#### The People v. Valentine Kohler.

*Self defence*— Killing.

A conviction for murder in the first degree cannot be sustained on evidence that the accused, after quarreling with deceased and while retreating before him, had fired at him after warning him “ to keep hack or he would shoot,” and while in apprehension of serious personal injury.

Error to Mecosta.

Submitted Oct. 19.

Decided Oct. 20.

, Information for murder. Respondent brings error. Reversed. The evidence tended to show that the respondent had been quarreling'with one John Johnson, who had insisted upon respondent’s treating him, and had taken hold of him and torn his coat; that Johnson followed respondent into the street and asked him if he wanted to fight; that respondent crossed the street and Johnson followed him; that respondent, who was walking backward, told Johnson “to keep back or he would shoot,” and immediately after shot at him twice; that the second shot killed Johnson and that respondent afterward said he meant to kill him. It appeared that Johnson was a larger man than respondent and there was evidence to show that he was quarrelsome, but it was not shown that he had any weapon in his hand when following respondent.

*Nicholas Drew*

testified that he saw Kohler and John Johnson standing on the sidewalk close to the door of the American House in Big Rapids, about four o’clock on the afternoon of the first of March, 18S2; that he heard Johnson ask Kohler “did he want, to fight,” and Kohler said he “ better keep his hands off from him that some talk followed in which a revolver was mentioned, and Kohler after looking at his coat, which seemed to be torn, and at which he appeared to be a little vexed, soon went down the sidewalk and after going about two rods turned and talked back *325and forth with Johnson. Kohler then went on and passed to the other side of the street, where he stood a little while, and talked again. Johnson, crossed the street and went towards him, and there was more talk and when they had gone farther witness saw Kohler facing Johnson, at whom he was pointing a revolver, heard two shots in immediate succession, and heard Johnson “drop like a sack of wheat on the walk.”

*Abe Suaer*

testified that he saw Johnson and Kohler after half-past four by the Union House; that just as became up Johnson asked Kohler if he meant to shoot him the night he drew a revolver on him ; Kohler made no answer, and Johnson asked him what harm he did; Kohler did not answer this question either, but walked off as far as a neighboring restaurant and turned round and told Johnson he would fix him; he began to call Johnson names, and then Johnson began to follow him up; Kohler walked a few steps farther and crossed the road ■ and then walked very slowly ; Johnson continued to follow him, and Kohler turned around and saw him and drew his revolver and said something which witness could not hear; finally Kobler fired when Johnson was within six or seven feet of him, and fired again when he was within a less distance. Johnson was drunk.

*Jennie Donelly*

testified that she was sitting at the window of her sister’s house, and saw Kohler crossing the street and looking back as if he was talking to somebody. After he had reached the walk she first saw Johnson, and Kohler had a revolver pointed towards him. She heard Kohler say “keep back or I will shoot.” Johnson then stepped up on the walk and kept Kohler so stepping backwards still with the revolver pointed at Johnson, and witness heard Kohler repeat several times, “ keep back or I will shoot.” She did not.notice that Johnson had anything in his hand, but he continued to walk tow- and Kohler, who then shot him.

*George G. York*

testified that on the afternoon of March first he saw Johnson and Kohler in the bar-room of the *326Union House, since called the American House. They were both drinking, and Kohler started out. Johnson followed him and seemed to want him to come back and xreat him.' Kohler went out and was going to shut the door when, as witness thought, Johnson caught hold of his pocket and tore it. Johnson then followed Kohler out.

*Ohris Hansen*

testified that when Kohler told Johnson5 after crossing the street, that “ if he didn’t stop he would, shoot him” Johnson said something, witness did not hear what; he had nothing in his hand, but wasswinging'his hand “ like as if he was going to lick him or something.” On cross-examination he said that Johnson was a larger man than Kohler.' He had seen him trying to pull Kohler up to the bar to make him-treat and had heard him say that if he didn’t he would lick him.

*Valentine*Kohler,

the respondent, testified that on the evening of the 28th of February he and Johnson were, shaking dice and drinking together at the American House;, that J ohnson finally got angry and pitched at him and called him a damn liar and said something about the game ; they had a few words and Johnson pitched at Kohler and grabbed him by the neck and went to throw him down and Kohler went back and Johnson got him with his finger nails in his lip and went to trip him down. Kohler jumped back and went out on the sidewalk where he fired off: the revolver to scare him, and keep him away, as he was afraid of him. He met J ohnson next day. His own health had been poor and he got up'about eleven o’clock and took a walk with a man down to the depot and when they went by the American House they went in and took a drink, the man taking beer and Kohler drinking whiskey; the other man treated and then Kohler treated; the man took another glass of beer and Kohler took a cigar and they talked about half an hour and then went to the depot where the other took the train, at 1:40 n. m. Kohler then went back to the American House and had been there a couple of hours with some othei-s, shaking dice and drinking, though Kohler says he did not drink enough to be under the influence of liquor; Johnson *327came in and Kohler says he showed ugly as quick as he came towards him. “ He stood there just a few seconds at the counter and another man stepped right between him and me and said ‘.Kohler, are you going to treat?’ I said, ‘No, I have no change with me, — got no money. ’ He said, ‘You were going to shoot me last night.’ I said ‘No, I didn’t think any such thing; I don’t want to shoot no body. He said I did. I said ‘If I did, — if I done any thing wrong I take it back.’ I said ‘ There is no use of having any fuss over it; I didn’t want to shoot you, it was nothing only a little drunken spree.’ So a little while after that he called for the beer himself ; he took a dollar bill and he called for the beer, and after the beer was called for he put the dollar back into his pocket again, and he changed his place and went up on the other end of the bar so he got nearer to me, and this Hansen he stepped right in between me and him again. Then this Hansen he called for the beer and he asked me if 1 would take some and I told him ‘never mind, I would take a small glass of beer,’ so we had another glass of beer. After we drank that Johnson he said ‘ I am a Swede and a bloody one too.’ He said ‘ Damn you, Kohler, I will fix you before night.’ And this Dan Collins he stood there and said, ‘ Yes, sii’; I see you are a damn good one; I see the blood in your eyes.’ I didn’t want to have any racket with him and I started from the bar room out into the main sitting room; he followed right after; he followed me there and I took to the door and started for home and got just about half way through the door and he grabbed me with one hand on the left side, and the other one between the collar and my shoulder. I jerked loose from him but he pulled my coat from here beyond the pocket. He said ‘ You are not going out now.’ He wanted me to come back into the room; I was about half way through the door and I got away from him and he followed me out on the sidewalk; he said, ‘ You were going to shoot me last night.’ I said ‘No, I didn’t want to do any such thing; I didn’t want to shoot you.’ He said ‘You did.’ He said ‘I am going to fix you.’ Then I started to leave that place and go towards *328home; we started out on the sidewalk beyond Paul’s store there, and I came down pretty near to that place ; I looked back to see if he was coming after me or not; so I saw him come. That is what I looked back for. I said ‘ I am going to have him arrested.’ I started from there and went on by Paul’s house across the street and when I came about ten feet of the sidewalk I looked back again; I looked around, I saw him coming hopping after me and he said, ‘ God damn you, Kohler, X am going to fix you,’ and I told him —after he said ‘ Show your revolver,’ he said ‘ Show your revolver,’ and I went a few steps further and I reached into my pocket and drew the revolver; I said ‘ Johnson, don’t follow me, I will shoot you,’ and I went up on the sidewalk and I walked backwards or kind of sideways, and Johnson he was right after me; when Johnson got on the sidewalk I drew the revolver and said ‘Johnson, keep back or I will shoot you,’ and he went worse for me; he went for me worse than ever. He was about six or seven feet from me and I shot; I didn’t mean to hit him, but I don’t know whether I hit him or not; I went right on and said ‘ Don’t make another step or I will shoot.’ I walked, backed, as fast as I could, he was after me, he was then only three or four feet from me. He got up to me, he said, ‘Goddamn you I will kill you before night or before I get home.’ I drew the revolver once more and I shot him and he fell. I was afraid he would kill me if he got hold of me; I was afraid the night before. The night before when Collins took the revolver I said I had another one at home ; I stated that in the presence of Johnson because I was afraid of him; I wanted him to know X had a revolver; was afraid of him all the time ; I was not in condition, I could not handle him in no shape. I was not able, I was sick. I think I weigh about 145. I got one of my hands crippled once. I got it smashed once, and I had a felon on it once; that is my right hand. I think Johnson weighs about 170 or 180 pounds. "When Johnson was following me up he got his fist that way [indicating]. He appeared to be as angry as he could. I do not know whether he had any thing in his hand or not; *329he had his fist shut and he has got an awful big hand. I don’t know whether he had any thing in his hand or not; he had his fist clinched. I was afraid of my life. I did the shooting to scare him and keep him back, and to save myself. I went as fast as I could; I was not able to go any faster, I was sick; I was very weak. I didn’t eat anything the day .before, hardly, and that day I did not eat anything at all, only took a cup of coffee in the morning. I was afraid of him. I wanted to see what he would do with me; I could not turn around; I could probably if I had been well, but I went away just as fast as I could. Johnson was gaining on me every step. When I fired the first shot it didn’t affect him at all; he came right after me. That was before I fired the last shot. That is the last he said. He said that between the two shots. I heard the testimony of this man Suaer. I didn’t say I turned around and said I would fix Johnson. I heard the testimony here. That is just different; did not say that. Johnson said that to me. He was half way across the street when I turned around and told him to keep back. It was Johnson who said that. I didn’t say that at all. I said I would have him arrested when I left the American House, when I went between Paul’s place.”

*JEdwin T.*Smith,

city editor of a local paper, testified that at the request of the city marshal wh,o had Kohler in charge, he went with them to the jail immediately after Kohler was arrested; that he asked Kohler if he intended to kill Johnson, and Kohler said he did, and also made some remark about self-defence.

Attorney General *Jacob J. Van Hiper*for the People.

Mere threats do not justify the person threatened in killing the party who threatens him: *Wellar v. People*30 Mich. 19 ; the use of a deadly weapon implies the intent to kill: *People v. Potter*5 Mich. 8; *People v. Getchell*6 Mich. 504; *Maher v. People*10 Mich. 212.

*M. Glement Palmer*and *John G. Shields*for respondent.

The prosecution has the burden of proving malice as well as killing in a case, of murder: *People v. Garbutt 17*Mich. *33021; a person assailed, if without fault, is not obliged to flee from an assailant who by violence, surprise'or in a threatening manner, maliciously seeks to take his life or do him great bodily harm: *State v. Harris*1 Jones (N. C.) 190; *People v. Sullivan*3 Seld. 396; *State v. Kennedy 17*Nev. 374; *Marts v. State*26 Ohio St. 162; *Erwin v. State*29 Ohio St. 186; *Shorter v. People*2 Comst. 193; *Campbell v. People*16 Ill. 17; *State v. Sloan*47 Mo. 604; *People v.Lilley*38 Mich. 276; *Stopfer v. State*15 Ohio St. 47; *Oliver v. State*17 Ala. 587; 1 Hale P. C. ch. 40; 3 Co. Inst. 55; 2 Bish. Cr. Law §§ 632-3, 644; serious bodily harm apprehended from a felonious attack would justify extreme resistance : *Brownell v. People*38 Mich. 738.

Marston, J.

"Without undertaking to pass upon the several questions raised in this case we are of opinion that the evidence not only did not tend to show a case of murder in the first degree, but that it fairly negatived the commission of such an ofíense and that the court should have so instructed the jury.

The judgment must be reversed and a new trial ordered, and the respondent will be remanded to the custody of the sheriff of Mecosta county. The case is one in which the respondent should be admitted to bail.

The other Justices concurred.