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been admitted on behalf of the accused, and its rejection was prejudicial error.

[8, 9] 4. The court, at the instance of the Commonwealth, and over the objection of the prisoner, gave this instruction:

(No. 2.) "The court further instructs the jury that when a mortal wound is given with a deadly weapon in the previous possession of the slayer without any, or upon very slight, provocation, it is prima facie willful, deliberate and premeditated killing, and throws upon the accused the necessity of proving extenuating circumstances, for the rule of law is that a person shall be taken to intend that which he does, or which is the necessary consequence of his act. Therefore, the court tells the jury that if you believe from the evidence beyond a reasonable doubt that the accused shot and killed the deceased, as charged in the indictment, with a deadly weapon which was in the previous possession of the accused without any, or upon very slight, provocation, that prima facie the accused is guilty of willful, deliberate and premeditated killing unless it has appeared from the evidence in the case that there were extenuating circumstances."

That such an instruction has been frequently given in murder cases in which it was appropriate, is true. It is also true, however, that instructions should relate to the evidence in the case on trial, and that it is harmful error to give an instruction based upon assumptions of fact which does not appear in the evidence. In this case, while true that the deceased was shot with a pistol, there is no testimony which indicates that the prisoner ever had a pistol or any other deadly weapon. In cases where the evidence shows or tends to show that the accused was in possession of such a weapon, and used it, such an instruction is manifestly proper, and the inferences which the jury may draw from the fact of such possession and use are correctly stated in the

Opinion.

instruction complained of. As there is no evidence in the record upon which the instruction could properly be based, the giving of it constitutes harmful error.

[10] The court refused to give two instructions offered for the prisoner. One (C) reads thus: "The court instructs the jury that the law presumes that A. H. Karnes is innocent of the crime with which he now stands charged, and before there can be a conviction in this case the law requires the Commonwealth to prove by clear, distinct and reliable evidence, beyond a reasonable doubt, that A. H. Karnes fired the shot that killed Mrs. J. B. Kelly, and the fact alone, that he was present at the time she was killed, is not sufficient to justify the jury in convicting him." The other (D) reads thus: "The court instructs the jury that, notwithstanding the fact that A. H. Karnes was present at the time Mrs. J. B. Kelly was shot and killed, he is not to be prejudiced by the inability of the Commonwealth to point out any other criminal agent or person who committed the crime, nor is A. H. Karnes called upon to vindicate his own innocence by naming, or identifying, the guilty man, but he rests secure in the presumption of innocence until proof is adduced which establishes the fact beyond all reasonable doubt that he actually shot and killed the deceased, Mrs. J. B. Kelly, and if the Commonwealth has failed to prove by clear, distinct and reliable evidence beyond all reasonable doubt that he shot and killed the deceased, the law requires the jury to find him not guilty."

The other instructions which had been given, both for the Commonwealth and for the prisoner, with one exception, contained only the usual general statements of law governing trials in homicide cases, and were correct. The accused, however, was entitled to have the minds of the jury directed to the specific evidence in the case. They had nowhere been told that the mere presence of the accused at the time the murder was committed was not alone sufficient

Opinion.

to justify a conviction. That this is the law certainly cannot be doubted. Kent v. Commonwealth, 80 Va. 449-450; McBride v. Commonwealth, 95 Va. 826, 30 S. E. 454; Goldman v. Commonwealth, 100 Va. 878, 42 S. E. 923.

[11] In McBride v. Commonwealth, supra, it was held that it was error to instruct a jury that failure of the prisoner to disclose any other criminal agent was a circumstance to be considered by them in determining his guilt, and that he is not to be prejudiced by his own or the Commonwealth's inability to point out any other criminal agent.

In view of the evidence in this case, the accused was entitled to have the jury told distinctly and clearly that his nere presence at the time the crime was committed was not alone sufficient to justify a conviction. The refusal of these instructions was also harmful error.

Several other instructions offered for the prisoner were refused and exceptions thereto taken, but as they were either erroneous or mere repetitions in substance of instructions which had already been given in the case, the court properly refused them.

[12] 5. The prisoner moved the court to set aside the verdict upon the ground that the evidence was insufficient to justify the verdict of guilty. No good purpose would be served by summarizing all of this evidence. We will content ourselves with stating that according to the prisoner's testimony his relations with the deceased were friendly; that he had neither motive nor provocation to commit the crime; that the shot which killed the deceased was fired while the accused and she were together, out-of-doors, on a dark night, supposing themselves to be alone; that she was instantly killed by a bullet fired by some unknown person, whether directed towards him or towards the deceased he could not say, and that he immediately ran away from the place. There is much to support and little to controvert this evidence. In our opinion, the circumstances relied upon

Opinion.

to show the guilt of the prisoner, appearing in the record, are insufficient to sustain the conviction, and the trial court should have sustained the motion to set it aside. Henderson v. Commonwealth, 98 Va. 798, 34 S. E. 881; Buck v. Commonwealth, 116 Va. 1037, 83 S. E. 390; Starke v. Commonwealth, 116 Va. 1039, 83 S. E. 545; Canter v. Commonwealth, 123 Va. 794, 96 S. E. 284.

For the reasons indicated, this court will set aside the verdict, reverse the judgment and remand the case for a new trial, if the Commonwealth shall be so advised.

Reversed.

Syllabus.

Wytheville.

MCCOY V. COMMONWEALTH.

June 18, 1919.

1. HOMICIDE-Self-Defense-Instructions-"Bare Fear."—In a prosecution for homicide the court instructed the jury as follows: "The court tells the jury that bare fear that a man intends to commit murder or other atrocious felony, however wellgrounded, unaccompanied by any overt act indicative of any such intention, will not warrant killing the party by way of prevention. There must be some overt act indicative of immediate danger at the time." The theory of the prosecution was that the defendant was the aggressor, and that the killing was unprovoked except by the angry words of the deceased shortly before the killing. This theory was supported by the testimony in the case. If the jury took this view of the case, it was a case of "bare fear," unaccompanied by any overt act of aggression at the time of the shooting, and hence the first part of the instruction was neither inapplicable nor misleading. On the other hand, there was testimony that the deceased had drawn a weapon on the defendant, and hence it was proper for the instruction to present that theory of the case, as was done by the last sentence of the instruction. 2. ASSAULT-Self-Defense-Injurious Words-Case at Bar.-In view of the evidence for the Commonwealth and of the other instructions given, there was no error in giving, at the instance of the Commonwealth, the instruction that: "The court further tells the jury that words, however grievous, will not justify an assault."

3. HOMICIDE-Self-Defense-Necessity Created by Accused.—With regard to the necessity that will justify the slaying of another in self-defense, it would seem that the party should not have wrongfully occasioned the necessity; for a man shall not in any case justify the killing of another by a pretense of necessity, unless he were without fault in bringing that necessity upon himself.

4. HOMICIDE-Self-Defense-Justifiable and Excusable HomicideRetreat. If the accused is in no fault whatever, but in the discharge of a lawful act, he need not retreat, but may repel force by force, if need be, to the extent of slaying his adversary.