lent temper, and dangerous when excited. The court rejected the evidence, stating that it would not justify Chandler in killing Daley. The weight of authority is against the admissibility of such evidence, and the exception has been abandoned in this court: See 1 Whart. Cr. L. 172; 1 Phill. Ev. 499; 1 Russ. on Crimes, 700; State v. Tilly, 3 Ired. L. 424.

The counsel of the accused requested the court to charge the jury, "that to carry weapons, either concealed or openly, is not a crime in the state of Louisiana; that the constitution which guarantees to the citizen the right to bear arms can not be restricted by the action of the legislature."

The act of the twenty-fifth of March, 1813, makes it a misdemeanor to be "found with a concealed weapon, such as a dirk, dagger, knife, pistol, or any other deadly weapon concealed in his bosom, coat, or any other place about him, that does not appear in full open view." This law became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man's right to carry arms (to use its words) "in full open view," which places men upon an equality. This is the right guaranteed by the constitution of the United States, and which is calculated to incite men to a manly and noble defense of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.

The counsel of the accused obtained a bill of exceptions to the charge of the court, in which they deny the right of the judge to pass in review the facts, and to speak of the conflicting testimony when corroborated or contradicted, and especially to express to the jury his opinion that the prisoner is guilty.

In the charge to the jury, as subsequently reduced to writing by the judge, he certainly expresses himself strongly on the facts in saying: "I have rarely known a case in which the crime of murder was more clearly brought home to the prisoner, and I can not think you can entertain any reasonable doubt of his guilt." Such strong expressions as to the guilt of the accused, coming with the weight of authority from the judge, in whom the juries habitually repose great confidence, are calculated to bias the minds of the jurymen, and may impair the right of the accused, guaranteed by the constitution, to a trial of the issues of fact by an impartial jury. It would certainly comport more with our views of criminal trials for the judge in his charge to the jury to limit himself to a full explanation of the law of the

case; to divest it of all irrelevant matter to be found in the pleadings, evidence, or arguments of counsel in almost every case; to clearly sum up the evidence for the prosecution and the defense; and to omit any strong expressions as to the guilt of the accused. We think we may recommend this course without infringing the undoubted right of the judge to express his opinion to the jury as to the weight of the evidence, and to comment thereon as much as he deems necessary for the course of justice: Whart. Cr. L. 638. As the jury rendered a verdict for manslaughter only, we do not deem it necessary to comment further upon this part of the case.

The counsel of the accused requested the court to charge the jury, that "when from the nature of the attack there is reasonable ground to believe there is a design to destroy his life, or commit any felony upon his person, the killing of the assailant will be justifiable homicide, although it should afterwards appear that no felony was intended." The court refused to charge the jury as requested, and declared that the charge so requested was not law.

This was the charge given to the jury by Chief Justice Parker, in the celebrated trial of Selfridge. It is strictly the law of selfdefense, laid down by Russell, McNally, and other elementary writers, and decided in many cases. East, in his Pleas of the Crown, lays down the principle in these words: "A man may repel force by force in defense of his person, habitation, or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, and the like, upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger, and, if he kill him in so doing, it is called justifiable self-defense." He qualifies the principle substantially as Chief Justice Parker did, that there must be actual danger at the time from the violence, and a reasonable belief that a felony is intended. If there be an actual physical attack of such a nature as to afford reasonable ground to believe that the design is to destroy life or to commit a felony upon the person assaulted, the killing of the assailant in such case will be justifiable homicide in self-defense. We are of opinion, therefore, that the charge asked in this case, and as given by Chief Justice Parker in the case of Selfridge, is the law of self-defense.

There has not been so much doubt as to the correctness of the principle as to its applicability to the state of facts estab

lished in Selfridge's case; and therefore the great effort of judges in trials for homicide should be clearly to point out to juries the state of facts to which the principle is applicable, and that state of facts to which it is inapplicable; and in a case to which the principle is clearly inapplicable, to decline giving it in charge to the jury at all, and for that reason alone.

To express our views in relation to the present case: if Daley actually attacked Chandler, and was beating his head against a brick wall so as to put his life really in danger, and Chandler then killed his assailant from absolute necessity to preserve his own life, the charge asked for was not only the law of selfdefense, but was applicable to the case, and should have been given to the jury by the court.

But if Daley was unarmed and sick, and only in consequence of a quarrel with Chandler's wife the preceding evening, the latter was enraged so that he rushed upon and gave him four stabs with a bowie-knife, until then concealed in his bosomDaley being a perfectly passive victim-the charge asked was entirely inapplicable, and should have been refused by the judge on account of its irrelevancy to the case.

We have no means of knowing what was the true state of the facts proved in the case, so as to judge whether the charge asked was necessary and relevant to the case, or only an, abstract legal opinion. If the testimony given in the defense afforded a reasonable ground for asking the charge, the court erred in not giving it. If the state of facts proved was such as to render the charge entirely inapplicable to the case, the court should have refused it on that ground alone: Hamilton v. Russell, 1 Cranch, 309, 318.

Even if the charge asked was an abstract principle of law, not applicable to the facts in the case, the court having erroneously stated to the jury that the principle was not law, they may have been misled by the error, and the better opinion is that the verdict should be avoided: Etting v. The Bank of the United States, 11 Wheat. 59.

The judgment of the district court is reversed, and the case remanded for further proceedings, with directions to put the prisoner upon his trial for manslaughter alone, he having been substantially acquitted of murder, and with directions to the court in its charge to the jury to conform to the principles contained in our opinion.

INSTRUCTIONS IN CRIMINAL CASES.-It is the right and duty of the judge to instruct the jury as to the law, if he thinks it proper so to instruct them:

Gwatkin v. Commonwealth, 33 Am. Dec. 264. Instructions upon the weight and sufficiency of the evidence are erroneous: Id.; Blunt v. Commonwealth, 26 Id. 341. Party convicted of manslaughter on indictment for murder can not be again indicted for the same murder: State v. Hornsby, 41 Id. 314, and note 321.

Court in charging jury must not comment on the testimony produced: State v. Schnapper, 22 La. Ann. 43. Error was committed by the court when it charged that "the state having proved the killing, malice should be presumed." Consequently, the accused is entitled to a new trial: State v. Trivas, alias Fled, 32 Id. 1086. Evidence that the deceased was quarrelsome and dangerous is admissible in excuse for the killing, or in palliation of the offense, when it appears that the deceased was the assailant: State v. RobertRon, 30 Id. 340; Cotton v. The State, 31 Miss. 504. The principle "that a conviction for manslaughter resulting when the prisoner was put upon trial for murder was to be considered an acquittal of the greater offense, and barred the further prosecution of the charge of murder," was reiterated in the cases of the State v. Byrd, 31 Id. 419, and State v. Dennison, alias Denis, 31 Id. 847.

FRIERSON V. BRENHAM.

[5 LOUISIANA ANNUAL, 540.]

INSURANCE POLICY issued "for account of whom it may concern is not only to be limited to those who have an insurable interest in the property which may be lawfully insured, but must also be restricted to those for whom the insurance was intended, and by whom it was previously authorized and subsequently adopted.

WHERE PARTY HAS POSSESSION of property at the time of the insurance and of the loss, he is entitled to recover the entire amount insured, notwithstanding there may be a question as to the validity of his title. APPEAL from the New Orleans fourth district court. The facts are stated in the opinion.

M. M. Cohen and J. R. Grymes, for the plaintiff.

Prentiss, for the defendant.

Roselius, Duncan, and Mott, for the intervenors.

By Court, SLIDELL, J. In 1847, Brenham applied to the Memphis Insurance Company for insurance on the freight of the steamer Ambassador, for account of whom it may concern; and a policy "for account of whom it may concern" was given to him. During the period covered by the policy the steamer was destroyed by fire. The amount of freight list was six thousand eight hundred and sixty-three dollars and twenty-six cents. Of this, John H. James claimed three fourths; Brenham claimed the whole. It may be assumed, as a well-settled principle in the law of insurance, that an insurance in such words is not only to be lim

ited to those who have an insurable interest in the property, and may be lawfully insured, but must be also restricted to those for whom the insurance was in fact intended, and by whom it was previously directed or authorized, or subsequently, in due season, adopted: See 2 Duer's Mar. Ins. 30; Arnould's Mar. Ins. 25; Catlett v. Pacific Insurance Co., 1 Wend. 561; S. C., in the court of errors, 4 Id. 79.

case.

The conclusion from the evidence is irresistible, that in taking out the policy, Brenham did not intend to acknowledge any interest in James, or embrace such interest in the contract. He had the sole possession of the steamer since December, 1845, at which time he purchased her at a judicial sale, preceded by a seizure of the vessel, and under a sheriff's deed which purported to convey the vessel, and not the mere interest of Brenham in her. There was an attempt in the oral argument to limit the seizure and sale to the one-fourth interest; but this is in direct conflict with the pleadings and proceedings in the case of Gilmore & Henderson v. Brenham, which are in evidence in this Since December, 1845, to the time of the loss, Brenham had possession of the entire boat, claiming absolute ownership of her, and held adversely to James and everybody else. She was registered and run solely in his name. All his acts since the judicial purchase are directly hostile to any interest in James; and there is not a shadow of ground for the proposition that the protection of any equitable interest of James, if any such existed, was ever contemplated either by Brenham or the underwriters. But it is said by the underwriters that there was an existing interest in James; that James is not covered quoad in that interest, because he was not contemplated as a party to be protected by the contract; and that Brenham can not recover quoad that interest, because it is not in him; and his only insurable interest was one fourth.

Upon this point it is urged, that the judicial sale of the entire boat was brought about by a collusion between Brenham and one or some of the seizing creditors to destroy the alleged interest of James; and that Brenham's acquisition and subsequent possession are tainted with fraud. It appears from the evidence, that when the boat was seized upon various executions, one of which was in the case of Gilmore & Henderson v. Brenham, James came into the cause by a third opposition, and resisted the seizure and sale of the entire vessel, upon the ground that he (James) was the owner of three fourths. In that controversy, it was finally adjudged that James was not an owner: See Gil