# Cooper v. State

> Tennessee Supreme Court · December 15, 1909 · 123 Tenn. 37

URL: https://www.frixlaw.com/law-library/cases/8300682

## Case

- **Full name:** DUNCAN B. COOPER and ROBIN J. COOPER v. STATE
- **Court:** Tennessee Supreme Court
- **Decided:** December 15, 1909
- **Citations:** 123 Tenn. 37
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Shields
- **Judges:** Shields
- **Cited by:** 100 later opinions in the Frix Law Library

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## Opinion text

Mr. Justice Shields
delivered the opinion of the Court.
Duncan B. Cooper and Robin J. Cooper were indicted in the criminal court of Davidson county, Tenn., charged with murder in the first degree, committed November 9, 1908, upon the body of Edward W. Carmack, and later after a trial lasting some two months, were by a jury of that county found guilty of murder in the second degree, and their punishment fixed at confinement in the penitentiary for a period of twenty years, and, after their rule for a new trial was discharged, judgment was entered against them in accordance with the verdict.
*55 From this judgment they have prosecuted an appeal in the nature of a writ of error to this court and assigned numerous alleged errors upon which they ask- that the judgment he reversed and the case remanded to the lower court for a new trial.
John D. Sharp was also indicted with plaintiffs in error, but was acquitted by the jury.
The record and briefs filed for plaintiffs in error and the State are voluminous, the argument at the bar. was most elaborate and marked with much ability and the case has challenged and had the most careful and deliberate consideration of the court.
Duncan B. Cooper and Robin J. Cooper are father and son. Duncan Bi. Cooper for some years past has been quite prominent in political affairs in Tennessee.
Robin J. Cooper is a young man and a lawyer practicing in the courts of Davidson county.
Edward W. Carmack was late a senator of the United States, and was also prominent and active in politics, and a candidate in several political contests that have occurred in the State within the past few years, and at the time of his death, November 9, 1908, was editor of the “Nashville Tennessean/-’ a daily paper published in the city of Nashville.
He was a candidate to succeed himself in a general primary held for the nomination of a United States senator in 1906, and was defeated. He was again a candidate in a primary held to nominate candidate for governor in 1908, and was defeated by Gov. M. R. Patterson.
*56 Ool. Duncan B. Cooper and Senator Edward W. Car-mack, previous to these contests, were friends; but the former had opposed the latter in both of these contests, ' and, from an estrangement at first, the feeling between them had become one of hostility, as will more fully appear from the facts to be stated.
Robin J. Cooper, Avhile sharing in the hostility of his father .to Senator Carmack, came into this unfortunate tragedy, resulting in »the death of the latter, almost altogether through his father.
There is no question but that Edward W. Carmack was shot to death in an encounter with the Coopers on November 9, 1908. The tragedy occurred about four o’clock in the afternoon, upon Seventh avenue, north, a street in the city of Nashville, near and south of where Union street intersects it.
The contention of plaintiffs in error is that the homicide was committed in self-defense, or, more- correctly stated, by Robin Cooper, in defense of his father and himself.
The first assignment of error is:
"The verdict is not warranted by the evidence
This assignment, in form, is not good. The settled and uniform practice of this court and the law of this state is that in civil cases, tried by jury, the verdict will not be disturbed upon the facts, in proceedings in error, where there is any material evidence to sustain it.
The practice and law in criminal cases, equally .well established, is that a verdict of guilty, approved by the trial judge, will not be disturbed upon the facts by *57 this court, unless upon an examination of the whole record there is found to be a clear preponderance of evidence in favor of tl)£ innocence of the plaintiffs in error.
In the cáse of Leake v. State, 10 Humph., 145 , decided by this court in 1849, Judge Turley, speaking for the court, said:
“In holding ourselves not to be bound by the verdict of a jury in criminal proceedings, unless, in our judgment, the proof upon which it rests clearly preponderates in favor of its truth, we do not wish to be considered as meaning that it is wholly ineffectual and inoperative, and that we are left free to consider of the truth of the charge, upon the proof, in the same manner and to the same extent with it, as without it — very far from it. The jurors are the legitimate tryers of questions of fact in criminal as well as civil cases, and their verdict must always have great weight with a revising court. But it is not conclusive except in cases of acquittal; and we are not of those who look upon it as a thing too sacred to be touched, and, therefore, always to be approached with fear and trembling. We have seen too much of the practical uncertainty of such things to have any such feeling in regard to it, and, therefore, readily disregard it, if, in our judgment, we think it should be disregarded. But still, it being against the prisoner, the presumption of guilt is thereby fixed upon him; previously, the presumption was in favor of his innocence, and this presumption of guilt, which the verdict has attached, must ■be removed before a new trial can be granted. Before the verdict, the accused is entitled to the benefit of all *58 reasonable doubts of bis guilt in bis favor. After .verdict he has lost this privilege; he cannot obtain a new trial by insisting that there is. a reasonable doubt of his guilt, but only by shewing that there is a reasonable ground in favor of his innocence; or, in other words, before verdict the testimony against him cannot be weighed with a view of its preponderancy. It must be of a character to establish his guilt to a moral certainty; but after this proof has been submitted to a jury, and analyzed by their minds, and a verdict of guilty returned, then, in order to obtain a new trial, he must show that the weight of the evidence is in favor of his innocence. This much a verdict of guilty, in criminal cases, produces in every case, and it is much in its operation upon the court in relation to granting new trials. But for the verdict, the court, in reviewing the proof, would have to be governed by the common law principle, that the accused is to have the benefit of all rational doubts as to his guilt, and, therefore, could not weigh the evidence. But upon motion for a new trial the testimony is to be weighed, and, unless it preponderates in favor of his innocence, a new trial will be refused.” .
In the case of Robertson v. State, 4 Lea, 427 , that eminent jurist, Judge McFarland, said:
“My conclusion upon the testimony is that it does not preponderate against the verdict, and, while there may be doubt as to the defendant’s guilt, it is settled that the court does not reverse upon a mere doubt, although a jury might have entertained a doubt, their verdict having negatived the doubt.”
*59 In the case of Hill v. State, 8 Heisk., 820 , Judge Freeman said:
“The yerdict of the jury in a case of felony raises a presumption of guilt against the prisoner, and we must see that the yerdict is erroneous, before we can reverse on the facts.”
Another rule to he applied in connection with this, and really a part of it, is that a yerdict is entitled to great weight in considering the credibility of the witnesses examined, and conflicts in their testimony.
In the case of Hardwick v. State, 6 Lea, 107 , Judge Cooper said:
“The usual argument made in this court, that the evidence fails to sustain the yerdict, is not based so much upon the absence of sufficient testimony as upon supposed contradictions in the testimony of the witnesses, and especially the principal witness, which tends to discredit them. These discrepancies were pointed out by defendant’s counsel, and discussed with great skill and ingenuity. But, after all, the variance of the samé witness, as well as of the different witnesses between each other, are precisely such as always occur in such narratives, and tend rather to strengthen than to discredit the witness, for they show that there was no collusion to make up the same tale. They were,^ moreover, such as fell within the peculiar province of the jury to consider, and they have shown by their yerdict that they did not think them of sufficient importance to affect the result. The verdict is, in our opinion, fully sustained by the evidence.”
*60 In Kirby v. State, 3 Humph., 304 , Judge Green said:
“But it is not to be understood by what the court say in the case of Dains v. State, 2 Humph., 439 , that the verdict of a jury in a criminal case weighs nothing with this court, and that a new trial will be granted if upon the evidence certified in the bill of exceptions we are not convinced beyond a ‘reasonable doubt of the guilt of the party. On the contrary, the jury are the exclusive judges of the credit of the witnesses, and in all cases much must occur before the court and jury, properly calculated to act upon their minds, which cannot be transferred to paper. A verdict, therefore, in all cases, must have great weight with this court.”
The plaintiffs in error, as also appears from these authorities, have in this court no longer thrown about them the presumption of innocence; but, on the contrary, the verdict of the jury, approved by the trial judge, raises a presumption of guilt, which they must, upon the record, overcome to secure a reversal on the' facts.
The assignment of error, therefore, to entitle plaintiffs in error to a review of the facts of the case in this court, should have been that, considering the entire record, the evidence preponderates against the verdict ,pf guilty, and in favor of their innocence.
Considering the assignment as thus framed, we will proceed to examine the facts. In doing this, we will go into no detailed statement or argument as to the credibility of witnesses, slight discrepancies, and conflicts in testimony; all these questions having been settled by the verdict of the jury. It must appear to all *61 that, under the rules we have stated, no case can he ré-' versed on the facts where an elaborate argument of the evidence is necessary to aifect that end. They very necessity for such a thing, rebuts the idea that the verdict is against the clear preponderance of the evidence; nor, as a rule, is it properly the providence of the court to make an argument, hut, on the contrary, after full and exhaustive consideration, to state its conclusion, upon both the- facts and the law.
The salient facts leading up to the fatal meeting on Seventh avenue, where the homicide was committed, as to which there is no serious controversy in the record, unless it be as to some things occurring in Mr. J. 0. Bradford’s office, as to which the version of the plaintiffs in error is here giveii, are these:
Col. Duncan B. Cooper and Senator Edward W. Car-mack were on very unfriendly terms, -and had been for some mohths previous to the death of Senator Carmack. The latter had made humorous and sarcastic allusions to the former in his public speeches in the recent gubernatorial primary, and in the columns of -the Tennes sean, some of them very cutting and approaching bitterness. '
’ On Sunday, November 8, 1908,. the day preceding the i homicide, there appeared in the editorial- columns of the ■ Tennessean an article, parts of which referred to Dun-' can B. Cooper in these words :
“ACROSS THE MUDDY CHASM.'
•'“We trust there will be no unseemly ribaldry- on the-part of the base and vulgar concerning the happy re *62 union of long-sundered hearts which was accomplished in the joyous reconciliation of Bis Excellency, Hon. M. E. Patterson, and His Ex-Excellency, Hon. John, Isaac Cox. All honor to that noble spirit, Maj. Duncan Brown Cooper, who wrought this happy union of congenial and confluxible spirits, separated by evil fates, though horn for each other. All honor to Maj. Dune, and may the blessing of the Peacemaker be upon him! May he be heir to all,the beautitudes, and especially to the blessings reserved for those who do hunger and thirst after righteousness: * * *
“But no doubt the main thing was that Governor Cox agreed to join himself with Ban Murray, Dune Cooper and Sparrel Hill, and aid them in their battle for the holy cause of Local Self-Government.”
This seems to have further inflamed, the hostility of Col. Cooper towards Senator Carmack, and upon the evening of that day, after he had an interview with Mr. E. B. Craig, a friend of Senator Carmack, about some business matters, at the Tulane Hotel in Nashville, he brought up the subject of his relations with Mr. Car-mack, and denounced him with great violence,, using opprobrious epithets, and said, according to Mr. Craig, that if his name appeared again in the Tennessean that either he or Mr. Carmack must die; or, according to Col. Cooper, if his name appeared again in the Tennes sean, “the town would not be big enough to hold them both.” It is immaterial which of these statements is correct, as they both meant the same thing, and were so *63 understood by Col. Cooper, Mr. Craig, and by Mr. Car-mack when communicated to Mm.
Col. Cooper also in that conversation said that be bad a note prepared to send to Mr. Carmack “which could not be misunderstood.”
. Mr. Craig offered bis services to adjust tbe matter be-tween Col. Cooper and Mr. Crmack, and, with tbe consent of tbe former, went to tbe latter and stated to bim tbe conversation that be bad bad, tbe threat that bad been made, and informed bim of tbe note that bad been prepared, and 'Col. Cooper’s intense hostility towards him. Mr. Carmack refused to agree to cease bis references to Col. Cooper, and Mr. Craig returned to tbe latter and told bim tbe result of his mission. . Thereupon, Col. Cooper said, “Then, by God, this note goes.” Mr. Craig again saw Mr. Carmack that night, and informed bim of ■the anger with which Col. Cooper bad received bis refusal not to again use his name in the Tennessean.
Col. Cooper that same night borrowed a pistol, which be kept and bad at tbe time of tbe fatal encounter, evidently preparing himself for tbe execution of tbe threat be bad made in case bis name should appear again in tbe Tennessean.
Senator Carmack understood tbe language of Col. Cooper, communicated by Mr. Craig, to be a deadly threat against bis life, and likewise borrowed a pistol that night, which be bad when be met tbe Coopers upon Seventh avenue and was killed.
Col. Cooper says that what he meant by stating that tbe town would not be big enough to bold bim and Mr. *64 Carmack was that he intended to expose the personal and private character of Mr. Carmack; but the fact that Col. Cooper and Mr. Carmack both armed themselves that night shows that the threat was not so understood by either of them.
‘ The next morning an editorial appeared in the Ten- sessean-in these words:
“THE DIPLOMAT OP THE ZWEIBUND.
“To Major Duncan Brown Cooper, who wrought the great coalition; who achieved the harmonious confluence of incompatible elements; who welded the pewter handle to the wooden spoon; who grafted the dead bough to the living tree and made it to bloom, and burgeon and bend with golden fruit; who made the playmates of the' lamb and the leopard and boon companions of the spider and the fly; who made soda and vinegar to dwell placidly in the same bottle, and who taught oil and water how they might agree — to Major Duncan Brown Cooper, the great diplomat of the political Zweibund,' be all honor and glory forever!” '
Col. Cooper read this editorial, and about 9 o’clock a. m. went to the law offices of Mr. J. C. Bradford and there met and conferred with his son, Robin J. Cooper, who occupied one of these offices. He told him what had occurred between Mr. Craig, Senator Carmack, and himself the night before, and showed great indignation and anger. Robin Cooper expressed fears of trouble between his father and Senator Carmack, and suggested that the matter be adjusted through mutual friends.- -Col. Cooper said in substance that Senator *65 Carmack was daily shooting poisoned arrows into him, and that it had come to a point where it was nnendnrable, that he had no right to nse his name in that way, and that he had the right to protect himself, and demand that it cease, and exhibited the pistol with Avhich he was armed. After his father left the office, Robin Cooper realized the condition of his mind, and also he says, fearing that Senator Carmack might resent what his father had said, communicated by Mr. Craig, with violence, became alarmed and telephoned his sister, Mrs. Lucius Burch, to try and find their father by telephone and keep' him off the streets. He also telephoned Gov. Patterson concerning the trouble. After this he went upon the streets, and visted various places in the city in search of his father, during which time he procured a pistol, and finally found him about 12 o'clock at the Maxwell House.
Col. Cooper, after leaving Mr. Bradford’s offices, went out to inspect a horse, and while passing Mrs. Burch’s, about 11 o’clock, was called by a servant, and went in the house, where he had a conversation with his daughter in relation to his trouble with Senator Carmack, when he must have repeated his threat, as she said, “He will kill you, papa,” and Col. Cooper replied, “He is as likely to get killed as I am,” and “Do you expect me to lay down my manhood?” He returned to the Maxwell House about 12 o’clock. In the meantime, Gov. Patterson, after being communicated with by Robin Cooper and Mrs. Burch in regard to 'Col. Cooper’s state of mind to *66 wards Senator Carmack, went upon the streets for the purpose of finding- and remonstrating with him, and finally did find him at the Maxwell House. Mr. Bradford also came there, and the three and Robin Cooper had an interview. They urged Col. Cooper not to send the note he had prepared, and said that they would get a mutual friend to adjust the troubles between him and . Senator Carmack. The note unsigned was given to Mr. Bradford, and Col. Cooper agreed to meet Mr. Bradford at his offices at 3 o’clock that afternoon to hear the result of his efforts.
Col. Cooper in answer to the question:
“Q. In reply to the suggestion of Mr. Bradford and his expression of confidence that he could satisfactorily adjust matters, what did you agree to do?”
—answered:
“A. I agreed to meet him at the office at 3 o’clock to have a report of what had occurred.”
“Q. Of his efforts to settle or adjust matters?”
“A. Yes, sir.”
Mr. Bradford sought Col. A. M. Shook as a mediator in the matter, but found that he was out of the city. He then applied to Mr. J. J. Vertrees to act in that capacity, but he declined to do so, saying that he did not think the editorials to which we have referred justified the proposed action of Col. Cooper. When the hour of 3 o’clock arrived, Col. Cooper met Mr. Bradford and Gen. Tully Brown, whom Mr. Bradford had invited to be present at the office of the latter, and the trouble in question was discussed for some time, and Col. Cooper agreed not to *67 send the note which he had prepared, which was a repetition of the threat made and communicated the night previous, perhaps in not so strong language.
Gov. Patterson testifies that about á o’clock that afternoon he telephoned to Col. Cooper, at Mr. Bradford’s office, in which he is corroborated by those in the office at the time, and requested him to come to the Executive Mansion, which is situated on Seventh avenue, east side, and north of Union street, to discuss some political matter. Col. Cooper then left the office to comply with this request. He was accompanied by Robin Cooper, who says he did so over the objection of his father, because he was apprehensive of a meeting with Senator Carmack, and that the latter might resent the threat that had been communicated to him by Mr. Craig. They were both armed with pistols. They proceeded up Union street toward Seventh avenue, and on the way met John D. Sharp, a friend of Col. Cooper and also of Governor Patterson, who, plaintiffs in error testify, went' with them upon the suggestion of, Col. Cooper that he go to the Mansion with him. The-three proceeded up Union street, on the south side, Robin and Mr. Sharp going in advance, and arriving at the corner of Seventh avenue and Union street before Col. Cooper, where they stopped until he came up with them.
What occurred here is of great importance, but before we state it, we must call attention to the movements of' Senator Carmack that day, and the circumstances attending his appearance upon the scene of the tragedy.
*68 That morning’ he went to the office of the Tennessean, situated on the corner of Church street and Eighth avenue, just opposite the Tulane Hotel, where he was engaged during the day in the discharge of his duties as manager and editor of that paper.
Between 11 and 12 o’clock, he was informed that Mrs. Burch had telephoned Dr. J. A. Witherspoon to find Dr. Lucius Burch, her husband, for her; that her father was very angry and armed, and intended to kill him (Car-mack) on sight.
About 4 oclock that evening, Senator Carmack left his office for the purpose of going to his room, which was in a residence on the west side of Seventh avenue, something more than a block north of Union street and beyond the Executive Mansion. Plaintiffs in error both testify that they did not know the location of his room, or that in going to and from it he passed along Seventh avenue, or that he intended or was expected to pass at or near the hour when they came upon him. When he left his office, he went into a drug store and drank a glass, of coca-cola, and then proceeded to the comer of Church street and Seventh avenue, where he stopped to assist a lady upon a car. Prom there he proceeded up Seventh avenue on the west side, towards his room, smoking a cigar, and having in his hand an evening paper. He was armed with the pistol he had borrowed the night before. When he reached a point about opposite the gate of the Shanklin residence, near where two telephone posts stood in the outer edge of the pavement, about six inches apart at the pavement, *69 and . farther apart higher up, one north of the other, he met another lady acquaintance and friend, Mrs. Charles Eastman, who was accompanied by an aged and infirm gentleman relative. He was rather on the inside of the pavement from them, but partially in front of the lady. Holding his cigar in his left hand, he raised his hat and was about to engage in conversation with her, when he first saw Col. Cooper immediately behind Mrs. Eastman. The tragedy occurred here, and perhaps in less than one minute Senator Carmack was lying dead in the gutter, the result of three pistol shots either of which would have produced death.
Robin Cooper was shot in the shoulder, and another bullet passed through his clothing.
We will now state the testimony of the witness con-, cerning matters which are controverted.
In doing so, we will omit that part of what occurred in the office of Mr. Bradford in regard to which there is a conflict. The material determinative facts, after having ascertained the relation of the parties, are those transpiring on Seventh avenue, and we will go directly to them.
Mr. Carey Folk, witness for the State, passing on the north side of Union street, testifies that he saw the three men at the corner on the other side of the street, and .heard Robin Cooper say to his father, “Are you going up this way?” indicating by a motion of his head towards the Capitol, and Col. Cooper replied, “No, I will wait a while yet.”
*70 Robin Cooper testifies that when be reached Seventh avenue he looked south arid saw Senator Carmack on the opposite side of the avenue, and about 300 feet distant, coming towards him, and that he said to Mr. Sharp, “There goes Senator Carmack; don’t let papa see him;” that he- called to his father, “Let’s hurry up,” and he replied, “Well, wait a minute;” that when his father arrived at the Corner he (Robin Cooper) took hold of his arm, trying to hurry him, and when they were nearly across the street, going north, his father stopped and said, “That is Senator Carmack coming,” and without awaiting a reply he said, “I will go over there and speak to him myself,” that he (Robin Cooper) said “Papa, please don’t go,” or, “you can’t go;” that his father replied that he knew Senator Carmack, and that there would be no trouble, pulled away from him and ■started diagonally towards the opposite side of the street; that he hesitated, and after his father had got twenty-five or thirty feet away, he thought he ought to follow him; that he knew the communication which Senator Carmack had received through Mr. Craig, and feared that he might resent it, but did not fear that his father would attack Senator Carmack; that he thought it his duty to go with his father and protect him, in the event he should be attacked; that his father went diagonally across the street to the sidewalk, about midway between the corner and where the tragedy took place, and walked down toward Senator Carmack, until he was within ten or fifteen feet of him; that he himself *71 went diagonally across tlie street, so as to come upon tlie sidewalk at tlie telephone posts.
Ool. Cooper testifies that about the time he reached the corner his son said to him, “Come ahead,” and he replied, “Wait a minute,” being a little tired from the walk; that they started across Union street, Robin Cooper grabbing him.by the arm and saying, “Hurry up;” that from this conduct he intuitively knew something was wrong, and turned and looked down the street, and saw Senator Carmack coming north, on the west side of the street, and he says: “The impulse formed at that moment that I should go and remove all this condition that was distressing my friends, and worrying them and my children, and I was going over and have a direct, plain talk with Carmack. He had known me well, and I had known him well, and I went there to have that talk with him, and protest against his continued attacks upon me, and see if it could not be stopped.” He says he pulled away from his son, and started across Seventh avenue, and proceeded towards Senator Car-maak, following two people just in advance of him.
Mrs. Eastman, a cultured and refined woman, who is not attacked in this record, gives this account of the meeting:
She says that she and a kinsman were walking very slowly south, on the west pavement of Seventh avenue, and just as she passed a little south of the Polk Plats lot she noticed Senator Carmack a short distance in front approaching her and going north; that he came towards her with a very pleasant look of recognition on *72 Ms face, his eyes fixed on her as he approached, and stopped in front, bnt slightly west, of her, and, lifting his hat slightly off his head, holding a cigar in his left hand, said, “How do you do, Mrs. Eastman?” and that she greeted him likewise and that he was standing there smiling down at her in a listening attitude, apparently absorbed in what she was about to say, because she was just about to speak, when she heard a voice in her rear saying, in substance and effect: “Well, here you are all right; I have the drop on you now.” That Mr. Carmack raised his eyes and as he looked, over her shoulder in the direction of the voice in her rear, “a look of surprised inquiry — a great change — came over Ms face” immediately, and he shrank backward rather more in front of her and toward the outer part of the pavement, and, as he did so, ran his right hand into his Mp pocket “and drew out slowly, it seemed to hitch in some way, a pistol,” and the voice behind her, continuing said: “You dastardly coward, you cowardly scoundrel, Mding behind that woman, are you? Get out from' beMnd that woman!”
Mrs. Eastman further says that, as Senator Carmack drew the pistol out of his hip pocket he had hold of it by the barrel, “his thumb crumpled under the barrel,” and, just as the voice behind her said, “Get out from behind that woman,” she jumped to the gate, and Senator Car-mack, with his eyes still fixed on some one back of her, moved eastwardly toward the curb, and as she jumped into the gate from her position about the center of the pavement, and several feet north of the gate, the first *73 shot was fired from “her rear as sfie stood on the pavement ;” that this shot was fired simultaneously with her leap; that she got into the gate, turned around, and, raising her hands, thought for a moment that Ool. Cooper was Dr. William White, whom he somewhat resembles, and she said, “Dr. White, for God’s sake, don’t shoot, don’t, don’t,” and while she was looking northward at Col. Cooper and making this appeal, “the other two of the only three shots” which she heard -followed, and looking to her right and toward the east she saw Mr. Carmack “reeling out, lurching forward,” and his hand touched the south side of one of the posts, and he pitched headlong into the gutter, and then, for the first time, she saw a young man, whom she now knows to have been Robin Cooper, standing “just southward of where Mr. Carmack must have stood just before he lurched forward and out into the gutterthat this young man was somewhat nearer the curb than the Shanklin wall or fence and about three or four feet south of the posts. She says that Mr. Carmack lurched from the pavement northeast, and when he fell his head was above the posts, and his feet south of the posts. She did not see a pistol in the hands of Ool. Cooper, or Robin Cooper. Nevertheless, after jumping into the gate and looking around at Col. Cooper, she saw his right arm stretched out in the attitude of one going to fire a pistol. She admits that she was greatly agitated, and that after Mr. Carmack haid fallen she turned to Col. Cooper and said:
“I told him that he was brutal; that he was a murderer ; that he had taken advantage of my presence; that *74 lie hadn’t given this man a chance, not a single chance; that I would rather be the dead man in the gutter than to have been him” — to which Ool. Cooper made no reply, though he was near and looking straight at her.
Col. Cooper says that when he approached Senator Carmack, just as the latter was passing Mrs. Eastman, he addressed him, “Mr. Carmack,” and he (Carmack) threw his head up, and in an instant drew a pistol, and . jumped back behind Mrs. Eastman, and that he (Cooper) said: “It is damned cowardly to get behind a woman with a pistol in your hand.” He denies that he said, as he approached: “Well, here yon are all right; I have the drop on you now.”
He further says that, immediately upon Senator Car-mack’s moving backward and eastward toward the telephone poles, Robin Cooper passed between them to the inner side of the pavement, and the firing began; Mr. Carmack shooting the first two shots between the two poles. He says he did not draw his pistol until Mr. Carmack fired, and then he drew it to kill him if he had killed Robin, and that he had no opportunity to shoot, because Robin got between him and Mr. Carmack simultaneously with the drawing of the pistol by the latter, and that he did not shoot.
Robin Cooper testifies that his father did not address Mr. Carmack as stated by Mrs. Eastman, but simply said, ‘“Mr. Carmack,”, and that immediately the latter drew his pistol and moved toward the telephone poles; that he rushed between Mr. Carmack and his father to the inner side of the pavement, and rather below the *75 poles, Mr. Carmack haying in the meantime moved ont into the gutter behind the poles and firing between them twice, one shot taking effect in his shoulder, the other passing through his sleeve, and that he then drew his pistol and fired three times, the last while Mr. Carmack was erect and facing him, and, seeing him sinking, he ceased to fire; that he did not draw his pistol until Mr. Carmack had fired twice.
Miss Elizabeth Port, who was in the Polk Plats about ninety feet from the place of the tragedy, sitting by her window, and who was accustomed to the use of pistols, testified that there were five shots; “first, three came al-na ost at once, came very rapidly, then another, and between the last shot and the next to the last there was a little more space. I, of course, do not know how much.”
She was asked if the tone of the first three shots was the same or different, and answered:
“Sounded as the same shot, as almost one shot — ■ sounded from the same pistol as one shot.”
There is other testimony to the effect that there were fired, first, two shots, one after the other similar in sound, and then three of a different sound, fired in rapid succession, tending to support the Coopers in their contention that Mr. Carmack first fired two shots from his Smith & Wesson pistol, and then Robin Cooper fired three from his Colt’s automatic pistol.
Senator Carmack received three wounds in the encounter, two in the left side, one just below the left nipple, which ranged downAvard and to the right, one *76 just below tlie left shoulder, which also ranged downward and to the right, and the other slightly to the left of the median line in the back of the neck, which passed through the spinal cord and fell out of his mouth while lying in the street. There were at least five shots fired. There were two empty shells in Mr. Carmack’s pistol, evidently just exploded.
John D. Sharp, who was tried with the plaintiffs in error, testified in the case, and the tendency of his testimony is to corroborate the Coopers; but it appears from the testimony of Miss Mary Skeffington, the state librarian, that he did not see the shooting. Evidently, when the Coopers started towards Mr. Carmack, Mr. Sharp started in the'other direction, and could not have seen what took place. Miss Skeffington, who was coming south on the same side of Seventh avenue and met Mr. Sharp a short distance from Union street, says that, while Mr. Sharp was in sight coming towards her, she heard the pistol shots at the -scene of the tragedy, and she asked him, “What is that?” That he replied, “That' is shooting.” She asked, “Who’s shooting?” He replied, “That is Col. Dune Cooper shooting Senator Car-mack.” Miss Skeffington is not in any way attacked. •Her testimony not only contradicts Mr. Sharp in his statement that he saw the tragedy, but it also shows that he knew of the hostility of Col. Cooper to Mr. Carmack, and believed, from what he had just seen and heard, that his object in crossing the street and intercepting Mr. Carmack was to attack him.
*77 In addition to tRe testimony of Miss Skeffington, it is also shown that the evening was so murky and snioky that he could not have seen what did take place at the distance he was from the combatants.
Mr. Sharp went almost immediately down to Church street, when he was asked by some gentlemen, among them Mr. Ed Thomas, clerk of the state senate, what he knew about the tragedy, and he replied that he knew nothing. He is also shown to have been very hostile to Mr. Carmack, and the political friend and ally of Col. Cooper. His testimony is also greatly shaken . and weakened by his cross-examination, in which he was unable to sustain himself. The jury .evidently discredited him and discarded his testimony, and their action cannot, under the rule, he disregarded by this court.
A witness by the name of Benning was also introduced by plaintiffs in error, who testified to some things connected with the meeting of the Coopers and Mr. Car-mack ; but he is so thoroughly discredited and impeached that no further notice will be taken of his testimony.
There is much in the record, in regard to the relative positions of the three combatants, the order in which the several shots were fired, and the exact location and range of the wounds received by Senator Carmack and Robin Cooper; but we do not consider it material to go into these matters.
Much has also been said in regard to who fired the first shot; but this is an inquiry which we heed not now pursue.
*78 The contention of the State is that Ool. Cooper approached, intercepted, and assaulted Mr. Carmack as stated by Mrs. Eastman, with the intention of executing the threats he had made, because of the use of the former’s name in the editorial in the Tennessean that morning; and that the homicide committed, regardless of whether Mr. Carmack drew his pistol first or not, or the shots were fired by Col. Cooper or his son, the latter having intervened in behalf of his father, and therefore-occupying before the law the same position, was murder, and the verdict and judgment rendered against them Avas and is, upon the facts, correct.'
The contention of Col. Cooper and his son is that the former had relented from his announced determination •to kill Mr. Carmack, and approached him for the purpose of effecting a peaceable settlement of their differences, and that Mr. Carmack made a deadly assault upon them, or Robin Cooper, which justified them, or the latter, in taking his life, and thus that their plea of self-defense is sustained.
The jury trying the case found the facts as contended for by the State, and against the contention of plaintiffs in error, and the verdict was approved by the presiding judge.
The question now presented is whether this court, considering the entire record, can say that the evidence preponderates against the finding of the jury, and in favor of the theory of the plaintiffs in error.
Before we restate the facts which the State relies upon to, support its contention, we call attention to the three *79 witnesses, Mrs. Eastman, Mr. Cooper, and Robin Cooper, who were present and -testified to the immediate facts of the tragedy.
Mrs. Eastman appears in this record to be a lady of cnltnre and refinement, sustains herself well under cross-examination, and there is no attempt whatever to attack or discredit her. She has no interest in the case, or motive to misstate or distort what she saw and heard.
On the other hand. Col. Cooper and Robin Cooper had the greatest interest that men could possibly have, and, while under the statute they are competent witnesses, the jury were properly, instructed that in considering the weight of their testimony, and the credit to be given to it, they should look to their interest in the case.
It is also a rule that issues of fact are not to be decided in accordance with the number of witnesses arrayed upon either side; but the credibility of the witnesses, their interest in the case, the rasonableness of their testimony, and its consistency with other facts, are ■all to be considred, and often more weight is to be given to one witness than to several testifying to the contrary.
We will briefly review the facts which are found to be established in this record.
Col. Duncan B. Cooper had for months cherished bitter-enmity towards Senator Carmack. The night before the tragedy he had expressed his enmity to Mr. E. B. Craig, the personal and political friend of .Senator Car-mack, denouncing the latter in severe terms, and stating that, if his (Cooper’s) name again appeared in the *80 columns of Carmack’s paper, one or the other must die. This enmity and threat, with Col. Cooper’s knowledge and consent, was then communicated to Sentor Carmack. Whatever the language of the threat was, Col. Cooper and Senator Carmack both understood it to be, and it was, a threat to kill the latter if Col. Cooper’s name was again used by him in his paper; and on its being communicated, and Senator Carmack’s refusal to be intimidated, they both armed themselves, the former to execute his threat, the latter to defend himself.
Col. Cooper’s name was used - in a humorous editorial the next morning. The occasion for the execution of the deadly threat had happened. 'Col. Cooper at 91 o’clock in the morning told his son of what had occurred, and was so violent in his language toward Senator Carmack that his son became greatly alarmed about a meeting between his father and Mr. Carmack. He searched for him upon the streets, and armed himself to take part in the conflict he apprehended. He communicated with his sister to use had efforts to quiet their father, and called upon the governor of the State for his aid in the matter in such terms that that high official left his office and searched the city for Col. Cooper, in an effort to prevent the threatening homicide.
Mr. J. C. Bradford and the governor had an interview with Col. Cooper about 12 o’clock, and persuaded him to do nothing in the matter, while Mr. Bradford made efforts to secure the services of some one to adjust his differences with Mr. Carmack. A meeting was held at Mr. Bradford’s office at 3 o’clock, Gen. Brown being *81 present by request, and there Col. Cooper was induced to agree not to make another threat in writing by sending the note which he had prepared. The violence of his language and his determination to kill was such as to arouse all this anxiety and these strenuous efforts upon the part of these prominent gentlemen. When he left that office to visit the Governor’s Mansion, his son felt it necessary to accompany him. Col. Cooper says he ob-jerted, but, knowing the' boy as he .did, he expected .him to do so, which is inconsistent with the theory that he did not expect to meet or attack Senator Carmack. Both were armed. The threat communicated to Senator Car-mack the night before had not been withdrawn, and he had no evidence that Col. Cooper had changed his deadly purpose. When Robin Cooper saw Senator Carmack at a distance, he said to Mr. Sharp, “‘Don’t let papa see Mr. Carmack.” He knew his father’s deadly purpose, and felt that it would be executed if he saw the object of his enmity. He did not call upon Mr. Sharp to prevent Senator Carmack from seeing his father for fear of an attack upon him. He knew who would be the aggressor. When Col. Cooper discovered Mr. Carmack and pulled loose from his son, the latter appealed to him not to go, clearly because he knew what would follow in his father’s state of mind. Mr. Sharp, evidently from what he had heard and seen, without looking towards the tragedy, when he heárd the shots, stated to Miss Skef-fington, “It is Col. Dune Cooper shooting Senator Car-mack.”
*82 Ool. Oooper walked up to Mr. Carmack, screened from liis view by a lady, and said, “Well, here you are all right; I have the drop on you now,” and when the latter, surprised, jumped back, denounced him as a coward, hiding behind a woman.
Mrs. Eastman says the shooting began immediately. She further testifies of the manner of the meeting as follows :
“The first thing was the movement of Mr. Carmack,' and the expression of his face. He had had a perfect look of good fellowship and comradeship and pleasant anticipation of a talk up in that time. Then the face changed instantly, when the voice behind me broke in with, ‘I have the drop on you now.’ ”
When asked how long it was from the time she saw the pistol reversed in Mr. Carmack’s hand until the firing commenced, she answered:
“It wasn’t a second scarcely. . . . Mr. Carmack, as he stepped out this way, still had the pistol. The last sight I saw of it was while employed in his hand this way. I was the fraction of a second making this whirl into this gateway, and the shots followed each other immediately, and Mr. Carmack was dead.”
When asked on cross-examination:
“Who did you expect to do the fighting?” She answered :
“I expected the man who called him a coward in my rear, and told him to get from behind a woman, was going to do it on the one hand, and I presumed that Mr. Carmack was going to defend himself.”
*83 Then she was asked why she did not- beg Mr. Oar-mack not to shoot, instead of appealing to Ool. Cooper, and she replied:
“Because Mr. Carmack was standing a minute before oblivions of everything but myself, smiling at me, and I knew that he was not fighting, he wasn’t in a fighting mood, and the voice attracted his attention, and was in a way an assault.”
And then, again:
“I didn’t think of asking him not to shoot, because he was not the aggressor.”
These facts, .if not explained, or overcome by •other testimony, undoubtedly make out a case of murder. Every element of the crime is present. It is immaterial, under these facts, whether or not Mr. Carmack was the first to draw and fire his weapon. Col. Cooper was the wrongful aggressor. All his conduct unquestionably made a case which warranted Mr. Carmack in believing, and it is clear that he did believe, that his life was in danger and about to be taken, and he had the right finder the law to kill his adversary in his own defense. He was not, upon the sudden appearance of Col. Cooper, and his statement that he had the drop on him, after what had passed, required to wait for him to draw or fire his pistol; and, this being true, the Coopers had no right to act in self-defense, without first in good faith withdrawing from the deadly assault, real or apparent, which their conduct cleárly and unmistakably indicated they were making upon Mr. Carmack.
*84 We will refer to the authorities upon this question hereafter in this opinion.
The testimony which plaintiffs in error rely upon to overturn the case made out by the State is that Ool. Cooper, in the office of Mr. Bradford, had agreed not to repeat the threat communicated through Mr. Cráig, in writing, in a milder form; that he was on Seventh avenue for another purpose, that of visiting the governor; and that upon seeing Mr. Carmack he was seized with a sudden impulse to go to him in person and effect a settlement of their difficulties (there is no denial of all the other facts relied upon by the State occurring before this time); that, when he came upon Mr. Carmack suddenly behind a lady, he did not say that he had the drop on him, or draw a weapon, but addressed him as “Mr. Car-mack;” and that when the latter drew his pistol and shrunk back, as he must have expected him to do upon such a sudden meeting, after what had occurred, he denounced him in substance as a damned coward; and the testimony of himself and Robin Cooper is that Mr. Car-mack fired two shots at' Robin Cooper before they drew their weapons, and thus that they acted alone in their proper and necessary self-defense.
Oa.n this testimony of Col. Cooper and Robin Cooper, vitally interested as they are, even if it be corroborated by that of Mr. Sharp, a prejudiced witness, that Col. Cooper suddenly, as he was crossing Union street, upon seeing Mr. Carmack, forgot his deadly hostility and, changed his determination to kill Mr. Carmack to a desire for- a friendly interview, turned from his course, *85 crossed the street, and intercepted and surprised him, with no hostile intention, outweigh all the facts we have stated, tending to show the contrary?
We are compelled to say that it cannot. The jury, the triers of the facts, and whose special province it was to pass upon the credibility of witnesses and to weigh their testimony and settle conflicts in the evidence, have said by the verdict of guilty that the State’s contention to the contrary is established by the evidence beyond a reasonable doubt.
Their story is inconsistent with the deadly purpose Ool. Cooper had announced the night before, which he announced that morning to his son and daughter, and to prevent him from carrying into execution some of the most prominent men in the State were called on to interfere. It is inconsistent with the fact that father and son .continued carrying arms, and that the latter was accompanying his father with the expectation of a difficulty, with the desire of the son that his father might not see Mr. Carmack approaching,- and with the statement of Mr. Sharp of what was occurring when he heard the shots behind him. It is inconsistent with the character of Col. Cooper, and contrary to the common experience of men in such affairs.
Mr. Cooper’s evidence on the trial conclusively shows that he intended to do that which would provoke a difficulty, which carries with it the necessary implication and conclusion that he would execute his deadly threat if opportunity was offered.
*86 He says oí the meeting:
“The explanation was that I intended, and the purpose of my meeting Mr. Carmack on the street that evening was, to expostulate against this, and to tell him that I would expose his own private and personal life if this continued against me any further.”
He was asked:
“Q. Why did yon say that the town wasn’t big enough to hold yon both?”
And answered:
“A. It wouldn’t have been big enough after I published that, I thought.”
He was further cross-examined:
. “Q. So that you were going on a peaceful mission, for the purpose of saying to a man to whom you had sent this communication, with the fixed purpose to say to him, ‘if you don’t stop, I am going to expose your personal life.’ That was the peaceful mission you were on, wasn’t it?
“A. I was not on a peaceful mission. I was on a mission to stop this attack upon me.”
“Q. Peace wasn’t what you were after?
“A. I was not after war, either.”
Gan any one believe that he thought, after the threat that had been communicated, and the publication that had been made in the morning paper, that his sudden appearance before the "man he had threatened to kill, personally demanding that he cease the use of his name, and threatening to expose his personal and private character *87 if he did not, which wag not stated in the note, would be less offensive and. less likely to bring about a deadly encounter than the sending of the note -which he had agreed to withhold? According to his story, he was doing a hundredfold more than he says he had agreed not to do in the office of Mr. Bradford.
Ool. Cooper evidently expected Mr. Carmack to be armed, and to have a difficulty with him when they met.
'In his testimony he said:
“Well, I have always believed that a man who kept á fighting tongue should keep a fighting body.”
And, further, when asked, if he had received a message from a gentleman that if he did a certain thing again the town would not be big enough to hold them both, to explain how he Avould have construed that language, he started to answer, and, when his counsel objected, said:
“I want to answer that so bad.”
The objection being overruled, he continued:
“I would either, have quit offensively using it, or I would have prepared myself to meet him.”
On the same point he said:
“I would 'prepare myself for any trouble that might come.”
Further inconsistencies are found in the extraordinary statement of Col. Cooper that he only drew his pistol to shoot Mr, Carmack in the event he killed his son, and that of Robin Cooper that, notwithstanding that he went down to help his father and saw Mr. Car-mack draw his pistol, he did not draw his own, or fire, until two shots had been fired at him. These statements *88 are unreasonable and incredible in the light of other facts.
Again, Mr. Carmack had received notice that Col. Cooper would kill him on sight. There was no hostility between him and Robin, and it is most improbable, if Robin had not drawn a pistol, and was not endeavoring to shoot him, that he should bring his pistol to bear upon the son, with whom he had no quarrel, instead of upon the father, who, he had every reason to believe, was then seeking- to destroy his life, and whom alone he saw when he drew his weapon.
Col. Cooped states he had no weapon in his hand when he accosted Mr. Carmack. Mrs. Eastman says, when she first turned around, he had his hand extended; but she did not see a pistol, nor did she see the one Robin Cooper had. It is true, she saw Mr. Carmack draw his pistol; but then there had been no cause for excitement, as there was when she turned from the gate and looked at Col. Cooper. She also says the firing began immediately after Mr. 'Carmack drew his pistol. And, again, if Col. Cooper and his son did not have weapons in their hands, why was it that Mr. Carmack jumped backward, drew his own weapon, and moved toward the telephone posts, and began to fire his pistol? He had made no threats, and his whole conduct, from the time he left his office to the moment when Col. Cooper first accosted him, was one of peace and quietude; and it is not probable that he had it in his mind to make a deadly attack upon any one, while in the act of courteously lifting his hat to a lady. Clearly, there was some action upon the part of the *89 Coopers that justified him in believing his life was in danger, and that it was necessary for him to draw his weapon in self-defense.
Was Col. Cooper’s manner of approach, and his denunciation of Mr. Carmack as a damned coward, indicative of a peaceful intention? Would he have not, if his story was true, instead of suddenly accosting Mr. Car-mack while he was addressing a lady, waited a few minutes, and, when he saw Mr. Carmack draw his weapon, would he not, instead of denouncing him, have said, “Mr. ■Carmack, I am not here for hostilities; I want to speak and reason with yon about our troubles?”
We think that it must be held that the contention of the State that Col. Cooper crossed the street and intercepted Mr. Carmack for the' purpose of making a deadly assault upon him is consistent with every other material fact in the case, and sustained by the preponderance of the evidence, and that Col. Cooper’s statement that he approached Senator Carmack merely for the purpose of demanding that the publications cease is inconsistent with such facts, and unsupported by the weight of the proof.
Col. Cooper evidently compassed the death of Mr. Car-mack that day. Soon after he reached Dr. Fort’s infirmary near the scene of the tragedy, and to which Robin Cooper was carried, he telephoned to his daughter, Mrs. Burch, saying: .
“Daughter, it is all over; Robin has killed Carmack.”
In other words, “The deed is done.”
*90 We think, however, even if the contention of the plaintiffs in error upon the facts as to the meeting was sustained by'the record, this assignment of error must he overruled. That is to say, if it he conceded that Col. Cooper entertained hitter enmity and hostility toward Mr. Carmack for months past, and had become greatly enraged because of the article appearing in the Tennessean upon Sunday morning; that he expressed this bitterness and animosity tó Mr. Craig, and threatened, if his name was again used in that paper, that one of the two, Cooper or Carmack, would have to die, and this Col. Cooper knew, had been communicated to Mr. Carmack, and the latter refused to agree not to again use Mr. Cooper’s name, who, when this was related to him, became more angry and enraged, of which Mr. Carmack was also informed; that Col. Cooper’s name did appear the next morning in the Tennessean in a humorous and sarcastic article; that Mr. Carmack was informed that Mrs. Burch, the daughter of Col. Cooper, had stated, in consequence of a conversation with her father, that the latter would kill him on sight; that Col. Cooper, while crossing Union street, upon discovering that Mr. Car-mack was approaching, suddenly changed his intention to kill him, and, without notifying Mr. Carmack, resolved to have a personal interview with him, and demand that he cease the use of his name in the columns of his paper, under penalty of exposure of his personal and private life, and with this intention uncommunicated, crossed the street, advanced upon Mr. Carmack under cover of a gentleman and lady, and suddenly appeared *91 before Mm and addressed Rim, “Mr. Carmack,” and when the latter shrunk hack and drew his pistol, with his (Cooper’s) hand extended, denounced him in substance as a damned coward, and Mr. Carmack opened fire upon him and his son Robin, who in the meantime had intervened, and who then, and not until then, returned the fire- and killed him — they would not he entitled to rely upon the right of self-defense.
The conduct of Col. Cooper, in the light of his enmity and threats against the life of Mr. Carmack, and his action and words at the time, constituted an overt act upon his part which authorized Mr. Carmack to believe that Col. Cooper was about to execute Ms threat, and that he was at his hands in danger of great bodily harm- or death, and would have justified him in slaying his adversaries.
In other words, Ool. Cooper’s conduct made him the wrongful aggressor, which justified the action of Mr. Carmack and deprived the former of his right of self-defense.
There can he no doubt, upon Col. Cooper’s own testimony, that Mr. Carmack, when he first saw Col. Cooper behind Mrs. Eastman with his hand outstretched, had reasonable grounds to believe, and did believe, himself in danger of death, and that his belief was confirmed when Col. Cooper denounced him as a damned cowardly scoundrel, and Robin Cooper suddenly appeared from the other side of him, evidently for the purpose of aiding his father.
*92 We find this concession in the brief for plaintiffs in error:
“It might very well have appeared to Senator Car-mack, in view of the threat which he had been informed that Col. Cooper had made to kill him on sight, that he was being attacked, and was therefore warranted by the unexplained approach of the defendants in opening fire on Robin Cooper, and in a certain sense we concede that by crossing the street and going down to meet' him the defendants did provoke the difficulty; that is, that the killing would not have occurred at that time and place if the defendants had not so crossed the street.”
There is no doubt that, under the law, a case was presented which would have justified Mr. Carmack in killing Col. Cooper, conceding the contention of the latter, upon the belief that it was necessary to protect his life. He had reasonable and well-founded ground for such belief.
In Allsup’s Case, 5 Lea, 362 , the doctrine of self-defense is stated in these words.: “The law has been long settled on this subject in our State, and is that if a party is in real or apparent danger of death or great bodily harm, or believes himself to be so, as evidenced by circumstances justifying that belief as the facts appear to him, and he in good faith, under such apprehension, kill his adversary, it is justifiable homicide.”
What is such an overt act as will authorize a party to slay his adversary in self-defense always depends upon the facts of the case on trial.
*93 In the case of Cummings v. State, 99 Ga., 662 , 27 S. E., 177 , cited in State v. Summer, 55 S. C., 32, 32 S. E., 771 , 74 Am. St. Rep., 725 , it is said:
“An overt act, that will justify a defendant in assuming that his own life is then in danger, must depend upon the circumstances of each particular case.”
The court then proceeds to state some hypothetical cases, one of which is as follows:
“Or cases might occur where the fact that the deceased met the defendant under the particular circumstances and in connection with previous facts might show that the deceased sought the meeting and with a deadly purpose, and be in itself an overt act.
“Accordingly it has been held that a person about to be attacked is not bound to wait until his adversary gets ‘the drop on him’ before he can take steps to defend himself, but he may safely act upon appearance and kill in self-defense.”
A leading case in Tennessee upon this subject is that of Jackson v. State, 6 Baxt., 458 , where Judge Robert McFarland, speaking for the court, said:
“It is said there must have been an overt act of the deceased at the time, showing his deadly purpose; but what is an overt act, and who is the judge whether or not there was such overt act? If the parties, previous to the fatal meeting, had been friends with no hostile feeling, the deceased a person with mild temper, certainly an overt act upon the part of the decased, that would justify the defendant in taking his life upon the assumption that it was necessary to do so in order to *94 save Ms own, onglit to be some demonstration of a very decided character, indicating a .deadly or dangerous purpose. On the other hand, if the parties were deadly enemies, and the deceased had previously made attempts or threats against the life of the defendant, and was known to be a person of violent and dangerous character, likely to execute his threats, then in such case, upon the parties meeting, the defendant would not necessarily be bound to wait until his adversary had actually drawn a deadly weapon, or was in the very act of striking. The necessary overt act in the one case might be different from the other. It is difficult to lay down a rule strictly covering all cases. The circumstances of the cases differ so widely. The overt act that will justify the defendant in assuming that his own life is then in danger must depend upon the circumstances of each particular case. Cases may be readily supposed, and no doubt in reality often occur, when to require a defendant to wait until there would be but little chance left of successful defense. Cases where the deadly purpose of the party is so- fixed and determined, his character so reckless and bloody, his use of deadly weapons so expert and skillful, that to wait his attack would be to wait almost certain death, and the result of the encounter would often depend upon which was the quicker in action. Tn cases of this character, where the parties meet, a very slight movement might justify either party in acting at once upon the assumption that his life is then in instant peril, or cases might occur where the fact that the deceased met the defendant, under the particu *95 lar circumstances and in connection with previous facts, might show that the deceased sought the meeting with a deadly purpose, and he in itself an overt act.”
Plaintiffs in error rely upon the case of Foutch v. State. 95 Tenn., 713 , 34 S. W., 423 , 45 L. R. A., 687; but it does not apply to the facts in this record. What occured at the time Foutch killed Malone is not stated in the opinion; hut it does appear that, instead of these parties being hostile to each other, upon the day of the homicide Foutch had acted as mediator between his sister and Malone, and was upon friendly terms with the latter. What is there said must be confined to the facts of that case.
The.contention of plaintiffs in error is that a man of known determined character, bitterly .hostile to another, whose life he has threatened to take if a certain thing happens, which threat is communicated, and the thing-immediately happens, can, within a few hours thereafter, approach him for the discussion of their differences, without communicating his change of mind, under such circumstances as justified his enemy in believing that the deadly threat was about to be executed, and his life was in danger, and, wlien the latter undertakes to defend himself, slay him with impunity.
Such a doctrine would be monstrous. It is not the law of Tennessee. This is admitted. In brief for plaintiffs in error, it is said:
“We do not deny the general rule that one who takes the life of his adversary in a conflict in which he is the aggressor, or which is provoked or brought about by *96 Ms unlawful act, is not excusable on tbe ground of self-defense.
“This proposition is too well settled to be questioned.”
In Rippy v. State, 2 Head, 219 , Judge Caruthers, in treating the doctrine of self-defense, said:
“It is scarcely necessary to remark that a real or apparent necessity, brought about by the design, contrivance, or fault of the defendant, is no excuse.”
In Irvine v. State, 104 Tenn., 148 , 56 S. W., 848 , it is said:
“The trial judge in this case, with unusual ability and care, instructed the jury. After stating in general terms the respective contentions of the State and the defense, he said to them in effect, if they found that Warren and Drew Irvine, or either of them, made so violent an assault upon the deceased as to create in his mind a reasonable and w’ell-founded apprehension that he was in imminent danger of death or great bodily harm, and, acting under this apprehension, he, with his pistol, made a counter deadly assault upon them., they would not be justified in taking his life, unless first they had abandoned the combat and notified, by words or acts, their adversary that they had done so, and, if they had not time to do this, then, being at fault, they must take the consequences; for as the deceased, acting upon the appearances created by their wrongful acts, would have been justified in slaying them, the defendants, whose fault created these appearances, could not make the legal acts of the deceased looking to Ms own defense, a justification for the homicide.”
*97 This was held to he correct.
And again, in the same case, another.instruction held sound was in these words:
“On the other hand, with equal emphasis and intelligence, he told the jury that where the assailant, by the violence or fierceness of the attack, put the assailed party in danger of felony to life or limb, or gave him reasonable ground to suppose that he was in such danger, then the latter had a right to' draw a deadly weapon and slay, if necessary, and the «former could not kill in his own defense, unless he had first withdrawn from the combat, and by word or deed given the assailed.notice of such withdrawal.”
In State v. Hecker, 109 Cal., 463 , 42 Pac., 312 , 30 L. R. R. A., 407, it is said:
“For, as the deceased, acting upon the appearances created, by the wrongful acts of. the aggressor, would have been justified in killing him, he whose fault created these appearances cannot malte the natural, legal acts of the deceased, looking to his own defense, a justification for the homicide. Before doing so, he must have destroyed these appearances, and removed, to the other’s knowledge, his necessity, actual or apparent, for self-preservation.
“And if the circumstances are such, arising either from the condition of his adversary, caused by the aggressor’s acts during the affray, or from the suddenness of the counter attack, that he cannot so notify him, it is the first assailant’s fault, and he must take the consequences.”
*98 In the case of Levy v. State, 28 Tex. App., 203, 212, 12 S. W., 596 -598, 19 Am. St. Rep., 826 , the insistence .of the defendant was that he was seeking an interview on a peaceful mission. In the course of the opinion the court said:
“If his intentions were peaceable and his mission an innocent one, why not apprise the deceased of it; and especially so when, if it be true, he saw deceased mistaking his motives and purposes and apparently preparing to draw a deadly weapon upon him? Under these circumstances, can there be the slightest doubt that the defendant, intentionally provoked the occasion which produced the killing? If so, there can be no self-defense in this case.”
In Allen v. State, 66 Miss., 385 , 6 South., 242 , the facts stated in the opinion are as follows:
“The deceased was a ‘section boss’ on the Illinois Central Railroad, and the accused was one of . the hands working under him. On the morning of the killing the deceased had a difficulty with the accused, and cursed him and exhibited a pistol. The accused left the road, .and soon afterward the deceased also left, returning in an hour or two with a gun loaded with ‘buckshot.’ He walked up the track, looking down on the ground, and while near the laborers engaged in work, and in a deep cut, he was accosted by the accused, who was on the bank some 40 feet above him,- who said, ‘Mr. Hadnott, you cursed me this morning and had a pistol, and now you have a gun.’ Deceased immediately turned in the direction of the accused and raised his gun. Where *99 upon, the accused shot and killed him. No witness for the State or the defendant had given any evidence of threats made by the accused at the time he left the road in the morning.
“He testified as a witness in his own behalf, and according to his own evidence, the verdict is manifestly right.
“Accepting his account of the killing this is what occurred : After the difficulty in the morning, he went to his home, loaded his shotgun, and returned to the place where Hadnott was, to compromise the difficulty, taking the loaded gun along to protect himself, as Had-nott, he says, was ‘very mad when I left and a high-tempered man.’ He did not go along the road, for .fear Hadnott would shoot him on sight, but went on the bank, and accosted him in the words given by the State’s witness. He stood with his gnu on his right side, muzzle downwards, and, upon calling to Hadnott, he (Had-nott) turned and presented his gun, whereupon the de-defendant, he says, leveled his gun at his side, and without raising it to his shoulder*, or taking any aim, let her go.’ There can be but one construction of this conduct, and that is that the appellant purposely concealed his approach from Hadnott, secured a position of advantage, with his gun ready for instant use, called to the deceased in language not of compromise nor of peace, and, as he turned to protect himself, -fired upon him. Having-invited the danger in which he stood, it was murder to kill his adversary, even if his own life was in peril.”
*100 In Thomas v. State, 61 Miss., 65 , according to the defendant’s statement of the facts, there had been hitter animosity between him and the deceased, mutual threats of hilling having been made. A compromise and settlement had been brought about, but after its acceptance by both sides, the deceased had expressed an intention of killing the defendant.
“The defendant states that, while sitting at one end of the gallery which extends along the front of the building, he suddenly perceived the deceased sitting on the steps of the gallery at the other end, his back turned toward the building. Deceased was engaged in conversing with a gentleman sitting near him on the steps. Defendant says that, as soon as he recognized the deceased, he drew his pistol from his hip pocket, placed it in a pocket of the linen duster coat which he Avas wearing, arose from the seat, advanced to.wards the deceased, until he was within a few feet of him, and then, halting behind and a little to the left of him, said, ‘Now I am ready for you to shoot.’ Deceased instantly arose from his seat,- throwing his hand behind or to his side as he did so, and the defendant at once fired. The ball struck deceased in the back, two inches to the left of the back bone. He sprang forward off the steps, ran a distance of twenty-five yards and fell to the ground. He was taken into the house, and died the next day. This 'is the version given by the defendant.”
The court said:
“He who by his own conduct compels another to get ready for self-defense cannot claim that the responsive *101 preparation lias put Ms own life in danger, and thereby justified him in stopping the preparation by slaying him who was mating ready for a combat into which he had been forced. Taking the defendant’s own testimony, therefore, as absolutely true, the verdict was manifestly correct, and any other would have been clearly against the law and the facts.”
In George v. State, 145 Ala., 41 , 40 South., 961 , 117 Am. St. Rep., 17 , the court said:
“The defendant did not have to wait until a felonious assault was made upon him. If the other elments of self-d’efense existed, and the deceased had made threats against him which had been communicated to him, he had the right to act upon any overt act or hostile demonstration which may have led to the honest belief that he was in imminent peril, but which said act or demonstration may not have amounted to a felonious assault.”
In another case it is said:
“Where the deceased had published in his newspaper articles reflecting on the accused, and the latter, seeing the deceased on the street, crossed it and addressed him, when the fatal quarrel took place, the jury must determine whether the accused was guilty of murder, and, in considering the intent of the accused in crossing the street and addressing the deceased, take into consideration the existing feeling and apprehension of the parties, and if they find that the accused calculated thereon to bring about a personal difficulty, he being prepared and intending to make use of it, if it occurred, the killing is not justified as self-defense, and is murder.” Baker v. *102 Kansas City Times, Fed. Cas. No. 773, cited in Century Digest, vol. 26, p. 242.
Counsel for plaintiff’s in error cite a number of cases from other States upon this question, all of which we have examined; but we find the facts of them so different from those of the case at bar they have little or no application, and it will serve no good purpose to discuss them at length, and we will not do so.
Every man is. .bound to contemplate the reasonable and natural result of his conduct, and must answer for such result, especially when the injured party is without fault. Col. Cooper knew, as we have shown, that his appearance there would cause Mr. Carmack to believe that his deadly threats were about to be executed, and to act in self-defense, and he cannot rely upon the conduct which, he induced to justify him in bringing about the death of his enemy.
A strong argument is made to sustain a separate defense supposed to exist in favor of Robin J. Cooper, because of the claim that he tried to. prevent his father from assaulting Mr. Carmack, and was only present in obedience to a natural filial desire and duty to protect his father in the event of a hostile meeting. It is conceded that he did intervene to help his father, and that he fired the shots that caused the death of Mr. Carmack, and there is much to show that he did all he could to prevent a hostile meeting.
The general rule is that one who intervenes in a difficulty between others stands with, and must accept all the responsibility, and liability of, the party for whom *103 he intervenes. We will not discuss this question here. It is the subject of the thirteenth, fourteenth, and fifteenth errors assigned, and will- be treated when we reach those assignments.
This (the first) assignment of error must be overruled.
The second assignment is directed to a special portion of the charge. Before quoting the excerpt from the charge, it is necessary to say that, after the trial judge had stated the theory of the State, he said: “Now, gentlemen, if you believe this insistence to be true and fully warranted by the facts, and are satisfied of the' same beyond' a reasonable doubt, it would be your duty to convict all of the defendants for the crime and felony of murder in the first degree, either with or without mitigation.” He then added the following matter, which is objected to:
•“Or, if you further believe from the facts that Robin and John D. Sharp were standing on .the corner of Union street and Seventh avenue North, as above stated, and saw Senator Carmack coming, and that defendant D. B. Cooper came up. and made inquiries as to what was the matter, and, looking back, saw Senator Car-mack, and thereupon determined to go and meet him and have a talk with him, and, if he, the said E. W. Car-mack, resented the talk on his approach, that he, the said D. B. Cooper, intended, if necessary, to take his' life, or intended to speak with him or accost him, intending to bring on a difficulty, in order to give a reason or excuse for shooting and taking the life of the deceased,' E. W. Carmack, and that the defendant Robin Cooper' *104 crossed the street with his father, or a short distance behind him, intending to second him and assist him in carrying out his purpose or purposes, as above described, and entered into the fight willingly and under the conditions above described, he would be equally guilty with the defendant D. B. Cooper, and you would be warranted in finding both of them guilty of murder in the first degree.”
Then immediately follows:
“Or, gentlemen, if you believe, taking all the circumstances and conditions into consideration which had traspired between the parties, that is, the deceased, D. B. Cooper, and Robin Cooper, that the said D. B. Cooper had threatened the life of the said Carmack, that is, that he was going to kill him, or one or the other of them must die, or that the town would not be big enough to hold them both, and that he had written a note for the purpose of sending the said E. W. Carmack, stating in substance what had already been sent as a message by Mr. Craig to the deceased, and that he did not send the note at the solicitation of friends, but, on seeing Senator Carmack, his intention to take his (Car-mack’s) life was revived, if he ever had it, and that he formed at that time a fixed purpose to carry that intent into execution, and crossed the street for that purpose, either to open a fight directly on their getting together, or having a conversation with him, intending thereby to bring on a fight, and, if the said E. W. Carmack resisted, to take his life, and that Robin Cooper was present intending to assist his father in any and all extremes *105 and under any and all circumstances, it would lbe for you to determine Avhether or not the approaching of Ool. Cooper and the language used by him as he approached, if any was used, was such an overt act as would reasonably cause the deceased to believe that he, the defendant D. B. Cooper, was about to carry his alleged threat into execution, and that he was approached by both of them in this manner and form, and had reason to believe that his life was about to be taken or done some great bodily harm, in that event he would have the right to defend himself from the threatened attack.
“And if the defendants D. B. Cooper and Robin Cooper thus approached him, and he (Carmack) fired the first shot or shots under these conditions and circumstances, and they returned the fire, either one or both of them, and took his life and caused his death, in that event, gentlemen, the defendants could not avail themselves of the right of self-defense, unless there was something to show the deceased, either words or actions, that they had abandoned their purpose, if they ever had any, and did not mean to carry the alleged threats into execution; but whether there was or was not an overt act of the defendants D. B. Cooper and Robin Cooper is a matter for you to determine in the light of all the proof which the court has permitted the witness to state in your hearing for your consideration.
“In other words, if you believe from the facts that the defendants D. B. Cooper and Robin Cooper approached Senator Carmack on a mission of peace and for the pur *106 pose of having a conversation, and for no other purpose, and that there was nothing in their conduct to indicate any other purpose, or that there was no overt act or word used on their parts which would warrant the conclusion that they intended to attack him, take his life, or do him any great bodily harm, in that event, if they were attacked by the deceased, they would have a right to use such means as were in their power for their self-defense, as above set out and described. But if they intended, as above stated, tp talk to the deceased, and, if a difficulty ensued on account of the conversation, they intended to take the life of the deceased, if he made any resistence, in that event the plea of self-defense would not be available, and they would be guilty, and you would be warranted in finding them guilty of murder in the first degree, as above set out and described.”
. Then, after stating in a narrative • form the theory of defendants down to the point where they had reached the corner of Vine street or Seventh avenue and Union street, the charge continued:
“That as soon as the defendants John D. Sharp and Robin Cooper reached the corner of Vine street, or Seventh avenue, and Union street, Robin Cooper discovered the deceased, Carmack, on the opposite side of Vine street, coming north on Vine street in the general direction of them. Immediately upon Robin Cooper seeing Carmack, the deceased, and realizing that possibly there might be a meeting between Carmack and D. B. Cooper, and knowing, or believing, that said Carmack had not been informed of the determination that his *107 father had reached not to send him the note which he (Carmack) had been informed, through the witness Craig, the night before, that the'defendant D. B. Cooper intended to send, and fearing that if they did meet that there wonld he a difficulty between them, or that the said Carmack wonld attack the .defendant D. B. Cooper, the said Robin Cooper at once turned to his. father, the said D. B. Cooper, and said to his father, his father being some twenty-five or thirty feet down the street, £Hurry up, Papa,’ or 'Gome on,’ or words to that effect, and thereupon said D. B. Cooper replied, 'All right, wait a minute;’ that Robin Cooper stood there until his father came up, and that Robin caught him, defendant D. B. Cooper, by the arm, and' turned him, said D. B>. Cooper, away from the direction in which Carmack was coming, and up toward the direction of the Governor’s Mansion, to which he (Cooper) was going, and as’he was hurrying him across the street, there was something in his (Robin Cooper’s) manner and his manifest anxiety to get his father across the street that caused him, the said D. B. Cooper, to turn around, and upon doing so he saw the said E. W. 'Carmack approaching; that up to this time he had no expectation and no thought and no idea that he would meet the said E. W. Carmack at this place.
“That neither he nor Robin Cooper nor John D, Sharp knew the habits of the said E. W. Carmack.
“That they did not even know where he lived, and that they had not seen him during that day, and consequently had no reason to expect or believe that they would see *108 him .at this place at this time, and. that their meeting here was purely an accident.
•“That as soon as the defendant D. B. Cooper saw Car-mack, he turned hack from the way that they were going, and upon an impulse which suddenly came to him he started down in the direction from which Carmack was approaching, for the purpose of having a talk with him, and to demand of Carmack that he stop the further offensive use of his name in his paper, the Tennessean, and he started down in the direction from which Car-mack was approaching, going' diagonally • across the street from about the northeast corner of Union and Vine streets, towards the entrance to the Polk Plats, on the opposite side.
“That his son, Robin Cooper, after hearing his father say that he was going over to have a talk with Carmack, after a few moment’s hesitation, followed his father.
“That after the defendant D. B. Cooper had gone upon the sidewalk in front of the Polk Plats, and was within about ten or fifteen feet of Carmack, his son, . Robin Cooper, being out in the street, but near the curbing, at a point about opposite D. B. Cooper, and as Carmack was in the act of passing Mr. and Mrs. Eastman, and just as he had spoken to them, which he did in the act of passing, defendant D. B. Cooper raised his empty hand, and, extending it in the direction of the deceased, addressed him, ‘Mr. Carmack.’
“That immediately upon being thus addressed the de- - ceased (Carmack) looked up, saw Cooper with his empty hand extended, immediately drew his pistol from his *109 pocket, either Ms overcoat pocket or Ms Mp pocket (it is immaterial which ), and, as he drew his pistol, stepped slightly to the rear, and in the direction of the curbstone, so as to place Mr. and Mrs. Eastman between him and defendant D. B. Cooper, Oarmiack stepped in front of Mrs. Eastman from where defendant D. B. Cooper stood, thereby placing Mrs. Eastman between himself and the said D. B. Cooper, he, the said D. Bi. Cooper, said in substance, ‘Why are you hiding behind that woman, you dastardly coward,’ or, ‘It is d — d cowardly to he hiding behind a woman with a pistol in your hand/ or words to that effect, to which the deceased (Carmack) made no reply, but continued in the direction of the curbstone, with his pistol in his hand, facing north, until finally he got off the pavement, and stepped into the gutter, behind and east of the south pole.
“That as the deceased (Carmack) made this movemnt, the defendant Robin Cooper sprang upon the pavement, seeing that the deceased had a pistol in his hand, and that he had, with his drawn pistol, gotten behind the post, sprang up on the pavement, and passed rapidly between his father and the post behind which the deceased was standing, and on down the pavement until he reached a point on the pavement about opposite the posts, and between the posts and the west side of the pavement, and as he did this Carmack fired from behind the south pole, his arm and pistol being extended between the north and south pole, this shot striking the defendant Robin Cooper, from his left, passing through the knot in his necktie, and ranging to the right, through his *110 collar and sliirt, and finally embedding- itself in the top of his right shoulder, and Carmack was at such close proximity to him when this shot was fired that the left side of his face and collar on the left side were badly powder-burned.
“That immediately upon receiving this shot Robin Cooper moved and turned slightly to the east, and in the direction from which the shot came, drawing his pistol, as he made this move, from his overcoat pocket, and that up to this time he had not drawn or attempted to draw any pistol, a.nd as he did so, that is to say, while in the act of moving and turning in the direction of Carmack, and in the act of drawing his pistol, Carmack fired a second shot, which passed through the clothing or sleeve oh his left arm.
“Immediately upon firing this second shot, Robin then passed just below the south pole, and turned, facing Car-mack, Avho, in the meantime — that is, Carmack — had withdrawn his pistol and arm from between the poles, and was standing with his left side exposed to Robin Cooper, facing him with Mr. Carmack’s pistol pointed at Robin.
“That immediately upon getting in position, as heretofore indicated, just below or south of the south pole, and very close to it, Robin Cooper began firing upon Car-mack, and fired three shots, when he realized that his shots had taken effect, and that Carmack was falling; that he then fired no more, and Carmack fell instantly as the result of these shots.
*111 “Now, gentlemen of tlie jury, I charge you if, in view of all the evidence in this case, you are satisfied that the killing occurred under these circumstances, or have in your minds a reasonable doubt as to whether it occurred under these circumstances or not, then the defendants would he entitled to the benefit of the doubt, and your verdict should be as to all of these defendants ‘not guilty.’ ”
If there be any error in the first paragraph quoted above, as is complained of by the plaintiff's in. error, it is fully cured by what immediately follows in the charge as set forth above. But we do not think there is any error in the paragraph, when properly under-stood. The plaintiffs in error, instead of taking the paragraph as written, have cut it up into two paragraphs, dissociated it from its context, and then assigned error against the new paragraphs so constructed. This is not a proper method of assigning error against the. charge of the trial court.
Moreover, the paragraph complained of contained an instruction as to what would make the defendants guilty of murder in the first degree, and if there was any error in this, it is not reversible error, because the defendants were convicted only of murder in the second degree. Where a defendant is convicted of a lower grade, error in the charge of the court as to the higher grade is not reversible. Wickham v. State, 7 Cold., 529 , 530; Parham v. State, 10 Lea, 502 ; Tarvers v. State, 90 Tenn., 498, 499 , 16 S. W., 1041 , and the cases cited: Frazier v. State, 117 Tenn., 441, 446 , 100 S. W., .94; *112 Powers v. State, 117 Tenn., 372 , 97 S. W., 815 , and cases cited; Wilson v. State, 109 Tenn., 167 , 70 S. W., 57 .
The third assignment of error is directed to the fourth paragraph, which we have quoted from the charge in disposing of the preceding assignment. That paragraph reads:
“In other words, if you believe from the facts that the defendants D. JB. Cooper and Robin Cooper approached Senator Carmack on a mission of peace and for the purpose of having a conversation, and for no other purpose, and that there was nothing in their conduct to indicate any other purpose, or that there was no overt act or word used on their part which would warrant the conclusion that they intended to attack him, take his life, or do him any great bodily harm, in that event, if they were attacked by the deceased, they would have a right to use such means as was in their power for their own self-defense, as above set out and described. But if they intended, as above stated, to talk to the deceased, and, if a difficulty ensued on account of the conversation, they intended to take the life of the deceased, if he made any resistance, in that event the plea of self-defense would not be available, and they would be guilty, and you would be warranted in finding them guilty of murder in the first degree, as above set out and described.”
It is assigned as error to the first sentence of this paragraph that the jury may have been misled by what is there said upon the subject of “a mission of peace;” that-is, by the use of that expression, since Ool. Cooper testified that he was going to tell Senator Carmack in the *113 proposed conversation tliat, if he did not desist the offensive use of his name in the Tennessean, he would expose the record of his public and private life; that this was not a mission of peace, in the sense that these terms are ordinarily understood; that is to restore their former friendly relations, nor was he going on a mission of war, in the sense of provoking a combat; that he was going to demand neither a retraction nor an apology, but a cessation of Mr. Carmack’s continued criticisms and abuse; that the jury may not have regarded this as a mission of peace, and, if they did not, they were in effect instructed that in undertaking to make this demand, Col. Cooper was the aggressor, and thereby provoked the difficulty in such a sense as to deprive him of the right of self-defense.
We do not think there is any force in this objection that the jury could have had such a misunderstanding of the matter as is suggested by counsel.
The second division of this- assignment is addressed to the last sentence of the paragraph above quoted, which sentence is:
“But if they intended, as above stated, to talk to the deceased, and, if a difficulty ensued on account of the conversation, they intended to take the life of the deceased if he made any resistance, in that event, the plea of self-defense would not be available, and they would be guilty, and you would be warranted in finding them guilty of murder in the first degree, as above set out and described.”
*114 It is observed'that the clause “as above stated” appears in this- sentence. This refers to the preceding paragraph, in which the matter had been fully and correctly gone into. The jury could not have been misled by what was said in this sentence.
The fourth assignment of error is based upon the failure of the trial judge to define or tell the jury what would or would not amount to the provocation of a difficulty. What his honor said upon this subject was as follows:
“A defendant cannot be denied the right to rely on the plea of self-defense merely because he was in any sense, justly or unjustly, the ‘aggressor,’ or ‘in fault/ or ‘provoked the .difficulty’ in which another was slain. In order to deny him the right to rely upon the plea of self-defense, it must appear that he was the ‘aggressor/ or ‘in fault/ or ‘provoked the difficulty’ in such way and with such intent as the law contemplates in the use of these terms. • It is not every ‘aggression’ which produces a difficulty that is an unlawful one within the meaning of this phrase; nor is it every fault which a man might commit that precludes him from defending himself when violently assaulted or menaced; nor is it every ‘provocation of a difficulty/ which robs him of the right of self-defense. His right depends upon the character and intent of his act. Language used, however opprobrious, is not sufficient to deny him the right. If defendant’s act is an assault, or the menace of one by an overt act, or the provocation of a difficulty with the intent to inflict death or great bodily harm in the event it is resisted, made of *115 malice to bring about that result, and enable tbe pro-yoking party to wreak bis yengeance upon tbe assailant, that is an 'aggression,’ or 'fault,’ or 'provoking a difficulty,’ within tbe legal sense and meaning of tbe term, and if tbe combat is provoked, or tbe occasion to kill is produced on this account, with this intent, and for this purpose, defendant cannot rely upon tbe plea of self-defense; otherwise, be can.”
This was sufficient. Foutch v. State, 95 Tenn., 711, 716, 717, 718 , 34 S. W., 423 , 45 L. R. A., 687.
Tbe fifth assignment rests upon the refusal of tbe trial judge to charge defendant’s request No. 1, which is as follows:
"Gentlemen of tbe jury, it is insisted by tbe State in this case that tbe difficulty, in which tbe deceased, Car-mack, lost his life, was provoked or brought about by tbe fault or contrivance of tbe defendants, or some one of them, and particularly of tbe defendant D. B- Cooper, and consequently that these defendants, although they may have been assaulted and shot at by Senator Car-mack, bad no right to shoot him; for, having provoked the difficulty, having produced the necessity for Carmack shooting at them, under the law they would not have the r-ight to shoot at Carmack, and would be deprived of the doctrine of self-defense.
''Nowr, in this connection I charge you this: In order for this doctrine to apply, and before these defendants can be deprived of the right of self-defense, if you find that the deceased, Carmack, at the time he was killed,' was making a deadly assault upon Robin Cooper, or *116 upon D. B. Cooper, it must appear to your satisfaction, and beyond a reasonable doubt, that these defendants, or some one of them, must have sought or provoked this difficulty with the deceased, with the intent of killing him or doing him some great bodily harm. In order to deny the defendants the right to rely upon the plea of self-defense, it must appear that they were the aggressors, or in fault, or provoked the difficulty in such way and with such intent as the law contemplates by the use of these terms; and in this connection I charge you, gentlemen of the jury, that the defendant D. B. Cooper had a right under the law to seek out, or had a right under the law, when he saw deceased, Carmack, approaching him, to go across the street and meet him and have a talk with him, and to protest, and, if necessary, to demand that the said Carmack should cease the offensive use of his name in his paper; and I charge you further in this connection that the fact that Cooper and his son both may have been armed, and the fact that Cooper may have the night before, through Ed Craig, said that one or the other of them, either he or Carmack, had to die if his name was used any more in an offensive way, and the fact that he sent this threat to Carmack, his name again appeared in the paper in such a way as to be offensive to Cooper, that nevertheless, and without regard to all this, Cooper still had the right under the law to approach Carmack, and to make the demand upon him that his name be no longer offensively used in the paper, and the mere fact that he did approach him for this purpose, if this was his purpose, would not be such an ag *117 gression upon Cooper’s part, or such provocation by Cooper or bis son and codefendant, Robin Cooper, of exercising the right of self-defense, and of shooting and of killing Carmack, or shooting except in their necessary self-defense, and all that they did was simply to jvalk across the street to meet him, and, as they approached him, defendant D. B. Cooper, with his empty hand extended, addressed him as ‘Mr. Carmack.’ If, nnder these circumstances Carmack immediately drew his pistol, he himself put these defendants upon the defensive, and in that event either or both of these defendants had the right to kill him, if it appeared necessary to kill him in order to save either of them from death or great bodily harm at his hands; and this would be none the less true, although it may appear to you from the evidence that defendant D. B. Cooper said in substance, ‘Well, here you are all right; I have got the drop on you,’ if at that time it appeared or should have appeared to the deceased that the defendant D. B. Cooper did not have the drop on him, and had his empty hand only extended.”
This request was properly refused. So far as correct, it has already been given in the portions of the charge which we have quoted, heretofore in this opinion. In addition, it contains certain positive errors. It makes defendants’ right of self-defense rest upon whether they had formed a design to kill Carmack before approaching him, whereas a proper statement of the law would have made it rest upon whether, in approaching Carmack they gave him reasonable grounds to believe himself in danger of death or great bodily harm at their hands. Irvine v. *118 mate, 104 Tenn., 132 , 56 S. W., 845 ; Smith v. State, 105 Tenn., 305 , 60 S. W., 145 ; Hecker v. People, 109 Cal., 451 , 42 Pac., 307 , 30 L. R. A., 407. Again it is nowhere made plain in this request that the defendants had no right to approach Carmack in such a way as to give him reasonable ground to fear death or great bodily harm, and that if they did so they forfeited their right to rely upon the right of self-defense. On the contrary, both -the rights of the deceased and of the defendants are rested upon the intention of the defendant, and not upon their conduct in approaching Mr. Carmack. Moreover, the request, if given in the charge to the jury, would have taken from them the right to pass upon the conduct of the defendants in approaching Mr. Carmack, since it states to the jury that the things done by them in approaching Mr. Carmack would not justify him in defending himself, thereby invading the province of the jury.
In addition, the foregoing request asked the court to charge that the deceased had no right to act in his self-defense, and was in the wrong in shooting when he did, although it might appear in the evidence that, Avhen defendant Col. Cooper approached Mr. Carmack, he said in substance to the latter, “Well, here you are all right; I’ve got the drop on you,” if at that time it appeared, or should have appeared, to Mr. Carmack that the defendant Col. Cooper did not have the drop on him, and had his empty hand only extended; and this, although Col. 'Cooper had the night before sent a message to Mr. Carmack that, if his name. appeared in the Ten- *119 nessecm again in an offensive way, one or the other of them nmst die, and although, after he had sent his threat to Mr. Oarmack, Mr. Cooper’s nanie had again appeared in the paper in snch way as to he offensive to him. This was in substance a request to instruct the jury that, although a man has threatened your life, and soon thereafter approaches you, and the first you learn of his presence is, “Here you are all right, and I’ve got the drop' on you,” if he has one hand extended with nothing in that hand, you are to take time to investigate and see whether he has anything in the other hand, and whether he is really telling the truth about having the drop on you. We do not think the law throws such a burden upon any of its citizens, so accosted and threatened by a deadly enemy. If one man has sent a threat to another that he will take his life, and suddenly appears in the presence of that other saying, “Here you are all right, and I’ve got the drop on you,” or anything equivalent thereto, the man so threatened has the right to take his assailant at his word, and immediately defend himself. The approach under such circumstances, and with such antecedent facts, and with such a threat of an instant attack, is in itself an overt act, calling into prompt action the right of self-defense.
We have stated the authorities upon this question in disposing of the first assignment of error, and will not here repeat them.
The sixth assignment of error is based on the refusal of the circuit judge to charge defendants’ second request. *120 This instruction was sufficiently covered by the general charge.
The seventh assignment is based upon the fact that the trial judge stated as a part of the State’s contention, or theory of the case, that Robin Cooper shot Mr. Carmack from the rear. Such appears to have been the contention of the State, and there is at least some apparent evidence to that effect, since the record shows that one of the shots fired entered in the back of Mr. Carmacks neck and passed through to the front. There was no error in the matter complained of.
The eighth assignment is that the trial judge gave undue prominence or emphasis to the State’s theory in his charge. This contention is based upon the following passage, immediately following the statement of the respective theories of the State and of the defendants:
“Remember, gentlemen of the jury, that the above are merely the insistences of the State and of the defendants, which they claim is a reasonable and fair deduction from all the proof, as insisted on by both the State and by defendants; but remember, further, that they are merely-the insistences of the State and of the defendants, and that you, as judges of the law and the facts, are not bound to accept either or any part of-them, Jmt may reject any portion or all of either or both of these insist-ences, and it is your duty to do so in so far as you believe, if you do, that they are not supported by the proof as deposed to by the witnesses; but if you are satisfied that the State’s theory is a fair reasonable deduction from all the evidence, when taken as a whole, and that, when so *121 taken, it establishes the .defendants’ guilt beyond a reasonable doubt, as to either one or more of them, it would be your duty to so find; but if you have a reasonable doubt as to their guilt, that is, as to either one or both of them, or more of them, you should give them the benefit of the same, and ‘not guilty’ should be your verdict.”
In the preceding paragraph, the trial judge had just told the jury that, if they believed John D. Sharp’s theory of the case, they should find “not guilty,” and, in the paragraph next preceding that, that they should find the Coopers “not guilty” if they believed the theory of the latter, or had any reasonable doubt in respect thereof.
We do not think the jury could have attached any significance to the passage complained of as indicating the opinion of the trial court as to the soundness of the plaintiff’s case. The objection is overcritical.
The ninth assignment is based upon the refusal of the trial judge to charge defendants’ fifth request, as follows:
“Among the other evidence the court has permitted you to hear in this case is the testimony of Mrs. Eastman as to certain accusations and denunciations she made against the .defendant D. B. Cooper, immediately after the shooting, while she was standing in the Shank-lin yard, to the effect that he (Cooper) had murdered Carmack. This evidence has been admitted to your consideration as a circumstance tending to show the guilt of the accused, provided you believe in the first place that if this language was used or accusation made by *122 Mrs. Eastman that Cooper heard and understood it at the time; and, second, that it was incumbent upon D. B. Cooper, under all the circumstances surrounding- the parties at the time, to make a denial of her statement. If you have a reasonable doubt in your mind, even though you may be satisfied that. Mrs. Eastman made such a statement, as to whether D. B. Cooper heard it, or understood its import, or if it appears that D. B>. Cooper simply regarded what she was saying as the exclamation and outburst of ah excited woman, then, under these circumstances', he would not be called on to deny it, even if he heard it, and the-fact that he made no denial could not be looked to as a circumstance tending to show his guilt, even if he heard it, if in view of all the circumstances, the condition of his son, the fact that he was wounded, the fact that D. B. Cooper at that time did not know the extent of the injury to his son, the further fact, if such be a fact, that D. B. Cooper had not shot Car-mack, if in view of all these conditions, and the general excitement which prevailed at the time, D. B. Cooper could not reasonably be expected to make any denial of. these charges, then the fact that he remained silent would not be a circumstance tending to show his guilt in this case, and in either of these aspects of his testimony, any such accusation or denunciation that Mrs. Eastman made would be absolutely immaterial.”
We are referred to Phelan v. State, 114 Tenn., 483 , 88 S. W., 1040 . If the evidence referred to could be ranged within the principle of the case mentioned, still the request would be an improper one, because, instead *123 of directing tlie jury to consider tlie various matters or points .suggested as going to the weight of the evidence, the province of the jury is invaded by the statement that the fact that Gol. Cooper remained silent would not be a circumstance at all tending to show his guilt, and that the evidence would be absolutely immaterial. But the testimony in question does not fall within the principle of the case mentioned, since it was not introduced on the idea of an accusation made within the hearing of the defendant and his failure to deny it, but, on the contrary, as a part of the res gestae. The rule is different in the two classes of cases. This distinction is indicated in Braswell v. State, 2 Shannon’s Tenn. Cas., 595. In that case the court said:
“It is insisted on behalf of the prisoners that there are certain errors of law in the record for which a reversal is demanded. And, first, that the court erred in allowing the declaration of the deceased, made directly after the mortal wound was given, to the effect that these prisoners had killed him, to go to the jury. The testimony of Mrs. Isbell thus gives the circumstances under which this declaration was made: After some firing, I don’t know how many shots, Russell, the deceased, ran into the dining room. As he went through the door, Joseph Braswell fired at him. He returned in a little time, and as he came in the Braswells went out, and a pistol or two fired out of the doors. As he came in from the dining room, he said: “Angie, I’m shot. Teak and Joe Braswell are the ones that shot me.” When Russell came in at the door and told me he was shot, he said he *124 was hurting. Defendants could have heard him. They were right about the door.’ This declaration was so near to the main fact as to make it a part of the transaction. We think it was properly admitted as the res gestae.”
Further on in the opinion the court said, quoting from Chief Justice Shaw:
“The doctrine does not presuppose that the assailing party heard the declaration, or that it was at all necessary that he should hear it, in order to have an opportunity of denial. The proof of an accusation in the presence of a party accused of crime stands upon a different principle. The declaration in the other case is admitted, not because it is an accusation, but because it is a part of the transaction which is undergoing investigation.”
Again the court said upon the same subject :
“We apprehend that whatever was then and there said and done, immediately before or after the transaction, which is inseparably identified with and calculated to explain it, may be properly classified as part of the res gestae. The declaration in such a case is a verbal act, and does not stand for accusation, but stands for a fact. If the deceased had been shot by the prisoners with a rifle or shotgun within full view, and had immediately cried out that the prisoners had shot him, this would be a fact inseparable from the transaction itself, and would be admissible as part of it — not conclusive against the prisoner, but for what it was worth as a verbal act constituting a part of the res gestae. The illustration *125 presents an extreme case. In the case of the defendants, the declaration was made immediately after the fatal shot, and in the presence, and no doubt in the hearing, of the prisoners. We have no doubt upon the point of the admissibility of this declaration.”
The statement of a third party at the time of the transaction, and growing immediately out of it, is a part of the res gestae. Morton v. State, 91 Tenn., 443, 444 , 19 S. W., 225 .
The tenth assignment is based upon the refusal of the trial judge to charge request No. 9, which was as follows:
“In determining the credibility of witnesses and the weight to be given their testimony, you, gentlemen of the jury, should look, not only to the integrity of the witnesses and their purpose and intention to testify truthfully, but you should also look to all the circumstances immediately surrounding the witnesses at the time of the events about which he or she testifies transpired. It is ■no impeachment of the integrity of a witness to state that his or her memory is defective, or that by reason of the exciting circumstances with which the witness was surrounded he or she incorrectly understood or remembered the words used. Now, it is not insisted by the defendant in this case that Mrs. Eastman, in undertaking to state what occurred, has testified corruptly or intentionally false; but it is insisted that the suddenness . with which the encounter occurred between the deceased and the defendants, the fact that the encounter was not anticipated or expected by Mrs. Eastman^ the very short *126 time in which the whale transaction occurred, the excitable and nervous disposition, are all circumstances that can be and should be looked to by you-upon this question, not whether Mrs. • Eastman has intended to tell the truth, but whether she has been- able to correctly understand what was said by D. B. Cooper, or has been able to remember accurately what he did say. I instruct you, gentlemen of the jury, that it is the law that the testimony of any witness, in undertaking to repeat the words or language of a third person, especially when heard under exciting circumstances and conditions, is the most unsatisfactory evidence known to law, by reason of the fact that they are always liable to be mistaken and misremembered, and their meaning is liable to be misunderstood and exaggerated; and, therefore, the court instructs you that evidence of this character should be received with great care and caution.”
This request was properly refused, because it is argumentative, and it assumes as a fact, as to which there is no evidence, that Mrs. Eastman was of an excitable and nervous disposition, and, besides, it is improper that the evidence of a single witness should be in this manner singled out-by the court and commented on in the charge.
The eleventh assignment of error is based upon the action of the trial judge in charging as follows:
“The court further charges you that it is insisted on by counsel that extrajudicial conversations are the weakest of all contradictory processes; that is, conversations had out of court by witnesses with persons not *127 under oath and spoken in a general way — the reason being, first, the fallibility of the human memory as to the exact language used in a particular conversation. The slightest change in the language used may alter the whole sense of the conversation or a portion of it; hut you will take these, if any appear in the proof, and consider them along with the other evidence, and, after having done so, give them such weight as you may think they deserve.”
The criticism on this portion of the charge is, in substance, that the court did not tell the jury what he thought, but simply what counsel thought, or insisted. It is apparent, however, that the court adopted the contention of counsel upon the point, and the jury must have so understood the matter. He told them, in effect, that, taking all of these infirmaties into consideration, they should give evidence of this character such weight as they think it deserved. There was no positive error in the excerpt quoted, and there was no competent request to make it fuller and more complete.
The twelfth assignment is based on the refusal to charge defendants seventh special request, which was as follows:
“Although Senator Carmack may have believed that D. B. Cooper and Robin Cooper were approaching him for the purpose of killing him, yet, if the proof shows that the said Robin Cooper and D. B. Cooper had no such intention, Carmack would not have been justified in drawing his pistol and attempting to shoot them on account of what he believed their intention to be. In other *128 words, the right oí these defendants must he determined by what was in their mind, and not by what was in Mr. Carmack’s mind at the time, and in this connection I again remind you, as I did at the time that that'evidence was introduced, that you cannot look to the testimony of witnesses Witherspoon and Landers as to what Land-ers says he told Carmack about Cooper intending to kill him on sight as proof that defendant D. B. Cooper ever made such statement as that, nor can that testimony be considered by you at all in determining what Cooper’s intention was. It may be regarded in determining what Carmack’s was; but, as Cooper cannot be charged with Carmack’s intention, it would be incompetent and unfair to defendants to consider it as evidence against him.”
There is no error in refusing this request. As to the first branch of it, it leaves out of view the words of Col. Cooper showing an imminent attack on Mr. Carmack, and hence the grounds of apprehension on the part of the latter, growing out of such attack and previous occurrences and threats, and makes the right of self-defense on the part of Mr. Carmack turn upon the real purpose of Col. Cooper. This is not the law. If it were, a man might approach another, showing distinct overt acts indicative of a purpose to do great bodily harm, and, when injured on account thereof, show that he had no real purpose of doing harm. The assailed party must judge by appearances as. things look to him.
As to the second branch, there was no error in refusing to repeat rulings in evidence.
*129 We shall consider together assignments Nos. 13, 11, and 15.
They present the point, speaking generally, that the trial judge erred in failing to charge as to the separate criminal responsibility of Robin Cooper, as distinguished from his father. The complaint is that they are in the charge linked and hound together; the case of the son being made to depend upon that of the father. The point is particularly presented in requests Nos. 1 and 10, and error is assigned upon the refusal of the trial judge to give these in charge to the jury.
Request No. 4 was as follows:
“If you believe, from all that transpired during that day, as well as what occurred at the corner when Robin first discovered the deceased, that Robin in good faith believed, when his father left him and started down to meet Carmack, that defendant D. B. Cooper was going for no other purpose than that purpose for which said D. B. Cooper said he was going, to wit, to have a talk with him, and if in this belief Robin accompanied his father, and when they met Carmack, at or about the poles, Carmack immediately began firing upon Robin, Robin Cooper, under the law, had the right to shoot and kill Carmack, if necessary for his own-protection, although defendant D. B. Cooper may have gone there for the purpose of provoking a difficulty.”
Request No. 10 was this:
“If you find from the evidence that Robin Cooper crossed the street and went to where the deceased was *130 without any intention of killing the deceased, or doing the deceased great bodily harm, or without any intention of bringing on a difficulty with the deceased, for the purpose of killing the the deceased, or doing the deceased great bodily harm, that is, if Robin went to the place of the meeting without any criminal intent, and if you further find from the evidence that the deceased, without any hostile demonstration on the part of Robin Cooper, drew a pistol and fired at Robin, or made any hostile demonstration such as would reasonably induce the belief in Robin’s mind that the deceased intended to do him great bodily harm, and If you further find that Robin then killed the deceased, a case of self-defense is made out, and you should find all the defendants not guilty.” •
In order to properly dispose of this matter, it is necessary that we should refer to the evidence of Robin Cooper, to ascertain whether there was any basis of fact upon which to predicate the matters contained in. the request.
On examination in chief, he said:
“Q. Now, why was it you went with him, or followed him, if you believed that was his mission?
“A. After he had gotten about halfway across the street, I felt that it was my duty, as he was my father, and I believed that he was unable to protect himself if he should* be attacked, to go with him, and be there if Carmack should attack him.”
After relating how they went down to the point where his father stopped and spoke to Mr. Carmack, he says:
*131 “Papa said, ‘Senator Oarmack/ and immediately when papa said it, he looked, and in an instant had drawn a pistol.
“Who drew the pistol?
“A. Senator Oarmack.
“Q. Well, what did he do with the pistol when he drew it? Go on and tell what occurred.
“A. Well, it came ont jnst like that (illustrating). It paralyzed me for a moment, and Senator Oarmack crossed the sidewalk, backing slightly towards the two posts, and intuitively I jumped forward, to the sidewalk between my father and Senator Oarmack.
“Q. When? At what time?
“A. When he was getting behind the posts. I had hardly gotten on the sidewalk, and right at the north post, probably two or three feet inside of the north pole.
“Q. You mean inside, back from the posts towards the fence?
“A. Towards the fence; I think even with the north pole, but about two or three feet towards the fence.
“Q. Which way were you faciug then?
“A. Facing south, and a shot exploded, it seemed to me, almost in my face, coming between the posts. I could see the pistol and Senator Carmack’s arm.- He was standing right in the gutter, at the lower or the south post.
“Q. Well, where did the shot hit you?
“A. That shot hit me here.”
Again, he says:
*132 “Yes, sir; I was on a terrible nervous tension and excitement and strain, and I didn’t see anything after I intuitively jumped forward between papa and Senator Carmack.”
Again:
“Q. Did you move rapidly?
“A. I don’t know, sir; I know I just jumped between them.”
•He further says on cross-examination:
“Q. Now, where were you when yOur father said— addressing him as-Senator Carmack?
“A. I was in the street there just about even, probably slightly behind papa, right near him. I had got up there to intervene, if I could; if I.could help papa.”
Also this:
“Q. And you sprung in between him and your father?
“A. Yes, sir.”
It is an undisputed fact that Robin Cooper, at this time, knew of his father’s threat, communicated by Mr. Craig the night before to Mr. Carmack, that if his name appeared again in the Tennessean in an offensive, way, one or the other must die, or that the town would not he big enough to hold them both, which was the same thing; that his father’s name had appeared again the next morning in a manner offensive to him; that Mr. Carmack had not been informed of any change of purpose on his father’s part; that if they should meet with this impression still on Mr. Carmack’s mind, left by the threat to kill

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8300682. Public record. Not legal advice.