If the evidence of the defendant is true, he was awakened by his daughter between 11 and 12 o’clock at' night, and was told that there were some men outside trying to break in his home; he did not know the deceased; his wife and children, were in the house; the deceased and three other men were out-, side; as the defendant went to the door the deceased fired a pistol; the deceased said he was going in the house, and threatened to shoot the defendant; he was told to leave, but persisted in his conduct; the children of the defendant were crying and' screaming; the deceased had been kicking at the door and cursing the defendant, and said he was going in after him; he ran to the window and said he tvas going in at the G— d— window; he broke the glass in the window, and when some -member of the family pushed a bed in -front of that window, he ran to another window, and as he was raising his foot to kick it out, the defendant cracked'open the door and shot.
These circumstances were substantially embodied in the instructions requested by the defendant, and he was entitled to have them given to the jury without modification.
The guilt or innocence of the defendant does not depend upon the presence of a pistol in the hands of the deceased, as stated by his Honor, but in the existence of a reasonable apprehension that he or some member of his family was about to suffer great bodily harm, or of the reasonable belief that it was necessary to kill in order to prevent the violent and forceful entry of an intruder into his home.
The latter ground of self-defense was denied the -defendant by the modification of the instruction prayed for.
Mr. Wharton, in his work on Criminal Law, 9th Ed., vol. 1, sec. 503, says: “An attack on the house or its inmates may be resisted by taking life. The occupant of a house has a right to resist even to the death -the entrance of persons attempting to force themselves into it against his will, when no action less than killing is sufficient to defend the house from entrance. A man’s house, however humble, is his castle, and his castle he is entitled to protect against invasion,” and the same doctrine is enunciated in Bishop’s New Criminal Law, vol. 1, sec. 858; Hale’s Pleas of the Crown, vol. 1, sec. 458.
The facts in S. v. Nash,
The defendant is clearly entitled to have another jury consider his case.
New trial.