The question presented by the record is, was there error in the refusal of the judge to receive the evidence offered by the defendant. We are of the opinion there was error in *620rejecting so much of the proposed testimony as tended to show, on the part of the defendant, a reasonable ground of belief that, the trespassers upon bis premises had fired into his house and wounded his child.
It may be, as testified by the prosecutor, that the band of young men, who went to the defendant’s house on the night in question, only intended innocent amusement; but there is one unusual and rather extraordinary feature in the transaction, that the party intending a mere serenade, should, on such an occasion, carry guns and pistols; they are certainly very unusual instruments of music in the hands even of a calithumpian band.
They entered the enclosure, twenty in number; marched round his house, blowing horns, ringing bells and firing guns and pistols; which must have greatly frightened the family and the defendant himself, unless he is a man of more than ordinary courage. But whether awed or not by such a display of numbers and lawlessness, yielding to the dictates of prudence, he submitted to the humiliating indignity and remained within doors, until his little daughter, as he proposed to show, ran to him with her face bleeding; and believing, as was natural under the circumstances, that she had been shot, he seized his gun and went to the door, saw the flash of fire-arms, and shot into the crowd and wounded the prosecutor. We must suppose it was all the work of an instant.
Did the defendant, under these circumstances, have reasonable ground to believe that his daughter had been shot, and the assault upon him and his house was continuing? If he had, then he ought to have been acquitted.
We know this has been a much mooted question, but upon an investigation of the authorities, our conclusion is, that a reasonable belief that a felony is in the act of being committed on one, will excuse the killing of the supposed assailant, though no felony was in fact intended. And whatever will excuse homicide, will of course, excuse an assault and battery.
In State v. Scott, 4 Ired., 409, the court say: “In consulta*621tion it seemed to ns at one time that the case might properly have been left to the jury, favorably to the prisoner, on the principle of Levet’s case, Cro. Car., 538 (1 Hale, 474), which is, that if the prisoner had reasonable ground for believing that the deceased intended to kill him, and under that belief slew him, it would be excusable, or at most only manslaughter, though in truth the deceased had no such design at the time.” It is to be noted that Levet was acquitted. But the court did not give the prisoner, in Scott’s case, the benefit of the principle, for the reason that no such instruction had been asked in the court below, the court concluding that the prisoner would have requested the instruction, if he had acted upon such belief; and there were besides other circumstances. in the case, which prevented the application of the principle. But it is clearly to be deduced from the opinion of Chief-Justice Ruffin, who spoke for the court, that iu a proper case, the principle might be invoked to excuse a defendant. See also, Patterson v. People, 46 Barb., 627.
The same doctrine was enunciated by Parker, J., afterwards Chief-Justice of the supreme court of Massachusetts, in the famous case of Commonwealth v. Selfridge, Self. Trial, 100, and the principle is thus illustrated: “A, in the peaceful pursuit of his affairs, sees B walking towards him with an outstretched arm and a pistol in his hand, and using violent menaces against his life as he advances. Having approached near enough in the same attitude, A, who has a club in his hand, strikes B over the head before or at the instant the pistol is fired, and of the wound B dies. It turned out that the pistol was in fact loaded with powder only, and that the real design of B was only to terrify A.” The judge inquired: “ Will any reasonable man say that A is more criminal than he would have been if there had been a ball in the pistol ?” 2 Whar. Crin). Law, § 1026 (g) and note; Whar. Law of Homicide, 215, et seq.
But it may be objected that the defendant acted too rashly: before he resorted to the use of his gun, he should have taken the precaution to ascertain the fact whether, his child had been *622actually shot. But that doctrine is inconsistent with the principle we have announced. If the defendant had reason to believe and did believe in the danger, he had the right to act as though the danger actually existed, and was imminent. Taking, then, the fact to be, that the trespassers had fired info defendant’s house and shot his child, and the firing continued, there was no time for delay. The occasion required prompt action. The next shot might strike him or some other member of his family. Under these circumstances, the law would justify the defendant in firing upon his assailants in defence of himself and his family.
But, as we have said, the grounds of belief must be reasonable. The defendant must judge, at the time, of the ground of his apprehension, and he must judge at his peril; for it is the province of the jury on the trial to determine the reasonable ground of his belief. And here, the error is in the court’s refusing to receive the proposed evidence^ and submitting that question to the consideration of the jury. A venire de novo must be awarded.