On September 17, 1917, the Prosecuting Attorney of Boone County filed an information charging the defendant with murder in the first degree for having shot and killed William A. Ryland on July 30, 1917. There was a trial'and conviction which was reversed on appeal, and the cause remanded for a' new trial. [State v. Roberts, 280 Mo. 669.] On November 15, 1920, the cause again went to trial before a jury, resulting in a verdict of guilty of murder in the second degree, and assessing the punishment at imprisonment in the penitentiary for a term of twenty-five years.
The only living eye-witnesses of the homicide are the appellant and one Charles Palmer, an elderly colored man, employed by the deceased as a farm hand. Roberts and Ryland, the deceased, owned and lived on adjoining farms, situated about three miles southwest of Sturgeon, in Boone County. On the morning of the unfortunate tragedy, Ryland. and Palmer were unloading some corn from a wagon into a box at a pond on Ryland’s farm. The pond was inclosed with hog-wire fence four feet high. Palmer was in the wagon, while Ryland was in the inclosure. They noticed Roberts’ turkeys a short distance from the pond, and saw two of the defendant’s sons apparently looking for them. Palmer testified, in substance:
Ryland told me to go and tell them to tell their father to keep the turkeys out until he got his hogs out. (Ry-land was then feeding about a hundred hogs). I told the boys, “Mr. Ryland says for you to tell your Pa to try to keep the turkeys out till he can get the hogs out of here.” I helped drive the turkeys to their premises. Soon after that Ryland saw Roberts coming from his house, which was about forty rods from the pond. After *288a few words of greeting, Roberts said to witness, ‘‘I don’t want you to be chunking my turkeys.” Palmer denied this, saying, “1 merely threw a little club behind them to keep them going.” Ryland said, “I don’t think Charley has been chunking your turkeys,” and Mr. Roberts said, “You are a liar.” Ryland, who was in the inclosure, picked up a neck-yoke and threw it over the fence at Roberts, who started running away from the fence as soon as Ryland got the neck-yoke. It fell eight or ten feet behind Roberts, who went rapidly towards his house, saying, “I will be back in a few minutes.” In a little- while, Roberts returned carrying a shotgun. He walked to within twenty or twenty-five steps (or eight or ten steps, as defendant testified) of the deceased, saying, “Now, you s— of a b — , if you think you are a man, get your neck-yoke an,d I’ll show you that I am a man.” Ryland, still inside the fence, picked up an ax and said to defendant, “You are on my premises.” To which defendant replied, “I know I am. I will show you I am a man.” Ryland went to the fence, put one hand on a post and one foot on a wire, as if to get over the fence, when Roberts fired both barrels of the shotgun in quick succession, both shots taking effect in Ry-land ’s breast, arms and legs. Roberts cramped his gun, threw out the shells and went off towards his house without saying a word. Ryland took a few steps, sat down and expired without uttering a word. Palmer went to Ryland’s house and returned at once with Mrs. Ryland.
Reuben Barnes, the undertaker,- testified that he found 115 shot wounds distributed over the front part of Ryland’s body. There were four or five in the left leg above the knee, all running upward; three in the right hand which ranged upward. There were three or four wounds over the-heart.. Five or six shot had penetrated the arteries, out of which the embalming fluid ran when he put pressure on to force the fluid into the body. It was shown by Mrs. Ryland and others that Ryland and. Roberts had always been on friendly terms.
*289The defendant, testified that he had known deceased for thirty years, and had never had any trouble with him, and had seen him almost daily for several years. That at the time of this trouble, he owned a small flock of turkeys which had been feeding on deceased’s premises and would get away from his children occasionally. He had' received no word from deceased about the turkeys until the morning of this trouble. He had sent two of his small boys out a few minutes before to look after the turkeys, and in a short time they came back and told defendant they had seen deceased’s farm hand (Charley Palmer) .and he had told them to tell defendant that they did not want to catch the turkeys on that, side of the fence any more. Defendant had seen deceased a day or two before and nothing was said about, the turkeys at that time, so defendant decided to go and see Mr. Ryland, the deceased, himself, and went right up the ravine to where he was at the pond. Charley Palmer was also there at the time. They discussed the crops and the weather for a short time, when defendant asked Mr. Ryland if his turkeys had been bothering him much, to which he said they had been bothering him some. Defendant told him that he did not know about, it as he had been working away from home, and that he had been advised by his boys that deceased had sent him word that the turkeys were bothering him, whereupon deceased stated that he did not send him any word, nor had he asked anybody to send him any word. Defendant then said to deceased that he had better stop Charley Palmer from meddling with his business, whereupon deceased stated that he had not been meddling with it, and called defendant a damned liar, said that Palmer had not been clubbing his damned old turkeys, and reached down and picked up a neck-yoke and started to strike defendant with it, when defendant jumped back, whereupon deceased threw the neck-yoke toward him and over his head; that when deceased picked up .the neck-yoke'he exclaimed, ‘‘I will kill you, G-d damn you.” Deceased *290said nothing' else, and defendant started off up the hill to his house saying he would be back, and went to the house and got an old shotgun he had there and went back down to the pond. He stopped ten or twelve steps from deceased and said to him. “Now, Mr. Eyland, I want you to tell me what you want me to do about those turkeys; let’s not have any more of that foolishness.” 'Whereupon deceased picked up an ax and exclaimed, “1 want to give you to understand you are on my land and you have got that gun and you use it and do it G-d damn quick or I will get you.” Defendant then told deceased that he had aimed at him a minute ago with the neck-yoke, “and if you come at me with that ax, 1 will use this gun as sure as there is a God in heaven.”' Whereupon deceased made for the fence, and defendant brought the gun up, pulled back both hammers and fired both barrels. At this time deceased had one foot on the fence, the ax in his left hand, and his right hand on a post. Defendant discharged the barrels in rapid succession and fired to save his life. ITe then went home,, put the gun down, rang up central and asked them to send a doctor out there. He then hooked up to his buggy, drove to Sturgeon and had his brother call the sheriff at. Columbia, and told him he was ready to surrender.
The defendant had known deceased for. twenty-five or thirty years, and had lived in the community with him for eight or ten years, and knew that deceased had a bad reputation for being a quarrelsome, turbulent,, and dangerous man.
On cross-examination, the defendant testified that in the conversation with Eyland they both got m-ad; that Eyland threw the neck-yoke at him and that made him mad. “I started home mad — I .went, home and got my gun and went back down there, and I wanted to settle the trouble while it was new and. before it got any older, without any further trouble if I could, We. had always got along and I knew his disposition, and I thought it -was better to settle it while it was new than to wait until *291we met in the middle of the road and he would jump on me. “Q. After- you got away from him and he made no attempt to pursue you, why didn’t you say, ‘Mr. Ry-land, we have always been friends and neighbors and let’s settle this without any feeling1?’ A. Well, 1 knew he was armed and I didn’t propose to stand and take everything. I saw nothing that morning to indicate that he was armed, but I didn’t know but what he was-. . . . I went back with that gun Avith the intention of using it if I had to. ... I knew that he Avas a dangerous and turbulent man. I didn’t think there would be any shooting when I Avent back there. I took the gun to protect myself if I had to, but I didn’t think we would have any further trouble. ... I had seen this pistol of Ryland’s several times. I had seen him with more than one. . . . My gun Avas an old one; it had hammers; one barrel was what they call half choke and the other was open. I loaded my gun while I was there in the house. . . .' I kneAv Ryland usually had a pistol. Q. You went to the house to get your gun because you knew Ryland Avas a dangerous, turbulent man and if you went down there again there Avas liable to be some shooting? A. Well, I said I — I have answered it I thought a time or two. I have told you Avhy I took tlie gun. I didn’t know there would be any shopting; I didn’t know there would not be any shooting. Q. But if there was any appearance of shooting, you Avanted to be prepared to do your part. A. Well, I wanted to take care of myself, yes, sir. . . ' . I knew he had taken his gun to the road to shoot a fellow and there happened to be another man with him, and that was all, he told me, that kept him from shooting him. It Avas a friend of Mr. Ryland’s with him. ’ ’
It was shown by ten or twelve witnesses that the reputation of defendant in the community for being a peaceable, quiet, law-abiding citizen Avas good, and that the reputation of deceased as a quarrelsome, turbulent and dangerous man was bad.
*292In rebuttal, it was shown by many witnesses that the reputation of the deceased, for peace and quiet was good.
Willard Goldsberry worked eight or nine years for the deceased on his farm; the last work he did was six or eight months before Ryland’s death. Charles Kentzer worked for him eight or ten years; Andrew Kentzer for three or four years off and on; Virgil Goldsberry for about thirteen years. Neither of these ever saw or knew of Ryland carrying a pistol. Ryland did not have a weapon on his body at the time of his death.
The court gave eleven instructions for the State. The defendant objected to the first, fourth,.fifth,, sixth, eighth, ninth,’ .tenth and eleventh. '
The first relates to the weight and credibility of the testimony; it is in the usual form and is unobjectionable. The second is that the defendant is presumed to be innocent; that this presumption attends him throughout the trial and entitles him to acquittal unless the evidence as a whole satisfies the jury of his guilt beyond a reasonable doubt. The third is that such reasonable doubt, to authorize an acquittal, must be a substantial doubt of defendant’s guilt, with'a view of all the evidence, and not a mere possibility of his innocence. Fourth, that if the jury believe from the evidence that the defendant at, etc., on or about, etc., did wilfully, deliberately, pre-meditatedly and of his malice aforethought, with a loaded shotgun, shoot deceased, etc., you will find him guilty of murder in the first degree.
Instructions 5, 6, 7,- 8 and 9, read:
‘ ‘ 5. The court instructs’ the jury that he who wil-fully (that is, intentionally) uses upon another, in some vital part, a deadly weapon, as a loaded shotgun, must, in the absence of qualifying facts, be presuméd to know that the effect is likely to be death, and, knowing this, must be presumed to intend the death which is the probable and ordinary consequence of such an act; but, If such deadly weapon is used without just cause or provo*293cation, be must be presumed to do it wickedly,, or from a bad heart. If, therefore, the jury believe from the evidence that the defendant took the life of William Ry-land by shooting him in a vital part with a shotgun, loaded with gunpowder and leaden ball, with a manifest design to use such weapon upon him and with sufficient time to deliberately and fully form the conscious purpose to kill and without sufficient reason or just provocation, then such killing is murder in the first degree; and while it devolves upon the State to prove the wil-fullness, deliberation, premeditation and malice aforethought, all of whiéh are necessary to constitute murder in the first degree, yet these need not he proven by direct evidence, but may be deduced from all the facts and circumstances attending the killing, and if the jury can satisfactorily and reasonably infer their existence from all the evidence, they will be warranted in finding the defendant guilty of murder in the first degree.
“6. The court instructs the jury that if you believe from the evidence that at the County of Boone and State of Missouri, on or about the 30th day of July, 1917, the defendant did wilfully, premeditatedly, and of his malice aforethought, but without deliberation, shoot William Ryland with a loaded shotgun, inflicting upon him a mortal wound, from which said mortal wound the said William Ryland then and there at the County of Boone and State of Missouri, died, then you will find him guilty of murder in the second degree and assess his punishment at imprisonment in the penitentiary for a term of not less than ten years.”
Instruction 7 defines the terms “feloniously,” “wil-fully,” “premeditatedly,” “deliberately,” “malice,” and “malice aforethought. ”
“8. The court instructs the jury that the right of self-defense is a right not only conceded.but guaranteed by law to every person. Therefore, you are instructed that if at the time defendant shot the deceased he had good reason to believe and did believe that the deceased *294was about to immediately inflict upon him some great personal injury and he shot him for the purpose of averting such apprehended injury, then you must acquit him on the ground of self-defense, unless the jury find from the evidence that the defendant brought. on or voluntarily entered into the difficulty for the purpose of killing Ryland or doing him some great bodily harm, and for the purpose and with the motive of wreaking his (the defendant’s) vengeance, if any, *upon said Byland, and fired the fatal shots with such intent and purpose and not for the honest purpose of defending himself from attack. It is not necessary to this defense that the apprehended danger should have been real and about to fall. All that is necessary is that the defendant believed, and had good reason to believe, that such danger, existed. On the other hand, it is not enough that the defendant believed in the existence of such danger, but he also must have reasonable cause for so believing before he can be acquitted on the ground of self-defense. Whether the facts constituting such reasonable cause have been established by the evidence, you are to determine, and unless the' facts constituting such reasonable cause have been established in the case you cannot acquit defendant on the ground of self-defense even though you may believe defendant really thought his cause of apprehension reasonable-.-
“9. The court instructs the jury that if you believe from the evidence that the defendant provoked the difficulty or began the quarrel, with the purpose of taking advantage of deceased and taking his life, or of doing him some great bodily harm, then there is no. self-defense in the case, however imminent the peril of the defendant may have become in consequence of an attack made upon him by the deceased; and if in such circumstances the jury believe that the defendant killed the deceased, then he is guilty of murder in the first degree and you should so find in your verdict.
“But, although the jury believe from the evidence that the defendant began the quarrel or provoked the dif-*295ficnlty with the deceased, yet if they also believe from the evidence that this was done by the defendant without any felonious purpose, that is, without any purpose to kill or to do him great bodily harm, and that thereupon the deceased was about to attack him, or if the defendant had good cause to believe and did believe that deceased was going: to attack him with the ax and kill him, or do him some great bodily harm, and that defendant was compelled, in order to save his own life, or save himself from some great bodily harm, to take the life of deceased, still the law, while it will not entirely justify the killing on the ground of self-defense, will hold the defendant guilty of no higher crime than that of manslaughter in the fourth degree, and if you so find you will assess his punishment at imprisonment in the county jail for a term of not less than six months, or by a fine of not less thail $500, or by both a fine of not less 'than $100 and imprisonment in the county jail not less than three months.”
Instruction 10 relates to the consideration to be given by the jury to the good character of the defendant, if proven to their reasonable satisfaction, in passing upon the question of the guilt or innocence of the defendant.
Instruction 11 relates-to the consideration to be given to the evidence tending to prove that the reputation of the deceased as a quarrelsome, violent, turbulent and dangerous man was bad. These are in the usual form and not justly subject to criticism.
The court gave four instructions for the defendant. The first is that the defendant is not required to prove his innocence or that he was justified in the killing of the deceased on the ground of self-defense, but the State is required to prove beyond a reasonable doubt that the killing was without justification or excuse.
Number 2 is that the information is simply a charge or accusation, constitutes no evidence and raises no presumption or inference of guilt; that the presumption of innocence with which the law clothes the defendant is *296not a matter of form which can be disregarded, but is a grave and substantial right which the jury must respect and observe.; that this legal right to be presumed innocent remains with the defendant throughout the trial and entitles him to an acquittal unless each and every element of the offense charged has been proved beyond a reasonable doubt.
Number 3 is that if one has a reasonable ground to believe that another intends to do him great bodily harm and that such design will be accomplished, he need not wait until his adversary gets advantage over him, but may immediately take such steps as appear to him necessary in his own defense.
Number 4,.that in resisting an apprehended assault, one need not accurately gauge the. force necessary to repel the assault; while the law requires that he shall not use unnecessary force, he may use such force as appears to him necessary under all the circumstances.
The defendant has not seen fit to favor us with a-brief. We have, however, carefully read the record.
I. The first complaint is that the verdict is against the evidence and the weight of the evidence, and contrary to the law under the evidence. It is not contended that the verdict is not supported by substantial evidence.
Sufficient Evidence. The evidence, in our opinion, warranted the jury in finding the defendant guilty. The defendant testified that after the first altercation he started home mad, saying he would be back in a few minutes. He went to his house, a distance of forty rods. He was then out of danger and ^iere was amPle cooling time. He loaded his shotgun and returned. He testified that he knew Ryland was armed; that he didn’t propose to stand and take everything. “I went back with my gun with the intention of using it if I had to.” While Ryland was in the pond i-nclosure and before he advanced a step, Roberts-addressed him in language that was equivalent to a challenge to mortal combat. In short, the jury was entirely justified in finding that the *297defendant returned to renew the unfortunate quarrel with the intention of taking Ryland’s life.
II. On the first appeal, 280 Mo. 669, 681, 217 S. W. 988, after setting out the evidence on the first trial, Williams, J., said:
Seif Defense “We are of the opinion that appellant’s own festi-' mony in this case clearly shows tliat he was in the wrong in returning in the threatening, bluffing or menacing manner armed with a shotgun, to the scene of his recent difficulty, and from appellant’s own testimony we think it conclusively appears that he thus intentionally provoked or brought about a renewal of the discussion or difficulty with deceased.
“If appellant did this with the felonious intention of causing.deceased to renew the attack so that he (appellant) might have a pretext for killing him or doing him great bodily harm, then appellant was not entitled to invoke any phase of the right of self-defense. [State v. Partlow, 90 Mo. 608; State v. Darling, 202 Mo. 150, l. c. 172.] If, however, appellant wrongfully invoked or sought a renewal of the quarrel with the intention of merely overawing the deceased, or of holding him in check while a discussion could be had and a settlement or a mutual understanding reached as to their future status towards each other, or to accomplish any result other than the death or great bodily harm of the deceased, the appellant, while he would not be entitled to invoke the perfect right of self-defense, would, under the well established rule, we think, be entitled to invoke the right known as the imperfect right of self-defense, which would reduce the crime to manslaughter in the fourth degree. [State v. Gilmore, 95 Mo. 554; State v. Partlow, supra; Kelley’s Criminal Law and Practice (3 Ed.) sec. 521, and cases therein cited.]
“From the State’s evidence it would clearly appear that appellant provoked a renewal of the quarrel with felonious intent.. If this were all the evidence there would be no evidence upon which to base an instruction *298on any piase of the question of self-defense. This was not all of the evidence, however. The appellant in explaining his intention in returning’, to the scene of the trouble, said: ‘I went down there to see if I could settle the difficulty without any further trouble if 1 could, because I wanted to settle it while it was new. He and I had been good friends and I thought probably I could do it in that way; and I took the gun along with me to defend myself if I couldn’t.’
“Upon this and other similar testimony in the record wo are of the opinion that appellant was entitled to have the court instruct on the law of the imperfect right of self-defense.
‘ ‘ The above instruction fails to properly instruct on this phase of the law of self-defense and was, we think, for that, reason erroneous.
“We are of the opinion there is no evidence in this case which will justify an instruction on the perfect right of self-defense, and since this is true, that portion of the instruction which deals with the perfect right of self-defense is more favorable to appellant than the evidence would warrant.”