself and Charles Jennings on Monday morning. When Minnie Henry brought the gun to plaintiff in error, the gun was standing by the safe or cupboard ready and loaded. There was only one room, upon the first floor at any rate, in the house, occupied by Charles Henry, and where the gun was. Charles Henry swears that the gun belonged to his father, and that he did not know whether his father brought it there that morning or not, and did not know where it came from. The testimony of Mrs. Jennings tends to show that plaintiff in error was in the house when she and her husband approached from the south, and saw them coming and ran out of the house to the road and down the road to meet them. She swears that, when he came down the road, he picked up a rock and threw it at them, and grabbed the horses by the bits, walking backwards until they came within a short distance of the front door of the house, where Minnie Henry was. According to her testimony, he appeared to be detaining the horses and buggy, until he should reach a point in front of the house, where the gun could be easily given to him. She says that he was between the wheels of the buggy, which had been turned a little to the left, when he fired the shot-gun, or very nearly between the wheels. He certainly must have been very close to Jennings when he fired the gun, be- ! cause the proof is uncontradicted that the clothes of the deceased were burned, and that the shot went through his body and lodged in the cushion of the buggy in the rear of him. If Mrs. Jennings is to be believed, Jennings did not fire any revolver before he was shot by the "plaintiff in error. She does not deny that her husband may have had a revolver, but says that, if it was fired, it was fired at the same time when the shot-gun was fired, so that there was, as she calls it, “a double shot.” That is to say, her testimony is that, if her husband fired a shot, it was fired at the same instant when the shot-gun was fired, and thereby the two shots appeared to be one shot. She also says that she wore a sun-bonnet, her husband was to the right, and she seized the reins in order to prevent the horses running away, and failed to notice whether he fired a revolver or not.
Minnie Henry states that, when she directed the plaintiff in error how to find her husband who was at work in the field, she went back into the house to attend to her household duties, and did not again go to the front door to see what was'going on, until she heard a voice, which, she thought, was the 'voice .of plaintiff in error 'calling her. She, therefore, did not witness what occurred between plaintiff in error and Charles Jennings before they approached near enough to the house to enable Minnie Henry to hear the voice of plaintiff in error. Hence, the statement of Mrs. Jennings, to the effect that plaintiff in error ran down the road and picked up. a rock, and threw it at the buggy, and grabbed the horses by the bits, is not contradicted by the testimony of Minnie Henry. That part of the statement made by Mrs. Jennings is in conflict with the testimony of plaintiff in error, but is not in conflict with the testimony of Minnie Henry for the reason stated. It was for the jury to determine whether Mrs. Jennings told the truth, when she said that plaintiff in error first assaulted them with a rock on the roadside, or whether the testimony of plaintiff in error, to the effect that he approached the buggy in a peaceful manner, and put his hand on the wheel, and asked about the occurrence of Thursday, was true or not. If plaintiff in error commenced the assault in the way stated, and led Jennings and his wife towards the house where his gun was, and by curses and intimidation led them to that point, and there killed Jennings, the act was certainly murder. If plaintiff in error committed the first assault, he had no right to fall back to his gun, and then call for his daughter-in-law to bring the gun, and immediately turn to kill the man whom he first assaulted, and who, according to the testimony of Mrs. Jennings, was pleading with him to listen to reason and to an explanation of the impounding or distraining of the cows. .A person is not permitted to bring on an assault, and, when he finds the person assaulted armed and defending himself, then to draw a deadly weapon and kill him. In Gainey v. People, 97 Ill. 270, it was held that, if the accused seek and bring on a difficulty with the deceased at the time of the killing", he will not be allowed to avail of the right of self-defense, in order to shield himself from the consequences of the killing, however imminent the danger, in which he may have found himself in the progress of the affray, which he brought upon himself.
The testimony of Mrs. Jennings, that only one shot was fired is confirmed by the testimony of three other witnesses, to-wit, Mr. and Mrs. Guthrie, and a man by the name of Voshall. These witnesses were within hearing of the shooting, and all swear that only-one shot was fired.
On the contrary, if the testimony of plaintiff in error and of Minnie Henry is true, then the plaintiff in error shpt the deceased in self-defense. In considering whether the testimony of these witnesses was true or not, the jury^ had a right to take into consideration that William Henry and Minnie Henry were' both under indictment for murder, and were on trial for that offense. If their testimony is true, the deceased had a revolver, and fired it once at plaintiff in error, and was about to fire it a second time when the deceased received the fatal shot. According to the testimony of plaintiff in error, he did not make the first assault, and, if his testimony is to be believed, then his defense is made out. Charles Henry was working at some distance in the field, and swears that he heard two shots. He also says he saw a man go behind the buggy, but did not know what man it was, and saw a woman come out of the house, but did not know what woman it was. His testimony amounts to but little, as sustaining the testimony of plaintiff in error and Minnie Henry, because he was too far off to see what actually occurred. The proof shows that the deceased purchased cartridges on Saturday afternoon with a view of defending himself, in case he should be attacked by his brother-in-law. The proof also tends to show that the deceased had a revolver with him in the buggy. But whether or not he fired that revolver once or twice or at all, is a matter about which the evidence is conflicting. In other words, there is, on the one hand, the testimony of Mrs. Jennings giving one account of this transaction, which, if true, justifies the verdict rendered by the jury; and there is, on the other hand, the testimony of the plaintiff in error and Minnie Henry, both under indictment for murder, giving another account of the transaction, which, if true, should lead to a reversal of the judgment rendered by the trial court. In Gainey v. People, supra, we said (p. 275): “A reversal is asked, first, upon the ground the evidence is insufficient to sustain the verdict. Leaving out of sight the testimony of the accused themselves, it must be conceded that the evidence otherwise fully warranted the conviction. What, if. any, credit they were entitled to, was purely a question for the jury, and it having been determined adversely to the accused, this court has no right to interpose by substituting its own opinion for that of the jury. The law, whether wisely or unwisely, entrusted the consideration and decision of that question to the jury, and when it having honestly, according to the best lights before it, performed that duty, its determination must be accepted as conclusive, unless it is reasonably clear that an error has been committed. * * The most important and useful function, which the jury is required to perform, is to determine on which side of a controversy the real truth lies, where the testimony as to the material facts is directly in conflict and irreconcilable, and its conclusion in such case, of necessity, depends largely upon the credit to be given to the opposing witnesses, — hence it is universally admitted to be the peculiar province of the jury to determine the credibility of the witnesses. In capital cases, like the present, the accused, if guilty, has the most powerful and urgent of motives to misrepresent the real facts, and, if this court is bound in every case of the kind to .set aside the-conviction merely because the testimony of the accused shows a case of justifiable homicide, it would not be long until there would be no security for life or limb, and trials by jury would become idle and useless ceremonies.”
In view of this conflict in the testimony, it is well to see what instructions were given by the court in reference to the matters, about which there was such conflict. On behalf of the defendants below, and at their request, the court gave to the jury the following instructions among others: 1
38. “You are instructed that, if you find from the evidence that the defendant and Jennings met in the public road and engaged in conversation, and, while so engaged, the deceased Charles Jennings drew a revolver and fired at the defendant without provocation, and if you further find that the circumstances, with which the defendant was then surrounded, were such as to induce in the defendant a reasonable and well grounded belief that he was in danger of losing his life, or receiving great bodily harm, then, if you find the facts as last herein stated, the law is, that the defendant would be justified in defending himself, whether the danger was real or only apparent.
39. “You are instructed that, if you find from the evidence in this case that the deceased, Charles Jennings, without provocation, assaulted William Henry, the defendant, in such a manner as to induce in the said William Henry a reasonable and well grounded belief that he was actually in danger of losing his life, or receiving great bodily harm, and that said William Henry, acting upon such reasonable belief, shot and killed said Charles Jennings, then, if you find the facts as last herein stated, you must find the defendant not guilty.
40. “The court instructs you- that if you find from the evidence that on June 18, 1900, the defendant, William Henry, met the deceased, Charles Jennings, and his wife in a buggy in the public road at the time alleged by the witnesses, and if you further find from the'evidence that the defendant, William Henry, was conducting himself in a quiet, peaceable and orderly manner, and, while the said William Henry was thus conducting- himself in an orderly manner, the deceased, Charles Jennings, without provocation drew a revolver and pointed it at the said Henry, and if you further find that the defendant, Henry, then honestly believed that he was in danger of losing his own life, or receiving great bodily barm, and if you further find from the evidence that said William Henry had reasonable grounds to believe that his life was in danger, and that he, acting upon such belief and moved by such fear, obtained a gun and then honestly thought it was necessary to shoot said Jennings in order to save his own life or prevent receiving great bodily harm, and if you find that, under the influence of such belief, he did shoot and kill said Jennings, then, if you find the facts as last above stated, you must find a verdict of not guilty.”
In addition to these instructions, the court below gave the following instruction upon his own motion:
“Before the jury can convict the defendants, or either of them, of murder, they must be satisfied beyond a reasonable doubt, that the defendant, William Henry, intended to murder Charles Jenning's, that he had this intent at the time of firing, and that he fired with no other intent, and without any reasonable apprehension of receiving from said Charles Jennings great bodily harm. If, after considering all the evidence, you entertain any reasonable doubt as to whether the said William Henry at the time of the shooting was under reasonable apprehension, that the said Charles Jennings intended to kill him, or to inflict upon him great bodily harm, and that he fired the shot in self-defense, then the jury must acquit.”
In connection with these instructions the court also gave, in behalf of defendants below, and at their request, the following instructions:
21. “You are instructed that the jury have no right to disregard the testimony of the defendants through mere caprice, or on the ground alone that they are the defendants, and stand charged with the commission of a crime. The law presumes the defendants to be innocent, and it is your duty to act upon such presumption while considering their evidence, together with all the other evidence, and it is the duty of the jury to fairly and impartially consider their testimony together with all the other testimony in the case.
22. “The court instructs the jury that, as a matter of law, the defendants are competent witnesses to testify in their own behalf, and, when they do so testify, they at once become the same as any other witness, and their credibility is to be tested by and subjected to the same tests as are legally applied to any other witness, and, in determining the degree of credibility that shall be accorded to their testimony, the jury have a right to take into consideration their demeanor and conduct on the witness stand, as well as the reasonableness or unreasonableness of the story told by them, together with all the facts and circumstances in the case, and shall give their testimony such weight as the same is entitled to.”
It thus appears that the court, by its instructions, fairly presented to the jury the question, whether or not the theory of defense, set up by the plaintiff in error, was true and correct or not. Evidently the jury believed the testimony of Alice Jennings, and did not believe the testimony of plaintiff in error and Minnie Henry. After a careful consideration of all the evidence, we áre not able to say that the jury were influenced by prejudice or passion in crediting the testimony of Mrs. Jennings, rather than that of the defendants below.
Second — The question remains whether or not any errors of law were committed by the court below, which would justify this court in disturbing the judgment here sought to be reversed. As was said in Gainey v. People, supra, the determination of the jury “must be accepted as conclusive, unless it is reasonably clear that an error has been committed.”
1. The first error is alleged to have been the refusal of the trial court to grant a motion, made by the plaintiff in error to quash the special panel of jurymen. A special venire of one hundred jurymen was ordered. Later, a venire for a regular panel of thirty was ordered to be drawn for the third and fourth weeks of the term, being the second regular panel for the term. There were found to be but twenty-two names in the box, two of whom were non-residents, and two of whom did not report. Eighteen were reported. The defense challenged the array, and moved to quash the regular panel, which motion was sustained, and the regular panel was quashed. It is claimed by the plaintiff in error that, when the regular panel was quashed, the court was not legally constituted in contemplation of law for the trial of criminal cases. It is not claimed that the special panel was not legally drawn, nor is it insisted that plaintiff in error was in any manner prejudiced by the overruling of the motion to quash the special panel. The record shows that a special venire was afterward issued, as provided by section 13 of chapter 78 of the Revised Statutes, entitled “Jurors;” and the plaintiff in error was not compelled to exhaust his peremptory challenges before the jury was selected. He was not in any manner prejudiced because there was no regular panel, which had been quashed upon his own motion. A strict interpretation of -the statute does not require that the court have a regular panel in attendance while a jury is being selected from a special panel, which has been drawn in accordance with the provisions of the statute. Even if there was an irregularity in the mode of selecting the jurors, such error would not require a reversal of the judgment of conviction, as no prejudice was shown to result to plaintiff in error from such irregularity. (Siebert v. People, 143 Ill. 571; Healy v. People, 177 id. 306.)
2. It is next urged that the'court erred in refusing to grant a severance, and give the plaintiff in error a separate trial, instead of a joint trial with Minnie Henry. The only reason assigned, why plaintiff in error should have had a separate trial, is that he would thereby have had the benefit of the testimony of the witness, Charles Henry, untrammeled by the fact that Charles Henry was the hnsbarid of the co-defendant, .Minnie Henry. The record shows, however, that the court allowed Charles Henry to testify; and the People made no objection to the fact that he was allowed to testify, and consented that his testimony should be given and controlled by instructions. The plaintiff in error had all the benefit of the testimony of Charles Henry, which he could have had, had he been placed on trial alone. It is difficult, therefore, to see how plaintiff in error was prejudiced by the action of the court in this respect. Moreover, a motion for a separate trial in a criminal case is addressed to the sound discretion of the court, and its action in denying the motion is not subject to review, unless it appears that there was an abuse of that discretion. (Doyle v. People, 147 Ill. 394; Gillespie v. People, 176 id. 238; Spies v. People, 122 id. 1). Here, there was no abuse of judicial discretion, in view of the fact that the court allowed Charles Henry to testify, and the People made no objection thereto.
3. It is furthermore contended by the plaintiff in error that the trial court erred in allowing testimony to be introduced in regard to the conduct of the plaintiff in error on Saturday, June 16. The proof as to the occurrence on Saturday, June 16, showed that the plaintiff in error made threats against the deceased Charles Jennings because he had taken up the cattle of Charles Henry while they were trespassing upon the deceased’s premises. It was proper to‘prove what occurred in Nebo on the Saturday in question for the purpose of showing the animus of the plaintiff in error towards the deceased. “Declarations of intention and threats are admissible in evidence, not because they give rise to a presumption of law as to guilt, which they do not, but because from them, in connection with other circumstances, and on proof of the corpus delicti, guilt may be logically inferred. Evidence of this kind, for .this purpose, is' always competent.” (Painter v. People, 147 Ill. 444; Farris v. People, 129 id. 521; Williams v. People, 166 id. 132; Cariton v. People, 150 id. 181; Wharton on Crim. Ev. — 9th ed. — sec. 756; Lyons v. People, 137 Ill. 602; Wilson v. People, 94 id. 299).
Plaintiff in error insists that proof of what occurred on Saturday in Nebo was proof of a distinct, independent and substantive offense. We do not think that the Nebo affair was “a distinct, independent and substantive offense,” as contemplated by the law. The proof, when closely examined, shows that the same thought that was in the mind of plaintiff in error in Nebo on Saturday concerning the action of the deceased in reference to the cows of Charles Henry was in the mind of plaintiff in error when he met Jennings and his wife on Monday. Hence, it was proper to show everything that occurred in Nebo on Saturday, in order to show the intent or condition. of mind of the defendant. The most, that can be said of the conduct of the plaintiff in error on the previous Saturday, is that, in connection with his threats and abusive language, he appeared to be guilty of an attempted assault upon Charles Jennings. But one criminal act may be shown as evidence of another, where such a connection between them exists in the mind of the actor, as links them together for some purpose, which he intended to accomplish. (Shaffner v. Commonwealth, 72 Pa. St. 65; Farris v. People, supra). In Farris v. People, supra, we said: “When facts and circumstances amount to proof of another crime than that charged, and there is ground to believe that the crime charged grew out of it or was in any way caused by it, such facts and circumstances may be proved, to show the quo animo of the accused.” We are of the opinion for this reason that there was no error in allowing testimony to be introduced of the occurrence which took place on Saturday.
4. Complaint is made of remarks made by the State’s attorney during the argument of the case. These remarks had reference to the absence of the revolver claimed to have been used by the deceased, and which was not produced by either side upon the trial. In the course of the trial, each side charged the other with withholding the revolver, and failing to produce it for the examination of the jury. The State charged that, when the plaintiff in error shot Charles Jennings, the revolver, if he had one, must have fallen out of his hand into the roadway, and that it was picked up by the plaintiff in error after the horses ran away toward the north and carried Mrs. Jennings and her dying husband up to the farm of the Guthries. On the other hand, counsel for plaintiff in error made certain remarks, and asked certain questions, calculated to convey the impression to the jury that Mrs. Jennings had disposed of the revolver by throwing it into a well upon the Guthrie place. There was really no evidence to show that either side was guilty of withholding the revolver, but the remarks made in reference to it were inferences drawn by counsel from the •circumstances, developed by the proof as to its disappearance-. There is nothing to show that the minds of the jurymen were prejudiced in any way by these bickerings between counsel. The jury were told in instructions, given in behalf of the defendant, that it was their duty to decide the case wholly upon the evidence and nothing else, and, if either counsel had made any statement which was not justified by or did not grow out of the evidence, it would be their duty to disregard such statement. “The trial judge should always see that the line of argument is kept within reasonable bounds, and not allow the defendant to be convicted or prejudiced on account of real or imaginary crimes for which he is not upon trial. And, unless for a palpable abuse of discretion in this regard, manifestly tending to an improper conviction, there should be no reversal.” (Bulliner v. People, 95. Ill. 394). We discover no abuse of discretion in this respect in the present record. We said in Spahn v. People, 137 Ill. 538: “Some reliance must be placed upon the common sense and discrimination of the jury, where counsel seek to draw improper inferences from the evidence. While arguments of that character are not to be approved or looked upon with favor, still they will not ordinarily be deemed sufficient to necessitate a reversal of the judgment, unless they are of such a character as to raise an inference that the jury were probably misled of improperly influenced thereby.” We do not think that such was the case here.
5. Complaint is also made that the court permitted the buggy or phaeton, in which the deceased was riding when he was shot, to be produced in court and exhibited to the jury, together with the impression made upon the cushion of such vehicle by the shot which passed through the body of the deceased. The clothes, worn by the deceased at the time, were also brought into court. The presence of the phaeton enabled the witness to explain to the jury the position of the deceased at the time he received the wound, and the position of the plaintiff in error at the time he fired the shot, as well as the range of the shot fired, which went through the body of the deceased, and lodged in the back cushion of the phaeton. The clothes showed also that they had been burned, which tended to prove the nearness of the position of plaintiff in error to that of the deceased when the shot was fired. This court has held that physical objects, which form a part of, or serve to illustrate, the transaction or occurrence, which is the subject of judicial investigation, may be displayed before the jury, and formally introduced in evidence. (Painter v. People, 147 Ill. 444; Tudor Iron Works v. Weber, 129 id. 535).
6. The next subject of complaint, urged upon our attention by counsel for plaintiff in error, relates to instructions given and refused by the trial court. Instruction numbered 4, given for the People, is complained of, because it defines the crime of murder, whereas the jury had a right to find the defendants guilty of manslaughter, if in their opinion the evidence reduced the offense to the grade of manslaughter. Undoubtedly, under the indictment for murder, the jury could render a verdict of manslaughter, and they were fully instructed, in the instructions which were given, as to the proper definition of manslaughter. The jury were also told, in instruction numbered 23 given for the People, that “under the indictment in this case, which is for murder, the jury may find the defendants guilty of manslaughter if they are not satisfied beyond a reasonable doubt that the defendants, or either of them, are guilty of the crime of murder, and are satisfied beyond a reasonable doubt, that they are guilty of manslaughter as defined in these instructions.” The fact, that the instruction complained of, was limited to a definition of murder without saying anything about manslaughter, did not prevent the jury from finding the defendant guilty of manslaughter alone, if such had been their conclusion from the evidence, in view of the other instructions given upon the subject. The instruction in question is also objected to, because it required the jury to find, among other things, that the killing was not done in self-defense. The contention is that the instruction ignores the law of apparent self-defense, and limits self-defense to actual self-defense. We do not think that the instruction complained of can bear any such construction. The law does not make a distinction between actual and apparent self-defense, but between danger which is real, and danger which is apparent. A number of instructions were given, which told the jury that, if plaintiff in error was assaulted in such a manner as to induce in him a reasonable belief that he was in danger of losing his life, or suffering great bodily harm, he would be justified in defending himself, and taking the life of his assailant if necessary, although the danger was not real, but only apparent. The fact, that the instruction complained of used the word “self-' defense” without drawing the attention of the jury to self-defense in view of an apparent instead of a real danger, worked no harm or prejudice to the plaintiff in error. By the instruction in question the jury were not instructed to find the defendants below guilty of murder, but were only told what the law pronounced murder, and, therefore, the instruction is not subject to the criticism, passed by this court in several cases upon instructions which ended thus: “and you should find him guilty of murder.” (Panton v. People, 114 Ill. 505; Lynn v. People, 170 id. 527; Steiner v. People, 187 id. 244). On a trial for murder it is not error to give an instruction, embodying the statutory definition of the crime, and stating in the language of the statute when and under what circumstances malice will be implied. (Alexander v. People, 96 Ill. 96; Crowell v. People, 190 id. 508; Wallace v. People, 159 id. 446).
Complaint is also made of an instruction given for the People, which referred to the taking of the life of another by shooting him with the deliberate intention of killing him without just cause or provocation. It is said that this instruction was calculated to induce the jury to conclude that, although plaintiff in error had beén attacked by Jennings, yet at the instant the shot was fired there was not positive real danger or absolute necessity for firing such shot. The instruction is not justly subject to the criticism made upon it. Where one is acting in self-defense, either from real or apparent danger, the killing is not without just cause, because self-defense in law is just cause. The instructions should be read as one charge. And it is sufficient if the series of instructions, considered as a whole, fully and fairly announce the matters of law applicable to the theory of the prosecution and defense. (Lilly v. People, 148 Ill. 467; Crowell v. People, supra). The instruction complained of, when taken in connection with instructions 37, 39 and 40 given for the defense, correctly states the law, and could not have misled the jury. Instructions 39 and 40 have al- • ready been set forth. Instruction 37 told the jury “that, in the determination of the question in this case as to whether there was or was not sufficient provocation, and as to whether the circumstances show an abandoned and malignant heart, it is yoür duty to take into consideration all the facts and circumstances, as shown by the evidence, for the purpose of determining the question as to whether the defendant was or was not actuated from motives of protecting his own life, or his body from serious injury.” By instruction 37i the jury were also told “that the law presumes malice from the unlawful and deliberate use of a dangerous and deadl)7 weapon, but the law is, also, that the law does not presume malice from the deliberate use of a dangerous and deadly weapon, when used in necessary or apparent necessary self-defense.”
Counsel for plaintiff in error make this complaint against two instructions read together: that they merely require the killing to be satisfactorily shown beyond all reasonable doubt without requiring such showing to be from the evidence. The criticism is without force, when the second of the instructions in question is read as a whole. Counsel quote this part of the instruction: “If the killing of the person mentioned in the indictment be satisfactorily shown beyond all reasonable doubt to have been the act of the defendant, then the law pronounces it murder,” but the instruction proceeds as follows, using words which counsel have omitted or overlooked: “unless the defendants have shown or it appears by the evidence for the People that circumstances existed excusing or justifying the act or mitigating it, so as to make it manslaughter.” When the, latter part of the instruction is read in connection with the former part, the objection made to it disappears. Moreover, the jury were told in instruction numbered 32, given for the defendants, “that the statute declares that, when the killing is proven, the burden of proof is cast on the defendant to prove circumstances of mitigation, or that justify or excuse the homicide, unless such proof arises out of the evidence for the People. This provision of the statute does not require the defendant, when he assumes the burden of proof, to satisfactorily establish such defense. But, although the killing may have been proven, and the defendant has the burden of proof cast upon him to prove circumstances of mitigation, or that justify or excuse, the burden is still on the People to prove the guilt of the defendants. And, uqless the People have established by competent evidence, to the exclusion of every reasonable doubt, guilt, in manner and form as charged in the indictment, it is your duty under jrour oaths, to find the defendant not guilty.”
Another instruction is objected to, because in it the jury were told that the reasonable doubt they were permitted to entertain must be as to the guilt of the accused on the whole of the evidence, and not as to any particular fact in the case. This instruction is in accordance with the rule announced by this court in a number of cases. In Weaver v. People, 132 Ill. 536. we said (p, 542): “The rule is so well settled by repeated decisions, that the reasonable doubt that will justify and require an acquittal must be as to the guilt of the accused when the whole of the evidence is considered, that citation of cases is unnecessary.” (See also Gariton v. People, 150 Ill. 181; Williams v. People, 166 id. 132). Moreover, the court gave three other instructions in behalf of the People, and two in behalf of the defendants, upon the subject of reasonable doubt which, when read in connection with the instruction complained of, could not have failed to enable the jury to properly understand the law, as it has been laid down in numerous decisions of this court upon the question of reasonable doubt.
Complaint is also made of an instruction, given for the People, which reads as follows:
“The court instructs the jury that, although the defendants have a right to be sworn, and to give testimony in their behalf, the jury are not bound to believe their testimony, but they are bound to give it such weight as they believe it is entitled to; and their credibility and the weight to be attached to their testimony are matters exclusively for the jury, and the defendants’ interest in the result of the trial is a matter proper to be taken into consideration by the jury in determining what weight ought to be given to their testimony.”
The instruction thus complained of is a literal copy of instruction numbered 6, set forth in Bressler v. People, 117 Ill. 422, and there approved by this court. In Hirsolimán v. People, 101 Ill. 568, this court said (p. 576): “The jury were not bound to believe the evidence of the defendant any further than it may have been corroborated by other credible evidence, (Gainey v. People, 97 Ill. 270,) and we perceive no impropriety in saying so to them. The instruction, in substance, is sustained by Crabtree v. Hagenbaugh, 25 Ill. 233; Yundt v. Hartrunft, 41 id. 9; Miller v. People, 39 id, 457.” (See also Bulliner v. People, 95 Ill. 394; Chambers v. People, 105 id. 409). The instruction complained of must be read in connection with instructions, numbered 21 and 22 given for the defendants, which have already been hereinbefore set forth. In the latter instructions the jury were told that it was their duty to consider the testimony of the defendants fairly and impartially, and that it should be tested by, and subjected to, the same tests as were applied to the testimony of other witnesses. When all the instructions, given on the subject of the testimony of the defendants by the People and by the defendants, are read together, the objections made by counsel are overcome. (See also Doyle v. People, 147 Ill. 394; Siebert v. People, 143 id. 571).
Another instruction given for the People is complained of, which reads as follows:
“The jury are further instructed that, if they believe from the evidence beyond a reasonable doubt that the defendant, William Henry, brought on the difficulty between the deceased, Charles Jennings, and himself, at the time of the killing, and that the defendant was the first assailant, he cannot avail himself of the right of self-defense, in order to shield himself from the consequences of the killing of Charles Jennings, if such is the proof, however imminent the danger, in which he may have found himself in the progress of the affray which he so brought on himself; unless you further believe that the defendant, in good faith endeavored to decline any further struggle before the mortal shot was fired.”
This instruction is objected to by counsel for plaintiff in error, upon the alleged ground that it assumes that there was a difficulty, and that there was an affray. There must have been a difficulty and an affray, or the killing would not have taken place. The evidence clearly shows that there was a difficulty. The instruction complained of is similar to an instruction, given in the case of Gainey v. People, 97 Ill. 270, and uses almost the same language as the instruction given in the latter case. The same objections, which are here made to the instruction, were also made in the Gainey case, and were there held to be untenable.
Another instruction given for the People is complained of which reads as follows:
“You are further instructed that although you may believe from the evidence that the deceased, Charles Jennings, was armed with a revolver at the time of the killing, and that he made the first attack upon the defendant, William Henry, yet, if you further believe from the evidence beyond a reasonable doubt, that at the time the mortal shot was fired by defendant, William Henry, it was not necessary, or apparently necessary, in order to save his own life or to prevent his receiving great bodily harm, then the killing would not be justifiable under the plea of self-defense interposed in this case.” One of the questions in issue upon the trial was, whether Jennings was the assailant and made an attack upon the plaintiff in error, or not. Instructions 38 and 40, asked by the defendants below and given for them, were based upon the same disputed facts as the instruction here complained of. We fail to see that the instruction is erroneous.
An instruction was also given for the People in the following words:
“The jury are instructed that, before the defendant, William Henry, can avail himself of the right of self-defense, it must appear that, at the time of the.killing, 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 deceased, Charles Jennings, was absolutely necessary, or apparently necessary, and it must also appear that the deceased, Charles Jennings, was the first assailant, or that the defendant, William Henry, had in good faith endeavored to decline .any further struggle before the mortal shot was fired.”
The jury could not have been misled by this instruction, which is substantially in the language of the statute, when the instruction is considered in connection with other instructions bearing upon the same subject, and when the whole series of instructions is considered together. It is justified by the decision in the case of Gainey v. People, supra.
Instruction, numbered 17 given for the People, could not have misled the jury for the same reasons referred to above in connection with the last two instructions herein quoted. (Roach v. People, 77 Ill. 25).
Instruction numbered 18 given for the People, which stated to the jury when and under what circumstances the killing would amount to manslaughter, is complained of by the plaintiff in error, mainly upon the ground that the instruction uses these words at the beginning thereof: “If you believe from the evidence beyond a reasonable doubt that the defendant, William Henry, sought for and provoked the difficulty with'the said Charles Jennings on the 18th day of June, A.-D. 1900,” etc. Counsel say there is no evidence in the record, tending to show plaintiff in error sought for and provoked a difficulty with the deceased. We think that the evidence, given by Mrs. Jennings, tended to show that the plaintiff in error did seek for and provoke such difficulty. It was for the jury to determine whether she told the truth or not.
In this case the court gave to the jury twenty-four instructions, asked by the People, and forty-four instructions, asked by defendants below, beside two instructions given by the court upon its own motion. After a careful examination of all these instructions, we are of the opinion that, when considered as a series, they fairly presented the law, and that no substantial error has been pointed out by counsel for plaintiff in error. In determining the propriety of giving an instruction, it must be considered in connection with other instructions upon the same subject, and if the law has been fairly presented, this court will not reverse because the instruction objected to does' not contain all the law on the subject, unless the peculiar circumstances of the case render the instruction misleading. (McCoy v. People, 175 Ill. 224; Gilman v. People, 178 id. 19; Little v. People, 157 id. 153; Lilly v. People, 148 id. 467). The refusal of proper instructions is not ground for a reversal, where others, stating correctly the same principles, are given. (Bland v. People, 3 Scam. 364; Huston v. People, 121 Ill. 497; Gannon v. People, 127 id. 507).
Counsel for plaintiff in error complain of the refusal of the court to give some thirteen instructions, asked for the defendants below, which were refused. After a careful examination of the refused instructions, and comparing them with the instructions given for both sides, we are satisfied that all that was material in the refused instructions was embodied in the instructions which wTere given. The court need not repeat the same instruction for both parties; it is enough if the jury has been once instructed upon the proposition. (Schintz v. People, 178 Ill. 320).
Counsel for plaintiff in error also complain that the court refused one or two instructions, asked by the defendants below, which limited the attention of the jury to the words used by plaintiff in error, William Henry, on Saturday, the 16th of June, and instructed them to determine whether such words amounted to a threat or intention then deliberately formed to kill the deceased. The refusal of these instructions was not improper, inasmuch as the evidence as to the occurrence of Saturday was admitted to show the animus of plaintiff in error at the time towards the deceased, and also that he made an attempt at that time to assault the deceased. The law does not require that the court instruct the jury upon every question as to why evidence is admitted, or as to the purpose for which evidence is admitted. If .this were allowed, instructions would reach an interminable length.
7. It is furthermore claimed by the plaintiff in error that the trial court erred in refusing to grant a new trial. The plaintiff in error produced affidavits by two parties, that they had found in the roadway somewhere near the place, where the killing occurred on the 18th of June, a revolver. Nothing appears to have been known by the State or by the defense about this revolver, until after the trial of the cause and the rendition of the verdict therein. A new trial was asked in order that, upon the second trial, the defense might introduce the revolver so found. It is not perceived how the result would have been different, or how the evidence upon the trial would be any different, if such a revolver were produced, assuming that it was truly the revolver used at the time of the killing. There was testimony to the effect that a revolver was in the possession of the deceased, Charles Jennings, and that it was fired at the time of the difficulty between him and the plaintiff in error. No different view of the question could be presented to the jury upon the production of the revolver from that which was "presented to them upon the former trial. If the revolver were introduced upon a second trial, it would merely amount to newly discovered evidence, cumulative in its character. A new trial will not be granted on the ground of newly discovered evidence, where it is simply cumulative and inconclusive. Nor will a new trial be granted on the ground of newly discovered evidence which iá not decisive, or where there has been a want of proper diligence to procure the evidence on the trial. Where an affidavit of newly discovered evidence discloses nothing but cumulative evidence and evidence which, if introduced on the trial, could not change the result, a motion for new trial based upon it is properly denied. The newly discovered evidence on a motion for new trial must be clearly conclusive in its character to require the court to grant a new trial. (Bulliner v. People, supra; Dyer v. People, 84 Ill. 624; Williams v. People, 164 id. 481; Bean v. People, 124 id. 576; Spahn v. People, 137 id. 538; Adams v. People, 47 id. 376; Sahlinger v. People, 102 id. 241; Kinney v. People, 108 id. 519; Feinberg v. People, 174 id. 609). Upon none of the. grounds thus stated, which would justify the granting of a new trial upon the discovery of new evidence, was the plaintiff in error entitled to have his motion for a new trial granted.
After a careful examination of the whole record, we discover no sufficient ground for disturbing the judgment of the court below. Accordingly, the judgment of the circuit court of Pike county is affirmed.
Judgment affirmed.