132 Mich. 23 | Mich. | 1902
(after stating the facts). We think the court erred in this instruction. The affray took place in the respondent’s store. He claimed that he acted in self-defense. The complaining witness admitted that he was under the influence of liquor when both altercations occurred. Previous assaults, the conduct and threats of the complaining witness, were competent for.the jury to consider in determining the state of mind of the defendant and the character of his acts. The respondent was justified in acting in view of the surrounding circumstances as they appeared to him at the time. If the complaining witness had made a previous assault upon him for the same cause on the day before, and his attitude and conduct were such as to justify a belief that he was in the act of commencing another assault upon him, the law did not require him to wait until an actual assault had been made. Galbraith v. Fleming, 60 Mich. 403 (27 N. W. 581).
Conviction reversed, and new trial ordered.'
