Walker, J.
On the trial of this cause in the court below, Gerhardt Borchel was sworn and examined through an interpreter, he not being able to speak the English language. This witness testified that when he got to the place where the occurrence had taken place, that plaintiff in error and his wife were holding deceased up, and the blood was running from his nose, and he was unable to speak. Witness inquired what was doing, when Schnier replied, “ the stroke was rather hard, but he was sorry for it.” The prosecution then proved by the witness his understanding of the German word “ schlag” as used by plaintiff in error, and also the sense in which witness used the word in his testimony. This evidence was received by the court, against the objection of the accused. The defendant then offered to prove by a German, C. H. Githous, that the German word “ schlag,” means a fall more frequently than a blow, but the court rejected the evidence. The defendant then offered to prove by a German scholar the meaning of the German word “ schlag ” as used by accused when speaking to the witness Borchel, which the court held to be incompetent and it was rejected, to which the accused excepted.
The object of all evidence is to inform the jury or tribunal to whom the issue is submitted, of all the facts in dispute, precisely as they occurred. The nearer that tribunal can, through the aid of evidence, become eye and ear witnesses of the transaction, the nearer will they be enabled to do strict justice between the parties. Hence witnesses are required to detail what the parties did and said. And in detailing conversations, or admissions, the rules of evidence require that as far as practicable the language employed by the party, should be detailed by the witness. It is by this means that the jury or court trying the issue, is enabled to arrive at the intention of the party employing the language. When the language used by the party, and testified to by the witness, is understood by the triers, they can have no difficulty in arriving at the meaning attached to it by the person using it. But to do so, it is always desirable that the witness shall as far as possible detail to the jury the very same language, in precisely the same connection, in which it was employed by the person using it, otherwise, it will necessarily be merely an accident if the jury obtain the sense in which it was spoken. When the facts, conversations or admissions, admissible in evidence, are known to a person who does not understand and speak the language in which the trial is conducted, then the only means by which the jury or court trying the issue can arrive at the facts, is from the' evidence through an interpreter who understands and speaks both languages. And when he is so employed, it is his duty to translate the evidence given by the witness into equivalent terms of the language employed by the tribunal trying the cause. All persons are aware of the fact, that the power to make a literal translation from one language to another, so as to preserve in the translation the precise meaning of the original, depends upon an accurate knowledge of both languages by the translator. This being the office of an interpreter, if the person employed is not well versed in each language, he is liable to fail in giving the jury the facts, circumstances, conversations and admissions just as they were detailed by the witness, and if that is not done, the party against whom the mistake is made must suffer wrong, unless he shall be permitted to call others who are more capable of translating the language accurately. This we think is the right of the party. It cannot be the law that because an interpreter is called who is not capable of correctly translating the evidence, or from bias or partiality renders it incorrectly, that parties must be bound by it although it may affect their most vital and important rights. In this case the witness was permitted to testify as to the sense in which he understood the accused to employ this term, and we can perceive no objection in permitting the accused to introduce evidence of the primary meaning of the word; and its meaning in the connection in which it was used. In all cases of such disputes, as to the meaning of a word in the foreign language, it would be proper that the court require the interpreter to give the primary meaning of all words used in connection with the word in dispute, that the jury might be enabled to determine its meaning in case of disagreement of the interpreters.
The prosecution asked and the court gave, against the objection of the accused, this instruction, “ If the jury believe, from the evidence, that the defendant was in the commission of an unlawful act against the property of Benedict Theising at the time of the difficulty between the prisoner and Theising, which terminated in said Theising’s death, and that said difficulty was by defendant’s procurement, and that during said difficulty defendant struck said Theising with a deadly weapon, inflicting injuries upon said Theising as charged, then it must appear either that defendant in good faith declined any further difficulty with Theising, or that said blow, if you believe it was inflicted by defendant, was inflicted in necessary self-defense, or in defense of his wife or son, and if such does not appear, then the verdict should be, guilty of murder.” This instruction is liable to the construction that before the accused would be justified in the infliction of the blow, that it should have been necessary for his self-preservation. It has been held by this court ( Campbell v. The People, 16 Ill. R. 18,) that the necessity for taking the life of the deceased need not be real and absolute, but if the necessity is so apparent as to induce the belief in a reasonable mind, that the danger was so imminent that no other means of escape existed but to take the life of deceased in order to preserve that of the accused, that such apparent danger will justify the homicide. It is not to be expected, nor can it be required of men menaced with apparent imminent and unavoidable danger, that
they will act with that deliberation, and cool ■ circumspection that men do under ordinary circumstances. They cannot be expected to resort to and fully test every means that may remotely promise safety, but at the same time they must be held to employ all means for their escape, that to a reasonable understanding would seem to promise safety, before they can be justified in slaying their antagonist. But if the danger seems to be so imminent and pressing, as to a reasonable mind would seem under the circumstances to afford no other mode of escape, then the slaying would be justified, although the danger was only apparent. Under this instruction the jury may have reasonably inferred, that there could be no justification unless the necessity to destroy life in self-defense, was actual and not apparent, although regarded sufficient by all reasonable understandings. This instruction should-have been so modified as to leave it to the jury to say, whether the circumstances surrounding the transaction were such as to induce a belief of its necessity in a reasonable mind, ánd whether the accused acted upon such a belief, and failing to do so, it was erroneous.
The court announce as the law the same rule, in the People’s twenty-second instruction, and it is there so clearly announced that the jury could not fail to so understand it, and the presumption is that they regarded and acted upon it, in forming their verdict. It, like the tenth instruction, and for the same reasons, was erroneous, and should have been modified before it was ,given.
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Walker, J.
On the trial of this cause in the court below, Gerhardt Borchel was sworn and examined through an interpreter, he not being able to speak the English language. This witness testified that when he got to the place where the occurrence had taken place, that plaintiff in error and his wife were holding deceased up, and the blood was running from his nose, and he was unable to speak. Witness inquired what was doing, when Schnier replied, “ the stroke was rather hard, but he was sorry for it.” The prosecution then proved by the witness his understanding of the German word “ schlag” as used by plaintiff in error, and also the sense in which witness used the word in his testimony. This evidence was received by the court, against the objection of the accused. The defendant then offered to prove by a German, C. H. Githous, that the German word “ schlag,” means a fall more frequently than a blow, but the court rejected the evidence. The defendant then offered to prove by a German scholar the meaning of the German word “ schlag ” as used by accused when speaking to the witness Borchel, which the court held to be incompetent and it was rejected, to which the accused excepted.
The object of all evidence is to inform the jury or tribunal to whom the issue is submitted, of all the facts in dispute, precisely as they occurred. The nearer that tribunal can, through the aid of evidence, become eye and ear witnesses of the transaction, the nearer will they be enabled to do strict justice between the parties. Hence witnesses are required to detail what the parties did and said. And in detailing conversations, or admissions, the rules of evidence require that as far as practicable the language employed by the party, should be detailed by the witness. It is by this means that the jury or court trying the issue, is enabled to arrive at the intention of the party employing the language. When the language used by the party, and testified to by the witness, is understood by the triers, they can have no difficulty in arriving at the meaning attached to it by the person using it. But to do so, it is always desirable that the witness shall as far as possible detail to the jury the very same language, in precisely the same connection, in which it was employed by the person using it, otherwise, it will necessarily be merely an accident if the jury obtain the sense in which it was spoken. When the facts, conversations or admissions, admissible in evidence, are known to a person who does not understand and speak the language in which the trial is conducted, then the only means by which the jury or court trying the issue can arrive at the facts, is from the' evidence through an interpreter who understands and speaks both languages. And when he is so employed, it is his duty to translate the evidence given by the witness into equivalent terms of the language employed by the tribunal trying the cause. All persons are aware of the fact, that the power to make a literal translation from one language to another, so as to preserve in the translation the precise meaning of the original, depends upon an accurate knowledge of both languages by the translator. This being the office of an interpreter, if the person employed is not well versed in each language, he is liable to fail in giving the jury the facts, circumstances, conversations and admissions just as they were detailed by the witness, and if that is not done, the party against whom the mistake is made must suffer wrong, unless he shall be permitted to call others who are more capable of translating the language accurately. This we think is the right of the party. It cannot be the law that because an interpreter is called who is not capable of correctly translating the evidence, or from bias or partiality renders it incorrectly, that parties must be bound by it although it may affect their most vital and important rights. In this case the witness was permitted to testify as to the sense in which he understood the accused to employ this term, and we can perceive no objection in permitting the accused to introduce evidence of the primary meaning of the word; and its meaning in the connection in which it was used. In all cases of such disputes, as to the meaning of a word in the foreign language, it would be proper that the court require the interpreter to give the primary meaning of all words used in connection with the word in dispute, that the jury might be enabled to determine its meaning in case of disagreement of the interpreters.
The prosecution asked and the court gave, against the objection of the accused, this instruction, “ If the jury believe, from the evidence, that the defendant was in the commission of an unlawful act against the property of Benedict Theising at the time of the difficulty between the prisoner and Theising, which terminated in said Theising’s death, and that said difficulty was by defendant’s procurement, and that during said difficulty defendant struck said Theising with a deadly weapon, inflicting injuries upon said Theising as charged, then it must appear either that defendant in good faith declined any further difficulty with Theising, or that said blow, if you believe it was inflicted by defendant, was inflicted in necessary self-defense, or in defense of his wife or son, and if such does not appear, then the verdict should be, guilty of murder.” This instruction is liable to the construction that before the accused would be justified in the infliction of the blow, that it should have been necessary for his self-preservation. It has been held by this court ( Campbell v. The People, 16 Ill. R. 18,) that the necessity for taking the life of the deceased need not be real and absolute, but if the necessity is so apparent as to induce the belief in a reasonable mind, that the danger was so imminent that no other means of escape existed but to take the life of deceased in order to preserve that of the accused, that such apparent danger will justify the homicide. It is not to be expected, nor can it be required of men menaced with apparent imminent and unavoidable danger, that
they will act with that deliberation, and cool ■ circumspection that men do under ordinary circumstances. They cannot be expected to resort to and fully test every means that may remotely promise safety, but at the same time they must be held to employ all means for their escape, that to a reasonable understanding would seem to promise safety, before they can be justified in slaying their antagonist. But if the danger seems to be so imminent and pressing, as to a reasonable mind would seem under the circumstances to afford no other mode of escape, then the slaying would be justified, although the danger was only apparent. Under this instruction the jury may have reasonably inferred, that there could be no justification unless the necessity to destroy life in self-defense, was actual and not apparent, although regarded sufficient by all reasonable understandings. This instruction should-have been so modified as to leave it to the jury to say, whether the circumstances surrounding the transaction were such as to induce a belief of its necessity in a reasonable mind, ánd whether the accused acted upon such a belief, and failing to do so, it was erroneous.
The court announce as the law the same rule, in the People’s twenty-second instruction, and it is there so clearly announced that the jury could not fail to so understand it, and the presumption is that they regarded and acted upon it, in forming their verdict. It, like the tenth instruction, and for the same reasons, was erroneous, and should have been modified before it was ,given. The same rule is adopted in the tenth and thirteenth instructions asked by defendant, and they were therefore erroneous.
The defendant also asked and the court refused to give this instruction, “ The court instructs you that you are the judges of the law and the facts of this case, and that you are not bound by the opinion of the court as to what the law is.” This instruction, a majority of the court think, should have been given. They are of opinion that if the statute means what it says, that the jury shall be the judges of the law as well as the fact, the last member of the instruction follows as a necessary .conclusion from the principle thus enacted. In civil cases the jury are only judges of the facts, to which they must apply the law as they receive it from the court. That the design of this enactment, was to enlarge the powers of the jury so as to allow them to judge of the law also, ás applicable to the facts. If the statute gives them the power to judge of the law—in the exercise of that power, they must have the right to say whether any given proposition is law or not. In order to form correct conV elusions as to what is the law as applicable to the facts, it is proper and usual, and even the duty of the court, if requested by either party or by the jury, to instruct them what the law is, but it was the design of the statute that they should not be absolutely bound by such instruction. If they can say upon their oaths that they know the law better than the court does, they have the right to do so, but before assuming so solemn a responsibility, they should be' sure that they are not acting from caprice or prejudice, that they are not controlled by their will or their wishes, but from a deep and confident conviction that the court is wrong and that they are right. Before saying this upon their oaths it is their duty to reflect, whether from their habits of thought, their study and experience, they are better qualified to judge of the law than the court. If under all these circumstances, they are prepared to say that the court is wrong in its exposition of the law, the statute has given them that right.
This I say is the view entertained by the majority of the court as to this instruction, but to which I am unable to assent, believing as I do, that the jury are bound to receive the law as expounded by the court, and only have the right to judge of its proper application to the facts appearing‘in evidence. This provision of the law I conceive must be confined to the law relating to and creating the crime itself, as announced by the court, as applicable to the facts proved. But I deem it unnecessary upon this occasion to give my views in full, but shall avail myself of any future occasion which may present itself for that purpose. ,
The judgment of the court below is reversed, and the cause remanded for a new trial not inconsistent with this opinion.
Judgment reversed.