24 Ill. 241 | Ill. | 1860
On the trial of this cause in the court below, the defendant asked the court to give this among other instructions. :
“ If James Maher made an attack upon the defendant with a deadly weapon, at a time when the defendant was going away from him, and the circumstances of the attack were sufficient to excite the fears of a reasonable person that the said James Maher intended to do the defendant some great bodily harm, and defendant acted under the influence of such fears, and at the time struck the said James Maher and killed him, such killing is neither murder nor manslaughter, but justifiable homicide, and the prisoner should be acquitted.”
Which instruction the court refused to give as asked, but qualified it as follows :
“ Provided the jury believe the defendant used no more force than was necessary to prevent such bodily harm.”
This instruction as asked was not strictly accurate, as it should also have informed the jury, that the defendant must believe, from the surrounding circumstances, that the danger was real, and that he believed it was necessary that he should take the life of Ms assailant to preserve his own, or to avoid a great bodily injury. But when the qualification was added, this instruction became clearly erroneous. As it was given, and as it must have been understood by the jury, itideprived the defendant of the right of self-defense unless the danger was real and not apparent. This qualification lays it down as a rule of law, that an actual and positive danger must exist, before he could justify the killing. Although this is not the precise language employed, yet this is its manifest import, and the jury must have so understood it. This court, in the case of Campbell v. The People, 16 Ill. R. 17, held that a person when threatened with danger, must determine from the appearances and the surrounding circumstances as to the necessity of resorting to self-defense. And that if the danger was apparently so imminent, and pressing, that a reasonable and prudent man would suppose that it was necessary to take the life of his assailant, to preserve his own, or to avoid the infliction of a grievous bodily injury, then the killing would be justifiable. It cannot be true, that a man, ■when menaced with what would appear to a reasonable mind to be imminent danger, should wait until it is determined to be real, before he can act. There is no question that the person menaced must act in perfect good faith, and believe that it is really necessary that he should destroy life, to avoid what appears to be a real and imminent danger. This doctrine v?as again announced in the case of Schnier v. The People, 23 Ill. R. 17, and is decisive of this question.
No other error is perceived for which the judgment should be reversed. But for the 'giving the instruction as it was modified, the judgment of the court below must be reversed, and the cause remanded.
Judgment reversed.
