Keener vs. The State.

ning an affray, and as tending to justify, perhaps, more vigorous defence of any supposed offensive movement on the. part of Green.”

[6.] The true distinction, we apprehend, as to the admissibility of evidence of threats, and one apparently overlooked in many of the cases, is this: when sought to be introduced. by the defendant as a justification for the homicide, and without any overt act, he must show that they have been communicated; otherwise they can furnish no excuse for his con- . duct; but when offered to prove a substantive fact, namely: the state of feeling entertained by deceased toward the accused, it is competent testimony, whether a knowledge of the threats be brought home to the defendant or not.

[7.] I will merely add, that the remoteness or nearness of time, as to threats and declarations, pointing to the act subsequently committed, makes no difference as to the competency of the testimony. (3 Strobhart's L. R. 517, note.)

Upon the authority of the note, then, as laid down by Mr. Starkie and others, and as illustrated by numerous adjudicated cases, we are clear that the testimony of Cosby should have been admitted, as it conduced to prove, in connection with other evidence, the quo animo with which Reese resorted to the brothel on McIntosh street that night; and that his manner and conduct corresponded with that purpose, so as to warrant Keener in believing that the same scenes were to be repeated there that night, which had been re-enacted several times before; and that no alternative would be left, but to retreat again as he had done before, twice or three times, or take the consequences.

In view then, of the frequent failure of justice, from the failure of evidence-and thoroughly convinced, as we are, that no competent means of ascertaining the truth ought to be neglected, we think the testimony of James Cosby was improperly ruled out. It was pertinent to the issue, and ought to have been submitted to the Jury. It showed the intent with which Reese resorted to this brothel; and, also, his feelings toward the defendant.

Keener vs. The State.

[8.] We propose to consider and dispose of the 6th, 7th, 8th and 9th assignments of error together. They present, for our review, the main questions in this case; all the rest are comparatively of minor importance.

In his charge to the Jury, the Court, in the language of the bill of exceptions: "failed, omitted and declined, although requested by the Counsel for the prisoner so to do, to read to the Jury or comment upon the 12th and 13th sections of the 4th division of the Penal Code, upon which Counsel for prisoner had mainly relied for his defence. The Court having read the 1st, 2d, 3d, 4th, 6th and 7th sections, then charged the Jury that the section of the Penal Code, applicable to the grounds on which the defence had been placed, was as follows: reading the 15th section; to which failure, omission and refusal to charge, and charge as given, Counsel for prisoner excepted."

"The Court was also requested, by Counsel for prisoner, to charge the Jury as follows:

1st. That if they believed, from the evidence, that the prisoner, at the time of the commission of the act, was under the fears of a reasonable man, that the deceased was manifestly intending to commit a personal injury upon him—amounting to felony, the killing was justifiable homicide.

2dly. That if they believed, from the evidence, that the prisoner was under similar fears of some act of violence and injury, less than a felony, his offence was manslaughter, and not murder."

"Which charge, so requested, the Court failed and refused to give; to which failure and refusal, Counsel for the prisoner excepted." It is also assigned as error, that the Court failed and omitted to read to the Jury and comment upon the 9th, 10th and 11th, as well as the 12th and 13th sections of the 4th division of the Penal Code, although requested by Counsel so to do.

I would remark, that by reference to the bill of exceptions, I do not find that any request was made of the Court to give in charge and expound to the Jury the 9th, 10th and 11th

Keener vs. The State.

sections of the 4th division of the Code. These three sections relate exclusively to involuntary manslaughter; and there is not a particle of proof to make this killing that of fence. It was murder, voluntary manslaughter or justifiable homicide. The Court was right, therefore, in pretermitting that portion of the Code which defines, with its sub-division, involuntary manslaughter, and annexes a penalty to each grade of the offence. Counsel for prisoner do not pretend that this law is applicable to his case. To give it in charge to the Jury, then, would be to distract and burden their minds, unnecessarily and improperly. Whether or not there was error in the remainder of these assignments, depends upon the fact of whether there was any evidence upon which the Jury might have mitigated the offence from murder to a lower grade of homicide. We go one step further: If the cirstances of the killing were such as to leave any doubt whether Keener had not been actuated by the principle of self-preservation, rather than that of malice, we shall be constrained to remand this cause for a new trial. For the question, whether Keener killed Reese to prevent Reese from killing or doing him some great bodily harm, has not, in the opinion of this Court, been fully submitted to the Jury. A part of the law only, applicable to the defence, was given; and where a man's life is at stake, it is fit and proper to allow him the benefit of every provision of the Code.

[9.] In every charge of crime, there must be a question of law, and a question of fact. Is there any such rule of law as that on which the indictment is founded? Has the defendant violated that rule? The decision of both of these is necessarily involved in the general verdict of "guilty" or "not guilty"-the only form of verdict allowed by our Code. The former finding affirms both the existence of the law and its violation by the accused; the latter, either that there is no such law, or that it has not been transgressed. It is the duty of the Judge to declare to the Jury what the law is, with its exceptions and qualifications; and then to state hypothetically, that if certain facts, which constitute the offence, are

Keener vs. The State.

proved to their satisfaction, they will find the defendant guilty; otherwise, they will acquit him.

In this State-in all free governments-in tenderness to the accused, great latitude has been allowed to Counsel in stating and enforcing their views of the law in criminal cases. And a liberal confidence has been reposed in those who are called to defend the liberty and life of the citizen in the hour of trial. And where Counsel, in their place, under their professional obligations to the Court and the country, insist that certain portions of the law apply to the facts of their client's case; especially where it is capital, it would be better to read the law to the Jury, with such comments and explanations as the Court, possessing the superintending power, might feel it to be its duty to give.

The theory of our system is, that the Jury have not only the power, but the right, to pass upon the law, as well as the facts, in rendering their verdict; and yet, this anomaly stares us in the face, that they are not permitted even to take the Code to their consultation room. They know nothing of the law, except so much and such parts of it as are given them in charge by the Court. This fact alone, is strongly suggestive of the propriety of withholding no law from them, which they are entitled to consider. Suppose, as in the present case, it were doubtful whether this offence, as proven by the witnesses, came under the 12th and 13th sections of the 4th division of the Penal Code, as contended for by the defendant's Counsel, or under the 15th section, according to the opinion of the presiding Judge, should not both have been submitted?

In Case's English Liberties; or, The Freeborn Subject's Inheritance, 201-'2, it is said, "the office and power of Juries in criminal cases, is judicial; from their verdict there lies no appeal; by finding guilty or not guilty, they do complicately resolve both law and fact." And that in a criminal trial, the Jury may determine the law and the fact of the case, has been supported by every English Judge, except Chief Justice Jeffries, in the case of Col. Sidney, (3 Har

Keener vs. The State.

grave's State Trials, 805.) And to their credit be it spoken, that the Juries have always been right on fundamental questions of liberty and popular right. (1 Chandler's Crim. Trials, 143, 149, 153, 269, 288. Yenger's Case, 17 Howell's State Trials, 675, 724.)

But how can they judge of law which is not before them? There is no alternative-either the Courts must refer to the Jury the whole law of the case, or the supposed distinction between the power of Juries in civil and criminal cases, should be abolished.

[10.] With these preliminary remarks, we proceed to examine the 12th, 13th and 15th sections of the 4th division of the Penal Code.

By the 12th section, it is enacted, that "there being no rational distinction between excusable and justifiable homicide, it shall no longer exist. Justifiable homicide is the killing of a human being by commandment of the law, in execution of public justice; by permission of the law, in advancement of public justice; in self-defence, or in defence of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either; or against any persons who manifestly intend and endeavor, in a riotous or tumultuous manner, to enter the habitation of another, for the purpose of assaulting or offering personal violence to any person dwelling or being therein." (Cobb's Digest, 784.)

Section 13th, declares that a bare fear of any of those of fences, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing; it must appear that the circumstances were sufficient to excite the fears of a reasonable man; and that the party killing really acted under the influence of those fears, and not in the spirit of revenge." (Ib.)

Section 15th, provides that, "if a person kill another in his defence, it must appear that the danger was so urgent and pressing, at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary;