¶1delivered the opinion of the court.
¶2The second instruction for the state is erroneous in its closing paragraph. “Purpose to kill,’- merely, is not the equivalent of the malice aforethought necessary to constitute murder. Every one who takes life in self-defense has the “purpose to kill.” We would not, however, reverse for this error alone, since it is not probable the jury were misled by this inaccuracy of expression.
¶3But the third instruction for the state is fatally erroneous, in attempting to inform the jury when the defendant would be estopped to plead self-defense, without including all the elements of fact essential to the estoppel. There is irreconcilable conflict between not only the defendant’s testimony and the. state’s, but fas to the stick) between the other witnesses for defendant and those for the state. If the defendant and his witnesses are to be believed, then the killing was in self-defense; and the defendant had a right to have instructions presenting Bis theory of the case, and ought not to have been deprived of *734that right by a charge, based on part only, of the testimony, declaring him to be estopped from pleading self-defense. There is no evidence at all in this record as to what his purpose was in procuring the gun, except his own, and that shows a lawful purpose. There is none that he procured it with the intention of using it in a difficulty which he intended to provoke, if necessary to overcome his adversary in that difficulty, and that that purpose and intention he retained up to and through the combat. And yet the charge is framed as if there were facts proven on which the jury might so find, and hence hold him estopped to plead self-defense. This form of charge, declaring a defendant estopped to plead self-defense, is an exceedingly unwise one to be given. We have repeatedly condemned it, as shown by cases cited in the very able brief of counsel for appellant. It can never be proper, save in the few very rare cases where the case is such, on its facts, that a charge can be given embracing all the elements — not part of them, nor nearly all of them — essential to the estoppel. The old paths are the safe paths. The .juries of the country can be safely trusted to find any defendant guilty whose case is really so bad as to estop him to plead self-defense, without resort — dangerous and unwise — to the metaphysical subtleties necessarily involved in the preparation of a proper charge of that sort. Once more we repeat (hoping that “here a little and there a little, line upon-line, and precept upon precept” may at last do their work) that if prosecuting attorneys will ask few and very simple charges, and trust more to the common sense and sound judgment of the juries of the country, they will expose their circuit judges to far less risk of reversal, secure just as many convictions, and have far — very far — fewer cases reversed.
¶4Reversed and remanded.