Post, J.
This is a petition in error and presents for review a judgment of the district court for Saunders county, whereby the plaintiff in error was convicted of an assault with intent to murder. The offense, it seems, was committed at a dance in a saloon in the village of Touhy on the 8th day of September, 1893. Of those present a number, including the prosecuting witness, Ganson Stoughton, had, during the evening, indulged freely in the use of liquor, and were, at the time of the assault, about two hours after midnight, ap[339]*339.parently intoxicated. Shortly before the assault there was a quarrel between Anton Krelmavy, a brother of the prisoner, and one Greever, which resulted in a scuffle on the-porch or sidewalk in front of the saloop. The prosecutor,, according to the witnesses for the state, insisted that they should go away from the saloon to fight, and, according to the defendant’s witnesses, he interfered to prevent others-from separating the combatants. There is evidence tending to prove that during the scuffle above mentioned there-was some controversy between the prosecutor and Frank Krelmavy, also a brother of the prisoner, during which blows were exchanged by them. They were soon separated* when Stoughton, according to the witness for the defense, retired, saying, “You son of a b — , I’ll fix you,” and returned a minute and a half or two minutes later with a club or stick of some kind in his hand. He said, presumably addressing the prisoner and his brothers, “Now, d — n you fellows, come on. I’ll fix you. I’ll knock your brains out.” He made .no attempt to strike, but retreated backward from the porch eight or ten steps, when the prisoner, vdio had approached him from behind, struck him a blow on the head with a garden hoe, instantly knocking him down and fracturing his skull so that it- became neces-. sary to remove fifteen or more pieces thereof. *
The attack upon the judgment in the oral argument-,and also in the excellent brief submitted by counsel for the prisoner, is directed in particular against the eleventh instruction given by the court on its own motion, as follows 5 “ The law presumes that all persons intend the natural andi probable consequences of their acts, and where it appears, that one person has assaulted another with a dangerous and deadly weapon, the presumption is that he intends the natural and probable consequences of his acts. If you believe from the evidence, beyond a reasonable doubt, that the defendant assaulted the witness Stoughton with a garden hoe, struck him on the head with such force and violence as to [340]*340crush his skull, and further find from the evidence, beyond a reasonable doubt, that such assault was made purposely and maliciously, then, in such case, you would be justified in finding the defendant guilty as charged in the information.”
1. The first objection to the above instruction is that it can only be interpreted to mean “ that when one assaults another with a deadly and dangerous weapon, it raises a legal presumption that he intends to kill.” It was said in Curry v. State, 4 Neb., 545, that “a person is presumed to do that which he voluntarily and willfully does in fact do; but if the intent is to be carried beyond the result actually produced by the acts of the accused, evidence must be introduced to justify the jury in so finding.” The above is substantially the rule as stated in Commonwealth v. Webster, 5 Cush. [Mass.], 305, and may be accepted as the law of this state. We do not, however, interpret the rule to require in every case independent evidence of the particular intention. On the contrary, the circumstances attending the principal act may be of such a character as alone to exclude every rational hypothesis except the existence of the specific intent charged. According to the modern and more reasonable- view the test in all such cases is a rule of logic rather than a rule of law; and while a direction to the effect that men are presumed to intend the natural and probable consequences of their voluntary acts is generally held unobjectionable, what is meant thereby is that the jury are at liberty, if the circumstances warrant, to infer the intent from the act. Such inference, in the language of Dr. Wharton, is not one of law but of probable reasoning as to which the court may lay down logical tests for the guidances of the jury, but can impose no positive binding rule. (Wharton, Criminal Evidence, secs. 735, 736.) Judged by that test it may be conceded that the proposition stated by the court is incomplete, and unless supplemented by other instructions, merits the criti[341]*341cism to which it has been subjected. But in another paragraph the jury were cautioned as follows: “The force with which a blow was struck, where it does not result in death, is evidence bearing upon the question of the intent with which the blow was struck. But the fact that the blow might have produced death is not conclusive evidence that the assaulting party intended to kill, but is simply a fact to be weighed and considered as evidence in determining the intent.” By a third paragraph they were further cautioned as follows: “You are instructed that the intent being one of the principal elements of the crime charged against the defendant, it is necessary for the state to prove beyond a reasonable doubt that the assault was made upon the said Ganson Stoughton with malice aforethought, or with the intention previously formed to kill him, and if you entertain a reasonable doubt of the existence of such intent, then you must acquit the defendant of assault with intent to murder.” Reading the several paragraphs of the charge together we can conceive of no just ground for complaint by the prisoner. As a statement of the law it is above criticism by him, and is, as we shall presently see, fully warranted by the facts of the case.
2. It is next contended that the instruction is erroneous, in consequence of the assumption therein that a garden hoe is a deadly weapon. There is an apparent diversity of opinion respecting the subject suggested. The question whether a weapon is deadly, within the meaning of the law of homicide, is by some writers said to be one of fact for the jury. Mr. Bishop, on the other hand, says: “It [a deadly weapon] is a weapon likely to produce death, or great bodily injury. In a case of doubt, the manner in which it was used may be taken into the account in determining whether or not it was deadly. And when the facts are all established, the question of whether a particular weapon was deadly or not is of law for the court. Yet practically, as in most instances, the establishment of the facts awaits the [342]*342rendition of the verdict the jury must pass upon this question, under instructions from the court.” (Bishop, Statutory Crimes, 320.) The doctrine of the well-considered cases may be thus summarized: Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion in that respect, the question whether or not it is deadly, within the foregoing definition, is one of law, and the court must take the responsibility of so declaring. But where it may or may not be likely to produce fatal results, according to the manner of its use, or the part of the body at which the blow is aimed, its character is one of fact to be determined by the jury. By a reference to the instruction complained of it will be observed that a garden hoe is not therein declared to be per -se a deadly weapon.
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Post, J.
This is a petition in error and presents for review a judgment of the district court for Saunders county, whereby the plaintiff in error was convicted of an assault with intent to murder. The offense, it seems, was committed at a dance in a saloon in the village of Touhy on the 8th day of September, 1893. Of those present a number, including the prosecuting witness, Ganson Stoughton, had, during the evening, indulged freely in the use of liquor, and were, at the time of the assault, about two hours after midnight, ap[339]*339.parently intoxicated. Shortly before the assault there was a quarrel between Anton Krelmavy, a brother of the prisoner, and one Greever, which resulted in a scuffle on the-porch or sidewalk in front of the saloop. The prosecutor,, according to the witnesses for the state, insisted that they should go away from the saloon to fight, and, according to the defendant’s witnesses, he interfered to prevent others-from separating the combatants. There is evidence tending to prove that during the scuffle above mentioned there-was some controversy between the prosecutor and Frank Krelmavy, also a brother of the prisoner, during which blows were exchanged by them. They were soon separated* when Stoughton, according to the witness for the defense, retired, saying, “You son of a b — , I’ll fix you,” and returned a minute and a half or two minutes later with a club or stick of some kind in his hand. He said, presumably addressing the prisoner and his brothers, “Now, d — n you fellows, come on. I’ll fix you. I’ll knock your brains out.” He made .no attempt to strike, but retreated backward from the porch eight or ten steps, when the prisoner, vdio had approached him from behind, struck him a blow on the head with a garden hoe, instantly knocking him down and fracturing his skull so that it- became neces-. sary to remove fifteen or more pieces thereof. *
The attack upon the judgment in the oral argument-,and also in the excellent brief submitted by counsel for the prisoner, is directed in particular against the eleventh instruction given by the court on its own motion, as follows 5 “ The law presumes that all persons intend the natural andi probable consequences of their acts, and where it appears, that one person has assaulted another with a dangerous and deadly weapon, the presumption is that he intends the natural and probable consequences of his acts. If you believe from the evidence, beyond a reasonable doubt, that the defendant assaulted the witness Stoughton with a garden hoe, struck him on the head with such force and violence as to [340]*340crush his skull, and further find from the evidence, beyond a reasonable doubt, that such assault was made purposely and maliciously, then, in such case, you would be justified in finding the defendant guilty as charged in the information.”
1. The first objection to the above instruction is that it can only be interpreted to mean “ that when one assaults another with a deadly and dangerous weapon, it raises a legal presumption that he intends to kill.” It was said in Curry v. State, 4 Neb., 545, that “a person is presumed to do that which he voluntarily and willfully does in fact do; but if the intent is to be carried beyond the result actually produced by the acts of the accused, evidence must be introduced to justify the jury in so finding.” The above is substantially the rule as stated in Commonwealth v. Webster, 5 Cush. [Mass.], 305, and may be accepted as the law of this state. We do not, however, interpret the rule to require in every case independent evidence of the particular intention. On the contrary, the circumstances attending the principal act may be of such a character as alone to exclude every rational hypothesis except the existence of the specific intent charged. According to the modern and more reasonable- view the test in all such cases is a rule of logic rather than a rule of law; and while a direction to the effect that men are presumed to intend the natural and probable consequences of their voluntary acts is generally held unobjectionable, what is meant thereby is that the jury are at liberty, if the circumstances warrant, to infer the intent from the act. Such inference, in the language of Dr. Wharton, is not one of law but of probable reasoning as to which the court may lay down logical tests for the guidances of the jury, but can impose no positive binding rule. (Wharton, Criminal Evidence, secs. 735, 736.) Judged by that test it may be conceded that the proposition stated by the court is incomplete, and unless supplemented by other instructions, merits the criti[341]*341cism to which it has been subjected. But in another paragraph the jury were cautioned as follows: “The force with which a blow was struck, where it does not result in death, is evidence bearing upon the question of the intent with which the blow was struck. But the fact that the blow might have produced death is not conclusive evidence that the assaulting party intended to kill, but is simply a fact to be weighed and considered as evidence in determining the intent.” By a third paragraph they were further cautioned as follows: “You are instructed that the intent being one of the principal elements of the crime charged against the defendant, it is necessary for the state to prove beyond a reasonable doubt that the assault was made upon the said Ganson Stoughton with malice aforethought, or with the intention previously formed to kill him, and if you entertain a reasonable doubt of the existence of such intent, then you must acquit the defendant of assault with intent to murder.” Reading the several paragraphs of the charge together we can conceive of no just ground for complaint by the prisoner. As a statement of the law it is above criticism by him, and is, as we shall presently see, fully warranted by the facts of the case.
2. It is next contended that the instruction is erroneous, in consequence of the assumption therein that a garden hoe is a deadly weapon. There is an apparent diversity of opinion respecting the subject suggested. The question whether a weapon is deadly, within the meaning of the law of homicide, is by some writers said to be one of fact for the jury. Mr. Bishop, on the other hand, says: “It [a deadly weapon] is a weapon likely to produce death, or great bodily injury. In a case of doubt, the manner in which it was used may be taken into the account in determining whether or not it was deadly. And when the facts are all established, the question of whether a particular weapon was deadly or not is of law for the court. Yet practically, as in most instances, the establishment of the facts awaits the [342]*342rendition of the verdict the jury must pass upon this question, under instructions from the court.” (Bishop, Statutory Crimes, 320.) The doctrine of the well-considered cases may be thus summarized: Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion in that respect, the question whether or not it is deadly, within the foregoing definition, is one of law, and the court must take the responsibility of so declaring. But where it may or may not be likely to produce fatal results, according to the manner of its use, or the part of the body at which the blow is aimed, its character is one of fact to be determined by the jury. By a reference to the instruction complained of it will be observed that a garden hoe is not therein declared to be per -se a deadly weapon. The substance of the language used is that the jury would be warranted in finding that the weapon was in fact a deadly one, if satisfied beyond a reasonable doubt that the prisoner therewith maliciously struck the prosecutor a blow on the head with such force as to crush his skull, and that such blow was well calculated to produce death. In short, the character of the weapon was made to depend both upon the manner and the intention with which it was used. The instruction is therefore in strict accord with the rule stated. It is also unquestionably warranted by the evidence. Counsel, in their brief, speak of the assault as having been made with a hoe handle, an assumption unwarranted by the record. The only evidence with respect to the weapon is that it was a hoe of the ordinary kind, which had recently been used in mixing mortar. The blow was struck not with the handle, but with the back part, or iron shank which connects the steel blade with the handle, and lateral cuts, at right angles with the principal wound, indicate that the injury was produced both by the shank and the back part of the blade of the hoe. We must rememfoer, too, that the prosecutor was struck on the back of the [343]*343head, not lightly, but evidently with considerable force, and that his life is probably due to the fact that the force of the blow was in some measure arrested by his hat. The instruction is therefore not objectionable on either ground urged. Indeed, it is probable, although not decided, that the court would have been warranted in charging, as a matter of law, in view of the circumstances attending the assault, that the hoe was a deadly weapon.
3. Numerous instructions were asked bearing upon the subject of self-defense, and their refusal is also assigned as error. At the conclusion of the argument we were strongly impressed with the soundness of that contention, but a careful reading of the record has convinced us that there is no evidence whatever to which such a charge could apply. It is not necessary in this connection to discuss at length the law of self-defense. It is sufficient for present purposes' that in order to lay a foundation for the submission of that ■subject there must be some evidence tending to prove that the act in question appeared to be necessary for the protection of the person of the prisoner or another. The prisoner in the case at bar did not testify in his own behalf, and we have searched the record in vain for such foundation. The prosecutor, it is true, was intoxicated and evidently abusive, but his attitude when assaulted was in no sense aggressive. ■Judged by the testimony for the prisoner, he appears rather to have been acting on the defensive and, as we have seen, was retreating backward from the persons in front of the saloon when he was struck from behind by the prisoner. There being no error in the rulings assigned, the judgment of the district court must be
Affirmed.