Opinion of the Court. out February 16, 1894. It does not appear by the record, but is conceded by counsel, that a writ of error was taken to the Circuit Court of Appeals for the Seventh Circuit, and dismissed for want of jurisdiction. 60 Fed. Rep. 465. The jurisdiction of this court is invoked upon the ground that the only question in the case was as to the jurisdiction of the Circuit Court, but that question was not certified to this court by the Circuit Court for decision, and the writ of error must be dismissed upon the authority of Maynard v. Hecht, 151 U. S. 324; Colvin v. Jacksonville, ante, 368, and cases cited. Writ of error dismissed. TREAT MANUFACTURING COMPANY v. STANDARD STEEL AND IRON COMPANY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. No. 358. Submitted March 25, 1895. - Decided April 8, 1595. Where the trial judge is satisfied upon the evidence that the plaintiff is not entitled to recover, and that a verdict, if rendered for plaintiff, must be set aside, the court may instruct the jury to find for the defendant, and in such case no constitutional question arises; but if the court errs as matter of law in so doing, the remedy lies in a review in the appropriate court. MOTION to dismiss. The case is stated in the opinion. Mr. Charles W. Needham, Mr. William G. Beale, and Mr. Edward S. Isham for the motion. Mr. John S. Cooper and Mr. George H. Shields opposing. THE CHIEF JUSTICE: This was an action of trespass on the case. At the conclusion of the trial defendants moved the court to charge the jury to find the issues for defendants, which motion was granted, and the jury was directed, upon the whole case, to return a verdict for defendants, plaintiff duly excepting. Thereupon the jury returned a verdict accordingly; plaintiff moved for a new trial, which was denied, Syllabus. and judgment was given against plaintiff on the verdict. This judgment was rendered December 3, 1890. The writ of error from this court was brought November 24, 1891. The only ground relied on to sustain the jurisdiction of this court is that the case "involves the construction or application of the Constitution of the United States;" because plaintiff in error was deprived of the right of trial by jury. But it is well settled that where the trial judge is satisfied upon the evidence that the plaintiff is not entitled to recover, and that a verdict, if rendered for plaintiff, must be set aside, the court may instruct the jury to find for the defendant. Grand Chute v. Winegar, 15 Wall. 355; Marion County v. Clark, 94 U. S. 278; Herbert v. Butler, 97 U. S. 319. If the court errs as matter of law in so doing, the remedy lies in a review in the appropriate court. Writ of error dismissed. ALLEN v. UNITED STATES. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS. In a trial for murder by shooting with a pistol it appeared that the accused and the deceased had had difficulties; that the accused, knowing that he was to meet the deceased, had armed himself with a pistol; that when they met the deceased and his companions were armed with sticks; that an altercation ensued which resulted in the shooting; and the evidence was conflicting as to who had made the first attack. The court, under exception, instructed the jury as follows: "Now, gentlemen, these are the three conditions which I give you in the case. I have told you that if it is true that this defendant went up on one side of the fence and when there struck Philip Henson in the mouth and then shot him, that is murder. On the other hand, if it is true that Henson and the other boys attacked him with sticks, and while that attack was going on and in the heat of that affray, and the sticks were not of a dangerous or deadly character, and under such circumstances he shot and killed Philip Henson, that would be manslaughter; but if there was an absence of that condition, then there is no manslaughter in it, nor could there be any selfdefence in it. There could be nothing else but this distinct grade of crime known as murder; because self-defence, as I have before defined Statement of the Case. to you, contemplates the doing of something upon the part of the one slain, or the ones acting with him, that was either actually and really so apparently of a deadly character, or which threatened great violence to the person, or that which seemed to do so. If they assaulted him with these sticks, and they were not deadly weapons, and they were engaged in a conflict, and in that conflict the defendant shot Philip Henson, without previous preparation, without previous deliberation, without previous selection of a deadly weapon, without a contemplated purpose to use that deadly weapon in a dangerous way, then that would be manslaughter, and it could not be self-defence, because the injury received would not be of that deadly character or that dangerous nature that could give a man the right to slay another because of threatened deadly injury or actual great bodily injury received." Held, that this instruction was erroneous in withdrawing from the jury the question of self-defence, and likewise in telling them that the intentional arming himself with a pistol by the defendant, even if with a view to selfdefence, would make a case of murder unless the actual affray developed a case of necessary self-defence. In the Circuit Court of the United States for the Western District of Arkansas, at the May term, 1894, Alexander Alien was tried, and found guilty of the murder of one Philip Henson. The evidence certified by the bill of exceptions shows that Philip Henson, a white boy, about seventeen years old, was shot and killed by the defendant, a colored boy, about fifteen years old, on May 15, 1892. It appears that two or three days before these boys, with several companions, had met and had a difficulty. James Marks testified that, on that occasion, Henson and his party followed them and threw sticks at them, and said: "We will be over Saturday to settle with you." Allen, testifying in his own behalf, said that the first time he ever saw deceased, Philip Henson, was two days before the killing; that James Marks, on whose farm defendant was working, and defendant were out hunting horses when he saw Henson and other boys; that he made inquiry of them about the horses, and that he and Jim Marks started to go across a creek, and Henson and his companions followed them and threw sticks at them, and said they would kill that nigger the first chance they got, and said they would settle it on Saturday. The scene of the shooting was at or near a hog pen on Statement of the Case. Marks' farm. There was a wire fence separating the Marks place from an adjacent field. The testimony is contradictory as to whether Henson and his companions crossed the fence into the Marks farm. The Henson party had freshly cut sticks in their hands. An altercation took place. Young Marks testified that Henson said, when the defendant asked them what they came after, they came to kill a nigger. The story told by Willie Erne, one of the Henson party, a boy of thirteen years of age, was the clearest statement on behalf of the prosecution of what took place. It was as follows: "On Saturday, Philip, George, and I started to go fishing; we had some willow sticks to kill frogs with for bait. We went a little over half way and saw some one behind Marks' hcg pen, and when we got up about the length of the courtroom [about seventy feet] from the fence, and defendant got up and walked along the fence, and we kept walking the same way we had been walking, that is, we were walking not towards the Marks house, but northeast the yard fence, behind which was the defendant, walked north. We were not intending to go into the yard; we intended to cross north of the yard, because that was nearest to the lake and defendant said, 'Hello, George, where are you going?' and George said, 'Going fishing,' and defendant said, 'Well, hold on; I heard you said I told a lie on you;' defendant pulled his pistol out at that time, and George said, 'Maybe I did.' Defendant pulled scabbard off pistol and handed it to the Marks boy, and got through the fence and walked up to Philip Henson and hit him in the mouth with his left hand and pulled down the pistol with his right hand, and Philip grabbed it, and it shot into the ground; then Philip dropped the pistol, and he shot Philip under the arm, and when he turned around he shot him in the back, and then he shot at George twice, and hit George in the back; he then snapped the pistol at me. I was running when he snapped at me. When defendant shot Philip once. Philip raised his stick, and I think he hit defendant with it. Defendant put the pistol on top wire of the fence and pointed it at us while we were about thirty yards away. He told us to stop, and we stood there till he got through the fence, and Opinion of the Court. he then pulled pistol out of the scabbard and gave it to the Marks boy, and came on up to us. We did not move; none of us said a word to him. The Marks boy was standing at the fence, looking through the wire, during the shooting. We did not go over on the side next to Marks — none of us. At the time defendant came out towards us Philip Henson was nearer to the defendant than George and I, and he bet Philip was larger than George.” The testimony of young Marks and of the defendant was to the effect that the Erne boy and Philip Henson crossed over the fence into the Marks yard and made the first assault, and that defendant did not draw his pistol or shoot until he had been knocked down and when three of the assailants were on him. No appearance for plaintiff in error. Mr. Solicitor General for defendants in error submitted on his brief. MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court. The facts, as made to appear by the testimony on both sides, were substantially these: The difficulty was between boys; the oldest, Philip Henson, was about seventeen; Alexander Allen, the defendant, about fifteen, and the other participants were about twelve and thirteen years of age. The first encounter was on Thursday, when a quarrel took place, sticks were thrown, and threats made. On Saturday there was another meeting, when hostilities were renewed. The evidence is conflicting as to whether Henson and his party crossed the fence into the Marks yard, and as to which party made the first assault. An undeniable incident was that Philip Henson was fatally shot by a pistol in the hands of Allen. In this condition of the evidence the court gave under exception the following instruction: "Now, gentlemen, these are the three conditions which I give |