STONE, C. J.
There is much testimony in this record, and nothing to contradict it, that for several hours before the homicide was perpetrated defendant was making threats, sometimes without naming the object of such threats, but, at others, calling the name of deceased as the person against whom his animosity was directed. The testimony is also uncontradicted that the rencounter and homicide took place at the home of deceased, and at the gate in front of his residence, on a Sabbath evening, just after nightfall. It is also shown that defendant and one Jarvis went in company to McCain’s dwelling, and that Jarvis hallooed, and called deceased out. There is proof, uncontradicted, that defendant had, at the time, a loaded pistol in his pocket, and all the facts and circumstances tend to show that Jarvis had no object personal to himself in making the visit. The circumstances tend equally to show that the visit was made, and McCain called out, for some purpose personal to the defendant. When deceased went out in response to the halloo, defendant was not visible, but soon walked up and engaged in conversation with deceased. Up to this point the testimony is all one way.
There is a conflict as • to who uttered the first insulting language. Deceased, in his statement, charges it to the defendant, and the widow of deceased, in her testimony, tends to confirm his statement. Defendant testified that deceased gave the insult, which provoked a similar retort from him, and that this was followed immediately by a blow from deceased’s fist. The uncontroverted testimony is that deceased, who is not shown to have been armed, struck the first blow, that Jarvis immediately got between them, and that then defendant fired three shots, one of which was fatal. We have made this summary of the testimony, because it is proper to have it in view while we comment on the charges given and refused.
We feel justified in calling attention to the fact that [75]*75Jarvis was not called, as a witness, and no explanation is offered wiry it was not done. He accompanied defendant to McCain’s residence, called McCain ont, and the circumstances as they appear in the record tend to show that in doing so he was serving defendant, not himself. He witnessed the entire interview, the altercation, the rencounter, and all that took place. When life is taken, unless the testimony which proves the killing proves also the justifica- . tion or extenuation, the burden then rests on the defendant, either to excuse, or to extenuate the offense. If the circumstances do not show excuse, justification, or immediate provocation, the law raises the presumption'of malice. Sylvester v. State, 72 Ala. 201; 3 Brick. Dig. 216, § 524.
We do not think the Circuit Court.erred in admitting the dying declarations in evidence. The brother of the deceased and the physician who wrote down what was said each testified that the deceased made the statements that were written down, and that his mind was clear at the time. The facts are unlike those presented in the case of McHugh v. State, 31 Ala. 317.
Section 3727 of the Code of 1886 was made to figure in the trial of this case. Its language is : “When the killing in any sudden rencounter or affray is-caused by the assailant by the use of a deadly weapon, which was concealed before commencement of the fight, his adversary having no deadly weapon drawn, such killing is murder in the second degree, and may, according to the circumstances, be murder íd the first degree.” What is the meaning of the word “assailant” in this section? “Assailant” means one who assails, or who assaults, the aggressor. All the testimony shows that McCain was the assailant; the one who committed the first assault, the one who struck the first blow. It follows that § 3727 of the Code has nothing to do with this case.
If one assaulted, suddenly and under the maddening influence of the blow, slays his assailant, and there is nothing else in the transaction, this is manslaughter, and not murder. But murder “is frequently committed during personal rencounters into which the parties enter mutually, or in many cases in which the party slain strikes the first blow. Murderers sometimes provoke an enemy or intended victim to assault them, that, under the protection which the law is supposed to furnish them, they may^ wreak vengeance upon him, who, by this contrivance, is made to appear to be the aggressor. A homicide thus perpetrated is a most atrocious murder in the first degree.” — Mitchell v. State, 60 Ala. 26; Ex parte Nettles, 58 Ala. 268.
[76]*76Another principle sbonld be here stated. “If the blow given, or about to be given, be not sucb as to endanger bis [the assaulted’s] life, or to expose him to grievous bodily barm, as the law defines that term, then a fatal blow struck by him, even from sudden passion and without formed design, is manslaughter in the first degree. And a killing under circumstances which do not amount to proof of formed design — [willful, deliberate, malicious and premeditated]— ' which is defined above as constituting murder in the first degree, and which is not toned down to manslaughter, or to self-defense, as defined above, is murder in the second degree. “Wé have spoken of formed design as of two classes, general and special. The former is evidenced by carrying weapons likely to produce death, with the purpose previously formed to use them in resentment of any blow that may be received, come fro n what quarter it may, even though the blow be of a character not endangering life or limb. Such formed design has no particular person as its objective aim. It is aimed at whoever may become the assailant. If preparation be made, and the design be formed and executed by slaying an adversary in resentment or resistance of a blow not likely to produce death, or inflict grievous bodily harm, this savors largely of the extreme wickedness of universal malice, and would be murder; and if such design was formed willfully, and carried into execution pursuant to such formed design, this would be murder in the first degree.”- — Mitchell v. State, supra; Ex parte Nettles, supra.
When one who is without fault is attacked in such manner as to endanger his life, or expose him to grievous bodily harm, and he is without apparent means of safe escape therefrom, the law authorizes him to anticipate his adversary, and to strike and even slay his assailant, if such extreme measure appears to be reasonably necessary to his own security. — 3 Brick. Dig. 219, § 570 et seq; Bostic v. State, 94 Ala. 45. But peril of a battery, from which great bodily harm can not be reasonably be apprehended, will not justify the taking of life, even though there be no reasonable mode of escape. — Eiland v. State, 52 Ala. 322; Davis v. State, 92 Ala. 120. Fisticuff blows do not, as a rule, inflict the grievous bodily harm, which, other means of escape being-cut off, will excuse the slaying of the assailant. “When a man is struck with the naked hand, and has no reason to apprehend a design to do him great bodily harm, he must not return the blow with a dangerous weapon.” — Shorter v. People, 2 Comstock, N. Y. 194. “A mere assault, however, [77]*77not directed at life or chastity, or other high right, can not excuse homicide. Hence, if a deadly weapon be not used by the assailant, or other circumstances do not exist to indicate a felonious attempt, for the assailed to take life is at least manslaughter.” — 1 Whar. Cr. law, § 484.
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STONE, C. J.
There is much testimony in this record, and nothing to contradict it, that for several hours before the homicide was perpetrated defendant was making threats, sometimes without naming the object of such threats, but, at others, calling the name of deceased as the person against whom his animosity was directed. The testimony is also uncontradicted that the rencounter and homicide took place at the home of deceased, and at the gate in front of his residence, on a Sabbath evening, just after nightfall. It is also shown that defendant and one Jarvis went in company to McCain’s dwelling, and that Jarvis hallooed, and called deceased out. There is proof, uncontradicted, that defendant had, at the time, a loaded pistol in his pocket, and all the facts and circumstances tend to show that Jarvis had no object personal to himself in making the visit. The circumstances tend equally to show that the visit was made, and McCain called out, for some purpose personal to the defendant. When deceased went out in response to the halloo, defendant was not visible, but soon walked up and engaged in conversation with deceased. Up to this point the testimony is all one way.
There is a conflict as • to who uttered the first insulting language. Deceased, in his statement, charges it to the defendant, and the widow of deceased, in her testimony, tends to confirm his statement. Defendant testified that deceased gave the insult, which provoked a similar retort from him, and that this was followed immediately by a blow from deceased’s fist. The uncontroverted testimony is that deceased, who is not shown to have been armed, struck the first blow, that Jarvis immediately got between them, and that then defendant fired three shots, one of which was fatal. We have made this summary of the testimony, because it is proper to have it in view while we comment on the charges given and refused.
We feel justified in calling attention to the fact that [75]*75Jarvis was not called, as a witness, and no explanation is offered wiry it was not done. He accompanied defendant to McCain’s residence, called McCain ont, and the circumstances as they appear in the record tend to show that in doing so he was serving defendant, not himself. He witnessed the entire interview, the altercation, the rencounter, and all that took place. When life is taken, unless the testimony which proves the killing proves also the justifica- . tion or extenuation, the burden then rests on the defendant, either to excuse, or to extenuate the offense. If the circumstances do not show excuse, justification, or immediate provocation, the law raises the presumption'of malice. Sylvester v. State, 72 Ala. 201; 3 Brick. Dig. 216, § 524.
We do not think the Circuit Court.erred in admitting the dying declarations in evidence. The brother of the deceased and the physician who wrote down what was said each testified that the deceased made the statements that were written down, and that his mind was clear at the time. The facts are unlike those presented in the case of McHugh v. State, 31 Ala. 317.
Section 3727 of the Code of 1886 was made to figure in the trial of this case. Its language is : “When the killing in any sudden rencounter or affray is-caused by the assailant by the use of a deadly weapon, which was concealed before commencement of the fight, his adversary having no deadly weapon drawn, such killing is murder in the second degree, and may, according to the circumstances, be murder íd the first degree.” What is the meaning of the word “assailant” in this section? “Assailant” means one who assails, or who assaults, the aggressor. All the testimony shows that McCain was the assailant; the one who committed the first assault, the one who struck the first blow. It follows that § 3727 of the Code has nothing to do with this case.
If one assaulted, suddenly and under the maddening influence of the blow, slays his assailant, and there is nothing else in the transaction, this is manslaughter, and not murder. But murder “is frequently committed during personal rencounters into which the parties enter mutually, or in many cases in which the party slain strikes the first blow. Murderers sometimes provoke an enemy or intended victim to assault them, that, under the protection which the law is supposed to furnish them, they may^ wreak vengeance upon him, who, by this contrivance, is made to appear to be the aggressor. A homicide thus perpetrated is a most atrocious murder in the first degree.” — Mitchell v. State, 60 Ala. 26; Ex parte Nettles, 58 Ala. 268.
[76]*76Another principle sbonld be here stated. “If the blow given, or about to be given, be not sucb as to endanger bis [the assaulted’s] life, or to expose him to grievous bodily barm, as the law defines that term, then a fatal blow struck by him, even from sudden passion and without formed design, is manslaughter in the first degree. And a killing under circumstances which do not amount to proof of formed design — [willful, deliberate, malicious and premeditated]— ' which is defined above as constituting murder in the first degree, and which is not toned down to manslaughter, or to self-defense, as defined above, is murder in the second degree. “Wé have spoken of formed design as of two classes, general and special. The former is evidenced by carrying weapons likely to produce death, with the purpose previously formed to use them in resentment of any blow that may be received, come fro n what quarter it may, even though the blow be of a character not endangering life or limb. Such formed design has no particular person as its objective aim. It is aimed at whoever may become the assailant. If preparation be made, and the design be formed and executed by slaying an adversary in resentment or resistance of a blow not likely to produce death, or inflict grievous bodily harm, this savors largely of the extreme wickedness of universal malice, and would be murder; and if such design was formed willfully, and carried into execution pursuant to such formed design, this would be murder in the first degree.”- — Mitchell v. State, supra; Ex parte Nettles, supra.
When one who is without fault is attacked in such manner as to endanger his life, or expose him to grievous bodily harm, and he is without apparent means of safe escape therefrom, the law authorizes him to anticipate his adversary, and to strike and even slay his assailant, if such extreme measure appears to be reasonably necessary to his own security. — 3 Brick. Dig. 219, § 570 et seq; Bostic v. State, 94 Ala. 45. But peril of a battery, from which great bodily harm can not be reasonably be apprehended, will not justify the taking of life, even though there be no reasonable mode of escape. — Eiland v. State, 52 Ala. 322; Davis v. State, 92 Ala. 120. Fisticuff blows do not, as a rule, inflict the grievous bodily harm, which, other means of escape being-cut off, will excuse the slaying of the assailant. “When a man is struck with the naked hand, and has no reason to apprehend a design to do him great bodily harm, he must not return the blow with a dangerous weapon.” — Shorter v. People, 2 Comstock, N. Y. 194. “A mere assault, however, [77]*77not directed at life or chastity, or other high right, can not excuse homicide. Hence, if a deadly weapon be not used by the assailant, or other circumstances do not exist to indicate a felonious attempt, for the assailed to take life is at least manslaughter.” — 1 Whar. Cr. law, § 484. “The jury must be satisfied that unless he (the manslayer) had killed the assailant, he was in imminent and manifest danger either of losing his own life, or of suffering enormous bodily harm.” 8 Gfreenl. Ev. § 116. “I take the rule to be settled, that the kining of one who is an assailant must be under a reasonable apprehension of a loss of life or great bodily harm; and the danger must appear so imminent at the moment of the assault, as to present no alternative of escaping its consequences, but by resistance.”- — Logue v. Com. 2 Wright (Pa.) 265; 9 Amer. & Eng. Encyc. of Law, 540.
We have shown above that the testimony in this cage does not bring it within the influence of section 3727 of the Code of 1886. That statute applies only to cases in which the assailant — the party who assaults — perpetrates the homicide. All the testimony shows that McCain was the assailant — the person who struck the' first blow. It follows that the part of the charge of the court, set out in the bill of exceptions and excepted to, was abstract in this, that there was no testimony to which it was applicable. The assailant was slain.
It is not for us to say, under all the circumstances shown in this case, whether or not the jury in their verdict of guilty went beyond what the testimony authorized them to find, nor whether the punishment they inflicted is excessive. They had the witnesses before them, could judge of their manner, and they were the sole judges and arbiters, under the oath they took, of the credit and weight they would accord to each witness. The facts were fpr their determination, governed by their own consciences, under the rules of law as declared to them by the court. There is no arbitrary rule by which human testimony is believed or disbelieved. Juries perform their full duty when they obey the court’s instructions as to the law, and the teachings and promptings of their own judgments and consciences as to the facts. When they thus act they render a “true verdict according to the evidence.” We must not and do not intimate what impression the testimony in this record makes upon us. We have stated certain rules of law, and the duty rested on the jury to determine from the testimony to what extent this case was brought under those rules.
An abstract charge given to a jury, if it assert a correct [78]*78legal proposition, is, as a general rule, no ground of reversal. 3 Brick. Dig. 113, §§ 107-8. The affirmative charge given asserts a correct principle of law, and we find nothing in the record to convince us it misled the jury. We suppose it did not, for their verdict was that defendant was guilty of murder in the first degree. This shows that the finding of the facts was not limited to the case for which section 2727 of the Code makes provision. To render the verdict the jury did render, they must have gone further and ascertained that the killing was “willful, deliberate, malicious and premeditated.” One phase of the testimony' — perhaps the entire testimony, except that of defendant himself,— tends to prove such was the case. In giving this charge the court committed no reversible error.
Of the charges asked by defendant and refused, those numbered 1, 2, 6 and 10, each of them, was likely to mislead the jury as to the nature of the threatened or impending “grievous bodily harm,” which will excuse the defensive use of a deadly weapon. Am assault with the hand or fist; under ordinary circumstances, neither justifies nor excuses the use of a deadly weapon. These charges were rightly refused.
Charges 2, 3, 8 and 9 are inapplicable to this case, because 3727 of the Code exerts no influence on its determination.
Charges 2, 4, 5, 6, 7, 9, 11 are all more or less misleading, and several of them are only an argument. They were rightly refused.
Charge 12, under the testimony in this case, was both abstract and confusing. None of the'charges requested should-have been given.
Affirmed.