nese of their signatures; and the supreme testatrix, signed the will, or acknowledged it court said that "the presumption arising to be her act and deed; but other witnesses from the attestation and the attesting clause, were produced, and their testimony "proved" to the effect that it was subscribed by the that the woman who acknowledged to Fitzwitnesses in the presence of the testator, is gerald that the signature to the will was her not overcome by proof. Hence the instru- act and deed was the testatrix, and such ment was properly probated as the last will proof was deemed competent and sufficient, and testament of Peter O'Hagan." See also, in connection with the testimony of the subto the same effect, note to Welch v. Welch scribing witness, to sustain the will. It is (Ky.) 15 Am. Dec. 126; Ela v. Edwards, 16 manifest this court did not then understand Gray, 91; Pate v. Joe, 3 J. J. Marsh. 116; that it could only be proved by the testiClarke v. Dunnavant, 10 Leigh, 13; Griffith mony of the subscribing witnesses that the v. Griffith, 5 B. Mon. 511; Lamberts v. Coop- testatrix acknowledged to the subscribing er, 29 Gratt. 61; 29 Am. & Eng. Enc. Law, witnesses that the instrument purporting to pp. 199 et seq. The rule seems to have been be her will was her act and deed. the same in England both before and after the passsge of the act 1 Vict. chap. 26, in 1838. 1 Jarman, Wills, chap. 6.

Nor do we think the interpretation claimed must be given to the language in question in order to harmonize the view adopted in this case with the principle which was accepted in Crowley v. Crowley, 80 Ill. 469. In that case we said (p. 470): "It cannot be claimed that the testimony of the subscribing witnesses to the will was sufficient to admit the instrument to probate. Neither of the witnesses had written his signature to the document, but each had signed by a cross, and they could not identify the instrument of writing as the one they had attested, nor could the witnesses testify that Daniel Crowley was, at the time the instrument of writing was executed, of sound mind and memory.

It is, however, insisted this view cannot be harmonized with the declaration of this court in Dickie v. Carter, 42 Ill. 376; Crowley v. Crowley, 80 Ill. 469, and Canatsey v. Canatsey, 130 Ill. 397. The first of these cases enumerated four things which it was declared must concur to entitle a will to probate, one of such things being stated as follows: "Two witnesses must prove that they saw the testator or testatrix sign the will in their presence, or that he or she acknowledged the same to be his or her act and deed." The later cases cited adopt the language of the former case as expressive of the true rule. It is The evidence of the attesting witcontended the true interpretation of this nesses failed entirely to establish two very language so employed by the court in Dickie important facts: First, the execution of the v. Carter, 42 Ill. 376, and quoted with ap- will, as they could not identify it as the one proval in the later cases, is that it must be they signed as witnesses; second, they could "proved" by at least two subscribing witness- not swear they believed the testator to be of es to the will that they saw the testator or sound mind and memory when the instrument testatrix sign said will or that it must be was executed. So far, then, as appellant re"proved" by said two subscribing witnesses lied upon the evidence of the attesting witthat the said testator or testatrix acknowl-nesses to establish a state of facts under edged the will to be his or her act and deed. which the circuit court could admit the inIt is manifest such was not the interpreta-strument of writing to probate, he failed ention which this court intended should be given to the language in question in Dickie v. Carter, 42 Ill. 376 (the case in which the language was first employed), for the reason that in that case the will was held to have been legally and duly proved though one of the two subscribing witnesses thereto did not see the testatrix sign the will, and could not swear the testatrix acknowledged to him that the will was her act and deed. In that case the attestation clause bore the names of two subscribing witnesses, viz., George S. Pidgeon and one Fitzgerald. The witness Pidgeon testified that he drew the will and that the testatrix signed it in his presence. Fitzgerald, the other subscribing witness, testified that he did not know the testatrix and did not see her sign the will; that he was in an office in Cairo, and the other attesting witness asked him to witness a paper; that he saw a lady in the office, and asked her, "Is this your signature?" and she answered, "Yes," whereupon he signed as a witness; that there were two women in the office, both unknown to him; that he did not know the woman he addressed, never saw her before or since, and did not know he was witnessing a will. This witness did not and could not "prove" that Mrs. Elizabeth Burnett, the

tirely. It is, however, urged that as probate of the will was refused in the county court, on the trial of the appeal in the circuit court appellant was entitled, under § 13, chap. 148, of 'Wills,' to prove the will by any evidence competent to establish a will in chancery. The statute authorizes such proof on the trial of an appeal in the circuit court in a case where probate of the will was denied in the county court, and it was expressly held in Andrews v. Black, 43 Ill. 256, in such a case, for the purpose of establishing the sanity of the testator, resort might be had to the same character of evidence as upon a hearing of a bill in chancery, filed under the statute, to set aside the will. Appellant was not, therefore, bound to rely upon the testimony of the two attesting witnesses to establish the execution of the will or the sanity of the testator, but could resort to any legitimate evidence to establish the fact." The opinion then proceeded to show that, aside from the testimony of the subscribing witnesses, the only legitimate evidence produced which could be relied upon to establish the execution of the will was the testimony of the scrivener who drew the will, who testified that the alleged maker of the will executed it in the presence of the two attesting

witnesses. It was insisted that the evidence | vised Statutes, entitled "Wills," provides of the scrivener was sufficient to establish that "the certificate of the oath of the witthe execution of the will, but we held that nesses at the time of the first probate shall the requirement of the statute that the evi- be admitted as evidence" on the hearing of a dence of two witnesses should be required to bill in chancery to contest a will. There was, establish that a testator executed a will could however, no first probate. The appeal and not be satisfied by the uncorroborated testi- the dismissal of the application by the appelmony of the scrivener. In that case proof of lant blotted out the order of the county court a valid and sufficient clause of attestation admitting the instrument to probate. Therewas wholly lacking. The attesting witness-fore the statute cited cannot operate to renes were unable to identify the will or the at-der the certificates admissible. The certifitesting clause, and the extent of the ruling cates tended, however, to contradict, in some was that the testimony of the scrivener alone degree, the testimony given by the subwas not sufficient to supply the proof de- scribers thereto on the hearing. We think manded by the statute to establish the exe- the certificates were, for this reason, comcution of the will. In the case at bar the at-petent to be received in evidence, together testing witnesses established that the attest- with the testimony of the subscribers thereto ing clause bore their genuine signatures. The as to the facts and circumstances which atsignature of the deceased was also fully es- tended the signing of the same. It is true tablished. The defect in the proof was that the appellant introduced the witnesses before the attesting witnesses were unable to re- the court for the purpose of having them collect the facts connected with the action of testify in her behalf; but the well-known the deceased and their action at the time general rule that a party who produces witthey signed the attesting clause. In such nesses vouches for their integrity and credistate of case, we think the attesting clause bility, and cannot be allowed to impeach and competent to be received in evidence, and to discredit them, has not full application where be given such weight as it may be found prop- the law requires the party shall produce such erly to have in connection with the testi- witnesses in the cause. Under 2 of our mony of the attesting witnesses. statute of wills a party who desires a will to be admitted to probate must of necessity produce the subscribing witnesses, if living and within the jurisdiction of the court and sane, as witnesses in the probate court; and such party, on appeal from an order refusing to so admit the alleged will, is not relieved, by the provisions of the 13th section of the same statute, from the duty of laying before the circuit court the testimony of the subscribing witnesses, though such last-mentioned section authorizes such party to produce other testimony in addition to that of the subscribing witnesses. As to a witness whom a party is required by law to introduce, the rule is that the truthfulness and integrity of the witness is not vouched for, and that the party so producing the witness may bring forward proof of previous declarations at variance on material points with his tes timony, for the purpose of impeaching him or contradicting his testimony on such points. 29 Am. & Eng. Enc. Law, p. 816, and cases cited in note 1.

In Canatsey v. Canatsey, 130 Ill. 397, the expression of the court in Dickie v. Carter, 42 Ill. 376, is quoted, but neither the conclusion reached, nor any observation of the court in the course of the opinion, is antagonistic to the position assumed in the case

at bar.

It appears a prior application had been made to the county court of Hancock county by the appellant to have the will under consideration admitted to probate, and that the attesting witnesses then signed and made oath to certain affidavits relative to the execution of the will. The county court then admitted the will to probate, but an appeal was prosecuted to the circuit court, and the appellant dismissed the proceeding before it was reached for hearing in the latter court. Whether the certificates of the oaths of said witnesses were competent to be received in evidence in the present proceeding is a question discussed in the briefs, and which we ought to determine, in view of the fact that the cause must be again tried. The circuit court deemed the certificates or affidavits of such witnesses competent to be received in

evidence.

The 7th section of chapter 148 of the Re45 L. R. A.

Because of the error of the chancellor hereinbefore indicated, the order and decree of the Circuit Court must be reversed, and the cause remanded for further proceedings consistent with the views herein expressed.

TENNESSEE SUPREME COURT.

fendant shot and killed Stanton Malone on returned. He brought back with him a the 25th of December, 1893, no one witness- double-barreled shotgun, which he left at ing the killing but the participants. Ma- the barn, and afterwards he and deceased lone made a dying declaration as to how the went to the barn where the difficulty and killing occurred, and defendant testified as a shooting occurred. At whose instance they witness for himself. It is sufficient to say of went to the barn is a matter of controversy, the versions given by these two that Malone's the parties giving different versions of this. declaration made it an unlawful, and de- But however that may be is not now matefendant's a lawful, killing. Malone, whom rial to be considered, inasmuch as defendant, the record shows to have been a lewd and in either aspect of the fact, has a right to a lascivious man, had insulted the sister of de- correct charge. The theory of the state was fendant by an indecent proposal, the exact that there was no defense, or need for determs of which are much controverted, but fense, on the part of defendant, who was the fact itself is not disputable. He had im- never at any time assaulted or menaced by mediately gone to the brother, and had words overt act of deceased, and that there was no with him about it, during which, as decedent question of self-defense in the case; and claims in his dying declaration, he asked the further that, whether defendant was so asbrother to go and see her, and fix the matter saulted or menaced by deceased, defendant up. This conversation occurred at William brought on the difficulty, and therefore could Foutch's, where deceased remained for din- not rely on the plea of self-defense. On the ner. Defendant went to see his sister, and contrary, defendant insisted that he did not for his own safety, that he should take life or State, 88 Ala. 4, 7; Kirby v. State, 89 Ala. 63, do serious bodily harm, then the law imputes 71, 72. to him his own wrong and its consequences to the extent that they may and should be considered in determining the grade of offense which, but for such acts, would never have been occasioned.

It is a general maxim of the law that no man can take advantage of his own wrong; and the general rule founded upon this maxim, and applicable in all cases in which the accused seeks to set up the plea of self-defense, may be stated as follows:

In order that a prisoner in a criminal prosecution for homicide may successfully plead that his acts were justifiable upon the ground of selfdefense, he must not be the aggressor, he must not bring on or encourage the difficulty, or produce the occasion which makes it necessary for him to commit the homicide or inflict the injury and unless he successfully proves that he is without fault and is not the aggressor, and did not bring on or provoke the difficulty, or produce the occasion, he has no perfect right of self-defense, and his plea of self-defense will avail him nothing. In other words, the right of self-defense does not imply the right of attack. To this rule, however, there are some exceptions, as will appear upon reference to IX. infra.

The rule as above stated is supported by the following authorities arranged in order of states:

Alabama.

Myers v. State, 62 Ala. 599, 603; Cross v. State, 63 Ala. 40, 48; Ingram v. State, 67 Ala. 67, 72; Bain v. State, 70 Ala. 4, 7; Wills v. State, 73 Ala. 363, 366; McDaniel v. State, 76 Ala. 1, 7; Tesney v. State, 77 Ala. 33, 40; Harrison v. State, 78 Ala. 5, 12; Baker v. State, 81 Ala. 38, 40: Brown v. State, 83 Ala. 33; Jordan v. State, 81 Ala. 20, 32; Blackburn v. State, 86 Ala. 595, 598; Cleveland v. State, 86 Ala. 1, 9; Rutledge v. State, 88 Ala. 85, 89; Zaner v. State, 90 Ala. 651; Keith v. State, 97 Ala. 32, 34; Garrett v. State, 97 Ala. 18; Johnson v. State, 102 Ala. 1, 19; Crawford v. State, 112 Ala. 1, 28; Dabney v. State, 113 Ala. 38, 42; Henson v. State (Ala.) 25 So. 23, 25; De Arman v. State, 71 Ala. 351, 362; Dolan v. State, 81 Ala. 11, 17; Lewis v. State, 88 Ala. 11; Nabors v. State (Ala.) 25 So. 529, 531: Leonard v. State, 66 Ala. 461, 464: Storey v. State. 71 Ala. 331, 336; Eiland v. State, 52 Ala. 322, 328: Webb v. State, 100 Ala. 47, 53; Kimbrough v. State, 62 Ala. 248, 251: Watkins v. State, 89 Ala. 82, 89; Parker v.

Arizona.

Foster v. Territory (Ariz.) 56 Pac. 738, 739.
Arkansas.

Johnson v. State, 58 Ark. 57, 64; Magness v.
State, 67 Ark. 594, 50 S. W. 554; Roberson v.
State, 53 Ark. 516, 518.
California.

People v. Kennett, 114 Cal. 18; People v. Roemer, 114 Cal. 51; People v. Herbert, 61 Cal. 544, 547; People v. Westlake, 62 Cal. 303; People v. Lamb, 17 Cal. 323; People v. Travis, 56 Cal. 254; People v. Simons, 60 Cal. 72; People v. Gonzales, 71 Cal. 569; People v. O'Brien, 78 Cal. 41, 47; People v. Hecker, 109 Cal. 451, 30 L. R. A. 403.

Colorado.

Bush v. People, 10 Colo. 566, 574; Boykin v.
People, 22 Colo. 496.
Delaware.

State v. Talley, 9 Houst. (Del.) 417, 424; State v. Warren, 1 Marv. (Del.) 487, 490, 491. Florida.

Padgett v. State (Fla.) 24 So. 145, 147.
Georgia.

Stiles v. State, 57 Ga. 183, 188; Haynes v.
State, 17 Ga. 465, 484; Lingo v. State, 29 Ga.
470, 484; Roach v. State, 34 Ga. 78, 85.
Illinois.

Wilson v. People, 94 Ill. 299; Hulse v. Tollman, 49 Ill. App. 490, 495; Adams v. People. 47 Ill. 376, 379; Kinney v. People, 108 Ill. 519, 526. Indiana.

Runyan v. State, 57 Ind. 84, 26 Am. Rep. 52; Barnett v. State, 100 Ind. 171, 174, 176; Kingen v. State, 45 Ind. 518, 521; Presser v. State, 77 Ind. 274; Story v. State, 99 Ind. 413, 415; Wall v. State, 51 Ind. 453; Deilks v. State, 141 Ind. 26; Hittner v. State, 19 Ind. 48, 52; Deal v. State, 140 Ind. 354, 362.

Iowa.

State v. Perigo, 70 Iowa, 657; State v. Stanley, 33 Iowa. 526, 532; State v. Neeley, 20 Iowa, 109, 115; State v. Benham, 23 Iowa, 154, 72 Am. Dec. 417, 420. Kansas.

State v. Rogers, 18 Kan. 78, 26 Am. Rep. 754, 759; State v. Rose, 30 Kan. 501. Kentucky.

Oakley v. Com. 10 Ky. L. Rep. 885; Caskey v. Com. 15 Ky. L. Rep. 257, 258; Godfrey v. Com. 15 Ky. L. Rep. 3; Crane v. Com. 12 Ky. L. Rep. 161, 162: Massie v. Com. 16 Ky. L. Rep. 790, 793: Turner v. Com. 89 Ky. 78, 82: Logsdon v. Com. 19 Ky. L. Rep. 413, 414: Com. v.

bring on the difficulty, and that he acted in | is killed, it will not be murder, let the result self-defense, but that if he were in any fault, be what it may." But "if one provokes a or such an aggressor, it could not preclude combat, or produces the occasion to kill, and him from relying on the plea of self-defense, kills his adversary, it is murder, no matter inasmuch as, pending their difficulty, how-to what extremity he (the slayer) may have -ever it originated, defendant menaced him been reduced in the combat." with such vert acts of violence as threatened his life, or great bodily harm, and he then shot in self-defense, as he might lawfully do. These were the respective theories of the state and defendant, supported by evi-dence tending to show the facts as each side claimed them to have existed. Under these circumstances, and upon these facts, the cir-cuit judge charged, among other things, as follows: "If a party brings on a quarrel, with no felonious intent or malice, or premeditated purpose of killing or doing bodily harm, and a difficulty results, in which the person with whom he brought on the quarrel Hourigan, 11 Ky. L. Rep. 509; Bohannon v. .Com. 8 Bush, 481, 8 Am. Rep. 474, 479; Hasson v. Com. 10 Ky. L. Rep. 1054; Com. v. Barnes, 13 Ky. L. Rep. 163: Allen v. Com. 86 Ky. 642, and 10 Ky. L. Rep. 582.

The first proposition is not technically accurate. The judge should have said: “If a party brings on a quarrel with another, with no felonious intent or malice, or premeditated purpose to kill or do great bodily harm, and a difficulty results, in which the person with whom he brought on the quarrel assaults the provoking party, or by overt act so menaces him as to endanger his life or threaten him with great bodily harm, or so as to induce the belief of the party thus assailed or menaced that he was in danger of death or great bodily harm, and upon reasonable grounds, and he thereupon kills his assail

Ohio.

Martin v. State, 17 Ohlo C. C. 406.
Oregon.

State v. Hawkins, 18 Or. 476, 487.
Pennsylvania.

Logue v. Com. 38 Pa. 268, 80 Am. Dec. 481;
Com. v. Hare, 2 Clark (Pa.) 257.
Rhode Island.

State v. White, 18 R. I. 473, 480.
South Carolina.

State v. Merriman, 34 S. C. 40, 42; State v. Jacobs, 28 S. C. 36; State v. Beckham, 24 S. C. 283. 285; State v. Jackson, 32 S. C. 27, 30;

State v. Tripp, 34 Minn. 26; State v. Shippey, State v. Wyse, 33 S. C. 583, 594; State v. 10 Minn. 223, 88 Am. Dec. 70, 73. Mississippi.

Wesley v. State, 37 Miss. 327, 75 Am. Dec. 62; Helm v. State, 67 Miss. 562, 574; Thomas v. State, 61 Miss. 60, 67; Long v. State, 52 Miss. 23; Prine v. State, 73 Miss. 838; Thompson v. State (Miss.) 9 So. 298. Missouri.

State v. Kloss, 117 Mo. 592, 603; State v. Starr, 38 Mo. 270, 275; State v. Eaton, 75 Mo. 586. 592; State v. Hudson, 59 Mo. 135, 138; State v. Maguire, 69 Mo. 197, 200; State v. McDaniel, 94 Mo. 301; State v. Jones, 78 Mo. 278, 285; State v. Rose, 92 Mo. 201, 207; State v. Bryant. 102 Mo. 24; State v. Hickam, 95 Mo. 322, 327, 331; State v. Underwood, 57 Mo. 40, 50; State v. Brown. 63 Mo. 439, 443, 64 Mo. 367, 373; State v. Linney, 52 Mo. 40, 41: State v. Talmage, 107 Mo. 545, 558; White v. Maxcy, 64 Mo. 552: State v. Parker, 96 Mo. 382, 393; State v. Johnson, 76 Mo. 121, 126; State v. Hardy, 95 Mo. 455, 457; State v. Thomas, 78 Mo. 327, 340; State v. Christian, 66 Mo. 138, 146; State v. Shoultz, 25 Mo. 128, 153: State v. Peak, 85 Mo. 190, 192; State v. Hays, 23 Mo. 287; State v. Packwood, 26 Mo. 340; State v. Gilmore, 95 Mo. 554; State v. Vansant, 80 Mo. 67, 69, 79: State v. Rapp, 142 Mo. 443, 448; State v. Hicks, 92 Mo. 431, 435; Jones v. Gale, 22 Mo. App. 637, 638; State v. Gamble. 119 Mo. 427. 432; State v. Rider, 90 Mo. 54; State v. Hopper, 142 Mo. 478 483: State v. Herrell, 97 Mo. 105. 109; State v. Culler, 82 Mo. 623; State v. Lewis, 118 Mo. 79; State v. Crawford, 115 Mo. 620. New York.

People v. Cole, 4 Park. Crim. Rep. 35, 38; People v. Lamb. 2 Keyes. 373; Patterson v. People, 46 Barb. 625: People v. Sullivan, 7 N. Y. 396; People v. McLeod, 1 Hill, 377, 25 Wend. 483, 37 Am. Dec. 328, 350.

North Carolina.

State v. Bryson. 60 N. C. (2 Winst. L.) 86; State v. Brittain, 89 N. C. 481, 500.

Petsch, 43 S. C. 132.
Tennessee.

Rogers v. State, 95 Tenn. 448, 453; Rippy v. State, 2 Head, 217 Chambers v. Porter, 5 Coldw. 273, 282; Turner v. State, 89 Tenn. 547.

Texas.

Hollis v. State, 8 Tex. App. 620, 623; Levy v. State, 28 Tex. App. 203, 211; Gilleland v. State, 44 Tex. 356, 361; Sullivan v. State, 31 Tex. Crim. Rep. 486, 488; Meuly v. State, 26 Tex. App. 274; Reed v. State, 11 Tex. App. 309, 518, 40 Am. Rep. 795; Childs v. State (Tex. Crim. App.) 22 S. W. 1039; Coleman v. State (Tex. Crim. App.) 25 S. W. 772; Roberts v. State. 30 Tex. App. 291, 306; Carter v. State, 30 Tex. App. 551; Thumm v. State, 24 Tex. App. 667, 701; Wilson v. State (Tex. Crim. App.) 36 S. W. 587, 588; King v. State, 13 Tex. App. 277, 282; Brazzil v. State, 28 Tex. App. 584; Green v. State, 12 Tex. App. 445, 449; Beard v. State (Tex. Crim. App.) 29 S. W. 770, 771: Williams v. State, 25 Tex. App. 216. 225 Habel v. State, 28 Tex. App. 588; Frank lin v. State, 30 Tex. App. 628, 641; Lee v. State, 21 Tex. App. 241; Crist v. State, 21 Tex. App. 361, 367: White v. State, 23 Tex. App. 154, 164; Thuston v. State, 21 Tex. App. 245, 248; Carter v. State, 37 Tex. Crim. Rep. 403; Saens v. State (Tex. Crim. App.) 20 S. W. 737 ; Varnell v. State, 26 Tex. App. 56, 67, Betris v. State, 34 Tex. Crim. Rep. 387. 391; Alexander v. State, 25 Tex. App. 260, 266: Allen v. State, 24 Tex. App. 216, 224; Peter v. State, 23 Tex. App. 684, 687; Bonnard v. State, 25 Tex. App. 173, 197 Cunningham v. State. 17 Tex. App. 89, 96; Stacey v. State (Tex. Crim. App.) 33 S. W. 348: Gonzales v. State, 28 Tex. App. 130, 126; Logan v. State, 17 Tex. App. 50: Rider v. State. 26 Tex. App. 334, 341. Virginia.

Hash v. Com. 88 Va. 172; Honesty v. Com. 81 Va. 283, 298: Gaines v. Com. 88 Va. G82,