By the Court,
Hawley, J.:
Defendant was convicted of murder in the first degree. This appeal is from an order of the court refusing him a new trial. Erank Durand (deceased) was shot and instantly' killed by defendant, in the Tent Saloon at Columbus, on the 4th day of May, 1873, about 11 o’clock p. m. He had just asked some parties in the saloon to take a drink, and at the time of receiving the fatal shot he was standing about six or eight feet from the counter, and eight or ten feet from the [128]*128front door. Defendant was in the street. No words were spoken by either party. Defendant claimed that the shot was fired in self-defense.
The defendant testified that he had been informed that Durand had at different times, within a month prior to the homicide, frequently threatened his life. That on the night of the homicide, he (defendant) in company with one Thompson and others left Jellison’s saloon, for the purpose of going to McDonald’s saloon, to Avitness a game of cards. “As I got up,” says defendant, “in front of the Tent Saloon, Thompson called out ‘look ! look ! Johnny ! Frank is going to shoot.’ I was in the act of stepping upon the porch when the words were spoken by Thompson. I looked inside of the saloon at the instant and saw Frank Durand * * * facing the door in a stooping position, with his hand on his pistol, as I supposed. I drew and fired, and ran without waiting to see the effect of my shot.” In addition to this statement of defendant, there was some testimony tending to show that when deceased fell, a pistol dropped from his side on the floor, and that “ just before the shooting, Durand faced the door in a stooping position.” A witness for the prosecution testified that within an hour before the homicide, Stewart and Durand were in the street, and that after some conversation about previous differences they “ agreed to be friends.” The testimony on the part of the prosecution tended to show that no one was present with defendant; that no remarks were made by any one; that no demonstrations were made by deceased, and that defendant’s version of the homicide was a fabrication. In connection with this testimony, the numerous exceptions to the instructions of the court will be considered.
1. The court refused to give the following instruction asked by defendant: “Fourth. If you believe from the evidence, that shortly before the killing, the deceased threatened the defendant’s life, and at the time the killing occurred [129]*129defendant had reason to believe, and did believe, that deceased was about to put his threat into execution, then you must find the defendant not guilty.” This refusal is assigned as error.
It was argued by counsel for the State that this instruction was properly refused because it was not pertinent under the facts. This position is untenable. The testimony was sufficient to authorize the giving of such instructions as were proper to present the question of justifiable homicide to tlm consideration of the jury. The court, however, was justified in refusing the instruction upon other grounds. The principle of law stated in the instruction, without qualification, is not correct. If the defendant could reasonably have avoided the difficulty without resorting to such extreme measures he should have done so.
The law of self-defense is founded on necessity, and in order to justify the taking of life upon -this ground it must not only appear that the defendant had reason to believe, and did believe, that he was in danger of his life, or of receiving great bodily harm; but it must also appear to the defendant’s comprehension as a reasonable man, that to avoid such danger it was necessary for him to take the life of the deceased. Without this qualification the instruction was clearly erroneous. State v. Ferguson, ante 106; 2 Cooley’s Blackstone, Book IV., p. 183; 1 Russ on Cr. 660-1; 2 Bishop on Criminal Law, Sec. 627 (544); Logue v. Commonwealth, 38 Penn. State, 268; Charge of Agnew J. in Commonwealth v. Drum, 58 Penn. State, 20; U. S. v. Mingo, 2 Curtis C. C. R. 5; State v. Wells, 1 Coxe (N. J.) 430; People v. Shorter, 4 Barbour, 472-483; People v. Hurley, 8 Cal. 391; Dupree v. State, 33 Ala. 389. Moreover, the court gave the second instruction asked by defendant, which was as favorable for him as the testimony, viewed.in any light, would warrant.
[130]*1302. The fifth instruction was properly refused. The jury had the right to believe such portions of defendant’s testimony as they considered true, and to disbelieve such portions as they considered false. His testimony, like that of other witnesses, is to be weighed and determined by the jury from all the surrounding circumstances of the case — his demeanor on the witness stand, the probabilities of his testimony being true or untrue, taken in connection with the testimony of other witnesses deemed reliable. In short, “the credit to be given to his testimony” should be (where the statute places it) “left solely to the jury.” Stats. 1867, 58; People v. Cronin. 34 Cal. 194.
3. It is claimed that the court erred in giving this instruction: “No threats or menaces made by the deceased against the defendant, John Stewart, can avail Stewart, unless he at the time of the killing was actually assailed, or had sufficient evidence to convince any reasonable person that he was in danger of incurring bodily injury or of losing his life at the hands of the deceased.” The correctness of this instruction, as applied to the case of the State v. Hall, ante 58, from which it is copied, is admitted by counsel for defendant. But he contends that it was not proper under the testimony in this case. Although carelessly drawn, we think the instruction, .considering all the testimony, was applicable and correct. Mere threats, unaccompanied by some demonstration of hostility from which the accused might reasonably infer the intention of their execution by deceased, would not justify the homicide. Nor would acts of hostility, however violent, of themselves excuse the slayer. There must be some overt acts or words at. the time clearly indicative of a present purpose - to do the injury. The defendant must show either that he was actually assailed or that he was menaced by the deceased at the time in such a manner as to induce him as a reasonable person to believe that he was in danger of his life or of re[131]*131ceiving great bodily harm. 2 Bish. Cr. Law, Sec. 651; State v. Hall, ante 58; Bohannan v. Commonwealth, 8 Bush, 488; Rippy v. State, 2 Head, 220; People v. Lombard, 17 Cal. 319; Johnson v. State, 27 Tex. 767; People v. Scoggins, 37 Cal. 683.
4. The court gave the following instruction asked by defendant’s counsel: “ Malice is a question of fact; and in this case the burden of proof lies upon the prosecution to satisfy the jury of the malice of the defendant. The jury ought not to presume that the defendant acted with malice unless they are satisfied it is just in this particular instance.” In connection with this the court instructed the jury, “that malice aforethought of the statute means a wrongful act, done intentionally, and without legal cause or excuse.” And it is contended that this modification is erroneous. The words, malice aforethought, mean malice previously and deliberately entertained. They refer to the state of defendant’s mind anterior to, or at the time of, the homicide.
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By the Court,
Hawley, J.:
Defendant was convicted of murder in the first degree. This appeal is from an order of the court refusing him a new trial. Erank Durand (deceased) was shot and instantly' killed by defendant, in the Tent Saloon at Columbus, on the 4th day of May, 1873, about 11 o’clock p. m. He had just asked some parties in the saloon to take a drink, and at the time of receiving the fatal shot he was standing about six or eight feet from the counter, and eight or ten feet from the [128]*128front door. Defendant was in the street. No words were spoken by either party. Defendant claimed that the shot was fired in self-defense.
The defendant testified that he had been informed that Durand had at different times, within a month prior to the homicide, frequently threatened his life. That on the night of the homicide, he (defendant) in company with one Thompson and others left Jellison’s saloon, for the purpose of going to McDonald’s saloon, to Avitness a game of cards. “As I got up,” says defendant, “in front of the Tent Saloon, Thompson called out ‘look ! look ! Johnny ! Frank is going to shoot.’ I was in the act of stepping upon the porch when the words were spoken by Thompson. I looked inside of the saloon at the instant and saw Frank Durand * * * facing the door in a stooping position, with his hand on his pistol, as I supposed. I drew and fired, and ran without waiting to see the effect of my shot.” In addition to this statement of defendant, there was some testimony tending to show that when deceased fell, a pistol dropped from his side on the floor, and that “ just before the shooting, Durand faced the door in a stooping position.” A witness for the prosecution testified that within an hour before the homicide, Stewart and Durand were in the street, and that after some conversation about previous differences they “ agreed to be friends.” The testimony on the part of the prosecution tended to show that no one was present with defendant; that no remarks were made by any one; that no demonstrations were made by deceased, and that defendant’s version of the homicide was a fabrication. In connection with this testimony, the numerous exceptions to the instructions of the court will be considered.
1. The court refused to give the following instruction asked by defendant: “Fourth. If you believe from the evidence, that shortly before the killing, the deceased threatened the defendant’s life, and at the time the killing occurred [129]*129defendant had reason to believe, and did believe, that deceased was about to put his threat into execution, then you must find the defendant not guilty.” This refusal is assigned as error.
It was argued by counsel for the State that this instruction was properly refused because it was not pertinent under the facts. This position is untenable. The testimony was sufficient to authorize the giving of such instructions as were proper to present the question of justifiable homicide to tlm consideration of the jury. The court, however, was justified in refusing the instruction upon other grounds. The principle of law stated in the instruction, without qualification, is not correct. If the defendant could reasonably have avoided the difficulty without resorting to such extreme measures he should have done so.
The law of self-defense is founded on necessity, and in order to justify the taking of life upon -this ground it must not only appear that the defendant had reason to believe, and did believe, that he was in danger of his life, or of receiving great bodily harm; but it must also appear to the defendant’s comprehension as a reasonable man, that to avoid such danger it was necessary for him to take the life of the deceased. Without this qualification the instruction was clearly erroneous. State v. Ferguson, ante 106; 2 Cooley’s Blackstone, Book IV., p. 183; 1 Russ on Cr. 660-1; 2 Bishop on Criminal Law, Sec. 627 (544); Logue v. Commonwealth, 38 Penn. State, 268; Charge of Agnew J. in Commonwealth v. Drum, 58 Penn. State, 20; U. S. v. Mingo, 2 Curtis C. C. R. 5; State v. Wells, 1 Coxe (N. J.) 430; People v. Shorter, 4 Barbour, 472-483; People v. Hurley, 8 Cal. 391; Dupree v. State, 33 Ala. 389. Moreover, the court gave the second instruction asked by defendant, which was as favorable for him as the testimony, viewed.in any light, would warrant.
[130]*1302. The fifth instruction was properly refused. The jury had the right to believe such portions of defendant’s testimony as they considered true, and to disbelieve such portions as they considered false. His testimony, like that of other witnesses, is to be weighed and determined by the jury from all the surrounding circumstances of the case — his demeanor on the witness stand, the probabilities of his testimony being true or untrue, taken in connection with the testimony of other witnesses deemed reliable. In short, “the credit to be given to his testimony” should be (where the statute places it) “left solely to the jury.” Stats. 1867, 58; People v. Cronin. 34 Cal. 194.
3. It is claimed that the court erred in giving this instruction: “No threats or menaces made by the deceased against the defendant, John Stewart, can avail Stewart, unless he at the time of the killing was actually assailed, or had sufficient evidence to convince any reasonable person that he was in danger of incurring bodily injury or of losing his life at the hands of the deceased.” The correctness of this instruction, as applied to the case of the State v. Hall, ante 58, from which it is copied, is admitted by counsel for defendant. But he contends that it was not proper under the testimony in this case. Although carelessly drawn, we think the instruction, .considering all the testimony, was applicable and correct. Mere threats, unaccompanied by some demonstration of hostility from which the accused might reasonably infer the intention of their execution by deceased, would not justify the homicide. Nor would acts of hostility, however violent, of themselves excuse the slayer. There must be some overt acts or words at. the time clearly indicative of a present purpose - to do the injury. The defendant must show either that he was actually assailed or that he was menaced by the deceased at the time in such a manner as to induce him as a reasonable person to believe that he was in danger of his life or of re[131]*131ceiving great bodily harm. 2 Bish. Cr. Law, Sec. 651; State v. Hall, ante 58; Bohannan v. Commonwealth, 8 Bush, 488; Rippy v. State, 2 Head, 220; People v. Lombard, 17 Cal. 319; Johnson v. State, 27 Tex. 767; People v. Scoggins, 37 Cal. 683.
4. The court gave the following instruction asked by defendant’s counsel: “ Malice is a question of fact; and in this case the burden of proof lies upon the prosecution to satisfy the jury of the malice of the defendant. The jury ought not to presume that the defendant acted with malice unless they are satisfied it is just in this particular instance.” In connection with this the court instructed the jury, “that malice aforethought of the statute means a wrongful act, done intentionally, and without legal cause or excuse.” And it is contended that this modification is erroneous. The words, malice aforethought, mean malice previously and deliberately entertained. They refer to the state of defendant’s mind anterior to, or at the time of, the homicide. If defendant intended to and did take the life of deceased without any just cause or excuse, then the law presumes that such an unlawful act was done with malice aforethought. “Malice,” in its legal sense, “means a wrongful act, done intentionally, without just cause or excuse.!’ Burrill’s Law Dictionary; State v. Decketts, 19 Iowa, 448; Warren v. State, 4 Coldwell, 136; Murphy v. State, 30 Ind. 513; Commonwealth v. York, 9 Met. 104. No injury could possibly have resulted to defendant from this modification.
5. The bill of exceptions shows that the court read to the jury, as a part of the instructions in the case, “ Sections 18, 19, 20, 25, 26, and 27 of the ‘Act concerning crimes and punishments,’ approved Nov. 26, 1861.” (See Stats. 1861, 59, 60.) This is assigned as error. It is argued, first, that section 26 is inapplicable; second, that all the sections read should have been reduced to writing and delivered to the jury. Section 26 was clearly applicable. A bare fear that defendant is in danger of his life, or of receiving great bodily [132]*132harm, will not justify him in taking life. "Where the defendant claims that he acted in self-defense,'as well as in the other enumerated cases of justifiable homicide mentioned in section 25, “It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.”
Under the provisions of section 355, of the Criminal Practice Act, the instructions must be in writing. Oral instructions cannot be given except by the consent of the parties. But reading certain sections from the statute, is not giving oral instructions. If the court should have its entire charge printed it would, under well known rules of construction, be considered a compliance with the statute. The object of the statute was to require certainty, so that the exact language used by the judge in the court below might be presented to the appellate court. Was not this object accomplished by the specification, in the charge, of the sections read ? What difference could it possibly make to the jury, (or to the defendant), whether the court read from the statutes, or copied the sections ? Certainly none ; unless it was error not to give the instructions to the jury when they retired to deliberate upon their verdict.
Section 393 of the act provides that the jury may take with them certain papers (therein specified), “and also the instructions of the court.” (Stats. 1861, 477.) Whatever the rule, under this section, might be, if the jury requested the instructions, certain it is, that no error prejudicial to defendant could arise unless such a request was made and refused. It is usual and we think the better practice, for courts to copy such portions of the statute as are deemed applicable, and to deliver to the jury all the instructions given.
6. It appears from the bill of exceptions that the State was represented by two attorneys, the defendant by one. [133]*133That when the evidence was concluded, the district attorney opened the case for the prosecution; and at the close of his argument, the attorney for. defendant proposed to submit the case to the jury without further argument and objected to any further argument being made. This objection was overruled, and the associate of the district attorney was allowed to address the jury. It is claimed that this ¡was erroneous. The statute provides that “when the evidence is concluded, unless the case is submitted to the jury on either side or on both sides, without argument, the counsel for the people must open and must conclude the argument.” Stats. 1861, 472, Sec. 355. Either party may claim the privilege of addressing the jury,__ or of submitting the case without argument. If either party desired to submit the case without argument, it would be his or their duty, to make such a statement when the evidence was concluded. This would certainly be just and fair to the opposite counsel, giving him or them an opportunity to accede to such a proposal or to insist upon arguing the case. On the one hand, the counsel representing the State should, in case defendant’s counsel insists upon argument, be required, if so desired by defendant’s counsel, to open the case, stating the evidence and points to the jury, and citing the authorities to the court, upon which he relies for a conviction. On the other hand, the defendant’s counsel should not be allowed to convey the idea that he intends to argue the case, until after the opening argument was concluded, and then by proposing to submit the case without further argument, deprive the State of the opportunity of presenting its case in as full and clear a light as it might and probably would have done if such a proposal had been made when the evidence was concluded, and the court then have decided that but one argument was admissible. The objection not being made at the proper time, we are of opinion that the quéstion was within the discretion of the court, and the presumption [134]*134arises that it was properly exercised and that no error occurred.
7. The affidavit of Collins presents no question worthy of consideration. No juror should ever be allowed to impeach the verdict of the jury by testifying to his own misconduct, or by asserting his ignorance of the law. These principles are now too well settled to require discussion, or citation of authorities.
The recommendation to mercy constituted no part of the verdict, and should not have been recorded with it. People v. Lee, 17 Cal. 76.
The judgment of the district court and its order overruling defendant’s motion for a new trial are affirmed, and the court is directed to fix a day for carrying the sentence into execution.
Whitman, C. J., did not participate in the foregoing decision.