By the Court —
Wilson, C. J.
— The defendant applies to this Court for a new trial under See. 6, page 777, of the Comp. Stat.
The grounds of the motion are (1), that the verdict is not warranted by the evidence, (2), error in the charge of the Court, (8), that the indictment was not signed by the foreman of the grand jury.- I cannot say that the evidence did not warrant the verdict.
It clearly appears that defendant deliberately and intentionally shot the deceased, and from this the presumption is that it was an act of murder. Com. vs. York, 9 Met., 93. This presumption it was for the defendant to rebut I think it very clear that the evidence would not haye justified the jury in acquitting the defendant on the ground of insanity.
His suspicion of strangers, apparent melancholy and peculiarity of deportment generally are not proof of insanity, as that term is popularly understood. Perhaps by theorists these peculiarities may be considered evidences of insanity. It is indeed very difficult to define that invisible line that divides insanity from sanity, [229]*229but such speculation is not here necessary; for a party indicted is not entitled to an acquittal on the ground of insanity, if at the time of the alleged offence he had capacity sufficient to enable him to distinguish between right and wrong, and understood the nature and consequences of liis act and had mental power sufficient to apply that knowledge to his own case. Commonwealth vs. Rogers, 7 Met., 500.
I think the evidence does not show insanity of any grade; cer-. tainly it falls far short of showing such insanity as would be a proper ground of, defence according to this rule.
But the defendant’s counsel insist that though insanity was not proven, “that the circumstances of provocation were such as should have convinced the jury that the defendant either imagined he was necessarily acting in self-defence, or that his blood was so heated as to take the case out of the degree of crime found in the verdict.” Under our statute the killing of a human being in the heat of passion upon sudden provocation, or in sudden combat intentionally, is manslaughter, not murder. It was for the jury to say whether the homicide in this case was committed under such circumstances, and by their verdict they have negatived that hypothesis ; and in this respect too, I think their verdict is justified by the evidence.
The designed killing of another without provocation and not in sudden combat, is none the less murder, because the perpetrator of the crime is in a state of passion. People vs. Sullivan, 8 Selden, 399; Penn vs. Bell, Addis., 156; Penn vs. Honeyman, Id., 149; State vs. Johnson, 1 Iredell, 354; Preston vs. State, 25 Miss., 383; Campbell vs. State, 23 Ala., 44. And where there are both provocation and passion, the provocation must be sufficient. See cases last cited.
The circumstances of provocation proven in this case were not sufficient to extenuate the guilt of the homicide, or reduce the crime to the grade of manslaughter.
The provocation given by the deceased in trespassing on defendant’s land, is not such as would provoke any person not wholly regardless of human life to use a deadly weapon. Nor is it such [230]*230as the law will recognize as sufficient to reduce the killing below murder. Commonwealth vs. Drew, 4 Mass., 396; State vs. Beauchamp, 6 Blackf., 299; State vs. Morgan, 3 Iredell, 186; Monroe vs. State, 5 Geo. R., 85; 1 Arch. Crim. Prac. and Pl., (7th Ed.,) 808, 809, 810.
Without farther provocation than this, so far as the evidence shows, the defendant took his gun and followed deceased, with the apparent purpose of shooting him or his companion. It is true that before the prisoner shot deceased, the deceased threw at him (but did not hit him with) a stick or club; but I think that this could not be considered such provocation as the law looks upon, as an alleviation of the homicide from murder to manslaughter.
There is a wanton disregard of human life and social duty in taking or endeavoring to take the life of a fellow being, in order to save''ourself from a comparatively slight wrong, which the law abhors.
To determine on the sufficiency of the provocation to mitigate the killing from murder to manslaughter, the instrument or weapon with which the homicide was effected must be taken into consideration ; for if it was effected with a deadly weajmn, the provocation must be great indeed to lower the grade of the crime from murder; if with a weapon or other'means not likely or intended to produce death, a less degree of provocation will be sufficient; in fact, “the instrument employed must bear a reasonable proportion to the provocation to reduce the offence to manslaughter.” Wharton Cr. Law, (2 Ed.,) 368-9, and cases cited in notes; see also 7 Arch. Crim. Frac, and Pl., (7th Ed.,) 803-4, 808-9-10, 816, 821, and cases cited in the notes; Com. vs. Mosler, 4 Barr; Regina vs: Smith, 8 Car. & Payne, 160.
The revenge in this case was disproportionate to the injury, and outrageous and barbarous in its nature, and therefore cannot in any legal sense be said to have been provoked by the acts of the deceased.
The facts in this case incontrovertibly show that the prisoner did not act and could not have supposed it necessary to act in [231]*231self-defence. He was the pursuer not the pursued. Self-defence can only he resorted to in case of necessity.
The right to defend himself would not arise until defendant had at least attempted to avoid the necessity of such defence. People vs. Sullivan, 3 Seld., 399; Wharton Cr. Law, 386; Regina vs. George Smith, 8 Car & Payne, 160.
The defendant’s counsel asked the Court to-charge the jury, “That if the jury believe that the prisoner at the time of tffe killing believed in the existence of a state of facts, which if true would have constituted self-defence, they must find a verdict of acquittal,” which the Court refused; but charged the jury that “the facts must be such as reasonably to have raised such belief or apprehension on part of the defendant.”
The Court was correct in refusing to charge as thus requested. The mere fact that defendant believed it necessary for him to act in self-defence would not warrant a “verdict of acquittal.”
It is not enough that the party believed himself in danger, unless the facts and circumstances were such that the jury can say he had reasonable grounds for his belief. Comp. Stat., 703, Sec. 5; Shorter vs. People, 2 Conn., 193; Wharton's Cr. Law, 386; Arch. Cr. Prac. and Pl., 798; U. S. vs. Zigol, 2 Dallas R., 346
In Tennessee, I believe, it has been held otherwise, (Grainger vs. The State, 5 Yerger, 459,) but I think this decision stands alone, unsupported by either principle or authority. Such belief would perhaps reduce the crime to manslaughter, but whether it would or not it is not necessary to decide in this case.
The only exception taken to the charge of the Court is above given, and we must therefore presume that in every other respect it was full and correct.
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By the Court —
Wilson, C. J.
— The defendant applies to this Court for a new trial under See. 6, page 777, of the Comp. Stat.
The grounds of the motion are (1), that the verdict is not warranted by the evidence, (2), error in the charge of the Court, (8), that the indictment was not signed by the foreman of the grand jury.- I cannot say that the evidence did not warrant the verdict.
It clearly appears that defendant deliberately and intentionally shot the deceased, and from this the presumption is that it was an act of murder. Com. vs. York, 9 Met., 93. This presumption it was for the defendant to rebut I think it very clear that the evidence would not haye justified the jury in acquitting the defendant on the ground of insanity.
His suspicion of strangers, apparent melancholy and peculiarity of deportment generally are not proof of insanity, as that term is popularly understood. Perhaps by theorists these peculiarities may be considered evidences of insanity. It is indeed very difficult to define that invisible line that divides insanity from sanity, [229]*229but such speculation is not here necessary; for a party indicted is not entitled to an acquittal on the ground of insanity, if at the time of the alleged offence he had capacity sufficient to enable him to distinguish between right and wrong, and understood the nature and consequences of liis act and had mental power sufficient to apply that knowledge to his own case. Commonwealth vs. Rogers, 7 Met., 500.
I think the evidence does not show insanity of any grade; cer-. tainly it falls far short of showing such insanity as would be a proper ground of, defence according to this rule.
But the defendant’s counsel insist that though insanity was not proven, “that the circumstances of provocation were such as should have convinced the jury that the defendant either imagined he was necessarily acting in self-defence, or that his blood was so heated as to take the case out of the degree of crime found in the verdict.” Under our statute the killing of a human being in the heat of passion upon sudden provocation, or in sudden combat intentionally, is manslaughter, not murder. It was for the jury to say whether the homicide in this case was committed under such circumstances, and by their verdict they have negatived that hypothesis ; and in this respect too, I think their verdict is justified by the evidence.
The designed killing of another without provocation and not in sudden combat, is none the less murder, because the perpetrator of the crime is in a state of passion. People vs. Sullivan, 8 Selden, 399; Penn vs. Bell, Addis., 156; Penn vs. Honeyman, Id., 149; State vs. Johnson, 1 Iredell, 354; Preston vs. State, 25 Miss., 383; Campbell vs. State, 23 Ala., 44. And where there are both provocation and passion, the provocation must be sufficient. See cases last cited.
The circumstances of provocation proven in this case were not sufficient to extenuate the guilt of the homicide, or reduce the crime to the grade of manslaughter.
The provocation given by the deceased in trespassing on defendant’s land, is not such as would provoke any person not wholly regardless of human life to use a deadly weapon. Nor is it such [230]*230as the law will recognize as sufficient to reduce the killing below murder. Commonwealth vs. Drew, 4 Mass., 396; State vs. Beauchamp, 6 Blackf., 299; State vs. Morgan, 3 Iredell, 186; Monroe vs. State, 5 Geo. R., 85; 1 Arch. Crim. Prac. and Pl., (7th Ed.,) 808, 809, 810.
Without farther provocation than this, so far as the evidence shows, the defendant took his gun and followed deceased, with the apparent purpose of shooting him or his companion. It is true that before the prisoner shot deceased, the deceased threw at him (but did not hit him with) a stick or club; but I think that this could not be considered such provocation as the law looks upon, as an alleviation of the homicide from murder to manslaughter.
There is a wanton disregard of human life and social duty in taking or endeavoring to take the life of a fellow being, in order to save''ourself from a comparatively slight wrong, which the law abhors.
To determine on the sufficiency of the provocation to mitigate the killing from murder to manslaughter, the instrument or weapon with which the homicide was effected must be taken into consideration ; for if it was effected with a deadly weajmn, the provocation must be great indeed to lower the grade of the crime from murder; if with a weapon or other'means not likely or intended to produce death, a less degree of provocation will be sufficient; in fact, “the instrument employed must bear a reasonable proportion to the provocation to reduce the offence to manslaughter.” Wharton Cr. Law, (2 Ed.,) 368-9, and cases cited in notes; see also 7 Arch. Crim. Frac, and Pl., (7th Ed.,) 803-4, 808-9-10, 816, 821, and cases cited in the notes; Com. vs. Mosler, 4 Barr; Regina vs: Smith, 8 Car. & Payne, 160.
The revenge in this case was disproportionate to the injury, and outrageous and barbarous in its nature, and therefore cannot in any legal sense be said to have been provoked by the acts of the deceased.
The facts in this case incontrovertibly show that the prisoner did not act and could not have supposed it necessary to act in [231]*231self-defence. He was the pursuer not the pursued. Self-defence can only he resorted to in case of necessity.
The right to defend himself would not arise until defendant had at least attempted to avoid the necessity of such defence. People vs. Sullivan, 3 Seld., 399; Wharton Cr. Law, 386; Regina vs. George Smith, 8 Car & Payne, 160.
The defendant’s counsel asked the Court to-charge the jury, “That if the jury believe that the prisoner at the time of tffe killing believed in the existence of a state of facts, which if true would have constituted self-defence, they must find a verdict of acquittal,” which the Court refused; but charged the jury that “the facts must be such as reasonably to have raised such belief or apprehension on part of the defendant.”
The Court was correct in refusing to charge as thus requested. The mere fact that defendant believed it necessary for him to act in self-defence would not warrant a “verdict of acquittal.”
It is not enough that the party believed himself in danger, unless the facts and circumstances were such that the jury can say he had reasonable grounds for his belief. Comp. Stat., 703, Sec. 5; Shorter vs. People, 2 Conn., 193; Wharton's Cr. Law, 386; Arch. Cr. Prac. and Pl., 798; U. S. vs. Zigol, 2 Dallas R., 346
In Tennessee, I believe, it has been held otherwise, (Grainger vs. The State, 5 Yerger, 459,) but I think this decision stands alone, unsupported by either principle or authority. Such belief would perhaps reduce the crime to manslaughter, but whether it would or not it is not necessary to decide in this case.
The only exception taken to the charge of the Court is above given, and we must therefore presume that in every other respect it was full and correct. But even if the charge in this respect had been erroneous, it would not be a good ground for reversal of the judgment. Self-defence, ex vi termini is a defensive not an offensive act, and must not exceed the bounds of mere defence and prevention.
To justify such act there must be at least an apparent necessity to ward off by force some bodily harm.
[232]*232Where the party has not retreated from or attempted to shun the combat, but has as in this case unnecessarily entered into it, his act is not one of self-defence.
The plaintiff by taking his gun and following after the deceased without any previous provocation, (such as the law will recognize as provocation for the use of a deadly weapon,) showed conclusively that the homicide was not committed in self-defence, real or imaginary. The evidence, therefore, did not make a ease for laying down the law of self-defence, and an error of the Court concerning an abstract proposition having nothing to do with the matter in hand, is not sufficient ground for reversing a judgment. Shorter vs. People, 2 Conn., 202.
• The other ground on which defendant’s counsel ask a new trial, is that the indictment was not signed by the foreman of the grand jury.
Whether the signature by the foreman on the back of the indictment was sufficient it is not necessary for us now to decide.
This objection, not having been taken by motion to set aside the indictment or by demurrer, was waived. See. 2, page 764, and See. 11, page 766, Comp. Stat. I have felt in the examination of this case a great anxiety to discover some legal.ground on which to grant the defendant a new trial, but governed as the Court is and ought to be strictly by the rules of law, I have failed to see any ground for such action. It is for us to declare the law, and if this is a case in which it should not be rigorously enforced, the State executive only^can apply the remedy.
New trial denied.