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• It is true, that Gravelot says, that plaintiff in error told him, in the store upon that day, that he did not suspect him of having been present with the mob the year before. Plaintiff in error denies that he said any such thing; on the contrary, he swears that he believed that Gravelot was present on the occasion referred to in May, 1899. One of the witnesses, introduced by the People, named Grenschaw, says that, in the summer before the shooting, plaintiff in error was talking to him about the mob that "white-capped” him, and mentioned the name of Gravelot, and said: "I will fix those fellows." A number of persons, to-wit, Daley and Schafer and Wullfe and Albert Hoenck and Brown, were in the store of Gravelot and heard the altercation, which took place there on August 16, 1900, between Gravelot and plaintiff in error, and yet none of these persons there present, all of whom testify in the case, mention the fact that plaintiff in error made the remark which Gravelot attributes to him.
However this may be, Daley and Schafer and Wullfe were in the store when plaintiff in error was there, and before he and Gravelot went upon the street. Plaintiff in error swears, that he recognized Schafer as being one of the mob, which had attacked him the year before. As soon as Gravelot and plaintiff in error left the store and went out upon the street, Schafer and Daley and Wullfe were seen leaving the side door of the store and coming towards plaintiff in error. Maas, who had not been in the store, but was on the opposite or east side of the street, was also seen to be approaching towards plaintiff in error.
All these persons were engaged in an assault on August 16, 1900, upon plaintiff in error; and that as. sault was made so near to the time, when Gravelot ad. vanced against plaintiff in error, as to appear to have been made simultaneously with such advance.
The evidence tends to show that, when Gravelot and plaintiff in error first went out upon the street, they intended to have a fist fight, and that plaintiff in error
took off his coat, and threw it into the buggy with the pistol in it. Some of the witnesses testify that plaintiff in error was not armed, when Gravelot first went upon the street from the sidewalk. It was after Schafer and Daley and Wullfe, and the others, who were in the store, came out and advanced towards him, and after he saw Maas and perhaps one or two others advancing toward him from the opposite side of the street, that plaintiff in error went to the buggy and took out his revolver. Gravelot says, in his testimony, that "it was less than a quarter of a minute after David started for the revolver that Maas had his arms around him." Plaintiff in error swears as follows: "I think Maas had hold of me when the revolver went off." Schafer says: “Mr. Gravelot was just going out of the front door when we (Daley and Schafer) went out of the east door; David was in the middle of the street; did not see the revolver in David's hand when I first went out on the street; all three (Schafer and Daley and Gravelot) had hold of him; it was not a minute before we had him on his back;
I don't think Gravelot had hold of him before we did; I think Gravelot rushed on David as soon as the shot was fired; we were there at about the same time." Schafer says that, when he came out of the side door, he saw Maas standing towards McMahon's office, which was on the east side of the street and in the rear of plaintiff in error. He also says that he had hold of David at the same time when Maas had hold of him, and that, when they felled him to the ground, they all had hold of him. Daley also swears that “Gravelot advanced and we advanced rapidly; we all went directly towards Mr. David; we grabbed him and Gravelot took the revolver away from him.” Daley also says: "I saw the blood on David's head before David was upon the ground; we had been struggling with David before I saw the blood; Gravelot struck David with the revolver before he went to the ground; we were all trying to get him to the ground;
I think there were two others besides us there; they came from that vicinity." Gravelot says: "First I saw of Mr. Maas was when he had his arms around David from behind: * *
he grabbed David about the same time I took the revolver; * * * I struck him about as hard as I could; I also struck him with my fist a great many times; I struck him in the face; we were both down on the ground when I was hitting him with my fist; after I got through beating him over the head with the revolver, I lost the revolver, and I think that Maas let loose of him." Wullfe says that plaintiff in error had his coat off when he first saw him go to the buggy and saw him come back again; "It was a very few seconds between the time I saw him go behind the buggy and when I saw him with the revolver;
I went out with the intention of helping Jules"(that is, Gravelot). Brown says that Gravelot "went as far as he could, and grabbed the revolver; don't know whether Maas got there first or not, it was all done so quick; Gravelot, the next I saw, was hitting David over the head with the revolver, and Maas was holding him, and David was trying to get away; Mr. Daley and Schafer were there." Maas says: “David walked to the hind part of his buggy and put his coat in; saw David have the revolver; he got it from the buggy; * * * I grabbed David when the shot was fired; * I called on Mr. Gravelot to take the revolver; when I saw Mr. Gravelot had the revolver I said, 'Shoot the son of a bitch;'
I was with those people who were scuffling more or less during all the trouble;
* Gravelot had hold of him at that time; Mr. Schafer and Daley must have been there because, when I grabbed Mr. David, the revolver must have been taken by those two men; saw Gravelot hit David; saw somebody kick him; it was Dick Eyerley; he kicked him while he was down; Gravelot was on top of him; I had hold of him when he was down; Eyerley kicked him on the right side; Eyerley kicked while the struggle was going on."
Charles W. Down testifies: “David was stretched out on the ground at that time face down; there were from twenty to forty people there; when he got up he was covered with mud and blood;
when I first saw it, there were three hold of him; then there were only two, and, when we got there, David was stretched on the ground, and Gravelot had David's head between his legs and was pounding him wherever he could; I saw him strike him several times; David was attempting to get up when Richard Eyerley came up from behind and gave him a kick; he kicked him somewhere in the ribs or stomach on David's right side; Mr. David said, when he got the kick, 'My God, boys, give me fair play.'” Albert Hoenck says: "David put his coat in the buggy while Gravelot was on the sidewalk; Mr. Gravelot started off the walk towards David, and David went over to the buggy and got his revolver and told Gravelot to stand back; David was standing straight up when the shot was fired; Gravelot rushed at David; the revolver was taken from David, and I saw Gravelot striking him on the head with it; then the crowd got so thick I couldn't see what was going on.” Doctor Smith swore that two of the ribs of plaintiff in error on the right side were broken, and his face was skinned and bruised, and that one eye was black, and so swollen as to be shut. One Trask testified that he heard a conversation between Gravelot and David several months before the shooting, and after the divorce suit, in which David charged Gravelot with having his (David's) wife in the cellar, and that Gravelot said, "You say that again, and I will knock you down."
It thus appears that the questions, addressed to Grave. lot upon the cross-examination, and which he was not allowed to answer, might have developed, if they had been answered, the connection of Gravelot, if any existed, with the previous mobbing of plaintiff in error, and would have thereby revealed more fully the relations between them. Plaintiff in error would have been entitled
to follow up the answers to the questions propounded with evidence, tending to show that Gravelot was a member of the “white-capping” mob, or had guilty knowledge of the same, or had participated in it. This evidence would have tended to show what the condition of plaintiff in error's mind was at the time of the assault, and whether he entertained a reasonable fear at that time that he was in danger of losing his life or of receiving great bodily harm.
Fourth-It is further claimed by plaintiff in error, that the trial court erred in giving certain instructions which were given on behalf of the People, and in refusing to give certain instructions asked by plaintiff in error.
We are inclined to think that the trial court should have given the instructions asked by the plaintiff in error, numbered 22 and 23, and set out in the statement preceding this opinion.
It is quite clear from what has already been said that the difficulty, which occurred on August 16, 1900, had two phases, or should be looked at in two aspects. First, it began as a personal difficulty between Gravelot and plaintiff in error, who went out upon the street to engage in a fist fight. Second, there is evidence tending to show that, when plaintiff in error saw these men, some of whom, he had reason to believe, had mobbed him the year before, advance upon him from all directions, he was justified in concluding that he was to be assaulted, not by Gravelot alone, but by these other men in pursuance of the old feud. When the mob had maltreated him in May, 1899, they had threatened to kill him, unless he took his wife back or gave her bis property. He neither took her back, nor gave to her his property.
Counsel for defendant in error claim that there was no error in the refusal of instructions, numbered 22 and 23, asked by plaintiff in error, upon the alleged ground that the substance of the same was embodied in instructions 14 and 15 given for plaintiff in error. This view, in