#### THE STATE *vs. J. R.*BRYSON.

The declarations and admissions of a party to a suit., civil or criminal, pertinent to the issue, may be given in evidence against him by the oth? or party. ,

It is not the belief, simply, of a man that he is about to be stricken, which trill justify.him in striking first, hut his belief founded on reasonable grounds of apprehonsiun. '

One who seoks a fight, or provoker, another to strike him, cannot justify returning the blow on the gi’cinnd ot self-defence.

- This was an indictment for' an- assault and battery'by tbe defendant on L. S. Crash, tried nefore Readh, J., at Fall Term, 1864, of Henderson Superior Court.

Tbe State offered evidence tending to show that the defendant met Gash in the-street and knocked him down with his walking cane, without provocation. The defendant offered evidence tending to shew, that, at the time he struck Gash, Gash had a knife in his hand, hoM up in a s tri kin g*p o sition at the distance of four or six feet from him. The State offered evidence tending ¡o show that a short time before tbe fight, the defendant said he intended to give Gash a caning. The defendant objected to his declarations being given in evidence; but the Cour t admitted them-

The defendant’s counsel asked t.h<‘ Court to charge the jury, that if defendant, at the timo’ lie struck- Gash, be.lieved that Gash was about, to strike him with the knife, that, then the defendant had a 'right to strike him first. The Court declined so to charge, but instructed the jury,, that if defendant struck Gash, he was guilty,-unless he struck in self-defence : that if the jury believed, that the *87defendant'had good reason t® believe, and Mid believe, that Crash was about to strike him, that then the ..defendant had the right to strike him first, unless the jury believed that, the defendant sought the fight, or provoked Crash to attack him ; in which case, the defendant would he guilty. - ■

Verdict — ^guilty and judgment accordingly, from which defendant appealed. • .

Attorney General for the State.

*W. TT. Bailey*for the defendant.

MaNLV, J.

This ease is'brought before us upon exceptions to the ruling of the Court below, in a matter of evidence, and also for the refusal of the Judge to give certain instructions asked for, and for giving other instructions aliedged to be erroneous! ,

1. We are not informed of any ground upon which the pvülonce' is deemed' inadmissible. Ordinarily, in both civil and criminal causes, the declarations and admissions of one party may he introduced hy the other. There are exceptions to this tule, but the case before-us does not fall under any of these exceptions.'

The defendant was indicted' for: a battery on L. S. Gash, and, on the trial, his case” was made to turn on the question whether the battery was in self-defence or other? wise. His prov'ous declarations, that he intended to give Gash a caning, were certainly pertinent to ..he-inquiry, ami, therefore, for'aught we can see, admissible.

2. The instructions asked for were properly refused. The Court was req uested to charge the jury that *“*if defendant, at the time he struck Ga*sh, believed Gash was about to ffirike-bim with the knife, that then the defendant had the right io strike Gash,first.’/

*88'. A right to act in-self-defence. does not depend upon the special state 8f mind oí.' the subject of inquiry. He ia judged by the rules which are applicable to men whosp •nerves are in an ordinarily sound and healthy state ; and whatever may be his personal apprehensions, if he has not reasonable ground to support them, he will not be protected by the principle of self-defence. *

The normal condition of the human passions and faculties must he regarded in establishing rules .for the government, of human conduct. The question, then, in such cases as the present; is not what were the? apprehensions of the defendant, b.ut what these ought, to havo been, when measured by a standard derived 'from observation of men of ordinary firmness and reflection. This is what is called reasonable ground of belief, and is the rule for judging of a caso of self-defence, upon an indictment fpr an assault and battery. Therefore a prayer for‘instruction, which assumed that one’s personal feelings and apprehensions, however eccentric and morbid these might be, determined the Character of his conduct, was properly refuse^.- . . .

3. It will he found, from a consideration of what has been said above, and‘from other plain principles of law, that the instruotious actually giren áre in. conformity with law.

The portion which we suppose'is objected *id*is, ‘ cj.i”the defendant bad good reason to believe,' and did believe, 'Gash was about to strike him, then the defendant had a right to strike first, unless the defendant ¡¡ought the fight '•and provoked an dtlack.. This .is corred, and is one of the plainest principles pertaining to the law of assault- and battery. If two men fight by consent, (which consent may he inferred from language and conduct,)'the partis# *89are guilty of mutual assaults and batteries, no matter who committed tlie' first assault or struck tbe first blow.

There was no error on the trial below. This should fee certified to the Superior Court of Law for Henderson county, that said Court may.proceed, &c.