This prosecution is based on that portion of section 1756, Compiled Statutes 1921, which reads as follows:
"Any person who intentionally and wrongfully * * * commits any assault and battery upon another by means of any deadly weapon, or by such other means or force as is likely to produce death, * * * is punishable by imprisonment in the penitentiary not exceeding ten years."
To sustain a charge under such statute it is not necessary to prove the elements of murder, but the charge is sustained if the defendant would have been guilty of any grade of felonious homicide had death ensued. Such is the construction given by this court to a statute similar in terms. Tyner v. U.S.,2 Okla. Cr. 689, 103 P. 1057.
The foregoing observation is made because of comments contained in the brief of counsel for defendant against certain of the trial court's instructions which lead this court to believe that it was the contention of defendant's counsel that, before a conviction under the foregoing statute should be allowed to stand, the evidence against the defendant should be such as to have warranted his conviction of murder had death resulted. We do not so understand the statute.
The instructions given and complained of are as follows:
"In this case, the defendant, John Moore, as his plea and for his defense, says that the striking, assaulting, cutting, *Page 65 bruising, and beating of the prosecuting witness was justifiable, and that in doing so he was acting in his own necessary self-defense. The law gives to every person the right to fight in self-defense, to protect himself from the unlawful attack of his adversary, and where a person is unlawfully attacked he is not required to retreat, but has a right to stand his ground and use whatever force is necessary to repel the attack, in order to prevent great bodily injury to himself. The law of self-defense was given to the citizen for his protection, but it cannot be pleaded as a defense by one who himself is the aggressor, or who enters voluntarily into a difficulty armed with a deadly or dangerous weapon, no matter in how much danger he may be placed in the course of the difficulty, nor how imminent his peril may become.
"You are instructed that if you find from the evidence in this case that the defendant left the room or house and armed himself with a dangerous and deadly weapon, to wit, with rock or knife, or with rocks and knives, and that he returned to the place where the prosecuting witness was, and voluntarily entered into a fight with the prosecuting witness, and with such deadly weapon or weapons did strike and beat and bruise and cut the prosecuting witness, he would be guilty, and under such circumstances cannot plead the right of self-defense, unless it was shown that before the assaulting, beating, cutting, and bruising of the prosecuting witness the defendant had refused any further combat and had, in good faith, withdrawn, and sought to avoid further conflict; and that the cutting, bruising, striking, and beating was then done in necessary self-defense.
"You are instructed that if you find from the evidence in this case that the defendant left the room or house where the combat had already been begun, and then armed himself with a dangerous and deadly weapon, to wit, with a rock or a knife, or with a rock and knife, and that he returned to the place where the prosecuting witness was, and voluntarily entered into a fight with the prosecuting witness, and with such deadly weapon or weapons he struck, beat, bruised, and cut *Page 66 the prosecuting witness, he would be guilty under such circumstances and cannot plead the right of self-defense; unless it was shown that before the assaulting, cutting, beating, and bruising of the prosecuting witness the defendant was not at fault in any further combat, and only used such force as was necessary in such combat with the prosecuting witness."
It is urged that the first of the foregoing instructions is erroneous for the following reasons:
(1) "It does not tell the jury clearly that if they are satisfied from the evidence beyond a reasonable doubt that defendant sought, provoked, or occasioned the difficulty with the prosecuting witness, or they so find that he was the aggressor and voluntarily entered into the difficulty armed with a deadly or dangerous weapon with the intention of killing him or inflicting serious bodily harm upon him, that only then would he be deprived of the right of self-defense."
(2) "It authorizes the jury to assume that the defendant was the aggressor, or that he voluntarily entered into the difficulty armed, and that he could not plead self-defense unless it was shown (by the defendant) that before assaulting, beating, cutting, and bruising the prosecuting witness the defendant had refused any further combat and had in good faith withdrawn and sought to avoid further conflict. In other words, it `tells the jury too plainly that the defendant cannot plead self-defense because he is one who is the aggressor.'"
The theory of the state in this case, and there is evidence to support it, is that the defendant, John Moore, was the aggressor throughout the entire difficulty, and that everything done by the prosecuting witness, Cannon, was done in his apparently necessary self-defense.
We believe the testimony of the defendant, John Moore, does not entitle him to an acquittal. At most, his testimony shows a perfect willingness on his part to enter into a "mutual combat" with Cannon, and it is immaterial whether *Page 67 Moore's intention was, at the time he entered such combat, to, with premeditated design, kill the said Cannon, or not, provided in the course of the conflict, which he had reasonable cause to believe would ensue, he assaulted said Cannon with such "means or force likely to produce death." In the latter event the design to kill is presumed and a conviction is justified under the statute.
Under the theory of the state that defendant was the aggressor and provoked the difficulty, the instruction was authorized, and under defendant's testimony it cannot be held to be prejudicially erroneous in this case because the intent with which he entered the difficulty becomes immaterial under the statute, as in either event had death resulted he would have been guilty of murder or manslaughter.
We do not construe section 2822, Compiled Statutes, 1921, to authorize this court to reverse judgments of conviction because of minor errors in the court's charge where the testimony of the defendant is such as in this case.
Further, under the following decisions, where the the law of "mutual combat" was presented by the evidence, the law of necessity to withdraw in good faith from the conflict is stated in language at least as forceful as that employed by the trial court in the instant case: Wood v. State, 3 Okla. Cr. 553,107 P. 937; Boutcher v. State, 4 Okla. Cr. 576, 111 P. 1006; Evans v. State, 8 Okla. Cr. 78, 126 P. 586; Johns v. State,8 Okla. Cr. 585, 129 P. 451; Moutry v. State, 9 Okla. Cr. 623,132 P. 915.
The latter of the foregoing instructions complained of was given in the form requested by defendant's counsel, and it is here contended that the two instructions are misleading, confusing, contradictory, and prejudicially erroneous when considered together, and that the instructions when considered *Page 68 as a whole do not cure such apparent contradiction in the charge.
However true this may be, the conflict or contradiction arose because of defendant's requested charge. Without it there is no conflict, no contradictions in the general charge. This court has repeatedly held that a defendant will not be heard to complain of an error invited by him in the trial or occasioned by his own conduct or at his request. Allen v. State, 16 Okla. Cr. 136,180 P. 564; Klein v. State, 15 Okla. Cr. 350, 176 P. 414; Carter v. State, 6 Okla. Cr. 232, 118 P. 264.
And further it has been held that where a conflicting instruction is given at the request of the defendant, the error occasioned is harmless, where the other instructions are sufficient. People v. Hower, 151 Cal. 638, 91 P. 507.
By what has been said in this opinion the court wants to be understood not to condone, or in any particular approve of, the conduct and demeanor of the prosecuting witness on the occasion of this difficulty. He was not entirely blameless, but that fact cannot operate to justify or excuse this defendant who entered willingly and voluntarily into a conflict, with one whom he had every reason to believe was armed, after having first armed himself with a heavy boulder and also a knife, both of which he used with telling effect upon his adversary. Defendant knew that such a conflict could end in none but serious results to one or the other of them, and himself stated, "I just figured I would just as leave fight him that night as any other time."
The judgment is affirmed.
DOYLE and BESSEY, JJ., concur. *Page 69