The opinion
Sea EPSTEIN, J., concurring:
I concur in the conclusion reached by Mr. Justice Thornton, and in the views which he has expressed upon the questions discussed in his opinion, with one exception. . I do not think that the objection to the instruction that “to justify a person in killing another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm, the killing of the deceased was absolutely necessary,” was obviated by other instructions, in which the jury were in effect told that a person might be justified in killing another in self-defense even if it did not appear that the danger was so urgent and pressing that in order o prevent his receiving great bodily harm the killing of the deceased was absolutely necessary.
It seems to me that the instructions which are said to explain and qualify the one first above referred to are clearly in conflict with it, and if so, the judgment should be reversed on that ground. The Code declares that homicide is justifiable when committed by a person in the lawful defense of himself “ when there is reasonable ground to apprehend a design to commit a felony, or to do some great bodily injury, and imminent danger of such design being accomplished.” (Pen.
C., 197.) If that means that it must appear that the killing of the deceased was absolutely necessary to prevent the accomplishment of the design to commit a felony or to do some great bodily injury, the instruction complained of was correct. But it seems to me sufficiently clear that there may be reasonable ground to apprehend a design to commit a felony or to do some great bodily injury and imminent danger of such design being accomplished without its also appearing that the killing of the deceased was absolutely necessary to prevent such a consummation.
I think that the introduction of ardent spirits into the jury room while the jury were deliberating upon their verdict, con *188 stituted misconduct per se. The Sheriff was- authorized to provide the jury “with suitable and sufficient food and lodging.” (Pen. C., 1136.) This is a modification of the old rule which required that they should “ he kept without meat or drink, fire or candle, until they agreed.” But it is the opinion of at least one text writer that “ there has been no relaxation as far as drinking intoxicating liquors is concerned.” (Proffatt on Jury Trial, 398.) Whether any juror was so much affected by drinking 'ardent spirits in the jury room as to temporarily unfit him for the discharge of his duty is not made clear. But it is sufficiently clear that some of them might quite naturally have been more or less under the influence of liquor while deliberating on their verdict, and it seems to me that that is good ground for setting the verdict aside.