MlLLBR, PRESIDENT :
Upon an indictment for the murder of one Hall, the defendant was found not guilty of murder as charged in the indictment, but guilty of voluntary manslaughter, upon which verdict he was sentenced to five years in the state penitentiary.
From this judgment we awarded the defendant this writ of error; and the errors relied on we are now to consider.
The first of these is that the trial court erroneously excluded from the jury the testimony of Draga Grubath. To show; its relation to the issues involved, we will state briefly the facts attending the homicide. On the night of and shortly before the killing, the deceased, a large and brutal sort of man, entered the restaurant of the defendant, in the city of Fairmont, connected with a hotel or rooming house kept by him, and in a rough way sat down on a stool at the lunch counter, and with impudent demeanor ordered defendant's wife then in charge to serve him a glass of water and a tooth pick. She served him with the water and pointed to the tooth picks on the counter. Because she did not hand him the tooth picks he made loud complaint, and with vile language and with opprobrious epithets towards her ’declared his intention to clean up the place, to the annoyance of Mrs. Laura and her customers. She tried to quiet him and directed one of the servants to call the police. He was familiarly known and referred to as “Bull Dog” Hall, which seems to have been fully descriptive of his real char[253]*253acter, as disclosed by bis conduct. Hall left tbe restaurant, following one of the servants, and- then followed him back. Defendant then came in, and Hall took up the subject of his complaint with him. Laura then tried to- quiet him and inquired of him why he wanted to raise a disturbance, and why he presumed -to call his wife those names. He replied to Laura: “Jim, you go to hell, you dirty lousy Dago. I ain’t got a bit of use for any of you dagoes; now whát are you going- to do about it. Come out and fight me.” Laura replied: “What’s the use of raising a disturbance? Go on; don’t bother me; it is no use doing that.” Hall replied:.“You come out of that counter; I will fight you.” He then took hold of a stool nest to where he sat, from which the top came off. He then began a tirade of abusive language, too vile and loathsome to repeat in any place, much less in a judicial opinion. The foregoing is the testimony of Mrs. Laura, in which she is substantially corroborated by defendant and other witnesses. After much protestation by defendant, deceased still brandishing the stool said to him: “I am just going to kill you.” And then at the request of Mrs. Laura defendant went up stairs, passing between two rows of tables and on through a door with a glass panel in it, taking with him for his protection a pistol. The deceased followed him up the stairway through the door by which defendant had entered; and after defendant, had reached the top of the stairs on his way to his room in the hotel, he heard' the glass fall which deceased had knocked out of the door, and fearing some harm to his wife turned to look down the stairs; and when deceased reached the top of the stairs defendant fired the shot, which took effect in deceased’s abdomen, and from which he died.
The witness Grubath, whose evidence was rejected, kept a soft drink establishment on the same side of the street but some forty feet from the place of business of defendant. The substance of his evidence which .was rejected was that on the same evening and shortly before the homicide deceased came into his place of business and was there guilty of, the same character of boisterous conduct displayed in defendant’s place, and used profanity and abusive language of the [254]*254same character later employed towards defendant and bis wife, driving out bis customers. Of course tbis prior conduct of deceased could bave bad no direct bearing on tbe immediate conduct of defendant wben be fired tbe shot tbat killed Hall, for it is not shown tbat be bad any knowledge of it. But tbe evidence did tend to' show tbe state of Hall’s mind at tbe time and to characterize bis conduct towards defendant and bis wife in their place of business. Evidence of this kind is admissible for tbat purpose, as we bave on other occasions decided; and we think Grubath’s testimony should bave been admitted in this case for tbat purpose. State v. Waldron, 71 W. Va. 1; approved or distinguished in State v. Alderson, 74 W. Va. 732; Gibbard v. Evans, 87 W. Va. 650; State v. Arrington, 88 W. Va. 152.
During tbe trial defendant was not allowed to prove by bis wife tbat some two or three week’s before tbe homicide deceased came into defendant’s restaurant and quarreled with tbe attendants and waiters and threatened tbat be would on some future clay come back and clean out tbe place, and tbat shortly .before the night of tbe tragedy be bad boasted that be intended to clean out tbe place, and tbat these threats were communicated to tbe witness and defendant prior to tbe night of tbe shooting. It seems to be within tbe rules of criminal procedure to admit evidence of uncommunicated threats which are calculated to shed light upon tbe mental attitude of tbe deceased towards the prisoner. These threats were so communicated, if tbe evidence is to be believed, and for tbis purpose they were admissible. State v. Evans, 33 W. Va. 417; State v. Arrington, supra; Wiggins v. People, 93 U. S. 465. The rejection of tbis evidence is made the subject of defendant’s second assignment of error relied on for reversal.
Tbe remaining error urged relates particularly to tbe giving and refusing of instructions. It is urged as a third proposition tbat tbe court erred in assuming in State’s instruction number four tbat there bad been a quarrel between deceásed and defendant, and tbat both were at-fault, wherefore tbe duty rested on defendant, first, before inflicting tbe mortal blow to1 decline tbe combat and retreat as [255]*255far as be could, and second, tbat be necessarily killed tbe deceased in order to preserve bis own life or save bimself from great bodily barm. Tbis instruction tben proceeds to define tbe law of self defense without reference to tbe fact tbat tbe place of tbe tragedy was defendant’s borne or place of business. For tbis reason we think tbis instruction was erroneous, not in defining tbe law of self defense, but in assuming tbat there had been a quarrel between tbe parties in which both were at fault. There is no evidence tbat defendant bad engaged in a quarrel with deceased. True, be undertook to protect bis wife and bis place of business from tbe intrusion of tbe brutal and vulgar creature who intruded bimself therein, and, if declining tbe combat and retreating were necessary in such a situation, tbe evidence was tbat be bad done both, and when be fired tbe shot tbat killed tbe intruder, be was on bis way to bis room followed by bis assailant. Tbe rights of tbe defendant were tben very different from what they would have been if be bad been in the open and bad there encountered deceased. State v. Donahue, 79 W. Va. 260; 7 Enc. Dig. Va. & W. V. Rep. 730, and cases cited.
Another of tbe State’s instructions complained of is number sis, on tbe subject of malice, and advising tbe jury that there was no particular period within which malice should have existed in tbe mind of the'prisoner, to constitute murder.
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MlLLBR, PRESIDENT :
Upon an indictment for the murder of one Hall, the defendant was found not guilty of murder as charged in the indictment, but guilty of voluntary manslaughter, upon which verdict he was sentenced to five years in the state penitentiary.
From this judgment we awarded the defendant this writ of error; and the errors relied on we are now to consider.
The first of these is that the trial court erroneously excluded from the jury the testimony of Draga Grubath. To show; its relation to the issues involved, we will state briefly the facts attending the homicide. On the night of and shortly before the killing, the deceased, a large and brutal sort of man, entered the restaurant of the defendant, in the city of Fairmont, connected with a hotel or rooming house kept by him, and in a rough way sat down on a stool at the lunch counter, and with impudent demeanor ordered defendant's wife then in charge to serve him a glass of water and a tooth pick. She served him with the water and pointed to the tooth picks on the counter. Because she did not hand him the tooth picks he made loud complaint, and with vile language and with opprobrious epithets towards her ’declared his intention to clean up the place, to the annoyance of Mrs. Laura and her customers. She tried to quiet him and directed one of the servants to call the police. He was familiarly known and referred to as “Bull Dog” Hall, which seems to have been fully descriptive of his real char[253]*253acter, as disclosed by bis conduct. Hall left tbe restaurant, following one of the servants, and- then followed him back. Defendant then came in, and Hall took up the subject of his complaint with him. Laura then tried to- quiet him and inquired of him why he wanted to raise a disturbance, and why he presumed -to call his wife those names. He replied to Laura: “Jim, you go to hell, you dirty lousy Dago. I ain’t got a bit of use for any of you dagoes; now whát are you going- to do about it. Come out and fight me.” Laura replied: “What’s the use of raising a disturbance? Go on; don’t bother me; it is no use doing that.” Hall replied:.“You come out of that counter; I will fight you.” He then took hold of a stool nest to where he sat, from which the top came off. He then began a tirade of abusive language, too vile and loathsome to repeat in any place, much less in a judicial opinion. The foregoing is the testimony of Mrs. Laura, in which she is substantially corroborated by defendant and other witnesses. After much protestation by defendant, deceased still brandishing the stool said to him: “I am just going to kill you.” And then at the request of Mrs. Laura defendant went up stairs, passing between two rows of tables and on through a door with a glass panel in it, taking with him for his protection a pistol. The deceased followed him up the stairway through the door by which defendant had entered; and after defendant, had reached the top of the stairs on his way to his room in the hotel, he heard' the glass fall which deceased had knocked out of the door, and fearing some harm to his wife turned to look down the stairs; and when deceased reached the top of the stairs defendant fired the shot, which took effect in deceased’s abdomen, and from which he died.
The witness Grubath, whose evidence was rejected, kept a soft drink establishment on the same side of the street but some forty feet from the place of business of defendant. The substance of his evidence which .was rejected was that on the same evening and shortly before the homicide deceased came into his place of business and was there guilty of, the same character of boisterous conduct displayed in defendant’s place, and used profanity and abusive language of the [254]*254same character later employed towards defendant and bis wife, driving out bis customers. Of course tbis prior conduct of deceased could bave bad no direct bearing on tbe immediate conduct of defendant wben be fired tbe shot tbat killed Hall, for it is not shown tbat be bad any knowledge of it. But tbe evidence did tend to' show tbe state of Hall’s mind at tbe time and to characterize bis conduct towards defendant and bis wife in their place of business. Evidence of this kind is admissible for tbat purpose, as we bave on other occasions decided; and we think Grubath’s testimony should bave been admitted in this case for tbat purpose. State v. Waldron, 71 W. Va. 1; approved or distinguished in State v. Alderson, 74 W. Va. 732; Gibbard v. Evans, 87 W. Va. 650; State v. Arrington, 88 W. Va. 152.
During tbe trial defendant was not allowed to prove by bis wife tbat some two or three week’s before tbe homicide deceased came into defendant’s restaurant and quarreled with tbe attendants and waiters and threatened tbat be would on some future clay come back and clean out tbe place, and tbat shortly .before the night of tbe tragedy be bad boasted that be intended to clean out tbe place, and tbat these threats were communicated to tbe witness and defendant prior to tbe night of tbe shooting. It seems to be within tbe rules of criminal procedure to admit evidence of uncommunicated threats which are calculated to shed light upon tbe mental attitude of tbe deceased towards the prisoner. These threats were so communicated, if tbe evidence is to be believed, and for tbis purpose they were admissible. State v. Evans, 33 W. Va. 417; State v. Arrington, supra; Wiggins v. People, 93 U. S. 465. The rejection of tbis evidence is made the subject of defendant’s second assignment of error relied on for reversal.
Tbe remaining error urged relates particularly to tbe giving and refusing of instructions. It is urged as a third proposition tbat tbe court erred in assuming in State’s instruction number four tbat there bad been a quarrel between deceásed and defendant, and tbat both were at-fault, wherefore tbe duty rested on defendant, first, before inflicting tbe mortal blow to1 decline tbe combat and retreat as [255]*255far as be could, and second, tbat be necessarily killed tbe deceased in order to preserve bis own life or save bimself from great bodily barm. Tbis instruction tben proceeds to define tbe law of self defense without reference to tbe fact tbat tbe place of tbe tragedy was defendant’s borne or place of business. For tbis reason we think tbis instruction was erroneous, not in defining tbe law of self defense, but in assuming tbat there had been a quarrel between tbe parties in which both were at fault. There is no evidence tbat defendant bad engaged in a quarrel with deceased. True, be undertook to protect bis wife and bis place of business from tbe intrusion of tbe brutal and vulgar creature who intruded bimself therein, and, if declining tbe combat and retreating were necessary in such a situation, tbe evidence was tbat be bad done both, and when be fired tbe shot tbat killed tbe intruder, be was on bis way to bis room followed by bis assailant. Tbe rights of tbe defendant were tben very different from what they would have been if be bad been in the open and bad there encountered deceased. State v. Donahue, 79 W. Va. 260; 7 Enc. Dig. Va. & W. V. Rep. 730, and cases cited.
Another of tbe State’s instructions complained of is number sis, on tbe subject of malice, and advising tbe jury that there was no particular period within which malice should have existed in tbe mind of the'prisoner, to constitute murder. Tbis instruction is no doubt good where tbe law stated is applicable; but there is no evidence in this case justifying the assumption that malice existed at any time before tbe homicide. Unless tbe evidence, justified it, such an instruction constituted reversible, error, as we held in State v. Hurst, decided at tbis term, and eases cited.
Another instruction complained of is one which tbe court gave on its own motion, telling tbe jury tbat they could find tbe defendant guilty of murder in tbe first or second degree or of any one of tbe lesser offenses specified. Such an instruction in tbis case was unjustified by tbe evidence. The jury could not have properly found' defendant guilty of murder in tbe first or second degree, for there was abso-[256]*256lately bo evidence of malice or other evidence justifying it. State v. Hurst, supra.
Defendant’s instruction number ten, on the law of self defense, which the court refused to give, was an inaccurate statement of the law; besides the subject was fully covered bjr another instruction given at the instance of defendant, and its rejection was not error.
Defendant’s Instructions Nos. 11, 12 and 13, rejected by the court, relating to the right of one to defend himself, his family and his home or castle, if good, were fully covered by defendant’s instruction number nine, except that the court of its own motion erred by adding the words: “But whether or not the building in which the homicide occurred was the defendant’s dwelling house or habitation is for the jury to determine.” We do not think where the facts, as in this case are, undisputed, the question whether the building in which the homicide occurred was defendant’s dwelling house or habitation was one of fáct for the jury to determine. It was one of law for the court.
Besides, defendant’s rights in cases of this kind, are not limited strictly to his dwelling house. His right to defend his person and his property extends to his place of business also; and- he is equally entitled to stand his ground and to defend his person and property against the invasion and assault of an intruder, even to the taking of human life, if that becomes necessary. ín this case the only home which defendant had was located in the hotel or rooming house, and in the building in which he did business; and he had the right to- protect himself against the unlawful incursion and assaults of “Bull Dog” Hall or, of any other intruder. In State v. Crawford, 66 W. Va. 114, the majority opinion was that the rule respecting one’s castle did not apply when both parties to the homicide jointly occupied the house where the killing occurred; but such was not the fact in this case. In State v. Manns, 48 W. Va. 480, an instruction to the jury approved, was that a person has the right to repel force by force in the defense of his person, his family or his'habitation, and if in so doing he uses only so much [257]*257force as the necessity, or apparent necessity, of the case requires, he is not guilty of any offense, though he kill his adversary in so doing. Of course-one would not be justified in taking the life of an intruder unless it was necessary to prevent the commission of a felony on his person or property or on some one under his protection in his'house. That this . right of self-defense pertaining to one’s castle extends also to his place of business has been decided in a number of cases, referred to in a note to Morrison v. Commonwealth (Ky.), 67 L. R. A. 539, 545.
It follows from what has been said that the court erred in refusing to set aside the verdict and award the defendant a new trial. The judgment will be reversed, the verdict set aside and the defendant awarded a new trial.
Reversed and remanded.