The motion for rehearing filed herein vigorously assails the correctness of the opinion of the court in affirming the judgment of the court below. We have, on the fullest reflection, no doubt of the correctness of the matters discussed in the original opinion. The motion for rehearing, however, complains that the charge of the court on self-defense was so interwoven with the charge on provoking the difficulty as to constitute a limitation on appellant's right of self-defense, and is error, if self-defense, pure and simple, be in the case supported by ever so little testimony. This matter received our attention on the original submission, but it occurred to us that the contention had such little foundation in the record as not to require discussion. However, in view of the serious insistence of appellant, and to make the opinion complete, we will discuss the matter. In paragraph three of the court's charge this instruction was given: "Every person is permitted by law to defend himself against any unlawful attack, real or apparent, reasonably threatening or reasonably appearing to him to threaten injury to his person, and is justified in using all the necessary and reasonable force to defend himself, but no more than the circumstances reasonably indicate to be necessary. Homicide is justified by law when committed in defense of one's person against any unlawful and violent attack, real or apparent, made, or appearing to him to be made, in such a manner as to produce a reasonable expectation or fear of death or some serious bodily injury." In the sixth paragraph of the court's charge the jury were thus instructed: "A reasonable apprehension of death, or of great *Page 241 or serious bodily harm, will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.
"If from the evidence you believe the defendant killed Minos Long, but further believe that, at the time of so doing, the deceased had made an attack on him, or that it at said time appeared to defendant that deceased had made, or was making, or was about to make an attack on him, which, from the manner and character of it, or from any or all of the existing circumstances, caused him, when viewing the situation at the time from his standpoint, to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, if any such there were, the defendant killed the deceased, or if you have a reasonable doubt as to whether or not such were the facts, then you should acquit him on the grounds of self-defense." It will be noted from the quotations above that the jury were instructed that, if they found the facts which, under the law, constitute self-defense, existed, or if they have a reasonable doubt of their existence, they should acquit appellant on the ground of self-defense. Then follows a charge on the doctrine of self-defense as affected by the issue of provoking the difficulty. This portion of the court's charge is as follows: "You are further instructed, as a part of the law of this case, and as a part of the law on self-defense, that if you find from the evidence, and beyond a reasonable doubt, that the defendant, Will Puryear, sought the occasion on which Minos Long was killed (if he was killed) for the purpose of slaying the said Long (if he did so), and that said defendant, having found the said Long, then and there did some act, or used some language, or did both, as the case may be, with intent on his (defendant's) part to produce the occasion for slaying him and bring on the difficulty, and that said conduct on defendant's part (if there were such) was reasonably calculated to provoke a difficulty, and that on such account Minos Long attacked defendant, or reasonably appeared to defendant to attack him, or to be about to attack him, and that defendant then killed Minos Long in pursuance of his original design (if there was such), such killing would be murder of either of the first or second degree, according as the facts and circumstances in evidence may justify the jury in finding.
"But if the defendant provoked the difficulty that resulted in the death of deceased, and by his own wrongful act produced a necessity for taking the life of the deceased, but in doing so, if he did so, he had no intent to kill deceased, or to inflict upon him serious bodily harm, and suddenly, under the immediate influence of sudden passion arising from an adequate cause, as hereinbefore fully explained in this charge, he shot *Page 242 and killed deceased, then you will find the defendant guilty of manslaughter.
"But if you do not find from the evidence and beyond a reasonable doubt the existence of the facts which would qualify the defendant's perfect right of self-defense under the law as it is given you in this paragraph of the charge, you will decide the issue of self-defense in accordance with the law on that subject contained in paragraph VI of this charge, and without reference to the law on the subject of provoking the difficulty." The eighth paragraph is as follows: "The full and perfect right of self-defense of a person who provokes a difficulty revives as soon as such person in good faith abandons such difficulty. You are therefore instructed that, even if you find from the evidence, and beyond a reasonable doubt that the defendant sought the occasion on which Minos Long was killed (if he was killed) for the purpose of slaying the said Long (if he did so), or for the purpose of provoking a difficulty, with no intention of slaying said Long, and that said defendant, having found the said Long, then and there did some act, or used some language, or did both, as the case may be, with intent on his (defendant's) part to produce the occasion and bring on the difficulty, and that said conduct on defendant's part (if there were such) was reasonably calculated to provoke, and did, in fact, provoke a difficulty, such facts would in nowise limit or abridge any right of self-defense that the defendant would otherwise have had on the occasion of the shooting; if you further find that defendant had, at the actual time of the shooting, abandoned said difficulty (if any) in good faith, or if you have reasonable doubt as to whether or not he had at said time in good faith abandoned said difficulty (if any)." We think a careful reading of the court's charge must convince the thoughtful reader that the issue of self-defense was, in the light of the entire record, submitted to the jury as fairly and as fully as it was possible to do.
The other questions of moment are discussed in the original opinion of the court, and we see no occasion to elaborate them.
The motion for rehearing is overruled.
Overruled.