scare him. That he called to Dubois, and said, "I have a revolver. You keep away from me." Dubois did not stop, and he shot the revolver off into the air. That he was then running backwards, and Dubois running very fast after him, and, overtaking him, stopped him, knocked him down, and was on top of him when he (the respondent) fired the last shot. Respondent says: "I don't know, and I can't say, whether I shot it on purpose, or whether I did not; but I suppose I did. I was very much excited, and don't know how the revolver went off. I was lying there, and he was on top of me and pounding me, and all of a sudden I felt him grow limp, and knew that something had happened. I shoved him off of me, and Beatty came up, and I gave him my revolver. I did it because I had to protect myself."

The theory of the defense upon the trial was that those in the hotel having seen the trouble between Dubois and the respondent, by which Hull was either accidentally or intentionally pushed over the railing by Dubois, and knowing that Hull was afraid of Dubois, had got one of their number to throw something after him to frighten him back, and when he was coming back they told Dubois that he was coming back, and going to do him up. There was no direct evidence given of this upon the trial, and nothing to show upon this record this fact, except, as defendant's counsel claims, from the circumstances which are to be gathered from the facts proven, and the talk of the parties there that evening. It appears upon the cross-examination of Mrs. Dubois, the wife of the deceased, that Dubois, after returning from the barn, where Beatty had taken him after his conflict with Hull, came into the kitchen, and armed himself with a poker and a club, and said that he had put Hull over the railing, that he had never done anybody a dirty trick, and he was not going to be done up. When he left the kitchen, Mrs. Dubois says he took the poker, but did not say what for. This was an iron poker with a wooden handle. That he was gone out for a few minutes, when he came in again, and threw the poker down, and again went out of the kitchen. That this was the last time she saw Mr. Dubois alive. Mrs. Beatty was also called, and testified that she was in the kitchen when Mr. Dubois came in and said that he would allow no man to do him up, and alled Mr. Hull a bad name; that he threw him over the railing; and said, “I fixed him." The witness asked him how it was, and he shook his head, closed his Jips, and said, "Never mind; I fixed him." That he then went around by the stove, got the poker, and went towards the door, and just before he opened the door he shoved the poker under his right sleeve, then opened the door, and went out. That she called Mrs. Dubois' attention to it. After Dubois had left the kitchen, Mrs. Beatty went up-stairs, when she heard Dubois come in, and drop the poker and the club on the table. The poker and the club were afterwards found upon the kitchen table. The respondent testified, also, that his face was a mass of bruises

and scratches which he got from Dubois while he was on top of him, and before the second shot was fired. There was evidence given upon the trial tending to show that when he arrived at the jail his face was scratched and bruised. There was also evidence on the part of the prosecution, in rebuttal of this, tending to show that at the time he was taken from the Highland Park House by the officer there were no scratches or bruises on his face, and that the scratches looked as if they might have been made with the fingers. There were two scratches three or four inches long, and about an inch apart. The evidence also tended to show that the deceased was a violent and dangerous man, but all of the witnesses who testified to this also state that they never communicated this fact to the respondent. The prosecution gave evidence tending to show that the deceased was not a dangerous and violent character. The respondent also introduced evidence showing his good character prior to the time of the homicide. The prosecution also gave some testimony to show that after the first affray between the respondent and Dubois, by which respondent was thrown over the railing of the porch, respondent came into the bar-room of the hotel, and in a sportive manner struck one or two of the parties there with his hat. The physician who made the post mortem examination of Dubois testified to the direction the ball took in passing through his head; that its direction was upward from the point where it entered the face.

Shortly stated, these are the main facts and circumstances surrounding the transactions there that night by which Dubois came to his death, and from which respondent's counsel claims that, if any offense was committed by the respondent, it could be no higher degree than manslaughter. Felonious homicide is divided by our statute into three degrees,—murder in the first degree, murder in the second degree, and manslaughter. How. St. c. 317. All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary, shall be deemed murder of the first degree. All other kinds of murder shall be deemed murder of the second degree. The statute does not attempt to define the offense, but leaves the definition as it stood at the common law.

The court charged the jury that "murder is defined as where a person of sound memory and discretion, willfully and unlawfully and unreasonably, kills any creature in being, against the peace of the state, with malice aforethought, express or implied. Under the statutes of this state, all murders which shall be perpetrated by means of poison or lying in wait, or any other means of unlawful, deliberate, and premeditated killing, or which shall be committed in the perpetration of any arson, rape, robbery, or burglary, shall be deemed murder in the first degree. All other murders shall be deemed

murder in the second degree. If one, without cause, inflicts a wrong upon another, we call him wicked and malicious.' So, when one, without any legal provocation, justification, or excuse, intentionally kills another, he is called a 'murderer.' The law implies from such unprovoked, unjustifiable, or inexcusable killing the existence of that wicked disposition which the law terms malice aforethought.' Thus, if the respondent intentionally killed Mr. Dubois without provocation, justification, or excuse, your verdict should be, 'Guilty of murder. The intention may be inferred from the use of the deadly weapon in such a manner that the death of the person assaulted would be the inevitable conse quence. If you come to the conclusion that the respondent is guilty of murder, it will be your duty to determine whether he is guilty of murder in the first or second degree. Our statute provides, as I have stated, that all murders which shall be perpetrated by means of poison or lying in wait, or any other kind of unlawful or premeditated murder, shall be murder in the first degree." "To convict the respondent of murder in the first degree, you must be satisfied that he intended to kill Dubois, and that the killing was willful, deliberate, and premeditated." The court further stated in that connection: "It is not necessary that any particular time should have elapsed between the forming of the purpose, and the intention to kill, and the killing. If the respondent had, previous to the shooting of Dubois, determined to kill him, and, to carry out his intention, willfully and deliberately killed him, he would be guilty of murder in the first degree. If the killing was done under a sudden impulse, then respondent would be guilty of murder in the second degree. If you are not satisfied beyond a reason. able doubt that the killing was murder in the first degree, your verdict should be, 'Guilty of murder in the second degree,' if you find him guilty of murder at all. If a man kill another suddenly, and without provocation, the law implies malice, and it is murder. If the provocation was such as must have greatly provoked him, the killing would be manslaughter only. The instrument with which the killing was done must be taken into consideration. If inflicted with a deadly weapon, the provocation must be great, to make it manslaughter. The amount of resentment must bear a reasonable proportion to the provocation, to reduce the offense to manslaughter. To make it manslaughter, it is also necessary that the killing be done immediately upon the happening of the provocation. If sufficient time elapses for passion to subside and reason to interpose, the killing is deliberate, and the crime murder, no matter how great the provocation. Under the information in this case, the respondent may be convicted of murder in the first degree, of murder in the second degree, or manslaughter, or acquitted upon the grounds that the killing was justifiable, depending upon your view of the testimony. These are all the instructions which the court gave to the jury by which they might be guided in their determination as to wheth

99

er the offense committed was murder in the first degree, in the second degree, or manslaughter. The claim of the people, as shown by the testimony introduced upon the trial, certainly justified this charge; and we think it a very full and fair exposition of the law upon the state of facts as presented and claimed by the people. The different degrees of the offense charged in the information are fairly distinguished; and the court, under the circumstances, was warranted in leaving the question to the jury to determine the degree of the crime; and, if the jury believed that the killing was willful, deliberate, and premeditated, they were justified, under the circumstances and charge of the court, in so finding. The court carefully guarded the rights of the respondent under his claim and theory of the case.

The court charged the jury upon the question of justifiable homicide as follows: "Now, gentlemen of the jury, it is for you to say whether this respondent was assaulted in the manner claimed. The law gives to every person the right to protect themselves from unlawful assault. Where an assault is made, the right to resist exists; but the resistance must be in proportion to the danger which is apprehended. It is not every assault that would justify a person in using a deadly weapon. If, however, the person assailed honestly believes his life in danger, or that he may suffer serious bodily harm, he has the right to resist, even to taking the life of his assailant. The person assailed is to be judged by the circumstances and conditions as they honestly appeared to him at the time. The defense of self-defense necessarily assumes an assault. There can be no self-defense by a person until he is assaulted by another. It is for you to say, from all the evidence in this cause, whether the respondent honestly belived he was in danger of losing his life, or in danger of great bodily harm, and that it was necessary for him to fire this fatal shot in or der to save himself from such apparent and threatened danger. Although you may not be satisfied that the respondent, in committing the act, acted in self-defense, still, if the testimony in this case creates in your mind a reasonable doubt as to whether or not the act was done in selfdefense, the respondent is entitled to the benefit of the doubt, and it will be your duty to acquit him." This was a correct statement of the law.

From a careful reading of the record, we are satisfied. however, that certain proceedings took place upon the trial which had the tendency to prejudice the rights of the respondent, and that he has not had that fair and impartial trial to which he is entitled, and we are further satisfied that the court was in error in certain portions of his charge when referring to the respondent, and his claim of injuries received at the hands of Dubois. It appeared that when Mr. Beatty, the principal witness in the case for the prosecution, was upon the stand, and was being cross-examined by respondent's counsel, he was asked if a certain man by the name of Jones was there at the hotel, and also a colored man; and the witness testified that they were

Hull over the railing by accident, and that Hull had not testified truthfully when he claimed that Dubois struck him in the breast and intentionally knocked him over. He may or he may not have received such injuries by being knocked over as to cause soreness about his head; and the fact that there was no soreness might not in the last degree tend to show whether Hull was or was not telling the truth when he said that Dubois struck him in the breast and knocked him over.

The court also charged the jury as to the scratches upon the face of the respondent as follows: "Now, if there were scratches upon his face as claimed, were they received at the hand of the deceased, or did the respondent with his own hands, after the shooting, and on his way to the jail, or as he was entering the jail, make these marks upon his face?" The evidence tended to show, and it was claimed by the respondent, that his face bore evidence of the scratches and bruises inflicted by the deceased at the time the shot was fired. Mrs. Littlefield testified that, when respondent was brought to the jail the night of the shooting, she saw the scratches on his face. Dr. Mulheron testified to some scratches on his face. Mr. Carmichael, the reporter who interviewed him at the jail, says he saw scratches on his face that appeared as if they had been made with the fingers. On the other hand, the constable and Mr. Raupp, who accompanied him to the jail, testify that there were no marks upon his face at that time; but we think the court, under this -evidence, had no right to say to the jury that they could find that the respondent made these marks upon his own face on his way to the jail, in view of the testimony given by the constable and Mr. Raupp that on the way to the jail he did not meet with any accident.

sel, and not contradicted, that one of the jurors drank whisky at the bar of the hotel while they were viewing the premises. How. St. § 9569, provides: "The court may order a view by any jury impaneled to try a criminal case, whenever such court shall deem such view necessary." The court was not in error in permitting or directing a view of the premises by the jury; but we think it was the duty of the court, in the absence of the respondent, to have kept the jury while on their way, and their return from, and in their view of, the premises, under the supervision of an officer, so that no person might communicate with them, or express any opinion or give any directions in their hearing; for anything which took place which was in the nature of testimony certainly could not be given to the jury in the absence of the respondent. We think, also, that the juror was guilty of misconduct in drinking liquor upon the premises while he was in the line of his duty as a juror, under the direction of the court, to view the premises. It does not appear by the record who furnished this liquor, but it was procured in the very room and at the same bar where all the trouble had arisen between Dubois and the respondent. Whether the liquor was furnished by Beatty, the principal witness for the prosecution, does not appear; but it does appear that it was procured at the house of Beatty, where the tragedy occurred. We think this such misconduct that for this reason the case should be reversed, and a new trial ordered. The reversal, however, is not based upon this error alone, but also upon the other errors which we have pointed out.

We are unable to say upon this record that there were no facts shown, or circumstances, as claimed by respondent's counsel, which would warrant the court in submitting to the jury the question whether the respondent was guilty of murder in the first degree. Had it appeared upon the trial that respondent knew or had been advised that Dubois armed himself with a poker or club, and had made threats to fix him, or that the respondent knew Dubois to be a violent and dangerous man, it might be claimed, even upon the people's theory, that the respondent did not act with deliberation in firing at Dubois, and that there was no premeditation before the fatal shot was fired. The record does not disclose, although respondent's counsel sought to draw it out upon the cross-examination of Jones and Johnson, that either of those parties or Dubois headed the respondent

ing the jury together under the supervision of the court, or an officer of the court, while said view was being had; (3) that the court erred in not taking measures to prevent the jury from drinking spirituous liquors while that view was being had. It is admitted upon the record that the view of the premises was taken in the absence of respondent; that the jury were not kept together during that view, under the supervision of the court, or an officer of the court; and it appears by the affidavit of Mr. Hawley, respondent's coun

go home. As the record appears now, we are unable to say that the court should not have submitted the question as to the guilt or innocence of the respondent of murder in the first degree. For the reasons pointed out, however, the verdict must be set aside, and a new trial ordered.

MORSE and MCGRATH, JJ., concurred with LONG, J.

CHAMPLIN, C. J. I concur in reversal on the ground that the court permitted the

jury to view the premises unattended, and the misconduct of the jury.

GRANT, J. I concur in the result.

STEBBINS V. STEBBINS et al. (Supreme Court of Michigan. July 3, 1891.) WILLS-CONSTRUCTION-REPUGNANT PROVISIONS.

A will written by the testator provided: “I desire, as soon as convenient after my decease, that all my debts and funeral expenses be paid out of my means, which may be found in the hands of J. T., to the amount of $4,700, one note against H. C. P., two thousand dollars; another against P., O. & Co., to the amount of twenty-seven hundred dollars; also a certificate of deposit to the amount of eight hundred dollars," etc.; "also a mortgage of fifteen hundred dollars loaned to my brother Theodore T. Stebbins, secured on the house and three lots," etc. Item 1. "I wish my brother Theodore T. Stebbins, and his wife, Fanny, to hold and enjoy all said property during their natural life." Item 2: "After their decease I wish the property to be sold, and the avails divided between the Foreign Presbyterian Board of Missions and the Home Board of Presbyterian Missions." Succeeding items gave various specific bequests. Item 8 provides: "After all debts and expenses are paid, give the balance left in equal sums to the foreign and home boards of missions of the Presbyterian Church." Held, that "property" in the first and second items referred only to the mortgaged premises, and hence they were not inconsistent with the subsequent bequests; and that the "debts and expenses" mentioned in the eighth item referred also to the legacies, and that, therefore, the will was consistent with itself, and not void for repugnancy.

Appeal from circuit court, Wayne county; C. J. REILLY, Judge.

Bradley M. Thompson, for appellant T. T. Stebbins. Wilkinson & Post, for appellee. C. 1. Walker, for Am. Miss. Ass'n. Walker & Walker, for Harper Hospital.

MORSE, J. The bill in this case is filed to obtain a construction of the will of Nehemiah D. Stebbins. The disposing clauses of said will are as follows: "I desire, as soon as convenient after my decease, that all my debts and funeral expenses be paid out of my means, which may be found in the hands of Jacob S. Farrand, of the city of Detroit, to the amount of $4,700; in one note against H. C. Parke, of two thousand dollars; and another against Parke, Davis & Co., to the amount of twentyseven hundred dollars; also a certificate of deposit in the Commercial Bank, in the city of Detroit, Mich., to the amount of eight hundred dollars; perhaps some more, which will be found among my papers in the hands of nephew Abram L. Stebbins, of the city of Detroit, Mich.; also a mortgage of fifteen hundred dollars loaned to my brother Theodore T. Stebbins, this mortgage being a security on the house and three lots of land on which he now lives in the city of Dowagiac, Michigan, and now on file in the clerk's office of said county. Item 1. I wish my brother Theodore T. Stebbins, and his wife, Fanny, to hold and enjoy all said property during their natural life. The interest to be collected, if they wish, after their decease or close of life. Item 2. After their decease, I wish the property to be sold, and the avails of said property to be divided be

tween the Foreign Presbyterian Board of Missions and the Home Board of Presbyterian Missions, both expended on the Pacific coast, in California, Oregon, as the board may think best. Item 3. I give and bequeath to my son, Theodore W. Stebbins, the sum of five hundred dollars, also the large family Bible, if he desires it; if not, it may be put into the hands of my granddaughter, Emily D. R. Stebbins. Item 4. I give and bequeath, as a matter of indebtedness, to my niece, now Eugenia L. Benson, the sum of one hundred dollars. Item 5. I give and bequeath the sum of one thousand dollars for the purpose of raising a sum of twenty thousand dollars for the purpose of increasing the facilities for the education of nurses in the Harper's Hospital in the city of Detroit, now under the management of the First Presbyterian Church of said city. If it should not be raised, I direct it to be given to the Detroit missions in the Presbyterian church. Item 6. A small note of seventy-five dollars may be found against my brother Fitzallen Stebbins; if so, give it up to him or destroy it. Item 7. I give and bequeath five hundred dollars to the American Missionary Society. Item 8. After all debts and expenses are paid, give the balance left in equal sums to the foreign and home boards of the Presbyterian Church, unless extreme want shall be observed by my executor among my brothers and only living son. In such case I will leave it optional with him to give a portion or the whole as he shall in his judgment decide what ought to be done. Item 9. All my personal effects, such as books or clothing, I desire to be divided among my brothers and their families, giving my granddaughter, Emily D. R. Stebbins, the privilege of selecting from them if it is her wish."

The intent of this will is very plain to me, and it can be gathered entirely from the will itself, without resorting to any other means of construing it; and I think the circuit judge, Hon. C. J. REILLY, of the Wayne circuit court, came to the right conclusion, and the only one that the will is susceptible of. No other conclusion can be reached without making a different will than the testator plainly intended, or by destroying the will, when it is clearly, to my mind, a perfectly harmonious and val. id instrument. Courts should not seek out technicalities, or arrive at forced or far-fetched conclusions, in order to destroy a will, because of any idea that the testator has done his next of kin injustice, or conveyed his property away from his relatives, and given it to those who have no claim upon his bounty. Nor should the will be examined by a microscope to find some ambiguity or some contradiction by which it may be annulled in the interest of the heirs, however deserving or poor the heirs, or any of them, may be. The testator, if of sound mind and not unduly influenced in this case, had a right to dispose of his property as he saw fit; and it is the duty of the courts alone to seek out his intention, and to find such intention from the will construed as a whole, and to harmonize all the provisions, if possible, to that intent. It is not claimed either that the testator was of unsound mind