State v. Rader

BURNETT, J.

Substantially the facts disclosed by the evidence are these: The defendant is a man about thirty years of age, weighing about one hundred and eighteen pounds. He had ridden on the range after stock since he was a small boy, and had been dragged by a horse, injuring him severely and breaking his ribs. His arm had been broken and one of his legs had been fractured in two places. The deceased Mc-Oue was a man described in the testimony as weighing about two hundred pounds, well formed and muscular. The defendant attended to business for his father, who was a stock-raiser and owned the premises where the homicide occurred. It was known as the Johnson ranch and had been leased to a man named Stubblefield, who had assigned the lease or sublet the same to McOue. Contending that the tenant’s transfer was void, the senior Rader had been *435 endeavoring to get McCue off the place and had caused the defendant to serve upon him a notice to quit. No litigation on the subject is revealed by the testimony. In addition to this there was an unsettled account between McCue and Rader respecting the use and occupation of the Johnson place and some witnesses say that McCue admitted owing a balance to Rader, which he promised to pay, without admitting any certain amount. Some time in the autumn of 1917 he had vacated the Johnson place and taken up his residence in Malheur County. On his way, the defendant sought to collect the balance from him and he promised to pay when he returned. He came back in February, 1918, and brought with him some horses to which he intended to feed some hay left on the Johnson place.

On the day' of the homicide the defendant was at what is known as the "Wright place, some distance northerly from the scene of the tragedy. A neighbor, Mr. Hale, came along on his way to the town of Long Creek, which was still farther south than the Johnson place, and asked the defendant to accompany him to Long Creek, to which the defendant assented. The latter took with him an automatic pistol in the pocket of his chaps, also a rifle which he carried in a scabbard attached to his saddle. Both Hale and the defendant traveled on horseback. Before he reached the Johnson place the defendant dismounted, took the rifle from its scabbard and carried it across the saddle in front of him after remounting. He explains this change of its position by saying that he was afraid of one Guy Lunceford, who was in the immediate vicinity and with whom he had had some trouble before. He explains carrying both firearms by saying *436 that it had been his habit for several years while riding in the livestock business and that it was customary among range riders in that country to carry.firearms for the purpose of shooting wolves and other predatory animals, and that he had been riding after stock within the previous day or two.

On arriving at the house on the Johnson place, a one-room' cabin described as being fourteen by sixteen feet in dimensions, he said to Hale in substance that he wanted to see McCue for a moment, and went into the house, carrying the rifle on his arm. After a few minutes he reappeared at the door and invited Hale to dismount and come in to warm himself, as the day was very cold. Hale went in and found the defendant with his rifle still on his arm, and rolling a cigarette. After having been introduced to McCue, the conversation proceeded upon indifferent subjects, without any appearance of anger, until Eader asked McCue, “What are we going to do about this business?” and the latter answered, “I ain’t going to do a damn thing’ about it,” took up a pan that was on the stove and slammed it on a bench. At this point Hale, apprehending trouble, left the cabin and mounted his horse. Soon afterward he heard considerable noise as of a struggle in the house, and the defendant called to him for help. Hale at once dismounted, re-entered the house and found that McCue had the defendant prostrate on the floor, face downward, and was “churning” his head upon the floor. Hale intervened by telling McCue to let him have Eader and he would take him away. He says in substance that he was compelled to lift Eader from the floor, grasp bim under one arm and place the other over his shoulder and that he had dragged him around and while he was' *437 in a half reclining position in Hale’s arms they reached the door, when McCue made a dive at Rader and either struck at him or grabbed at him, saying, “You son-of-a-bitch, I will learn you something! ” At this juncture Rader, who had said nothing nor made any demonstration since Hale re-entered the house, fired his pistol twice in quick succession. These shots took effect in the abdomen of McCue. Hale found the rifle lying on the floor. It was not fired during the melée. Hale released Rader at the discharge of the pistol and started in pursuit of their saddle-horses, which had run away. On his return he found McCue lying on the bed in the southeast comer of the room. The dying declaration of McCue indicates that he went outside of the house and returned at once to his bed. In this he is corroborated by the defendant.

The defendant’s narration of the affray is to the effect that when he went into the house to see McCue there was no ill feeling manifested and nothing hostile occurred until he asked McCue what he was going to do about the business and the latter replied qs stated. He says that he had set his rifle down by'a small cupboard in the comer and was looking out of the west window when suddenly, without warning, McCue leaped upon him and struck him several severe blows, rendering him at least partially unconscious; that he-was engaged in beating him when Rader called to Hale for help, and that it was not until McCue had renewed the attack upon him while he was still in Hale’s arms that he fired, taking the pistol from his pocket. Rader and Hale immediately procured help and summoned a surgeon, who operated upon the decedent, but the latter died the following day.

*438 The dying declaration of the decedent is the only other evidence about the details- of the fatal affray. As narrated by the surgeon, McCue said:

“ ‘Fritz [meaning the defendant] came in here hunting trouble, with his gun and I knocked him down trying to get his gun away from him. ’ Mr. Hale came in — first—I think he said Hale — he said that — ‘Hale was going to take him out so he wouldn’t bother me. ’ Fritz began shooting, twice in the house and two or three times outside, he didn’t remember, McCue didn’t remember just how many times he shot outside. ‘He knocked me down and then I think there was two shots.’ One shot outside knocked him down, and then he -shot him through the head and arm. I don’t remember just the exact words, but that is as near as I can remember.”

Another witness, Charles Lunceford, attributes these words to McCue in his dying declaration:

‘ ‘ He came in and started trouble.' I saw he was going to use his gun, and I hit him and knocked him down and got his gun away from him, and would have got his pistol away and made it all right, but the other fellow came in [and had reference to Hale], and said he would take care of him, and he took him and started out with him, and he shot me twice in the stomach, and I' started towards him, and outside I fell, and he shot me in the head and arm after I was down. ’ ’

George Baird and Norman Caverhill give substantially the same account of the declaration.

In addition to the wounds in the- abdomen there was another in McCue’s right arm, and a fourth through the head from temple to temple. Rader’s account of the wound in the head and arm is substantially that when Hale fled at the beginning of the shooting, the defendant found himself lying on .a little platform in front of the door, with McCue bending *439 over Mm, whereupon he shot upwards from his recumbent position, inflicting the wounds as stated and that McCue turned around and walked away from the house and called for help, when Rader told Mm he would help him if he would quit, whereupon McCue returned to the house and laid himself on the bed.

On behalf of the defendant, S. J. Cardwell testified to meeting the decedent driving the horses on Ms return from Malheur County, and further gave evidence as follows:

“Q. Ton may state, Mr. Cardwell, what that conversation that you had with him at that time was.

“A. Well, perhaps I couldn’t state it all, but then I could state a good part of it, anyway. When we met we passed the time of day and I says, ‘You are going back, are you?’ ‘Yes,’ he said, he was coming-back, and he said he was coming back over to feed out his hay if it wasn’t destroyed. I asked him if he had any pasture and he said no, that the fence was all down, and I asked him if he wasn’t afraid to go back down there that way — I don’t remember whether I said, with his horses, or just asked him if he was afraid to go back down there that way. He said no, that he had come back to fight them sons-of-bitches the rub, and he said — I don’t know just exactly — I think he said there had been one little gun play made, and he said the trouble of it was that — he didn’t say Fritz — he said that he always brought some son-of-a-bitch with him when he came.

“Q. Did he say anything about making the smoke fly?

“A. Yes, sir.

“Q. What did he say about that?

“A. He said there had been one little gun play made, and the trouble of it was he always brought some son-of-a-bitch with Mm. He said that he came up one day, Fritz did, with a pistol around his waist and one on the horn of the saddle, and he said they had quite a set-to. He said he reminded him of a gun that *440 he had, in their talk, he said he had an envelope that he had laid down or lost it — I think he said laid down —at the farthest end of the stack — I don’t know where the stack was at or anything. It had some figures on it, and he said that Fritz put the spurs to his horse when he started after that. I asked him which way he went, from him or towards him. He said, not either, he said he went kind of sideways— or angling — I don’t know his words exactly; one or the other. He says, ‘ The next gun play that is made, the smoke is going to fly.’ That is about the words that he said.

“Q. He referred to whom when he referred to them as ‘sons-of-bitches’?

“A. He didn’t say who, only in his words, I remember him speaking of Fritz; he said Fritz was a harder man to get along with than George, in some speech, some part of his speech there.’.’ .

A. T. Meyer narrates a conversation with McCue as follows:

“I told him that I heard Mr. Rader tell Fritz to go down and tell him that he didn’t want him on the place. He says, ‘Well, if he ever bothers me he will get hurt,’ in a very menacing manner.”

J. A. Steach stated as a witness that on his return from Malheur County McCue had a conversation with him which the witness reports as follows:

“Then he spoke about coming back, and I understood him to say that the hay was undivided, and he said that he was out at the place and that old George Rader- — that is the words he used — had cussed and abused him out at the threshing-machine in the field and he had stood that abuse, but he said he wouldn’t stand any more, and he said, if Fritz Rader'came onto that place he would kill him.” x

Another witness, Paul Barr, speaking of McCue, testified thus:

*441 “"Well, sir, he said if Fritz Rader tried to drive them, horses out of there it would be the last time he would ever drive horses.”

It does not appear that any of these threats imputed to McCue were ever communicated to the defendant.

It is assigned as error that Charles Lunceford was permitted to testify that he talked with the defendant just prior to the latter’s arrival at the Johnson place and negotiated with him to buy the grass on that ranch and that the defendant first refused but finally said he could have it for $250. The defendant also complains of a ruling of the court allowing an attorney to testify that he had advised McCue that he had a right to remain on the Johnson place under the transfer from Stubblefield. Another ruling which the defendant attacks is the admission of testimony that the next day after the homicide the defendant had stated he would not permit any deputy sheriff to take him and would not allow any John Carter to be fooling around him, and, further, that he was not afraid of the law.

Mrs. Meyer, the defendant’s sister, was called as a witness for the defense to impeach the attending surgeon by relating a statement made by him contrary to his testimony at the trial. On cross-examination she admitted that she was considerably interested in the case because it was that of her brother and that she had been trying to get witnesses to tell the truth. The prosecution then offered a letter written by her under date of May 18, 1918, addressed to Mr. E. Barr, importuning him to come out with a statement and confession on behalf of her brother. After some language urging him in that line, the letter contains this statement:

“If you will do this, the whole country will applaud you and you can give yourself a higher standing than *442 you have ever had before, and I will say further you will be financially placed above want.”

Among others, the court gave to the jury the following instructions:

“Before a person is justified under the law of self-defense in taking the life of another, it must appear, first, that the danger is actually or apparently imminent ; and by imminent danger is meant an immediate danger, one that must be instantly met, and which cannot be avoided by reasonable efforts to prevent it; and second, the danger must be such that the defendant believes and has good reason to believe that he is in danger of losing his life or of great bodily harm; the danger must be that of a threatened felony. Third, he must use only such force as must be necessary, or honestly appear to him to be necessary at the time, to protect himself from such imminent danger.

“By ‘great bodily harm’ is meant more than a mere injury by the fist, such as is likely to occur in an ordinary assault and battery. The injury apprehended must be more severe and serious than that usually inflicted in an ordinary fight with the fists, without weapons. Fear of a slight injury is not sufficient. Nor will a mere assault, not felonious, furnish an'excuse for the taking of life. If the intention of the assailant is only to commit a trespass or simple beating, it will not justify his killing. But you may consider the relative size and strength of the parties and the ferocity of the attack in determining whether the intended beating, if any, was of such a character as to endanger life or limb, and if so, it will then be felonious and the assaulted person is justified in taking the life of his assailant, if necessary, to preserve his own person or to protect him from such felonious beating.

“Indirect evidence is of two kinds: inference and presumption. An inference is the deduction which the reason of the jury makes from the facts proved, without an express direction of law to that effect, and it may be founded on a fact legally proved, or on such a deduction from that fact as is warranted by a con *443 sideration of the usual propensities or passions of man, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature.”

The trial judge refused, among others, the following instructions requested by the defendant:

“If you find from the evidence that E. E. McCue, previous to the time he was shot, had made threats to kill the defendant or do him bodily harm, you have the right to take this into consideration, who was the aggressor.

“There has been some testimony in this case tending to show previous threats made by the deceased that were not communicated to the defendant. I instruct you that such threats, if you find there were any, should be considered by you in determining the feeling and intent of the deceased toward the defendant at the time of the encounter and as a circumstance to be considered by you as to whether or not the deceased so acted at the time of the shooting as to induce in the mind of the defendant an honest belief that the said E. E. McCue intended to kill him or do him great bodily harm.

“I instruct you that when a man is where he has a right to be, retreat is not necessary and he is not bound to retreat until his back is at the wall, as is the old saying, but he may stand -his ground and repel the attack and meet force with force if necessary, even to the extent of taking the life of his adversary.”

1. The matter about Lunceford’s endeavor to buy the pasture and the attorney’s advice to McCue about the validity of his tenure of the place were collateral matters which should have been avoided, as they neither add to nor take from the guilt of the defendant. There is nothing in the evidence to indicate that the defendant attempted to dispossess the deceased of the premises at the time of the homicide. If the deceased had been a defendant who had slain the pres *444 ent defendant while the latter was endeavoring to eject him from the land, he might have shown that he was rightfully there and had reason to believe in the justice of his possession, as tending to show that he was defending his property, but the converse is not necessarily true.

2. In principle, the testimony about the defendant’s saying the next day that he would not permit a deputy sheriff to take him, etc., is governed by State v. Meyers, 57 Or. 50 (110 Pac. 407, 33 L. R. A. (N. S.) 143). In that instance the defendant had killed a police officer while the latter had him under arrest and in the nature of relating a previous threat made by the defendant, a witness was allowed to say, “He said, ‘If they arrested me like that fellow was arrested, I would shoot them,’ ” alluding to the arrest of another party that had been made previously. The court said:

“It was a casual remark made several months before, and evidently did not refer to deceased. Nor was it shown to have referred to policemen or arresting officers as a class. The evidence was too remote to have any legitimate bearing upon the case at bar. * * The admission of this testimony was highly prejudicial to defendant, and was reversible error.”

If in the Meyers case it was prejudicial to the defendant to admit a statement of the kind, not alluding to the deceased in person or as a member of a class, although made before the homicide, much more is it prejudicial in the present case to allow such a statement, manifestly not alluding to the decedent and made after the homicide.

3. It was also error to admit the letter written by the defendant’s sister to Barr. There is nothing in the language of the letter indicating that it referred *445 to the present case or that Barr was expected to testify in this litigation. She had admitted her interest and explained the reason. Moreover, there is not a syllable of testimony indicating that the defendant knew about the letter or authorized his sister to write it. In People v. Dixon, 94 Cal. 255 (29 Pac. 504), it was set down as harmful to the defendant to allow a witness to testify to acts and declarations of third parties in the absence of the defendant and unauthorized by him in attempting to influence the witness to leave the country so as to avoid testifying in the case. In State v. Day, 22 Or. 160 (29 Pac. 352), it was held that:

“Before evidence can be received against a defendant in a criminal prosecution, of attempts to bribe or intimidate a witness for the state, the defendant must be shown to have authorized such attempts or be connected therewith.”

4. See, also: Brighton v. Miles, 151 Ala. 479 (44 South. 394); Owens v. State, 74 Ala. 401; Ashcraft v. Commonwealth, 24 Ky. Law Rep. 488 (68 S. W. 847); State v. Robinson, 37 La. Ann. 673; Commonwealth v. Robbins, 3 Pick. (Mass.) 63; People v. Long, 144 Mich. 585 (108 N. W. 91); State v. Jaeger, 66 Mo. 173. Under these authorities it was plainly prejudicial to the defendant even if the letter related to the present case, to allow the jury to hear the unauthorized statements of the sister to the effect that the action of Barr in behalf of her brother would place bim financially above want.

More important are the alleged errors respecting the instructions given by the court on the subject of self-defense. • In the first of the directions to the jury on that subject which have been quoted, the court charged the jury that the danger apprehended by the *446 defendant and which he resisted, “must be that of a threatened felony.” It is believed that the true rule on this subject is that an individual has the right to defend himself against any unlawful force, using only such opposing force as may be reasonably necessary to repel the attack upon himself; that he is entitled to act not only against real, imminent danger of harm to himself at the hands of an assailant, but that also he has a right to resist what reasonably appears to him, acting as a reasonable man under all the circumstances, to be a present threatened danger, although as the event may prove, the danger may not in fact be actual, and finally that the killing of an assailant will not be justifiable unless, judging of the situation froni the standpoint of a reasonable man under all the circumstances surrounding the defendant at the time, he has reasonable cause to believe himself to be in imminent danger of death or great bodily harm at the hands of his assailant. In State v. Sloan, 22 Mont. 293 (56 Pac. 364), the defendant and his wife had separated. Her father, described as being heavier and larger in every way than the defendant, who was a small man, met the defendant and after some conversation in the way of demanding the wife’s clothes and the defendant’s refusal to give them up, the father-in-law struck the defendant in the face with his fist, breaking the skin of his nose, causing the nose to bleed, got him around the neck with one arm and-continued beating him in the face. The struggle went on for a few moments, the decedent maintaining his advantage. Thereupon the defendant drew his revolver, which the deceased caught, but it was discharged, inflicting upon the decedent a fatal wound, from which he died in about three hours. The trial court instructed the jury as follows:

*447 “In order to justify the assault, and to slay an assailant, within the meaning of these instructions, there must be an apparent design on the part of such assailant to either take the life of the person assailed, or the infliction of some great bodily injury, amounting to a felony if carried out; and, in addition thereto, there must be imminent danger of such design being accomplished.”

Reversing the case and commenting upon this instruction, the Supreme Court said:

“The right of one assaulted to kill his assailant in self-defense should not be limited by his ability to distinguish between felonies and misdemeanors. He must be guided by a reasonable apprehension of death or great bodily harm. And the fear or apprehension of this latter from an unlawful beating at the hands of the assailant may be sufficient when the assault is lacking in some of the elements of felony”: See, also, Ritchey v. People, 23 Colo. 314 (47 Pac. 272, 384); McKinney v. Commonwealth (Ky.), 82 S. W. 263; State v. Robinson, 143 La. 543 (78 South. 933).

In Rogers v. State, 60 Ark. 76 (29 S. W. 894, 46 Am. St. Rep. 154, 31 L. R. A. 465), there was evidence tending to show that the decedent was the aggressor and, being a large, powerful man, he struck the defendant a violent blow with his fist and was about to throw him down when the first shot was fired. In commenting upon the phrase, “great bodily harm,” the trial judge stated that its meaning was “a felony committed on the person.” The Supreme Court of Arkansas, speaking by Mr. Justice Riddick, said:

“It means a ‘great bodily injury’ as distinguished from one that is slight or moderate, such as would ordinarily be an assault and battery with the hand or fist without a weapon. To put one in danger of great bodily injury from an assault something more than an attack with the hand or fist would usually be re *448 quired, and it would rarely happen that one might lawfully take the life of another to avoid an assault with the fist only. • But cases might be supposed when it would be justifiable to do so; for an assault and battery by a powerful man with his fist upon a weak one might be carried to such an extreme severity as to produce great bodily injury and yet be unaccompanied by such circumstances as to make it a felony. One who intentionally commits a great bodily injury upon the person of another may or may not be guilty of a felony, depending upon the circumstances; but, as such an injury may, under some circumstances, be committed, and still the offender not be guilty of a felony, it is therefore not accurate to define ‘great bodily injury’ as. ‘a felony committed on the person.’ What constitutes a great bodily injury and whether the circumstances in any case are such as to justify one in believing that such an injury is about to be committed upon him, and in defending himself against it, are matters which must be left, to a great extent, to the judgment of the jury.”

In State v. Keasling, 74 Iowa, 528 (38 N. W. 397), the jury had been directed respecting self-defense that:

“Under it the right to take life or to resort to the use of a deadly weapon in the resistance of an assault is made to depend upon whether the assault is # * felonious and the danger actual and urgent.”

This was held to be erroneous. In State v. Clark, 134 N. C. 698 (47 S. E. 36), the trial court had added to the defendant’s requested charge the proviso that the assault made upon the defendant was felonious or with felonious intent. The court, holding this to be error, said:

“But the addition to the defendant’s prayer for instructions was in itself erroneous. It was not necessary that the assault upon the defendant should have been felonious or committed with a felonious intent.”

*449 State v. Bowling, 3 Tenn. Cas. 110, is one the facts of which are almost identical with the one at bar. The court said:

“The means by which the great bodily violence is being threatened or inflicted, whether by the use or threatened use of weapons or by the overpowering strength of a stronger man, can make no difference; it is the fact of such violence, real and threatened, that gives the right of self-defense. Where such fact of real violence is found, and the party certainly exposed to it, or honestly believes himself so, then the right to defend against it is an essential element of every free man involved in the proposition that every man is entitled to enjoy life and liberty.”

The court in reversing and remanding the case said:

“The fact that the verdict of the jury rebuts the idea of malice, and the proof leads to the same conclusion, leaves the case to stand solely upon the rights of the party to kill to prevent actual violence of the severest character short of death, when inflicted by the blows of a fearful adversary whose strength he was unable to resist in a struggle. We cannot say he was criminal in freeing himself from such violence by the only means in his reach.”

In State v. Bartlett, 170 Mo. 658 (71 S. W. 148, 59 L. R. A. 756), the decedent, who was greatly superior in strength to the defendant, undertook to whip him publicly. After commenting upon the precedents on self-defense, the court, speaking by Mr. Justice Sherwood, used this language :

“But nothing above asserted is intended to convey the idea that one man, because he is the physical inferior of another, from whatever cause such inferiority ruay arise, is, because of such inferiority, bound to submit to a public horse-whipping. We hold it a necessary self-defense to resist, resent and prevent such humiliating indignity, — such a violation of the *450 sacredness of one’s person, — and that if nature has not provided the means for such resistance, art may; in short, a weapon may be used to effect the unavoidable necessity.”

In State v. Gray, 43 Or. 446 (74 Pac. 927), the defendant was going- along the county road adjoining the premises of the decedent. The latter hailed him and after a quarrel had ensued jumped over the fence, removed his coat and advanced toward the defendant in a menacing attitude, with threats to take away from the defendant a pistol which he had drawn and beat out his brains with it. In the scuffle which took place the pistol was discharged, inflicting a fatal wound. The decedent was much the superior of the defendant in physical strength, but had no weapon. The court instructed the jury as follows:

“But such right of self-defense as will justify the taking of the life of the assailant can only bo exercised to defend his life or defend his person from great bodily harm. But danger of a battery alone will not be sufficient to justify taking the life of his assailant.”

'The trial court refused to give the following instruction requested by the defendant:

“It is not necessary that the assault made by the deceased at the time upon the defendant Wilson Gray, if you find that an assault was made, should have been made with a deadly weapon. An assault with the fist alone, if there was an apparent purpose and the ability to inflict death or serious bodily injury by the deceased upon the defendant, Wilson Gray, is sufficient to justify the killing in self-defense, if the defendant Wilson Gray, at the time he shot and killed the deceased, had reason to believe, and did believe, that he was in imminent danger of death or great bodily harm at the hands of the deceased.”

*451 This court, speaking by Mr. Justice Wolverton, held that it was error to refuse the requested instruction, and among other things said:

“Retreat or avoidance of further conflict to prevent the taking of human life is only required where the assault is not accompanied with imminent danger to life or great bodily injury, real or apparent. Where, however, the assault is attended with such demonstration, and the present ability to execute it, whether the assailant is armed with a deadly weapon or not, as to indicate to the assailed, acting reasonably upon appearances, that he is in imminent danger of being beaten and maltreated, and probably disfigured or maimed, or his life imperiled, he has a right to withstand the assault, even to the taking of the life of the aggressor.

“No person has a right to advance into a public highway and administer a merciless castigation upon his neighbor who is lawfully there; nor does the law require that a person, when so assailed, shall stop to inquire to what extreme his aggressor will push the attack, but may act at once upon appearances, and resist it with such force as will effectually repel it. A strong, powerful man, with his fists alone is capable of visiting great physical injury upon his victim much his inferior in strength or endurance, and he may even thus take his life. Instances are not wanting where such results have followed. * * And the question as to the degree of danger attending the assault is one for the jury; they putting themselves in the place of the assailed, and acting as reasonable men upon the conditions as they appear to have existed. ’ ’

The second instruction on self-defense quoted above is an adaptation of language used by Mr. Chief Justice Bean in State v. Doherty, 52 Or. 591 (98 Pac. 152). In that case the defendant had treated some men, including the decedent, in a saloon. He requested the latter to treat the crowd, which the decedent did and began to make preparations to go home. *452 The defendant then demanded that he treat the crowd again and on his refusal began abusing Allen, the decedent, applying various opprobrious epithets to- him, when Allen got him by the throat and pushed him into the corner of the room, but did not attempt to strike him. After Allen had left the defendant and walked away at the request of the bartender, the defendant followed him up, still repeating his abuse, despite Allen’s request for him not to ask him to buy any more drinks. The defendant thereupon repeated his request, when Allen struck at him, and at that point the defendant drew his pistol, firing five shots at Allen, some of which took effect, killing him in a few minutes. There it was plain, beyond question, that the defendant was the aggressor from the beginning and that no more than a mere assault had been committed up to the moment of the shooting.

With respect to such a case this language of the court was used in commenting upon the Doherty case. That instance is essentially different from the present. The authorities cited in support of the assertion of the opinion that “if the intention of the assailant is only to commit a trespass or simple beating, it would not justify the killing,” do not sustain the text. For instance, in Floyd v. State, 36 Ga. 91 (91 Am. Dec. 760), the Supreme Court of Georgia expressly placed its decision on the ground that—

“It does not appear by the record that there was great superiority in physical strength on the part of the assailant over that possessed by Floyd, nor it appearing that Floyd was in ill health at the time, nor other circumstances existing at the time which produced- relatively great inequality between them for sudden combat, we are not able to find any fact in the case which would justify him in'repelling the blow with the fist by the use of his knife.”

*453 And in the other case cited supporting the doctrine of intention, State v. Benham, 23 Iowa, 159 (92 Am. Dec. 417), the court does not, as in the Doherty case, hold the defendant responsible for the intention of the assailant without qualification, but says:

“The physical capacity of the two persons would be an important consideration for the jury in determining the question whether the defendant in what he did was within the law of necessary self-defense. So the size and character of the ox-goad or weapon which the deceased seized or had, the manner in which he threatened to use it and the manner in which he entered upon the execution of that threat, would also be important considerations for the jury. Now, none of these circumstances are in any manner alluded to in the charge of the court. The attention of the jury should have been called to these circumstances, — that is to say, to the nature and character of the advance of the deceased upon the defendant. And the jury should have been directed to ascertain whether all the circumstances in evidence denoted or showed an intention on the part of Sheppard to take the life of Ben-ham or to do him some enormous, some dreadful bodily harm; if they did, then Benham in self-defense might lawfully take the life of his assailant, provided he used all the means in his power otherwise to save his own life or prevent the intended harm. ’ ’

As to the intent of his assailant, the defendant is affected not by what his actual intent was, but, as pointed out in the Benham case, by what the circumstances indicated was the intent. The instruction is erroneous in the same respect as the first one quoted, in stating that the beating, if it endangered life or limb, was felonious. This might or might not have been true, according to the circumstances of the case, and we can easily conceive of cases where great bodily harm could be inflicted without laying the assailant *454 liable to a charge of felony. The question of whether there was a real or apparent danger to the defendant of death or great bodily harm, is one of fact for the jury. The defendant is not bound at his peril to divine the intent of his assailant and determine at his peril whether he has a felonious purpose or whether the assault committed would turn out to be a felonious one. He is entitled to protect himself against death or great bodily harm, whether that great bodily harm be felonious or otherwise. When the court assumes to apportion the amount of real or threatened danger, it invades the province of the jury. It is not intended to -say that a defendant may in. all cases resort to homicide to protect himself against injury, for it is well settled and reasonable that defense is not to be used as an instrument of vengeance and must not be disproportionate to the real or threatened danger. But whether the threatened or inflicted injury is felodious or not, whether it be inflicted by the use of weapons or by the hands' or feet of one superior in strength, if it amounts to great bodily harm in the estimation of-the jury, the latter would have a right to justify the application of -sufficient force by the defendant to repel the danger, and if in reason it is apparently necessary to go to the extreme of homicide, the defendant is entitled to be acquitted.

In Hill v. State, 94 Miss. 391 (49 South. 145), the court had instructed the jury that:

“The words ‘great bodily harm,’ in contemplation of law do not mean such bodily harm as might have been inflicted by mere blows with the hands or feet.”

The defendant had' requested instructions to the effect that if deceased was physically capable of inflicting great bodily harm upon the defendant with his *455 hqnds or feet, and the defendant had reason to believe, and did believe, that the decedent was about to inflict such an injury upon him, and under such belief fired the fatal shot to protect himself from such harm, then it is immaterial whether the deceased was armed or not at the time of the killing. But “the requested instruction was refused. After laying down the rule in substance that where two combatants are equally matched and the attack does not furnish the defendant with reasonable grounds to apprehend danger to his life, or the inflicting of great bodily harm, the opinion goes on to say:

“But the trouble with this instruction * * for the jury is that it tells the jury, without qualification or modification of any kind, that the great bodily harm which the law contemplates never can be, under any circumstances, such as may be inflicted by mere blows with the hands or feet. This is palpably erroneous. There may be many cases in which the disparity between the combatants is so overwhelming that the one of superior physical power may inflict great bodily harm, or death itself, by mere blows with the hands or feet.”

In the present case there is evidence to the effect that the decedent had knocked down the defendant and had beaten him so that Hale was compelled to lift him to his feet; that without resistance he was being taken out of .the house by Hale and that under these conditions, without any hostile demonstration on the part of the defendant, McCue again attacked him, when the fatal shots were fired. Although many expressions have been used to the effect that a man rightfully may defend himself against a felonious attack, yet it is not reasonable or just to say that the attack must in all cases be a felonious one before the defendant is allowed to repel it with sufficient force *456 to prevent not only danger to his life bnt also great bodily harm, irrespective of whether the latter is effected by felonious means or not. Assault and battery is not a felony in this state: Laws 1911, Chap. 133. Yet all must agree that a strong, muscular man may inflict great bodily harm upon a weak or crippled one without being guilty of more than the misdemeanor defined in that statute. A felony is composed of two elements: the unlawful act, and the felonious intent. It is not the intent of the assailant which harms the one he attacks, neither is the latter bound by it nor required to ascertain it. He may repel the force employed against him, irrespective of the intent of his adversary, whether the latter' discloses it or not. It is the imminent danger, real or apparent, of great .bodily harm to himself which justifies a defendant in protecting himself. The ■ intent of the other party may be felonious or not, but it is not controlling. The weak man’s body, shattered though it may be by accident or disease, is his own and the law does not require him to submit to a severe beating likely to maim him or permanently injure him, at the hands of a powerful and greatly superior antagonist, all because the weak man cannot' hold' his own and the threatened injury will not be felonious but only a misdemeanor.

5. The language of the court about indirect evidence does not comply with our own statute on the subject as laid down in Section- 796, L. O. L., in that the instruction says the inference may (not must) be founded upon -a fact legally proved, and further going on in the alternative says that the inference may be founded' upon such a deduction from that fact as is warranted by a consideration of the usual propensities and passions of man, jtc., whereas the Code requires *457 the inference tó be founded not only upon a fact legally proved, but1 also, and not in the alternative, upon the deduction mentioned.

6. The court gave no instructions to the jury whatever respecting the uncommunicated threats delineated in the testimony, besides refusing those requested by the defendant, as above quoted. In State v. Tarter, 26 Or. 38 (37 Pac. 53), Mr. Chief Justice Lord wrote:

“Where the circumstances raise a question of self-defense, evidence of uncommunicated threats recently made is admissible for the purpose of showing the motive of the deceased', and the nature and character of the assault. So, also, proof of threats not communicated is often admitted for the purpose of corroborating evidence of those communicated; and, likewise, where it is doubtful from the evidence which party commenced the affray, communicated' threats are admissible to show who was probably the first assailant.”

State v. Quen, 48 Or. 347 (86 Pac. 791), was a case relating to threats, and Mr. Justice Moore declared that:

“Evidence of such threats, when recently made, or when so connected as to form a chain of menaces, evincing a present purpose, is admissible in doubtful cases to illustrate what may be deemed the reasonable actions of participants in an encounter, for the purpose of showing the quo ammo of the person making the threats and thereby increasing the probabilities that he was the aggressor at the time of the conflict.” (Citing authorities.)

See, also, State v. Doris, 51 Or. 136 (94 Pac. 44, 16 L. R. A. (N. S.) 660), and State v. Parker, 60 Or. 219 (108 Pac. 1011).

Although one of the requests is subject to verbal criticism respecting the words “tending to show,” yet *458 the defendant was entitled to instructions respecting the purpose for which the evidence of threats was admitted. It would he extremely technical utterly to omit all reference to a phase of the case so important as this because of so slight a variance from exact legal statement.

7. Under the authority of State v. Gray, 43 Or. 446 (74 Pac. 927), the last of the requested instructions above quoted respecting the doctrine of retreat when a man is where he has a right to he, should have been given. Some of the requests to charge, not here quoted, leave out of view the element that the extreme of killing must be apparently necessary as a defense.

8. It is essential that the defense must not he excessive or disproportionate to the force involved in the attack upon the defendant, all to be judged by the jury from the standpoint of a reasonable man in the situation of the defendant at the time, under all the circumstances surrounding him.

The trial of the case was characterized and the record burdened by investigation of several collateral matters unnecessary to a proper consideration of the case. It is believed that on a retrial the proceedings will be controlled within reasonable limits, for it is said in Section 725, L. O. L., that collateral questions shall be avoided.

On account of the errors mentioned the defendant is entitled to a new trial, and it is so ordered.

Reversed and Remanded.

Johns, J., concurs in the result of this opinion.