Opinion of the Court. 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 self-defence in it. There could be nothing else but this distinct grade of crime known as murder; because self-defence, as I have before defined 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." By this instruction the jury were shut up, in effect, to find either manslaughter or murder - the claim of self-defence was excluded. Or, rather, self-defence was eliminated if the sticks were not "deadly weapons." In this we think there was error. In one sense it may be true that sticks or clubs are not deadly weapons. Carrying them does not import any hostile intent, nor, even in view of an expected affray, a design to take life. But when a fight is actually going on sticks and clubs may become weapons of a very deadly character. Life may be endangered or taken by blows from them as readily as by Opinion of the Court. balls from a pistol. Hence we think that the jury ought not to have been told that there "could not be any self-defence in it;" and that "it could not be self-defence because the injury received would not be of that deadly character or that dangerous nature that would give a man the right to slay another because of threatened deadly injury or great bodily injury received." Such a question as that was one peculiarly for the jury, and we think that they should have been left free to say whether the accused had not a right, when defending himself from an attack made by several persons using sticks, to consider himself in danger of life or limb. The verdict found, that of murder, is, we think, convincing that the jury were misled by this instruction. But we think there was another substantial error in the instruction complained of. The jury were told that if "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 could not be self-defence." This was objectionable, not only on the ground already considered, that it shut out from the consideration of the jury the claim of self-defence, but because of the assumption that if the defendant, in view of the previous threats that he was to be killed, and that Saturday had been fixed for the purpose, had armed him with a pistol and subsequently used it when attacked, it would have been not only not a case of selfdefence, but not even of manslaughter, but of murder. The instruction was that using a deadly weapon, not previously selected with a purpose to use it, was, when used in circumstances of the kind shown, a case of manslaughter. Thus there was a necessary implication that, if the pistol had been previously procured, with a view to using it in self-defence, the defendant would be guilty of murder, if he discharged the pistol with fatal effect, even while defending himself from an attack threatening his life. In this respect the instruction involved the same error which we considered in the case of Gourko v. United States, Opinion of the Court. 153 U. S. 183, and where it was held that a person who has an angry altercation with another person, such as to lead him to believe that he may require the means of self-defence in case of another encounter, may be justified, in the eye of the law, in arming himself for self-defence; and if, on meeting his adversary, on a subsequent occasion, he kills him, but not in necessary self-defence, his crime may be that of manslaughter or murder, as the circumstances, on the occasion of the killing, make it the one or the other; and that if, looking alone at those circumstances, his crime be that of manslaughter, it is not converted into murder by reason of his having previously armed himself. In the case of Thompson v. United States, 155 U. S. 271, the same view was taken by this court, and the judgment of the court below was reversed because, at the trial, the jury was instructed that "the previoùs selection, preparation, and subsequent use of a deadly weapon shows that there was a purpose to kill contemplated before that affray existed, and whenever that exists, when it is done improperly and unlawfully so that there is no law of self-defence in it, the fact that they may have been in an actual affray with hands or fists would not reduce the grade of the crime to manslaughter." This language was regarded by this court as erroneous because it involved the assumption that the act of the defendant in arming himself showed a purpose to kill, formed before the actual affray. Being, then, of opinion that the 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 self-defence, would make a case of murder unless the actual affray developed a case of necessary self-defence, we reverse the judgment of the court below, and remand the case, with directions to set aside the verdict and award a new trial. Reversed. MR. JUSTICE BREWER dissented. Statement of the Case. JONES v. EAST TENNESSEE, VIRGINIA AND ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF TENNESSEE. No. 253. Argued April 4, 1895. - Decided April 8, 1895. The record showed that plaintiff asked six instructions, of which the court gave two, declined to give one, and declined to give the other three except as covered by the general charge. The whole charge was contained in the bill of exceptions, which thus concluded: "To which refusal and charge of the court and the exclusion of evidence offered, and to the action of the court in refusing a new trial, plaintiff excepted and tendered this bill of exceptions, which was signed and sealed by the court and ordered to be made a part of the record in this cause." Held, that this exception was insufficient. THE case is stated in the opinion. Mr. Henry H. Ingersoll for plaintiff in error. Mr. Leon Jourolmon appeared for defendant in error, but the court declined to hear him. THE CHIEF JUSTICE: This was an action on the case to recover damages for injuries received through the alleged negligence of the defendant. Ten errors were assigned, two of which relate to the exclusion of evidence. As to one of these, it was properly admitted at the bar that the evidence. in question was not excluded, and that so much of the record as showed the contrary was taken from the record of a former trial of the case. As to the other, no exception to the action of the court was preserved. The remaining errors assigned relate to the refusal to give certain instructions requested by plaintiff, and to parts of the charge. The record shows that plaintiff asked six instructions, of which the court gave two, declined to give one, and declined to give the other three except as covered by the general charge. The whole charge. is contained in the bill of exceptions, which thus concludes: Syllabus. "To which refusal and charge of the court and the exclusion of evidence offered, and to the action of the court in refusing a new trial, plaintiff excepted and tendered this bill of exceptions, which was signed and sealed by the court and ordered to be made a part of the record in this cause." This exception was insufficient. Rule 4; Rogers v. The Marshal, 1 Wall. 644; Harvey v. Tyler, 2 Wall. 328; Insurance Co. v. Sea, 21 Wall. 158; Beaver v. Taylor, 93 U. S. 46; Block v. Darling, 140 U. S. 234, 238. LAST CHANCE Judgment affirmed. MINING COMPANY v. TYLER MINING COMPANY. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH When the course of a mineral vein is across a claim, instead of in the direction of its length, the side lines of the location of the claim become, in law, the end lines, and the end lines become the side lines. When the jurisdiction of a controversy by a court is unquestioned, and the cause proceeds to final judgment, and no review is sought for, the judgment is conclusive upon the parties to the suit as to the matters decided, but not as to matters which might have been decided, but were not. In an action, brought under the provisions of Rev. Stat. §§ 2324, 2325, by an adverse claimant to a part of a mineral claim as located, the plaintiff alleged a priority of location, and rested his right to recover upon it. The defendant answered, but subsequently and before judgment withdrew his answer, and amended his application for a patent so as to exIclude the tract in controversy. At the trial the defendant did not appear, but the plaintiff introduced evidence, oral and documentary. The court made a finding of fact that the tract in controversy had already been located by the plaintiff as a part of his mining claim when the defendant located his claim upon it, and that, consequently, it was not subject to location by the defendant. Upon that finding it was adjudged that, by reason of the law and premises, the plaintiff was the owner of the disputed tract, that he was entitled to the possession of it, and that he recover possession of it from the defendant. Held, (1) That it appeared by the record that the court had in that case passed upon and determined the question of priority of location, |