¶1This case was affirmed in an opinion handed down by Judge Ramsey June 15 of last year. On the motion for rehearing he and Presiding Judge Davidson disagreeing (Judge McCord being disqualified) it had not been decided when the personnel of the court changed the first of this year. On account of this disagreement, we invited and have heard oral argument in this case both for the State and defendant, and have given the record a close scrutiny. The court is still divided, Judge Prendergast having written an opinion overruling the motion, while Judge Davidson has prepared an opinion granting the motion and reversing the case.
¶2It appears that a disposition of the case has finally narrowed down to the issues, did the court err in submitting to the jury the question of mutual combat, and if not, did he err in his charge on this issue. The defendant in this case testified:
¶3"I had known deceased ever since he had been in that section of the country, and lived within a mile of him, or less, for a year. On the morning of the difficulty between deceased and myself I had started to go to D.A. Sanders, another neighbor of mine, for the purpose of going with him to Stephenville, and in doing so went by the home of deceased, on the regular road. I saw some of his calves in my cotton, and came on until I saw Calvin Snider, a son of deceased, standing on the gallery of his father's house. I then stopped and told the boy to tell his father to keep the calves out of my cotton. He replied that his father was in the house and that he would call him out and let me talk to him, and did do so. Deceased then came out and walked out to the gate where I was standing on the outside — in the lane, or by the fence. I had my knife in my hand at the time and was whittling on the top of a post oak bush which I had cut just after leaving my house. It is a habit with me to whittle, and I had no notion of having the knife out for any difficulty with deceased.
¶4"I there told deceased that I wanted him to yoke his calves to keep them out of the field. He said that was all right, and that he would do so. I then said to him to be sure and do it, and don't let them get across in the other field, and then he said he could whip me. His words were: `Damn you, I can whip you.' I then said to him: `You are a preacher and you ought not to curse; if you think you can let's go on down the road,' and we went. He walked out and we went down the road together. I expect we went twenty or thirty yards before either of us spoke a word. Deceased then said: `You and your neighbors have been tormenting me over the phone about my cattle.' I told him that I had not been phoning, but that I had *158 been down there once before about the cattle, but that I had not phoned. I do not recall what reply he made to this, and if there was anything said about McInrow phoning I do not remember it. I told him that it was not I.
¶5"We then walked on and came to where that club was in the side of the road, and he stopped and made a little move as though to pick it up, and I told him not to do that. He then said to me: `If you will put down that knife I will show you how quick this thing is done.' I told him I would not put the knife down, and about that time Lee Riley drove up, and as he did so he wanted to know what the trouble was. Deceased then said: `Anthony is just blowing off,' or something to that effect, and then said if I would put up my knife he would show me how quick it was done. I told him I would not do that, and that I did not want to hurt him, if he would behave himself. But I did not want him to hit me with that stick. I was standing at one end of the stick. I do not remember which end, and we were close together. My back was east and we were standing on the south side of the road, he with his back towards the west, and were both standing that way at the time Lee Riley drove by. Riley drove on by, going west, and after he had passed I told deceased that if he wanted to do what was right we would not have any trouble. He then asked me what I wanted him to do, and I told him that I did not want anything except to keep the calves out of the field. He then said he was perfectly willing to do that, and when he told me that I then said to him that I was in a hurry, and turned and shut up my knife, and put it in my pocket and started to walk off. As best I recollect I made a step right to the edge of the road when he struck me with that big stick. He was right up against me at the time. When he struck me this right hand went down on the ground, and the next blow — I don't think I went quite to the ground. I don't know whether I was hit on the back or the breast; I just knew that I was struck again. By the time I got my knife out he was fixing to strike me again, and I dodged down and caught him, and I suppose then is when I stabbed him."
¶6On this theory the court instructed the jury as to the law of murder in the first and second degrees as applicable to this case, but as the jury found the defendant guilty of manslaughter only, it is not necessary to discuss that portion of the charge.
¶7On manslaughter the court instructed the jury: "18. Manslaughter is voluntary homicide committed under the immediate influence of sudden passion arising from an adequate cause, but neither justified nor excused by law. 19. By the expression, `under the immediate influence of sudden passion' is meant: 1. The provocation must arise at the time of the commission of the offense, and that the passion is not the result of a former provocation. 2. The act must be directly caused by the passion arising out of the provocation. It is not enough that the mind is merely agitated by passion arising from *159 some other provocation. 3. The passion intended is either of the emotions of the mind known as anger, rage, sudden resentment or terror, rendering it incapable of cool reflection. 20. By the expression `adequate cause' is meant such as would commonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. The following are deemed adequate causes: 1. An assault and battery by the deceased causing pain and bloodshed. 2. A serious personal conflict in which great injury is inflicted by the person killed, by means of weapons or other instruments of violence, or by means of a great superiority of personal strength. 3. Any condition or circumstance which is capable of creating and does create passion, such as anger, rage, resentment or terror sufficient to render the mind incapable of cool reflection, is adequate cause. 4. And where there are several causes to arouse passion, although no one of them may be sufficient to constitute adequate cause, yet all of the causes combined may be sufficient to do so. 21. In order to reduce a voluntary homicide to the grade of manslaughter it is necessary not only that adequate cause existed to produce the state of mind referred to, that is, of anger, rage, resentment or terror, sufficient to render the mind incapable of cool reflection, but also that such state of mind did actually exist at the time of the commission of the offense.
¶8"22. In this case, gentlemen, it is your duty in determining the adequacy of the provocation, if any, to consider in connection therewith all the facts and circumstances in the case, and if you find by reason thereof the defendant's mind at the time of the killing was incapable of cool reflection, and that such facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, the proof as to the sufficiency of the provocation satisfies the requirements of the law."
¶9In addition thereto the court instructed the jury as follows:
¶10"33. Moreover, gentlemen, if the defendant at the yard gate of the deceased agreed with the deceased to engage in a fight with deceased, and if at the time he intended to have only a fist fight with deceased, and did not intend to fight the deceased with a weapon, and did not intend to use a knife on deceased, and if pursuant to such intention, he went with deceased some distance from the yard gate and house of the deceased, and if at the place they stopped, the deceased struck or attacked the defendant with the large stick exhibited in evidence before you, or with any other stick and produced in his mind such a degree of anger, rage, resentment or terror, as to render it incapable of cool reflection, and that under such circumstances defendant killed the deceased by cutting and stabbing him with a knife, he would not be guilty of a higher grade of offense than manslaughter.
¶11"34. Moreover, gentlemen, if the defendant at the yard gate of the deceased agreed to engage voluntarily in a combat with deceased, *160 either with the knife exhibited in evidence or without it, and with his fists, and if the defendant and the deceased left the yard gate and house of the deceased for the purpose and with the intention of engaging in a combat with each other, but after they had gone some distance from the yard gate and house of the deceased they stopped, and the defendant decided to abandon the combat and the agreement to have a combat, and so stated to the deceased, and started to turn and leave the deceased, and the deceased then struck or attacked the defendant with the stick exhibited in evidence before you or with any other stick, and in defense of himself against such attack by the deceased, the defendant killed the deceased by cutting and stabbing him with the knife exhibited in evidence, or if you have a reasonable doubt as to whether or not the killing occurred under such circumstances, the defendant would be justified in such killing.
¶12"35. Moreover, gentlemen, if the defendant did not agree to fight the deceased unless attacked, and if the deceased attacked the defendant with the club or stick exhibited in evidence before you, or either of them, and the defendant killed the deceased in defense of himself against such attack, or if you have a reasonable doubt as to whether or not the killing took place under these circumstances, you will give the defendant the benefit of such doubt and acquit him."
¶13As will be seen, after defining manslaughter, the court told the jury that if defendant did agree to engage in a fist fight and deceased attacked him with a stick, and defendant killed him under those circumstances he would not be guilty of any higher grade of offense than manslaughter; further instructing them, that if defendant did agree to have a fight with deceased, yet before the fight began, signified his willingness and intention to withdraw from or abandon such agreement, and deceased struck him with a stick he should be acquitted.
¶14In addition thereto the court instructed the jury on the law of self-defense as follows: "25. Upon the law of self-defense you are instructed, gentlemen, that homicide is permitted by law when inflicted for the purpose of preventing the offense of murder, or the infliction of serious bodily injury, when the killing takes place under the following circumstances: 1. It must reasonably appear by the acts or by the words coupled with the acts of the person killed that it was the purpose and intent of such person to commit such murder, or inflict such injury. 2. The killing must take place while the person killed was in the act of committing such murder, or inflicting such injury, or after some act done by him showing evidently an intent to commit such murder or to inflict such injury.
¶15"26. A party who is unlawfully attacked is not bound to retreat in any event to avoid the necessity of killing his assailant.
¶16"27. It is not necessary to the right of self-defense that the danger should in fact exist, if it reasonably appears from the circumstances of the case that danger existed, viewed from the standpoint of the *161 defendant. A person threatened with such apparent danger has the same right to defend himself against it, and to the same extent that he would have were the danger real; and in determining whether there was reason to believe that danger did exist, the appearance must be viewed from the standpoint of the party who acted upon them and from no other standpoint.
¶17"28. In this case, therefore, if the defendant killed R.L. Snider, he was justified in doing so, if he did so to prevent the said R.L. Snider from murdering him or inflicting serious bodily injury upon him, the defendant, provided, it reasonably appeared from the acts or from the words, coupled with the acts of the said R.L. Snider, that it was the purpose and intent of the said R.L. Snider to murder or inflict serious bodily injury upon him, the defendant, and provided, the killing took place while the said R.L. Snider was in the act of murdering or of inflicting serious bodily injury upon the defendant, or after some act done by the said R.L. Snider showing evidently an intent to murder or inflict serious bodily injury upon the defendant. And in passing upon this matter you will view the circumstances from the standpoint of the defendant alone. And if you believe from the evidence in this case that the killing took place under the circumstances indicated in this paragraph of this charge, or if you have a reasonable doubt as to whether it did, you will give the defendant the benefit of such doubt and acquit him."
¶18In the case of Habel v. State, 28 Texas Crim. App., 588, a case less suggestive on the facts of mutual combat than the facts of this case, this court says: "Insofar as murder of the first or the second degree is concerned, all such questions are eliminated by the fact that defendant has been convicted of manslaughter and not murder. As to manslaughter, the charge embraced all the statutory rules with regard to that crime. Had defendant not been found guilty of manslaughter the charge might have been held insufficient as not pertinently applying the law of that grade of crime to the particular facts of the case, and defendant, in a special requested instruction, which was refused, attempted to call the attention of the court to the omission. The instruction was not itself the law, but was sufficient to call the attention of the court to the necessity of an instruction directly applicable to the facts. An instruction was given by the court with regard to mutual combat entered into where death or serious bodily injury likely to result in death might ensue, and properly instructed the jury that in such state of case self-defense would not apply. King v. The State, 4 Texas Ct. App. 54 [4 Tex. Crim. 54] [4 Tex. Crim. 54]; Crist v. The State, 21 Texas Crim. App. 361; Thumm v. The State, 24 Texas Crim. App. 667; Williams v. The State, 25 Texas Crim. App., 216; Willson's Crim. Stats., sec. 982. But the court did not instruct as to what the law would be if defendant went out to engage in a fisticuff with deceased, and with no intention of having a deadly contest or *162 using a deadly weapon, and that his deadly weapon was only used after deceased was apparently about using a deadly weapon upon him. The facts, perhaps, called for some such instruction. But in such case the defendant's right of self-defense would not have been, as is insisted by counsel, a perfect one and entirely justifiable in law, but would have been imperfect to the extent of the gravity of the offense which he intended to commit originally. He went out to engage in an affray, which is a misdemeanor. (Penal Code, art. 313.) `A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity and was wholly free from wrong or blame in occasioning or producing the necessity which required his action. If, however, he was in the wrong, if he was himself violating or in the act of violating the law, and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself, which was superinduced or created by his own wrong, then the law justly limits his right of self-defense, and regulates it according to the magnitude of his own wrong.' Reed v. The State, 11 Texas Crim. App., 509; Willson's Crim. Stats., sec. 982. If the original wrong of defendant was or would have been a misdemeanor, then the homicide growing out of or occasioned by it, though in self-defense from an assault made upon him, would be manslaughter, if committed under the immediate influence of sudden passion arising from an adequate cause, such for instance as anger, rage, terror or resentment. Spearman v. The State, 23 Texas Crim. App., 224."
¶19And in Pollock v. State, 32 Tex.Crim. Rep., the court, speaking through Judge Davidson, says: "`Mere words are not a fighting, within the definition of `affray;' and if one, by insulting language, provokes another to attack him in a public place, but offers no resistance to the attack when made, he does not become guilty of this offense. If he were himself ready to fight, while the other gave the first blow, it would be otherwise.' 2 Bish. Crim. Law, sec. 2, and notes; The State v. Sumner, 5 Strob., 53; The State v. Perry, 5 Jones (N.C.), 9. Looking to the evidence the defendant, though reluctantly, entered the combat with some zeal, was `rough' in his remarks, and vigorous in his efforts during the fight; and the fighting occurred in a public road. In this attitude of the case it is immaterial who struck the first blow, for both are guilty of the affray. Self-defense was not an issue in the case, and defendant could not justify his action on the ground that he did not strike the first blow."
¶20Other authorities might be cited, but these state the law under the decisions of this court. It appears from defendant's own testimony that there was an agreement to fight. That when deceased said he could whip him, defendant replied, "If you think so come on down the road." He says that they afterwards agreed not to fight and he closed his knife and started off when deceased struck him. In the charge of the court both theories were presented to the jury for their *163 determination. We find nowhere in the record any suggestion of abandonment of the difficulty, other than in the testimony of defendant herein copied, and this, in an appropriate charge, the court tells the jury, if true, defendant should be acquitted. This was as favorable as defendant could expect, for if the rule announced in the Pollock case, supra, that having entered into an agreement to fight, and the fight resulting from this conversation, and he is shown to have entered into the combat with zeal when it started, he could not claim to have acted in self-defense. We do not think the charge of the court is subject to the criticism contained in appellant's brief. It was not for the court to determine these matters of fact, but to give in charge the law, and let the jury determine whether or not in the first instance whether or not there was an agreement to fight, and if there was, then whether or not there was an abandonment of the agreement to fight. The charge having submitted every issue raised by the evidence, and the jury found that defendant was guilty of manslaughter under the evidence, I concur in the judgment overruling the application for a rehearing.
¶21I can not concur with my brethren in overruling the motion for rehearing. Appellant challenges the correctness of the opinion affirming the conviction, and presents tersely the issues as follows: First. If the issue of mutual combat be not in the case, the conviction should be set aside. Second. If the issue of mutual combat be held raised by the evidence, then the conviction should be affirmed, unless (1) the charges of the trial court upon the issue of mutual combat are erroneous; or unless (2) the charges of the trial court are erroneous and restrictive of the issue of self-defense; or unless (3) the charge of the court erroneously contributed to the maximum penalty for manslaughter, assessed by the jury.
¶22Assuming that the issue of mutual combat is raised by the evidence, and pretermitting a present discussion thereof, we should meet squarely the contention of appellant that the charge on mutual combat was hurtfully wrong. The 33d paragraph of the court's charge reads as follows: "Moreover, gentlemen, if the defendant at the yard gate of the deceased agreed with the deceased to engage in a fight with deceased, and if at the time he intended to have only a fist fight with deceased, and did not intend to fight the deceased with a weapon, and did not intend to use a knife on deceased, and if pursuant to such intention, he went with deceased some distance from the yard gate and house of deceased, and if at the place they stopped, the deceased struck or attacked the defendant with a large stick exhibited in evidence before you, or with any other stick, and produced in his mind such a degree of anger, rage, resentment or terror as to render it incapable of cool reflection, and that under such circumstances defendant killed the deceased by cutting and stabbing him with a *164 knife, he would not be guilty of a higher grade of offense than manslaughter."
¶23Appellant challenges the correctness of the foregoing charge in his motion for new trial. That clause of the motion for new trial is here copied:
¶24"Because said charge is not the law in this State in any particular, and because if defendant agreed to fight deceased with his fists and went to the scene of the homicide or place where the killing occurred for that purpose, and on arriving there the deceased attacked and struck the defendant with a large stick exhibited in evidence, which was shown to be a deadly weapon, then such act on the part of the deceased, before any act was done by either of the parties in pursuance of the agreement to fight a fist fight, showed on the part of the deceased, an intention to abandon the agreement to have a fist fight, and to murder the defendant, and if defendant struck the deceased and killed him under such circumstances, such killing would be self-defense, inasmuch as the act of the deceased, in making such murderous assault, was a distinct and independent attack and assault to murder not contemplated by the parties and not contemplated by the terms of the proposed fist fight, but the same would constitute a specific and independent act disconnected from the former agreement which was only a misdemeanor, such attack or assault by deceased being an independent felony, and under such circumstances the defendant's act would be self-defense and entirely justifiable. And the defendant here now in this motion for a new trial excepts to said charge for the reasons herein stated."
¶25Judge Ramsey, delivering the opinion, said: "And this is the question of difficulty in the case." The opinion then reviews authorities, which will be noticed later. This language is found in that opinion:
¶26"The evidence in this case raised the issue, as we believe, of mutual combat. It may be true that where there is a mere agreement to fight with the fists, followed by no subsequent act in furtherance of such agreement, and thereafter one of the parties to the quarrel assaults his adversary with a deadly weapon, that the party so assaulted would, under the law, be allowed to protect himself and claim his perfect right of self-defense. However that may be, that doctrine can have no application here. In this case the evidence shows or at least justifies the conclusion that there had been an agreement to fight, and that the parties in pursuance of such agreement to fight, had left the house and were going to a more private place where the fight could be without interference or interruption.This the law treats as a part of the combat, recognizing it as anovert act in furtherance and as a part of the combat. There must in every case of mutual combat be a beginning of the fight by some one of the persons engaged in it. It would not be claimed in this case that if there was an agreement to fight by the parties, a leaving of the house to fight, that the mere fact that one struck the other before giving notice *165 in words of his intention so to do, that his adversary would be protected under the ordinary rule of self-defense. The fact that if the parties had agreed to fight with deadly weapons with a deliberate and set purpose, and one of them first draws his weapon and fires and either missing or not slaying his adversary, is in turn by him killed, it could not be claimed that the person killing acted in self-defense, but in such case, if the agreement was deliberately made, the offense would be murder in the first degree. And so it would seem under the authorities above cited that if the parties agreed to fight, not with deadly weapons, but one of them subsequently attacks his adversary with such means as that to save his life he must resort himself to the use of a deadly weapon, he does not go acquit, but if there is raised in his mind that degree of terror, rage or resentment, recognized by the law, the offense is manslaughter. The books have not, so faras our, examination has discovered, written at length thereasoning on which this rule is based, but it must be, as webelieve, on the theory and proposition that both parties are,when the agreement to fight is made, and when they have done someact or acts in furtherance of such agreement, engaged in aviolation of the law, and are culpable in some degree for anyovert act done in furtherance thereof. Again, we think the law must take some account of the fact that even if two persons do agree to fight in a given manner, that either wickedly designing to take some advantage of the adversary or moved by uncontrolled passion, one of them may strike with a deadly weapon, and that in considering their culpability, some knowledge of this fact must be assumed and presumed. So, that we believe the charge of the court in respect just considered is not only not objectionable, but is a fair and correct submission of a most difficult question."
¶27Now, we return to the consideration of the charge given, construing it in the light of its applicability to the facts.
¶28The undisputed facts show that appellant stopped at the yard gate of the deceased's home, and complained to deceased that his calves were getting into appellant's cotton field. The deceased said, "Damn you, I can whip you." Appellant replied, "If you think so, come on down the road." Deceased and appellant left the yard gate, and walked side by side down the road, about 200 yards, where they stopped, the appellant having an open knife in his right hand; a large stick was lying on the ground between the parties where they stopped. At this juncture the witness Riley, driving a pair of mules, drove up; the mules shied out of the road around the parties, and Riley passed on. When Riley appeared on the scene he saw the deceased and appellant standing facing each other, with a big stick that was subsequently used by the deceased lying on the ground between appellant and deceased, and appellant holding an open knife in his right hand. Riley asked what was the trouble? Snider, the deceased, replied, "Anthony is blowing about something, and if he *166 will put up that knife I will show him how quick it can be done." Anthony said, "That he was not going to put up the knife, and that he did not want to hurt Snider."
¶29Appellant's testimony, after Riley reached them, was that in response to Riley's inquiry, "What was the trouble?" Snider, the deceased, said, "If Anthony will put up his knife I will show him how quick it can be done." "I told him I would not do that, and that I did not want to hurt him, if he would behave himself, but I did not want him to hit me with that stick."
¶30Preceding the arrival of Riley upon the scene, the action of appellant and deceased is shown only by the testimony of appellant. He states: "We walked on and came to where that club was at the side of the road, and he stopped and made a little move as though to pick it up. I told him not to do that." After Riley passed from the scene, appellant's testimony and statements is the only evidence as to subsequent occurrences resulting in the death of the deceased. Appellant thus testified: "He (deceased) was standing at one end of the stick. I do not remember which end, and we were close together. My back was east, and we were standing on the south side of the road, he with his back towards the west, and we were both standing that way, at the time Lee Riley drove by. Riley drove on by, going west, and after he had passed I told deceased that if he wanted to do what was right we would not have any trouble. He then asked me what I wanted him to do, and I told him that I did not want anything except to keep the calves out of the field. He then said he was perfectly willing to do that, and when he told me that I then said to him that I was in a hurry, and turned and shut up my knife and put it in my pocket and started to walk off. As best I can recollect, I made a step right to the edge of the road when he struck me with that big stick. He was right up against me at the time. When he struck me, this right hand went down on the ground, and the next blow — I don't think I went quite to the ground — I don't know whether I was hit on the back or on the breast; I just know that I was struck again. By the time I got my knife out he was fixing to strike me again, and I dodged down and caught him, and I suppose then is when I stabbed him.
¶31"Snider would weigh about 170 pounds and was a tolerably stout man, and was a younger man than I. My weight is 130 pounds and age 46. I am not a strong man, and do not have good use of my left hand and arm. The left hand was cut open by an accident with an axe when I was a boy, and it is not as good as the other. I do not believe that I would have had any show in a physical contest with deceased with my fists, and believe also that he could have whipped me, and that is the reason I did not put up the knife. I could not defend myself against him, and did not put up my knife because I was afraid he would hit me with the stick. I knew I could *167 not hold my own with him at all with my fists. He was well built and larger than I. He could have tied me."
¶32The State introduced in evidence statements made by appellant to several persons, which statements as to the res gestae were in accord with the defendant's version of the homicide.
¶33The learned trial judge rightly instructed the jury, the rule obtaining where the State's case is sought to be made upon statements of the accused introduced in evidence by the State.
¶34Now then, it is clearly apparent that the deceased began the fight. The foregoing 33d paragraph of the charge was based on this theory; not only that the deceased was the aggressor and began the fight, but that the deceased began the fight with a deadly weapon, and made a murderous assault upon the defendant. Such character of attack by the deceased was an issue presented by the evidence and was embodied in the foregoing charge.
¶35And it will be borne in mind that no act is shown on the part of the appellant wherein he began the fight, or was in any sense the aggressor.
¶36So much is said to emphasize the principle raised under the foregoing charge, for it is conceded that if the appellant andthe deceased agreed to fight, the appellant intending to haveonly a fist fight with the deceased, the deceased intending tohave a deadly fight with the appellant, and under this status ofthe agreement to fight with the respective intentions of theparties as stated, the appellant having only such intent to engage in a fist fight, began such character of fight, or became the aggressor therein, and the deceased responded with a deadly attack, this would be a mutual combat. The appellant could not justify, and the principle invoked in the foregoing paragraph of the charge of the court under discussion would be correct. The appellant would be guilty of manslaughter, and had the deceased killed the appellant under the above circumstances, given in the illustration, his offense would have been murder. Why? Because the essence of mutual combat is (1) an agreement to fight, express or implied; (2) the fight in pursuance thereof.
¶37Mutuality of purpose and intent of the parties is the distinguishing principle of mutual combat as a general proposition, and this principle is apparent in the adjudicated cases. The very term "mutual combat" carries with it the meaning of mutuality, in mutual combat, as to which party strikes the first blow. In the principle of mutuality is found the reason of such rule, that it is immaterial which party strikes the first blow. And it may be soundly stated that when the reason for a rule ceases the rule has no application.
¶38I have been speaking of mutuality as the distinguishing principle of mutual combat, as a general proposition.
¶39To illustrate, where the agreement or intention, express or implied, is to fight a fist fight, no purpose to inflict death or serious bodily injury, or where the agreement or intention, express or implied, is *168 for a deadly fight, that is, where the purpose is to inflict death or serious bodily injury; where the combat is willingly entered into with mutual purpose or intent, there is no difficulty in determining the character of the combat, and in applying the law of mutual combat thereto.
¶40Where the mutual combat is with nondeadly intent or character, and one kill the other, it is manslaughter. Where the mutual combat is with deadly intent or character, and one kill the other, it is murder.
¶41How and why is it that the rule of mutual combat applies in the case between parties who have agreed to fight, express or implied, the one intending a fist fight, and the other intending to kill or inflict serious bodily injury, where the party intending a fist fight only begins the fight by striking the first blow, or being the aggressor therein?
¶42The answer is sound and true to the principle involved in mutual combat. The agreement, express or implied, is to fight. The party intending only a fist fight, by his overt act, in striking the first blow, or becoming the aggressor in the fight, crosses the line between intention and crime; his purpose and intent has merged into an unlawful act, to wit, an assault.
¶43The other party intending to kill or inflict serious bodily injury, his intent to kill or inflict serious bodily injury includes the lesser intent to fight; the lesser intent is included in the greater.
¶44The parties would be respectively guilty of manslaughter or murder, as shown in the illustration hereinbefore given, based upon the theory of the appellant beginning the fight or being the aggressor therein, having the intent only to have a fist fight; and which illustration is the reverse of the issue presented in said foregoing charge.
¶45Now, to further illustrate the proposition. Suppose A, with the intent to have a fist fight, assaults B; no matter what the purpose or intent of B; if A should kill B, his offense could be no less than manslaughter, for the act of A was unlawful at the outset, and his own wrong would abridge his right of self-defense, in the absence of an abandonment of the conflict by A.
¶46Consider the illustration from B's standpoint; if in resisting a simple assault by A, he did so with the purpose and intent of killing A, using a deadly weapon, calculated to inflict death or serious bodily injury, and did kill A, his offense would not be less than manslaughter; for B was in the wrong in using more force than was reasonably necessary to protect himself from such simple assault.
¶47Now then, suppose A and B agreed to fight, A intending to have a fist fight only, B intending to fight to kill; A begins the fight, becomes the agressor, by his overt act in so striking the first blow or becoming the aggressor, A has committed an unlawful act. He was the aggressor; he can not justify, and this would be true, whether A and B fought together willingly or not, because, as shown, A was the aggressor. *169
¶48B enters into a fight, under an agreement, express or implied, but with the intent to kill, and in resisting A's simple assault, B with the original intention to kill, makes a deadly attack upon A, and kills him, B would be guilty of murder.
¶49It will be seen that in the preceding illustration B in resisting A's simple assault, by reason of using more force than necessary, his offense would not be less than manslaughter, while as shown above, A being the aggressor in a simple assault, if B entered into the fight, under an agreement, express or implied, to fight, but with the original intent on his part to kill, and in resisting A's simple assault, B with the original intent to kill, makes a deadly attack upon A and kills him, B's offense would not be less than murder. Because the lesser intent to fight was merged in the greater intent to kill.
¶50The foregoing views have been expressed to more clearly present the issues raised in appellant's challenge to the correctness of the foregoing 33d paragraph of the court's charge, and the distinction of the legal principles contended for under the facts arising under said charge.
¶51Under said charge if there was an agreement to fight, the appellant intending to have a fist fight, the deceased intending to fight to kill, even though the deceased was the aggressor, and made a deadly assault upon the appellant with the stick, there was no escape for the appellant — his offense was manslaughter. Such is the proposition involved in said charge. Is it correct?
¶52As above stated, it will be borne in mind that no act is shown on the part of appellant wherein he began the fight, or was in any sense the aggressor. There was no overt act on his part until after the attack upon him by the deceased with the stick in question. Such character of attack by the deceased was an issue presented by the evidence, and was embodied in the foregoing charge.
¶53There can be no fight until the fight begins; there can be no combat, mutual or otherwise, until the combat begins. The plain principle of law, as well as inherent simple justice, forbids that a man should be bound by an agreement he never made, or with an intent that he never had.
¶54The appellant insists that the opinion of this court, speaking through Judge Ramsey, is erroneous in approving said charge."Because the act of the defendant in going down the road with thedeceased, was an overt act and a part of the combat."
¶55The language of the opinion on this point is as follows:
¶56"In this case the evidence shows, or at least justifies the conclusion, that there had been an agreement to fight, and that the parties in pursuance of such agreement to fight, had left the house and were going to a more private place where the fight could be without interference or interruption."
¶57"This the law treats as a part of the combat recognizing it asan overt act and as part of the combat. . . . *170
¶58"The books have not so far as our examination has discovered written at length the reasoning on which this rule is based, but it must be as we believe, on the theory and proposition that both parties are when an agreement to fight is made, and when they have done some act or acts in furtherance of such agreement,engaged in a violation of the law, and are culpable in somedegree for any overt act done in furtherance thereof."
¶59It is not held or contended by the opinion that a mere agreement to fight is an overt act. A mere intention to fight standing alone is not punishable as a crime under our Penal Code. The opinion, however, does hold that the walking down the road, on the part of appellant and the deceased, coupled with the agreement to fight was, in law, a part of the combat, an overt act. I can not agree to this as a correct proposition of law, nor can it be correctly held to be law.
¶60Suppose there had been no fight, would the acts so designated as part of the combat be punishable by law? If an agreement to fight and walking down the road together is a part of the combat, could there be an abandonment then? How could there be culpability in any degree for a thing done in furtherance of an agreement to fight, if there was no fight?
¶61Self-defense, predicated on threats, is recognized as part of the law of homicide; yet in order for the slayer to justify, the deceased must at the time have done some act reasonably indicating the purpose or intent to carry such threat into execution; some act done by the deceased as an overt act, and upon which self-defense predicated upon the threats must stand.
¶62Would the mere presence of the party making the threats, though armed, in the absence of some overt act indicating a purpose to carry his threats into execution, be sufficient to justify defensive action? The unbroken rule of decisions in Texas is to the contrary.
¶63An overt act at the time of the homicide creating apprehension or fear of death at the time is the basis of self-defense, bottomed upon actual or apparent danger.
¶64An overt act in an assault or homicide, is aggression, a thing done that brings on the fight at the time thereof. Agreements to fight, threats, grudges, menaces, the going or coming together, have no relation as any part of such overt act. Their evidentiary purpose is to characterize or shed light upon the motives, purpose and intent of the parties. Common law writers upon mutual combat have never held that the act of going to the place where the fight is to take place, is an overt act, constituting a part of the combat; nor has there been any holding by the common law writers, that mutual combat could exist without an agreement, express or implied, and a commencement of the fight.
¶65So far as the writer is advised, it never has been held that the going to the place of the fight, with the intent to fight, was an overt act, constituting a part of the mutual combat. *171
¶66Russell on Crimes, vol. 1, page 529, lays down the rule that two things must occur to constitute mutual combat. Mutual agreement or intent to fight, express or implied, and the fight based thereon. It is the fight that merges the agreement or intent into crime.
¶67Mere preparation for a fight unaccompanied by the demonstration or overt act, does not impair the right of self-defense. Meuley's case, 26 Texas Crim. App., 307.
¶68Judge Lumpkin, of Georgia, in the case of Barton v. State,23 S.E. 827, says: "Neither the evidence, nor the prisoner's statement in the case now under consideration warranted the finding by the jury that Barton, the accused, ever entered into a mutual intention or agreement with Nasworthy, the deceased, to fight with deadly weapons.
¶69"It seems quite clear that Barton was willing to fight with Nasworthy, a rough and tumble fight, of the kind described by Judge Longstreet in `Georgia Scenes,' but when Barton saw that Nasworthy, after procuring an exceedingly dangerous weapon, manifestly intended that the fight should be of a deadly character, he, Barton, did all in his power to decline a struggle of this kind. He did not use his pistol until it became absolutely necessary to do so in order to protect himself from the consequences of the murderous assault which Nasworthy was actually making upon him."
¶70The judgment for manslaughter was reversed and the case remanded. Judge Lumpkin, in the case, supra, further says: "What constitutes a case of mutual combat is well settled by the authorities, and need not here be repeated. When, however, two persons, by agreement, go out to fight a fair fight, without weapons, and when they reach the place of combat one only of them adheres to the purpose or intent to a fight of this kind, and the other abandons this purpose, and forms a manifest intention to attack his adversary with a deadly weapon, it is not only the right but the duty of the latter to decline to participate in a deadly combat that is imminent. Indeed, strictly speaking, no person should enter into an agreement to go out and fight a fight of any kind, but certainly when he bargains for an old-fashioned `fist and skull fight' he is not bound to enter into a combat involving the lives of both himself and his enemy. If the latter should insist upon having a deadly fight, the other party in good faith declines to enter into it, seeks to withdraw from it, he may then stand upon his defense and justifiably use whatever force may be necessary to protect himself."
¶71It will be seen from the foregoing quotation that the going out of the parties together to have a fight forms no part of the overt act of the fight itself. And under the logic of this eminent judge, it could in no sense be held that the going down the road of the appellant with the deceased was a part of the combat, or an overt act forming a part of the combat.
¶72The foregoing charge of the court is clearly wrong, unless it can be held that the going of the appellant down the road with the deceased *172 constituted an overt act, and a part of the combat. I am clearly of the opinion that it can not be so regarded. The charge of the court complained of was error upon which the case should be reversed.
¶73In the opinion in this case Judge Ramsey uses this language: "It may be true that where there is a mere agreement to fight with the fists, followed by no subsequent acts in furtherance thereof, and thereafter one of the parties to the quarrel assaults his adversary with a deadly weapon, that the party so assaulted would, in the law, be allowed to protect himself, and claim his perfect right of self-defense."
¶74The right of self-defense is not settled in the language used. It would seem under Judge Lumpkin's opinion in the case cited, supra, that one agreeing and intending only to fight a fist fight, and going with the party to the quarrel to the place of the fight, does not lose his right of self-defense if his adversary changes his opinion and makes a deadly assault. The language in the opinion in this case last above quoted, "followed by no subsequent act in furtherance of such agreement," too broadly states the restrictive limitations upon the right of self-defense.
¶75The following portion of the opinion affirming this case is attacked by appellant in his motion for a rehearing, to wit:
¶76"Again, special objection is made of so much of the 34th paragraph of the court's charge above quoted as instructs the jury that if after the parties had gone some distance, they stopped, `and the defendant decided to abandon the combat and the agreement to have a combat, and so stated to the deceased, and started to turn and leave the deceased, and the deceased then struck or attacked the defendant with the stick,' and that in defense of himself against such attack the defendant killed the deceased, or they had a reasonable doubt the killing occurred under such circumstances, that he would be justified. This charge is complained of because if appellant had abandoned the combat or agreement to have a combat his right of self-defense would be perfect, and he would not be required to notify deceased of such abandonment or to start to turn and leave before his right of self-defense would be perfect. In determining the accuracy of every charge the court should always do so with reference to the facts of the case, and consider the charge of the court as a whole. As will appear from the statement of the case given above, appellant testified that he told deceased that if he wanted to do what was right there would be no trouble, and deceased then asked him what he wanted him to do, and that he told him he wanted nothing except for him to keep his calves out of the field; that deceased said he was perfectly willing to do that, and thereupon appellant said, `When he told me that I then said to him that I was in a hurry and turned and shut up my knife and put it in my pocket and started to walk off,' and that when he made a step to the edge of the road that he struck him *173 with a big stick. It will be noted, therefore, that the charge of the court follows accurately and almost literally the testimony of appellant, and submits the issue of abandonment as stated by him. The charge is to the effect that if the jury should find, not that he had in fact abandoned the difficulty, but if he had decided to abandon the combat and agreement to have a fight and so stated to the deceased and started to turn and leave him, and deceased then struck him, that his right of self-defense would be perfect. We can imagine many cases where this charge would be erroneous. Where there has been in fact an abandonment of a prior agreement of mutual combat, it is not, we think, essential that one's adversary must, at the peril of his life be notified of such abandonment, but where, as in this case, the evidence of abandonment raises the issue not only of a decision so to do, of notice of that fact, and of a step taken to leave the presence of such adversary, and the issue is submitted, applying the law directly to the facts of the case, we can not concede that such charge is error. It would perhaps have been better if the court in this case had instructed the jury that if notwithstanding they believed that there had been an agreement for mutual combat, if appellant had abandoned same, that his right of self-defense would not be impaired. Still we think where the court does submit the very facts of the case to the jury that it can not be said, if error, to be such error as would either justify or require this court to reverse the case. Indeed, it might be claimed with some reason that the jury would better understand and comprehend such charge where given than one that abstractly or generally submitted the issue."
¶77The opinion then quotes from the Welch case, 122 S.W. Rep., 880, in support of the conclusion reached, that quotation being as follows: "It will thus be seen that under this instruction, if the jury believed or had a reasonable doubt in their minds, that while appellant and deceased were discussing the matter about the purchase of a pistol, appellant took out his money purse, and thereupon deceased grabbed same, or knocked it out of his hands, and thereupon the defendant remonstrating with or asking him (deceased) what he meant, the deceased rushed upon the defendant and struck him with a knife, and appellant immediately ran to his horse, seized his gun and shot and killed Tanner, then in case the jury should so find, or if they had a reasonable doubt that such were the facts, or as to the fact that deceased so attacked defendant with a knife, they would acquit him. This charge applies the very facts relied upon by appellant. . . . We think the charge, when examined and measured by the facts in evidence, contained such a submission of the case that the jury could not have misunderstood appellant's rights, and could not have been misled thereby, but on the contrary, when tested in its entirety, stripped of all legal phraseology, in a plain matter of fact way, directed the jury that if appellant took his money purse out of his pocket, and deceased grabbed at it or knocked it out of his hands, *174 and when appellant remonstrated with him, and asked him what he meant, deceased rushed upon him with a knife, and appellant immediately ran to his horse, seized his gun and shot and killed Tanner, he should be acquitted."
¶78The opinion in this case then concludes as follows: "The testimony of abandonment in this case all rested on and was raised by appellant's testimony. His testimony raised the issue of their settlement of their differences; his testimony, and his alone, raised the issue that he said to Snider that he was in a hurry, and his testimony, and his alone, raised the issue that he turned, shut up his knife, put it in his pocket, and started to walk off. It is wholly unlikely that the jury would have believed one of these statements without believing the other, and where the defensive matters are submitted almost in the language of the evidence raising the defense, it would seem to be sufficient."
¶79Appellant insists that the Welch case, supra, does not support the conclusion reached in this, that the Welch case did submit all of the facts to the jury, and that the 34th paragraph of the charge of the court did not submit all of the facts to the jury in this case, upon which the issue of abandonment of the agreement to fight was presented by the evidence, but arbitrarily and erroneously restricted said issue of abandonment to the time after Riley had driven past and upon the testimony of the defendant as follows:
¶80"After Riley had passed I told the deceased that if he wanted to do what was right, we would not have any trouble. He then asked me what I wanted him to do, and I told him I did not want anything except that he keep the calves out of the field. He then said he was perfectly willing to do that, and when he told me that I then stated to him that I was in a hurry, and turned and shut up my knife and put it in my pocket and started to walk off. As best I can recollect, I made a step to the edge of the road, when he struck me with that big stick."
¶81Appellant insists that the issue of abandonment arose under other phases of the evidence than that submitted in the charge of the court in the 34th paragraph, namely:
¶82That the deceased was greatly the physical superior of the appellant; that they walked down the road side by side, about 200 yards, the deceased unarmed, the appellant armed with an open knife in his right hand, and stopped in the road with a stick between them, which the deceased started to pick up, when appellant told him not to do that.
¶83That it was not essential to abandonment that the appellant so state to the deceased. That under said evidence the disparity in the size of the men, the distance traveled, the fact that no attack was made by the appellant, although armed, and the deceased unarmed; and that in the light of the statement made to the deceased by appellant, that he did not want to hurt him, if he would behave himself, *175 but that he did not want deceased to hit him with that stick, raised the issue of abandonment prior to the time restricted in the charge as stated in the opinion, and which was supported by the testimony of Riley as well as that of the defendant.
¶84In the case of Pace v. State, 61 Tex.Crim. Rep., 135 S.W. Rep., 381, this court said: "It is not the province of the court to decide what issues of fact suggested during the trial shall be submitted to the jury. Wherever there is an issue in a case made by the testimony, the law applicable thereto should be given by proper instruction. The court may not believe the testimony, but this would be immaterial. Under our laws the jurors are the judges of the facts, the weight of the testimony and the credibility of the witnesses.
¶85"It is the province of the court to submit the law on these issues to the jury. The court can not directly or indirectly say to the jury that the testimony on one phase of the case is not to be credited, and another phase is to be believed. The jurors are the judges of these matters."
¶86This holding has been the unbroken line of decisions in this State. An examination of the Welch case, 57 Tex. Crim. 111, supra, shows that all of the facts were submitted by the court in its charge. If, therefore, the issue of abandonment in this case was raised by any other facts or phase of facts than presented in the charge of the court, or disclosed in the opinion, then the Welch case would not be authority sustaining the opinion herein rendered, or of the said charge complained of.
¶87I am of opinion that the contention of appellant is correct on the issue of abandonment raised in the facts contended for by appellant as hereinbefore set forth, and that the charge was erroneous in restricting said issue to the particular facts selected and presented in the charge of the court. It is the province of the jury to pass upon said issue of abandonment in the light of all the evidence.
¶88Especially cogent is the suggestion that the issue of abandonment was raised, when appellant said to deceased in the presence of Riley, "I won't put up my knife; I don't want to hurt you if you will behave yourself, but I don't want you to strike me with that stick." This language clearly implies that the appellant stood only upon the defensive; that it was not his purpose to fight unless in protection of himself.
¶89The charge of the court excluded this, and all preceding conduct of the parties from the consideration of the jury, by confining the issue of abandonment to a subsequent time above stated in the charge and the opinion, and in effect thereby told the jury that what occurred before would not constitute abandonment, and rested the issue of abandonment solely upon the testimony of the defendant.
¶90What occurred in the presence and hearing of Riley, showing that appellant did not want to hurt the deceased, etc., was consistent with the theory of abandonment, if any agreement to fight existed, and *176 consistent with the facts upon which said issue of abandonment was submitted in the charge, and greatly strengthened the issue of abandonment.
¶91The charge was upon the weight of the evidence, and to the erroneous hurt of appellant.
¶92A reexamination of the court's charge upon self-defense sustains the appellant's contention as to the error therein. It is true that the charge on self-defense instructed the jury to view the appearance of danger and the facts and circumstances from the standpoint of defendant. But nowhere do any of the charges instruct that the appearance of danger must be viewed from the standpoint of the defendant at the time of the homicide.
¶93The contention of appellant as to the error in said charge can be characterized by a quotation from the Bell case, 20 Texas Crim. App., 445, wherein Judge Hurt, speaking for the court, said:
¶94"But to whom must the appearance of danger, . . . apprehension of the party killing, . . . reasonably appear? To the jury after they have heard all of the evidence, after ascertaining the real facts, a great many of which may not, could not, and doubtless were not known to the defendant at the time of the killing? Or must the real or apparent danger appear to the defendant at the time of the homicide, to be reasonable? We think the latter is correct.
¶95"Each juror must place himself in the position of the defendant at the time of the homicide, and determine from all the facts as they appeared to the defendant at the time of the killing, whether his apprehension or fear of death or serious bodily harm was reasonable; if so, they should acquit.
¶96"We think the appellant is correct in his criticism of the charge upon manslaughter. The court charged the jury that adequate causes for manslaughter were as follows, to wit: `An assault and battery by the deceased, causing pain and bloodshed. Serious person conflict in which great injury is inflicted by the person killed, by means of weapons or other instruments of violence, or by means of great superiority of personal strength.'" Serious bodily injury by the charge is made grounds of self-defense; whereas, great injury inflicted in a serious personal conflict, was made adequate cause for manslaughter. The statute provides that pain or bloodshed is adequate cause for manslaughter, and further provides as adequate cause for manslaughter the following:
¶97"A serious personal conflict, in which great injury is inflicted by the person killed by means of weapons or other instruments of violence, or by means of great superiority of personal strength, although the person guilty of the homicide were the aggressor; provided, such aggression was not made with intent to bring on the conflict and for the purpose of killing."
¶98Great and serious injury creating apprehension of death, or constituting serious bodily injury, under the law, is made self-defense. *177
¶99The charge of the court did not clearly, succinctly and definitely present the issue of manslaughter, and to say the least, whether said charge would constitute reversible error standing alone, yet it was misleading, and may have contributed to the infliction upon the defendant of the maximum penalty of five years for manslaughter. Wherever this is the case, it has been held by this court, that such error will require a reversal of the conviction.
¶100I have discussed the case under the preceding views expressed, upon the assumption of the existence of the issue of mutual combat. It may be seriously questioned as to whether such issue is in the case. The theory of mutual combat is based upon the following language of the parties, the deceased saying: "Damn you, I can whip you," and appellant replying, "If you think so come on down the road."
¶101There is a broad distinction between an agreement to fight and a refusal to be whipped. Under the record it nowhere appears that appellant could be held as provoking the difficulty, or doing anything as the aggressor in the conflict, resulting in the death of the deceased. I do not think that the issue of mutual combat is in the case. But, without reference to my views upon that subject, upon the assumption that the issue of mutual combat is in the record, the charge upon said issue was clearly erroneous.
¶102For the reasons herein given, I think the judgment should be reversed and the cause remanded.