Owen, J.
Plaintiff in error (hereinafter called the defendant) was convicted of an assault with intent to do great bodily harm and brings writ of error to review the judgment. Shields was night watchman of the city of Boscobel. A parade, consisting of members of the Ku Klux Klan, marched along the main street of said city on the night of August 16, 1924. The parade consisted of both men and women. They wore the regulation regalia of the Ku Klux Klan, consisting of masks and long robes. The parade was organized about half a mile outside the city limits, from which place it started at 9:45 and to which place it returned about forty-five minutes from the time of starting. The, parade proceeded in double column, except that three marched abreast in the front rank. The mayor of the city had given the organization permission to conduct the parade. The occasion had been advertised in the local papers. It seemed' to have been generally known that the parade was to be held. A large crowd of people, estimated at six or seven thousand, had assembled on the street to watch the parade. The parade was conducted in an orderly manner. The participants marched with folded arms and neither said nor did anything to cause the least disorder.
There were two police officers in the city of Boscobel: one a day policeman, called the chief of police, and Shields, who was called the night watchman. The day policeman [450]*450remained on duty on the night of the parade. As the parade was passing along Main street Shields stepped from the curb and raised the mask of one of the marchers. He also raised, or attempted to raise, the mask of one or two of the following marchers, and, as he was attempting to raise the mask of another, he was struck on the side of the head by one of the marchers, Bert Flesch by name. He was staggered by the blow and reeled back into the crowd. Upon recovering his equilibrium he drew a revolver from his pocket, pointed it squarely at his assailant, and pulled the trigger. The revolver did not go off. He was grabbed by the crowd and the parade proceeded.
The defendant strenuously contends that the evidence as above outlined does not sustain the conviction. While perhaps not necessary, it is at least appropriate to consider the legal status of the parade and the correlative rights and duties of the defendant under the circumstances then existing. “The rights of persons, societies, and organizations to parade and have processions on the streets with music, banners, songs, and shouting, is a well-established right.” State ex rel. Garrabad v. Dering, 84 Wis. 585, 590, 54 N. W. 1104.
“It has been customary from time immemorial, in all free countries, and in most civilized countries, for people who are assembled for common purposes to parade together, by day or reasonable hours at night, with banners and other paraphernalia, and with music of various kinds. These processions for political, religious, and social demonstrations are resorted to for the express purpose of keeping up unity of feeling and enthusiasm, and frequently to produce some effect on the public mind by the spectacle of union and numbers. They are a natural product and exponent of common aims, and valuable factors in furthering them. They are only found to any appreciable extent in places having collected inhabitants, for spectators are generally as important as members. They are among the incidental conditions of city life, and are as much to be expected, on suitable occasions, as any other public meetings, and not necessarily any [451]*451more dangerous.” Matter of Frazee, 63 Mich. 396, 404, 30 N. W. 72.
It is well recognized that the use of city streets for stich purpose is a legitimate subject of municipal regulation, but ordinances for that purpose must be in general terms and apply to all alike. State ex rel. Garrabad v. Dering, 84 Wis. 585, 54 N. W. 1104. There was no ordinance in the city of Boscobel prohibiting the parade, and it was conducted with the express consent of the city mayor. This fact, however, was without any legal, although it may have some moral, significance. Unless the parade can be held to have been an unlawful assembly, its presence upon the street was not in any respect unlawful.
In Aron v. Wausau, 98 Wis. 592, 74 N. W. 354, the following definition of an unlawful assembly met with the approval of this court:
“An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner, or so conduct themselves when assembled, as to cause persons in the neighborhood of such assembly to fear on reasonable grounds that the persons so assembled will disturb the peace tumultuously, or will by such assembly needlessly, and without any reasonable occasion, provoke’other persons to disturb the peace tumultuously.”
As already stated, the conduct of the participants was perfectly orderly; they marched with their arms folded across their breasts, and they behaved in every respect in the most peaceful manner. There was nothing in their conduct to give rise to a reasonable belief that they would, or even intended to, “disturb the peace tumultuously.” It might be argued that because of the proclaimed principles of this organization, which are exceedingly offensive to certain classes of American citizens, the presence of its members, clothed in their regalia, might provoke those classes of American citizens who are proscribed by its tenets to a breach of the [452]*452peace. It cannot be doubted that the public demonstrations of this order excite resentment on the part of those classes of our citizens whose Americanism the principles of the order condemn. But experience in our state does not indicate that such resentment justly entertained prompts reprisal by acts of violence or leads to a tumultuous breach of the peace. This fact testifies most creditably to the 'poise and self-restraint of our citizens who are under Ku Klux Klan proscription. But however that may be, not only the general experience of our state, but the result of the parade in question, does not justify a conclusion as a matter of law that the demonstration was one tending to “provoke other persons to disturb the peace tumultuously.” We must conclude, therefore, that the marchers offended against no law and that they were legally upon the streets of the city of Boscobel. Being legally upon the streets, the defendant had no more right to interfere with their presence, or to commit an assault upon the individual marchers, than upon any ordinary pedestrian or traveler upon the streets. On the contrary, if their presence had any tendency to create a disturbance of the peace, it was the duty of the defendant to so conduct himself as to discourage or suppress such a disturbance rather than promote it, and we cannot but think that the consequences resulting to the defendant because of - his conduct were such as might have been anticipated by any reasonable person. This fact might be of controlling consideration had the individual whose mask he raised delivered the blow upon the defendant, as one who seeks to invoke the aid of self-defense cannot be the aggressor. Whether this principle applies in its full force where another member of the parade sought in this manner to protect the parade from such interference, we need not consider. We think it was a circumstance which might be legitimately considered by the jury and fixes the act of the defendant which invited the assault as an unjustifiable and unlawful act.
[453]
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Owen, J.
Plaintiff in error (hereinafter called the defendant) was convicted of an assault with intent to do great bodily harm and brings writ of error to review the judgment. Shields was night watchman of the city of Boscobel. A parade, consisting of members of the Ku Klux Klan, marched along the main street of said city on the night of August 16, 1924. The parade consisted of both men and women. They wore the regulation regalia of the Ku Klux Klan, consisting of masks and long robes. The parade was organized about half a mile outside the city limits, from which place it started at 9:45 and to which place it returned about forty-five minutes from the time of starting. The, parade proceeded in double column, except that three marched abreast in the front rank. The mayor of the city had given the organization permission to conduct the parade. The occasion had been advertised in the local papers. It seemed' to have been generally known that the parade was to be held. A large crowd of people, estimated at six or seven thousand, had assembled on the street to watch the parade. The parade was conducted in an orderly manner. The participants marched with folded arms and neither said nor did anything to cause the least disorder.
There were two police officers in the city of Boscobel: one a day policeman, called the chief of police, and Shields, who was called the night watchman. The day policeman [450]*450remained on duty on the night of the parade. As the parade was passing along Main street Shields stepped from the curb and raised the mask of one of the marchers. He also raised, or attempted to raise, the mask of one or two of the following marchers, and, as he was attempting to raise the mask of another, he was struck on the side of the head by one of the marchers, Bert Flesch by name. He was staggered by the blow and reeled back into the crowd. Upon recovering his equilibrium he drew a revolver from his pocket, pointed it squarely at his assailant, and pulled the trigger. The revolver did not go off. He was grabbed by the crowd and the parade proceeded.
The defendant strenuously contends that the evidence as above outlined does not sustain the conviction. While perhaps not necessary, it is at least appropriate to consider the legal status of the parade and the correlative rights and duties of the defendant under the circumstances then existing. “The rights of persons, societies, and organizations to parade and have processions on the streets with music, banners, songs, and shouting, is a well-established right.” State ex rel. Garrabad v. Dering, 84 Wis. 585, 590, 54 N. W. 1104.
“It has been customary from time immemorial, in all free countries, and in most civilized countries, for people who are assembled for common purposes to parade together, by day or reasonable hours at night, with banners and other paraphernalia, and with music of various kinds. These processions for political, religious, and social demonstrations are resorted to for the express purpose of keeping up unity of feeling and enthusiasm, and frequently to produce some effect on the public mind by the spectacle of union and numbers. They are a natural product and exponent of common aims, and valuable factors in furthering them. They are only found to any appreciable extent in places having collected inhabitants, for spectators are generally as important as members. They are among the incidental conditions of city life, and are as much to be expected, on suitable occasions, as any other public meetings, and not necessarily any [451]*451more dangerous.” Matter of Frazee, 63 Mich. 396, 404, 30 N. W. 72.
It is well recognized that the use of city streets for stich purpose is a legitimate subject of municipal regulation, but ordinances for that purpose must be in general terms and apply to all alike. State ex rel. Garrabad v. Dering, 84 Wis. 585, 54 N. W. 1104. There was no ordinance in the city of Boscobel prohibiting the parade, and it was conducted with the express consent of the city mayor. This fact, however, was without any legal, although it may have some moral, significance. Unless the parade can be held to have been an unlawful assembly, its presence upon the street was not in any respect unlawful.
In Aron v. Wausau, 98 Wis. 592, 74 N. W. 354, the following definition of an unlawful assembly met with the approval of this court:
“An unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purpose, assemble in such a manner, or so conduct themselves when assembled, as to cause persons in the neighborhood of such assembly to fear on reasonable grounds that the persons so assembled will disturb the peace tumultuously, or will by such assembly needlessly, and without any reasonable occasion, provoke’other persons to disturb the peace tumultuously.”
As already stated, the conduct of the participants was perfectly orderly; they marched with their arms folded across their breasts, and they behaved in every respect in the most peaceful manner. There was nothing in their conduct to give rise to a reasonable belief that they would, or even intended to, “disturb the peace tumultuously.” It might be argued that because of the proclaimed principles of this organization, which are exceedingly offensive to certain classes of American citizens, the presence of its members, clothed in their regalia, might provoke those classes of American citizens who are proscribed by its tenets to a breach of the [452]*452peace. It cannot be doubted that the public demonstrations of this order excite resentment on the part of those classes of our citizens whose Americanism the principles of the order condemn. But experience in our state does not indicate that such resentment justly entertained prompts reprisal by acts of violence or leads to a tumultuous breach of the peace. This fact testifies most creditably to the 'poise and self-restraint of our citizens who are under Ku Klux Klan proscription. But however that may be, not only the general experience of our state, but the result of the parade in question, does not justify a conclusion as a matter of law that the demonstration was one tending to “provoke other persons to disturb the peace tumultuously.” We must conclude, therefore, that the marchers offended against no law and that they were legally upon the streets of the city of Boscobel. Being legally upon the streets, the defendant had no more right to interfere with their presence, or to commit an assault upon the individual marchers, than upon any ordinary pedestrian or traveler upon the streets. On the contrary, if their presence had any tendency to create a disturbance of the peace, it was the duty of the defendant to so conduct himself as to discourage or suppress such a disturbance rather than promote it, and we cannot but think that the consequences resulting to the defendant because of - his conduct were such as might have been anticipated by any reasonable person. This fact might be of controlling consideration had the individual whose mask he raised delivered the blow upon the defendant, as one who seeks to invoke the aid of self-defense cannot be the aggressor. Whether this principle applies in its full force where another member of the parade sought in this manner to protect the parade from such interference, we need not consider. We think it was a circumstance which might be legitimately considered by the jury and fixes the act of the defendant which invited the assault as an unjustifiable and unlawful act.
[453]*453Flesch did no more than deliver a single blow. There is no evidence that he attempted to follow it up. There is evidence to indicate that when the defendant recovered from the staggering effects of the blow and pulled his revolver he did not know who his assailant really was, but he merely happened to aim it at Flesch. If this be true it does not indicate that he pulled his revolver in good faith or in the belief that his personal safety was in jeopardy. It is unnecessary to dwell further upon the evidence. It furnishes abundant support for the conclusion that the defendant did not pull his revolver because of an apprehension reasonably entertained by him that either his life or his personal safety was in jeopardy. A simple assault does not justify retaliation with dangerous weapons. 21 Cyc. 790 and cases there cited. Although the defendant testified that he thought he was struck with a bludgeon of some sort, the evidence is quite conclusive — at least it is sufficient to support the conclusion of the jury to that effect — that Flesch struck him merely with his bare fist. n
The point is made that the evidence on the part of the State does not show that the defendant pulled the trigger of the revolver, and that for this reason the defendant should have been discharged when the State rested its case. Flesch testified that the revolver was pointed at him with the muzzle four or five feet away, and he thought he heard it snap once. Another witness testified that a short time after the event the defendant said to him: “Look here. I got my Waterloo.” The defendant took his gun and said: “I don’t know why that missed today.” This testimony justified the inference that the defendant, when he aimed the revolver at Flesch, also pulled the trigger. Upon his cross-examination the defendant himself testified that when he aimed the revolver he did pull the trigger, and that the revolver did not go off, although it was loaded. We think there is nothing in the contention that the evidence does not support the> [454]*454verdict, or that the state of the evidence at the time the State rested demanded a discharge of the defendant.
A reversal is urged because the court did not require witnesses to divulge the names of other marchers in the parade. We cannot see how this has the remotest bearing upon the issues. Whether Tom, Dick, or Harry was in the parade could have no bearing upon the guilt or innocence of the defendant. The court did well in limiting the evidence to the issues in the case.
It is further urged that the court erred in his instructions to the jury concerning the doctrine of self-defense. In dealing with the question of self-defense the- court said this:
“The right of self-defense is simply the right to repel force by force. The force thus permitted .to be used must be protective merely and not aggressive. The doctrine of self-defense cannot be invoked where one has used more force than was necessary to'his protection. In defending one’s self, no more force should be used than is necessary; and if one uses more force than is reasonably necessary he will be guilty of an assault. One attacked may oppose violence by violence, and the limit of his privilege is this: that he must not apply a degree of force not called for in self-defense.
“In considering this question of self-defense it will be your duty to consider all the facts and circumstances bearing upon the conduct of the defendant and upon the conduct of the complaining witness Bert Flesch at the time and place in question as shown by the evidence.
“You are instructed that it constituted no violation of the laws of this state for the said Bert Flesch and others to take part in the public parade shown by the evidence to have been had on the night in question, so long as the same was conducted in a peaceable and orderly manner, and that the defendant as a police officer of the city of Boscobel had no right or authority to interfere with such parade so long as it was conducted in a peaceable and orderly manner. But if, after he was struck by Flesch, the defendant had reasonable ground to believe, and in good faith believed, that his life was in danger or that he was likely to suffer great bodily harm, he had a right to meet any attack made upon him or [455]*455which he had reasonable ground to believe was being made upon him, in such a way and with such force as under all the circumstances he at the moment honestly believed and had reasonable grounds to believe was necessary to save his own life or to protect himself from great bodily harm.”
Complaint is made of the following excerpt' from the •quoted portion of the charge:
“The doctrine of self-defense cannot be invoked where one has used more force than was necessary to his protection. In defending one’s self, no more force should be used than is necessary; and if one uses more force than is reasonably necessary he will be guilty of an assault. One attacked may oppose violence by violence, and the limit of his privilege is this: that he must not apply a degrée of force not called for in self-defense.”
It is said that this is not a correct statement of the law, as the right of self-defense is not limited to the absolute necessity of the occasion, but only by what reasonably appears to the assaulted party to be' dangerous at the time, viewed from his standpoint and no other; accordingly, he may act on apparent danger as' it reasonably appears to him at the time, and that the danger need not be real nor is it necessary that there should be actual peril to his- life or serious bodily injury. The following statement of the right of self-defense was approved in State v. Martin, 30 Wis. 216, 225:
“When a person is attacked or menaced with an immediate attack by another who is in striking distance and has the means and ability to at once execute it, the person attacked or thus menaced may act upon what are then the appearances of the degree of violence used or threatened, and may graduate the force of his resistance to the apparent nature of the attack, and if he acts in good faith upon what are then the appearances of the nature of the attack he will be justifiable, though such appearances subsequently prove unreal.”
It is true that in that portion of the charge just quoted the court did not advise the jury that, the defendant could act [456]*456upon what were the dangers as they appeared to him at the time and under the circumstances. This part of the charge, however, was simply the statement of a general proposition of law. When the court came to charge the jury upon the specific rights of the defendant under the then existing circumstances, the court said:
“But if, after he was struck by Flesch, the defendant had reasonable ground to believe, and in good faith believed, that his life was in danger,or that he was likely to suffer great bodily harm, he had a right to meet any attack made upon him or which he had reasonable ground to believe was being made upon him, in such a way and with such force as under all the circumstances he at the moment honestly believed and had reasonable grounds to believe was necessary to save his own life or to protect himself from great bodily harm.”
That was correct, plain, and explicit; although the general statement of the principle at the beginning of the charge upon that branch of the case is subject to just criticism, we cannot regard it as prejudicial error in view of the correct and explicit declaration of the court when treating of the specific rights of the defendant under the circumstances. It is well settled that in order to construe the mistake as prejudicial error it is necessary for us to affirmatively find that but for the error there might probably have been a different result. A review of the evidence satisfies us that there would have been no different result, and that the error cannot be construed as prejudicial.
By the Court. — Judgment affirmed.