"If you find the defendant guilty of manslaughter, the form of your verdict will be: We, the jury, find the defendant guilty of manslaughter.

"If your verdict is in favor of the defendant, its form will be. We, the jury, find the defendant not guilty. And, in either case, your verdict will be signed by one of your number as foreman."

"INSTRUCTIONS ON BEHALF OF DEFENDANT.

"(1) The court instructs the jury that the crime of murder requires the mind to have acted from deliberation and intelligence, and when it is clouded by a passion, apparently irresistible, in a reasonable person, the killing is only manslaughter.

"(2) The passion which in law rebuts the imputation of malice, so as to reduce the killing to manslaughter, need not be so overpowering as for the time to shut out knowledge and destroy volition, but that heated condition of the mind that would render a reasonable man deaf to the voice of reason, so that although the act done was likely to produce death, it was not the result of malignity of heart, but imputable to human infirmity. There is no necessity that the reason should be dethroned, or that the slayer should act in a whirlwind of passion, but there must be sudden passion, upon reasonable provocation, apparently sufficient to make the passion irresistible.

"(3) If the jury believe from the evidence that the prisoner struck the fatal blow under a reasonable fear of receiving great bodily harm at the hands of the deceased, and that the blow was dictated by such fear, then they will find the defendant not guilty.

"(4) In determining the reasonableness of such fear the jury may take into consideration all the circumstances surrounding the defendant at the time the fatal blow was struck, as to difference in physical strength and the like, and if the jury believe from the evidence that a reasonable person placed in the same condition as the prisoner, and surrounded by like circumstances. would have entertained fears of great bodily harm, then the prisoner was justified in striking the fatal blow, and should be acquitted.

"(5) The court instructs the jury that actual and positive danger is not indispensable to justify self-defense. If the jury believe from the evidence that the defendant was assaulted in such a way as to induce in him a reasonable and well-grounded belief (and would have induced such a belief in a reasonable person) that he was actually in danger of losing his life, or receiv- * ing greatly bodily harm, under the influence of such apprehension he will be justified in defending himself, whether the danger was real or only apparent. "(6) The court instructs the jury that it was for the prisoner, from the appearances and the actual state of things surrounding him, to determine as to the necessity of resorting to self-defense; and if the jury believe from the evidence that Charles May stabbed Richard Bonds upon an honest belief, based upon what had immediately before occurred, and upon all the surrounding circumstances, and that he was in danger of great bodily harm, such killing is a killing in self-defense, although the jury are satisfied that in fact no real danger of the infliction of great bodily harm existed. (Our statute says that a bare fear of such danger shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears, and not in a spirit of revenge.)

"(7) The court instructs the jury that a person assaulted is not bound to evade the combat or to flee, if the assault is of such a character as to render retreat impossible, or where a reasonable man, under all the circumstances, including his knowledge of the reputation or character of his assailant for violence or brutality, would be justified in believing that flight would not save him from his assailant's violence.

"(8) The court instructs the jury that the defendant has a right to de

cline going upon the stand, and that his refusal to testify can in no case be considered as evidence of his guilt or innocence. The law is express to this point.

"(9) The court instructs the jury that if they have a reasonable doubt as to whether the defendant is guilty of manslaughter, or whether he struck the blow in self-defense, the defendant has the right to the benefit of such doubt, and the jury should acquit.

"(10) The court instructs the jury that an assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."

Those portions of defendant's instructions numbered 5 and 6, which are included in parentheses, were inserted by the court on its motion, and correctly so, notwithstanding the objections of defendant's counsel to such amendments. The eleventh instruction prayed by defendant below was refused by the court, and error is assigned to such refusal. The said instruction was as follows:

"The court instructs the jury that there may be danger of great bodily harm inflicted, without the meaning of those words as used in the statute in relation to homicide, without the presence of any deadly weapon, or any weapon whatever, if the physical force of the deceased were greatly disproportioned; and that the jury are not to determine whether there was at the time of the homicide danger of great bodily harm, in fact, but whether the deceased [defendant] acted upon a reasonable relief as to danger of great bodily harm.

Of the instructions given on behalf of defendant, as above set out, the third, fourth, fifth, and sixth embrace fully everything contained. in the one refused, which it was proper for the court to give in view of the facts before the jury.

Indeed, upon these facts I think it may be said that the court, after the full and complete instructions given upon its own motion, put the law to as severe a strain as it was possible for it to bear, in giving the four instructions above mentioned in favor of the defendant. The testimony is clear and uncontradicted that the deceased, after pushing May into the middle of the street, left him, and walked away, going back towards the saloon, and while he was a distance of eight or ten feet away, May drew his knife, followed the deceased, and stabbed him as he turned around upon May's approach. There was, therefore, no danger of any kind whatever apparent to May after the deceased left him, and no ground for reasonable belief or apprehension of danger of great bodily harm. These facts may almost be said to exclude the hypothesis that the defendant acted upon a reasonable belief that such danger existed, and that hence this instruc tion, predicated upon such hypothesis, was calculated to mislead the jury.

Another alleged error rests upon the refusal of the court to allow the defendant to show what was the reputation of the deceased for violence in England before he came to this country. The witness Woolley had been allowed to testify as to the reputation of the deceased for "violence, physical strength, and brutality" in the commu

nity where he lived; the admission of which testimony, without showing that the defendant had, prior to the homicide, any knowledge of such character or reputation of deceased, or without showing an attack upon him by deceased of a hostile character, was a more liberal ruling in favor of the defendant than he had a strict right to ask; and to claim a right to show what was the reputation of deceased in this respect in a foreign country years before, was, under the circumstances of the case, without the support of authority or reason. The seventh of defendant's instructions given was remarkably liberal upon this point in defendant's favor. Davidson v. People, 4 Colo. 145; 1 Whart. Crim. Law, § 141.

The other alleged errors to be considered go to the separation of the jury, and the misconduct of two of them in the use of liquor during the trial. The facts touching this question are similar to those in the Jones Case, 6 Colo. 452. On the motion for new trial in the court below, the following affidavit was filed in support of the motion:

"Samuel D. Clark, being first duly sworn, on his oath states that he is acquainted with Lewis Roberts and William A. Campbell, who were two of the jurymen selected to try the defendant in the above-entitled cause; that after the jury in said cause had been selected and sworn to try said cause, towit, on the evening of the twenty-second day of January, A. D. 1878, he saw the said Roberts and Campbell enter the bar-room at the Barton House, in Georgetown, without being in the company of any other member or members of said jury, or in company or in charge of any person or persons; that said Campbell and Roberts drank at said bar, and had some conversation with the bar-keeper about said drink, and one of said jurymen procured then and there of the said bar-keeper a small jug or bottle of beer."

The said affiant, being brought before the court and sworn to testify touching the matter, stated:

"I made the affidavit. It was my impression that it occurred on the 22d, but am not positive."

On cross-examination he stated: "Cannot fix the time of the evening. evening the jury went to the theater. self were behind the bar."

Could not swear that it was the same Charles Damon, Wm. James, and my

Upon further examination by the court the following testimony was heard upon the motion:

Officer Brownell sworn on behalf of the motion. “Had charge of the jury; the only way jurymen could have got to the Barton House was when they went out for necessary purposes; sometimes I attended them on such occasions, and sometimes not; was with them at the theater. Do not know of Mr. Campbell being out of the jury-room, or of his walking away from me, or of his conversing with other parties; think I was within fifty feet of all the jurymen. Came from the theater among them, and then we went direct to the Ennis House. Did not see any jug of beer, and with the exception of his going with Campbell to the Barton House for his overcoat, do not know of any juror going out except when they went to the water-closet, when they might possibly have gone to the Barton House."

Ed. Damon sworn on behalf of the motion. "I am clerking at the Barton House. Know Mr. Campbell, but not Lewis Roberts. I was tending behind

the bar on the night of the 22d, at the time May was being tried. Campbell came there, I think, and shook dice. I was very busy, and don't remember his coming there with another man. William Jones and another man sat there; they asked him to come and take a drink.

Question. "Did they purchase a bottle of beer?" Answer. "Yes, sir." Q. "Did they state that they were going to take it to the other members of the jury?" A. "I don't remember anything of that kind being said. Can't state the hour; spoke to Campbell in the office and asked him what he was doing, and he told me that he was on the jury; he said that they got off to go to the show, and he got off to come up there for a moment, and were going right back. I didn't have any more to say, and went behind the bar; a few minutes after, they came back and got the beer. That was all the conversation I had with them."

On cross-examination, Damon states: "Would not be certain of the date; do not know whether it was before or after the jury was sworn; Officer Brownell stood at the desk when Campbell told me he was on the jury; Campbell told me they got off to go to the theater, and had to go right back; Brownell stood at the desk; could not state whether this was before or after they went to the theater; it might have been; did not know of any other jurors there. Wm. Jaynes Irwen on behalf of the motion: "Was at the Barton House on the evening of the 22d: know Campbell and Roberts; saw them there that evening; Campbell about seven o'clock, and again about half-past eleven; Mr. Roberts was with him at that time; Roberts was a juryman on the May case. Campbell said he got away from the officer; he did not say how; did not see any officer there; I know Brownell; he was not present that I know of; I was behind the bar, and did not go outside of the bar. They remained about five minutes; besides the drinks, they got a bottle of beer; Ed. Damon and Samuel Clark were present, besides myself."

Cross Examination. "I was behind the bar; could not see who was outside; don't know whether any of the rest of the jury were there or not; am clerking in Morrison & White's office."

Motion for new trial denied, and defendant excepts.

In respect to the matter of the use of liquor by the two jurors in this case, we need add nothing to what was said by this court in the Jones Case, herein before referred to, since all that was said in the discussion of the subject in that case is equally applicable to this. Upon the ground of the separation of the two jurors from the others in the manner shown by the testimony as set forth above, counsel for plaintiff in error argue that the judgment should be reversed. The point is but little discussed, and no authorities referred to thereon, but counsel seem to regard it as admittedly beyond question.

In treating of this subject Mr. Wharton says:

"The general rule is that the verdict will not be set aside on account of inadvertent irregularity in a jury, even in a capital case, unless it be such as might affect their impartiality, or disqualify them for the exercise of their functions. An exception, however, formerly existed in England, and is still recognized in several of the United States, in felonies, where the jury separate after the opening of the evidence. While, on the one hand, the present practice in England, and in a portion of the American courts, is to sustain the verdict when the separation has been inadvertent, or necessary, and no abuse has resulted from it, on the other hand it has been considered in several instances that the mere seperation in itself is prima facie reason for a new trial." 3 Whart. Crim. Law, § 3283a.

** In felonies, while the English practice is to refuse to permit

such separation during recesses, in the United States the practice is to permit such separation in cases less than capital. As to capital cases, there is a great diversity of opinion; but while the weight of authority is that such separation should not be permitted, there is a growing tendency towards relaxation of this rule." Id. § 3166a.

See, also, Proff. Jury, §§ 394-404.

We need not go further in discussion of authorities to show that there is no inflexible rule of practice binding upon courts in this regard, but that, on the contrary, a reasonable latitude is allowed to the discretion of the court in such cases, dependent upon the circumstances of the particular case; the controlling question in all such cases of misconduct of jurors being, was the defendant prejudiced by the alleged misconduct? We do not think the misconduct of the two jurors in question in this case, however much it is to be regretted and condemned, was of such a character as should, either upon reason or authority, be held to vitiate the verdict rendered and work a reversal of the judgment.

Perceiving no material error in the record, the judgment will be affirmed.