ings, that it was necessary to take the life of the person slain in order to save his own life, or to prevent great bodily harm to himself, at the time he fired the fatal shot." In the case last cited, this court has, in effect, defined the law to be, that the belief or fear of imminent danger to life or person need not in fact be "well grounded,” but if the conduct, the actions, coupled with the threatening language of the prisoner's assailant, be such as to induce a reasonable, cautious man to believe from the circumstances by which he was surrounded that his life or person was in imminent danger unless he fires the fatal shot, then the killing would be excusable; and from these circumstances, as they appeared to the slayer, in the light of the evidence, must be deduced the excusing belief of the existence of imminent danger to life or person. All that could be required of the prisoner in such cases would be to show that he was surrounded by such a condition of affairs as made it, from his stand-point, reasonable for a cautious and prudent man to believe that it was necessary to fire the fatal shot or to strike the fatal blow in order to save himself from death or great bodily harm, even though it may turn out afterwards that the surrounding appearances were deceptive, and that in reality his life or person was in no danger at the time. The reasonableness of the belief or fear of the existence of such peril as will excuse the killing is for the jury to determine from all the facts and circumstances adduced in evidence. Though it may be proven at the trial, in the calm solemnity of the court-room, after the heat and excitement of the affray has long subsided, that in point of fact the prisoner was in no danger at the time, yet if the jury, after mentally putting themselves in the prisoner's shoes at the time of the killing, Beeing from the evidence only as he then saw, and hearing from the evidence only as he then heard, believe from the whole evidence that a cautious and prudent man would, under like circumstances, have been led reasonably to believe his life or person in imminent danger unless he did the act that caused death, then they should, under the law, by their verdict excuse the killing. Under this view of the law, it was error to instruct the jury that the belief of danger must be "well grounded." 2. This third instruction is erroneous when applied to the facts in this case, because it deprived the defendant of the defense founded upon the theory that the killing of Joseph Tillman, the deceased, was unintentional, and accidentally brought about by the excusable or justifiable de

fense of himself against impending danger from a third party. While we do not pretend to say that this defense was maintained by the evidence before us, yet we do think that such a defense was deducible from the evidence, and the prisoner should not have been shut off therefrom, as he was, by this third instruction, wherein the jury is told that in order to excuse the homicide upon the theory of self-defense, the defendant must show "that it was necessary to take the life of the person slain in order to save his own life," etc. It was for the jury to determine from the evidence whether the killing of Tillman, under the circumstances, was unintentional, and purely the result of a random shot fired by the defendant at another party, and whether the defendant fired that random shot with the degree of prudence, discretion, and care for the lives of others as the surrounding circumstances at the time would justify in the excusable or justifiable defense of his life or person from impending imminent peril at the hands of the party shot at but missed. If the killing of the party intended to be hit would, under all the circumstances, have been excu sable or justifiable homicide upon the theory of self-defense, then the unintended killing of Tillman, a by-stander, by a random shot fired in the proper and prudent exercise of such selfdefense, was also excusable or justifiable. We think further, that had the killing of the intended victim been reduced by the circumstances to murder in the second or third degree, or to manslaughter in any of the degrees, then the unintended and accidental killing of a by-stander, resulting from any act designed to take effect upon the intended victim, would be likewise reduced to the same grade of offense as would have followed the death of the victim intended to be killed: 1 Bishop's Crim. Law, sec. 334; Plummer v. State, 4 Tex. App. 310; 30 Am. Rep. 165; Aaron v. State, 31 Ga.. 167; Kerr on Homicide, secs. 154, 198.

From what has been said, under the circumstances of this case, the error of the third instruction becomes apparent, wherein it requires the defendant in a case like this to show that the killing of the person actually slain was necessary to save his own life, etc.

Upon the ground that the court below erred in not permitting the examination of the jurors upon the voir dire on the line herein pointed out, we think the judgment and sentence of the court below should be reversed, and a new trial granted, and it is so ordered.

JURY AND JUROR - EXAMINATION OF, ON VOIR DIRE-SCOPE OF. - Only statutory questions should be propounded to a juror on his examination on voir dire: Monday v. State, 32 Ga. 672; 79 Am. Dec. 314, and note. See extended note to State v. Crank, 23 Am. Dec. 128-131; Woolfolk v. State, 85 Ga. 71.

HOMICIDE - KILLING MUST BE UNLAWFUL, TO CONSTITUTE Murder. Homicide, without malice being shown, does not constitute murder: Maury v. State, 68 Miss. 605; 24 Am. St. Rep. 291, and note; note to Dukes v. State, 71 Am. Dec. 381.

HOMICIDE-SELF-DEFENSE SLAYER'S FEAR NOT WELL FOUNDED. — A defendant is excusable in acting according to surrounding circumstances as they appeared to him: Patten v. People, 18 Mich. 314; 100 Am. Dec. 173, and note; and it is not indispensable, to justify self-defense, that the danger was real: Campbell v. People, 16 Ill. 17; 61 Am. Dec. 49, and note; extended note to Shorter v. People, 51 Am. Dec. 293; State v. Cosgrove, 42 La. Ann. 753; State v. Harrod, 102 Mo. 591; Perkins v. State, 78 Wis. 551; State v. Wyse, 33 S. C. 582

HOMICIDE-ACCIDENTAL KILLING OF THIRD PERSON. - One who, in an attempt to kill one person, kills another by mistake, is guilty of murder or manslaughter: Butler v. People, 125 Ill. 641; 8 Am. St. Rep. 423, and note. One who, in self-defense against another, accidentally kills another is guilty of no crime: Plummer v. State, 4 Tex. App. 310; 30 Am. Rep. 165; extended note to Barcus v. State, 19 Am. Rep. 3.

MANSLAUGHTER IN THE FOURTH DEGREE. — As to what evidence will sustain a conviction for this crime, see Schlect v. State, 75 Wis. 486.

WILLS CONSTRUCTION OF INSTRUMENT IN FORM OF DEED. —An instrument in the form of a deed, or a contract for a deed, disclosing the intention of the maker respecting the posthumous destination of his property, and which is not to operate until after his death, is a will, and may be revoked.

Garver and Bond, for the plaintiffs in error.

W. E. Richards and R. R. Rees, for the defendants in error.

HORTON, C. J. This was an action brought in the court below by the widow and minor children of John Hazleton, deceased, against James G. Reed, executor of the last will of Henry Ricket, deceased, and other parties, to enforce an alleged contract for the conveyance of certain real estate, executed on the 9th of March, 1883, by John Hazleton and Henry Ricket. Henry Ricket died on the 15th of September, 1883. John Hazleton died on the 9th of April, 1888. Upon the part of the plaintiffs, it is claimed that, within the terms of the contract, Ricket was under obligation to make such provision by deed or will as would vest the title to the land in Hazleton; that the mere method or form adopted for this purpose cannot be held to be material, so that the intention of the parties is carried out; that it is the duty of the court to ascertain the intention of the parties with reference to the subject-matter of their agreement, when that can be done; that it was the intention of both Ricket and Hazleton that the land should become the property of the latter upon the former's death, and therefore that the district court erred in sustaining the demurrer of the

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defendants upon the ground that the petition did not state sufficient facts to constitute a cause of action. The written memorandum of the alleged contract was under consideration by this court in the case of Reed v. Hazleton, 37 Kan. 321. The facts of this case, together with a copy of the memorandum, are recited in full in the foregoing case, and need not be repeated here. In the former opinion handed down, it was said: "Under the view which we take of this instrument, it will be unnecessary to examine the nature of a contract of bargain and sale, and a covenant to stand seised to the use of the grantee, which are discussed in the briefs filed in this action. We believe that it ought not to be placed in either of those classes of conveyances. . . . . This article of agreement does not contain any of the usual operative words of a conveyance, with the possible exception of this clause: After the death of said Henry Ricket, of the first party, the right and title of the land in question shall vest in the said John Hazleton, of the second party.' That provision has no present operation, and could be revoked by the grantor at any time. It was testamentary.

. The old man wisely kept possession and control of his home, to prepare for the possible change in the feelings of himself and Hazleton. Hazleton was not without recourse if he had performed services for which he had not been paid. He could have presented his claim against the estate, and the courts were open to aid him in obtaining his dues."

This disposes of the case. In Turner v. Scott, 51 Pa. St. 126, on the 22d of November, 1849, the father, John Scott, executed an instrument to his son, John W. Scott, purporting to convey his farm. The consideration for the execution of the instrument was the natural love and affection which the father had for his son, and also an agreement from the son that he was to live with the father, assist him in his work on the land, and maintain the mother during her natural life, if she survived her husband. The instrument contained the following provisions: "Excepting and reserving, nevertheless, the entire use and possession of said premises unto the said John Scott and his assigns for and during the term of his natural life, and this conveyance in no way to take effect until after the decease of the said John Scott, the grantor."

The son commenced to live with his father upon the land mentioned in the instrument, but after a time they quarreled. The father turned the son out, and on the 26th of February, 1861, made a will revoking the instrument executed to his son,