Christiancy J.
The evidence on the part of the prosecution, as well as that on the defense, showed very clearly that the riotous assembly, which gathered about the house of the defendant, on the night of the homicide, grew out of, and was directly connected with, that which had assembled there the night before, and had the same object in view; that Cowles, the deceased, on the day intervening, went around to several boys and young men, to induce them to go the next (second) night; that he was active in getting up this second riotous assemblage, and was elected their captain. All the proceedings and objects therefore of both assemblages, the provocation thereby to the defendant, and his action in opposition to them, constituted together one entire transaction, or the res gestee. And as it was also clear that the homicide, whatever its legal character, resulted from these assemblages, and their riotous conduct, and would not otherwise have occurred, it was not only the right, but the duty of the prosecution to show generally the transaction as a whole, its nature and its objects, whether its tendency should be to show the guilt or innocence of the defendant. — Maher v. The People, 10 Mich. 429, and Brown v. The People, 17 Mich. 212. This was not only necessary in fairness to the prisoner, but- to enable the jury, from a view of the whole, [328]*328to estimate and apply each particular item of evidence which might be adduced in any stage of the case.
But whether the prosecution did this or not, it was the clear right of the defendant, either by cross-examination, or by witnesses introduced in his defense, to go fully into all matters thus constituting the res gestee. He could not be bound by the showing on the part of the prosecution, but was at liberty to show that the transaction as a whole, or in any .of its parts or purposes, was different from that shown by the prosecution. And for this purpose it was competent for him to show any act or declaration' of any individual of either assemblage in furtherance of- the common object, or in reference to it, from the inception to the close of the transaction; their combination or concert having already sufficiently been shown.
The defendant undertook to do this by the cross-examination of the prosecutor’s witnesses, and the proposed cross-examination was strictly legitimate under any rule ever applied to cross-examination, as it related directly to matters called out on the direct examination. The prosecutor’s witnesses, some of the rioters themselves, had already given evidence, tending to show that the only object of the rioters was to go upon the defendant’s premises for the purpose, as they expressed it, of “horning the defendant,” who had lately been married, and that they contemplated no violence or injury to person or property. The defendant offered to show, on cross-examination, that at the time the rioters made the arrangement to assemble the second night on the defendant’s premises, their running away the night before was talked of by them, and was called a cowardly act; that they were going to get a company together that (second) night, who were not afraid, and would stand fire, and stay on the premises, and horn the defendant, whether he liked it or not; and that they would not go off the premises or be driven off.
This cross-examination the court erroneously refused to [329]*329permit; and the error would not have been less, had the defendant offered to show the same facts by witnesses of his own.
The court equally erred in refusing the defendant the right to show that Cowles, the decreased, had said substantially the same thing to one of the witnesses on the part of the prosecution.
Henry Butler, who was one of the rioters on the first night (though not upon the second), and who had testified fully on the part of the people in reference to the proceedings of that night, and had also testified that defendant had confessed having struck the deceased three times on the last night, was asked on cross-examination whether he .did not, at the house of Mrs. Barret, a few nights after, state to her, that he was not there the first night as one of the company of the homers, but that he happened there as a mere looker on, and took no part or lot in it whatever ; to which he answered in the negative. Similar ques-. • tions were asked him as to similar statements to other persons — all which he denied. • These questions were avowedly asked for the purpose of laying a foundation for impeaching him by showing that he had made statements out of court in reference to the matter, different from those now made under oath.
The court holding that such statements if made, related to matters wholly collateral, and not to the res gestee, refused to allow the defendant to contradict him, by showing that he had made the statements which he denied having made. This also was erroneous. The statements related to the res gestee, and the proposed contradiction, if shown, would have tended seriously to weaken his credibility.
Various questions were raised upon the charge to the jury, and several special requests were made by defendant to charge upon specific points, some of which were refused [330]*330or charged in a modified form; and some were based upon hypotheses not warranted by any evidence in the cause.
We think it better to indicate what should have been the principles of the charge as a whole upon the points in dispute, than to consider the detached parts presented by the several requests to charge, which would tend rather to confuse, than elucidate the real questions involved.
No fault seems to have been found’ with the charge as it related to the distinction between murder in the first and second degree, or between murder and manslaughter.
The' object of all the defendant’s special requests was to obtain from the court a charge which should authorize or require the jury, upon certain supposed states of facts, to and the killing excusable homicide.
A correct idea of excusable homicide is not perhaps easily expressed by a brief abstract definition, without special reference to the facts of particular cases. We accordingly find the latter ■ mode adopted in all the books. It has been thought safer to illustrate by particular instances, than to. undertake to define, in advance, all the particular elements or combinations of facts which may render homicide excusable.
Of course, the enumeration of particular cases, does not exclude any others falling within the like principles.
But the principles which underlie and result from all the cases in which the homicide has been held excusable in self-defense, or in defense of one’s family or persons standing in particular relation to him or of his property, are so fully and accurately stated in the opinion of my brother Campbell in Pond v. The People, 8 Mich. 150, that an attempt to enumerate them here, would be a mere repetition. The principles there laid down, apply equally to the present case upon certain states of fact which it was competent for the jury to find from the evidence.
That case, however, differed from the present in certain [331]*331important particulars. There an actual attack upon the defendant’s dwelling was going on, and the rioters were in the act of demolishing it, and a servant of the defendant, then in the house, was being violently and, to all appearances, dangerously assailed when the fatal shot was fired.
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Christiancy J.
The evidence on the part of the prosecution, as well as that on the defense, showed very clearly that the riotous assembly, which gathered about the house of the defendant, on the night of the homicide, grew out of, and was directly connected with, that which had assembled there the night before, and had the same object in view; that Cowles, the deceased, on the day intervening, went around to several boys and young men, to induce them to go the next (second) night; that he was active in getting up this second riotous assemblage, and was elected their captain. All the proceedings and objects therefore of both assemblages, the provocation thereby to the defendant, and his action in opposition to them, constituted together one entire transaction, or the res gestee. And as it was also clear that the homicide, whatever its legal character, resulted from these assemblages, and their riotous conduct, and would not otherwise have occurred, it was not only the right, but the duty of the prosecution to show generally the transaction as a whole, its nature and its objects, whether its tendency should be to show the guilt or innocence of the defendant. — Maher v. The People, 10 Mich. 429, and Brown v. The People, 17 Mich. 212. This was not only necessary in fairness to the prisoner, but- to enable the jury, from a view of the whole, [328]*328to estimate and apply each particular item of evidence which might be adduced in any stage of the case.
But whether the prosecution did this or not, it was the clear right of the defendant, either by cross-examination, or by witnesses introduced in his defense, to go fully into all matters thus constituting the res gestee. He could not be bound by the showing on the part of the prosecution, but was at liberty to show that the transaction as a whole, or in any .of its parts or purposes, was different from that shown by the prosecution. And for this purpose it was competent for him to show any act or declaration' of any individual of either assemblage in furtherance of- the common object, or in reference to it, from the inception to the close of the transaction; their combination or concert having already sufficiently been shown.
The defendant undertook to do this by the cross-examination of the prosecutor’s witnesses, and the proposed cross-examination was strictly legitimate under any rule ever applied to cross-examination, as it related directly to matters called out on the direct examination. The prosecutor’s witnesses, some of the rioters themselves, had already given evidence, tending to show that the only object of the rioters was to go upon the defendant’s premises for the purpose, as they expressed it, of “horning the defendant,” who had lately been married, and that they contemplated no violence or injury to person or property. The defendant offered to show, on cross-examination, that at the time the rioters made the arrangement to assemble the second night on the defendant’s premises, their running away the night before was talked of by them, and was called a cowardly act; that they were going to get a company together that (second) night, who were not afraid, and would stand fire, and stay on the premises, and horn the defendant, whether he liked it or not; and that they would not go off the premises or be driven off.
This cross-examination the court erroneously refused to [329]*329permit; and the error would not have been less, had the defendant offered to show the same facts by witnesses of his own.
The court equally erred in refusing the defendant the right to show that Cowles, the decreased, had said substantially the same thing to one of the witnesses on the part of the prosecution.
Henry Butler, who was one of the rioters on the first night (though not upon the second), and who had testified fully on the part of the people in reference to the proceedings of that night, and had also testified that defendant had confessed having struck the deceased three times on the last night, was asked on cross-examination whether he .did not, at the house of Mrs. Barret, a few nights after, state to her, that he was not there the first night as one of the company of the homers, but that he happened there as a mere looker on, and took no part or lot in it whatever ; to which he answered in the negative. Similar ques-. • tions were asked him as to similar statements to other persons — all which he denied. • These questions were avowedly asked for the purpose of laying a foundation for impeaching him by showing that he had made statements out of court in reference to the matter, different from those now made under oath.
The court holding that such statements if made, related to matters wholly collateral, and not to the res gestee, refused to allow the defendant to contradict him, by showing that he had made the statements which he denied having made. This also was erroneous. The statements related to the res gestee, and the proposed contradiction, if shown, would have tended seriously to weaken his credibility.
Various questions were raised upon the charge to the jury, and several special requests were made by defendant to charge upon specific points, some of which were refused [330]*330or charged in a modified form; and some were based upon hypotheses not warranted by any evidence in the cause.
We think it better to indicate what should have been the principles of the charge as a whole upon the points in dispute, than to consider the detached parts presented by the several requests to charge, which would tend rather to confuse, than elucidate the real questions involved.
No fault seems to have been found’ with the charge as it related to the distinction between murder in the first and second degree, or between murder and manslaughter.
The' object of all the defendant’s special requests was to obtain from the court a charge which should authorize or require the jury, upon certain supposed states of facts, to and the killing excusable homicide.
A correct idea of excusable homicide is not perhaps easily expressed by a brief abstract definition, without special reference to the facts of particular cases. We accordingly find the latter ■ mode adopted in all the books. It has been thought safer to illustrate by particular instances, than to. undertake to define, in advance, all the particular elements or combinations of facts which may render homicide excusable.
Of course, the enumeration of particular cases, does not exclude any others falling within the like principles.
But the principles which underlie and result from all the cases in which the homicide has been held excusable in self-defense, or in defense of one’s family or persons standing in particular relation to him or of his property, are so fully and accurately stated in the opinion of my brother Campbell in Pond v. The People, 8 Mich. 150, that an attempt to enumerate them here, would be a mere repetition. The principles there laid down, apply equally to the present case upon certain states of fact which it was competent for the jury to find from the evidence.
That case, however, differed from the present in certain [331]*331important particulars. There an actual attack upon the defendant’s dwelling was going on, and the rioters were in the act of demolishing it, and a servant of the defendant, then in the house, was being violently and, to all appearances, dangerously assailed when the fatal shot was fired.
In the present case, no actual attack had been made upon the defendant’s house, no forcible attempt to enter; and unless the defendant, when he stepped out of the house with the axe, was, as in his statement he claimed to be, actually struck by some one or more of the rioters, there was no actual attack made upon the defendant, or any one of his family. There was, however, evidence tending to show that, when the door was standing open, and the defendant and his father and mother were ordering the rioters off, the wads from some of the guns were fired into the house. The evidence also tended to show that the defendant knew or understood that the general and original object of the rioters in assembling there, was to annoy him and his family by the blowing of horns, ringing of bells, firing of guns loaded only with powder and wads, and by other noises, rather than personal injury to himself or any of his family. But there was also evidence that before the defendant stepped out, there were threatening cries among the rioters to “bring him (or fetch him) out” or “ to bring or fetch them out” which must have referred to the defendant, and perhaps to his wife, and possibly to his father and mother.
Considering the case first, with reference only to the facts existing prior to the time when the defendant went out with the axe, and without reference to the peculiar effects produced by the conduct of the rioters upon his mother, there was nothing, I think, in the evidence fairly tending to show a state of facts which would justify or excuse the defendant in rushing out and attacking any of the rioters with an axe, or other dangerous weapon, for the purpose of compelling them to desist or leave, [332]*332though he might have been excused for attempting to drive them off by force, and even, by blows with any instrument not calculated to endanger life or limb. But though, from the sudden, violent and capricious impulses to which an excited mob is always subject, danger may always be naturally apprehended, especially about a man’s dwelling at night, whatever the original object o'f the assemblage may have, been — and no one can estimate the nature or extent of the danger — yet, until some actual violence had been done or attempted in this case against either the house, or its inmates, the necessity which alone could excuse taking the life of any of the assailants, had not yet occurred, and might never occur. And though the defendant had the rignt to act under the circumstances as they appeared to him; yet up to this point (without reference to the defendant’s mother,) there was nothing in the circumstances which fairly tended to show that 'he could 'have believed the dire necessity to have arisen.
5¡d. We will next inquire how far the case may be affected by the peculiar effects, produced upon the defendant’s mother by the conduct of the rioters.
There was evidence from which the jury might have found that, owing to the feeble health of the mother and her peculiar infirmities, the fear and excitement caused by the conduct and threats of the rioters produced upon her alarming effects, from which the defendant might well have apprehended her speedy death if such conduct were allowed to continue. But to render this available to the defendant as an excuse for the homicide, the jury should also find that the rioters were informed of this condition of the mother, and the effects produced by their conduct; or that every reasonable and practicable effort had been made to notify them of. the facts — as such are not the ordinary effects of such causes upon people generally, and therefore, would not naturally be anticipated by the rioters. But if [333]*333they had such notice, or the defendant was prevented from giving it, by the noise and tumult oí the rioters; then I can see no sound reason why the danger to the mother from their conduct, should not have excused the conduct of the defendant towards them, to the same extent as if the danger to her life had resulted irom an actual attack upon her person, or the like danger to the defendant from an attack upon him. And the defendant would, I think, have the right to resort to the same means of protection in the one case as in the other. What these means are, in what contingency they may be used, and how they are to be judged of by the defendant, will be considered under the next head.
3d. There was evidence — and the statement of the prisoner made on the trial must for this purpose be treated as such — from which the jury might have found (as supposed in part of the charge given by the court below) that the defendant took the axe from the house for the purpose of self-defense, and stepped out of the door for the purpose of inducing the rioters to leave, or .of dispersing them; and that, as he stepped out, the crowd cried out “ kill him, damn him, kill him,” and that rushing towards him, some one or more of them hit him with a gun or club or other weapon.' If this hypothesis should be found to be true, instead of the charge given by the court, the jury should I think, have been told substantially that the defendant was excusable for acting according to the surrounding circumstances as they appeared to him: and if, from those circumstances, he believed there was imminent danger of death or great bodily harm to himself dr any member of his family, then, if he had already tried every other reasonable means,, which would, under' the circumstances, naturally occur to an honest and humane man, to ward off the danger or repel the attack, he might resort to such forcible means, even with a dangerous weapon, as he believed to be necessary for protection; ’and if such means [334]*334resulted in the death of any of the supposed assailants, the homicide would be excusable.
“It is not to be forgotten that the rioters assembled there for an illegal object; for the purpose, by their own confession, of a wanton and unprovoked insult and defiance to the defendant and his family; that the unpleasant, and as it turned out, the terrible crisis, was forced upon the defendant against his will, by their criminal conduct. And while provocation, as such, cannot render the homicide excusable; yet in estimating the nature and imminence of the danger, in the choice of means to avoid it, or the amount of force, or kind of weapon to be used in repelling it, the excitement and confusion which would naturally result from the surrounding circumstances, for which the rioters alone were responsible, should not be overlooked. To require of the defendant, while under a high degree of mental excitement, induced by their wrongful and criminal conduct, and without his fault, the same circumspection and cool, deliberate judgment, in estimating the danger or the choice of means for repelling it, as we, who are unaffected by the excitement or the danger, may now exercise in contemplating it, would be to ignore the laws of our being, and to require a degree of perfection to which human nature has not yet attained. Of the weight a jury should give to'these considerations no safer standard can be found than their own individual consciousness, and the consideration of what they, with the honest purpose of avoiding the danger, without unnecessarily taking life, might, under , the circumstances in which the defendant was placed, be- likely to do.
' As no fault was found with the charge in reference to the distinction between murder in the first and second degree, or between murder and manslaughter, it is unnecessary to consider the phases of the case which might call for jija charge upon those questions.
A new trial must be granted.
[335]*335It is proper to notice the erroneous practice which has been resorted to m this case of bringing up the case upon a writ of error before judgment. There is in such a case no judgment to reverse, and no appropriate function to be performed by a writ of error. By reference to chapter 197, Compiled Laws, it will be seen that the record and proceedings, including the exceptions, should have been certified to this court by- the clerk, without a writ of error. But as the certificate of the clerk by way of the return to this writ, substantially complies' with this requisition, this court is equally possessed of the case. See Shannon v. The People, 5 Mich. 36. No writ of error' should have issued in the present case, and no assignment of errors was necessary.
The other Justices concurred.