Dillon, J.
i. CBuniTAx. ueflnslff” capacity of paities, etc. It is not denied that the fatal ’meeting between the deceased and defendant took place at the creek, and on the day named in the indictment. How much the dying declarations establish, is the- principal -question arising upon the evidence.
[160]*160• The deceased, at no time, charged the defendant with having purposely discharged the gun at him. He complained of his conduct in other respects, such as refusing to assist him; but upon repeated examinations of the evidence, we do not discover that he even stated that the defendant intentionally shot him. Had he so believed, he would most likely have so declared.
There is no reason to question, upon the evidence as it stands, that the meeting at the creek between Shepard and young Benham was accidental. Shepard was there hauling sand, and Benham happened along with his gun, having been sent out to drive away the cattle. Whether the cattle were in view at the time the gun went off, does not appear.
On the merits, the defense must rest upon one of two grounds. '
1. That the fatal shot was given in necessary self-defense. This assumes that it was intentional, but justified from necessity., •
2. That it was purely accidental, and under circumstances to which the law will ascribe no guilt.'
. Which of the two commenced the altercation or dispute' about the cattle is not clear. But it is clear, from the testimony of the wife and the Hunts, that the deceased made the first threat of an assault; that he either had in .his hand, or what is more probable, as he was loading sand, took up the, ox-gad, with which to execute the threat; that he was so angry that he plunged into the stream, threatening to thrash the boy, and that he crossed it for this .purpose.
So far, there is no dispute. Now, it is to be.recoHected, that the deceased was a large and strong man, weighing about one hundred and seventy pounds, and the defendant a boy of sixteen years of age. It is probable, that, physically, the deceased was much the superior of the boy.
[161]*161The physical capacity of the two persons would be an important consideration for the jury in determining the question, whether the defendant, in what he did, was within the law of necessary self defense. So, the size and character of the ox-gad or weapon which the deceased seized or had, the manner in which he threatened to use it, and in which he entered upon the execution of that threat would also be important considerations for the jury.
Now, none of these circumstances are in any manner alluded to in the charge of the court. The attention of the jury should have been called to these circumstances, that is to say, to the nature and character of the advance of the deceased upon the defendant.
2ne^plu“l"in-sauan£ ofaB" And the jury should have been directed to ascertain whether all the circumstances in evidence denoted or showed an intention on the part of Shepard to take the life of Benham, or to do him some enormous, some dreadful • bodily harm; if they did, then Benham, in self-defense, might lawfully take the life of his assailant, provided he used all the means in his power, otherwise, to .save his own life, or prevent the intended harm, such as retreabmg, if the assault was not so sudden, fierce and dangerous as to render retreat unsafe, or if retreat were not practicable, then, by disabling his adversary, instead of killing him, if it were within his power simply to disable him.
3. — -when not imminent, And to make the above more plain to the jury, it would be well to add, that if the defendant had no reasonable ground to believe that he was in danger of death or great bodily harm, but had reasonable ground to believe that the deceased only intended a simple or ordinary non-fei Onions assault, simply intended to chastise or whip him, this would not justify the ¡defendant in resorting to the extreme measure of taking the life of his assailant; and if, under such circumstances, the [162]*162defendant intentionally''fired tlie gun, he would be guilty of, at least, manslaughter. Nor would defendant be justified by the laws of the land in shooting at another, if he had no reason to suppose himself in danger of death or enormous bodily harm, merely because it might be regarded as disgraceful or dishonorable not td stand his ground.
4_wliere seSdtile. quan-ei. Nor can the defendant get the benefit of the plea of , self-defense, if he sought the deceased with'a view to provoke a difficulty or to bring on a quarrel. State v. Neely, 20 Iowa, 108.
The law regards human life as the most sacred of all interests committed to its protection, and there can be no successful setting up of self-defense, unless the necessity for taking life is actual, present, urgent, unless in a word, the taking of his adversary’s life is the only reasonable resort of the party to save his own life, or his person from dreadful harm, or severe calamity, felonious in its character. State v. Thompson, 9 Iowa, 188, 20 Id. 569.
In the main, the charge of the court was very correct, but it was defective in the particular above suggested ; it was not closely enough applicable to the case. ■
The case was' very peculiar, and we may add, in' view of the evidence, not a little difficult. There was special necessity for great care in the instructions to the jury. In addition to omitting to allude to the respective sizes and ages of the defendant and deceased, the character of the weapon used by the deceased, and the nature of the advance or assault’ by the deceased, the charge of the court, was, in one or more instances, erroneous or calculated to mislead the jury. <
5. — enormwjury. ' Thus, in the eighth instruction the court charged that in order to make out self-defense the taking of the life of the deceased must have seemed to the defendant, reasonably necessary to save his own life; [163]*163thus omitting to give the defendant the benefit of the plea of self-defense if he took his assailant’s life to save himself from imminent and. enormous bodily injury, felonious in its character. See on this subject State v. Kennedy, 20 Iowa, 569; State v. Thompson, 9 Id. 188; State v. Wells, 1 Coxe (N. J.) 424; State v. Decklotts, 19 Iowa, 441; State v. Neely, 20 Iowa, 108.
tiou tending to Then, again, the twelfth instruction is quite faulty, especially in its application to the circumstances of the case. It contains this language: “Proof of angry words, actions or gestures, expressions of contempt without blows, without any as-assault, would not be sufficient to reduce the crime to manslaughter. But if the assault is made and death ensues to the party assaulting, and there is no evidence of deliberation, it would be manslaughter, and if the assault was violent, and the instrument or weapon used was a dangerous weapon, as a loaded gun, and such assault was under such circumstances as would lead a man of . ordinary prudence to fear for his life, then,-if. death follows to the assailant, the killing would be-justifiable.”
This instruction to have any application must refer to the assault of the deceased upon the defendant. But the deceased had no loaded gun.
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Dillon, J.
i. CBuniTAx. ueflnslff” capacity of paities, etc. It is not denied that the fatal ’meeting between the deceased and defendant took place at the creek, and on the day named in the indictment. How much the dying declarations establish, is the- principal -question arising upon the evidence.
[160]*160• The deceased, at no time, charged the defendant with having purposely discharged the gun at him. He complained of his conduct in other respects, such as refusing to assist him; but upon repeated examinations of the evidence, we do not discover that he even stated that the defendant intentionally shot him. Had he so believed, he would most likely have so declared.
There is no reason to question, upon the evidence as it stands, that the meeting at the creek between Shepard and young Benham was accidental. Shepard was there hauling sand, and Benham happened along with his gun, having been sent out to drive away the cattle. Whether the cattle were in view at the time the gun went off, does not appear.
On the merits, the defense must rest upon one of two grounds. '
1. That the fatal shot was given in necessary self-defense. This assumes that it was intentional, but justified from necessity., •
2. That it was purely accidental, and under circumstances to which the law will ascribe no guilt.'
. Which of the two commenced the altercation or dispute' about the cattle is not clear. But it is clear, from the testimony of the wife and the Hunts, that the deceased made the first threat of an assault; that he either had in .his hand, or what is more probable, as he was loading sand, took up the, ox-gad, with which to execute the threat; that he was so angry that he plunged into the stream, threatening to thrash the boy, and that he crossed it for this .purpose.
So far, there is no dispute. Now, it is to be.recoHected, that the deceased was a large and strong man, weighing about one hundred and seventy pounds, and the defendant a boy of sixteen years of age. It is probable, that, physically, the deceased was much the superior of the boy.
[161]*161The physical capacity of the two persons would be an important consideration for the jury in determining the question, whether the defendant, in what he did, was within the law of necessary self defense. So, the size and character of the ox-gad or weapon which the deceased seized or had, the manner in which he threatened to use it, and in which he entered upon the execution of that threat would also be important considerations for the jury.
Now, none of these circumstances are in any manner alluded to in the charge of the court. The attention of the jury should have been called to these circumstances, that is to say, to the nature and character of the advance of the deceased upon the defendant.
2ne^plu“l"in-sauan£ ofaB" And the jury should have been directed to ascertain whether all the circumstances in evidence denoted or showed an intention on the part of Shepard to take the life of Benham, or to do him some enormous, some dreadful • bodily harm; if they did, then Benham, in self-defense, might lawfully take the life of his assailant, provided he used all the means in his power, otherwise, to .save his own life, or prevent the intended harm, such as retreabmg, if the assault was not so sudden, fierce and dangerous as to render retreat unsafe, or if retreat were not practicable, then, by disabling his adversary, instead of killing him, if it were within his power simply to disable him.
3. — -when not imminent, And to make the above more plain to the jury, it would be well to add, that if the defendant had no reasonable ground to believe that he was in danger of death or great bodily harm, but had reasonable ground to believe that the deceased only intended a simple or ordinary non-fei Onions assault, simply intended to chastise or whip him, this would not justify the ¡defendant in resorting to the extreme measure of taking the life of his assailant; and if, under such circumstances, the [162]*162defendant intentionally''fired tlie gun, he would be guilty of, at least, manslaughter. Nor would defendant be justified by the laws of the land in shooting at another, if he had no reason to suppose himself in danger of death or enormous bodily harm, merely because it might be regarded as disgraceful or dishonorable not td stand his ground.
4_wliere seSdtile. quan-ei. Nor can the defendant get the benefit of the plea of , self-defense, if he sought the deceased with'a view to provoke a difficulty or to bring on a quarrel. State v. Neely, 20 Iowa, 108.
The law regards human life as the most sacred of all interests committed to its protection, and there can be no successful setting up of self-defense, unless the necessity for taking life is actual, present, urgent, unless in a word, the taking of his adversary’s life is the only reasonable resort of the party to save his own life, or his person from dreadful harm, or severe calamity, felonious in its character. State v. Thompson, 9 Iowa, 188, 20 Id. 569.
In the main, the charge of the court was very correct, but it was defective in the particular above suggested ; it was not closely enough applicable to the case. ■
The case was' very peculiar, and we may add, in' view of the evidence, not a little difficult. There was special necessity for great care in the instructions to the jury. In addition to omitting to allude to the respective sizes and ages of the defendant and deceased, the character of the weapon used by the deceased, and the nature of the advance or assault’ by the deceased, the charge of the court, was, in one or more instances, erroneous or calculated to mislead the jury. <
5. — enormwjury. ' Thus, in the eighth instruction the court charged that in order to make out self-defense the taking of the life of the deceased must have seemed to the defendant, reasonably necessary to save his own life; [163]*163thus omitting to give the defendant the benefit of the plea of self-defense if he took his assailant’s life to save himself from imminent and. enormous bodily injury, felonious in its character. See on this subject State v. Kennedy, 20 Iowa, 569; State v. Thompson, 9 Id. 188; State v. Wells, 1 Coxe (N. J.) 424; State v. Decklotts, 19 Iowa, 441; State v. Neely, 20 Iowa, 108.
tiou tending to Then, again, the twelfth instruction is quite faulty, especially in its application to the circumstances of the case. It contains this language: “Proof of angry words, actions or gestures, expressions of contempt without blows, without any as-assault, would not be sufficient to reduce the crime to manslaughter. But if the assault is made and death ensues to the party assaulting, and there is no evidence of deliberation, it would be manslaughter, and if the assault was violent, and the instrument or weapon used was a dangerous weapon, as a loaded gun, and such assault was under such circumstances as would lead a man of . ordinary prudence to fear for his life, then,-if. death follows to the assailant, the killing would be-justifiable.”
This instruction to have any application must refer to the assault of the deceased upon the defendant. But the deceased had no loaded gun. It was the defendant who had the gun. By the use of this illustration of a deadly weapon in the hands of an assailant, it would be very easy, if not natural, for the jury to construe this instruction as referring to an assault by the defendant with a .loaded gun upon the deceased. Such a state of facts is just the reverse of the case before the jury.
v. — acciexcusable and non-excusable Homicide. If the jury should believe that the defendant discharged the gun intentionally, the above sufficiently refers to the legal principles upon which the plea ot sell defense must rest. But, suppose * , ’ rr the jury shall believe that the gun was not1 [164]*164intentionally discharged by the defendant, what is then the law of the case ? It is this : Accidental death, wholly to be excused from all guilt, must be caused in the doing of some lawful act.
The law, in its solicitous regard for human life, requires all reasonable and due caution in the use of dangerous articles or instruments. If one in doing a lawful act, without any intention of bodily harm, and using proper precaution to prevent danger, unfortunately happens to kill another, th'e law excuses the killing. Post. 258; 1 East. P. C. ch. 5, § 40, p. 266; Id. ch. 5, §§ 8,36; 1 Bussell on Crimes, 657, 658; Whart. Cr. L. (2d ed.) 382, 385.
s. — appiithe míe. If, therefore, the defendant-pointed a loaded gun at the deceased, under circumstances which would not have 'justified him in-shooting the deceased, and the deceased seized it and struggled for it to save himself from the menaced injury from it, and in the struggle it went off without being purposely shot off by the defendant, the latter could not claim that the homicide was excusable. It would be manslaughter; and the circumstances relied on wholly to excuse the defendant, ■ would be regarded by the court in affixing the amount of punishment.
The converse of the* last proposition would, of course, be true, viz.: that if the defendant pointed a loaded gun at the deceased and “ it went off,” under circumstances in which it would have been lawful to have shot it off, the defendant would be regarded by the law as being guilty of no offense.
It is not necessary to notice specially the other errors assigned.
The judgment of the District Court is reversed, and the cause remanded for trial de novo.
Beversed.
On a subsequent trial, the defendant was convicted of manslaughter.