Argument of Counsel for Defendant in Error. In the consideration of the effect of fraudulent representations of collateral matters as inducements to the contract, the law is usually stated that the collateral matter must appear from the circumstances of the case to be material to the contract in its direct sense, or be such as has been made by the parties an essential preliminary to the making of the contract in question. Admitting that the right of disposal is an incident to the ownership of property, it follows that Stewart, in this case, had the absolute right, if he considered it good business policy, to refuse to sell stone to a purchaser who was at that time under contract to purchase stone from another quarry for the same work. Brett v. Cooney, 75 Conn. 338, 53 Atl. 729, 1124. The better rule for deciding whether fraud be material or not is this: If the fraud be such that had it not been practiced the contract would not have been made, or the transaction completed, then it is material to the contract. 2 Pars. on Cont. 937; Higbee v. Trumbauer, 112 Iowa, 74, 83 N. W. 812; Brown v. Search, 131 Wis. 109, 111 N. W. 210. "It may often be difficult to say when a representation is material, but it is probably safe to say that it is always material if had it been known to be false the contract would not have been entered into." Clark on Contracts, 226; 1 Page on Cont. 208; McAleer v. Horsey, 35 Md. 439; Powers v. Fowler, 157 Mass. 318, 32 N. E. 166; Holst v. Stewart, 161 Mass. 516, 37 N. E. 755, 42 Am. St. Rep. 442. "The misrepresentations must be material --that is, it must have been an inducement to the contract; otherwise it will not be a ground for avoiding it." 9 Cyc. 424; Taylor v. Scoville, 3 Hun (N. Y.) 301; Stewart v. Lester, 49 Hun, 60, 1 N. Y. Supp. 699; Smith v. Countryman, 30 N. Y. 670; Pulsford v. Richards, 17 Beaver, 87, at 96; 17 Jur. 865; 22 L. J. Ch. 559; 1 Weekly Rep. 295; Stone & Wellington v. Robie, 66 Vt. 245, 29 Atl. 257. A careful examination of the authorities will disclose, beyond question, that the misrepresentation of the fact known to the person making it to be untrue amounts to a fraud in law, if the representation be expressly intended to induce a person to act upon it. Kent County R. R. Co. v. Wilson, 5 Houst, 50; Richardson v. Horn, 8 Houst. While in an action for deceit all the elements of fraud, including injury, must be present, where fraud is urged as a defense to an action on contract the element of damage is not necessary to justify rescission. The argument of the Court below is to the effect that inasmuch as it does not appear that Stewart would have suffered an injury by reason of the statements made, one of the essentials in the proof of fraud is wanting, and therefore the case of fraud is not made. That this is error, the authorities recognize the very important distinction between fraud as a ground for an action of deceit and as the ground for rescission in a defense to an action on contract. Taylor v. Scoville, 3 Hun (N. Y.) 301; Stewart v. Lester, 49 Hun, 63, 1 N. Y. Supp. 699; Higbee v. Trumbauer, 112 lowa, 74, 83 N. W. 812; McLaren v. Cochran, 44 Minn. 255, 46 N. W. 408; Williams v. Kerr, 152 Pa. 560, 25 Atl. 618; Fox v. Tabel, 66 Conn. 397, 34 Atl. 101; Cruess v. Fessler, 39 Cal. 336; Baker v. Maxwell, 99 Ala. 558, 14 South. 468; Harlow v. La Brum, 151 N. Y. 278, 45 N. E. 859; Short v. Cure, 100 Mich. 418, 59 N. W. 173. That the Court below erred in considering the element of injury essential in this case must clearly appear from an examination of all of the authorities. It was without the province of the court in this case to pass upon the materiality of the statements and the defense of fraud should not have been taken from the jury. The Court below erred in refusing to instruct the jury that if a purchaser makes false representations to pay, or as to his property or credit, the contract is vitiated. (A statement as to assets and debts of a business is a material fact.) Nevada Bank v. National Bank (C. C.) 59 Fed. 338; Mayberry v. Rogers, 81 Ill. App. 581; Garrison v. Electric Works, 55 N. J. Eq. 708, 37 Atl. 741; Townsend v. Felthousen, 156 N. Y. 618. 51 N. E. 279; Gainesville Nat. Bk. v. Bamberger, 77 Tex. 48, 13 S. W. 959, 19 Am. St. Rep. 738; Hume v. Steele (Tex.) 59 S. W. 812. (False statements as to his debts and means, made by a purchaser to induce credit, are fraudulent. Johnson v. Peck, 1 Wood B. & M. 334. (False statements made to procure credit that a purchaser is solvent and able to pay his debts are fraudulent.) Ensign v. Hoffield & Geisaler (Pa.) 4 Atl. 189. (A man's statement, to obtain credit, that he is "doing a safe business" and that his note is sure to be paid if false, constitutes fraud.) Thompson v. Rose, 16 Conn. 71, 41 Am. Dec. 121. (A false statement that a purchasing corporation was out of debt and had unincumbered property of a stated value was also held fraudulent.),McClellan v. Scott, 24 Wis. 81. (A false statement of a specific fact as to the capital of a firm, made by one member in order to obtain that payment would be made and the vendor | them (misrepresentations) three things are suffer no loss.) Judd v. Weber, 55 Conn. requisite-1st, the misrepresentations must 267, 11 Atl. 40. (A statement by a purchaser relate to something material and substantial; of that part only of his indebtedness which 2nd, the transaction sought to be avoided is connected with, the business for which a must appear to have been induced by it. The purchase is made, without including his oth- party aggrieved must have been actually er indebtedness, is fraudulent when made in misled by it; and 3rd, his confidence must reply to an inquiry by, his vendor as to his have been a reasonable one. Except in these financial condition.) Collins v. Cooley (N. cases, even betrayed confidence is not a J. Ch.) 14 Atl. 574. (It is clear that if the ground of relief." purchaser makes false representations as to his ability to pay, the,sale is void and no title passes.) 2 Parsons on Contracts (9th Ed.) p. 940. In the case before us the negotiations between the parties seem to have been open and fair. The defendant below and the authorized agent of plaintiff company came to The Court, below erred in refusing to in-gether personally and after a conference that struct the jury that "it is not necessary that the false representation should be the only inducement. There may be .other inducements co-operating. It is sufficient that such false representatious were so material that the purchase would not have been made in their absence. If to that extent they operated as inducements to the contract, the contract, would be void, however many other inducements there may have been." Matthews v. Bliss, 22 Pick. (Mass.) 48; Saunders v. McClintock, 46 Mo. App. 216; McAleer v. McMurray, 58 Pa. 126. CONRAD, J. The one question presented in this case by the assignments of error is whether the Court below was justified in instructing the jury that there was no such evidence of fraud in the case as would warrant the defendant below in rescinding his contract of sale. In Freeman v. Topkis, 1 Marvel, 178, 40 Atl. 949, Chief Justice Lore states the law as follows: "What constitutes fraud is a question for the Court, whether the fraud was actually committed is a question of fact for the jury." [1, 2] When fraud is set up as a defense, the fraud must be proved, and is not presumed, or to be established by slight proof or trivial circumstances. Actual fraud is always a matter of fact, and must be proved and established as such in any case, but what will constitute an actual fraud as will vitiate and avoid a contract of this kind, is a question of law, and it is therefore the province of the Court to say and instruct the jury whether the evidence was sufficient for that purpose. In Pearce v. Carter, 3 Houst. 385. Chief Justice Gilpin very aptly suggests that it is not every false representation, even when made with a full knowledge of its falsity, that will amount, in judgment of law, to such a fraud as will invalidate a contract and deprive a party of his right to enforce it, and Chancellor Bates in Reznor v. Maclary, 4 Houst. 254, lays down the general principles of law governing contracts that are attacked on the grounds of fraud or misrepresentation in the following language: "In necessarily occupied a considerable period of time, agreed upon a sale of one thousand tons of stone. The questions asked by defendant as to the use that was to be made of the stone, and as to the financial standing and responsibility of plaintiff company, seem to have been promptly and satisfactorily answered so that before the conference ended, a proposition as to price, etc., was made in writing by defendant and accepted at once by the agent of plaintiff company. No elements of concealment or unfairness are shown in the negotiations, they appear to have been open and aboveboard. The defendant below defends his breach of the contract on three grounds,-that false statements were made by plaintiff company, first, as to where the stones were to be used, second, as to the credit of plaintiff company, and, third, as to certain work being paid for that had been done theretofore for plaintiff company by another party. [3] As regards the first contention, there is some conflict in the testimony as to whether representations were made that the stone bought by plaintiff company from defendant were to be used on the contract at Cross Ledge Light on which defendant was an unsuccessful bidder some months previous. Defendant in his testimony states very positively that he was not willing to furnish stone for that particular job, and he objected to so doing on the ground that to do so would violate a business principle, or policy, which he had established for himself, viz., not to furnish stone for any work to a principal contractor in cases where he, the vendor, had theretofore bid unsuccessfully in competition to supply stone to such principal contractor for the same work. It did not appear to the court below nor does it appear to this court that there was any element of fraud or misrepresentation in any statement made regarding the use of the stone that was vital or material to the contract in this case. [4] The defendant evidently relied upon the second and third contentions but as regards both he signally failed to establish fraud of a material or substantial nature. No evidence was adduced that in the least or that tended to show financial weakness; [ 5. HOMICIDE ($§ 7, 22, 23*) — "Murder". WHAT CONSTITUTES. on the contrary plaintiff company showed by affirmative testimony that it paid its debts and was in good credit. "Murder" is the unlawful killing of a human creature with malice aforethought, either express or implied, and is of the first or secThe evidence as to payments made on the ond degree, as the malice is express or implied. Cross Ledge contract was not entirely clear [Ed. Note.-For other cases, see Homicide, but the fact was established that full settle-Cent. Dig. §§ 12, 35-38, 39, 40; Dec. Dig. 88 7, 22, 23.* For other definitions, see Words and Phrases. vol. 5, pp. 4632-4637; vol. 8, pp. 7726, 7727.] 6. HOMICIDE (§§ 11, 12, 13*) — “MALICE” — WHAT CONSTITUTES. ment had been made for all work for which bills had been rendered up to the time of the making of the contract now in dispute, so the evidence on the third point likewise failed in establishing material and substan- "Malice" is the ingredient that charactertial fraud such as would avoid the contract. izes murder, and distinguishes it from homicide of other grades. It is express when adThese facts appearing from a careful read-mitted or asserted, or may be implied from any ing of the testimony; and the law as laid down by the Court below being in accord with previous decisions of the Courts of this State, we find no error in the rulings or charge of the Court below and so order that the Judgment below be affirmed. (3 Boyce, 176) STATE v. DE PAOLO. (Court of General Sessions of Delaware. Castle. May 13, 1912.) unlawful acts of the assailant which in itself denotes a wicked heart fatally bent on mischief, or a reckless disregard of human life. [Ed. Note.-For other cases, see Homicide, Cent. Dig. 88 15, 16, 17, 18; Dec. Dig. §§ 11, 12, 13.* For other definitions, see Words and Phrases, vol 5, pp. 4298-4304; vol. 8, pp. 7712, 7713.j 7. HOMICIDE (§ 13*)—Murder-"Implied MAL ICE. Malice, as an element of murder, may be implied from the deliberate selection and use of a deadly weapon, or from any deliberate, cruel New act committed by the assailant against his victim, no matter how sudden such act may be; and whenever such act from which death ensues is proven, unaccompanied by circumstances of justification, excuse, or mitigation, the law presumes that the homicide was committed with malice, and it then devolves on accused to show that the killing was not malicious, and that the act was not murder. 1. HOMICIDE (§ 84*)-"ASSAULT WITH INTENT TO MURDER"-ELEMENTS OF OFFENSE "ASSAULT." The offense of "assault with intent to murder" is an "assault," which is an attempt with force and violence to do injury to the person of another, inspired or accompanied by an intent to murder. [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 110; Dec. Dig. § 84.* [Ed. Note. For other cases, see Homicide, Cent. Dig. § 18; Dec. Dig. § 13.* For other definitions, see Words and Phrases, vol. 4, pp. 3433-3434; vol. 8, p. 7682.] For other definitions, see Words and Phrases, 8. HOMICIDE (§ 31*) vol. 1, pp. 532-542, vol. 8, p. 7582.] 2. HOMICIDE (§ 145*)-ASSAULT WITH INTENT TO MURDER "INTENT." An "intent" to murder, while an essential ingredient of the offense of assault with intent to murder, being entirely a mental operation, may be disclosed by the words of the assailant, or may be inferred from his acts and conduct. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 262-264; Dec. Dig. § 145.* For other definitions, see Words and Phrases, vol. 4, pp. 3686-3688; vol. 8, p. 7690.] 3. HOMICIDE (§_86*)-ASSAULT WITH INTENT TO MURDER-INTENT. Where a person voluntarily selects a deadly weapon, as a sharp or heavy instrument or firearm, and willfully uses it against another in an unlawful manner, and in a way and under circumstances that directly tend to great bodily harm, or that imperil human life, the jury may find that he intended the actual and probable consequences of his acts. [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 112; Dec. Dig. § 86.*] 4. HOMICIDE (§ 84*)-ASSAULT WITH INTENT TO MURDER-ELEMENTS OF OFFENSE. In order to convict of assault with intent to murder, it is necessary to establish that the prisoner committed the assault with intent to murder the person injured, and it must also be shown that, if the latter had died from the injuries inflicted or attempted, accused would have been guilty of murder. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 110; Dec. Dig. § 84.*] WHAT CONSTITUTES. "MANSLAUGHTER" "Manslaughter" is a homicide distinguished from murder in that it is the unlawful killing of another with malice, as in sudden affray, in the heat of blood, or in a transport of passion, without time for deliberation, reflection, or for the passions to cool. [Ed. Note.-For other cases, see Homicide, Cent. Dig. § 52; Dec. Dig. § 31.* For other definitions, see Words and Phrases, vol. 5, pp. 4338-4342; vol. 8, p. 7715.] 9. HOMICIDE (§ 89*)-ASSAULT WITH INTENT TO MURDER-MANSLAUGHTER. Where, in a prosecution for assault to murder, the jury found that accused assaulted prosecutor without malice, under such circumstances that, if the latter had died from the injuries received or attempted, accused would have been guilty of manslaughter, and not murder, they could not convict of assault with intent to murder, but only of assault. [Ed. Note.-For other cases, see Homicide, 10. HOMICIDE (§ 96*) — ASSAULT - SELF-DECent. Dig. §§ 115-118; Dec. Dig. § 89.*] FENSE. One has a right to protect his person from assault and injury by opposing force with force, and if in the proper use of that right injury or death results, no crime is committed; but in resisting or repelling an attack the opposing force or measure of defense must not be disproportionate to the exigency, since, if more force than is necessary to repel the assault is used, the party using it becomes the assailant, and is guilty, under the rule that the right of self-defense may be used for the purpose of preventing, but not of avenging, an injury. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 124-127; Dec. Dig. § 96.*] 11. HOMICIDE (§ 116*) - ASSAULT AND BATTERY (§ 67*)-SELF-DEFENSE-EXTENT. sential ingredient of the crime, and is the In defending himself from injury, a person 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 [3] When a man voluntarily selects a deadsuch danger may protect himself by strikingly weapon, as a sharp or heavy instrument the first blow, and when one assaulted on a or firearm, and willfully uses it against ansudden affray honestly believes, on reasonable and sufficient grounds, that he is in imminent other in an unlawful manner, and in a way danger of being killed or seriously injured, he and under circumstances that directly tend may employ a deadly weapon in self-defense; to great bodily harm or that imperil human but in exercising such right he must be close-life, the jury may find that he intended murly pressed, and when retreat or escape is pos- der, for it is a principle of law that every sible he must retreat as far as he safely can in good faith, with an honest intent to avoid man is presumed to intend the natural and the violence and peril of the assault. probable consequences of his own voluntary and willful acts. [Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. § 116;* Assault and Battery, Cent. Dig. §§ 96, 97; Dec. Dig. § 67.*] 12. CRIMINAL LAW (§ 561*)-PRESUMPTIONSREASONABLE DOUBT. [4] In order to convict the prisoner of the crime of which he is charged, it is not only necessary for the state to prove and for you to find that the prisoner committed the assault, and that he committed it with intent him, the said Niglio, to murder, but it must also be shown and you must also. find that, if Niglio had died from the in Since all the presumptions of law independent of evidence are in favor of innocence; and every person is presumed innocent until proven guilty, the burden is on the state to establish the guilt of accused, not by a preponderance of the evidence, but beyond a reasona-juries inflicted or attempted, the prisoner ble doubt. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.*] 13. CRIMINAL LAW (§ 561*)-TRIAL-"REA SONABLE DOUBT." "Reasonable doubt" is not a mere possible doubt, since everything relating to human af fairs is open to some possible or speculative doubt, but is a real and substantial doubt, founded in reason, and such as men of intelli gence and discernment may entertain, and, if necessary, be able to express or define, after a careful' consideration of all the evidence in the case. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.* For other definitions, see Words and Phrases, vol. 7, pp. 5958-5972; vol. 8, p. 7779.] Mariano De Paolo was indicted for assault with intent to murder. Verdict, "Guilty of assault." Argued before WOOLLEY and RICE, JJ. Josiah O. Wolcott, Deputy Atty. Gen., for the State. J. Frank Ball, of Wilmington, for defendant. would have been guilty of the crime of murder. Should you find the prisoner guilty of the assault, you must thereafter try this. case, and the court must instruct you upon the law, as though death had actually resulted from the assault and as though the prisoner were charged with murder. [5-7] Murder is the unlawful killing of a human creature in being with malice aforethought, either express or implied, and is of the first or second degree as the malice is express or implied. Malice is the ingredient that characterizes the crime and distinguishes it from homicide of other grades, and may be express when admitted or asserted, or implied from any unlawful act of the assailant, such as in itself denotes a wicked heart fatally bent on mischief, or a reckless disregard of human life. It may be implied from the deliberate selection and use of a deadly weapon and from any deliberate cruel act committed by the assailant Indictment for assault with intent to com- against his victim, no matter how sudden mit murder (No. 13, May term, 1912). act such act may be, for the law considers that he who does a cruel act voluntarily does it WOOLLEY, J. (charging the jury). Gen- maliciously. And whenever such an tlemen of the jury: [1] The particular act from which death ensues is proven, unaccomwith which the prisoner at the bar is charg-panied by circumstances of justification, exed is an assault upon one Nicola Niglio, cuse or mitigation, the law presumes that with intent him, the said Niglio, to murder. The particular crime committed by such an act is known to the law as an assault with intent to commit murder, the principal elements of which are, first, an assault, which is an attempt with force and violence to do injury to the person of another, inspired or accompanied, second, by an intent to murder. [2] The intent to commit murder is an es the homicide was committed with malice. and it then devolves upon the accused to show that the killing was not malicious and the act was not murder. If you find that the prisoner not only committed the alleged assault, but committed it with intent to murder Niglio, and that, if death had ensued, the prisoner would have been guilty of the crime of murder in either the first or second degree, your verdict [ [12] All of the presumptions of law, inshould be guilty in manner and form as indicted. [8, 9] Manslaughter is a homicide distinguished from murder in that it is the unlawful killing of another without malice, as in a sudden affray, in the heat of blood or in a transport of passion, without time for deliberation, reflection or for the passions to cool. If you find the prisoner committed an assault upon Niglio, without malice, and if Niglio had died from the injuries received or attempted, the prisoner would have been guilty, not of murder, but of manslaughter, you cannot find him guilty of assault with intent to murder, but you may find him guilty of assault only. [10] Every display of force exerted by one person toward another does not constitute an assault, nor is every homicide a crime. The law accords to every one the right to protect his person from assault and injury by opposing force with force, and if, in the proper use of that right, injury or death results, no crime is committed. But in resisting or repelling an attack, the opposing force or measure of defense must not be disproportionate to the exigency. All necessary force may be used, but if the force or violence used is greater than is necessary under the circumstances to repel the assault dependent of evidence, are in favor of innocence, and every person is presumed to be innocent of crime until proven guilty. It therefore devolves upon the state to maintain its issue and prove the guilt of the prisoner, not by the preponderance of evidence, as in civil cases, but beyond a reasonable doubt. [13] Reasonable doubt is an expression rather well understood, but not easily defined. It is not a mere possible doubt, because everything relating to human affairs is open to some possible, imaginary or speculative doubt. It is a real and substantial doubt, founded in reason and such as men of intelligence and discernment may entertain, and, if necessary, be able to express or define, after a careful consideration of all the evidence in the case. If, after considering all of the evidence in the case, and reconciling it where it is conflicting, by giving credit to that which is most worthy of credit and rejecting that which is least worthy of credit, having regard to the intelligence, fairness and bias of the witnesses, you entertain a reasonable doubt of the guilt of the prisoner, that doubt should be resolved in his favor and your verdict should be not guilty. did not commit the assault, or that the inRecapitulating, if you find the prisoner or avert the peril, the party using it in turn becomes the assailant, and is guilty, for the law recognizes the right of self-de-juries inflicted by the prisoner were the refense for the purpose of preventing, but not of avenging, an injury to the person of the accused. [11] In defending himself from injury, a person 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 danger may protect himself by striking the first blow. And when one is so assaulted upon a sudden affray, and, in the opinion of the jury, honestly believes, on reasonable and sufficient grounds, that he was in imminent danger of being killed or seriously injured, he would have the right to employ a deadly weapon in self-defense. But in exercising such a right at the risk of killing or injuring his assailant, he must be closely pressed by him, and when retreat or escape is possible, he must retreat as far as he safely can, in good faith, with an honest intent to avoid the violence and peril of the assault. Therefore, if you find that the prisoner did not assault the prosecuting witness, but in fact the prosecuting witness assaulted the prisoner, and that the injuries inflicted or attempted by the prisoner upon the prosecuting witness were the result of a proper force exerted by the prisoner in a lawful defense of himself, your verdict should be not guilty. sult of a proper defense of himself in an be not guilty. If, however, you believe that attack made upon him, your verdict should the prisoner did commit the assault, but without an intent to murder, your verdict should be not guilty in manner and form as he stands indicted, but guilty of assault only; and if you believe the prisoner not only assaulted Niglio, but that he did it maliciously and with intent to murder Niglio, and that, had Niglio died from the injuries inflicted or attempted, the crime would have been murder, whether of the first or second degree is a matter of indifference, your verdict should be guilty in manner and form as he stands indicted. Verdict, guilty of assault only. (3 Boyce, 182) WARREN v. HARLAN & HOLLINGSWORTH CORPORATION. (Superior Court of Delaware. New Castle. March 19, 1912.) 1. WITNESSES (§ 236*)-EXAMINATION-QUESTION AND ANSWER. In an employé's action for injuries from a steam hammer operated by a hammer boy, by whose negligence plaintiff charged that he was injured, a question asked plaintiff on direct examination as to what he knew about the hammer boy was too broad, and his answer that |