¶1 (in dissent).
¶2 As indicated in the prevailing opinion, the most important question centers upon the interpretation of Par. 2 of Section 103-28-8 U. C. A., 1943. That paragraph is paraphrased therein as follows:
“Homicide is excused when:
“a. Committed by accident and misfortune in the heat of passion upon any sudden and sufficient provocation; or
“b. When committed by accident and misfortune in the heat of passion (and) upon a sudden combat.”
¶3 I have italicized the two phrases that distinguish these paragraphs, and I would leave out the word “and” about which I have placed parentheses.
¶4 What is “sudden combat”? Sometimes it is easier to define by comparison, than otherwise. Let us consider first “mutual combat.”
¶5 “Mutual combat” has implicit in its terms an exercise of judgment to engage in combat. Each participant acts, knowing that the other will voluntarily act likewise. It is governed by mutuality of intent — a meeting of the minds, as it were. It savors of agreement and understanding. Probably the outstanding historical example is the duel, for the settlement of difficulties. The acceptance of the in *146 vitation: “Let’s step outside the building and settle this matter,” no doubt would result in mutual combat. The prosecution maintained that there was mutual combat (see bill of particulars). The lower court agreed there was. (See instruction discussed later.)
¶6 “Sudden combat” on the other hand lacks any thought of mutuality. It lacks evidence of any weighing of possibilities. It is merely the animal instinct to strike blindly under the stress of emotion. It is sudden, thoughtless, instinctive and when it occurs in the heat of passion our code says it shall be considered a human frailty which shall excuse serious results. Maybe our code should not have recognized it that way — maybe it is holding life too cheap to recognize such frailty as excusable, but that, if so, is a matter for the legislature not for this court. The defense maintained it was not mutual combat, but sudden combat.
¶7 “Combat” is not limited to a particular kind of physical contact, such as fist fighting, or wrestling. It might be a combination of many things — blows, shoving, holding, wrestling — any form of physical encounter. These following statements if believed by the jury might well support combat:
¶8 By the defendant:
“… and he took hold of me, and I tried to shake him off with my left hand, and he held on to me and then I hit him with my right hand.”
¶9 By Mr. Love, a witness for the state:
“Well there was some scuffling.”
¶10 By defendant to police:
“Well, there was a fight … I could tell just from his appearance, could tell he was going to Mock me from going out.”
¶11 The probative value of these statements is for the jury, not the court.
¶12 So far as passion is concerned it is rather obvious that the circumstances of the whole affair of defendant’s clash *147 with his wife were such that the jury might well conclude the defendant was leaving the place entirely upset and seething with emotion.
¶13 The mental state of an accused may he such that a mere spark may start a whole conflagration. The tinder that explodes with that spark is not necessarily explosive by reason of the fact that the spark has emanated from a particular source. The prevailing opinion, however, seeks to govern the explosive qualities of the tinder by that source and also by measuring the intensity of the spark.
¶14 In my opinion the reason for dividing the law (paraphrased) into paragraphs (a) and (b) lies in a recognition that there may be cases where the explosive qualities of the tinder are attributable to causes other than the source of the spark. If recognition should not have been given to such a distinction, on the ground that it would be holding life too cheap, that is a question for the legislature, not the court.
¶15 The prevailing opinion has this to say:
“The guiding1 principle under subsection (b) is not, did the combat arise with suddenness, but rather did the combat together with all the facts and circumstances that immediately preceded and those that surrounded it provoke, enrage, annoy, and confuse a reasonable man to such a degree that he might be excused from the results of his acts.” (Italics mine.)
¶16 This statement reads as though it might be one of what would be “sufficient provocation.” Later in the prevailing opinion this is said:
“Again accepting the testimony favorable to the accused, his striking of the deceased was not brought about by any flagrant acts on the part of the deceased nor by a suddeness that might have aroused the passions of a reasonable man to such an extent that an act of violence might have been likely to follow.” (Italics mine.)
¶17 These two statements together certainly bring into the picture the element of “sudden and sufficient provocation,” which is not an element of paragraph (b) but is, of paragraph (a). The use of the word “flagrant” is an admission that the deceased was the source of some *148 spark, but according to the prevailing opinion it just wasn’t bad enough. I wonder if that isn’t a question for a jury! Let the jury measure the intensity of the spark, if a certain degree of intensity is to be required.
¶18 I think the prevailing opinion is in error in trying to attach a source to the heat of passion. In doing so, they eliminated the necessity for having the two divisions in the law which are paraphrased as (a) and (b) above. The question of sudden combat should have been submitted to the jury. The lower court instructed upon “mutual combat,” and that I think was also prejudicial error. There Is no evidence of mutality of combat; no evidence of a meeting of the minds as to what was to occur; no evidence of the exercise of judgment by the participants as to whether or not they would engage in conflict. It all happened on the spur of the moment, and was guided by a rush of emotions, not reason.
¶19 Mutual combat, when supported by evidence, is one method whereby the prosecution may defeat the plea of self defense by an accused. The accused may not complain, if the evidence will support such a version of the affair; but if it will not support that version, to instruct upon it, may confuse the jury into the belief that the conflict must have some aspects of mutuality, or the court would not have so instructed. It jeopardizes defendant’s rights as to a plea of self defense. It confuses the issues in this case because all parties were contending for some kind of combat. It invites an acceptance of the prosecution’s viewpoint without evidentiary support.
¶20 I shall not discuss authorities, but merely cite them for reading by any who may be interested. Campbell v. State, 111 Wis. 152, 86 N. W. 855; State v. Bell, Del. O. & T., 192 A. 553; Driggers v. United States, 21 Okl. 60, 95 P. 612, 129 Am. St. Rep. 823, 17 Ann. Cas. 66; Dodson v. Commonwealth, 159 Va. 976, 167 S. E. 260; Words and Phrases, Vol. 27, p. 934.