Page:Palmore v. State.pdf/20

VOL. 29] Rh  The 6th instruction asked for by defendant is: "If the jury believe from the evidence that the killing was done in defense of an attack by the deceased, it is their duty in deciding upon the character of the defense to carefully examine and consider all the circumstances of the rencontre, the true situation of the parties at the time, their respective feelings and intentions as shown by their acts, their threats, and their relative strength and power; because in a contest between a powerful individual and a weaker, the necessity of taking life in self defense will be more apparent and easily discoverable."

This instruction should have been given. In testing instructions, every deduction which the jury might have made from the testimony is to be taken as proved. Phillips v. Com., 2 Duval, 388.

The 8th instruction of the defendant which the court refused to give, is: "If the jury believe from the evidence that defendant was on the route home, and called at Mangum's to correct a false report said to have been circulated by defendant about said Mangum; and to ascertain or demand of deceased if he had threatened to cowhide defendant, and that upon making such inquiry of deceased, the latter, by his  manner and words, manifested an intent, coupled with acts, to kill or inflict bodily harm upon the defendant, and immediately sought to carry such purpose into effect, the defendant, in the reasonable fear of such consequences, was justified in taking life."

The latter part of this instruction is too general and unqualified, and was liable to the same objection which was given to his instruction No. 9, and the court below properly refused it.

The court, of its own motion, gave the following instruction: "The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof on the part of the prosecution, it is sufficiently manifest that the offense