Grubb, J.:
—We are prepared to decide this question without hearing the other side. The Deputy Attorney-General has cited the case of State vs. Vincent R. Miller. If you will examine that case, as we have just done, you will find that there were a great many more facts furnished in that case than in this. We hold that there is not sufficient proof of a marriage before us to exclude the testimony of this witness at this stage, and therefore we refuse to exclude her testimony at this stage of the case. We consider that she is a competent witness in this case. Let her be sworn.
(The witness was thereupon sworn as a witness on behalf of the defendant and testified in effect that what Wilson did was in self-defense).
Gkdbb, J., charging the jury :
Gentlemen of the jury:—This indictment charges Samuel E. Wilson with an assault with intent to murder Edward Damph the prosecuting witness.
Under this indictment you may find the accused guilty either of assault with intent to murder, or of simple assault merely or not guilty of either, according as the law and the evidence may warrant your verdict.
In order to warrant you in finding that he is guilty in manner and form as he is indicted, that is, not only of the assault but of the assault with intent to murder as charged in this indictment, it is incumbent upon the State to satisfy you from all the evidence in the case, beyond, a reasonable doubt, not only that the alleged assault was committed by the accused but also that it was made by him with the intent to murder the prosecuting witness Edward Damph. Such intent to murder is absolutely material and essential to be proven as a fact in this case before you can find him guilty of the said assault with intent to murder.
An assault is an unlawful attempt by violence to do injury to the person of another, the person making the attempt having the present ability to commit such injury.
[84]*84As, in addition to the assault, the intent to murder is also charged in this indictment, it is necessary for us to define to you what murder, within ,the meaning of the law, is. For you must be satisfied from the evidence, beyond a reasonable doubt, that the prisoner’s alleged act (if Edward Damph’s death had actually been caused thereby) would be murder of the first or second degree, before you can render a verdict of guilty of the intent to murder.
To constitute the statutory offense of assault with intent to commit murder, the circumstances must be such as to show that it would have been murder if the assailant had accomplished such intent.
Murder is where a person of sound memory and discretion unlawfully kills any human being with malice aforethought, either express or implied. The chief characteristic of this crime, distinguishing it from every other kind of homicide, and therefore indispensably necessary to be proved, is malice prepense or aforethought.
Under the statute law of this State there are two degrees of murder, viz., murder of the first and murder of the second degree. The first is where the crime of murder is committed with express malice aforethought, or in perpetrating or attempting to perpetrate any crime punishable with death; and the second degree is where the crime of murder is committed otherwise, and with malice aforethought implied by law. The express malice which constitutes murder of the first degree, is proved by circumstances attending the act satisfactorily evidencing a sedate deliberate purpose and formed design to kill another, such as the deliberate selection and use of a deadly weapon, lying in wait, and the like.
Implied or constructive malice is an inference or conclusion of law from the facts found by the jury. Therefore murder of the second degree may be proved where it is not satisfactorily shown by the evidence submitted to the jury that the killing was done with a sedate deliberate purpose and formed design to take life, or in perpetrating or attempting to perpetrate any crime punishable with death, but is so shown that it was done suddenly, without [85]*85justification or excuse, and without any provocation, or without provocation sufficient to reduce the homicide to the grade of manslaughter, or in committing or attempting to commit a felony not capitally punishable, or some act of violence from which the law presumes malice.
Malice is implied by law from every deliberate cruel act committed by one person against another, no matter how sudden such act may be. For the law consideres that he who does a cruel act voluntarily does it maliciously. And whenever the act from which death ensues is proven by the prosecution, unaccompanied by circumstances of justification, excuse or mitigation, the law presumes that the homicide was committed with malice; and it is thereupon incumbent upon the prisoner to show by evidence that the killing was not malicious and therefore does not amount to murder.
Having explained to you what an assault is, and having also stated to you that in addition to the proof of the assault (if it has been proven to you) the prosecution must show the intent to murder the person named in the indictment—that is to kill him with either express or implied malice aforethought—it becomes necessary for us further to state to you how such intent to murder may be shown to your satisfaction.
The intent to commit murder may be shown by direct evidence of the intent—that is, by the express confession or declaration of the accused that he committed the alleged assault with intent to murder; or, if there be no such direct evidence, the intent to murder may be proved by the acts or the conduct of the accused, and other circumstances, from which the jury may naturally and reasonably infer the intent charged. For instance, it is a principle of law that every man must be presumed to intend the natural and probable consequences of his own voluntary or wilful act. So that from the use of a deadly weapon against another, the jury may infer the intent to commit murder, unless the circumstances in the case satisfy you to the contrary.
As to the question of the intent to murder as charged in this indictment, it is for you to say from the testimony before you [86]*86whether there is such evidence, taken in connection with all the facts in the case, as will warrant you in inferring that the accused assaulted Edward Damph with intent to murder him. Such intent, as we have said, being provable by and inferable from the voluntary, unlawful use, in a manner, or under circumstances perilous to human life, or directly tending to great bodily harm, of a loaded pistol or other weapon which the law considers a deadly weapon, or of any other instrument or missile reasonably likely to take human life when so used.
Samuel E. Wilson, the accused, admits that he shot Edward Damph, the prosecuting witness, but claims that he did it in necessary self-defense.
If the jury are satisfied upon consideration of all the evidence in this case that no unlawful violence against the person of Wilson was committed or attempted by Damph, but that the shooting by Wilson was done, not for his own protection, but to gratify a feeling of revenge or malice against Damph, then his plea of self-defense cannot avail for his acquittal, as it otherwise might do.
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Grubb, J.:
—We are prepared to decide this question without hearing the other side. The Deputy Attorney-General has cited the case of State vs. Vincent R. Miller. If you will examine that case, as we have just done, you will find that there were a great many more facts furnished in that case than in this. We hold that there is not sufficient proof of a marriage before us to exclude the testimony of this witness at this stage, and therefore we refuse to exclude her testimony at this stage of the case. We consider that she is a competent witness in this case. Let her be sworn.
(The witness was thereupon sworn as a witness on behalf of the defendant and testified in effect that what Wilson did was in self-defense).
Gkdbb, J., charging the jury :
Gentlemen of the jury:—This indictment charges Samuel E. Wilson with an assault with intent to murder Edward Damph the prosecuting witness.
Under this indictment you may find the accused guilty either of assault with intent to murder, or of simple assault merely or not guilty of either, according as the law and the evidence may warrant your verdict.
In order to warrant you in finding that he is guilty in manner and form as he is indicted, that is, not only of the assault but of the assault with intent to murder as charged in this indictment, it is incumbent upon the State to satisfy you from all the evidence in the case, beyond, a reasonable doubt, not only that the alleged assault was committed by the accused but also that it was made by him with the intent to murder the prosecuting witness Edward Damph. Such intent to murder is absolutely material and essential to be proven as a fact in this case before you can find him guilty of the said assault with intent to murder.
An assault is an unlawful attempt by violence to do injury to the person of another, the person making the attempt having the present ability to commit such injury.
[84]*84As, in addition to the assault, the intent to murder is also charged in this indictment, it is necessary for us to define to you what murder, within ,the meaning of the law, is. For you must be satisfied from the evidence, beyond a reasonable doubt, that the prisoner’s alleged act (if Edward Damph’s death had actually been caused thereby) would be murder of the first or second degree, before you can render a verdict of guilty of the intent to murder.
To constitute the statutory offense of assault with intent to commit murder, the circumstances must be such as to show that it would have been murder if the assailant had accomplished such intent.
Murder is where a person of sound memory and discretion unlawfully kills any human being with malice aforethought, either express or implied. The chief characteristic of this crime, distinguishing it from every other kind of homicide, and therefore indispensably necessary to be proved, is malice prepense or aforethought.
Under the statute law of this State there are two degrees of murder, viz., murder of the first and murder of the second degree. The first is where the crime of murder is committed with express malice aforethought, or in perpetrating or attempting to perpetrate any crime punishable with death; and the second degree is where the crime of murder is committed otherwise, and with malice aforethought implied by law. The express malice which constitutes murder of the first degree, is proved by circumstances attending the act satisfactorily evidencing a sedate deliberate purpose and formed design to kill another, such as the deliberate selection and use of a deadly weapon, lying in wait, and the like.
Implied or constructive malice is an inference or conclusion of law from the facts found by the jury. Therefore murder of the second degree may be proved where it is not satisfactorily shown by the evidence submitted to the jury that the killing was done with a sedate deliberate purpose and formed design to take life, or in perpetrating or attempting to perpetrate any crime punishable with death, but is so shown that it was done suddenly, without [85]*85justification or excuse, and without any provocation, or without provocation sufficient to reduce the homicide to the grade of manslaughter, or in committing or attempting to commit a felony not capitally punishable, or some act of violence from which the law presumes malice.
Malice is implied by law from every deliberate cruel act committed by one person against another, no matter how sudden such act may be. For the law consideres that he who does a cruel act voluntarily does it maliciously. And whenever the act from which death ensues is proven by the prosecution, unaccompanied by circumstances of justification, excuse or mitigation, the law presumes that the homicide was committed with malice; and it is thereupon incumbent upon the prisoner to show by evidence that the killing was not malicious and therefore does not amount to murder.
Having explained to you what an assault is, and having also stated to you that in addition to the proof of the assault (if it has been proven to you) the prosecution must show the intent to murder the person named in the indictment—that is to kill him with either express or implied malice aforethought—it becomes necessary for us further to state to you how such intent to murder may be shown to your satisfaction.
The intent to commit murder may be shown by direct evidence of the intent—that is, by the express confession or declaration of the accused that he committed the alleged assault with intent to murder; or, if there be no such direct evidence, the intent to murder may be proved by the acts or the conduct of the accused, and other circumstances, from which the jury may naturally and reasonably infer the intent charged. For instance, it is a principle of law that every man must be presumed to intend the natural and probable consequences of his own voluntary or wilful act. So that from the use of a deadly weapon against another, the jury may infer the intent to commit murder, unless the circumstances in the case satisfy you to the contrary.
As to the question of the intent to murder as charged in this indictment, it is for you to say from the testimony before you [86]*86whether there is such evidence, taken in connection with all the facts in the case, as will warrant you in inferring that the accused assaulted Edward Damph with intent to murder him. Such intent, as we have said, being provable by and inferable from the voluntary, unlawful use, in a manner, or under circumstances perilous to human life, or directly tending to great bodily harm, of a loaded pistol or other weapon which the law considers a deadly weapon, or of any other instrument or missile reasonably likely to take human life when so used.
Samuel E. Wilson, the accused, admits that he shot Edward Damph, the prosecuting witness, but claims that he did it in necessary self-defense.
If the jury are satisfied upon consideration of all the evidence in this case that no unlawful violence against the person of Wilson was committed or attempted by Damph, but that the shooting by Wilson was done, not for his own protection, but to gratify a feeling of revenge or malice against Damph, then his plea of self-defense cannot avail for his acquittal, as it otherwise might do.
The law accords to every one the right to protect his person from assault and injury by opposing force to force, and he is not obliged to wait until he is struck by an impending blow; for if a weapon be raised in order to shoot or strike, or the danger of other personal violence be imminent, the party in such imminent danger may protect himself by striking the first blow for the purpose of repelling and preventing the attempted injury. But the opposing force or measure of defense must not be unreasonably disproportionate to the requirements of the occasion. Although so much force as is reasonably necessary may be used, yet if the violence used is greater than was necessary, under the circumstances, to repel the assault or avert the peril, the party using it is himself guilty; for the law recognizes the right of self-defense for the purpose of preventing but not of revenging an injury to the person of the accused.
Where one is assaulted upon a sudden affray, and in the judgment of the jury, honestly believed on reasonable and sufficient [87]*87grounds, that he was in imminent danger of being killed, or of receiving great bodily harm, he would have, in self-defense, the right to use a deadly weapon against his assailant. But in exercising such right of self-defense, in a manner likely to cause death or great bodily harm to his assailant, he must be closely pressed by him, and must have retreated as far as he conveniently and safely could, in good faith, with the honest intent to avoid the violence and peril of the assault. If these be so sudden, fierce or urgent as not to allow him to retreat, or to have other probable means of escape then he may rightfully use a deadly weapon in his defense.
In conclusion, gentlemen of the jury, we remind you that the State must prove to your satisfaction, beyond a reasonable doubt, either the assault with intent to murder, or the simple assault, as charged in this indictment, before you can find a verdict of guilty of either offense.
A reasonable doubt is not a mere imaginary, whimsical, or even possible doubt, of the guilt of the accused, but is such a real and substantial doubt as intelligent and impartial men may reasonably entertain upon a careful consideration of all the relevant facts proven in the case.
The jury disagreed.