The defendant was convicted of the crime of manslaughter in the first degree and adjudged to suffer imprisonment in the penitentiary for a term of 18 years. He appeals from such judgment and from an order denying a motion for a new trial.
The first assignment of error relied upon to reverse the judgment is the refusal of the trial court to grant him a continuance of the case on the ground of absence of material witnesses.
The application, omitting the formal parts, is as follows:
"By the witnesses J.M. Robinson and Freeman Robinson, the defendant expects to prove that about three weeks before the time of the homicide that each of said witnesses heard the deceased say that he intended to make this defendant and his brother eat the dirt before the year was ended, thereby meaning that he would kill this defendant. That said testimony is material by reason of the fact that this and these and similar threats made against the defendant were communicated to this defendant prior to the time of the homicide, and at the time of the homicide the said deceased was making an attempt to carry said threats into execution. That the defendant attaches hereto and asks that the process showing service on said witnesses has been made for them to be here in court on this date and asks that *Page 85 the same be made a part hereof. That the defendant believes the testimony of said witnesses is true. That he cannot procure it from any other source."
It appears that the application was based on the absence of witnesses who had been subpoenaed, but were not in attendance, and that an attachment, which, so far as the record shows, was not asked, would have been sufficient to secure their attendance, had it been asked. The defendant was entitled to have attachments issue to compel the attendance of these witnesses, and to have the trial postponed until the attachments were executed. He did not ask for attachments, and no reason is given for the nonattendance of any of these witnesses. If attachments had issued and proved unavailing on account of sickness, absence, or other sufficient reason, then a different question would be presented. The application is defective in failing to show where these witnesses reside, or any probability of procuring their attendance at some future time; and the court could not determine from the application that there was any more probability of their obeying a subpoena at the next term of court than at the present term. Applications for continuances are always addressed to the sound discretion of the trial court; and no rule is more firmly established in this state than that this court will not reverse a judgment of the trial court, upon the ground that it refused to grant a continuance, unless it appears that such court has manifestly abused its discretion in refusing it. Lee v. State,7 Okla. Crim. 141, 122 P. 1111.
Clearly there was no error in refusing to grant the continuance.
Error is assigned upon the rulings of the court in admitting and excluding evidence. No useful purpose would be served in discussing these in detail. Suffice it to say that we have carefully examined them and are satisfied that no errors were committed prejudicial to the defendant.
The remaining assignments relate to the instructions given by the court. The record shows that, when the instructions were read to the jury, only a general exception was taken as follows: "The defendant then and there in open court excepted to each *Page 86 and all and every one of the instructions." It appears from the record that the attorneys representing the defendant on this appeal became connected with the case after the conviction. On this general exception several of the instructions are complained of in their brief, and the instructions with reference to self-defense are criticised. Taking the evidence relied upon by the defendant to be true, we think that it was legally insufficient to show justification. This being so, the instructions considered as a whole were more favorable to the defendant than the law requires. The defendant was not conducting himself lawfully, and the necessity for taking the life of the deceased arose, if at all, by the unlawful acts of the defendant. He returned that afternoon to the premises in possession of the deceased with the evident intention of building the fence by overcoming whatever force the deceased might offer, and he went armed with a loaded pistol.
The threats testified to, and the altercation in the forenoon followed by fencing out the horses of the deceased, which no witness denies, and the defendant arming himself with a deadly weapon, and going to where the deceased was tearing down the fence, at least could be but a challenge to mutual mortal combat. And where the killing is done in mutual combat, entered into willingly, and in the knowledge of its liability to cause death to one or the other of the combatants, the slayer cannot justify on the ground that it was committed in self-defense.
Says Mr. Wharton:
"If the defendant in any way challenged the fight, and went to it armed, he cannot afterward maintain that in taking his assailant's life he acted in self-defense. `A man has not,' as is properly said by Breese, C.J., `the right to provoke a quarrel and take advantage of it, and then justify the homicide.' Self-defense may be resorted to in order to repel force, but not to inflict vengeance. `Non ad sumendam vindictam, sed adpropul-sandam injuriam.' There is certainly no law to justify the proposition that a man may be the assailant and bring on an attack and then claim exemption from the consequence of killing his adversary on the ground of self-defense. While a man may act safely on appearances, and is not bound to wait until a blow is received, yet he cannot be the aggressor and then shield himself *Page 87 on the assumption that he was defending himself. `And an adulterer caught in the act by the husband is guilty at least of manslaughter, if, in repelling a murderous attack by the husband, he kill the husband. But where the defendant, without an intent to take the deceased's life, provoke the quarrel, this while it destroys the excuse of self-defense, does not, if the deceased's attack put the defendant's life in danger, militate against reducing the offense to manslaughter." (1 Wharton's Crim. Law [10th Ed.] par. 485.)
Where the killing is done in mutual combat, it will be manslaughter at least, unless the survivor can prove that before the mortal stroke was given he had refused any further combat and had retreated as far as he could with safety, and that he killed his adversary from necessity, to save his own life, or his person from great bodily harm.
If the defendant acts from fear of death or great bodily harm, he must be free from fault in bringing on the difficulty. The defendant in this case by his own unlawful acts brought on the difficulty, and, if there was a hostile demonstration on the part of the deceased, it was the duty of the defendant to employ all reasonable means within his power, consistent with his own safety, to avoid the danger and avert the necessity of taking the life of his assailant. This is the law, and it is so stated in the instructions given. If we consider the matter in the most favorable aspect for the defendant, he is upon his own testimony guilty at least of manslaughter in the first degree.
The judgment of conviction is therefore affirmed.
FURMAN, P.J., and ARMSTRONG, J., concur. *Page 88