appeal, unless prevented by the council, before his declaration in this action; that the said he can maintain an action at law.

See, also, 78 Atl. 845. Argued before PENNEWILL, C. J., and appeal, for the reason that it could not be WOOLLEY, J.

Harry Emmons, for plaintiff. Frank L. such action was ever taken, so far as he Speakman, for defendant.

The replication to the fifth plea alleged "that the said defendant never took any action under the general laws and by-laws of the Great Council of Delaware, of the Improved Order of Red Men, and of the said defendant council, upon the benefits claimed to be due by the said plaintiff as set forth in For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

(3 Boyce, 246)

STATE v. STOCKLEY. (Court of General Sessions of Delaware. Sussex. Feb. 10, 1911.)

lect to establish his right to benefits by the methods provided by the rules of the society, the operations of such societies would be thrown into confusion, their usefulness impaired, and the courts would be burden- 1. HOMICIDE (§ 84*)—“ASSAULT WITH Intent

ed by a multitude of suits about contentions that should have been settled elsewhere." The rule thus expressed in the Del. Lodge Case was expressly approved and followed in passing upon a demurrer argued at an earlier stage of the present case. See 78 Atl. 845.

Such therefore is the law of this state, and we hold that the plaintiff was bound to exhaust his remedy under the constitution and by-laws, within the council; and if he failed so to do, he cannot recover in this action unless he was prevented from pursuing such remedies by the defendant council itself.

[2] Was the plaintiff prevented by the council from pursuing the remedies provided by the laws of the council?

He claims that he was prevented because no action was taken, so far as he was advised, upon his claim for benefits, and he could not take an appeal until some action

was taken.

The language of the by-law is: "Should any person feel aggrieved at the action of the council for failing to pay benefits that may be claimed to be due, such person may appeal from said action," etc.

It appears, therefore, that the failure to pay is the action that may be appealed from. There was a failure to pay the plaintiff's claim, whether any formal action was taken or not, and we think it reasonable to hold that the plaintiff could and should have taken his appeal to the council, and attempted to comply with the requirements of the council before instituting his action here. If, having taken his appeal, the council had refused to entertain or consider it, the contention might very well be made, that the claimant was prevented from pursuing the remedies provided by the council, and was entitled to maintain his action in this court.

TO COMMIT MURDER"-ESSENTIALS.

The essentials of an "assault with intent to commit murder" are an assault which is an of another, and also which must be committed attempt with force to do injury to the person with intent to murder, so that, if the injured party had died, his assailant would have been guilty of murder.

Cent. Dig. § 110; Dec. Dig. § 84.*
[Ed. Note.-For other cases, see Homicide,

For other definitions, see Words and Phras-
es, vol. 1, pp. 541, 542; vol. 8, p. 7583.]
2. CRIMINAL LAW (§ 561*)-EVIDENCE-SUF-

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.*] 3. HOMICIDE (§ 257*)-EVIDENCE-INTENT. The intent to commit murder, in prosecution for assault with intent to commit murder, may be proven either by direct or circumstantial evidence.

Cent. Dig. §§ 543-552; Dec. Dig. § 257.*]

[Ed. Note. For other cases, see Homicide,

4. HOMICIDE (§ 145*)-EVIDENCE-PRESUMP

TIONS.

Every man is presumed to intend the natural and probable consequences of his own voluntary and willful act, and so an assault upon another with a deadly weapon raises a presumption of an intent to commit murder.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 262-264; Dec. Dig. § 145.*] 5. HOMICIDE (§ 7*)-"Murder"-ESSENTIALS. "Murder" is the unlawful killing of a human being with malice aforethought, either express or implied.

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 12; Dec. Dig. § 7.*

For other definitions, see Words and Phrases, vol. 5, pp. 4632-4637; vol. 8, pp. 7726, 7727.]

6. HOMICIDE (8 231*)-EVIDENCE-"MALICE."
In a prosecution for murder, "malice"
may be implied from any unlawful act denot-
ing a wicked heart bent on mischief, and so
the deliberate selection and use of a deadly
weapon upon another is evidence of malice.
Cent. Dig. § 479; Dec. Dig. § 231.*
[Ed. Note.-For other cases, see Homicide,

For other definitions, see Words and Phrases, vol. 5, pp. 4298-4304; vol. 8, pp. 7712, 7713.]

[3] And we may suggest that the plaintiff, having received no notice of any action taken by the council upon his claim, might discontinue his suit here and take his appeal notwithstanding the lapse of time. 7. HOMICIDE (§ 89*)-"MANSLAUGHTER." Such laws must be reasonable and practi-killing of a human being without malice, and "Manslaughter" consists of the unlawful cable, and courts will give them a reasonable so, in a prosecution for assault with intent to construction. But beneficiaries, and their commit murder, the accused cannot be conrepresentatives, are required to make all victed if, had his victim died, his crime would reasonable efforts to comply with such laws, have only been manslaughter. and not until they have done so will they be heard to say they were prevented by the council or society from so doing.

For the reasons given, we are of the opinion that the plaintiff's replications to the defendant's fifth and seventh pleas are not sufficient, and the demurrer is, therefore, sustained.

Cent. Dig. §§ 115-118; Dec. Dig. § 89.*
[Ed. Note. For other cases, see Homicide,

For other definitions, see Words and Phras-
es, vol. 5, pp. 4338-4342; vol. 8, p. 7715.]
8. HOMICIDE (§ 119*)-RIGHT OF SELF-DE-

FENSE.

from assault and injury by opposing force with Every person is entitled to protect himself force, and he is not obliged to wait until he is struck by an impending blow; but, if the op

posing force be unreasonably disproportionate [ience to do injury to the person of another, to the requirements of the case, the party de- but embraces also an intent to commit murfending himself is guilty of an offense. der.

In order to convict the prisoner at the bar

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 172-174; Dec. Dig. § 119.*] 9. HOMICIDE (§ 118*)-SELF-DEFENSE-DUTY in manner and form as he stands indicted,

TO RETREAT.

One assaulted upon a sudden affray is warranted in repelling the assault by the use of a deadly weapon, where he is justified in believing that he is in imminent danger of being killed or receiving great bodily harm; but, before using the deadly weapon, he must be closely pressed, and must have retreated as far as he conveniently and safely could.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 168-171; Dec. Dig. § 118.*] 10. HOMICIDE (§ 116*)-Self-Defense-REASONABLE FEAR.

In determining what constitutes reasonable fear, which will warrant one in repelling an impending assault by the use of a deadly weapon, all the circumstances surrounding the assault should be considered.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.*] 11. HOMICIDE (§ 116*) - SELF-DEFENSE-BELIEF OF ACCUSED.

The unreasonable belief of accused that he is in danger of great bodily harm from an impending assault will not warrant him in repelling assault by the use of a deadly weapon. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116.*] 12. CRIMINAL LAW (§ 857*) - EVIDENCE CONFLICTING EVIDENCE.

it is necessary for the state to satisfy you, beyond a reasonable doubt, that the assault was committed by Olan Stockley, the prisoner, that it was committed with the intent to murder John T. Williams the prosecuting witness, and that if the said John T. Williams had died from the effects of the injury received, then Olan Stockley, would have been guilty of murder.

[3, 4] The intent to commit murder is an essential ingredient of this charge, and it must be proved to your satisfaction just as any other material fact in the case is proved. The intent to commit murder may be shown by direct evidence of the intent; that is, by the express confession or declaration of the accused that he committed the alleged assault with the intent to murder; but the intent to commit murder may also be proved by the acts and conduct of the accused and other circumstances, from which the jury may naturally and reasonably infer the intent charged. For instance, it is a principle of law that every man must be presumed to intend the natural and probable consequences of his own voluntary and willful act, so that other the jury may infer the intent to comfrom the use of a deadly weapon against anmit murder, unless the circumstances of the case satisfy you to the contrary; such intent, as we have said, being provable by and inferable from the voluntary, unlawful use, in a manner, or under circumstances perilous to human life, or directly tending to great bodi[Ed. Note.-For other cases, see Criminally harm, of a loaded gun, of an axe or other Law, Cent. Dig. § 731; Dec. Dig. § 308.*] weapon which the law considers a deadly 14. CRIMINAL LAW (§ 330*) - EVIDENCE weapon, or of any other instrument or misBURDEN OF PROOF. Where an accused pleads any independent sile reasonably likely to take human life matter as a defense, he has the burden of when so used. State v. Di Guglielmo, 4 Penshowing it, although if, when all of the evi-newill, 336, 55 Atl. 350. dence is in, the state has not shown the accused's guilt beyond a substantial reasonable doubt, he should be acquitted.

Where the evidence is conflicting, the jury should reconcile it, if possible, and, if not, accept that part which they deem most worthy

of credit.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2054, 2055; Dec. Dig. 8 857.*]

13. CRIMINAL LAW (§ 308*) - EVIDENCE PRESUMPTIONS.

Until proven guilty, every man is presumed innocent of crime.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 721; Dec. Dig. § 330.*] Olan Stockley was indicted for assault with intent to commit murder. Not guilty. Argued before BOYCE and CONRAD, JJ.

Before you can find the prisoner at the bar guilty of assault with intent to commit murder, you must also find that had John T. Williams died from the effects of the injuries received, the prisoner would have been guilty of the crime of murder.

[5] The crime of murder is the unlawful Frank M. Jones, Deputy Atty. Gen., for the killing of a human creature in being with malice aforethought, either express or implied.

State.

Robert C. White and James M. Tunnell, for defendant.

CONRAD, J. (charging the jury). Gentlemen of the jury: [1, 2] Olan Stockley, the prisoner at the bar, is charged in this indictment with having committed on the 24th day of September, 1910, in this county and state, an assault upon one John T. Williams, the prosecuting witness, with intent him the said John T. Williams to murder. This charge embraces not only an assault, which has been defined to be an attempt with force and vio

[6, 7] If the killing is proved, it must also be proved that it was done with malice either express or implied, before the person charged can be convicted of murder. But such malice may be implied from any unlawful act such as in itself denotes a wicked heart fatally bent on mischief, or a reckless disregard of human life. The deliberate selection and use of a deadly weapon has been held to be evidence of malice; and where malice exists, together with the killing, the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

crime of murder is complete. If you believe A slight assault will not excuse or justify that the crime of which the prisoner would the killing of the assailant with a deadly have been guilty if the prosecuting witness weapon. had died from the injuries received would be manslaughter, you could not find him guilty of the intent to commit murder, for in manslaughter there is no malice. Whether there is any evidence in this case to satisfy you that there was malice, either express or implied, is one of the questions for you to determine.

When one is attacked and from the character of the attack he has reasonable cause to believe that he is in imminent danger of death or great bodily harm, it is his duty to retreat if he can safely do so, or to use every reasonable means within his power to avoid harming his assailant.

[11] It is not sufficient that the accused, at the time of the assault, believes himself to be in danger of death or great bodily harm, but the circumstances must have been such, in the judgment of the jury, as to justify a reasonable man in such belief, and that there was no other reasonable way of escaping from such danger.

[12] Where testimony respecting the guilt or innocence of the prisoner is conflicting, as it is in this case, you should reconcile it if you can. If you cannot, you should accept that part of it which you deem worthy of credit, and reject that which you deem un

ligence or ignorance of the witnesses, their opportunity to observe, know, hear and remember that to which they have testified, as well as their bias arising out of interest or prejudice.

[8] The law accords to every one the right to protect his person from assault and injury by opposing force to force, and he is not obliged to wait until he is struck by an impending blow; for if a weapon be raised in order to shoot or strike, or the danger of other personal violence be imminent, the party in such imminent danger may protect himself by striking the first blow, for the purpose of repelling and preventing the attempted injury. But the opposing force or measure of defense must not be unreasonably disproportionate to the requirements of the occasion. Although so much force as is rea-worthy of credit, having regard to the intelsonably necessary may be used, yet if the violence used is greater than was necessary, under the circumstances, to repel the assault or avert the peril, the party using it is himself guilty; for the law recognizes the right of self-defense for the purpose of preventing [13, 14] In determining the question of guilt but not of revenging an injury to the person or innocence of the prisoner, the law provides of the accused. certain rules for your guidance. First, the [9] Where one is assaulted upon a sudden law presumes all persons to be innocent of affray and, in the judgment of the jury, hon-crime, until their guilt is established by comestly believed, on reasonable and sufficient petent evidence in proper courts. This pregrounds, that he was in imminent danger of sumption of innocence, however, is rebuttabeing killed or of receiving great bodily ble. But when the prisoner pleads any subharm, he would have, in self-defense, the stantive, distinct or independent matter as a - right to use a deadly weapon against his as-defense, as an alibi, insanity, or, as in this sailant. But in exercising such right of self-action, self-defense, the burden of proving defense, in a manner likely to cause death such defense devolves upon him. To estabor great bodily harm to his assailant, he lish such defense, the accused must prove must be closely pressed by him, and must the independent exculpatory facts upon which have retreated as far as he conveniently and he relies, and in this respect and to this exsafely could, in good faith, with the honest tent, the burden lies with him. Notwithintent to avoid the violence and peril of the standing this, if, after all the evidence is in, assault. If these be so sudden, fierce or ur- it is found that upon the whole case the state gent as not to allow him to retreat or to has not sustained the burden of proof in conhave other probable means of escape, then vincing you of the prisoner's guilt beyond a he may rightfully use a deadly weapon in his reasonable doubt, he should be acquitted. defense. State v. Wilson, 5 Pennewill, 77, 62 But we say to you, that such a doubt should Atl. 227. not be a mere fanciful, vague or speculative doubt, but a reasonable, substantial doubt, remaining in your minds after a careful consideration of all the evidence; and such a doubt as reasonable, fair-minded and conscientious men would entertain under all the facts and circumstances of the case.

If you find from the evidence that an actual assault was first made by John T. Williams, the prosecuting witness, upon Olan Stockley, the prisoner, it is then proper and material to the issue raised by the plea of self-defense, for you to consider and determine whether the prisoner was, at the time of the assault, in reasonable fear of death or of great bodily harm.

[10] In determining what constitutes such reasonable fear, you should consider the conduct of the prosecuting witness just before the assault, the violence of the assault, and the character of the weapon, if any, he em

If you are not satisfied from the evidence in this case, beyond a reasonable doubt, that the prisoner at the bar committed the assault upon the prosecuting witness, your verdict should be not guilty. If, however, you believe beyond a reasonable doubt that he did commit the assault, but are not satisfied that there was an intent to commit murder,

TION CO.

(3 Boyce, 253)

(Superior Court of Delaware. New Castle. April 3, 1912.)

and form as he stands indicted, but guilty of assault only. But if you believe that the CULBERT v. WILMINGTON & P. TRACprisoner not only committed the alleged assault, but at the time of its commission it was his intention to murder John T. Williams, and that had John T. Williams died from the effects of the injuries received the crime would have been murder, your verdict should be guilty in manner and form as he stands indicted.

Verdict, not guilty.

(3 Boyce, 252)

E. A. STROUT CO. v. HOWELL et al.
(Superior Court of Delaware. New Castle.
Feb. 19, 1912.)

PLEADING (§ 218*)-DEMURRER — EFFECT OF
DECISION.

A demurrer to a plea will be stricken out, where the sufficiency of the plea has already been determined on a demurrer to the replication to such plea.

[Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 549-566; Dec. Dig. § 218.*]

Action by the E. A. Strout Company against Alfred P. Howell and another. On motion to strike out plaintiff's general demurrer to defendants' fifth plea. Demurrer stricken out. See, also, 82 Atl. 238.

1. NEGLIGENCE (§ 1*)-DEFINITION.
"Negligence" is a failure to observe, for
the protection of another, that care which the
circumstances demand.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.*

For other definitions, see Words and Phrases, vol. 5, pp. 4743-4763; vol. 8, pp. 7729-7731.] 2. STREET RAILROADS (§ 112*) COLLISION WITH PEDESTRIAN-NEGLIGENCE-PRESUMPTION.

Since negligence is never presumed, the mere fact of plaintiff's injury by a collision with defendant's street car raised no presumption of negligence by either party.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 227, 228; Dec. Dig. § 112.*]

3. NEGLIGENCE (§ 136*)—JURY QUESTION.
The question of the existence of negligence
is for the jury.

[Ed. Note. For other cases, see Negligence,
Cent. Dig. §§ 277-353; Dec. Dig. § 136.*]
COLLISION
4. STREET RAILROADS (§ 112*)
WITH PEDESTRIAN-GROUNDS OF ACTION.

The plaintiff, in an action for personal injuries from being struck by a street car, could recover only on proof by a preponderance of the evidence that the defendant was negligent,

Argued before PENNEWILL, C. J., and and that its negligence caused the injury, and RICE, J.

Alex. B. Cooper and Richard S. Rodney, for plaintiff. Levin Irving Handy, for defendants.

PENNEWILL, C. J. (delivering the opinion of the court). In the above stated case the plaintiff filed a general demurrer to the defendants' fifth plea, which the defendants now move the court to strike out on the ground that it raises an issue which has been heretofore determined by the court in passing upon the defendants' demurrer to the plaintiff's replication to said plea.

Upon an examination of said fifth plea and replication, and a careful consideration of the question, we are satisfied of the sound

ness of the defendants' contention, and are constrained to grant the motion.

While the previous issue was raised by a demurrer to the replication, it was nevertheless a replication to the fifth plea, and necessarily, and in fact, involved the sufficiency of said plea. While the replication did raise other questions, the important question then argued and considered was the plea and its sufficiency in law. In overruling the replication the court distinctly held the plea surficient, and it could do nothing more in deciding the question raised by the present de

murrer.

The court will not hear and determine a question that has been already decided in the same case, and for that reason we order the demurrer filed by the plaintiff to the defendants' fifth plea stricken out.

that plaintiff was not guilty of any contributory negligence.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 227, 228; Dec. Dig. § 112.*]

5. EVIDENCE ($ 598*)-WORDS AND PHRASES"PREPONDERANCE OF THE EVIDENCE."

By a "preponderance of the evidence" is meant the weight of the testimony, when properly considered, and not necessarily the number of witnesses.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2450-2452; Dec. Dig. § 598.* vol. 6, pp. 5516-5518; vol. 8, p. 7761.] For other definitions, see Words and Phrases, 6. NEGLIGENCE (§ 63*)-UNAVOIDABLE ACCI

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r indexes