Later courts went against this
Overruled on other grounds by State v. Marsh, 260 Or. 416 (1971)
96 Or 219, 242-43, 186 P 55, 60-61 (1920), overruled on other grounds, 260 Or 416, 490 P2d 491 (1971), the following instruction was found to be without error:
The opinion
HARRIS, J.,
Concurring Specially.
I concur in the conclusion of Mr. Justice Bennett that the defendant was not prejudiced by the instruction referred to in the seventeenth assignment of error. The question as to whether or not the right of self-defense is available only when necessary to avert a felony, actual or apparent, is, on the record presented here, purely academic; and the decision of that question is entirely unnecessary for the disposition of this appeal. Assuming that McDonald Stewart fired at the defendant, then it is certain that he did so either in self-defense or else his conduct amounted to an actual or apparent felonious assault upon the defendant; and therefore the instruction was not prejudicial to the rights of the defendant even though it is assumed that a person can slay an assailant in order to prevent bodily harm not amounting to a felony: Mitchell v. State, 38 Tex. Cr. Rep. 170, 192 ( 41 S. W. 816 ); Curtis v. State (Tex. Cr. App.), 59 S. W. 263 ; Bryant v. State (Tex. Cr. App.), 47 S. W. 373 ; Matthews v. State, 42 Tex. Cr. Rep. 31 ( 58 S. W. 86 ); Evans v. State, 120 Ala. 269, 274 ( 25 South. 175 ).
I express no opinion as to whether or not the right of self-defense exists only in order to prevent felonies regardless of the degree and extent of the bodily harm actually or apparently about to be done to the *260 slayer; and I withhold any expression of opinion upon that subject until a case is presented requiring a decision of the question.
While the language used by the court when addressing the jury about reaching an agreement might in some cases be harmful and for that reason ought not to be followed as a model, yet, for the reasons pointed out by Mr.. Justice Bennett I am entirely satisfied that the defendant was not prejudiced at all. It is always - dangerous, in the view of the writer, for the trial judge to attempt to urge upon the jury the importance of an agreement. No person realizes any more than does a juror that it is-important that the jurors agree. Whenever the trial judge does enter into the subject at all there is always an accompanying risk, unless great care is used, of saying something which might be harmful to one of the parties.
; I concur with Mr. Justice Bennett in both the reasoning employed by him and the conclusions reached by him concerning the remaining assignments of error. The judgment should be affirméd.
Johns, J., concurs.