ALLEN
v.
UNITED STATES.

*678 No appearance for plaintiff in error.

Mr. Solicitor General for defendants in error submitted on his brief.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

The facts, as made to appear by the testimony on both sides, were substantially these:

The difficulty was between boys; the oldest, Philip Henson, was about seventeen; Alexander Allen, the defendant, about fifteen, and the other participants were about twelve and thirteen years of age. The first encounter was on Thursday, when a quarrel took place, sticks were thrown, and threats made. On Saturday there was another meeting, when hostilities were renewed. The evidence is conflicting as to whether Henson and his party crossed the fence into the Marks yard, and as to which party made the first assault. An undeniable incident was that Philip Henson was fatally shot by a pistol in the hands of Allen.

In this condition of the evidence the court gave under exception the following instruction:

"Now, gentlemen, these are the three conditions which I give *679 you in the case. I have told you that if it is true that this defendant went up on one side of the fence and when there struck Philip Henson in the mouth and then shot him, that is murder. On the other hand, if it is true that Henson and the other boys attacked him with sticks, and while that attack was going on and in the heat of that affray, and the sticks were not of a dangerous or deadly character, and under such circumstances he shot and killed Philip Henson, that would be manslaughter; but if there was an absence of that condition, then there is no manslaughter in it, nor could there be any self-defence in it. There could be nothing else but this distinct grade of crime known as murder; because self-defence, as I have before defined to you, contemplates the doing of something upon the part of the one slain, or the ones acting with him, that was either actually and really so apparently of a deadly character, or which threatened great violence to the person, or that which seemed to do so. If they assaulted him with these sticks, and they were not deadly weapons, and they were engaged in a conflict, and in that conflict the defendant shot Philip Henson, without previous preparation, without previous deliberation, without previous selection of a deadly weapon, without a contemplated purpose to use that deadly weapon in a dangerous way, then that would be manslaughter, and it could not be self-defence, because the injury received would not be of that deadly character or that dangerous nature that could give a man the right to slay another because of threatened deadly injury or actual great bodily injury received."

By this instruction the jury were shut up, in effect, to find either manslaughter or murder — the claim of self-defence was excluded. Or, rather, self-defence was eliminated if the sticks were not "deadly weapons." In this we think there was error. In one sense it may be true that sticks or clubs are not deadly weapons. Carrying them does not import any hostile intent, nor, even in view of an expected affray, a design to take life. But when a fight is actually going on sticks and clubs may become weapons of a very deadly character. Life may be endangered or taken by blows from them as readily as by *680 balls from a pistol. Hence we think that the jury ought not to have been told that there "could not be any self-defence in it;" and that "it could not be self-defence because the injury received would not be of that deadly character or that dangerous nature that would give a man the right to slay another because of threatened deadly injury or great bodily injury received." Such a question as that was one peculiarly for the jury, and we think that they should have been left free to say whether the accused had not a right, when defending himself from an attack made by several persons using sticks, to consider himself in danger of life or limb. The verdict found, that of murder, is, we think, convincing that the jury were misled by this instruction.

But we think there was another substantial error in the instruction complained of. The jury were told that if "in that conflict the defendant shot Philip Henson, without previous preparation, without previous deliberation, without previous selection of a deadly weapon, without a contemplated purpose to use that deadly weapon in a dangerous way, then that would be manslaughter and could not be self-defence."

This was objectionable, not only on the ground already considered, that it shut out from the consideration of the jury the claim of self-defence, but because of the assumption that if the defendant, in view of the previous threats that he was to be killed, and that Saturday had been fixed for the purpose, had armed him with a pistol and subsequently used it when attacked, it would have been not only not a case of self-defence, but not even of manslaughter, but of murder. The instruction was that using a deadly weapon, not previously selected with a purpose to use it, was, when used in circumstances of the kind shown, a case of manslaughter. Thus there was a necessary implication that, if the pistol had been previously procured, with a view to using it in self-defence, the defendant would be guilty of murder, if he discharged the pistol with fatal effect, even while defending himself from an attack threatening his life.

In this respect the instruction involved the same error which we considered in the case of Gourko v. United States, *681 153 U.S. 183, and where it was held that a person who has an angry altercation with another person, such as to lead him to believe that he may require the means of self-defence in case of another encounter, may be justified, in the eye of the law, in arming himself for self-defence; and if, on meeting his adversary, on a subsequent occasion, he kills him, but not in necessary self-defence, his crime may be that of manslaughter or murder, as the circumstances, on the occasion of the killing, make it the one or the other; and that if, looking alone at those circumstances, his crime be that of manslaughter, it is not converted into murder by reason of his having previously armed himself. In the case of Thompson v. United States, 155 U.S. 271, the same view was taken by this court, and the judgment of the court below was reversed because, at the trial, the jury was instructed that "the previous selection, preparation, and subsequent use of a deadly weapon shows that there was a purpose to kill contemplated before that affray existed, and whenever that exists, when it is done improperly and unlawfully so that there is no law of self-defence in it, the fact that they may have been in an actual affray with hands or fists would not reduce the grade of the crime to manslaughter." This language was regarded by this court as erroneous because it involved the assumption that the act of the defendant in arming himself showed a purpose to kill, formed before the actual affray.

Being, then, of opinion that the instruction was erroneous in withdrawing from the jury the question of self-defence, and likewise in telling them that the intentional arming himself with a pistol by the defendant, even if with a view to self-defence, would make a case of murder unless the actual affray developed a case of necessary self-defence, we reverse the judgment of the court below, and remand the case, with directions to set aside the verdict and award a new trial.

Reversed.

MR. JUSTICE BREWER dissented.