¶1This was a conviction for murder of the second degree, the punishment being fixed by the jury at confinement in the penitentiary for eight years.
¶2The homicide occurred in Fannin county, Texas, on the night of October 2, 1882. The defendant and his wife, and the deceased, Charley Smith, and hi's wife, lived in the same house, a box structure of two rooms with four doors, one in the north end and one in the side of each room. The defendant occupied the east room. The defendant and the deceased went to the town of Honey Grove on the day of the homicide. The deceased came home first, arriving some time after dark, and had seated himself in his room, and was playing the violin, when defendant reached home, which was about eight or nine o’clock. Defendant spoke from his room (between which, and the room occupied by the deceased, there was no door or other opening), and asked why the deceased left Honey Grove without waiting for him as he agreed to do. Deceased replied that he did not wait because he thought that defendant had gone by some house for his, defendant’s, wife. The defendant said: “You are aliar.” The deceased retorted: “You are a G—d d—d liar, and a s—n of a b—h.” Defendant replied: “ You can’t come out of doors and say that.” About this time the defendant or some one else stepped out of defendant’s north door. Deceased, at about the same time, stepped to his front door, kicked a plank loose and jerked the door open with his right hand. At the same instant of time, some one out of doors walked into defendant’s room, and immediately the gun fired from the direction of the defendant’s north door, and the deceased fell. When the gun fired, the deceased’s door was open wide enough to admit a man’s head, and the deceased was standing inside the room. He was shot in the breast, and lived but a few minutes.
¶3These are the facts of the killing, as testified to by the wife of the deceased at a former trial of the case. She having died, her narration was reproduced by the county attorney. Upon cross-examination, she stated that the deceased had his gun in his hand when he went to the door just before he was shot. When he opened the door he held the breech of the gun under his left arm, the muzzle pointing downward.
¶4Hamp Stevens, a witness for the State, testified: “Ilive about a half mile from the house of defendant. About nine or ten o’clock, on the night of the homicide, the defendant came to my house and told me that he had killed Charley Smith, and *248asked me to go over there. … He said he did so in self defense; that Smith had come to his, deceased’s, door, opened it, having a gun in his hands, holding it in about half raised position, when he, defendant, fired. … When he, defendant, first went to his door, he did not have a gun, but when he saw the deceased have his gun, he, defendant, stepped back into his house, reached his gun, returned and fired.
¶5Upon the subject of self defense, the court charged the jury correctly; first affirmatively for the defendant, and the qualifications made'in the charge were correct propositions of law which were made pertinent by the facts in the case. For it is well settled that, when a person seeks or brings on a difficulty, and arms himself with a deadly weapon, with the intention of taking life, or doing some serious bodily harm,- and he willingly enters into such difficulty and takes life, he cannot claim the benefit of the law of self defense. This principle, so far as provoking the difficulty, is thus stated in a note to Stafford’s case (Hor. and Thomp. Cases on Self Defense, 336): “If he provokes the combat, or produces the occasion, in order to have a pretext for killing his adversary or doing him some bodily harm, the killing will be murder, no matter to what extremity he may have been reduced in the combat.”
¶6While this proposition is correct, and made pertinent by the evidence, yet it is not absolutely certain that appellant provoked the difficulty in order to have a pretext for killing his adversary. There is evidence presenting another theory which is more favorable to the defendant, viz: that he did not provoke the difficulty with a view of having a pretext to kill, but that, if he in fact provoked the combat or produced the occasion, he did so without any felonious intent, intending an ordinary battery merely; and that, if this be the case, the killing would be manslaughter, if done to save his own life.
¶7And when we consider that, in every instance in which the court instructed the jury upon the law of self defense, that which was favorable to defendant was qualified by a proviso by which the jury were told that self defense could not be invoked if the defendant provoked the difficulty with a view to take the life of his adversary, or willingly entered into the combat with intent to kill his adversary, it became of the first importance to the rights of defendant that his theory be presented to the jury, and let them pass upon and decide which of the two was cor*249rect. We are not discussing the burden of proof or the reasonable doubt.
¶8It was in evidence that deceased, when challenged, came out with his gun; that defendant, seeing this, stepped back and got his gun. It was also in evidence that deceased, on that very day, threatened to kill defendant before next morning. Under these facts, was it not probable that the challenge given by defendant was to engage in an ordinary battery merely, and that seeing his adversary advancing with his gun, and believing from the threats made by deceased on that day, that his adversary was intending to carry into execution his threats, defendant then shot and killed the deceased, and that he did not, in fact, provoke the difficulty in order to have a pretext to kill; nor did he enter into the combat with a view of killing his adversary or of inflicting serious bodily harm upon him?
¶9We are not attempting to decide which theory is correct, that of the State or that of the defense. There being evidence presenting both, it was the duty of the court to apply the law to each. This was not done, and we think this omission was very clearly calculated to injure the defendant. The judgment, is reversed and the cause remanded.
¶10 Reversed and remanded.