den and perilous that no opportunity be given to decline or to make known to his adversary his willingness to decline the strife, if he can not retreat with safety, then as the greater wrong of the deadly assault is upon his opponent he would be justified in slaying forthwith in self-defense. People v. Hecker, 109 Cal. 451, -30 L. R. A. 403.

In Gilleland v. State, 44 Tex. 356, there were mutual threats and illfeeling between the parties, and they came together under conditions which showed that they were looking for each other. The plea of self-defense was therefore of no avail. See III., c, supra.

It was also denied in the case of Presser v. State, 77 Ind. 274, 278, where the accused entered into a mutual combat armed with a dan gerous weapon, and struck the deceased therewith when struck by the latter with his fist.

In Harris v. State (Ala.) 26 So. 515, the court held that although the accused might not have done anything to bring about the difficulty, yet she would be guilty of an assault and battery if she struck the prosecuting witness in a mutua! combat, or if she struck a blow after the necessity to strike had passed, and followed and relied upon Howell v. State, 79 Ala. 284.

As to retreat in cases of mutual combat, see Story v. State, 99 Ind. 413, 415, infra, IX. a. VI. Former quarrel induced by deceased.

In some cases the accused has sought to free himself under the plea of self-defense, upon the ground that the quarrel preceding the -one in which the homicide occurred was superInduced by the deceased. In such cases, however, the plea of self-defense will be of no avail where the first quarrel has ended, and there has been a cessation of the conflict, or the de-ceased has withdrawn therefrom, and the subsequent difficulty is provoked or brought about by the accused himself, as he is the aggressor in bringing on or renewing the affray, even though in so renewing the difficulty he has no intention of killing or of doing serious bodily harm. But the rule would be the reverse if there was no cessation from the time the deceased struck the first blow or commenced the difficulty. Bean v. State, 25 Tex. App. 346, 356.

This rule is well exemplified by the cases of Tidwell v. State, 70 Ala. 33, 46, and Stillwell v. State, 107 Ala. 16, 20.

In the former of these cases it is said that if the quarrel in which the assault was made had been quieted, and the parties subsequently came together on friendly terms, and the accused assailed the deceased and killed him, and there was no act or word from the deceased which could impress the accused with any apprehension that he was in peril of life or of grievous bodily harm, the plea of self-defense will be of no avail, and the fact that a former assault was made by the deceased upon the accused is not a fact to be considered as having a tendency to show that the homicide was in self-defense. Tidwell v. State, 70 Ala. 33, 46.

In the latter case after deceased had assaulted the accused the latter picked up a poker with which to return the blow, but was prevented by a bystander and put the weapon down, but, after the deceased had started away and got to the door of the house, the accused again picked up the weapon and followed and struck the deceased over the head therewith and caused his death. The use of the weapon in such a case was looked upon as not merely the result of passion, but of revenge or malice, and the accused was the aggressor ab initio, for the reason that although the deceased was

the first to bring on the quarrel he desisted and retired. Stillwell v. State, 107 Ala. 16, 20.

It is also supported in Hadley v. State, 58 Ga. 309, as follows: And if one is in the place where he has a right to be and to stay, and is unlawfully assaulted with a weapon likely to produce death, and escapes from the place and runs to his dwelling house some 60 yards distant, where he procures a pistol and returns instantly and finds his assailant upon the premises with no weapons, and making no hostile demonstrations, he cannot lawfully shoot at the assailant; and in such a case he will be legally convicted of an unlawful shooting and the plea of self-defense will not avail him.

So. where, after an encounter, the parties separated, and the deceased withdrew and closed himself up in his house, into which the accused subsequently gained admission through a fraudulent statement, and brought about a new encounter in which he killed the deceased, the plea of self-defense was not successful, even though he did not bring about the first difficulty, and was free from fault therein, as he was clearly the aggressor in the second encounter. Drake v. Com. 14 Ky. L. Rep. 677, 678.

And in a case in which there was a conflict In the evidence as to who created the difficulty and fired the first shot, but the undisputed fact showed that there was a passage of angry words between the parties accompanied by a show of violence on the deceased's part and a disclaimer by the accused of certain threatening and abusive language attributed to him by

the deceased, in which the deceased closed the controversy with the reply, "That settles it then," and returned the pistol he had displayed to his pocket and walked off with his back towards the accused, who stopped the deceased before he was out of hailing distance and exclaimed, "We had as well settle this thing now," accompanying the words with a display of a pistol held in both hands which he used with deadly effect, the accused was the aggressor and his plea of self-defense was of no avail as his acts amounted to a renewal of the difficulty after it had been abandoned by the deceased. Allen v. State, 24 Tex. App. 216, 224.

In Mason's Case, 1 East, P. C. 239, the ac cused was indicted and convicted of wilful murder of his brother, and the court held that even blows previously received would not extenuate homicide or deliberate malice and revenge, especially where it was to be collected from the circumstances that the provocation was sought for the purpose of coloring the revenge.

Where the evidence showed that after the accused was shot he proceeded some distance further in the direction of the deceased, and that the latter attempted to use the ax only after the former was shot and had advanced into the house, and the accused knew that the relations between himself and the deceased were such as to warn him that any attempt by him to enter the deceased's residence would be resented or resisted, the charge to the jury should hypothesize the accused's freedom from fault, not only in going to the house, but also in entering therein after he was shot and putting himself in reach of the ax or other weapon used by the deceased, and he was not relieved of the duty to retreat when after being assaulted he advanced into further peril and thereby unnecessarily exposed himself in a position out of which escape with safety was impracticable. Davis v. State, 92 Ala. 20, 28.

As to seeking the deceased for the purpose or intention of provoking, or returning to the place where the deceased is for the purpose of renewing, the difficulty, see II. b, supra.

VII. Burden of proof of freedom from fault.

The rule is that the fault of the accused when shown is an answer to the plea of self-defense, but its existence is not presumed so as to impose on him the burden of its disproof, as it is for the prosecution to prove that he was in fault in the first instance. Gibson v. State, 89 Ala. 121, 127; Keith v. State, 97 Ala. 32, 34; McDaniel v. State, 76 Ala. 5; Brown v. State, 83 Ala. 33; Cleveland v. State, 86 Ala. 1, 9.

It must be shown that the accused sought the difficulty with the deceased, or that he forfeited his right of self-defense by so doing. Tillery v. State, 24 Tex. App. 251, 270, 274.

And if the facts do not show that the accused was the aggressor or trespasser his acts may be justifiable. White v. Territory, 3 Wash. Terr. 397.

The burden of such proof rests upon the state when a case of self-defense is made out by the accused, and if it appears that he was not free from fault in bringing on or provoking the difficulty, the law will not shield him from the consequences of committing a homicide, the result of his own fault, although at the time of the killing there was a pressing necessity to strike in order to save his own life, and there was no mode of escape. Holmes V. State, 100 Ala. 80, 84. In order to make the plea of self-defense available the accused must be without fault, and the court may so charge the jury without any invasion of the rule as to the burden of proof, especially where such phrase is only a part of the charge which clearly and correctly defines the doctrine of self-defense, and does not misplace the burden of proof,-especially when the accused's evidence tends to prove his plea, and that of the state shows that he was in fault in bringing on the necessity for his actions. Wilkins v. State, 98 Ala. 1.

It must be shown that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given. People v. Batchelder, 27 Cal. 69, 85 Am. Dec. 231, 237.

If the accused shows a real or apparent pressing necessity to take life in self-defense, the burden is on the state to show that he was In fault in bringing on or provoking the difficulty, and not on the accused to prove that he did not provoke it, as the state holds the affirmative of these negative propositions. Gibson v State, 89 Ala. 121, 128; Brown v. State, 83 Ala. 33; McDaniel v. State, 76 Ala. 1.

But after the intentional killing of the deceased by the accused has been proved by the prosecution, the burden rests on him to prove a pressing necessity to take life in self-defense, unless the fact arises from the evidence produced against him, and in such cases the onus is upon him to show that he could not safely retreat without apparently increasing his peril. Cleveland v. State, 86 Ala. 2: Lewis v. State, 88 Ala. 11: Gibson v. State, 89 Ala. 121, 127; Nabors v. State (Ala.) 25 So. 529, 531.

In the last-named case the court considered the earlier case of Brown v. State, 83 Ala. 33, in so far as it asserted a different rule, to be overruled by the Cleveland and other later

cases.

The rule as declared in the Cleveland and other cases above cited therewith is further supported by the case of State v. Petsch, 43 S. C. 132.

And in State v. Stanley, 33 Iowa, 526, 532, it is held that the fact that there may have been e change of conduct or action on the accused's approaching the deceased, and that such

change will entitle him to a plea of self-defense, must be proved by him.

VIII. Question for the jury.

The general rule in all cases in which the accused seeks to free himself from liability upon the ground of self-defense is that the fact whether an act done or the words spoken by the party are of a character to provoke a difficulty and did so provoke it is a fact to be considered by the jury, and it is for the jury to consider and determine the question whether the accused acted in self-defense, and also whether from the facts proved he by his own wrongful acts brought about the danger, if any, to himself. Baldwin v. State, 111 Ala. 11: McQueen v. State, 103 Ala. 12; Logsdon v. Com. 19 Ky. L. Rep. 413, 414.

In all cases therefore where the issue is raised as to who provoked the difficulty, the court should lay before the jury the circumstances indicated by the evidence raising the issue of such provocation. Morzee V. State (Tex. Crim. App.) 51 S. W. 250, 251.

And such question must be determined by the jury upon the evidence. State v. Hopkins, 50 La. Ann. 1171, 1172.

And if the evidence shows that the accused returned to the scene of the difficulty and applied opprobrious epithets to the deceased and threatened to kill him in the hearing, although not in the immediate presence, of the deceased. the question what constitutes a wrong which will deprive the accused of the right to plead self-defense should be expounded to the jury without giving undue prominence to specific facts proved or attempted to be proved for the purpose of showing the existence of the wrong. Boner v. Com. 19 Ky. L. Rep. 409, 410.

And if it is questionable which party was in the wrong, it is for the jury to determine from the evidence who was the assailant in the affray which resulted in the death, and the court should not assume that one party or the other was first or chiefly in fault when that fact is in issue. State v. Hatch, 57 Kan. 420, 424.

Where there is testimony that one was the aggressor by using the first provoking remark, and by striking the first blow, and the other evidence conflicts with this, it is for the jury to determine which line of the testimony they believe: and the court, no matter what was the disparity in the number or even in the manner of opposing witnesses, is in no sense charged with the duty of deciding such controverted issue of fact, as it is a question of fact for the jury, and not of law for the court. Gibson v. State, 91 Ala. 64, 69.

In some cases it becomes necessary for the court to explain to the jury the meaning and application of the phrase "wrongful act" where the accused sets up the plea of self-defense, and where it is claimed that he brought on the difficulty by his own actions.

Thus, in Massie v. Com. 16 Ky. L. Rep. 790. 793, in which the accused sought the deceased for the purpose of having a certain charge cleared up, it was held that the term "wrongful act" should have been explained to the jury, and that a charge to the jury which made the meeting in itself an unlawful act, or from which the jury could infer that it was such, was erroneous, and the wrongful act in such a case related to what subsequently transpired at the meeting, and not to the accused's act in seeking the deceased, as such act was not in itself wrongful or unlawful.

And in cases which involve the accused'sright to be in or at, or to go to, a certain place

where he meets the deceased, the jury should | not be charged or instructed generally that if the accused "brought about a meeting" between himself and the deceased, as such instruction would be too general in its language for the reason that it might lead the jury to believe that by so going he "brought about the meeting," and that his act alone deprived him of his right of self-defense, even though they might believe that after his arrival he was in no way or to any extent the aggressor. v. Com. 12 Ky. L. Rep. 161, 162.

IX. The question of withdrawal.

a. In general.

Craze

See, as to withdrawal in cases in which a relative or other party is the aggressor, IV. supra.

Although the general rule of law in all cases in which the accused is the aggressor is as defined in the prior sections of this note, yet it is not of absolute and unmixed application, and the courts admit of exceptions thereto in some

cases.

Thus, even though the accused may in the first instance have intentionally brought on the difficulty and provoked the occasion, yet his right of self-defense will revive, and his actions will be held justifiable upon the ground of selfdefense in all cases where he has withdrawn from the affray or difficulty in good faith as far as he possibly can, and clearly and fairly announced his desire for peace; and in such cases if he is pursued by the other party, who again brings on the difficulty, his right of selfdefense, though once lost, revives, and may be successfully pleaded by him in defense of any action, either civil or criminal, arising out of the occasion, as his actions will be justified even to the extent of taking life if necessary in order to save his own.

The above statement of the law finds support in the case of Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, 473, in the following language: The conduct of the accused, relied upon to sustain the plea of self-defense, must have been so marked in the matter of time, place, and circumstance, as not only clearly to evince the withdrawal of the accused in good faith from the combat, but also such as fairly to advise his adversary that his danger has passed, and to make his conduct thereafter the pursuit of vengeance rather than measures taken to repel the original assault; and when this is made to appear, however criminal the previous conduct of the accused may have been, he cannot be hunted down and his life put in jeopardy, and denied the right to act upon that instinct of self-preservation which spontaneously arises alike in the bosoms of the just and unjust, and the right is not forfeited by previous misconduct. See also Brazzil v. State, 28 Tex. App. 584; Roberts v. State, 30 Tex. Crim. Rep. 291, 306.

For this reason, therefore, it is not true that the right of self-defense can never arise at any stage of a difficulty when one is defending himself against dangers of any kind that he may have unlawfully provoked. Patterson v. State, 75 Miss. 670, 675.

The following cases, arranged in order of states, affirm the above doctrine: Alabama.

Parker v. State, 88 Ala. 4, 7; Stillwell v. State, 107 Ala. 16, 20: Crawford v. State, 112 Ala. 1, 33: Eiland v. State, 52 Ala. 322; Bostic v. State, 94 Ala. 45, 47; Johnson v. State, 58 Ark. 57, 64; Felker v. State, 54 Ark. 489; Aikin v. State, 58 Ark. 544, 550.

|

California.

People v. Miller (Cal.) 57 Pac. 770; People v. Roemer, 114 Cal. 51; People v. Kennett, 114 Cal. 18, 21; People v. Bush, 65 Cal. 129, 133; People v. Simons, 60 Cal. 72; People v. Button, 106 Cal. 628, 28 L. R. A. 591; People v. Batchelder, 27 Cal. 69, 85 Am. Dec. 231, 237; People v. Hecker, 109 Cal. 451, 30 L. R. A. 403; People v. Robertson, 67 Cal. 646, 650; People v. Morine, 61 Cal. 367, 369; People v. O'Brien, 78 Cal. 41, 48; People v. Scott, 123 Cal. 434; People v. Gonzales, 71 Cal. 569; People v. Daniels, 70 Cal. 521, 523; People v. Wong Ah Teak, 63 Cal. 544, 545; People v. Reed (Cal.) 52 Pac. 835, 836; People v. Westlake, 62 Cal. 303. Colorado.

Boykin v. People, 22 Colo. 496, 504. Delaware.

State v. Warren, 1 Marv. (Del.) 487, 490, 491. Florida.

Padgett v. State (Fla.) 24 So. 145, 147; Mercer v. State (Fla.) 26 So. 317. Georgia.

Roach v. State, 34 Ga. 78; Stiles v. State, 57 Ga. 183, 188; McPherson v. State, 22 Ga. 478, 490.

Illinois.

Hopkinson v. People, 18 Ill. 264; Adams v. People, 47 Ill. 376; Greschia v. People, 55 Ill. 295: Kinney v. Peop e, 108 Ill. 519, 526; Gainey v. State, 97 Ill. 271. Indiana.

Hittner v. State, 19 Ind. 48, 52; Deal v. State. 140 Ind. 354, 362; Presser v. State, 77 Ind. 274, 277; Story v. State, 99 Ind. 418, 415. Iowa.

State v. Neeley, 20 Iowa, 109; State v. Stanley, 33 Iowa, 526, 532; State v. Archer, 69 Iowa, 420, 425; Shipley v. Edwards, 87 Iowa, 310. Kansas.

State v. Hatch, 57 Kan. 420, 424; State v. Rogers, 18 Kan. 78, 26 Am. Rep. 754, 759. Kentucky.

Massie v. Com. 16 Ky. L. Rep. 790, 793; Crane v. Com. 12 Ky. L. Rep. 161, 162; Fitzgerald v. Com. (Ky.) 6 S. W. 152; Barnard v. Com. (Ky.) 8 S. W. 444 445; Luby v. Com. 12 Bush, 5, 7; Cogswell v. Com. 17 Ky. L. Rep. 822, 824; Allen v. Com. 86 Ky. 642; Terrell v. Com. 13 Bush, 246. Louisiana.

State v. Cancienne, 50 La. Ann. 847, 855; State v. Spears, 46 La. Ann. 1524, 1526; State v. Thompson, 45 La. Ann. 969, 970; State v. Tucker, 38 La. Ann. 536, 789. Massachusetts.

Com. v. Riley, Thacher, Crim. Cas. 471, 475; State v. Shippey, 10 Mirn. 223, 88 Am. Dec. 70, 74.

State v. Partlow, 90 Mo 608, 59 Am. Rep. 31; State v. Cable, 117 Mo. 380; State v. Herrell, 97 Mo. 105; State v. G Imore, 95 Mo. 554; State v. Vaughan, 141 Mo. 514, 521; State v. Vanzant, 80 Mo. 67, 69, 79, State v. Gamble, 119 Mo. 427, 432; State v. Parker, 106 Mo. 217. Nevada.

State v. Kennedy, 7 Nev. 874, 376; State v. Smith, 10 Nev. 106, 121. New York.

People v. Johnson, 129 N. Y. 358 People v. McLeod, 1 Eill, 377, 25 Wed. 483, 31 An Dec. 328, 350. Ohio.

Stoffer v. 2tate, 15 Oblo 3 47, 86 A. Dec.

470.

Oregon.

State v. Hawkins, 18 Or. 476.

Tennessee.

In the case of People v. Conkling, 111 Cal. 616. 626, the true principle is stated to be that, where a person has been feloniously assailed,

Texas.

Meuly v. State, 26 Tex. App. 274; Roberts v. State, 30 Tex. Crim. Rep. 291, 306; Brazzil v. State, 28 Tex. App. 584; Carter v. State, 37 Tex. Crim. Rep. 403; Roach v. State, 21 Tex. App. 249, 254; McSpatton v. State, 30 Tex. App. 617, 618; Burris v. State, 34 Tex. Crim. Rep. 387; Johnson v. State, 26 Tex. App. 631, 641; Jackson v. State, 28 Tex. App. 108, 111; Peter v. State, 23 Tex. App. 684, 687; Carter v. State, 30 Tex. App. 551.

Frank v. State, 94 Wis. 211. United States.

Kowe v. United States, 164 U. S. 546, 555, 557, 41 L. ed. 547, 551; Helms v. United States (Ind Terr.) 52 S. W. 63. England.

Reg. v. Smith, 8 Car. & P. 160.

The same rule applies under § 197 of the California Penal Code. People v. Button, 106 Cal. 628, 28 L. R. A. 591.

And 721, Colo. Gen. Stat. also re-enacts the common-law rule as above stated. Bush v. People, 10 Colo. 566, 574.

And the rule holds good even though the accused was in the wrong, and commenced the affray with no intent to kill or inflict great bedily harm, and the other party being then provoked made a deadly assault. State V. Hatch, 57 Kan. 420, 424; State v. Rogers, 18 Kan. 78, 26 Am. Rep. 754.

The doctrine is based upon the principle that though a mar should be in the wrong in the first instance yet a space for repentance is always open. State v. Cable, 117 Mo. 380; State v. Partlow, 90 Mo. 608, 59 Am. Rep. 31; Johnson v. State, 58 Ark. 57, 64.

But he must clearly announce his desire for peace. Roberts v. State, 30 Tex. App. 291, B06; Brazzil v. State, 28 Tex. App. 584.

And the evidence must show that the accused ceased his attack upon the deceased with the intention of withdrawing from the difficulty. Fitzgerald v. Com. (Ky.) 6 S. W. 152.

The above rule is well expressed by the court In the case of Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470, as follows: While the aggressor remains in the conflict, to whatever extremity he may be reduced, he cannot be exensed for taking the life of his antagonist to save his own, and in such a case he brings the necessity upon himself by his own criminal conduct, but when he has succeeded in wholly withdrawing himself from the contest, and that so palpably as, at the same time, to manifest his own good faith and to remove any Just apprehension from his adversary, he is again remitted to his right of self-defense, and may make it effectual by opposing force to force, and when all other means have failed, may legally act upon the instinct of self-preservation, and save his own life by sacrificing the life of one who persists in endangering it.

and taken to flight, the right to pursue for the purpose of private defense ceases as soon as, in the reasonable belief of the assailed, the danger has ceased to be immediate and impending.

In State v. Greer, 22 W. Va. 800, 819, it is said that it is only the faultless that are exempt from the necessity of retreating while acting in self-defense. If from the fierceness of the attack, or for other reasons, they (the faultless) are unable to retreat they will be excused by the law for not doing so.

And the law of self-defense is so strictly ap plied that in order to reduce the offense to killinig in self-defense two things must appear from the evidence and the circumstances of the case: first, the accused must prove that before the mortal blow was given he declined further combat and retreated as far as he could with safety, and secondly, he must show that he necessarily killed the deceased in order to preserve his own life and to protect himself from great bodily harm. State v. Evans, 33 W. Va. 417, 421; State v. Cain, 20 W. Va. 679; People v. Johnson, 139 N. Y. 358. In the latter case it is also said that there must be reasonable grounds for believing that he is in great peril.

He must retreat as far as the fierceness of the assault will permit him. Story v. State, 99 Ind. 413, 415.

Yet the party withdrawing from a combat is not required to retreat further when it cannot be done without probable death, and when the only apparent means of escape is to turn and attack his pursuer. State v. Partlow, 90 Mo. 608, 59 Am. Rep. 31.

If after retreating he is urged by mere necessity, and so kills his adversary for the preservation of his own life, the killing is excusable, and he may plead self-defense. Com. v. Riley, Thacher, Crim. Cas. 471, 475.

And if after abandoning and retreating from the difficulty impending violence is offered against him during his flight, he can resort to any means necessary for his protection. Felker v.. State, 54 Ark. 489.

So, in the case of mutual combat where both parties are in the wrong neither can right himself except by retreating to the wall, and where one, contrary to his original expectation, finds himself so hotly pressed as to render the killing of the other necessary to save his own life, he is guilty of a felonious homicide if he kills him, unless he first actually puts into exercise this duty of withdrawing from the place. Story v. State, 99 Ind. 413, 415.

If there is reason to believe that the accused although the aggressor in the first instance, did retreat or withdraw from the contest, he should be given the benefit of such belief. Hittner v. State, 19 Ind. 48, 52.

Thus, the question of abandonment of the contest is involved and should be considered in a case where the accused, tried for murder, went to the deceased's house for the purpose of beating him, but retreated from the fight, and while so doing was knocked down three times, when he drew his pistol and shot the deceased. Hunt v. State, 72 Miss. 413.

So, the doctrine of retreating from the dimculty by the accused, equally applies to those who are engaged with him in the attack, and are his voluntary helpers therein, and coconspirators with him.

Thus, in Bostic v. State, 94 Ala. 45, 47, the

court held that both the party who provokes a difficulty and his voluntary helper must clearly retire from the conflict; and to restore him to the full measure of se defendendo his conduct must plainly show that his purpose has ceased to be hostile.

And in such cases the accused is responsible to the same extent as if he had done the acts committed by any one of the coconspirators engaged, and to reinstate himself to his right of self-defense he must not only have abandoned the difficulty himself in good faith unequivocally, but his coconspirators must also have done so. He is responsible for their acts. Burris v. State, 34 Tex. Crim. Rep. 387, 391. See also Gibson v. State, 89 Ala. 121, 127, to the same effect.

In order, however, to make a withdrawal available as a defense it must not be colorable. Johnson v. State, 58 Ark. 57, 64; Parker v. State, 88 Ala. 4, 7.

The retreat must not be merely for gaining fresh strength or taking some new advantage for an attack. Ibid.

It must be a retreat or flight, and not a mere design to protect himself under the shield of the law. Hittner v. State, 19 Ind. 48, 52.

So, if the intention of abandoning the conflict Is not real and bona fide on the part of the accused, he will still continue to be regarded as the aggressor. Roach v. State, 21 Tex. App. 249, 254.

ex

In accordance with the rule, as above pressed, therefore, a mere retreat and firing back will not be sufficient: the difficulty must have ceased, or he must have shown to his adversaries an unequivocal intention to abandon the difficulty. Burris v. State, 34 Tex. Crim. Rep. 387.

In cases in which the accused has retreated from the difficulty in good faith, and in which he is pursued by the deceased who renews the difficulty, the first difficulty has nothing to do with the second except as It Illustrates the malice by which the parties might be actuated in engaging in the second encounter, and the question of provoking the difficulty should be expressly limited to the acts and conduct of the parties in the last affray or encounter. Brazzil v. State, 28 Tex. App. 584: Carter v. State, 30 Tex. App. 551; Peter v. State, 23 Tex. App. 684.

And if the deceased persists in attacking the accused after the latter has desisted in his attack upon the deceased, the fact that the accused was at fault in bringing on the difficulty in the first instance will not deprive him of the right of self-defense. People v. Farley (Cal.) 57 Pac. 571.

This is so for the reason that the right of the deceased to employ force also ceases, and as soon as a new attack is made by the deceased the right of the accused to defend himself revives, and his plea of self-defense will be justifiable. Terrell v. Com. 13 Bush. 246.

And in such cases the assailant will not be considered the aggressor if he is pursued, and the quarrel is renewed, as the right to pursue and kill the retreating assailant ceases as soon as the assailed has reasonable ground for believing that the danger has ceased to be immediate and impending. Luby v. Com. 12 Bush, .5.7.

So, the rule holds good even in a case where the accused intended to provoke an assault and was not acting in good faith for the purpose of protecting his own person, but abandoned the assault, and his adversary then advanced upon him for the purpose of taking his life, or in

flicting great bodily harm. Barnard v. Com. (Ky.) 8 S. W. 444, 445.

And in such a case the accused will be justified in striking the mortal blow if he cannot escape without so doing. Johnson v. State, 58 Ark. 57, 64; People v. Westlake, 62 Cal. 303; Rippy v. State, 2 Head, 217; State v. Neeley, 20 Iowa, 109; Roach v. State, 34 Ga. 78; Eiland v. State, 52 Ala. 322; Evans v. State, 44 Miss. 762; Gainey v. State, 97 Ill. 271.

In such cases the party renewing the difficulty cannot invoke the doctrine of self-defense, but will be treated as an aggressor ab initio. Stillwell v. State, 107 Ala. 16, 20; People v. Farley (Cal.) 57 Pac. 571.

In Anonymous, Kelyng, 58, the accused was not allowed to avail himself of the plea of selfdefense, even after he had retreated to the wall, where he was actuated by malice in the first instance, and struck the first blow.

The right to plead self-defense after retreating from the difficulty was denied the accused in the case of Cogswell v. Com. 17 Ky. L. Rep. 822, 824, not upon the ground that such plea was not available after a retreat, but owing to the peculiar and special form of the charge made against the accused in that case, which was one of shooting at a party without wounding him. The guilt of the accused was proved by the fact that he, in the first instance, attacked the party and shot at him, his subsequent actions not entering into the case at all. In that case it was held that if in the first instance the accused attacked such party by shooting at him with a pistol without wounding him, he was guilty of the offense of shooting regardless of what occurred subsequently to that act, and if he was not justified in so shooting on the ground of self-defense or apparent necessity he could not then retreat from the affray or difficulty so as to escape punishment for such act, although the other party might have pursued him after such retreat and justified him in shooting the second time. Cogswell v. Com. 17 Ky. L. Rep. 822, 824.

In the case of Cotton v. State, 31 Miss. 504, 513, the court stated that a man may begin a difficulty intending to inflict no violence, or next thing to none, on his antagonist, and may be so closely pressed as to be forced to use his weapon in self-defense. And after quoting the rule laid down by Blackstone: "If the slayer has not begun the fight, or (having begun) endeavors to decline any further struggle, and afterwards being closely pressed by his antagonist kills him to avoid his own destruction, this is homicide, excusable by self-defense,"concludes by saying that in such case the party having commenced the difficulty can only use his weapon in self-defense, or take the life of the other party when the danger is imminent or impending or unavoidable.

Now, taking the first and last statements of the court in this case aside from the quotation from Blackstone, a doubt might arise whether the court meant to say that the accused would be justified in killing his opponent without retreating from the combat or offering to do so, or declaring his intention of quitting.

quoted rule, amounts to this: A man may begin The statement of the court, leaving out the a difliculty without any intention of inflicting an injury or next door to none, and may be so closely pressed as to be forced to use his weapon in self-defense, or take the life of the other party when the danger is imminent or impending or unavoidable. Without the quotation therefore it would seem as if the court meant to say that under such circumstances as therein stated the doctrine of retreat did not