The opinion
ON MOTION FOR REHEARING.
LATTIMORE, Judge.
Upon mature consideration we are inclined to think we were in error in holding the facts in this case not such as to call for a charge on provoking the difficulty. There is no question but that appellant, armed with a pistol, went to where deceased and her sister lived and shortly thereafter shot both the sister and deceased. In her voluntary statement, which was introduced by the state, appears the following :
“Wednesday night I got my .45 Colt’s pistol and went to Myra and Melissa Brown’s house. It was about 8 p. m. I asked Francis if her aunt Myra was there. Francis said ‘Yes,’ and told Myra that I was there and wanted to see her. Myra told me to come in the house, but I told her I did not want to come and asked her to come out in the yard. I had my pistol in my right hand. The porch light was on and Myra must have seen the pistol for she picked up a piece of iron, -which her sister, Melissa, took away from her. I began to shoot. I shot two or three times. I meant to kill them.”
The party referred to by appellant in said statement as Myra, was deceased. She was referred to by other witnesses as Milie. Another witness, one Nancy Green, testified that she saw appellant going to the house of deceased shortly before the shooting began and that appellant had in her hand a pistol. State witnesses testified that when she .got to the house she asked some one to tell Milie to come out there, “Tell her to come out here, I wants to see herthat the sister of deceased said to deceased, “Don’t go out Milie, don’t go out,” and that appellant again said, “Come on out,” and that deceased came out and was followed by her sister, whereupon appellant said, “Scatter back,” and shot the sister of deceased twice, and there is some testimony that deceased then made some attack upon appellant and was herself shot and killed. There is testimony from state witnesses that appellant and deceased were fighting in a branch in the yard where the killing occurred. Appellant testified that she went down to the house of deceased to get an explanation of some offensive conduct or language from deceased and that she carried her pistol wrapped up in her dress. She said she called for deceased to come out, and that a sister of deceased came with a
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piece of iron in her hand and started toward her in a threatening manner, and that she fired at the sister. She said that deceased then grabbed for the piece of iron and started at her and that she shot at deceased, who then grappled with her, and thinking her life in danger, she shot deceased the second time.
The trial court charged on self-defense based chiefly on the testimony of appellant. Where the accused has gone armed to a place for the purpose of obtaining an explanation, and after searching such place indulges in acts, words or conduct which might be deemed by the jury intentionally provocative of an attack by deceased, it would be the duty of the trial judge to submit the law of provoking the difficulty. The testimony showing that the accused did go to where deceased was, having a pistol in her hand, and that upon seeing her, deceased, or deceased and her sister, attempted to get hold of a piece of iron, or did get hold of it, with which appellant claimed they attacked her, coupled with the language attributed to appellant, might be deemed by the jury sufficient evidence of an intention on the part of appellant to provoke deceased to make an attack upon her which she might use as a pretext in taking the life of deceased. The original opinion will be modified in so far as it holds that the facts in this case do not warrant a charge on provoking
a
difficulty.
However, when we come to examine the charge given by the court upon this issue, which was duly excepted to, we are of opinion that same is erroneous. The learned trial judge told the jury in substance that if a person, by his or her wrongful act, bring about the necessity of taking the life of another to prevent himself being killed, he cannot claim such killing in his own necessary self-defense, but the killing in such case would be imputed to malice by reason of the wrongful act which brought it about. This gave the jury no sufficient guide or rule to determine what was meant, by the wrongful act referred to. They may have concluded that the act of appellant in going to the house of deceased was sufficient to abridge the right of self-defense. This would be manifestly wrong.
The learned trial judge proceeded to tell the jury that he who brings on an affray in which he intends to wreak his malice cannot avail himself of the shield of self-defense, though his own life be imperiled in the affray, and the slayer, if he provoked the contest or produced the occasion with the intention of killing the deceased, etc., is guilty of murder, although he may have done the act of killing suddenly, without deliberation, to
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save his own life. This part of the charge is very general and may be subject to the same exception as being entirely indefinite and laying down no sufficient rule for the guidance of the jury who, as above stated, might have been of unanimous opinion that by going to the house armed appellant brought on the affray. Certainly by going to the house armed appellant “produced the occasion.”
The court further proceeded to tell the jury in applying the law of provoking the difficulty to the facts herein as follows:
“If you believe therefrom, beyond a reasonable doubt, that the defendant by her own wrongful act brought about the necessity of killing deceased, intentionally, and with a view thereto, or if defendant provoked the difficulty with the intention of taking the life of the deceased, intentionally, and with a view thereto, and that under such circumstances she shot and killed the deceased, then the homicide would be murder,- even though she may have done the act of killing suddenly and to save her own life.”
That this is confusing is evident. It was admitted that appellant fired intentionally. Such error is further intensified by the failure of the learned trial judge to inform the jury that appellant had the right to arm herself and seek an interview with deceased for the purpose of obtaining from her an explanation of acts and conduct of deceased, which had been reported to appellant by her husband. Where one has been informed of any matter which gives rise to a real or apparent necessity for an explanation or interview with another, and there is reasonable grounds for believing that such explanation or interview might be accompanied by danger of death or serious bodily harm, the right of self-defense will not be abridged merely by the party taking a pistol or other arm with him on the occasion of such interview or explanation. The charge of the court was excepted to for its failure to embody this principle. We are of the opinion that the court should have given same in his charge, and that such refusal was material error for which the case will have to be reversed.
Believing the right result of a consideration of this appeal appears in the original opinion, the state’s motion for rehearing will be overruled.
Overruled.