¶1The opinion of the court was delivered by
¶2Defendant was convicted in the district court of Doniphan county under an information charging an assault with intent to kill. There was no dispute but that Howard shot the prosecuting witness, but the claim was, that such shooting was in self-defense. Upon this question, at the instance of the state, the court gave the following instruction:
“The shooting by the prisoner at Collier would be justified, under our laws, only in case it was committed by the prisoner .when there was reasonable ground to apprehend a design to do him great bodily harm, and that there was imminent danger of such design being accomplished; and the jury are the judges, and it is for the jury to say whether there were any reasonable grounds for such apprehension, and whether there was, at the moment that the shot was fired, imminent danger that some great bodily harm would have been done to prisoner; and if the jury find that the.defendant was in no such imminent danger they will convict.”
¶3In the latter portion of this instruction the court erred. The jury are in substance told, that the question is, as to the actual existence, and not as to the reasonable appi'ehension of danger — that the reasonable apprehension refers to the design to inj ure, and not to the imminence of the danger. Under such an instruction, no matter how threatening the conduct of the party shot, no matter though it be so great as to create-in any mind an irresistible conviction of imminent peril, yet unless the imminent peril actually exists, the shooting is not in self-defense. Thus, if a party approaches with a drawn pistol and threatens to kill on the spot, it is not self-defense to kill such an assailant unless his pistol be in fact loaded, and he thus actually able to carry out his threat. In other words, if the pistol of the assailant is loaded, it is self-defense; if not, it is murder. The law is not thus harsh. All that it exacts is, that there shall be a reasonable apprehension of *175imminent danger, and of the reasonableness of this apprehension the jury are to be the judges. A party assailed is justified in acting upon the facts as they appear to him, and is not judged by the facts as they are. It is not to be wondered at that this error occurred, for such at first view seems to be the meaning of the statute, the apparent import of the language used. But this language is not new in our statute. It will be found in the statutes of other states, and had received a settled construction elsewhere before it was introduced here. 2 Wharton’s Crim. Law, §§ 1026 and 1027, and notes; Shorter v. The People, 2 Comstock, 197. Indeed, when the ■court'gave the instruction asked by defendant, and its attention was probably not drawn to the statute, it stated the law correctly, and in accordance with the well-settled current of late authority. Yet as we cannot say which instruction influenced the jury, and as it may be that the verdict rested on the erroneous one, we are compelled to reverse the judgment, and remand the case for a new trial. Horne v. The State, 1 Kas., 73.