Wo concur with his Honor in the opinion, that in any view of the case, the defendants were both guilty.
The evidence furnishes no ground for the defence relied *186upon by the defendant, to-wit, that one having reasonable ground to believe that great bodily harm is about to be inflicted upon him, has a right to- use such force as is necessary to protect himself.
It was not necessary for Downing, after he had left the gate at the road and gone some thirty or forty yards to his house, to return to the gate, with his pistol in his hand, in order to protect himself from great bodily harm. If indeed he feared such harm, it would seem that the house, some distance from his antagonist, was a much safer place than the side of the road, where he had just left him.
But having armed himself, he returned to the -road, evidently for the purpose of asserting his manhood, and attesting his willingness to engage in combat.
Why go to the gate with his pistol, for self-defence, when Arnold had already left it some thirty or forty yards ? What was there in the manner of Arnold’s reten to excite his fears of great bodily harm ?
Arnold opening his breast, advanced towards the gate, which was closed, without any weapon, defying Downing to shoot, thereby clearly giving his assent to a breach of the peace, but by no means giving Downing any reasonable ground to apprehend great bodily harm.
The big talk of Arnold, that he came to kill or be killed, amounted to nothing in connection with the other circumstances, and evidently did not put Downing in fear.
Indeed, there is nothing in the evidence which would have justified his Honor in presenting the view of the case contended for by Downing to the consideration of the jury.
Pee Cubiam. Judgment affirmed.