¶11. We have granted a new trial in this case upon its substantial merits. The law of it is simple. What constitutes a case of mutual combat is very well settled by the authorities, and need not be here repeated. When, however, two persons by agreement go out to have “ a fair fight ” without weapons, and when they reach the place of combat, one only of them adheres to the purpose of having a fight of this kind, and the other abandons this purpose and forms and manifests an intention *437to 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 thus made imminent. Indeed, strictly speaking, no person ought to enter into an agreement to go out and have a fight of any kind : but certainly, one who bargains for an old-fashioned “ fist and skull fight” 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, and the other party in good faith declines going into it and seeks to withdraw from it, he may then stand upon his defense and justifiably use whatever force may be necessary to protect himself.
¶22. After a very careful examination of the record, we have reached the conclusion that neither the evidence nor the prisoner's statement in the case now under consideration warranted a 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. It seems quite clear that Barton "was willing to have 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, and did not use his pistol until it became absolutely necessary to do so in order to protect himself from the consequences of a murderous assault which Nasworthy was actually making upon him.
¶3While we are loath to disturb the verdicts of juries, we cannot, in the view we entertain of this case, allow the conviction of Barton for voluntary manslaughter to stand. Judgment reversed.