285, 295, in which case the intention was to kill the deceased if he did question the conduct of the accused or mentioned a certain matter. To the same effect, Davis v. State, 92 Ala. 20, 28; State v. Neeley, 20 Iowa, 109, 115; Allen v. State, 66 Miss. 385; State v. Crawford, 115 Mo. 620; Rogers v. State, 95 Tenn. 448, 453; Johnson v. State, 26 Tex. App. 631, 641; State v. Hudson, 59 Mo. 135, 138; Levy v. State, 28 Tex. App. 203; State v. McDaniel, 94 Mo. 301; Myers v. State, 62 Ala. 599, 603; State v. Scott, 41 Minn. 365. 373; State v. McDonald, 67 Mo. 13, 18; State v. White, 18 R. I. 473, 480.

And it would also seem that the rule would be the same if the accused sought an interview with the deceased with no hostile intention, and the deceased became enraged and committed an assault upon the defendant inflicting pain and bloodshed and under the pas sion thus engendered accused shot and killed the deceased, although in such a case, as there would be adequate cause, the crime would not amount to murder. Bonnard v. State, 25 Tex. App. 173, 197. relying on Hill v. State, 8 Tex. App. 142: Foster v. State, 8 Tex. App. 249.

And one who arms himself and seeks another for the purpose of an affray or an altercation, and thus provokes and urges on the difficulty to a point where there is an appearance of an attempt to use deadly weapons, provokes and brings on the difficulty, and he cannot claim that he acted in self-defense simply on the ground of apparent danger, as he is the active cause of such danger, and must abide by the condition of things which his own lawless conduct has produced. State v. Hawkins, 18 Or. 476, 481.

In all such cases, however, if the act of the accused in going or returning to the scene of the difficulty is peaceful there is no wrong done. State v. Merriman, 34 S. C. 40, 42.

And if the accused is in a place where he has a right to be, and is not engaged in an unlawful enterprise. he cannot be said to be the provoker of the difficulty in seeking the deceased if he meets him there, and his right of self-defense remains so long as he does nothing to commence the quarrel. Long v. State, 52 Miss. 23; Crane v. Com. 12 Ky. L. Rep. 161, 162; Bohannon v. Com. 8 Bush, 481, 8 Am. Rep. 474.

Thus, one who goes in good faith to work upon his own premises cannot be said to be the aggressor or to be provoking a quarrel or engaging in a misdemeanor or felony so as to deprive him of the right of self-defense, even though he may have reason to believe that his presence on the land may be offensive to another, especially where there is no evidence that he went onto the land to taunt or provoke the deceased for the purpose of killing, or for any other purpose, and it is clearly shown that the time had come for him to assert his rights, and hold his possession, which the deceased, aided by others, was trying to take from him. Milrainey v. State, 33 Tex. App. 577, 592.

So, in Johnson v. State, 26 Tex. App. 631, 641, the plea of self-defense was held available as the act of the accused showed that he merely returned to the place of the difficulty for the sole purpose, and with the honest intention, of demanding a return of money, under an honest belief that the same belonged to him and had been wrongfully taken from him, and the second difficulty ensued by reason of the deceased's refusal to comply with his demand when he was assaulted by the deceased with a deadly weapon.

It would be otherwise, however, if he returned with the intention of renewing or pro

voking the difficulty in order to get a pretext for killing the deceased, unless he proved that after entering into the difficulty he declined the combat and retreated. Johnson v. State, 26 Tex. App. 631, 641.

So, the mere fact that the accused looked up the deceased who had made certain charges against him, and after finding him proceeded some distance on the highway with him, and then killed him, is not of itself sufficient to prove that the event was brought about by the defendant's own wrongful act, as the act of the defendant in seeking the deceased was not in the first place wrongful or unlawful,-especially where his purpose was merely to find out whether the deceased had made charges against the defendant. Massie v. Com. 16 Ky. L. Rep. 790, 793.

In such a case the acts of the parties after the meeting took place should be taken into consideration in considering the question of fault in bringing on the difficulty.

And the accused will not be considered as the provoker of the difficulty when he goes to the house of the deceased without any intention of injuring him, and his presence is in one sense wrongful, although not illegal, nor calculated to provoke the occasion; and in such a case his right of self-defense would not be abridged. Franklin v. State, 30 Tex. App.

628, 641.

And so the mere fact that before seeking the deceased the accused may have armed himself or made preparation for the carrying out or doing of the wrongful act is not alone sufficient to deprive him of his right to self-defense, if his acts when he meets or sees the deceased are not accompanied by any demonstration showing that he intended his acts to be wrongful. Cartwright v. State, 14 Tex. App. 486, 502; Shannon v. State, 35 Tex. Crim. Rep. 2; Meuly v. State, 26 Tex. App. 274.

He may arm himself expecting an attack, and yet his right to arm himself in his own proper defense is not gone where he does no overt act or makes no hostile demonstration. State v. Hudspeth (Mo.) 51 S. W. 483, 488: State v. Evans, 128 Mo. 410; Cotton v. State, 31 Miss. 504, 512; Patterson v. State, 75 Miss. 670, 675; Hunt v. State, 72 Miss. 413.

A party can arm himself and go where a person is, but after reaching there if he does not provoke the difficulty, or do some act, or make some statement reasonably calculated to provoke the difficulty, he cannot be convicted of provoking the difficulty. Thomas v. State (Tex. Crim. App.) 51 S. W. 1109.

And the question whether a party has the right to arm himself and go to the place of the homicide is said to depend upon circumstances. There is no question, however, but that he has not the right to arm himself and seek the deceased and kill him. Bush v. State (Tex. Crim. App.) 51 S. W. 238, 239.

In State v. Packwood, 26 Mo. 340, 364, the court reversed the judgment of the court below upon an indictment for murder upon the plea of self-defense, as the evidence did not show that the accused went to the deceased's house with the intention of provoking the difficulty, neither did it show that he did not provoke it after he got there, and even the state's evidence was clear and uncontradicted that he neither used any language nor did any act. actively or passively, or so conducted himself as to provoke a difficulty.

And so in Hunt v. State, 72 Miss. 413, the mere fact that the accused procured a pisto with a view to bring on the fight or of using it in any way in the fight, was held not to abse

futely deprive him of his right of self-defense. In this case the accused went to the house of the deceased for the purpose of whipping him, and was profane and abusive. and refused to go away, and the deceased picked up a hoe and went out followed by the accused who advanced upon him with a stick, and the accused was knocked down three times by the deceased, and he then drew his pistoi and shot the deceased as he was again approaching him with the hoe. The holding in this case would seem to be based upon the theory that there was no evidence in the case sufficient to show that the accused went to the house of the deceased with the intention of committing the felony, or to kill the deceased, as he did not use his pistol until he had been assaulted three times, and then only when it might be said that his life was in danger. There might also be room for assuming that the accused was retreating or withdrawing from the difficulty as the shooting did not take place nntil he was outside of the yard of the premises, and then only when the deceased was again advancing upon him.

In Airhart v. State (Tex. Crim. App.) 51 S. W. 214, wherein it was sought to hoid the accused for manslaughter upon the ground that he sought the deceased with the intention of assaulting him, the court held that no matter what his purpose was in seeking the deceased, if when he met him he did nothing to provoke the difficulty, and the deceased assaulted him. his right of self-defense was protected.

And it has been held by the same court that the mere seeking of a party for the purpose of bringing on a difficulty is not the gist of the offense, but it is doing the acts that produce or provoke the difficulty that deprives him of the right of self-defense. Mozee v. State (Tex. Crim. App.) 51 S. W. 250, 251: Thomas v. State (Tex. Crim. App.) 51 S. W. 1109.

The mere fact that the defendant went to where the deceased was is not of itself sufficient to deprive him of the right of self-defense upon the ground of bringing on the difficulty. Allen v. Com. 86 Ky. 642, 647.

In any case of this character, therefore, the mere fact that the defendant sought the de-ceased for the purpose of settling the previous trouble will not be evidence of the fact that he provoked the difficulty, although, on the other hand, if he sought the deceased for the purpose of having a friendly talk, and then and there provoked the difficulty, the law of provoking the difficuity would apply. Thomas v. State (Tex. Crim. App.) 51 S. W. 1109.

It is the person's own original act when unlawful that limits his right to self-defense. He must have sought the difficulty with the deceased, and unless it is shown that he was the aggressor or trespasser his actious may be justified, and the wrong which will preclude him from making the defense must relate to the assault in resisting which the deceased was killed or the injury was inflicted.

c. Abuse or other act provoking attack by other party.

Generally any act of the accused done for the purpose of inducing his adversary to make an attack upon him in order that he may have an opportunity to kill amounts to bringing on the difficulty. Carter v. State, 37 Tex. Crim. Rep. 403.

And any act of the accused whereby he puts himself in the way of being assaulted in order that when hard pressed he may have a pretext for taking the life of his assailant amounts to bringing on the difficulty. State v. Hicks, 92 Mo. 431, 435; State v. Peak, 85 Mo. 190, 192; Mitchell v. Com. 33 Gratt. 872, 879.

The act of the accused in purposely provok ing an assault by the deceased in order to afford an opportunity to slay him, and goading the deceased to madness and provoking his assault upon the accused, who thereupon kills him, amounts to provoking the difficulty, and makes the accused the aggressor, and bars his right of self-defense. State v. Culler, 82 Mo. 623; State v. Hays. 23 Mo. 287.

In Johnson v. State, 69 Ala. 253, 255, the act of the accused in pincing a pistol under the chin of the prosecuting witness in an angry and insulting manner provoked and brought on the difficulty and commenced the battery, and so precluded him from pleading self-defense.

And the numerous devices resorted to by the accused and indulged in by him with the intention of inducing the deceased to strike him in order that he might have an excuse for using his cane and also a pistol which he carried in his pocket, in which he placed his hand on several occasions on the pretext of using it, and stepped back as if to retreat, but suddenly returned and shook his cane under the deceased's nose and then drew his pistol and fired the fatal shot, produced the occasion, in State v. Bryant, 102 Mo. 24, 31.

And the act of the accused in trying to make the deceased believe that he had the intention of killing him, and his action in holding his hands behind him, which caused the deceased to believe that he had a pistol, and thus excited his fears, amounted to bringing on the difficulty, in Lingo v. State, 29 Ga. 470, 474, and barred his right of self-defense.

And the fact that the accused entered into the difficulty without any intention to kill the deceased, and that the latter resorted to deadly weapons before the mortal wound was inflicted by the accused, does not remove from the latter the blame in bringing on the difficulty, and he will not be entitled to plead selfdefense. Stacey v. State (Tex. Crim. App.) 33 S. W. 348.

The same doctrine is also declared in Kinney v. People, 108 11. 519, 526; Davis v. State, 92 Ala. 20, 28: State v. Neeley, 20 Iowa, 109, 115; Allen v. State, 66 Miss. 383: State v. Crawford, 115 Mo. 620: Rogers v. State, 95 Tenn. 448, 453; Johnson v. State, 26 Tex. App. 631, 641; State v. Hudson, 59 Mo. 135, 138.

And the accused will be considered as producing the occasion where he by words induces another to prepare for the conflict. State v. Scott. 41 Minn. 365, 375; Moore v. People (Colo.) 57 Pac. 857; State v. Jones (Kan.) 8 Crim. L. Mag. 148, 155; Gibson v. State, 89 Ala. 121, 124.

111 Ala. 11; McQueen v. State, 103 Ala. 12.

The act of the accused in using the first words of insult brought on and provoked the difficulty in Howell v. State, 79 Ala. 283, 284,

and barred his right of self-defense, no matter whether he fought willingly or unwillingly.

So, the act of the accused in bantering the deceased to fight in order that he might have an opportunity of taking his life, or committing a deadly harm upon him, amounted to provoking the difficulty, in Bush v. People, 10 Colo. 566, 575.

And where the accused from the first, by his abuse and assault, goaded the deceased into an assault upon him, he provoked the difficulty, and precluded his right to plead self-defense, and the shooting on his part was utterly with out justification, as it was shown that he must have known that he was not in danger of any serious injury. Barnett v. State, 100 Ind. 171, 174.

So. in Isaacs v. State, 25 Tex. 174, 178, the profane language and angry gesticulations of the accused provoked the deceased to strike him, and were therefore considered the means whereby the difficulty was produced,-especially as the blow inflicted by the deceased was not followed up by him in any manner which would raise a reasonable expectation or fear of death in the mind of the accused whose life was not in danger. In this case after the deceased had retreated from the difficulty the accused drew a dagger and returned and killed him.

In Myers v. State. 62 Ala. 599, 603, the offensive remarks and overture to fight made by the accused the morning after a quarrel between the parties, and his movements in making the first hostile demonstrations and advancing pon the deceased in a threatening manner, produced the attack by the deceased upon him, and amounted to the bringing on of the difficulty and producing the occasion, and prevented his plea of self-defense.

So, the accused's assault upon the deceased and his impertinent and insulting questions causing an angry reply and a striking motion on the deceased's part, followed up by a series of brutal assaults by the accused, amounted to oringing on the difficulty in State v. Kloss, 117 Mo. 591, and the circumstance that the attention of the accused was called to the fact that the deceased was getting his gun was held not to justify the killing of the deceased so as to warrant the plea of self-defense.

And in State v. McDonald, 67 Mo. 13, 18, the accused used language of an insulting character without provocation, and seized a deadly weapon before using such language, and his acts in so doing were held to provoke the difficulty and to justify a reasonable apprehension on the part of the deceased that the accused Intended to strike him with such weapon, and also his attack upon the accused in the first Instance.

So, the use of insulting language and the seizure of a pistol by the accused from a bystander, and the firing of the same from behind such person by the accused, amounted to bringing on the difficulty, in Godfrey v. Com. 15 Ky. L. Rep. 3. In this case the accused had also made previous threats, and a feeling of revenge was entertained by him, against the deceased.

in a little dispute between the parties as to the continuance of the trial, which remarks the deceased told him he must take back, provoked: the difficulty in Turner v. State, 89 Tenn. 547. In this case the deceased made no threats or assault and did not engage in any difficulty, and the accused drew his pistol and shot him.

So, the acts of the accused in refusing to leave the deceased's store in which he had noright to be, upon request, and his insulting and abusive language used at the time, produced the occasion and caused the deceased to assail him, in People v. Robertson, 67 Cal. 64€, 650, and his right of self-defense was therefore barred. See also Hinton v. State, 24 Tex. 454, 460; King v. State, 13 Tex. App. 277; Crawford v. State, 112 Ala. 30, 31,-all of which are similar cases.

And the words spoken by the accused, which were foul and abusive, and were continued with numerous repetitions and variations down to the fatal termination of the affair, provoked the occasion in State v. Bryant, 102 Mo. 24, 31.

And an inquiry made by the accused of the deceased, not only calculated to provoke an altercation and angry discussion, but intended for that purpose, constitutes the bringing on of the difficulty, and makes the accused a wrongdoer, and bars his right of self-defense. Jackson v. State, 81 Ala. 33, 35.

But it has been held that mere trivial remarks or acts made or done as a joke, not calculated to excite anger, although done for the purpose of annoying, will not alone bar the right of self-defense. Bennyfield v. Com. 13 Ky. L. Rep. 446.

And so, in Allen v. Com. 86 Ky. 642. 648, it was said that even though such remarks might have to some extent contributed to the occasion, they would not bar the right of self-defense, provided they were not used as a shelter for an intended wrong.

And the same principles were involved in the case of Boatwright v. State, 89 Ga. 140.

And in Brown v. State, 58 Ga. 212, 215, a verdict of guilty was reversed, although the deceased had been provoked by the accused by opprobrious words, but such words would not call for or justify the action of the deceased in advancing upon the accused with a weight in his hands with which to strike the accused.

See also Wilson v. People, 94 Ill. 299; State v. Scott, 41 Minu. 365, 373; Hunt v. State, 72 Miss. 413; Zaner v. State, 90 Ala. 651; Bonnard v. State, 25 Tex. App. 173, 197,-all supra, II. b; Kirby v. State, 89 Ala. 63, supra, I.

III. Threats.

The question as to how far threats made by the deceased against the accused will justify the act of the latter in killing the former may be more properly treated of in considering the question of the accused's justification for acts occasioned by threats made against him. This phase of the subject will not therefore be considered in this note.

It may, however, without attempting to exhaust the authorities upon this question, be stated as a general rule that if the accused sought the deceased and brought on the diffi

against his life by the deceased as a justification of his acts on the ground of self-defense. as mere opprobrious epithets, however vile, do not justify an assault. Levy v. State, 28 Tex. App. 203, 211; Turner v. Com. 89 Ky. 78. 82; State v. Brown, 63 Mo. 439, 443; State v. Gamble. 119 Mo. 427.

And although it may be the general rule that a brother may lawfully defend his brother when in peril. and if need be take life in such defense, yet this rule does not apply where both the brothers are in fault and unite in wrongfully bringing on the fatal encounter. Smurr v. State, 105 Ind. 125, 135.

The accused was not justified in killing the deceased in defense of his brother when the deceased was engaged in the performance of a lawful act, namely, defending himself against a sudden assault of the brother. People v. Travis, 56 Cal. 251, 255.

In State v. Melton, 102 Mo. 683, 688, the brother and the accused both sought and brought on the difficulty, and there was evidence which tended to show that they both went to the place where the assault occurred with the intention of creating the difficulty with the party assaulted. As, therefore, the 'brother was in the wrong, the accused's right to the plea of self-defense was no greater than that of his brother, and the accused could not therefore justify his assault upon the ground of the defense of his brother.

But in People v. Curtis, 52 Mich. 616, which was an information for murder which was the result of an altercation and a riotous affray, the court upheld the right of one to interfere on behalf of his brother, where the latter was in personal danger, no matter whether the brother was to blame or not; and if in such a case a deadly weapon is used, such fact does not per se show malice when neither of them started the affray and there was no period of cooling time or opportunity to withdraw. In this case, however, it would seem that neither brother brought on or provoked the difficulty. But if the act of the party in whose behalf the accused engaged in the difficulty was lawful the act of the latter would also be lawful. This proposition is exemplified by the case of Bush v. People, 10 Colo. 566, 581, wherein the accused's brother was the owner of land whereon the deceased had erected a shanty without his knowledge or consent, and was then in possession, and the owners with other parties entered upon the premises for the purpose of forcibly ejecting those in possession and removing the shanty. In this case the court committed error in instructing the jury that if they found that the accused in company with his brother or son, after entering upon the land in furtherance of the common design, was aiding and advising him therein, and was aware at the time that the difficulty had arisen from such entry and design, then the killing would not be justifiable and the accused should be found guilty, for the reason that if the act of the brother in entering upon the land was lawful the act of the accused in accompanying and aiding him was also lawful.

in some cases, however, of this particular class, the question of notice has formed a material point in determining the right of the accused to justify his actions upon the ground

of self-defense.

The rule is well stated by the court in Foster v. State, 8 Tex. App. 248, 252. The question whether one who interposes on behalf of one who is the aggressor is justified in taking life upon the ground of a reasonable experta tion or fear of death or grievous bodily harin depends upon his knowledge of the antecedent facts, and his guilt must rest upon his guilty knowledge and guilty intent. Guffee v. State, 8 Tex. App. 187, to the same effect.

This rule is exemplified by the case of Karr v. State, 106 Ala. 1. wherein it is said that a son cannot rely upon his own freedom from

fault in bringing on the difficulty when he has knowledge that his father, on whose behalf he interfered, provoked the attack.

It also finds support in the cases of Bush v. People, 10 Colo. 566, 576, and State v. Linney, 52 Mo. 40. In these cases, however, the doctrine was held to apply when the accused had notice that the one he assisted had provoked the difficulty.

So, the same duty to retreat or withdraw from the conflict is imposed upon the aggressor in this class of cases. And if the brother, father, or other relative in whose behalf the accused interferes is the aggressor, and bas nor withdrawn or retreated, or declared his bona fide intention of so doing before the accused interferes on his behalf, the plea of selfdefense will not avail the accused.

Thus, in Smurr v. State, 105 Ind. 123. 135. the court held that if a brother in whose defense the accused engages is in fault, and has not retreated or attempted to retreat, the interference of the accused is not justifiable or excusable. To the same effect, State v. Greer, 22 W. Va. 800, 819; Bush v. People, 10 Colo. 566, 576.

And even if the accused has any occasion to fear harm from the deceased to himself or to his brother at the time of the fatality, it is his duty to withdraw from a conflict which the evidence justifies the jury in finding he has wrongfully brought on. Deal v. State, 140 Ind. 354, 362.

In Whatley v. State, 91 Ala. 110, the court did not expressly pass upon the question wheth er one may not lawfully strike in defense of his brother when engaged in a personal rencounter where he has no knowledge that the latter is in fault in bringing on the difficulty or might have avoided it by retreat; but it held that where there was an opportunity to retreat after such interference he could claim no greater right than the other, and that neither of them could invoke the doctrine of self-defense.

See generally, as to the duty of the aggressor to retreat, IX. infra.

V. In case of mutual combat.

The general rule herein before stated holds good in cases of mutual combat entered into, where death or serious bodily injury is likely to result. Habel v. State, 28 Tex. App. 588, 599; King v. State, 4 Tex. App. 54, 30 Am. Rep. 160; Crist v. State, 21 Tex. App. 361; State, 25 Tex. App. 216. Thumm v. State, 24 Tex. App. 667; Williams v.

Thus, if one goes and arms himself to engage in a combat with deadly weapons on an invitation accepted, or upon mutual agreement, and engages in it, he cannot justify his actions on the ground of self-defense. Evans v. State, 44 Miss. 762, 767; State v. Petsch, 43 S. C. 132.

And self-defense is not available as a plea to one who by prearranged duel, or by consent. has entered into a deadly mutual combat in which he slays his adversary. People v. Hecker, 109 Cal. 451, 30 L. R. A. 403.

Both parties will be the aggressors where there is a mutual combat between them, and the killing of one by the other will amount to manslaughter at the east; yet, if in such a case the survivor proves that he refused to continue the fight and retreated as far as he safely could do before he inflicted the mortal injury, and that the killing was necessary in order to protect his own life, or to prevent great bodily harm to himself, he may justify his ac tions. State v. Spears, 46 La. Ann. 1524, 1526. If. however. the counter assault be so sud