The State v. Rogers. Rogers ceased to advance, just as he shot; but before this, his pistol was in his hand in front of him, and the fatal bullet was fired by Rogers almost instantaneously with the second shot of Leggett. The instruction contradicts the theory of the defense, that Leggett first made an assault on the defendant, and concedes that the prisoner commenced the altercation, and struck the deceased first with his hand. All the evidence shows that Leggett retreated; that he retired from fifteen to eighteen feet; that he was literally trying to escape from the presence of Rogers; that Rogers made no attempt to shun the combat; that he advanced to the time that Leggett obtained mere temporary shelter behind the door or partition of the kitchen, but shot the moment Leggett presented hia arm and head therefrom. Nowhere in the altercation did Rogers manifest sufficient good faith on his part to remove the apprehension of his adversary. Had he exhibited, after the first blow was struck, half the diligence that Leggett did to avoid further encounter, it is more than probable that Leggett would have been saved from an untimely death, and the prisoner from a long confinement in prison. Rogers testified that he followed up Leggett, but gave the excuse that he wished to disarm his opponent. Of the two, Rogers was the abler and stronger; he had the more physical strength, yet he made no effort to retreat, no attempt to escape from Leggett; and he hesitated only when he supposed his antagonist was in a position to render his further advance dangerous; that hesitation was for a moment only; when the opportunity offered, the bullet from his ready pistol, fired with his own hand, pierced the temple of Leggett, and the latter fell with a fatal wound. But if we have mistaken in any way the evidence presented in the record, still we think the instruction refused ought not to have been given, as it is objectionable as a statement of law. The instruction assumes that Rogers followed Leggett, after commencing the altercation, and striking him with his hand, and assumes no explanation of his ceasing to pursue. The words, "and the defendant had ceased to follow him," are not broad enough in their import; are not sufficiently expressive of any intention on the part of Rogers to abandon the conflict. He may for the instant have ceased to follow, to gain fresh strength, or some new advantage for the attack. If the instruction is based upon the view that Rogers had repented, and was ceasing his pursuit, preparing to flee, then there is no assumption in the instruction The State v. Rogers. that Rogers had done "works meet for repentance." We do not hold that when one person, with no felonious intent, but simply for the purpose of inflicting a personal chastisement, strikes another with his hand, he has absolutely forfeited all right to exist, as the able counsel for the appellant suggests must be the result, if this instruction be held not good law. In discussing the question of self-defense Lord HALE says: "Supposing that A by malice. makes a sudden assault upon B, who strikes again, and pursuing hard upon A, A retreats to the wall, and in saving his own life kills B; some have held this to be murder, and not se defendendo, because A gave the first assault. But Mr. Dalton thinketh it to be se defendendo, though A made the first assault, either with or without malice, and then retreated. It seems to me that if A did retreat to the wall upon a real intent to save his life, and then merely in his own defense killed B, that it is se defendendo. But if on the other side, A, knowing his advantage of strength, or skill, or weapon, retreated to the wall merely as a design to protect himself under the shelter of the law, but really intending to kill B, then it is murder, or manslaughter, as the circumstances of the case require." 1 Hale's P. C. 479, 480. Again: "If A assaults B first, and upon that assault B re-assaults A, and that so fiercely that A cannot retreat to the wall or other non ultra without danger of his life; nay, though A fall upon the ground, upon the assault of B, and then kills B, this shall not be interpreted to be se defendendo, but to be murder, or simple homicide, according to the circumstances of the case; for otherwise we should have all cases of murders or manslaughters by the way of interpretations turned into se defendendo." 1 Hale's P. C. 482. What acts have been held so far to abridge a man's right of defense, that if he thereupon kill another, he cannot be acquitted of all crime, see State v. Starr, 38 Mo. 270; State v. Hill, 4 Dev. Bot. 491; Vaiden v. Commonwealth, 12 Gratt. 717; Adams v. The People, 47 Ill. 376; Haynes v. The State, 17 Ga. 465; Commonwealth v. Drum, 58 Penn. St. 9; Staffer v. State, 15 Ohio St. 47; Stuart v. State, 1 Ohio St. 66. The authorities uniformly hold that the person who first commences a malicious assault, then continues to advance as the assailed retreats, or does not in good faith attempt, so far as he can, to withdraw from the combat, and abandon the conflict, cannot justify taking the life of his adversary, however necessary it may be to save his own, and must be deemed to have The State v. Rogers. brought upon himself the necessity of killing his fellow-man. We see no reason from the authorities cited by counsel, or the argument presented in behalf of the appellant, in any way, to loosen these well-settled principles so salutary to prevent altercations, and to save human life. The mere striking of one person by another, with the intention to commit only a personal chastisement, is almost sure to be followed by a dangerous, if not deadly result, where the parties are armed with deadly weapons, as in this case; and while the carrying of the pistol loaded for use cannot be too severely censured, too strongly condemned, it is unfortunately a too prevalent custom to be wholly ignored, or to suppose that an encounter between two persons hostile to each other will only result after a blow is given by the first, in a combat with fists. The blow from the one is often followed by the pistol-shot from the other. The assailant places himself in peril when he makes the assault; and when he is in fault, and calls down upon himself the vengeance of the assailed, he cannot be justified under the law when he has not actually "put into exercise the duty of withdrawing from the place." Under the instructions refused, a person armed with a deadly weapon, who commences an altercation, commits a personal chastisement on another, advances as the other retreats, and only ceases to follow in order to watch the acts of his adversary, and, anticipating the shot of his opponent, kills the assailed by the quickness of his movements, is freed from all blame, and stands justified, because his antagonist in his retreat too fiercely returns the assault, and, having succeeded by flight to reach a door or partition from behind which he seeks to defend himself while he has reasonable grounds of apprehension that he is in imminent danger. Such is not the law. The instruction not given does not place the appellant in a fitting position at the time he gave the mortal wound for the law to say he was remitted to his right of self-defense. The judgment of the court below must be affirmed. Missouri Valley Life Insurance Co. v. Sturges. MISSOURI VALLEY LIFE INSURANCE Co. v. STURGES. Life insurance · (18 Kans. 93.) · assignment — want of interest. The assignee of a policy of life insurance cannot recover on the policy where he has no insurable interest in the life.* A CTION on a policy of life insurance. The facts are stated in the opinion. The plaintiff had judgment, and the defendant appealed. T. A. Hurd, for plaintiff in error. A. H. Ayres, for defendant in error. VALENTINE, J. The only question involved in this case is whether the defendant in error (plaintiff below) has a right to recover on a certain life-insurance policy. That the policy was valid when issued, and that the insured is dead, are facts admitted by the insurance company; but still the company claim that the plaintiff cannot recover, first, because the policy was forfeited prior to the death of the insured for non-payment of premiums; and second, because the plaintiff has no legal or valid interest in said insurance policy. We shall assume that said policy was not forfeited (and such would probably be our decision if we were to decide the question), and shall proceed at once to the consideration of the other question. The facts of the case, so far as it is necessary to state them, are substantially as follows: On March 16, 1870, Enoch Haynes procured from the plaintiff in error an insurance policy on his own life for the sum of $2,000. The premiums were made payable quarterly on the 16th days of March, June, September and December of each year, during the continuance of said policy, and the amount of each premium was $37.58. On May 8, 1872, Haynes assigned said policy to the plaintiff below, Arthur D. Sturges, who had no interest in the life of Haynes. The insurance company assented to said assignment. The plaintiff Sturges after *See to the contrary, Connecticut Mut. Life Ins. Co. v. Schaefer, 94 U. S. 457; Ætna Life Ins. Co. v. France, id. 561; Cunningham v. Smith, 70 Penn. St. 450. VOL. XXVI — 96 Missouri Valley Life Insuranee Co. v. Sturges. ward paid the premium on said policy. On 30th January, 1873, Haynes died, and Sturges then commenced this action against the insurance company to recover the amount of said insurance policy. Can he recover? We think not. Sturges never had any interest in the life of Haynes, but on the contrary, his whole interest, after said assignment, was in the death of Haynes. Each year that Haynes lived, Sturges was compelled to pay out $150.32 without the slightest hope of ever receiving any thing in return therefor. He was compelled to pay that amount in order to preserve the life of his insurance policy; but no payment that he could make would ever increase the amount of the benefit which he expected finally to receive The policy, in case of death, was worth just as much on the day of the assignment as it ever could be afterward. If Haynes had died on the very day on which said assignment was made, the holder of the policy would have been entitled to receive just $2,000; and no payment of premiums for any length of time afterward could ever increase that amount. Nor was Haynes bound to ever refund any thing to Sturges. And nothing that Haynes might ever earn, or own, or receive, could ever possibly go to Sturges. Sturges was not dependent upon Haynes for any support, nor was he his heir, or devisee, or legatee. Nor was there even the slightest tie of kindred or relationship, or even of friendship, binding them together, and making it desirable to Sturges for Haynes to live. Sturges in fact had no interest in Haynes, except that Haynes should die. And as soon as that event should take place, Sturges expected to receive from the insurance company the sum of $2,000; and of course, all his expenditures on said policy and on Haynes' life would then cease. Hence it will be perceived that Sturges, after said assignment, had a vast interest in procuring the death of Haynes, but had no interest whatever in preserving his life. Haynes' life cost Sturges $150.32 each year, without the slightest benefit in return, while Haynes' death would be worth to Sturges $2,000, without the slightest loss or inconvenience whatever. Now can such a state of things be tolerated by the laws of any civilized country? All insurance is in its nature a kind of wagering speculation. In the present case, the insurance contract was in the nature of a bet, for each year, of $150.32 against $2,000 (less the $150.32 paid as premiums), that the insured would not die within the year; or, more strictly speaking, it was in the nature of a bet, for each three months, of $37.58 against $2,000 (less the $37.58 paid as a pre |