¶1on rehearing.
¶2Upon the application of the defendant, a rehearing was granted as to the third paragraph in the foregoing opinion. To the end that our conclusions may be clearly understood, we think it best to set out a copy of the instruction excepted to. It is as follows: “If you find from the evidence that, as defendant walked along the street, he was followed by Murphy, who advanced upon him with the appearance of having a dangerous rock in his hand, and in such a manner, and with such movements, as to make defendant believe, as a man of ordinary reason and prudence, that he was in danger of death or great bodily injury from such assault, and that the blow with the saw was necessary to prevent such death or injury, — then you will find that defendant had the right to- strike the fatal blow in self-defense; and in order to find this you will consider the time, place and situation of the defendant, the size of the weapon in the hand of Murphy, as it appeared to him, (defendant,) the manner of the attack, and the language used, and defendant’s knowledge of Murphy’s disposition and character, as shown by his conduct from the beginning of the difficulty between them to the time of the killing; but no words spoken by Murphy, however insulting, and no assault upon defendant without a dangerous weapon, or the appearance of one, would justify the defendant in striking the fatal blow.”
¶3It is not claimed that all the facts and circumstances preceding the fatal blow, bearing on the question of self-defense, are not sufficiently stated, but the point made is that the inquiry of the jury is unduly limited in the last clause, of the instruction. It is said there is some conflict in the evi*312dence whether the deceased was armed with a deadly weapon at the time the fatal blow was struck. If the jury so found, then the nature and character of the assault, and all other circumstances, become immaterial, and under the instruction the jury were bound to find that the killing was not justifiable. We do not so understand the instruction, for, if it appeared to the defendant that the deceased was so armed, the defense was made out. For the purpose of ascertaining ■whether the defendant, as a reasonable and prudent person, had the right to so believe, the jury were directed to consider all the facts and circumstances from the beginning of the difficulty. If Murphy was not armed with a deadly weapon, and the defendant had no right to so believe, then the fatal blow was not struck for the purpose of protecting himself from great bodily harm, for the defendant testified, in substance, that he believed the deceased had in his hand a rock, and that the fatal blow was struck because he thought the deceased was going to strike him. The defendant was placed in a difficult position. Murphy had shown a disposition to have a difficulty with the defendant. While all this is true, mrless the deceased at the time of the fatal blow was armed, or had the appearance of being armed, with a deadly weapon, we are forced to the conclusion that the killing was not justifiable under the facts and circumstances of this case.
¶4The former opinion is adhered to.
¶5Affirmed.