1 S.W. 825 (1886)
Defendant approached the victim with the intent to kill him, but before he took any action he was attacked by the victim and while fighting him in self defense killed him. The trial court's instruction authorized the jury to convict defendant even though he had abandoned the purpose to kill the deceased when he met him and was assaulted by deceased and had to kill him to save his own life.
- The court held that the jury had a right to consider the threats made by the deceased and his character as a turbulent, dangerous man in determining the question as to who was the assailant, he or defendant, and whether defendant had reasonable ground to apprehend, and did apprehend, that he was in imminent danger of sustaining great bodily harm at the hands of the deceased.
- The court also found that testimony from the deceased's wife that the deceased said to her either, "Oh, hun, he has killed me!" or, "Oh, hun, he has shot me!" was not admissible as a dying declaration.
- If the exclamation was, "He has shot me!" there was nothing to show that he made the statement under a sense of impending death.
The court reversed defendant's conviction for murder and remanded for further proceedings.
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