May 5, 1915. The opinion of the Court was delivered by The defendant was indicted for murder and convicted of manslaughter at the March term of the Court, 1914, for Marlboro county, and sentenced by his Honor, Judge Memminger, at hard labor for the period of three years, a motion for a new trial having been overruled. Defendant appeals and alleges error on the part of the Judge in not charging *Page 119 the jury as to the law of self-defense, as embodied in defendant's request to charge, and in refusing to charge defendant's request to charge as to accidental killing. Defendant complains of further error in Judge's charge as to the law of mutual combat.
We have read the Judge's charge as a whole and find that he covered every phase of the law of the case fully. In his own language he told the jury what was murder, manslaughter, and self-defense. His charge was fair and impartial, and the jury could not have misunderstood it, and it was in nowise prejudicial to the defendant. He fully told them, in his own language, what the law of self-defense was. A Judge is not bound to charge in the exact language of a request made; it is sufficient if he does so substantially in his own language. Even though the request embodies a sound proposition of law applicable to the case as to the defendant request as to the law of accidental killing, there were no facts disclosed in evidence to warrant an inference that it was accidental. The defendant and deceased got into an altercation and then in a fight, which resulted in the death of the deceased from a blow inflicted by the defendant. The defendant testified in his own behalf as to how the difficulty began, and as to how the fight commenced, claiming that the deceased was the aggressor from the beginning and assaulted him, the defendant. "That he grabbed me in the back and struck me in the back and I grabbed around the post to hold away from him, and got into the house and got rid of him, and he jerked me back, and I had the post, and that post pulled out, and me and him both fell, and I fell backwards and the post was on top of me. And when me and him got off of the ground he was pulling something out of his pocket. I did not know what was it, and I said: `Josh, don't you shoot me;' and he said, `You son of a bitch, I will get you tonight,' and I saw something coming out of his pocket, and I took the post *Page 120 and I jooged him that way. I did not intend to hurt him badly, but I jooged to get rid of him. If I could have jooged him enough so I could have run, I would have. I knew he was a good man. He was the best man; always was." This does not show an accidental killing. The defendant voluntarily and knowingly intended to hurt the person of the deceased, even though if he did not intend to kill him, yet if death ensued, and he unlawfully struck, he is guilty of murder or manslaughter, according to the circumstances of the nature of the instrument used and the manner of using it as calculated to produce death or great bodily harm or not. If the facts and circumstances show either that it was done with mischievous intent, or that it is a dangerous act and will result in serious harm, or there is a strong probability that it will, it cannot be an accidental killing. The textbooks show this to be law and quotation of authority is unnecessary. In light of all the facts and circumstances and surroundings developed in the case there was no evidence from which the jury could infer that the killing was an accident. It was either felonious or excusable on the ground of self-defense. His Honor was correct in telling the jury that "where a man engaged in the commission of an unlawful act kills another the law calls that manslaughter, even though he may not have intended to kill another."
We fail to see that there is any error in the trial in the Circuit Court as made by the exceptions, and all exceptions are overruled and judgment affirmed.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES FRASER and GAGE concur in the opinion of the Court.